The Expression of Norms as a Speech Act: Assessing the Explanatory Power of Theories of Interpretation (original) (raw)

Norms are language dependent in the sense that they are necessarily a product of linguistic expressions. This rather common statement demands for two clarifications. On the one hand, language is to be understood here lato sensu, in such a way that encompasses linguistic expression through signs, colors and gestures as well as other types of behavior 1. The scope of this paper, however, is focused on linguistic legal expressions stricto sensu; that is, the use of language through the enactment of constitutions, statutes and similar types of official normative instruments. It will conversely not deal with all types of legal linguistic expressions lato sensu which would require an altogether different analysis. On the other hand, even if some features of expressivism are accepted in this paper, the asserted «language-dependency» of norms does not commit oneself to expressivism or hyleticism (or even to a compatible view between both); the assertion of a language-dependency of norms rather transcends this dichotomy as it merely points out to the fact that norms presuppose normative linguistic statements of some type 2. It is well known that whereas expressivism focuses on the function of norms and the pragmatic aspect of norm sentences, hyleticism focuses on the semantic aspect of the latter. The expressive conception of norms (Bentham, Austin, Kelsen, Ross) is a theory that sustains that norms are proprio sensu «language-dependent» insofar they are themselves the result of a certain kind of use (a prescriptive use) of language 3. Quite distinctively, the hyletic conception (Kalinowski, Weinberger) sustains that norms are conceptual and proposition-like entities, i.e., the meaning of certain norm sentences 4. Under the latter account, the existence of norms does without any linguistic expression or the pragmatics thereof. Under the former, the same does not happen. However, hyleticism accepts that norms are improprio sensu «language-dependent» to the extent that albeit __________