Shivprasad Swaminathan

This article outlines two models of constructing contract theory: The impinging model (based on metaethical cognitivism), which gives central place to truth and justification; and the projectivist model (based on metaethical non-cognitivism), which gives central place to attitudes and motivation. It is argued that modern contract theories which typically seek to present the whole body of contract doctrine as deducible from, and morally justifiable by, one or a small number of apex principles, presuppose the impinging model. By contrast, a projectivist approach to theory creation does not purport to offer justificatory apex principles, but rather argues for propositions that are likely to have maximum motivational purchase in the practical reasoning of contract law’s subjects. The article then goes on to point out the theoretical cost of the impinging model and argues that projectivist accounts do a better job of accommodating the internal point of view of contract law’s subjects.

Journal of Human Values, Volume 28, Issue 3, Page 209-220, September 2022. It is paradoxical to make a moral statement and, in the same breath, disavow commitment to it. Following G. E. Moore, who first identified an analogous paradox—albeit, in the case of factual statements and disavowal of belief in them—these are called Moore paradoxical statements. Richard Hare argues that in order to determine whether an ‘ought’ is a moral one, one only needs to examine if this attitudinal adherence necessarily accompanies the judgement in question. If not, Moore paradoxicality hits and the ‘ought’ in question is not a moral ‘ought’. Hare’s test poses a problem for Joseph Raz who argues that normative terms such as ‘ought’ have the same meaning in legal and moral statements. Raz, however, acknowledges a dilemma this brings in its wake: It is possible to make legal statements without necessarily endorsing them, which creates a presumption against these being equivalent to moral statements. To tackle the dilemma, Raz challenges the very idea of commitment to normative statements by arguing that it is also possible to make detached moral judgements. This paper argues that Raz’s idea of ‘detached normative statements’ falters in that the purported examples of detached normative statements Raz uses turn out upon closer examination to be non-normative statements using either norm-relative or non-normative ‘oughts’.

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards the law. As well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt...

A successful account of the ‘normativity of law’ is meant to inter alia establish how legal requirements come to be morally binding. This question presupposes taking a stance on the metaethical debate about the nature of morality and moral bindingness between the cognitivist and non-cognitivist camps. An overwhelming majority of contemporary legal philosophers have an unspoken adherence to a cognitivist metaethic and the model of normativity of law emerging from it: the impinging model. Consequently, the problematic of the normativity of law is so calibrated as to in limine rule out any putative account of the normativity of law that presupposes a non-cognitivist metaethic: the projectivist model. This paper calls for a recalibration of the problematic of the normativity of law to a metaethically aseptic viewpoint from which the projectivist model is seen as a plausible theoretical contender to the impinging model. It also sets out the philosophical underpinnings of the projectivist model and contrasts it...