Rob Mullins (The University of Queensland - T.C. Beirne School of Law) has posted Detachment and Deontic Language in Law (Law and Philosophy, Forthcoming) on SSRN. Here is the 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.
And from the paper:
[T]he use of deontic language to describe the law is significant for the philosophy of law in at least three ways. First, the fact that the use of deontic language is presumptively committed is in prima facie tension with the thesis that the validity of a rule does not depend on its merits. An account of detached legal statements resolves this tension; it allows us to explain the use of deontic language to describe the law in situations where speakers themselves lack any commitment towards it. Second, committed uses of deontic language have a kind of explanatory priority over detached use. Proper description of the law may well depend on an understanding of committed use. Finally, the directive use of deontic language by legal officials suggests that officials purport to guide the conduct of others in a rule-governed fashion.
Very interesting and recommended. I am not yet sure what I think, but this is definitely worth reading if you are interesting recent discussions of the normativity of law.