Law’s Technicality and Rich Evaluative Significances: Why (English) Law Is Not a Deontic System

The more abstract, theoretical reaches of private law scholarship are perennially afflicted by controversies over whether particular legal categorisations such as contractual obligation and duty of care genuinely ‘legally obligate’ (or whether breaches of such standards are ‘wrongs’). General jurisprudence, meanwhile, entertains an equally persistent debate over the nature of legal obligations – particularly over how such entities relate to morality and/or other aspects of the normative universe. Underpinning both discourses is an assumption that law is essentially a system of deontic (i.e. obligating/permitting) norms, plus deontic norm-modification norms. That is, it is thought that if one scrapes away the surface technicality of legal discourse, and setting aside also the emotional nuances of the sentiments people actually have towards legal categories, one can reconstruct the legal corpus as a set of propositions involving a small set of normative operators (obligation/permission, power/disability). These operators, in turn, are thought to be definable in terms of some psychologically thin (or perhaps entirely non-psychological) notion of a legal ‘ought’ or ‘may’ whose nature can be debated philosophically. I argue that this assumption is mistaken. It generates a picture at variance with the facts of legal and societal practices. It fails to appreciate the technicality of legal language, which (in England, at least) results in there being no overarching notion of ‘legal obligation’ and in it being impossible adequately to paraphrase statements involving terms such as contractual obligation, crime and tort with ‘ought’-statements. It simultaneously fails to compute with law-influenced attitudes being richly emotional and socially embedded, involving complex blends of shame, anger etc. The better view is that law (or, again, English law) is not a deontic but rather a status-ascribing and sentiment-coordinating system. In developing this contention, I draw on social and linguistic philosophy, traditional legal materials (case-law, legislation) and historical and sociological evidence.

Name dc:type.qualificationname

Doctor of Philosophy (PhD)

Level dc:type.qualificationlevel

Doctoral

Grantor dc:publisher.institution

University of Cambridge

Year dc:date.issued

2023

Author dc:creator

• Ward, Daniel

Advisor dc:contributor.advisor

• Vinx, Lars

• Legal theory
• Normativity of law
• Technicality

Licence

• https://apollo8-f-pro.lib.cam.ac.uk/bitstreams/0774418a-62f2-4bf0-8bb0-47d3ac3d3d37/download
• https://www.rioxx.net/licenses/all-rights-reserved/

Language dc:language

eng

DOI dc:identifier.doi

https://doi.org/10.17863/CAM.109775

OAI identifier oai:identifier

oai:www.repository.cam.ac.uk:1810/370327