No power alike [electronic resource] : legal realism and legal reality
Keywords: Philosophy.

This dissertation explores a new approach to analytic jurisprudence called "legal expressivism." Where much of contemporary analytic jurisprudence focuses on discovering the nature of law (i.e., law's necessary features or some important subset thereof), legal expressivism focuses on developing a naturalistic account of the function of legal discourse and thought. The approach is inspired by metaethical expressivism, which seeks to tell a similar story about moral/ethical discourse and thought, or about normative discourse and thought more generally. And it has a similar motivation: namely that legal claims, like moral claims, do not seem amenable to translation or analysis into naturalistic terms. Although legal expressivism bears a resemblance to important aspects of the jurisprudential theories of H. L. A. Hart and the Scandinavian legal realists, it has only recently been given any sustained attention in contemporary philosophy of law. I thus start by analyzing and critiquing the small existing literature on legal expressivism. I then turn to the task of developing my own legal-expressivist theory (or rather theories). First, I develop a form of legal expressivism based on Allan Gibbard's norm-expressivism. According to this form of legal expressivism, Hartian internal legal statements (or, as I call them, normative legal statements) express acceptance of norms concerning the use of institutional coercive force. Next, I consider the possibility that an even better form of legal expressivism could be had if we moved beyond the confines of Gibbardian norm-expressivism and developed an account of legal discourse's social function and genealogy in the spirit of Huw Price's "global expressivist" project. I argue that this more radical Pricean kind of legal expressivism would still locate the function of legal discourse in its ability to coordinate attitudes (and ultimately behavioral dispositions) concerning the operation of certain institutional structures, notably institutions of social control backed by coercive force. I also consider the bearing legal expressivism might have on certain timeless jurisprudential debates, such as whether and to what extent judges make law, and whether and when there are right answers to "hard" legal cases or questions. I argue that legal expressivism should not (and, in its most plausible forms, will not) resolve such first-order jurisprudential disputes. Just as Gibbard's metaethical expressivism is neutral between, say, utilitarianism and ethical egoism, so too is legal expressivism neutral between the classical position that judges do not make law and the more modern, legal-realist position that judges often make law. That being said, legal expressivism can show us why traditional or classical positions on questions about judicial lawmaking and the existence of right answers to hard cases are consistent with the most plausible form of scientific naturalism. In this respect, its potential effect on first-order jurisprudential questions is analogous to that of contemporary metaethical expressivism on first-order moral questions: it shows us why scientific-naturalist scruples need not influence the side we take on these issues.