Claims of Legal Authorities and 'Expressions of Intentions': The Limits of The Philosophy of Language

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)

Colleges, School and Institutes

Abstract

Legal authorities make requests, give orders and commands and they claim that these requests, orders and commands will be done in either a morally correct (Alexy R., The Argument from Injustice ) or morally legitimate (Raz J., The Authority of Law) manner or both. How should we understand these
claims? Can we reconstruct such claims in light of the speech-act theory? According to the speech-act theory (Austin J.L., How to do Things with Words; Searle, J., Speech Acts: An Essay in the Philosophy of Language), by saying something I am performing an act. Thus, making an assertion, giving an order and promising to do something are all ways of performing an act. Following the core tenets of the speech-act theory, we might argue that by requesting, commanding or ordering ‘X ought to ɸ’ legal authorities are performing an act (performative act); we could also argue that by claiming moral legitimacy and moral correctness legal authorities are making claims about how these performative acts will be carried out. I advance arguments to criticise this reconstruction of claims of legal authorities and in doing so will show
the limits of speech-act theory for illuminating the phenomenon of intentional actions and its connection to the authoritative nature of law. Furthermore, I also argue that the claims of legal authorities should be understood as ‘expressions of intentions’, but that such expressions should be understood beyond a mere
linguistic phenomenon. I argue, hence, that such expressions have a deeper level and that they are closely intertwined with 1) the intentions with which we act and 2) intentional actions.

Details

Original languageEnglish
Title of host publicationLaw and Language: Current Legal Issues
EditorsMichael Freeman, Fiona Smith
Publication statusPublished - Jan 2013

Keywords

  • Expressions of Intention, Elisabeth Anscombe, Speech Act Theory, Authoritative Claims, Legal Philosophy, Philosophy of Practical Reason