Normativity in Language and Law*

This paper develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a more general framework for implementing a contextualist semantics and pragmatics, called Discourse Contextualism (Silk 2014b). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. Though the semantics is descriptivist, I argue that it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the important social, interpersonal role of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further (meta)normative theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Delineating these issues can lead to a more refined understanding of the space of overall theories. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. *Preliminary draft for Philosophy of Law and Metaethics (Eds. D. Plunkett, S. Shapiro, K. Toh), OUP. Thanks to participants in the 2015 Yale Workshop on Metaethics and Philosophy of Law for helpful discussion, and to Stephen Finlay for detailed comments on a previous draft.