Expressivism and the ex aequo et bono adjudication method

Abstract

In the present paper we argue that although the semantics of both legal and moral statements can be accounted for with the use of a unified framework called hybrid or quasi-expressivism (Finlay & Plunkett, 2018), there still is an important difference in the semantics of moral and legal terms. Hybrid expressivism is roughly the claim that statements about morality and/or about the law are partly descriptive and partly evaluative. In uttering such statements, we simultaneously express an attitude, for example the attitude of endorsement of a moral or legal system, and we report the belief that a certain description of a moral or legal rule is accurate. Finlay & Plunkett go as far as to claim that hybrid expressivism has a potential to explain how moral and legal normativity works. While we agree that hybrid approaches have good claim to plausibility, we think that there is a difference in the nature of the descriptive content of moral and legal statements. On our view, the truth conditions of legal statements are widely intersubjectively shared, but this is not the case with moral statements. We demonstrate this difference using the example of the ex aequo et bono adjudication method. This is a special method of resolving cases employed by international courts. If the parties choose this method of case resolution, the court can decide the case only on the basis of moral rules, without resorting to legal rules. We provide an overview of the rare cases that have been decided ex aequo et bono, and note that all the cases seem to share a common feature. Namely, these are cases in which the parties are from radically different legal cultures or unstable legal systems. We think this makes it the case that the difference between the moral and legal assessment of the case is mitigated. Finally, we provide our interpretation of why ex aequo et bono adjudication is so seldom employed and what consequences this has for a theory of the semantics of legal and moral terms. We think that this rarity is evidence for the claim that the truth conditions of legal statements are more widely intersubjectively shared and, even though there are hard cases, their number is scarce compared to the overall number of legal cases. Moreover, legal statements are always relative to a concrete legal system, which is a more delineated set of rules with a more systematic interpretive system. By contrast, disagreement in the moral domain is more widespread. Consequently, a unified account of the semantics of moral and legal terms leaves out an important difference, namely the difference in assertoric content.