1. Kevin Toh has provided the lengthiest consideration of the role of expressivist and noncognitivist ideas in Hart's work. See Toh, Kevin, Hart's Expressivism and His Benthamite Project , 11 Legal Theory 75 (2005) [hereinafter Toh, Hart's Expressivism]CrossRefGoogle Scholar. Matthew Adler, Michael Steven Green, Robin Bradley Kar, Stephen Perry, and Scott Shapiro have subsequently adopted the view that Hart was a kind of legal expressivist. See Scott J. Shapiro, Legality (2011), at 98–99; Adler, Matthew D., Social Facts, Constitutional Interpretation, and the Rule of Recognition , in The Rule of Recognition and the U.S. Constitution (Adler, Matthew D. & Himma, Kenneth Einar eds., 2009), at 193, 200–201 CrossRefGoogle Scholar; Green, Michael Steven, Kelsen, Quietism, and the Rule of Recognition, in The Rule of Recognition and the U.S. Constitution (Adler, Matthew D. & Himma, Kenneth Einar eds., 2009), at 351, 354–361 Google Scholar; Green, Michael S., On Hart's Category Mistake , 19 Legal Theory 347, 365–369 (2013)CrossRefGoogle Scholar; Perry, Stephen, Beyond the Distinction Between Positivism and Non-Positivism , 22 Ratio Juris 311, 316 n.6 (2009)CrossRefGoogle Scholar; Perry, Stephen, Where Have All the Powers Gone? Hartian Rules of Recognition, Noncognitivism, and the Constitutional and Jurisprudential Foundations of Law, in The Rule of Recognition and the U.S. Constitution (Adler, Matthew D. & Himma, Kenneth Einar eds., 2009) [hereinafter Perry, Powers], at 295, 309–318 Google Scholar; Kar, Robin Bradley, Hart's Response to Exclusive Legal Positivism , 95 Geo. L.J. 393, 397 & n.17 (2007) (agreeing that “Hart's account of the law includes an expressivist dimension,” while emphasizing that in his view “it also includes a cognitivist (and hence non-expressivist) dimension”)Google Scholar; Shapiro, Scott J., What Is the Internal Point of View? , 75 Fordham L. Rev. 1157, 1169–1170 (2006)Google Scholar; see also Green, Michael Steven, Legal Realism as Theory of Law , 46 Wm. & Mary L. Rev. 1915, 1954 (2005)Google Scholar (noting, in connection with Hart's distinction between internal and external legal statements, that “Hart may . . . have been committed to a form of non-cognitivism about value”). Spaak, Torben, in his study of the Scandinavian legal realists, has cautiously endorsed Toh's reading of Hart, concluding that Hart's “sympathies clearly lie with some version of the non-cognitivist theory,” Torben Spaak, A Critical Appraisal of Karl Olivecrona's Legal Philosophy (2014), at 11Google Scholar, though Spaak correctly observes that explicit reliance on and invocation of metaethical arguments and premises plays a much smaller role in Hart's work than in Karl Olivecrona's, id. at 10–11, 106.

Toh was not strictly the first to notice the expressivist or noncognitivist strands in Hart's work. Joseph Raz was probably the first to interpret Hart this way, at least in print, see Raz, Joseph, The Purity of the Pure Theory , 35 Revue Internationale de Philosophie 441, 448–449 (1981)Google Scholar; see also Perry, Powers, supra, at 310 n.53, but Raz's remarks on the subject are comparatively brief. For other early references to the subject of legal expressivism, see Jules Coleman, The Practice of Principle (2001), at 88–89 & 89 n.25; Moore, Michael, Legal Reality: A Naturalist Approach to Legal Ontology , 21 Law & Phil. 619, 640 (2002)Google Scholar (describing Hart as “the most famous proponent of a non-cognitivist analysis of legal discourse,” but elaborating little on the specifics of Hart's stance). For references to additional early discussions about the possibility of interpreting Hart as an expressivist, see Toh, Kevin, Jurisprudential Theories and First-Order Legal Judgments , 8 Phil. Compass 457, 467 n.11 (2013)CrossRefGoogle Scholar [hereinafter Toh, First-Order Judgments]. But to the best of my knowledge Toh was the first to address this topic in depth, and he is largely responsible for the recent increase in awareness of, and interest in, the important role of expressivist and noncognitivist ideas in Hart's legal philosophy.

2. Here I use “legal expressivism” to refer to expressivist accounts of legal discourse and thought. The term is sometimes used to refer to theories emphasizing the significance of the so-called expressive dimension or function of laws, or of government action more generally—for example, the possibility that a criminal prohibition might express an attitude of moral condemnation. See Adler, Matthew D., Expressive Theories of Law: A Skeptical Overview , 148 U. Pa. L. Rev. 1363, 1364–1375, 1404 (2000)CrossRefGoogle Scholar; Anderson, Elizabeth S. & Pildes, Richard H., Expressive Theories of Law: A General Restatement , 148 U. Pa. L. Rev. 1503, 1504, 1506, 1520, 1531 (2000)CrossRefGoogle Scholar; Koppelman, Andrew, On the Moral Foundations of Legal Expressivism , 60 Md. L. Rev. 777 (2001)Google Scholar. The terminological overlap is basically accidental. See Adler, supra, at 1380 (noting that such “expressive theories of law” and metaethical expressivism “might incorrectly be understood as related,” and explaining the difference between the two).

Toh has suggested in personal correspondence that “meta-legal expressivism” is a preferable term for what I am calling “legal expressivism.” (He has also more recently used the term “meta-legal theories” for, inter alia, philosophical accounts of legal discourse and thought. See Toh, First-Order Judgments, supra note 1.) His suggestion is reasonable, given that legal expressivism (as I am using the term) is to legal discourse what metaethical expressivism is to ethical/moral discourse and what metanormative expressivism is to normative discourse more broadly. Nonetheless, I prefer “legal expressivism” because it is shorter and less cumbersome.

3. Robin Bradley Kar's jurisprudential work also includes expressivist themes, see Kar, Robin Bradley, Outcasting, Globalization, and the Emergence of International Law , 121 Yale L.J. Online 413, 443 n.79 (2012)Google Scholar, http://www.yalelawjournal.org/forum/outcasting-globalization-and-the-emergence-of-international-law, but Kar does not appear to straightforwardly conceive of his theory as a form of legal expressivism.

4. Toh, Kevin, Legal Judgments as Plural Acceptances of Norms, in 1 Oxford Studies in Philosophy of Law, at 107 (Green, Leslie & Leiter, Brian eds., 2011)CrossRefGoogle Scholar. Toh's collaboration with David Enoch exploring the possibility that “legal” is a “thick” concept could also intersect interestingly with Toh's work on legal expressivism. See Enoch, David & Toh, Kevin, Legal as a Thick Concept, in Philosophical Foundations of the Nature of Law (Waluchow, Wil & Sciaraffa, Stefan eds., 2013), at 257 Google Scholar.

5. See generally Toh, First-Order Judgments, supra note 1; Toh, Kevin, Plan-Attitudes, Plan-Contents, and Bootstrapping: Some Thoughts on the Planning Theory of Law, in 3 Oxford Studies in Philosophy of Law (Green, Leslie & Leiter, Brian eds.)Google Scholar (forthcoming) (manuscript available at http://ssrn.com/abstract=2307318) [hereinafter Toh, Plan-Attitudes].

6. Toh, Hart's Expressivism, supra note 1, at 77, 79, 88; see also id. at 91–105.

7. More strictly, Toh is concerned with committed legal statements, which are distinguished from a variant that Raz calls detached legal statements. See Toh, supra note 4, at 109–111. Toh's own account of detached legal statements (for which see Toh, Kevin, Raz on Detachment, Acceptance and Describability , 27 Oxford J. Legal Stud. 403, 409–414 (2007))CrossRefGoogle Scholar, strikes me as basically satisfactory (though it does raise certain subtle questions that cannot adequately be discussed in this paper for lack of space), and I will not be concerned with detached legal statements in the discussion that follows.

8. Toh, supra note 4, at 116–117. I have rewritten Toh's formulation of Hart's account somewhat. Naturally my goal has been to clarify and not to modify the substance of what Toh has to say. That said, Toh's original formulation presents some exegetical difficulties that leave me feeling less than confident. I will therefore use this note to explain why I believe my reformulation accurately reflects what Toh has in mind.

Toh says that, according to Hart, “in making a [committed internal] legal statement, a speaker (i) expresses his acceptance of a particular norm that is valid according to the most fundamental legal norm of his community, or, as Hart calls it, the rule of recognition of his community; and (ii) presupposes that that particular norm is accepted and employed as the rule of recognition by the officials of his community.” Id.

In constructing my reformulation of the language quoted above, I've interpreted Toh's summary of the first prong as referring to two separate norms, viz (1) the “particular norm” whose acceptance the speaker expresses, and (2) the norm the speaker takes to be the “fundamental . . . rule of recognition” (R above). This seems justified for three reasons. First, it is unclear what it would mean for a norm to be valid according to itself, and in any case a rule of recognition that was self-reflexive in this sense would be a strange norm indeed. Second, according to Toh's earlier (2005) formulation of Hart's account, the speaker “(i) expresses his acceptance of R”—where we are told to let R stand for “the norm that [the] speaker considers the rule of recognition of the legal system in his community”—and “(ii) presupposes that R is generally accepted and complied with by the members of his community.” Toh, Hart's Expressivism, supra note 1, at 88. This change in Toh's formulation of the first prong only makes sense if it is motivated by a desire to distinguish the particular norm whose acceptance the speaker expresses from the norm he or she presupposes to be the generally accepted rule of recognition. Third, Toh's more recent formulation of Hart's account in a 2015 paper—though different in certain ways from both his 2005 and 2011 formulations—seems to confirm this understanding of the first prong. Toh, Kevin, Erratum to: Four Neglected Prescriptions of Hartian Legal Philosophy , 34 Law & Phil. 333, 360 (2015) [hereinafter Toh, Neglected Prescriptions]CrossRefGoogle Scholar.

I therefore interpret the referent of the phrase “that particular norm” in the 2011 formulation's second prong as the second of the two norms mentioned in the first prong, i.e., the rule of recognition (“R” in my reformulation). This may seem like a strained reading. Arguably a more natural reading would take the phrase “that particular norm” in the second prong to refer to the “particular norm” in the first prong. Still, such an interpretation seems unsustainable for all the reasons mentioned in the preceding paragraph.

The interpretation I've adopted is far more plausible on the philosophical merits than an alternative reading according to which any speaker who makes an internal legal statement expresses the acceptance of a norm that he or she takes to be the fundamental rule of recognition for his or her community. The idea that anyone who makes an internal legal statement expresses his or her acceptance of (and presupposition of the widespread acceptance of) a fundamental rule of recognition is very implausible. For such a rule of recognition specifies the feature(s) in virtue of which other rules—e.g., (purported) primary rules of obligation and/or rules of change—are to be deemed legally valid. See H. L. A. Hart, The Concept of Law (3d ed. 2012), at 94–96. But most internal legal statements surely do not express acceptance of rules of recognition, but rather acceptance of things like primary rules of obligation. For example, two people might agree that the law requires or forbids a certain action (say, stealing) without agreeing on any rule of recognition; they might accept different rules of recognition according to both of which stealing is legally forbidden, resulting in agreement concerning the legal validity of the primary rule of obligation in question (that is, the one forbidding stealing) but not the features in virtue of which it is legally valid. Yet surely both individuals would sincerely agree with an internal legal statement to the effect that stealing is illegal. Indeed, this presumably explains why Toh has changed his formulation of the two-pronged Hartian account: Toh's earlier formulation indeed had it that every speaker of an internal legal statement expresses the acceptance of a norm that he or she takes to be the rule of recognition. See Toh, Hart's Expressivism, supra note 1, at 88. Toh's 2011 formulation, as I've interpreted it here, is far more plausible on its merits.

9. Toh, supra note 4, at 117.

10. Toh, Hart's Expressivism, supra note 1, at 113.

11. Toh does not explicitly adopt Hart's account as the starting point for his own, but he does suggest that “[p]rogress can be made,” Toh, supra note 4, at 118, toward a more philosophically sound expressivist account of legal discourse by combining the Hartian account summarized above with Toh's novel contribution of the notion of “plural norm-acceptances.” See id. at 118–121. Toh also suggests that Hart, on the above interpretation, offers us “a pretty straightforward expressivist conception of legal statements,” albeit one notably hobbled by its (supposed) inability to distinguish “guidings from goadings.” Id. at 117. To me this suggests that Toh is at least provisionally satisfied with the two-pronged Hartian account—once, of course, it is modified so that the mental states said to be expressed by internal legal statements are plural acceptances of norms rather than norm-acceptance attitudes in the standard Gibbardian sense. (I discuss the topics of “guiding and goading” and plural acceptances of norms in the portion of the main text immediately following this footnote.)

12. Id. at 126.

13. Id. at 121–122.

14. Id. at 120.

15. Id. at 127; see also id. at 119–120.

16. Id. at 123.

17. Id. at 124.

18. Some of Gibbard's remarks in Wise Choices, Apt Feelings might leave one with the impression that the effort to develop a novel category of plural norm-acceptance attitudes along these lines is a mistaken enterprise, because Gibbard already thinks that all normative statements express psychological states that constitutively involve a certain amount of built-in malleability/persuadability, deference, and/or tendency toward consensus, i.e., that such traits are part of the concept of norm acceptance as developed by Gibbard. After all, Gibbard essentially identifies norm acceptances by their role in a social practice (normative discussion) that, he repeatedly emphasizes, would lose much of its social usefulness (viz, its utility as a mechanism for social coordination) if people were wholly rigid in their attitudes. See Allan Gibbard, Wise Choices, Apt Feelings (1990), at 73–75, 77–78 [hereinafter Gibbard, Wise Choices]; see generally id. at 64–78. And in Thinking How to Live, Gibbard says a “faith . . . that through joint inquiry we can progress from disagreement toward more agreement, and be the better for it . . . is . . . built into our normative language.” Allan Gibbard, Thinking How to Live (2003), at 286 [hereinafter Gibbard, Thinking] (emphasis added). Does this imply that he sees ordinary norm acceptances as constitutively/necessarily incorporating, at least to some degree, the characteristics Toh stipulatively attributes to plural norm-acceptance attitudes?

I think it would be too hasty to read Gibbard this way. To be sure, natural human psychological dispositions toward mutual influence and consensus play a crucial role in Gibbard's account of the nature and function of normative discourse in Wise Choices, Apt Feelings, and a somewhat less prominent role in Thinking How to Live. But the question whether normative statements express psychological states that constitutively involve a certain amount of malleability/persuadability, deference, and/or tendency toward consensus is quite distinct from the question whether ordinary, more or less psychologically normal humans in fact tend to be malleable/persuadable, deferential (mutually or unidirectionally), and oriented (either willfully or unconsciously) toward consensus when they adopt normative attitudes. One might think that it is an overridingly important and most fortunate fact of the world that most people, most of the time, exhibit some malleability and tendency toward mutual influence in their respective normative attitudes—and even think that normative discourse would cease to serve its core social function were it otherwise—yet not think that any degree of malleability or consensus-seeking tendency should be built into the concept of accepting a norm.

If nothing else, I am inclined to endorse the latter view on its philosophical merits: I think it yields a more plausible version of comprehensive metanormative expressivism than the alternative. Indeed, it seems to me that to claim that one is not really making a normative judgment unless one has a certain degree of flexibility or consensus-seeking tendency is to trade away a more plausible theory in exchange for one that is less plausible but leaves us with a certain (unwarranted) glow of cheery feeling about the potential for human reconciliation through mutual understanding. But I think it may also be right, as an exegetical matter, to interpret Gibbard as adopting the more plausible (which is to say “thinner”) view of what acceptance of norms constitutively involves.

Gibbard appears to see fundamental, rationally irresolvable normative disagreement as a coherent possibility in both Wise Choices, Apt Feelings, see Gibbard, Wise Choices, supra, at 197–199, and Thinking How to Live, see Gibbard, Thinking, supra, at 268–270, 280–283; but see Allan Gibbard, Reconciling Our Aims (Barry Stroud ed., 2008) [hereinafter Gibbard, Reconciling], at 174 (expressing hesitation as to whether we “can . . . still think we are disagreeing” when faced with a fundamental impasse). He also seems to think it is possible at least in theory for one to have norm-acceptance attitudes that are immune to persuasive change by means of conversational demands. See Gibbard, Wise Choices, supra, at 307–308, 309. He thinks we have some control over how flexible we are in our normative attitudes, and how open to persuasion, and that how flexible we ought to be is a substantive normative question, see id. at 179–180; Gibbard, Thinking, supra, at 280, so that a willingness to be persuaded (one of Toh's criteria for plural acceptance of norms) would not appear to be an essential part of norm acceptance as Gibbard understands it. Moreover, Gibbard's later switch from talk of acceptance of norms to talk of plans, see id. at 41–59, 180–181, or at least plan-like attitudes, see Gibbard, Reconciling, supra, at 16, 19—a switch he understands “not as a change of position but as a shift of expository purposes,” Gibbard, Thinking, supra, at 181 n.3—suggests that the attitudes expressed by normative statements need not always be flexible or subject to mutual influence. For we have a certain pre-theoretic understanding of what plans are, one that Gibbard does not appear interested in disabusing us of: they are not novel theoretical posits like “norm-acceptance” attitudes. (At least not in any respect that seems relevant for present purposes; see Gibbard, Allan, Reply to Critics , 72 Phil. & Phenomenological Res. 729, 731 (2006)CrossRefGoogle Scholar (identifying certain differences between “planning in the ordinary sense” and “planning” as he uses the term).) And I see no reason to think that people who plan must, as such, exhibit flexibility and mutual deference of any sort. If this is right, then Gibbard's repeated emphasis on our persuadability and natural tendency toward consensus may be better understood as anthropological observations about the social function of normative discourse: as noted above, normative discourse would appear to lose much of its social usefulness if people were wholly rigid in their attitudes. But that, of course, is by no means to say that everyone who accepts some norms must have some flexibility about his or her stance in this regard. So it seems to me that to the extent Toh's decision to introduce a novel concept of plural acceptance of norms presupposes a certain reading of Gibbard, it is basically a correct reading, or if not, then at least a plausible one.

19. Toh, supra note 4, at 112.

20. Id. at 111.

21. Id.

22. Id. at 126.

23. Here I use the term “vindicate” as a shorthand way of tracking Toh's concern to portray discussants in a way that they could accept without being unable to continue engaging in the relevant discursive practice openly and in good faith. See id. at 111. This differs from, e.g., David Wiggins's use of the term “vindicatory explanation” in the context of explaining moral beliefs. See Wiggins, David, Moral Cognitivism, Moral Relativism and Motivating Moral Beliefs , 91 Proc. Aristotelian Soc'y 61, 66 (1990)Google Scholar.

24. Toh, supra note 4, at 111.

25. Id.

26. Id. at 126–127.

27. Id. at 110 n.5.

28. See Toh, Neglected Prescriptions, supra note 8, at 350 (stating that for Hart, “[e]xternal legal statements are analyzable as descriptions of people's acceptances of the rules that make up their legal system and their behavior motivated by such acceptances”).

29. See, e.g., Katarzyna de Lazari-Radek & Peter Singer, The Point of View of the Universe (2014), at 301.

30. Charles L. Stevenson, Ethics and Language (1944), at 83. I have altered Stevenson's example very slightly.

31. For actual examples from the anthropological literature, see, e.g., Napoleon A. Chagnon, Noble Savages (2013), at 52 (“But I . . . determined by listening to Yanomamö conversations that you should not use a child's name if he or she is sick—it might attract the attention of malevolent spirits . . . .” (emphasis added)); Lawrence H. Keeley, War Before Civilization (1996), at 102–103 (referring to practices such as mutilating enemy corpses and keeping severed enemy ears for trophies as “no longer morally . . . acceptable” (emphasis added)); Elman R. Service, Origins of the State and Civilization (1975), at 120 (“The Bairu had no rights to retaliate by means of blood revenge for a wrong done to them by Bahima . . . .” (emphasis added)); Burch, Ernest S. Jr. & Correll, Thomas C., Alliance and Conflict: Inter-Regional Relations in North Alaska , in Alliance in Eskimo Society 17, 34 (Guemple, Lee ed., 1972)Google Scholar (describing survivors of violent conflicts between Eskimo groups as “morally obliged to seek revenge”).

32. See Toh, Plan-Attitudes, supra note 5 (manuscript at 9–15).

33. Toh, supra note 4, at 109.

34. Id. at 110.

35. See Toh, Plan-Attitudes, supra note 5 (manuscript at 9–15).

36. The name is due to W. D. Falk. See Falk, W. D., Goading and Guiding , 62 Mind 145 (1953)Google Scholar.

37. Toh, supra note 4, at 111. Though it is a somewhat tangential point, it is worth noting that Toh's formulation of the problem—which, I think, pretty accurately captures the thinking of those drawn to “guiding versus goading” worries—assumes a false dichotomy between rational discourse on the one hand and browbeating, cajoling, and coercion on the other. Plenty of nonrational persuasive interactions are perfectly civil, nonthreatening, and free of any unctuousness or wheedling. Certain poems of Ralph Waldo Emerson might, for example, instill in readers a greater passion for enjoying and preserving nature. This would presumably not be an instance of rational persuasion—or at least in some cases would not be—yet few readers of transcendental poetry feel browbeaten or cajoled, let alone coerced.

38. Strictly speaking this is false, since if “rational discourse” means discourse that consists of the sincere proffering of reasons, then moral discourse could still be rational even if there were no moral truths. There can, after all, be good reasons to have false beliefs or to acquire (or retain) non-truth-apt attitudes. That said, if noncognitivist expressivism led to moral nihilism, it would be hard for it not to slide into comprehensive normative nihilism, for noncognitivist versions of metanormative expressivism generally characterize all normative language in expressivist terms and all normative thought in noncognitive terms. And it certainly would be impossible to sustain rational moral discourse if there were no normative truths at all, for then there would be no genuine reasons to be proffered; rationality itself would be an illusion. See Hussain, Nadeem J. Z., Error Theory and Fictionalism, in The Routledge Companion to Ethics (Skorupski, John ed., 2010), at 335, 340–341Google Scholar.

39. For an interesting account of truth that would work well here, see Huw Price, Naturalism Without Mirrors (2011), at 163–183.

40. Of course an expressivist might accept deflationism about truth and still disagree that there are any moral truths, but such a combination of expressivism and moral nihilism would be accidental insofar as the former in no way commits one to the latter.

41. See Price, supra note 39, at 163–183.

42. See Simon Blackburn, Ruling Passions (1998), at 75–83; Mark Schroeder, Noncognitivism in Ethics (2010), at 151–165; Horwich, Paul, The Essence of Expressivism , 54 Analysis 19, 19–20 (1994)CrossRefGoogle Scholar; Horwich, Paul, Gibbard's Theory of Norms , 22 Phil. & Pub. Aff. 67, 70–74 (1993)Google Scholar.

43. Toh, supra note 4, at 112.

44. In discussing this issue, I have interpreted the term “guiding” as synonymous with “proffering genuine normative reasons.” This is the interpretation that the text of Toh's paper strongly suggests. See Toh, supra note 4, at 107–108, 111. So understood, the “guiding and goading” problem is relatively narrow and manageable. It is important, lest my expressivist response to this problem seem too quick, to recognize that the narrow issue involved is distinct from a variety of other, at least thematically related, objections or problems.

First, as noted in the main text, the expressivist reply I have sketched would involve acknowledging that guiding might well be inefficacious in certain “fundamental” disputes. But this in no way diminishes the expressivist's ability to distinguish guiding—the proffering of genuine normative reasons—from other forms of persuasion or psychological influence. (It bears emphasizing here that inefficacy is not the same as impossibility: an expressivist need not be any kind of existence internalist about reasons, so there is no tension involved in suggesting that fundamental disputes may often involve the proffering of genuine normative reasons that, despite their status as genuine normative reasons, simply fall on deaf ears.) And while the conclusion that guiding might well be inefficacious in certain fundamental disputes does, in a sense, “portray discussants involved in [some] moral or legal dispute[s] in such a way that they would” not “be able to proceed . . . openly and in good faith even if they became fully aware of what they are doing,” id. at 111, it does not represent an error theory in the traditional sense: the claim is not that the statements discussants make—even in the most intractable and fundamental moral or legal disputes—are systematically false or nonsensical. The claim is only that such interactions may be unproductive in some more diffuse, pragmatic sense. So while it might be unpleasant to contemplate the possibility of cases in which efforts to “guide” must simply fail to get off the ground, it would take much more work to develop, on this basis, a convincing philosophical worry for expressivism (let alone for expressivism in particular).

It is also important to recognize that questions about the possibility and efficacy of guiding (which is to say, the possibility and efficacy of proffering genuine normative reasons) are distinct from the following, much deeper issue: whether expressivists can provide a convincing account of the phenomenon of disagreement itself—i.e., whether expressivists can adequately explain what differentiates disagreements from other differences in attitude, either in the context of fundamental disputes or more generally. (For a recent discussion of this issue, see Ridge, Mike, Disagreement , 86 Phil. & Phenomenological Res. 41 (2013)CrossRefGoogle Scholar; see also Michael Bratman, Normative Thinking and Planning, Individual and Shared: Reflections on Allan Gibbard's Tanner Lectures, in Gibbard, Reconciling, supra note 18, at 91, 98–100.) The two issues are arguably related in a (very broad) sense, and at times Toh contrasts “genuine normative disagreements” with “sessions of mutual browbeating,” Toh, supra note 4, at 115, or “instances of talking at cross-purposes,” id. at 126, which suggests a concern with the latter, deeper issue. Nonetheless, the “guiding vs. goading” problem is at least analytically distinct from what we might call the “disagreement vs. mere difference” problem. That is to say, the problem of drawing a sufficiently clear distinction between guiding and goading is not equivalent to the problem of drawing a sufficiently clear distinction between disagreement and other differences in attitude. Consider, by way of illustration, two interlocutors, A and B, who are discussing the morality of capital punishment. The two interlocutors may disagree about whether capital punishment is moral; e.g., where Interlocutor A thinks capital punishment is moral and Interlocutor B thinks it is immoral. Alternatively, they may only differ in their attitudes toward the morality of capital punishment, but not disagree; e.g., where Interlocutor A thinks capital punishment is moral and Interlocutor B simply has no opinion about the moral status of capital punishment. Note, however, that in either case A could, in an effort to get B to come around to A's way of thinking, either guide B (e.g., by saying, “the prospect of capital punishment surely deters numerous would-be killers”) or goad B (e.g., by just repeating “capital punishment is good” in a loud voice).

Providing an adequate account of the distinction between disagreements and other differences is a hard and complex problem, one that I cannot address here. But it is not the problem Toh explicitly sets out to address, nor is it clear whether, and if so how, the introduction of plural acceptance of norms into the theory would help on this front.

45. Toh, supra note 4, at 133 (footnote omitted).

46. Id.

47. Id. at 133–134.

48. See Gibbard, Wise Choices, supra note 18, at 40–45; see also Gibbard, Reconciling, supra note 18, at 16–17 (reiterating and refining this account of moral statements).

49. Robin Bradley Kar, whose jurisprudential work includes expressivist themes, see supra note 3, has shown that he too is aware of the need to distinguish the attitudes expressed by these different kinds of statements. His own comments on what I've called the question of content are, however, brief and schematic. (They also appear to bear a marked thematic resemblance to Toh's similarly brief take on the subject.) See Kar, Robin Bradley, The Deep Structure of Law and Morality , 84 Tex. L. Rev. 877, 940–941 (2006)Google Scholar; Kar, Robin Bradley, 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 (Fleming, James E. & Levinson, Sanford eds., 2012), at 31, 89–90 Google Scholar; see also Kar, supra note 3, at 459–460.

50. Toh, supra note 4, at 130–131.

51. Id. at 131 (citation omitted).

52. There are further problems with Toh's brief remarks on the question of content. Norms cannot be modified; they are, if I may indulge a bit of metaphysical jargon, abstract entities. Perhaps the thought is not that institutions can modify the norms in question, but that these norms forbid or require actions only when certain conditions related to institutional procedures obtain. But even so, these brief remarks raise far more questions than they answer. For example, in order to believe that doing X is unlawful, must one believe that some institutional procedure can change whether doing X is lawful? This is arguably nothing more than a modern prejudice—a perfectly coherent position to take, of course (and quite possibly the correct one), but not one built into the very idea of a law or of a legal obligation.

53. Cf. Enoch, David, Reason-Giving and the Law, in 1 Oxford Studies in Philosophy of Law (Green, Leslie & Leiter, Brian eds., 2011), at 1, 22 Google Scholar (“[T]here is no contradiction in saying that the law requires that you Φ, but you don't have any genuine reason to Φ.”).

54. Indeed, even if one did think that the latter (moral) claim is incoherent, it would be quite another matter to suggest that the former (legal) claim is also incoherent. It seems to me that the internal tension appears rather less severe in the former (legal) case.

55. My use of the phrase “okay to do” in this context tracks Gibbard's. See Gibbard, Reconciling, supra note 18, at 19–20; Gibbard, Thinking, supra note 18, at 137–138.

56. Of course, these examples are just the tip of the iceberg: a really well-developed form of legal expressivism should probably have something to say not just about statements like “stealing is unlawful” but also statements like “you have a legal right to dispose of your own property,” and any number of other kinds of internal legal statements. If we want to say that all of these express the acceptance of various different norms, the norms are bound to get pretty complex pretty quickly. This is not meant to be discouraging, but only to show just how much work legal expressivists have left to do.

57. On the role of noncognitivist ideas in Olivecrona's legal philosophy, see Karl Olivecrona, Law as Fact (2d ed. 1971), at 182–185, 215–216, 259–267; Karl Olivecrona, Law as Fact (1st ed. 1939), 21–22, 95–96; Spaak, supra note 1, at 94–97, 106, 133, 148–150; Spaak, Torben, Karl Olivecrona's Legal Philosophy. A Critical Appraisal , 24 Ratio Juris 156, 163–165, 174–177 (2011)CrossRefGoogle Scholar; Spaak, Torben, Naturalism in Scandinavian and American Realism: Similarities and Differences, in De Lege, Uppsala–Minnesota Colloquium: Law, Culture and Values (Dahlberg, Mattias ed., 2009), at 33, 52–55 Google Scholar.

58. See Toh, supra note 4, at 107 (describing the paper Legal Judgments as Plural Acceptances of Norms as “a sort of progress report” requiring “further working-out”).