Presupposing Legal Authority Mullins, Robert
Oxford journal of legal studies,
05/2022, Letnik:
42, Številka:
2
Journal Article
Recenzirano
Abstract
The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, ...have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible basis for the claim thesis lies in the felicity conditions of the speech acts that legal officials perform. In the absence of an explicit claim to authority, legal officials make a presupposition to authority over their subjects. The presupposition arises from interaction between the felicity conditions of legal speech acts and basic norms of cooperative communication. I consider some implications of this conclusion for our understanding of legal authority.
This paper introduces a non-linguistic theory of norms. The proposal is motivated jointly by Jørgensen’s dilemma and Black’s objection to the better-known linguistic theories of norms. The argument ...is structured as follows. The author starts by defining deontic sentence and deontic system. He then applies Kripke’s possible world semantics to the analysis of deontic language, before he presents the above-mentioned motivations for conceiving of norms as non-linguistic entities. One such conception is defended in the second half of the paper, where norms are identified with decisions of some normative authority. The author shows how this notion of norm serves both, an intuitive and a formal analysis of normative regulation. Together with the notion of normative function as its formal counterpart, this notion of norm permits one to explain logical relations between deontic sentences with no need to recur to any special semantics or logic of norms. | This is a corrected reprint of the text originally published in Reports on Philosophy 6 (1982): 65–73.
