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Detachment and Deontic Language in Law

Abstract

Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a Gricean generalized conversational implicature to the effect that the rules in question reflect the speaker’s own commitments. Detached legal statements are made when this implicature is either explicitly cancelled or when the conversational context is sufficient to defeat the implicature. I conclude by offering some tentative reflections on the theoretical significance of deontic language in the law.

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Correspondence to Robert Mullins.

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I would like to thank two anonymous referees for their many helpful comments. An earlier version of this paper was presented to audiences at the University of Edinburgh’s Legal Theory Research Group and Oxford University’s Jurisprudence Discussion Group. I am grateful to those audiences for their feedback and advice. Particular thanks are due to Luís Duarte d’Almeida and Lucas Miotto.

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Mullins, R. Detachment and Deontic Language in Law. Law and Philos 37, 351–384 (2018). https://doi.org/10.1007/s10982-017-9313-5

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