Wittgenstein, Language, and Legal Theorizing: Toward a Non-reductive Account of Law

PETER LIN

ABSTRACT

Traditional legal philosophies have assumed that language is a medium in which a juridical reality can be represented. This assumption causes legal theories to oscillate between a dogmatic formalism which sees law as embodying a universally normative and non-historically contingent juridical reality, and an epistemological nihilism which sees legal interpretations as a completely arbitrary mechanism that masks the underlying oppressive nature of the law. Wittgenstein's philosophy of language allows us to transcend these apparently irreconcilable perspectives. By realizing that the meaning of words are not the objects to which they refer but the use they have in "language-games", Wittgenstein destroys the very idea that law has an underlying reality that must be captured in a linguistic-theoretical account before we can understand it. Instead, from a Wittgensteinian perspective the very enterprise of legal theorizing is itself an optional practice that both generates and attempts to solve illusory philosophical problems which do not need to be solved before a clear understanding of law can be obtained. Philosophical problems are in fact non-puzzling practical problems but for our confused use of language. Hence what is required for these problems is not any definitive ideal solution supported by a theoretical foundation, but the very act of human living that participates in the process of coping with them. What Wittgenstein ultimately makes us realize is that life is not an instance of some general intellectual categories that can be captured within a theory, but that it must be confronted simply as it is.

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Citation: (1989) 47(Supp) U.T. Fac. L. Rev. 939.
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