Analytical Legal Philosophy

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Collected Essays

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Law as a regulator of the conduct of social subjects cannot be directly equated with other methods of controlling the behavior in society. The grounds of legally significant actions allow determination of the context of the application of legal rules. The meaning of each legal term, as argued by L. Wittgenstein, depends on its «context of use» and the conventions of use at the moment. Therefore, the interpretation of the rules cannot be based solely on the principles of logic and be completely neutral. On the one hand, «we follow the rule blindly», but at the same time, the repeatability of the behavior of other people and the ability to observe their behavior (by analogy with the mathematical concepts of addition and sum) encourage «learning» the rules and acting in accordance with the rules.

The ascription of the legal language and the «imputation» principle of the legal interpretation of facts allow to define a key concept that cannot exist beyond the constructed social reality. The attempts to analyze non-legal factors appeal not to legal arguments but to other phenomena. The legal term in its nature not only describes empirical facts but also encourages action.

The most dismal example of a change in philosophical argumentation and legal reasoning in the philosophy of law is the influence of Quine’s arguments. In the context of the methodology of legal explanation, the naturalization of the epistemology of law is possible only when the limitations and specifics of traditional methods of interpretation of legal reality are considered.

The collection of essays focuses on the analysis of some arguments made by the analytical legal philosophers regarding the linguistic content of legal rules or formulation of the significant judgments about the linguistic nature of legal reality.

The Linguistic turn in Legal Philosophy

Analytical Legal Philosophy as an intellectual current was formed in the 40’s-60’s of the 20th century as a result of the rethinking of the problems in legal philosophy from the positions of the empirical study of law, the analysis of the empirical content of legal constructions, and the study of the legal language and the logic of legal reasoning. Considering the detailed elaboration of the methodology of study of legal phenomena and legal constructions, the purpose of the discussions among analytical legal philosophers was to clarify the specifics of legal language. The widespread popularity and citation of philosophical works written by the representatives of the analytical legal philosophy (H. Kelsen, H. Hart, P. Hacker, J. Raz, etc.) contributed to the formation of academic community and specific intellectual environment. In the second half of the 20th century, the development of the analytical tradition in philosophy of law was influenced by the general principles and methods of analytical philosophy (mainly, from the Oxford school of linguistic analysis and ordinary language philosophy), as well as by classical theories of philosophy and law.

The «linguistic turn» in the legal philosophy originated not only as the result of the influence of the analytical philosophy methods used to clarify the meanings of the terms of the legal language but it also served for the purposes of justification of the conceptual analysis as the main method of resolving possible contradictions. The nature of legal statements began to be interpreted in the context of the linguistic content of legal rules. Additionally, in some cases, the social context began to be considered not from the viewpoint of law and social reality relations but as a context in which the legal terms are used, for example, in judicial argumentation or in the process of ascribing the legal significance to actions.

The range of issues that relate to the analytical tradition in legal philosophy has not expanded significantly but has received a new impetus for further philosophical and legal research on the legal concepts. Based on the classic arguments of John Austin and Hans Kelsen, H. Hart updated the methodology of resolving the philosophical and legal issues. The rule-following problem and the possibility of its application to the legal language led to long discussions in the analytical legal philosophy.

Along with conceptual analysis, the methodological basis of interpretation was introduced in philosophy of law; and various forms of interpretation of the legal norms that may have a theoretical significance came to be acceptable. These methods of interpretation have become particularly important due to the complexity of resolving the issues related to judicial discretion and the «open texture» of law, and for the first time, they were reviewed in the philosophical and legal concept of Ronald Dworkin. R. Dworkin himself formulated a number of original arguments against legal positivism but, from a methodological viewpoint, he followed the views of the positivists, supplementing them with arguments; thus, he rather improved legal positivism than opposed it. Therefore, Dworkin’s theory of a «constructive interpretation» hardly can be viewed as the theory that opposes the legal positivism; rather, R. Dworkin is an opponent of some aspects of Hart’s concept, but, ultimately, a contributor to their development.

Another important phase of the development of analytical legal philosophy was the project of the «naturalization of epistemology». Based on the ideas of W. Quine, the project partially addressed the realistic argumentation against legal positivism, and largely induced legal philosophers to discuss the extent to which Quine’s arguments were applicable in the legal sphere. Despite the fact that, since the beginning of the 20th century, legal realism developed as an independent current of legal philosophical study, its naturalized version can be attributed to discussions in the area of analytical legal philosophy.

The legal language characteristics and the ways of its philosophical study are determined by the specific functions of law that is a regulator of legally significant actions. There are a number of theories in the philosophy of law that focus on the issue of how legal phenomena are reflected in legal statements. Particularly, in Kelsen’s normativism, law is presented in the form of the system of the interrelated legal norms that have a common and individual nature. These legal norms contain a model of a «proper» social relations development and methods of their regulation; however, traditional notions of the causality and effect are not applicable to such social relations as the empirically observed actions can get a legal meaning and significance only if there is an act of an authorized subject. In other words, legal reality is reflected in the legal language differently than the other objects in the world. Similarly, H. Hart notes the ascriptive nature of legal statements, since the use of grammatical constructions in law, unlike other areas of knowledge, suggests the simultaneous performance of a legally significant action, qualification and assessment of ongoing events and actions, and in some cases, prosecution. Epistemological questions arise specifically during the analysis of interactions of the legal norms, legal relations, and actions.

The Rule-Following Problem

The rule-following problem, formulated by L. Wittgenstein in the late period of his work, became one of the fundamentals of the so-called linguistic turn in the philosophy of law and the analytical tradition formation. Discussions of modern legal philosophers are still focused on the theories of L. Wittgenstein because the conceptual apparatus in the legal sphere is formed on the grounds of the basic philosophical categories of analytical philosophy.

The classical formulation of the rule-following problem of L. Wittgenstein is viewed as a paradox that has many linguistic interpretations, and it is formulated as follows: «This was our paradox: no course of action could be determined by a rule, because any course of action can be made out to accord with the rule». Wittgenstein’s concept of «rule» confuses many legal philosophers but it emphasizes the normative consequences that apply to a variety of language practices where actions can be seen as right or wrong. Such assessment by its essence allows interpretation of the rules by describing the «language game» and determining the content of a rule.

The key philosophical issues are the search for a method of adequate interpretation, the elimination of contradictions in linguistic expressions, and the formulation of a rule that has been agreed upon by the linguistic community. However, following Wittgenstein’s ideas, the interpretation of a rule often allows to replace one formulation with another while the question of the level of degree to which the empirically observable actions reflect the rule remains open.

Wittgenstein’s arguments on the rule-following problem led to a number of ambiguous interpretations of this philosophical problem in the analytical legal philosophy, in particular, with regards to the issues of certainty and prescriptions of legal rules. Realists point out that law by its nature is a fundamentally vague phenomenon, and the reasons behind this is the ordinary language. The uncertainty of the language and its constructions inevitably lead to uncertainty of legal statements because the function of legal norms (containing the rules of behavior) is to reveal the diversity of human actions and relations.

Realists largely rely on the interpretation of Wittgenstein’s arguments given by S. Kripke. If the mathematical concept of addition is used intuitively (for example, if we need to continue the numerical series according to the rule of «add 2»), then we always find the right answer conducting the mathematical operations. Realists believe the same thing happens when legal decisions are taken. When a judge makes a decision, he relies not on a formal legal rule that is vague in content and has gaps but on existing social practices of application of the rule, as well as on other social factors defining the context of the decision (the moral, ideology, professional standards, etc.). Realists emphasize that the rules uncertainty is insurmountable and is present in every case. Legal rules initially contain a number of alternative interpretations, the choice of which is exercised by a judge or other officials, with the exception of formal limitations (for example, appeal and revocation of a decision by a higher authority).

Is that a correct way to interpret Wittgenstein’s ideas? The opinion of one of the discussion participant, Brian Bix, is that Kripke’s interpretation of Wittgenstein’s views raised a number of questions a long time ago, and its extrapolation into the sphere of law is unacceptable. L. Wittgenstein emphasizes the conventional nature of the language and the variety of «language games» but this fact does not imply the absence of at least a temporary consensus on the use of words. This consensus can have a political and ideological foundations, and, thus, the application of the rules can be flexible and sufficiently defined.

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