Why (and How) Legal Expressivism?

(December 2016 draft)

Matthew X. Etchemendy

University of Chicago Law School

December 5, 2016

University of Chicago Law School

Room 403
1111 East 60th Street
Chicago, IL 60637

metchemendy@uchicago.edu
(650) 400-6114

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 Why (and How) Legal Expressivism?1


Recently there has been growing interest in philosophical cross-pollination between

metaethics and analytic jurisprudence, a trend we can refer to as the “metaethicization” of

jurisprudence. (This formulation suggests—accurately—that the cross-pollination is mostly

unidirectional.) There are, as I see it, two major elements to this trend. First, philosophers of

law have started appealing to analogies between metaethics and jurisprudence to address what

might broadly be called meta-philosophical questions about the structure and aims of analytic

jurisprudence. Second, scholars have increasingly addressed ground-level jurisprudential

problems using explanatory strategies directly inspired by, and modeled on, familiar approaches

to metaethics.

This paper is about one specific jurisprudential approach that has attracted renewed

interest during the recent metaethicization trend, namely legal expressivism. Very briefly, legal

expressivism represents a philosophical effort to understand legal discourse in terms of the

character of the mental states expressed by legal statements (e.g., by the statement “stealing is

unlawful”). Legal expressivism therefore does not, in the first instance, focus on more familiar

metaphysical questions about the law, such as, “What is the nature of law?” Rather, it sets out to

develop a basically anthropological story about what we are doing when we engage in legal

discourse, built around the hypothesis that legal statements express mental states with a

distinctive psychological character. Readers familiar to metaethics will recognize this as an

analogue of metaethical expressivism.

1
I am grateful to Barbara Fried, Nadeem Hussain, and Brian Leiter for helpful comments on various aspects of the

ideas discussed in this paper.

2
 Although legal expressivism has started to sneak onto the contemporary jurisprudential

map, it is still quite unfamiliar, and its appeal isn’t immediately obvious. For one thing, it can

seem unclear how the legal expressivist’s peculiar-sounding explanatory project could be

responsive to the concerns that have traditionally animated analytic jurisprudence, let alone how

it could engage with any live intellectual interests of the broader legal culture. What’s more, it’s

not immediately apparent what advantages legal expressivism might offer over more traditional

approaches to analytic jurisprudence. This paper is intended to serve as a kind of preliminary

defense of legal expressivism. I will not attempt to offer or defend an actual working version of

legal expressivism; my goal is only to explain the merits of legal expressivism as a general

explanatory program. In particular, I will argue that legal expressivism represents a prima facie

promising approach to jurisprudence that (1) engages with philosophical questions of both

traditional jurisprudential importance and continuing cultural vitality, and (2) represents a

methodologically appealing alternative to more familiar approaches to analytic jurisprudence.

In Part I, I set the intellectual-historical stage by explaining how naturalistic puzzlement

about the law—to wit, puzzlement about how (if at all) we can situate a certain traditional

conception of the law within a modern, scientific picture of reality—has long played a role in

motivating jurisprudential reflection and shaping modern legal thought. In Part II, I argue that

we have good reason to worry about the methodological soundness of the most common method

of addressing naturalistic puzzlement about the law, namely metaphysical inquiry into the nature

of law. In Part III, I introduce legal expressivism and argue that it represents an appealing

alternative way of addressing naturalistic puzzlement about the law. In Part IV, I address the

common worry that legal expressivism must treat legal discourse and thought as more akin to

moral discourse and thought than it really is—in short, that legal expressivism will inevitably

3
efface important differences between law and morality. I argue that this worry is misplaced, but

that the intuitions upon which it’s based offer an important cautionary lesson for legal

expressivists: namely, not to overplay the similarities between law and morality.

I. The What and Why of Analytic Jurisprudence

Because legal expressivism is so different from more familiar approaches to analytic

jurisprudence, I think it’s best to start at the very beginning, with a discussion of what analytic

jurisprudence is and why it matters. This will set the stage for an explanation of why legal

expressivism can address questions that have long been at the heart of analytic jurisprudence—

and, more importantly, that are eminently worth asking.

The fact is that analytic jurisprudence has long gotten a bad rap in the broader world of

legal scholarship and legal practice.2 The practically minded lawyer is bound to ask at least two

questions about analytic jurisprudence:

(1) Is it even worth asking the questions analytic jurisprudence purports to address?

(2) Is the methodology of analytic jurisprudence appropriately matched to its ambitions,

so that we can expect it to yield trustworthy answers to the questions it asks?

Intuitively, affirmative answers to both questions would seem necessary if we’re to conclude that

analytic jurisprudence is worth doing.

Both questions present difficult problems, and I will ultimately say something about both.

But I’ll start by focusing on the first: namely, whether it’s worth asking the questions analytic

2
See, e.g., RICHARD A. POSNER, LAW AND LEGAL THEORY IN ENGLAND AND AMERICA 1–4 (1997); SCOTT J.

SHAPIRO, LEGALITY 22–25, 407 n.21, 408 n.24 (2011); A. V. Dicey, The Study of Jurisprudence, 5 L. MAG. & REV.

382, 382 (4th Series) (1880).

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jurisprudence purports to address. The cautious way to answer this question is to say something

like, “Well, jurisprudence addresses many questions. Most likely, some are worth asking, and

some aren’t. We can’t say anything general here.” And if it were truly impossible to make any

useful generalizations about what question(s) analytic jurisprudence is trying to address, this

would probably be the best anyone could do. Luckily, however, a fair bit of attention has

recently been paid to the nature and aims of jurisprudence, and the emerging literature suggests a

better answer.

A. Reality-Fitting Projects: The Living and the Dead

A number of legal philosophers have recently argued that analytic jurisprudence, or at

least much of it, can be understood as an analogue of metaethics,3 i.e., as a project structurally

parallel to metaethics but with a different explanatory target. And what is metaethics? To a first

approximation, metaethics consists of various philosophical inquiries into (1) the semantics of

moral talk, (2) the psychology of moral thought, (3) the metaphysics of moral facts or properties,

and (4) moral epistemology.4 This list of topics is perhaps extensionally adequate, but we can

fairly ask what it is that unites these apparently distinct issues—what underlying concern they

might aim to address. Tristram McPherson and David Plunkett have recently offered the useful

suggestion that metaethics is to be understood as “a kind of theoretical activity, characterized by

3
See Kevin Toh, Jurisprudential Theories and First-Order Legal Judgments, 8 PHIL. COMPASS 457, 467 n.11

(2013); David Plunkett & Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of

Metanormative Theory (Sept. 17, 2016) (unpublished manuscript, on file with author).
4
Cf. Geoff Sayre-McCord, Metaethics, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed.,

Summer 2014 ed.), http://plato.stanford.edu/archives/sum2014/entries/metaethics/.

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the aim of explaining how actual ethical thought and talk, and what—if anything—that thought

and talk is about, fit into reality.”5

Plunkett and Scott Shapiro have gone on to argue, in effect, that analytic jurisprudence is

to legality what metaethics is to morality.6 Combined with the McPherson–Plunkett conception

of metaethics, this yields a vision of analytic jurisprudence as the project of explaining how legal

thought and talk, and what—if anything—that thought and talk is about, fit into reality. As a

shorthand, we can refer to projects of this kind as “Reality-Fitting Projects” or RFPs. We can

similarly refer to questions of the form, “How does some area of thought and talk, and what—if

anything—it is about, fit into reality?,” as “Reality-Fitting Questions” or RFQs. Finally, we can

refer to a given domain of thought and talk, and what, if anything, it is about, as a “subject

matter.” Hence, each RFP is an effort to address an RFQ about a particular subject matter. If

McPherson and Plunkett are correct, we can say that metaethics is, to a close enough

approximation, the Ethical RFP. The Ethical RFP’s aim is to answer the Ethical RFQ, i.e., the

the RFQ that takes ethics (or, equivalently, morality) as its subject matter. And if Plunkett and

5
Tristram McPherson & David Plunkett, The Nature and Explanatory Ambitions of Metaethics, in THE ROUTLEDGE

HANDBOOK OF METAETHICS (forthcoming) (manuscript at 32, on file with author) (emphasis added); see also

Plunkett & Shapiro, supra note 3, at 4.

6
Plunkett & Shapiro, supra note 3, at 8. Plunkett and Shapiro do not put it precisely this way. Strictly, they use the

term “metalegal theory” for the exact legal analogue of metaethics. Id., at 8. They use “analytical jurisprudence” as

a synonym for “general jurisprudence,” id., at 9, 17, and use “general jurisprudence” to refer to “the subset of

metalegal inquiry that concerns universal legal thought, talk, and reality,” id., at 8. But these terminological

complexities are not important for present purposes.

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Shapiro are right, we can say that analytic jurisprudence is, to a close enough approximation, the

Legal RFP, aiming to answer the Legal RFQ.

I believe this is a descriptively accurate account of the basic unifying aim and structure of

both metaethics and analytic jurisprudence. Note, however, that such a descriptive account is not

alone sufficient to answer the practically minded lawyer’s first question. In order to do that, we

still need to know why anyone would be interested in the Legal RFP. The answer isn’t obvious,

partly because it remains a bit nebulous what is involved in explaining how a subject matter “fits

into reality.” More concretely, however, many RFPs are intuitively uninteresting because, given

our background views about what reality is like, the corresponding RFQs simply are not live to

us.7 By that I mean simply this: as a contingent matter of psychology and/or sociology, we

experience no pre-theoretic puzzlement about how certain subject matters fit into reality.8

For example, consider the Table RFQ, namely, “How do thought and talk about tables,

and tables themselves (if there are any tables), fit into reality?” This RFQ simply is not a live

source of puzzlement to the vast majority of people. They just aren’t interested in it, nor is it

easy to get them interested in it. Of course, some philosophers have been exercised by

metaphysical questions about whether there are any tables, as well as related questions about the

semantics of table-talk and so forth. But to most of us, the Table RFQ seems mad, perhaps even

barely intelligible. Virtually everyone initially comes to the table (no pun intended) sharing Eli

7
Of course, putting it this way presupposes something about who the relevant “we” is. I suppose the answer I have

in mind, vague as it is, is “we reasonably thoughtful and educated people raised in the cultural ethos of the late-20th

and early-21st-century West.”

8
My use of “live” here is inspired by William James’ distinction between living and dead hypotheses. See William

James, The Will to Believe, 5 NEW WORLD 327, 328–29 (1896).

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Hirsch’s impression that “the only sensible response to . . . questions” such as, “Is it possible for

a table to exist?,” is, “Of course, what on Earth are you talking about?”9 It’s not as if the Table

RFQ can’t be made to feel live, at least temporarily, and at least to some people. Still, it’s hard

to shake the feeling that the Table RFQ can at most be a kind of undead question: possessed of

an ersatz life, but only so long as simple common sense is kept at bay.

Admittedly, apparently pointless questions—those that are not presently live to us—

don’t always turn out to be really pointless. But that doesn’t absolve us of the responsibility to

exercise care in deciding which questions to pursue. We shouldn’t plunge headlong into just any

old philosophical project on the flimsy excuse that you can never be absolutely sure ex ante

where to dig for intellectual gold. If a question isn’t live to us now, it’s at least legitimate to

demand a prima facie case for the value of addressing it.10

The situation is different when some RFQ is already live to us—that is, if we already find

it intuitively puzzling how some subject matter fits into reality. There is a good case to be made

that under such circumstances, no particular showing is required in order to justify pursuing the

RFP in question. To be sure, the underlying RFQ could turn out to be a kind of pseudo-problem.

But even then the inquiry will not have lacked a payoff: we’ll have at least gained a measure of

Wittgensteinian therapeutic peace, and a question that had been bothering us will be laid to rest.

One way to justify an affirmative answer to the practically minded lawyer’s first question,

therefore, is to show that the Legal RFQ is already live to us. And I believe that this can indeed

be shown—or more precisely, it can be shown that there is a version of the Legal RFQ that’s

9
Eli Hirsch, Against Revisionary Ontology, 30 PHIL. TOPICS 103, 103–04 (2002).

10
For a similar line of thought, see Daniel C. Dennett, Higher-Order Truths About Chmess, 25 TOPOI 39, 40 (2006).

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already live to us. First, however, it will help to talk a bit more about the Ethical RFQ and why it

is a live problem for us, for this will provide us with useful points of comparison when we return

to the Legal RFQ.

B. Why Is the Ethical RFQ Live to Us?

The Ethical RFQ tends to interest people: it is already live to us. A lot of people, perhaps

most people in our society, take seriously metaethical questions like, “Could there really be

objective moral facts?,” or, “Is it possible that morality, at least as traditionally understood, is an

illusion?” Hence the plausibility of David Enoch’s claim that metaethics is, among philosophical

projects, “paradigmatically interesting.”11 But what explains the fact that the Ethical RFQ is so

interesting, and to such a wide audience?

Enoch, for his part, suggests the interest of metaethics derives largely from the fact that

moral thought and talk, and moral facts (if there are any), are normative.12 I suspect that’s right

so far as it goes. But in a sense it merely pushes the problem back one level. Moral claims,

judgments, and moral facts (if any there be) are normative; they are “fraught with ‘ought,’”13

they have “to-be-pursuedness” built into them14—pick your metaphor. And perhaps this is, at

least derivatively, what makes the Ethical RFQ live for us. What, though, makes the broader

Normative RFQ live for us? Why do normative claims like, “You ought to eat well,” or,

11
David Enoch, Is General Jurisprudence Interesting? 2 (May 1, 2015) (unpublished manuscript), available at

http://ssrn.com/abstract=2601537.
12
Id., at 3, 7, 12.

13
WILFRID SELLARS, SCIENCE, PERCEPTION, AND REALITY 212 (1963).

14
JOHN MACKIE, ETHICS: INVENTING RIGHT AND WRONG 40 (1977).

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“Nurturing friendships is the thing to do”—or the thoughts they express, or the facts they

apparently aim to report—present a live RFQ any more than the claim, “There’s a table in my

office”?

Perhaps the Ethical RFQ is live to us because there seems to be such a strong connection

between moral judgments and motivation. For example, people who think they’re morally

required to give to charity are, at minimum, pretty reliably possessed of at least some motivation

to give to charity.15 Then again, people who think they’re on fire are also pretty reliably

motivated to take immediate fire-extinguishing action—and yet the Fire RFQ is not live to us. I

am, of course, aware that many people believe there’s a stronger connection between moral

judgments and motivation than there is between I-am-on-fire judgments and motivation, namely

a constitutive or conceptual one. But even if that’s right, what’s so puzzling about how

judgments constitutively tied to motivation fit into reality?

A more promising suggestion, in my view, is that what makes the Ethical RFQ live for us

is the intractability of moral disagreement. Intractable disagreement reliably provokes

philosophical reflection. For example, stubborn disputes often make us wonder if we’re just

using words differently (semantics), impel us to seek out common ground on how we might

rationally resolve our disagreement (epistemology), and make us wonder whether something

weird is going on in our interlocutors’—or our own—heads (psychology). Still, intractable

disagreement alone doesn’t really explain why there would be a live question for us about how

morality fits into reality. After all, intractable disagreement doesn’t always produce “reality-

fitting” worries. Highly politically salient empirical questions provide a useful case in point.

15
See, e.g., Connie S. Rosati, Moral Motivation, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta

ed., Fall 2016 ed.), http://plato.stanford.edu/archives/fall2016/entries/moral-motivation/.

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For example, there is widespread and intractable disagreement about the economic and health

consequences of various levels of government regulation, both in general and with respect to

particular regulatory targets like pollution and firearms. It’s therefore unsurprising that a body of

research on “cultural cognition” has emerged to address a variety of psychological “meta”

questions about discourse and judgment regarding such matters.16 Nonetheless, few people have

live worries about whether and how facts about the effects of EPA emission controls on

economic growth fit into reality. Practically no one, for example, wonders whether facts about

such matters are subjective, whether there are (or even could be) any facts of this kind, etc.

In the end, I don’t think it’s possible to satisfactorily explain why the Ethical RFQ is live

for us without reference to the profound and longstanding influence of the intellectual movement

or trend known as scientific naturalism, or sometimes just naturalism. Naturalism can, in the

most general sense, involve nothing more than a broadly favorable attitude toward the methods

and ethos of natural science, combined with a less sunny evaluation of other forms of inquiry. In

practice, however, many naturalists have endorsed or at least been drawn to stronger, more

substantive commitments in the same neighborhood. Consider, for example, the following

principle, which Huw Price calls the “Naturalist’s mantra”: “The only facts there are are the kind

of facts recognized by natural science.”17 Or, if you prefer, consider this slight variant, which

Charles Larmore identifies as the core commitment of an influential form of naturalism: “[T]he

world, as the totality of what is, consists solely of the physical and psychological phenomena that

are the object of the modern natural sciences. The world is but matter in motion, along with the

16
See Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 101, 104–28 (2007).

17
HUW PRICE, NATURALISM WITHOUT MIRRORS 4 (2011).

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thoughts and feelings we have in regard to it.”18 Following Price, I’ll sometimes refer to the kind

of naturalism that involves ontological commitments like this “object naturalism.”19

The intellectual-historical details are complex, of course, but there’s no denying that a

“broad metaphysical outlook”20 along these lines has made substantial inroads into the general

intellectual milieu of the contemporary West, to the point where many people readily endorse

object naturalism, or something like it, without even having a name for it.21 And against the

background of this broad metaphysical outlook, it should come as no surprise that the Ethical

RFP is live to us. Briefly stated, moral thought and talk is, or at least seems, very different from

naturalistic thought and talk, and moral facts (if there are any) at least seem very different from

the kind of facts that natural science deals in. This leads to what I call the “Naturalist’s

Puzzle”—or just “naturalistic puzzlement”—about morality: a gut sense that there can be no

place for moral facts in reality as we modern, scientifically-informed people understand it.22

18
CHARLES LARMORE, THE MORALS OF MODERNITY 89 (1996); see also Mario De Caro & David Macarthur,

Introduction: Science, Naturalism, and the Problem of Normativity, in NATURALISM AND NORMATIVITY 1, 2 (2010).
19
PRICE, supra note 17, at 185–87. In effect, this is what Brian Leiter calls ontological substantive naturalism. See

Brian Leiter, Naturalism in Legal Philosophy, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed.,

Fall 2014 ed.), http://plato.stanford.edu/archives/fall2014/entries/lawphil-naturalism/.

20
MARK TIMMONS, MORALITY WITHOUT FOUNDATIONS 14 (1999).

21
Of course, the prevalence of object naturalism is itself related to the phenomenon of intractable disagreement: the

basic naturalist impulse is often a response to a “contrast . . . perceived between the grand achievements of physical

inquiry and the inconclusive meanderings of many discussions in philosophy and in the human sciences.” Philip

Kitcher, The Ends of the Sciences, in THE FUTURE FOR PHILOSOPHY 208, 208 (Brian Leiter ed., 2004).
22
This way of putting things tracks the common use of the term “placement problem” to describe RFQs, especially

naturalism-motivated RFQs. See, e.g., PRICE, supra note 17, at 186–88; De Caro & Macarthur, supra note 18, at 2.

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 The Naturalist’s Puzzle about morality not only does much to make the Ethical RFP live

for us, but also explains why metaethics has been dominated for more than a century by disputes

about whether, how, and to what extent morality fits into reality as understood from a

naturalistic perspective. Just as it is impossible to understand commercial contracting without

appreciating that it is conducted in the shadow of state-enforced legal rules, it is impossible to

understand contemporary metaethics without appreciating that it has taken place in the shadow

of scientific naturalism.

C. Is the Legal RFQ Live to Us?

Is there a live question for us about whether and how the law fits into reality? I think so.

At least, there’s a live question about how the law under a certain familiar conception could fit

into reality. That’s because legal discourse, at least legal discourse of a certain traditional and

still common style (on which, more in a moment), seems to posit or presuppose facts very

different than the sort natural science tells us about—in much the same way that traditional

moral thought and talk, with its tacit presupposition that there exists a body of objective moral

facts, does. In short, just as there is a Naturalist’s Puzzle about morality, there is a Naturalist’s

Puzzle about law.

The situation here is, admittedly, less straightforward than in the ethical case.

Naturalistic puzzlement about law does not run as deep as naturalistic puzzlement about

morality. This is evidenced by the fact that actual legal nihilism—approximately, the idea that

there is not really any law, or that law is an illusion—is much more outré than its moral

analogue. Nonetheless, a certain, once dominant picture of the law has indeed been the object of

persistent naturalism-motivated puzzlement and critique. I do not here refer to those “natural

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law” theories according to which legal facts are partly constituted by or otherwise

metaphysically entwined with moral facts. Rather, I have in mind a traditional picture of law

according to which judges interpret and apply but do not make law,23 there are right answers to

hard cases, and there can be (and at least often is) a “complete” body of law governing some

jurisdiction.24 Zechariah Chafee, Jr., memorably called this the “unmapped continent” theory of

law, since it casts the judge at least primarily in the role of discoverer (rather than creator) of an

existing, presumably gapless terrain of legal facts.25 But we can just call it the “traditional

orthodoxy.”26 This traditional orthodoxy in fact has no necessary connection to the notion of

“natural law”; indeed, its most iconic twentieth-century expositor, Joseph Henry Beale, was

emphatic that “no principle of natural law can be regarded as law . . . until it is established as a

principle of some actually living and working system of positive law.”27 But the traditional

orthodox understanding of law associated with Beale and his intellectual ilk nonetheless has

seemed hard to reconcile with a naturalistic view of reality.

23
Cf. H. L. A. HART, THE CONCEPT OF LAW 274 (3d ed. 2012).

24
The word “complete” here stands for the idea that a body of law may be such that its proper application resolves

the legality of any and all acts or events. See, e.g., JOSEPH HENRY BEALE, A TREATISE ON THE CONFLICT OF LAWS

154 (1916).
25
Zechariah Chafee, Jr., Do Judges Make or Discover Law?, 91 PROC. AM. PHIL. SOC’Y 405, 405–06 (1947).

26
My use of the phrase “traditional orthodoxy” tracks Thomas Grey’s use of the word “orthodoxy” to “refer[]

loosely to the view, held more or less and in different forms by lawyers at all times, that legal judgments are made

by applying pre-existing law to facts.” Thomas C. Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 1, 2 n.6 (1983).
27
BEALE, supra note 24, at 143.

14
 Probably the perception of a mismatch between the ontological commitments of the

traditional orthodoxy and of scientific naturalism stems in large part from the apparent difficulty

of maintaining a traditional orthodox understanding of law without positing a body of truths that

are both “objective” (in some sense or another) and discoverable through a form of inquiry—

“legal reasoning”—that bears little resemblance to the methods of empirical science and that is,

at least at the margins, shot through with controversial and often at least tacitly normative

premises. But whatever the precise explanation for the perceived mismatch, the intellectual-

historical evidence overwhelmingly suggests that naturalistic puzzlement has played a major role

in the traditional orthodoxy’s fall into disreputability.

Certainly, American legal realism—“the major intellectual event in 20th century

American legal practice and scholarship,”28 and the movement generally credited with placing

the traditional orthodoxy outside the mainstream of sophisticated American legal thought—

cannot be understood adequately without appreciating the realists’ strongly naturalistic bent. As

Edward Purcell has chronicled in The Crisis of Democratic Theory: Scientific Naturalism and

the Problem of Value,29 and as Brian Leiter crisply summarizes:

[T]he Realists . . . came out of the intellectual culture of the 1920s and 1930s in the
United States, a culture firmly in the grips of . . . a world-view in which natural
science was considered the paradigm of all genuine knowledge; in which science
was distinguished by its methods (e.g. observation, empirical testing); and in which
the social sciences aimed to emulate the methods and successes of the natural

28
BRIAN LEITER, NATURALIZING JURISPRUDENCE 1 (2007).

29
EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY 74–94 (1973).

15
 sciences. Any plausible account of Realist jurisprudence can not lose sight of this
intellectual background.30

The realists’ naturalism manifested itself in a number of ways, including their distinctive interest

in subjecting legal institutions to empirical study.31 But it also manifested in their

characteristically naturalistic “determination to make concrete empirical facts the touchstone for

all analytical concepts,”32 including legal concepts. Although there is controversy over which

account(s) of the concept of law the realists embraced—for example, whether their “predictive”

accounts of law, legal duty, and so forth33 were efforts at conceptual analysis34 or mere attempts

to suggest one useful way of thinking about the law35—they certainly endorsed, or at least

30
LEITER, supra note 28, at 18. Unsurprisingly, the realists’ naturalism not only affected their views on law, but

also occasionally manifested itself in skepticism, relativism, and/or subjectivism about morality and other

normative/evaluative subjects. See PURCELL, supra note 29, at 91–92.

31
See, e.g., BARBARA FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE 14 (1998); JEFFREY A. SEGAL &

HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 88 (2002).
32
PURCELL, supra note 29, at 91; see also Torben Spaak, Naturalism in Scandinavian and American Realism, in DE

LEGE, UPPSALA–MINNESOTA COLLOQUIUM: LAW, CULTURE, AND VALUES 33, 66–72 (Mattias Dahlberg ed., 2009)

(discussing semantic naturalism in American legal realism); Felix S. Cohen, Transcendental Nonsense and the

Functional Approach, 35 COLUM. L. REV. 809, 828 (1935).

33
See, e.g., Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 460–61 (1897); Joseph W.

Bingham, What Is the Law?, 11 MICH. L. REV. 1, 22 (1912); Walter Wheeler Cook, The Logical and Legal Bases of

the Conflict of Laws, 33 YALE L.J. 457, 475–76 (1924).

34
As Hart arguably did. See HART, supra note 23, at 8, 136–141; LEITER, supra note 28, at 17–18, 68–71; but see

Leslie Green, Law and the Causes of Judicial Decisions 8–15 (Univ. of Oxford Legal Res. Paper Series, Paper No.

14/2009), available at http://ssrn.com/abstract=1374608. On conceptual analysis more generally, see infra Part II.
35
See LEITER, supra note 28, at 71.

16
presupposed, naturalism-friendly accounts of law.36 Understandably, they employed “account[s]

of law that . . . made sense in terms of the ontological inventory that [they] . . . embraced,”37 and

it is pretty clear that they perceived no way to find a home for the “transcendental body of law”

presupposed by the traditional “Bealist”38 orthodoxy within the ontological boundaries

apparently imposed by modern scientific thought.

It’s hard not to see naturalism at work in Holmes’ ridicule for the idea of a

“transcendental body of law outside any state but obligatory within it”39 and his characterization

of less than straightforwardly positivistic accounts of the common law as wedded to the notion of

a “brooding omnipresence in the sky.”40 Joseph Bingham left even less room for doubt,

declaring that “[t]he field of any science consists of sequences of concrete phenomena which are

studied to determine their causes and effects,”41 that “the field of law is [a] part of the field of the

science of government,”42 and that valid rules or principles of law are generalizations about the

36
Green, supra note 34, at 6 (noting that “[o]n any plausible account . . . the realists . . . agree . . . that law is a

matter of social fact . . . and that, whatever they may say, judges have and exercise significant discretionary powers

to make new law”); LEITER, supra note 28, at 71–72 (arguing that the American legal realists “presuppose an

account” of the concept of law “with distinct affinities to that developed by the Legal Positivists”).
37
STEVEN D. SMITH, LAW’S QUANDARY 49 (2004).

38
So far as I know, Jerome Frank is to be credited (or blamed) for turning Beale’s name into a jurisprudential

epithet. See JEROME FRANK, LAW AND THE MODERN MIND 60 (Anchor Books 1963) (1930).
39
Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting).

40
S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).

41
Bingham, supra note 33, at 9.

42
Id.

17
behavior and thinking of courts.43 He accordingly rejected the traditional posits “that law

necessarily pre-exists, that it is something general and authoritative, and that judges have no

power to make the law but can only interpret and apply it” as “old superstitions.”44 Karl

Llewellyn similarly associated the idea that “the judge [is] to be regarded as a mouthpiece, not as

a creator” with religious and/or natural-law “superstition.”45 And Jerome Frank used classic

naturalist rhetoric when he ridiculed the traditional orthodoxy for conceiving of “The Law” as an

“extra-experiential . . . breath of God.”46 Felix Cohen likewise embraced a predictive definition

of “law” in Ethical Systems and Legal Ideals,47 observing that “[t]he important thing about” such

a definition was that it is “purely positive or natural.”48 Later, in his famed article

“Transcendental Nonsense and the Functional Approach,” Cohen lamented what he saw as the

prevalence of “supernatural [legal] concepts, that is to say, concepts which cannot be defined in

terms of experience”49 and lacking “verifiable existence except to the eyes of faith.”50 By

contrast, he lauded the realist alternative:

“Realistic jurisprudence,” as that term is currently used, is a theory of the nature of

law, and therefore a theory of the nature of legal rules, legal concepts, and legal
questions. Its essence is the definition of law as a function of judicial decisions.

43
Id., at 22.

44
Id., at 17.

45
KARL LLEWELLYN, THE BRAMBLE BUSH 40 (Oxford University Press 2008) (1930)

46
FRANK, supra note 38, at 60.

47
FELIX S. COHEN, ETHICAL SYSTEMS AND LEGAL IDEALS 11–14 (Great Seal 1959) (1933).

48
Id., at 14.

49
Cohen, supra note 32, at 823.

50
Id., at 821.

18
 This definition is of tremendous value in the development of legal science, since it
enables us to dispel the supernatural mists that envelop the legal order and to deal
with the elements of the legal order in objective, scientific terms.51

Cohen could hardly have done a better job of summarizing the object-naturalist element in

American legal realism, not to mention the parallels with trends in other disciplines.

Nor was the influence of naturalism on legal thought in the 20th century confined to the

American legal realists. Many prominent 20th-century legal philosophers were or are naturalists,

including H. L. A. Hart,52 Karl Olivecrona,53 Alf Ross,54 and Brian Leiter.55 And all of these

philosophers did or do embrace forms of legal positivism and reject the traditional orthodoxy.

Although correlation does not prove causation, it is hard to argue that these philosophers’

rejection of the traditional orthodoxy is unrelated to their broader naturalistic commitments.56

51
Id., at 842 (footnote omitted).

52
On Hart’s naturalism and its influence on his form of legal positivism, see Kevin Toh, Hart’s Expressivism and

His Benthamite Project, 11 LEGAL THEORY 75, 83–84 (2005), and Robin Bradley Kar, Hart’s Response to Exclusive

Legal Positivism, 95 GEO. L.J. 393, 394–95 (2007).

53
See, e.g., KARL OLIVECRONA, LAW AS FACT 15 (1st ed. 1939); TORBEN SPAAK, A CRITICAL APPRAISAL OF KARL

OLIVECRONA’S LEGAL PHILOSOPHY 77–80 (2014).

54
See SPAAK, supra note 53, at 81.

55
See Brian Leiter, Why Legal Positivism (Again)? 13 (Sept. 9, 2013) (unpublished manuscript), available at

http://ssrn.com/abstract=2323013.
56
On the connection between naturalism and Hartian legal positivism, see id., at 12–13. Indeed, Robin Kar

plausibly suggests that “[t]he modern tradition of legal positivism can, in fact, be viewed in part as an attempt” to

“vindicate our common intuition that there can be facts of the matter about what the law requires but . . . without

requiring us to posit any strange, non-natural moral properties or implausible epistemological capacities.” Robin

Bradley Kar, The Deep Structure of Law and Morality, 84 TEX. L. REV. 877, 931 (2006); cf. Enoch, supra note 11,

19
Thus, it seems more than plausible that naturalism has lent support to the collapse of the

traditional orthodox picture of law among 20th-century legal philosophers, just as it did among

the American legal realists.

The American legal realists, of course, are long gone, and so are Hart and the

Scandinavian realists. What of the broader legal community? Today, most sophisticated

lawyers’ avowed understanding of law certainly departs from the traditional orthodoxy. Can this

be attributed, at least in part, to naturalistic puzzlement toward the old ways of thinking and

talking about the law? Direct evidence is admittedly scarce, and unsurprisingly so, given that

most lawyers don’t consciously or explicitly embrace naturalism. But before concluding on this

basis that naturalistic puzzlement is not a major factor driving the broader legal community to

regard the traditional orthodoxy with suspicion, it’s important to remember that naturalism is not

some exotic, rarefied outlook peculiar to academic philosophers. As Leiter has emphasized,

“naturalism . . . is our world view, where ‘our’ means we post-Enlightenment folk,” and “since

the scientific revolution, the rest of culture and thought has gradually been disciplined by

naturalistic considerations in one guise or another.”57 I think it’s eminently plausible to suppose

that many if not most lawyers feel the pull of naturalism, even if they have no name for it—just

as many Americans are instinctively drawn to certain Lockean ideas in political theory even if

they’ve never read the Second Treatise of Government. And I think it’s likewise plausible to

suppose that widespread, inchoate object naturalism largely explains why the traditional

orthodoxy continues to strike thoughtful lawyers as suspicious at best.

at 6; David Plunkett & Stephen Finlay, Quasi-Expressivism About Statements of Law: A Hartian Theory, in OXFORD

STUDIES IN THE PHILOSOPHY OF LAW, VOL. 3 (forthcoming) (manuscript at 24, on file with author).
57
Leiter, supra note 55, at 13.

20
 All of this would perhaps be beside the point if the traditional orthodoxy were truly

dead—that is, if nobody (or almost nobody) still spoke as if there were right answers to hard

cases and judges were supposed to find and apply pre-existing law in such cases. If such talk

had wholly faded into desuetude, there would not be a live puzzle for us (save in our capacity as

intellectual historians) about whether and how the traditional orthodoxy could be reconciled with

a naturalistic worldview. But it is an intriguing sociological fact that the traditional orthodoxy

never really died.58 To be sure, most sophisticated lawyers are more or less inclined to accept, at

least in reflective moments, that the traditional orthodoxy cannot really be right. Yet the

traditional orthodox picture has remained strikingly embedded in our ways of thinking and

talking about the law, despite all the theoretical criticism leveled against it.

Consider: although it is often said that we are all legal realists now,59 it remains rare

indeed for a lawyer to explicitly ask a court to change the law, rather than to vindicate or merely

apply pre-existing law; and it’s uncommon for advocates or courts to acknowledge that there is

simply no right answer to some legal question upon which the resolution of a case ostensibly

hinges. Lawyers, legal scholars, and ordinary citizens continue to argue about what the First

Amendment or the Commerce Clause really requires, notwithstanding what the courts have said

(or failed to say) about it,60 and notwithstanding the absence of any recognizably scientific

method of resolving such questions. In short, traditional orthodox modes of legal discourse for

58
See SMITH, supra note 37, at 1–2.

59
See, e.g., id., at 156; LEITER, supra note 28, at 15.

60
See SMITH, supra note 37, at 12–13; Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 WM. &

MARY L. REV. 921, 937 (2013); Scott Shapiro; The ‘Hart–Dworkin’ Debate: A Short Guide for the Perplexed, in

RONALD DWORKIN 22, 42–43 (Arthur Ripstein ed., 2007).

21
the most part remain the rule, not the exception, in many discursive contexts. (Indeed, much of

the force of Ronald Dworkin’s criticism of mainstream legal positivism is derived from this basic

sociological observation.)61 One option, of course, is to dismiss such traditional-orthodox-

flavored talk on the part of litigators, judges, politicians, academic lawyers, and ordinary folk as

“mere rhetoric.” But the fact remains that the widespread persistence of legal discourse that

facially presupposes a traditional orthodox picture of law cries out for some explanation, even if

one possible solution is to interpret it as either a rhetorical pretense or a product of confusion.62

In sum, therefore, I believe that the Legal RFQ does present a live problem in a culture

that is simultaneously (1) infused with naturalistic ontological inclinations and (2) plainly

unready, at least at a collective level, to effect the wholesale abandonment of traditional orthodox

ways of talking and thinking about the law. Should we purge our legal culture of what remains

of the old traditional orthodoxy? Should we turn our backs on scientific naturalism? Or is there

some more irenic solution in the offing? That, in essence, is the Naturalist’s Puzzle about law.

II. Metaphysics and Methodological Doubts

I’ve argued that there is a culturally live problem about how law fits into reality, just as

there is a culturally live problem about how morality fits into reality, both of which are driven by

naturalistic puzzlement about the underlying subject matters. Supposing that’s right, the

61
See RONALD DWORKIN, LAW’S EMPIRE 3–44 (1986); see also Shapiro, supra note 60, at 43; Toh, supra note 52,

at 108–110.
62
For a prominent example of a suggestion that traditional-orthodox-style talk in courtrooms might be interpreted as

a form of pretense or “rhetorical posturing,” see Brian Leiter, Explaining Theoretical Disagreement, 76 U. CHI. L.

REV. 1215, 1224–25 (2009).

22
question then arises: how do we approach the Naturalist’s Puzzle about law? This is not an easy

question to answer. Part of the difficulty stems from the fact that the Naturalist’s Puzzle about

law, like the Naturalist’s Puzzle about morality, has no canonical formulation. The Puzzle does

not, in the first instance, arise as a crisply stated query with nicely demarcated analytic contours;

rather, it comes in the form of an uneasy sense of incompatibility, or at least tension, between a

common way of understanding the law and certain broader naturalistic commitments. It’s no

easier to precisely chart the path forward than it is to precisely formulate the underlying problem.

How do we proceed, then? What is the best way forward? I can’t pretend to offer a firm

answer, because that would require at least an initial evaluation of all the prima facie plausible

options, which is far beyond the scope of this paper. But I do want to motivate the further

exploration of a particular, relatively underexplored option, namely legal expressivism.63 In

order to do so, I think it’s important to say something about the most prominent current

63
Legal expressivism is relatively underexplored, but certainly not unheard of. Following in Kevin Toh’s footsteps,

numerous philosophers have come to accept that H. L. A. Hart adopted some form of legal expressivism. See Toh,

supra note 52; see also Matthew X. Etchemendy, New Directions in Legal Expressivism, LEGAL THEORY

(forthcoming) (manuscript at 3 n.2, on file with author) (citing authors who have interpreted Hart as a legal

expressivist). Toh has additionally made some efforts toward revising Hart’s version of legal expressivism. Kevin

Toh, Legal Judgments as Plural Acceptances of Norms, in OXFORD STUDIES IN THE PHILOSOPHY OF LAW, VOL. 1, at

107 (Leslie Green & Brian Leiter eds., 2011) [hereinafter Toh, Plural Acceptances]. Separately, David Plunkett and

Steve Finlay have begun work on what they call a quasi-expressivist theory of legal statements, Plunkett & Finlay,

supra note 56, and Robin Kar has offered a theory that he calls “in effect . . . an expressivist account of the meaning

(or at least an important dimension of the meaning) of [certain] concepts relating to obligation,” including legal

obligation. Robin Bradley Kar, Outcasting, Globalization, and the Emergence of International Law, 121 YALE L.J.

ONLINE 413, 443 n.79 (2012) [hereinafter Kar, Outcasting]; see also Kar, supra note 56.

23
explanatory program for addressing the Legal RFP, which we can call the “Metaphysical

Approach,” and why we might want to consider an alternative strategy.

Philosophers who adopt the Metaphysical Approach conceive of their task as discovering

or illuminating the nature of law. At first glance this may sound like an absurdly broad

theoretical aspiration. For in at least one ordinary, pre-theoretic sense of the word, investigating

the “nature” of something is basically just equivalent to trying to find out what it’s like.64 In the

case of law, that sounds like most of law school (indeed, much of a lawyer’s whole career). In

addition to the issue of breadth, it can be unclear how a general inquiry of this kind would help

us address the Naturalist’s Puzzle about law.

The key to understanding the Metaphysical Approach, however, is to realize that the

word “nature” is used by legal philosophers in a much more substantive sense. Discovering or

illuminating the nature of law, in this more substantive sense, means discovering or illuminating

the essence of law,65 or as Scott Shapiro puts it, what makes law law.66 Whatever else that might

involve, it requires (and is limited to) stating necessary truths about law; something’s essence

consists of its essential properties, and all essential properties are necessary properties.67 This

should help dissolve the prima facie worries mentioned in the previous paragraph. First,

inquiring into the essence of law is a much narrower inquiry than just a general effort to find out

64
See Frederick Schauer, On the Nature of the Nature of Law, 98 ARCHIV FÜR RECHTS- UND SOZIALPHILOSOPHIE

457, 458–62 (2012).

65
See Mark Greenberg, How to Explain Things with Force, 129 HARV. L. REV. 1932, 1934 n.3 (2016) (reviewing

SCHAUER, supra note 71).

66
SHAPIRO, supra note 2, at 8–9.

67
See Greenberg, supra note 65, at 1937 n.6.

24
what (the) law is like. Second, if we could state a set of necessary and essential properties of law

in naturalistic terms—e.g., that what makes something law is that it is commanded by a

sovereign (where a sovereign is an entity that is habitually obeyed and is not in a habit of

obedience to some other entity)68—that would at least seem sufficient to address the Naturalist’s

Puzzle about law, for wit would appear to show that law is, in some suitable sense, “nothing over

and above”69 a certain social/psychological, and thus naturalistic, reality. In effect, this is one of

the major ambitions of mainstream contemporary legal positivism.70 The resulting theory might

require us to revise some of our legal beliefs, but at least we would know that when people talk

about (the) law, they’re talking about something that fits comfortably into reality as understood

from a naturalistic perspective, not some “extra-experiential” brooding omnipresence. (Though

some may mistakenly think the law is an extra-experiential brooding omnipresence.) This kind

of naturalistic “reduction” certainly sounds like it would be a suitable solution to the Naturalist’s

Puzzle about law, and for present purposes I’ll assume that this perception is accurate.

So why not just stick with the Metaphysical Approach if we want to address the

Naturalist’s Puzzle about law? There’s a lot one could say here, but I’ll limit myself to raising

some methodological worries about this style of analytic jurisprudence. I’m not nearly the first

68
Cf. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 134, 194 (Hackett 1998) (1832).

69
See DAVID ENOCH, TAKING MORALITY SERIOUSLY 101 (2011) (suggesting that “the more philosophically-

sounding relations of identity, reduction, constitution, and grounding” are “attempts at precisfying [a] more

intuitive” “nothing-over-and-above relation.”)

70
On the various ways in which the core legal positivist claim is articulated, see Kevin Toh, Legal Philosophy à la

carte, in ETHICAL NORMS, LEGAL NORMS (David Plunkett, Scott Shapiro, & Kevin Toh eds.) (forthcoming)

(manuscript at 1, on file with author). On the connection between naturalism and positivism, see supra note 56.

25
to do so—Brian Leiter and Frederick Schauer, for example, have offered methodological

critiques of the Metaphysical Approach with which I’m broadly sympathetic.71 Instead of just

repeating or summarizing those critiques, however, I’ll offer my own, somewhat different take

on the methodological problem facing the Metaphysical Approach. As I see it, the problem

basically comes down to this: there is a real worry about whether the Metaphysical Approach’s

methods are adequately matched to its ambitions. In other words, there’s reason to doubt

whether adherents of the Metaphysical Approach can give a satisfactory answer to the practically

minded lawyer’s second question, discussed at the start of Part I.

Recall that the Metaphysical Approach requires identifying necessary properties of law.

(Also essential ones, but I’ll focus on necessity here.) Some people find it objectionable when

philosophers claim to be in the business of discovering or identifying necessary truths, because

philosophical talk about necessary truths can be associated with the idea that there exists a sphere

of truths that are analytic, a priori, and/or unrevisable in light of new empirical knowledge.

Quine is widely (though not universally) thought to have discredited this thought, or at any rate

required us to retreat to relatively cautious and deflationary versions of it.72 Even if Quine was

right, however, we don’t have to commit ourselves to objectionably pre-Quinean philosophical

ambitions in order to advance necessity claims. We employ many different notions of necessity

in our everyday thinking, among them logical necessity, physical necessity, various kinds of

71
See LEITER, supra note 28, at 175–181, 183–199; FREDERICK SCHAUER, THE FORCE OF LAW 35–40; see also

Greenberg, supra note 65, at 1953–54.

72
See LEITER, supra note 28, at 175–176 (critiquing analytic-jurisprudential methodology on Quinean grounds); but

see PAUL HORWICH, WITTGENSTEIN’S METAPHILOSOPHY 23–24 (2012) (voicing doubts about Quine’s critique of

traditional philosophy).

26
“practical necessity,” and perhaps even moral necessity. Not all of these notions should raise

Quinean hackles.73 If a person tells you that it’s necessary to break eggs to make an omelet, it

would be a sign of mental illness to throw a copy of “Two Dogmas” in his face.

Still, it’s crucial to attend to the fact that different notions of necessity yield different

answers to the question of what is necessarily so or what properties things necessarily have. For

example, it’s practically necessary—at least at this time—for a human to ingest nutrients in

order to avoid dying in short order. But it’s perhaps not physically necessary. (There could be a

breakthrough in cryonics.) It’s physically but not logically necessary for the Earth to be affected

by the Sun’s gravity, etc. To give a pertinent example from the legal context, Joseph Raz claims

that it is “humanly impossible but logically possible” for there to be “a legal system in force

which does not provide for sanctions or which does not authorize their enforcement by force.”74

Thus, when inquiring into the necessary properties of things, including law or legal systems, it’s

important to be clear about what kind of necessity we have in mind.

Moreover—and this is where my claim about a mismatch between ambitions and

methods comes into play—the methods required to discover the necessary features of things

depend on the kind of necessity at issue. For example, perhaps it’s practically necessary for

happy workers to get at least two weeks off per year, in that there’s no realistically attainable set

of circumstances in which workers given less than two weeks off per year are happy. But

without collecting a large amount of empirical data, it seems difficult to determine or even

73
For example, Leiter happily acknowledges that there are “suitably Quinean glosses” one can put on the term

“necessity.” LEITER, supra note 28, at 186.

74
JOSEPH RAZ, PRACTICAL REASON AND NORMS 158 (Princeton University Press 1990) (1975). Raz’s example

involves impossibility, not necessity, but impossibility and necessity are easily interdefinable.

27
provisionally conclude that this is so. Similarly, it’s often thought that in some important sense

water is necessarily H2O,75 but nobody would suggest that water’s chemical composition could

have been discovered by means of analytic-philosophical methods, at least as standardly

conceived.

This doesn’t mean standard philosophical methods can’t shed light on any facts that are,

in some sense or another, necessary. But it does show that if a philosopher tells us that (1) he

will be elucidating the necessary features of something, and (2) he will do so using “armchair”

methods including the use of thought experiments,76 “intuition pumps,”77 and appeal to

“truisms,”78 we have a right to be worried if the project has legs. At minimum, we need to know

what kind of necessity is in play, and whether the methods to be employed are up to the task of

discovering which features of the target subject matter are necessary in the relevant sense. For

example, standard philosophical methods are radically inadequate to inquiries into the practically

necessary properties of happy workers or the physically necessary features of Saturn’s interior.

At this point, a defender of the Metaphysical Approach is likely to reply that these

specific examples are irrelevant because an inquiry into the nature or essence of law isn’t

concerned with practical or physical necessities. And this, of course, is true. In return, however,

we are within our rights to ask: what kind of necessity is at issue? Interestingly, legal

75
See SHAPIRO, supra note 2, at 8–9, 406 n.16; see also SAUL KRIPKE, NAMING AND NECESSITY 128 (1980).

76
See SHAPIRO, supra note 2, at 20–21.

77
See DANIEL C. DENNETT, INTUITION PUMPS AND OTHER TOOLS FOR THINKING 5 (2013); Alex Langlinais & Brian

Leiter, The Methodology of Legal Philosophy, in THE OXFORD HANDBOOK OF PHILOSOPHICAL METHODOLOGY 671,

677–78 (Herman Cappelen, Tamar Szabó Gendler & John Hawthorne eds., 2016).
78
See SHAPIRO, supra note 2, at 15–16.

28
philosophers who adopt the Metaphysical Approach can be pretty cagey about this. They do

sometimes describe their projects as efforts at conceptual analysis79—not surprisingly, since

that’s a standard method (indeed, the classic method) in analytic philosophy. This heavily

suggests that the kind of necessity at issue is conceptual necessity. And what exactly is that? As

Leiter notes, conceptual analysis was traditionally intended to discover facts that were “true in

virtue of meaning.”80 For example, it’s often said to be true in virtue of meaning that bachelors

are unmarried: “bachelor” just means something like “unmarried man.”81 If this analysis is

correct, then bachelors are (in a very fundamental sense!) necessarily unmarried males. Let us

call this the traditional picture of conceptual analysis, and the kind of project it envisions

traditional conceptual analysis.82

Note, first, the following nice thing about traditional conceptual analysis: it’s at least

minimally plausible that a philosopher’s armchair methods can help locate and draw out truths

that hold in virtue of meaning. The reason is simple: we are, or at least take ourselves to be,

competent users of our language. I already know English, I already have a good sense of what

“bachelor” means, so I can tell you right from the proverbial armchair that it’s a waste of money

to hire a team of researchers to go looking for married bachelors. Some Quineans might be

prepared to lunge in for the kill at this point, but as useful as Quine’s critiques of analyticity

were, even he acknowledged that “analyticity undeniably has a place at a common-sense

79
See id., at 13, 405 n.9.

80
LEITER, supra note 28, at 176.

81
For doubts on this score, however, see GILBERT HARMAN, The Death of Meaning, in REASONING, MEANING AND

MIND 119, 127 (1999).

82
Cf. Greenberg, supra note 65, at 1948.

29
level.”83 In an entirely pragmatic, workable sense, it’s clearly true in virtue of meaning that

bachelors are unmarried.84

Now, my point isn’t to defend traditional conceptual analysis to the hilt. I share many

common concerns about projects of this kind. Notably, non-trivial traditional conceptual

analyses seem with remarkable consistency to meet one of two fates: (1) they go down in flames

in the face of crippling counterexamples, or (2) a series of objections (and replies and sur-replies)

results in an unsatisfying stalemate between incompatible semantic intuitions.85 This is not an

original observation,86 and it may reveal something quite profound about how language works.87

I still happen to think that armchair inquiries into the meanings of words can be of some use,

especially if we recognize that approximate analyses or translations can be valuable. But this is

largely beside the point for present purposes: the main point is that there is at least a prima facie

match between the analytic philosopher’s armchair methods and the goal of elucidating the

83
W. V. Quine, Two Dogmas in Retrospect, 21 CAN. J. PHIL. 265, 270 (1991).

84
For a similar reaction, see H. P. Grice & P. F. Strawson, In Defense of a Dogma, 65 PHIL. REV. 141 (1956).

85
Anthropologists of law have experienced such frustration over debates over the meaning of “law.” See P. H.

Gulliver, Introduction: Case Studies of Law in Non-Western Societies, in LAW IN CULTURE AND SOCIETY 11, 12

(Laura Nader ed., 1969); see also ELMAN R. SERVICE, ORIGINS OF THE STATE AND CIVILIZATION 97 (1975).
86
See, e.g., Justine Kingsbury & Jonathan McKeown-Green, Jackson’s Armchair: The Only Chair in Town?, in

CONCEPTUAL ANALYSIS AND PHILOSOPHICAL NATURALISM 159, 163–164 (David Braddon-Mitchell & Robert Nola

eds., 2009); Stephen Laurence & Eric Margolis, Concepts and Cognitive Science, in CONCEPTS: CORE READINGS 3,

14–16 (Eric Margolis & Stephen Laurence eds., 1999); see also Greenberg, supra note 65, at 1949.
87
See, e.g., GILBERT HARMAN, Doubts About Conceptual Analysis, in REASONING, MEANING AND MIND, supra note

81, at 138, 138–143; Kingsburg & McKeown-Green, supra note 86, at 165; Laurence & Margolis, supra note 86.

30
meanings of words. If the Metaphysical Approach’s inquiry into the nature of law were

understood as traditional conceptual analysis, we might question its value, but there would be at

least a reasonably straightforward case to be made that the subject’s explanatory ambitions

would not significantly outstrip its methodological resources.

These days, however, philosophers of law are generally adamant that they are not mainly

concerned with the meaning of words like “law.” They don’t all deny that a linguistic inquiry

like this could have a place in jurisprudence (Shapiro doesn’t, for example),88 but that is

nonetheless not how they conceive their own inquiries into the essential nature of law.89 That’s

fine as far as it goes, but it brings us back into the thick of the methodological-mismatch worry

raised by the practically minded lawyer’s second question. If we aren’t trying to elucidate the

meanings of words, and so to find out things that are necessarily true in the sense that they are

true in virtue of meaning, then the question becomes (1) what kind of necessity is on the table,

and (2) how we can feel confident that standard philosophical methods are useful for discovering

the properties of law that are necessary in the relevant sense. If the answer is we’re looking for

conceptual necessities but that “conceptually necessary” means something other than “true in

virtue of meaning,” or that we’re looking for metaphysical necessities (where that comes to

something other than truths that hold in virtue of meaning), or that we’re looking for truths about

law that are necessary in some fundamental but otherwise unspecified sense,90 then it’s entirely

appropriate to regard the entire inquiry with suspicion. These aren’t familiar notions—they’re

88
See SHAPIRO, supra note 2, at 404 n.6.

89
See, e.g., id.; Joseph Raz, The Problem About the Nature of Law, U. W. ONT. L. REV. 203, 204–07 (1983); Joseph

Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249, 254–55 (1998).
90
See, e.g., JOSEPH RAZ, On the Nature of Law, in BETWEEN AUTHORITY AND INTERPRETATION 91, 91–92 (2009).

31
confusing even to philosophers—and so appealing to them without further clarification won’t

help with the methodological mismatch worry. It just adds obscurity to an already difficult

problem. And so far as I can tell, proponents of the Metaphysical Approach in jurisprudence

have never adequately addressed these problems.

The foregoing critique of the Metaphysical Approach is meant only as a sympathetic

diagnosis of methodological doubts that have already cast a shadow over a major strand of

contemporary analytic jurisprudence.91 I don’t claim to have offered a knockdown argument for

the proposition that the Metaphysical Approach is methodologically bankrupt. Still, for those

who feel the force of these methodological qualms—among whom I obviously count myself—a

question arises about what to do. We could, of course, just sideline methodological worries and

soldier on with the Metaphysical Approach. But I’d like to suggest adding another option to the

menu, one that has so far remained largely off the jurisprudential radar, but for which there is

ample precedent in the closely analogous field of metaethics. Though I don’t think it should be

the exclusive approach in analytic jurisprudence—let a thousand flowers bloom, I say—I think it

deserves to be put on the map, because it suggests a way of addressing the Naturalist’s Puzzle

about law without recourse to the troubled Metaphysical Approach. That new option is legal

expressivism.

III. A New Way: Legal Expressivism

So just what is this alternative, legal expressivism? In order to explain legal

expressivism, I think it will help to start by contrasting it with traditional conceptual analysis. As

91
See supra note 71.

32
an approach to naturalistic puzzlement, traditional conceptual analysis is pretty straightforward.

We simply translate the words or statements characteristic of the target subject matter into

naturalistic terms by discovering and applying analytic synonymy relations.92 If this could

successfully be done in the case of legal language—for example, if it could be shown that “law”

were just synonymous with “command of the sovereign,” and “sovereign” were just synonymous

with some naturalistic phrase—this would, just like the Metaphysical Approach, provide a

“reduction” of the legal to the naturalistic, and thus an apparently satisfactory answer to the

Naturalist’s Puzzle about law.

Unfortunately, legal statements have tended to resist translation into naturalistic terms.

Certainly they have resisted translation into statements about commands of sovereigns. (Such

analyses notably have a hard time explaining talk about constitutional and common law.)93 They

have also resisted translation into statements about judicial behavior; as H. L. A. Hart famously

explained, talk of “the law” cannot be equivalent in meaning to talk of what judges will do, given

that “courts regard legal rules not as predictions, but as standards to be followed in decision.”94

Of course, the fact that legal statements cannot be translated into statements about

commands of sovereigns or statements about judicial behavior does not alone imply that they

cannot be translated into any naturalistic terms at all. The problem, however, is deeper and more

general, and there is reason to believe that other potential analyses of legal statements into

92
Not all conceptual analyses attempt a translation into naturalistic terms, of course—there is no theoretical

restriction on the contents of the “base” vocabulary—but here we are just considering traditional conceptual analysis

as a way of addressing naturalistic puzzlement.

93
See Shapiro, supra note 2, at 72–73.

94
HART, supra note 23, at 147; cf. SMITH, SUPRA NOTE 37, AT 49.

33
naturalistic terms will also prove unsatisfactory. Notably, it seems possible for two people (e.g.,

two judges) to coherently disagree about the law despite agreeing on all matters of plain

naturalistic fact.95 Two judges can agree on what the literal meaning of a statute is, but still

disagree on what legal requirements the statute imposes; they can agree on the original public

meaning of the First Amendment, but still disagree on its scope; etc. (These are, it bears

emphasizing, claims about coherence, not correctness: even assuming, for example, that

originalism is correct, it seems hard to maintain that non-originalists are speaking nonsense. By

analogy, I can coherently claim that the Earth was created 6,000 years ago, regardless of whether

that view is incorrect or even utterly foolish.) So we have at least some grounds for skepticism

about the prospects for addressing the Naturalist’s Puzzle about law via traditional conceptual

analysis.96

But there is an alternative to traditional conceptual analysis, a second and very different

way of analyzing legal language. Instead of trying to show how everything expressible in legal

terms is expressible already in naturalistic terms,97 we can develop a naturalistic description of

95
Ronald Dworkin famously pointed this out in the course of his discussion of “theoretical disagreements” in law.

See DWORKIN, supra note 62, AT 5. As Kevin Toh has perceptively observed, Dworkin can be interpreted as having

posed a jurisprudential analogue of G. E. Moore’s famous open-question argument in metaethics. Toh, supra note

52, at 110–112. On the open-question argument, see infra note 102.

96
See Kevin Toh, Erratum to: Four Neglected Prescriptions of Hartian Legal Philosophy, 34 LAW & PHIL. 333,

346–347 (2015) (discussing similar themes in H. L. A. Hart’s legal philosophy).

97
Here I follow Robert Brandom’s formulation. ROBERT B. BRANDOM, BETWEEN SAYING AND DOING 1 (2008).

34
the function and genealogy of legal discourse.98 In essence, we can try to provide an

anthropological story about what we are doing when we make legal statements, and a

genealogical hypothesis—speculative though it might have to be—about how and why it came to

be that we have this linguistic practice. This kind of project is similar to traditional conceptual

analysis insofar as it tries to make sense of an area of language (here, legal discourse) in

naturalistic terms. But it is different in that it does not try to say in naturalistic terms what

participants in the relevant discourse are saying. Instead, it tries to say in naturalistic terms what

participants in the relevant discourse are doing.99 At this very general level of description, we

could perhaps simply refer to this alternative mode of linguistic analysis as “naturalistic

pragmatist analysis.”100

This is all highly abstract, though, and may strike some readers as a wall of jargon. What

might a concrete application of naturalistic pragmatist analysis look like, and how might it

address the Naturalist’s Puzzle about some subject matter? The most readily available and well-

developed model is metaethical expressivism.101 As noted above, there is a Naturalist’s Puzzle

about ethics, just as there is a Naturalist’s Puzzle about law. Moreover, moral language, like

98
I owe this way of putting things to Huw Price’s proposal for a “global expressivist” explanatory project in

philosophy. See PRICE, supra note 17, at 29, 271–74.

99
See id., at 11–12.

100
This label is a slight variant on the way Brandom describes Huw Price’s explanatory program, see id., at 12

(referring to “Huw Price’s pragmatic normative naturalism”). Price himself sometimes calls his approach “global

expressivism,” but also sometimes just “pragmatism.” PRICE, supra note 17, at 10–11.
101
Deflationist accounts of truth also offer a model for comparison, cf. RIDGE, supra note 105, at 201–02, but do

not—for a variety of reasons—serve as well for our purposes.

35
legal language, has persistently resisted translation into naturalistic terms.102 As a result, analytic

moral naturalism—that is, the idea that moral terms can just be translated into naturalistic ones—

has few defenders, and alternative approaches to the Naturalist’s Puzzle about morality are far

more popular. One of those alternative approaches, metaethical expressivism, has the basic

structure of what I have called naturalistic pragmatist analysis.103

The typical metaethical expressivist, facing the Naturalist’s Puzzle about morality, sets

out to advance what amounts to a naturalistic, anthropological hypothesis about the function and,

not infrequently, the genealogy of moral discourse—a story about what we are doing when we

make moral statements, what’s going on in our heads when we think moral thoughts, and how

we got into the whole business in the first place.104 But expressivism involves more than just

adopting a naturalistic pragmatist mode of analysis; expressivism is a specific form of naturalistic

pragmatist analysis marked by the following distinctive idea: statements about the target subject

102
G. E. Moore’s widely influential open-question argument (OQA) famously purported to demonstrate this. See

G. E. MOORE, PRINCIPIA ETHICA §§ 12–13 (1903). For a discussion of some of the problems facing the OQA in its

classic Moorean form, plus some replies and refinements, see ALEXANDER MILLER, AN INTRODUCTION TO

CONTEMPORARY METAETHICS 12–24 (2st ed. 2013).

103
This is just a rough generalization; really it’s more accurate to say that metaethical expressivism typically takes

the form of naturalistic pragmatist analysis. For one thing, metaethical expressivism need not, in strictness, offer a

naturalistic description of its explanatory target at all. In practice, however, it generally does.
104
As noted above, I owe this formulation to Huw Price, see supra note 98, but Allan Gibbard, whose influential

form of metaethical expressivism is discussed below, has also described his explanatory ambitions in a very similar

manner. See ALLAN GIBBARD, WISE CHOICES, APT FEELINGS 61 (1990) (describing his goal as “understand[ing]

acceptance of norms as a natural, biological phenomenon,” and asserting that “[b]iological stories are stories of

function”).

36
matter can usefully be understood as expressions of mental states with a particular character.105

Metaethical expressivists therefore understand moral statements as expressions (hence the name)

of distinctive mental states, and use this central posit as the focal point for a naturalistic

explanation of the function of moral discourse.106

The typical metaethical expressivist also posits a moral-psychological claim of the

following basic form: moral judgments are, in contrast to ordinary beliefs about naturalistic facts,

conative attitudes.107 Despite the somewhat technical-sounding label, the notion of a “conative”

attitude is (to put it mildly) not terribly precise, but the basic idea is that conative attitudes are

mental states that constitutively involve motivation, will, or desire. Conative attitudes are,

105
This further substantive posit is plausible for many linguistic practices, see Gibbard, supra note 104, at 84 (“That

words express judgments will, of course, be accepted by almost anyone.”), but it is more plausible for some than for

others. For example, the obvious way to make sense of utterances of “hello!” in naturalistic terms is to use

naturalistic pragmatic analysis: i.e., to describe their social function in naturalistic terms. Whether it makes the most

sense to posit that that function is to express a mental state is, however, open to question. See MICHAEL RIDGE,

IMPASSIONED BELIEF 109–10 (2014). Thus, people who are attracted to naturalistic pragmatist analysis should not

necessarily analyze every area of language in expressivist terms.

106
Expressivism is sometimes cast as a semantic project, a strategy for “tell[ing] us the meaning of . . . words,”

MARK SCHROEDER, NONCOGNITIVISM IN ETHICS 74 (2008); see also id., at 42, 73. Others think it is best understood

as a “metasemantic” project. See RIDGE, supra note 105, at 8–9. Others might reject both characterizations. Here I

have tried to avoid taking a position on whether expressivism should be taken to involve a semantic thesis, a

metasemantic thesis, or neither.

107
Throughout this paper, I use the terms “mental state” and “attitude” interchangeably. Readers who are used to

thinking of attitudes as a particular subset of mental states are welcome to replace instances of “attitude” in the text

with “mental state.”

37
moreover, often contrasted with “cognitive” attitudes.108 For example, the belief that grass is

green is a paradigmatic non-conative attitude (and a paradigmatic cognitive attitude); the desire

to eat the BLT sitting in front of me is a paradigmatic conative attitude (and a paradigmatic non-

cognitive attitude). For lack of a more precise name, therefore, and in deference to common

usage, we can say that metaethical expressivists typically espouse a form of “non-cognitivism”

about moral judgment.109

Thus, a very simple form of metaethical expressivism might hold that a statement like

“killing is wrong” expresses an attitude akin to disapproval of killing; in terms of expressive

function, then, the statement “killing is wrong” would be approximately equivalent to “boo to

killing.” (Similarly, “charity is good” would be approximately equivalent to “hooray for

charity.”) This is, as I said, a very simple—crude, really—form of metaethical expressivism.

The most prominent contemporary form of metaethical expressivism, Allan Gibbard’s norm-

expressivism, is considerably more sophisticated. Roughly speaking, Gibbard proposes that

normative judgments are “norm-acceptance” attitudes,110 akin to the mental states we are in

when we adopt plans for action.111 Gibbard further proposes that moral judgments—which are

one species of the broader genus of normative judgments—are constituted by acceptance of

108
I take it that the categories of conative and cognitive attitudes are not typically taken to be exhaustive—i.e., that

it’s generally agreed that some mental states do not (or at least don’t clearly) fall into one or the other category.
109
Some of my reasons for ambivalence toward the “non-cognitivist” label should become apparent below, when

we discuss deflationism and “quasi-realism.”

110
GIBBARD, supra note 104, at 55–82.

111
ALLAN GIBBARD, RECONCILING OUR AIMS 19–20 (2008) [hereinafter GIBBARD, RECONCILING]; ALLAN

GIBBARD, THINKING HOW TO LIVE 181 n.3; see id., pp. 41–59, 180–181 (2003) [hereinafter GIBBARD, THINKING].

38
certain distinctive norms involving characteristically moral emotions. On Gibbard’s account,

therefore, a statement like “killing is immoral” expresses in effect the adoption of a contingency

plan to feel anger toward killers and to feel guilt if one kills.112 Gibbard further posits that

normative discourse provides a mechanism for expressing and socially coordinating norm-

acceptance attitudes through the give-and-take of interpersonal discussion and debate.113

Contemporary metaethical expressivism like Gibbard’s is recognizably descended from

early non-cognitivist theories like the ones developed by A. J. Ayer and Charles Stevenson,114

according to which moral statements are not (at least strictly speaking) fact-reporting assertions

capable of truth or falsity.115 Unlike early non-cognitivist theories, however, contemporary

metaethical expressivists like Gibbard typically endorse deflationist accounts of the notions of

truth, facticity, and belief.116 Cashed out in expressivist terms, the idea goes roughly as follows:

112
Gibbard’s story is actually somewhat more complex than this. See GIBBARD, RECONCILING, supra note 111, at

16–17; GIBBARD, supra note 104, at 40–48. The details will not be important for our purposes.
113
GIBBARD, supra note 104, at 26, 61–80.

114
See GIBBARD, THINKING, supra note 111, at 184.

115
Ayer endorsed this view wholeheartedly, see James Dreier, Meta-Ethics and the Problem of Creeping

Minimalism, 18 PHIL. PERSPECTIVES 23, 23–24 (2004); Stevenson was more equivocal, see CHARLES L. STEVENSON,

ETHICS AND LANGUAGE 165–73 (1944), and his views on the matter evolved in a decidedly deflationist direction,

see CHARLES L. STEVENSON, FACTS AND VALUES 214–20 (1963).

116
See id., at 180–184; see also Schroeder, supra note 106, at 85–86; 151–155.

39
“it is true that P” expresses the same attitude as “P”;117 “it is a fact that P” expresses the same

attitude as “it is true that P”; and “A believes that P” expresses the belief that A takes “P” to be

true. Using a term borrowed from Michael Ridge, I will call this set of moves the deflationist

gambit.118 Expressivists who go in for the deflationist gambit are sometimes described as

“quasi-realists”119 because their deflationism apparently allows them to endorse all the claims

that intuitively characterize traditional moral realism: that moral claims purport to report facts,

that some of them are true, and indeed that there are objective moral truths. (Given this, it is by

no means obvious whether the “quasi” part of “quasi-realism” is entirely warranted, but we

needn’t worry overmuch about this here.)

One important aspect of contemporary metaethical expressivism, therefore, is that unlike

its early non-cognitivist predecessors, it typically offers a non-debunking response to the

Naturalist’s Puzzle about morality, in the following sense. Although metaethical expressivists

set out to describe and explain moral thought and talk in strictly naturalistic terms—that is, as

behaviors of social creatures in a natural environment—they generally purport to show that there

is really no tension between embracing scientific naturalism and believing in objective moral

facts. After all, believing in objective moral facts is just to adopt certain conative attitudes (e.g.,

contingency plans), and science, it seems reasonable to think, does not by itself tell us what

117
Not all forms of deflationism or minimalism about truth are quite so simple as this, but the details are not

important here. For an interesting account of truth that integrates well with contemporary metaethical expressivism,

see PRICE, supra note 17, at 163–83.

118
RIDGE, supra note 105, at 200.

119
This usage was coined by Simon Blackburn. See SIMON BLACKBURN, ESSAYS IN QUASI-REALISM 3 (1993).

40
conative attitudes to have (e.g., what plans to adopt).120 Thus, metaethical expressivism in effect

delivers an irenic resolution to the Naturalist’s Puzzle about morality.121

Metaethical expressivism provides a tantalizing model for a possible way of addressing

the Naturalist’s Puzzle about law. If we could develop a form of legal expressivism on the

model of metaethical expressivism, we might be able to address the Naturalist’s Puzzle about

law in a way that avoids the characteristic methodological pitfalls of both the Metaphysical

Approach and traditional conceptual analysis. Intriguingly, the track record of metaethical

expressivism even suggests that we might be able to give a non-debunking account of the much-

maligned traditional orthodoxy, showing that (pace the legal realists) one can be a “Bealist”

without indulging in unscientific superstition.

I don’t mean to claim that expressivism is the only viable strategy for addressing the

Naturalist’s Puzzle about law, of course, and it is not as if one cannot raise concerns

(methodological or otherwise) about expressivism. But the basic prerequisites for motivating an

expressivist project in analytic jurisprudence are present. We face a Naturalist’s Puzzle about

law, just as we face a Naturalist’s Puzzle about morality. Legal language resists conceptual-

120
Some skeptics worry that expressivists who try to vindicate morality in this way will end up “proving too much.”

Might expressivists find themselves unable to explain why subject matters like astrology are, in fact, deservedly

debunked by modern science? For replies to such worries, see Joshua Gert, Naturalistic Metaethics at Half Price, in

NEW WAVES IN METAETHICS 36, 51–52 (Michael Brady ed., 2010); Matthew Xavier Etchemendy, No Power Alike:

Legal Realism and Legal Reality 284–90 (unpublished dissertation, May 2016), available at

https://purl.stanford.edu/xm024sz0521.
121
Cf. LEITER, supra note 28, at 209 n.30. Of course, one upshot of this is that object naturalism will presumably

have to be finessed or qualified, but that is a far cry from bidding farewell to the naturalistic worldview tout court.

41
analytic translation into naturalistic terms, just as moral language does. And the soundness of

the Metaphysical Approach is highly questionable, pretty much regardless of the underlying

subject matter. Given all that, naturalistic pragmatist analysis—and expressivism, in particular—

suggests itself as a prima facie promising approach to the Legal RFQ, for basically the same

reasons it has proven attractive in metaethics.

IV. Respecting Diversity: Law Is Not Morality

I’ve argued that legal expressivism represents a promising explanatory program in

jurisprudence. In so doing, I’ve relied heavily on analogies between metaethics and

jurisprudence—and thus, in a sense, on analogies between morality and law. I joined Plunkett

and Shapiro in claiming that metaethics and jurisprudence are both RFPs. I further argued that

the RFQs that metaethics and jurisprudence seek to answer are motivated—made live, as I put

it—by a similar underlying worry, namely naturalistic puzzlement about their respective subject

matters. I also argued that naturalistic pragmatist analysis, in the form of expressivism, is an

attractive explanatory program in jurisprudence for reasons broadly similar to the ones that have

made it attractive in metaethics.

In this final part of the paper, however, I want to sound a note of caution. In my

experience, a common skeptical reaction to the idea of legal expressivism is that it must involve,

or must be motivated by, a sort of over-analogy between law and morality, so that legal

expressivism will inevitably end up effacing (or at least underestimating) the differences between

42
legal and moral judgment.122 As I will explain below, this skeptical reaction depends crucially

on a simple but understandable mistake, or at any rate misunderstanding, about the flexibility of

expressivism as a general explanatory program. A due appreciation of the intuitions

underpinning this reaction may, however, help legal expressivists avoid some mistakes of their

own.

As noted above, metaethical expressivists have traditionally posited that moral judgments

are conative attitudes. This non-cognitivist hypothesis is certainly controversial (as are other

aspects of metaethical expressivism), but its basic appeal is widely recognized. I think this is

because most of us do pre-theoretically experience moral discourse and thought as inseparable,

for practical purposes, from emotion and conation. The basic suggestion that moral judgments

are conative attitudes of some kind thus resonates with what we might call our autoethnographic

observations. For example, even if we can imagine thinking, “What that person is doing is

profoundly immoral, yet I do not disapprove of it in any way,” thoughts like this are at least quite

alien to our day-to-day experience.

The situation is rather different when it comes to legal thought and talk. “What that

person is doing is unambiguously unlawful, yet I do not disapprove of it in any way,” is a

thought most of us have all the time. Maybe this was not always so; indeed, I wonder if this kind

of thought might have been more unfamiliar in the days when legislation was rare and law was

mostly understood to be rooted in custom. Be that as it may, as things now stand the suggestion

that legal judgments are conative attitudes simply does not have much intuitive pull. Morality

122
Something like this seems to be at work in Scott Shapiro’s critique of legal expressivism, though the picture is

complicated by the fact that Shapiro’s critique is, strictly speaking, directed only at one form of legal expressivism,

namely the one Shapiro attributes to Hart. See Shapiro, supra note 2, at 110–15.

43
and law therefore seem relevantly dissimilar in a way that makes it look like philosophers who

would pursue a legal expressivist project on the model of metaethical expressivism have, at best,

a tough row to hoe. We can call this the “Disanalogy Intuition.”

Why, in the face of the Disanalogy Intuition, would one still think it’s worth building a

form of legal expressivism on the model of metaethical expressivism? One could, of course, try

to argue that the Disanalogy Intuition is misguided. Although the links between legal judgment

and conation are intuitively weaker than the links between moral judgment and conation, there

are certainly some suggestive parallels between morality and law. The most concrete evidence is

the fact that legal and moral discourse share a familiar deontic vocabulary: talk of “duties,”

“rights,” and “permissions” abound in both discursive contexts. These linguistic parallels may

well reflect a deeper set of psychological and/or social-functional parallels, as for example Robin

Kar has argued at length.123 It is also sometimes said that legal discourse and thought, or at least

an important subset thereof, is practical—that, for example, when judges try to figure out the law

they are in some sense deciding what to do.124 Uncontroversially, the endpoint or “output” of a

process of legal reasoning is very often an immediate intent to act—say, a willful resolution to

put a man in a jail cell. And such intentions are conative attitudes if anything is. In this respect,

both legal and moral reasoning seem directed toward action and not merely empirical prediction.

All that said, skeptics have replies ready to hand. The surface-level linguistic fact that

legal and moral discourse employ a shared deontic vocabulary is, on its own, vaguely suggestive

at best. After all, we often use characteristically normative, even deontic, vocabulary when

123
See Kar, supra note 56.

124
See, e.g., KARL OLIVECRONA, LAW AS FACT 213 (2d ed. 1971); Plunkett & Finlay, supra note 56, at 1, 8–9; see

also OLIVECRONA, supra note 53, at 95.

44
talking about games like chess (e.g., “you’re not permitted to move your rook diagonally”),125

but it seems a little odd to suggest that statements about the rules of chess express conative

attitudes. As for the fact that legal reasoning is “practical”—that it is often action-directed and

results in a plainly conative endpoint or output—the same could be said of reasoning about the

finer points of aerodynamic lift and drag, when carried out by engineers designing planes.

Perhaps all that is going on here is that judges generally intend to apply the law when deciding

cases, just like engineers generally intend not to build aircraft that will drop like rocks. The fact

remains that judgments about lift and drag are cognitive attitudes if anything is. Why suspect

that things would be different when it comes to judgments about the law?

I don’t want to take any firm or final stance on these questions here. There may be a

convincing response to the Disanalogy Intuition, and perhaps some legal judgments are aptly

understood as conative attitudes.126 But it is a mistake to think that the fate of legal expressivism

as a general explanatory program in jurisprudence hinges on such matters, because legal

expressivism does not have to involve the posit that legal statements express conative attitudes.

Any perception to the contrary can, I think, be chalked up to a simple misunderstanding about

what expressivism involves.

As we’ve been discussing, metaethical expressivists traditionally advance a non-

cognitivist hypothesis about moral judgments. Because expressivism is most familiar from the

125
See generally Enoch, supra note 11; cf. also Frederick Schauer, Was Austin Right After All? On the Role of

Sanctions in a Theory of Law, 23 RATIO JURIS 1, 13–14 (2010).

126
Appealing to Hart’s distinction between internal and external legal statements surely makes this an easier

proposition to defend. See, e.g., Toh, Plural Acceptances, supra note 63, at 109–11.

45
metaethical context, therefore, non-cognitivism and expressivism are closely associated.127 But

non-cognitivism and expressivism don’t have to go together, and they haven’t even always gone

together in practice. Consider, for example, probability.128 It has not infrequently been proposed

that probability statements might be understood in expressivist terms: notably, as expressions of

partial beliefs or degrees of belief.129 But this needn’t go along with any associated non-

cognitivist claim about the psychology of probability. Partial beliefs or degrees of belief aren’t

conative attitudes, at least not in any sense that would usefully set them apart from

paradigmatically cognitive attitudes.

Legal expressivism, therefore, needn’t go along with some corresponding non-cognitivist

thesis; all that is required is some explanatorily fruitful characterization of the mental states

expressed by various legal statements. For example, legal expressivists might hypothesize that

127
In fact, “expressivism” and “non-cognitivism” are often used more or less synonymously, or in such a way that

the former requires the latter. Plunkett and Shapiro, for example, define “expressivism” in such a way as to

constitutively involve a non-cognitivist claim. See Plunkett & Shapiro, supra note 3, at 6. I have no really deep

objection to this so long as everyone’s use of the relevant technical terminology is clear enough, though of course I

marginally prefer my own way of drawing the relevant distinctions.

128
Probability, too, can be a source of naturalistic puzzlement, at least from the perspective of certain types of

naturalism. See Matthew Chrisman, Expressivism, Inferentialism and the Theory of Meaning, in NEW WAVES IN

METAETHICS 103, 116 (Michael Brady ed., 2010) (“[R]ealist views of . . . improbability . . . raise naturalist qualms

even more than realist views about what’s ethically right and wrong.”).
129
See HUW PRICE, EXPRESSIVISM, PRAGMATISM, AND REPRESENTATIONALISM 47 (2013); PRICE, supra note 17, at

96–97; Mark Schroeder, How Not to Avoid Wishful Thinking, in NEW WAVES IN METAETHICS 126, 129–30 (Michael

Brady ed., 2010) (discussing expressivism about probability judgments, epistemic modals, and indicative

conditionals).

46
the attitudes expressed by legal statements do not fall easily into either the “conative” or the

“cognitive” bucket, but instead have certain similarities both to natural-factual beliefs and to

certain paradigmatic conative attitudes—as, for example, Robin Kar does in the case of

judgments about the existence of legal obligations.130 Alternatively, legal expressivists could

characterize the attitudes expressed by legal statements as inferential dispositions of a certain

kind.131 Ex ante, the possible theoretical options are quite diverse, and the choice should be

determined by standard criteria for choosing between explanatory theories. All the Disanalogy

Intuition really tells us is that we should be cautious about overemphasizing the similarities

between moral discourse and legal discourse, thereby hewing too closely to metaethical models

in attempting to construct a plausible form of legal expressivism. This does not undermine the

basic motivation for legal expressivism, already discussed in Parts II and III. It does, however,

suggest something about how legal expressivists should proceed: namely, with an open mind

about the best way to characterize the mental states expressed by legal statements.

V. Conclusion

Legal expressivism is a relatively unexplored philosophical program. My goal here has

been to motivate its further exploration by explaining how it might help address a live problem

for jurisprudence and for modern legal culture more generally—the Naturalist’s Puzzle about

law—in a fresh manner that avoids some of the pitfalls of more familiar jurisprudential

approaches. Throughout the discussion, I’ve emphasized the many parallels between metaethics

130
Kar, supra note 56, at 877.

131
For some discussion of a form of legal expressivism along these lines, see Etchemendy, supra note 120, at 245–

92.

47
and jurisprudence. But it’s also important to emphasize that legal expressivism can—and, quite

possibly, that it will need to—stray pretty far from the metaethical theories that have inspired it.

In particular, the Disanalogy Intuition suggests that the most plausible form(s) of legal

expressivism may have to characterize the mental states expressed by legal statements rather

differently than metaethical expressivists have tended to characterize the mental states expressed

by moral statements.

This suggests that developing a well-worked-out form of legal expressivism may be a

rather daunting project indeed. The hard work, as I’ve emphasized elsewhere,132 is bound to lie

in explaining how legal judgments differ not only from ordinary natural-factual judgments, but

also from moral judgments, all-things-considered normative judgments, and so on—a task that

legal expressivists have not yet taken up in earnest.133 That means there is much more work to

be done before legal expressivism can really come into its own as a well-developed explanatory

program in jurisprudence. What I hope to have accomplished in this paper is to help convince

skeptics that that work is worth doing.

132
Etchemendy, supra note 63, at 26–36.

133
See id. (critiquing Toh’s work on legal expressivism on these grounds). It’s also notable Robin Kar’s intriguing

body of work on the deep structure of law and morality—which I suspect is, in certain major respects, on the right

track—likewise says comparatively little on the differences (as opposed to the parallels) between moral and legal

judgments. See Robin Bradley Kar, The Two Faces of Morality: How Evolutionary Theory Can Both

Vindicate and Debunk Morality (with a Special Nod to the Growing Importance of Law), in EVOLUTION AND

MORALITY: NOMOS LII, at 31, 89–90 (James E. Fleming & Sanford Levinson eds., 2012); see also Kar, Outcasting,

supra note 63, at 459–460.

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