Law, Language, and Legal Determinacy

Law, Language, and Legal Determinacy

Law, Language, and Legal Determinacy

Law, Language, and Legal Determinacy

Excerpt

Language is the medium through which law acts. The nature of the medium necessarily has a pervasive effect on what purposes can be achieved through the law and how well those purposes can be forwarded. Part of my present task is to consider the relationship between language and law, focusing on how the two interact within the question of legal determinacy. In looking at the question of legal determinacy, I use examples from three different approaches to legal theory: H. L. A. Hart's legal positivism, the interpretative approach of Ronald Dworkin, and the metaphysical realism of Michael Moore. Each of these approaches appears to have a different view of the role of language within law. Roughly and generally--the details are to follow--Hart saw language as placing a limit on legal formalism and explaining the inevitability of judicial discretion; Dworkin believed that any problems created by language could be circumvented; and Moore viewed language, alternatively, as a path to finding the correct result and as a temptation towards the wrong result that must be overcome.

Like Wittgenstein's image of 'family resemblance', in which a number of separate threads interweave to constitute a single rope, a number of separate but interrelated themes run through this text. First is the issue of legal determinacy: whether law always (or most of the time or never) provides unique correct answers to legal questions. Second is the role of language within law, and third is the use (or misuse) of Wittgenstein's approach to the philosophy of language within the jurisprudential debate.

One disclaimer: while aspects of my argument depend on a particular interpretation of the work of Wittgenstein (and occasionally other philosophers as well), and while on some occasions I will argue that some other legal theorist has interpreted a philosophical theory incorrectly, I do not put forward this book . . .

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