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- Title
How Legal Language Works.
- Authors
Wolcher, Louis E.
- Abstract
What a legal object is -- its identity or essence -- is co-determined by how it is: its mode of existence, or the way it manifests itself in time as a lived phenomenon. Thus, any serious effort to think about the human institutions that we call "law" requires a philosophy of how legal language (statutes, precedents, contracts, etc.) is related to legal events such as the interpretation and the enforcement of law. This article addresses the "how" question from a standpoint that has been profoundly influenced by the work of Wittgenstein. It notes that a major international political movement currently exists, the primary purpose of which is to make legal language clear (or clearer) to laypersons. Accepting this movement's binary opposition between linguistic clarity and obscurity as its initial point of departure, the article begins by describing its philosophy of philosophy; it then develops six well-defined ideas that build upon Wittgenstein's distinction between the implicit rules that make up a system of language (a "language game" embedded in a "form of life") and statements that are made, by means of the rules, within the system. Appropriating Heidegger's concept of the hermeneutic circle to elucidate the critical phenomenological difference between interpreting legal language and recognizing its meaning, on the one hand, and, on the other hand, automatically receiving linguistic signs, the article then maintains that the latter phenomenon is in fact the ultimate ground of the legal form of life. The two sections that follow this discussion unpack the distinction found in Wittgenstein's philosophy of language between the magical and the logical views of language. The magical view imagines that legal language must always "mean" something; following this view leads thought into obscurity, confusion, and occasionally even into absurdity. In contrast, the logical view of language attempts to identify the different descriptive techniques (methods of comparison and methods of application) that people employ in various forms of life, and it seeks philosophical clarity about, rather than a "theory" or "explanation" of, the many ways in which legal language is actually used by lawyers and judges. Finally, the article attempts to show that clarity is not a property of linguistic signs as such, but rather is a function of the differences between forms of life whose constitutions and continuities are produced by history in the largest sense of the word. It also submits that the demand for clarity in legal language is ultimately a demand for admission into the politically powerful form of life that is inhabited by lawyers, judges, and legislators.
- Subjects
LEGAL language; LAW enforcement; JUSTICE administration; COMMUNICATION in law enforcement; POLICY sciences
- Publication
Harvard Unbound, 2006, Vol 2, Issue 1, p91
- ISSN
1932-3808
- Publication type
Article