NEW DIRECTIONS IN LEGAL EXPRESSIVISM

Abstract

ABSTRACTNumerous legal scholars have adopted the view that H. L. A. Hart offered an expressivist (or at least proto-expressivist) account of legal discourse. But philosophers of law have given comparatively little attention to the prospect of developing newer forms of legal expressivism informed by contemporary metaethics. One notable exception is Kevin Toh, who has recently addressed this constructive project. This article critically evaluates Toh's contributions to the project of legal expressivism. Despite the value of Toh's work in reviving legal expressivism as an explanatory strategy in jurisprudence, neither he nor anyone else has paid sufficient attention to the most important question now facing legal expressivists. I call this the “question of content”: to wit, what distinguishes the mental states expressed by legal statements from the mental states expressed in other forms of normative discourse? I argue that theorists interested in legal expressivism must prioritize this question.