Kevin Toh’s expressivist reading of h. L. A. Hart, or how not to respond to Ronald Dworkin

Abstract

This paper criticises Kevin Toh’s expressivist reconstruction of H. L. A. Hart’s semantics of legal statements on the grounds that two implications of Toh’s reading are arguably too disruptive to Hart’s theory of law. The first of these implications is that legal statements are rendered indistinguishable from statements of value. The second is that the concept of a rule of recognition (indeed, of secondary rules in general) is rendered dispensable. I argue for the unacceptability of these consequences from a Hartian standpoint in the first two sections of this paper. The last two sections present an alternative view of Hart’s semantics of legal statements, according to which legal normativity is explained in terms of conformity to patterns of validity that by themselves neither provide objective reasons for action nor entail subjective acceptance of such reasons.