Abstract
Schauer starts from Waismann’s staunch anti-reductionism to ask what the relationship between technical and ordinary language could be. Pairing Waismann’s views on fiction, open texture and his mature criticisms of ordinary language philosophy with questions of normativity, constitutional law and modern legal theory Schauer gives us an account of legal decision making. If the legal system, in a majority of cases, does not know what to say but is forced to say something nonetheless, if it faces open texture on regular basis together with the necessity of making a decision about what the relevant language is going to mean, and not what it meant in the past, the language of law could arguably constitute its own language stratum with its own goals and a structure that is importantly different most other languages. Schauer concludes that Waismann may have provided some tools for making some progress in addressing the question of technical language.
This paper is the written version of a keynote lecture delivered on 13 September, 2016, at the University of Vienna Department of Philosophy’s Symposium on Friedrich Waismann’s Legacy and Presence. My visit was generously supported by the Hans Kelsen Institute and Themis—Centre d’Etudes de Philosophie de Droit, de Sociologie du Droit et de Théorie du Droit (Geneva). A version of this paper was presented and discussed, in March 2017, at the UCLA Legal Theory Workshop through the kind invitation of Mark Greenberg.
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Notes
- 1.
Waismann elaborates his claim about the inevitability and necessity of continuous redefinition in “Analytic-Synthetic” (Waismann 1968a, 122–207, at 138–156, 172–196).
- 2.
See also Waismann (1946, 211–219).
- 3.
See also Hart (2012, 147) (“When the area of open texture is reached, …”).
- 4.
As has been done at greater length and depth in Bix (1993, 7–35).
- 5.
For a different perspective on the distinctiveness of legal language, see Hart (1954). Hart’s basic point is that legal language presupposes and draws its meaning from a complex array of legal rules, legal procedures, and legal institutions, and in this he seems plainly correct. But law is hardly the only enterprise containing language that similarly presupposes the rules of an institution within which the language exists, as influentially claimed by John Searle (1969, 33–53). So although it is interesting and important that law has constitutive rules and rule-dependent definitions and concepts, it is hardly clear that this feature of law distinguishes law from a host of other institutions with their own forms of institution-dependent constitutive language (Searle 1995).
- 6.
Actually there was—Mac Bethad mac Findláich, who lived from around 1005 to around 1057, but Shakespeare’s Macbeth bore little resemblance to this real Macbeth, and in any event any resemblance is irrelevant to the point of the example.
- 7.
And as Graham Priest argued on the occasion of the live delivery of the present paper.
- 8.
The “Analytic-Synthetic” series, which Waismann never completed, was spread out over six different numbers of Analysis, but all six are presented together in Waismann (1968a, 122–207).
- 9.
I am taking Waismann’s word for it, and leave aside the question whether Waismann was correct about Greenlandic.
- 10.
Nor did Caton, who never again wrote about the topic.
- 11.
- 12.
- 13.
- 14.
In addition to the sources cited elsewhere in this paper, see Waismann (1979, 169–170): “Here Wittgenstein says, ‘Think of the game of chess. Today we call it a game. Suppose, however, a war were waged in such a way that the troops fought one another on a field in the form of a chess-board and that whoever was mated had lost the war. Then the officers would be bending over a chessboard just as they now do over an ordnance map. Then chess would not be a game any longer; it would be a serious business.’”
- 15.
The distinction is importantly explicated in Dan-Cohen (1984).
- 16.
Bentham’s views about the accessibility of legal language to the ordinary subjects of the law were often expressed with Bentham’s characteristic directness. “[A legal code should] not require schools for its explanation, would not require casuists to unravel its subtleties. It would speak a language familiar to everybody: each one might consult it at his need. It would be distinguished from all other books by its greater simplicity and clearness. … [It] must be possible for a father to take it in hand and, without assistance, teach it to his children, …” (Bentham 1838c, 209). For useful discussion of Bentham on the linguistic accessibility of law, see Postema (1986, 421–434), Alfange (1969).
- 17.
The claim in the text about Fuller’s goals is based in part on Fuller’s cautious hint that the specific word “vehicle” in Hart’s famous “No vehicles in the park” should be understood and defined not as ordinary language, but in light of purposes that the word served in the rule as a whole (Fuller 1958, 661–669). See, for discussion, Schauer (2008). And in writing about legal fictions, Fuller also suggested that law might be considered to have advanced insofar as law develops its own technical language or understands its language in a technical sense (Fuller 1967, 66–70). And for a far more sophisticated version of a similar claim, see Moore (1985, 381–396).
- 18.
Patterson’s ideas were offered in the opening pages of his unfinished Treatise on the Law of Contracts, available at the library of the Columbia Law School. Patterson also offered related comments on legal language as technical language in Patterson (1953, 252–258). For discussion of Fuller, Patterson, and others on this point, see Schauer (2015).
- 19.
- 20.
- 21.
And this is the question that, in part, undergirds Ronald Dworkin’s attack on legal positivism (Dworkin 1977, 14–80).
- 22.
The suggestion here is compatible with the analysis and arguments in Baker (1977).
- 23.
One might argue, contra Hart and others, that this is not a matter of meaning at all. That is, one might argue that the legal system contains resources allowing it to reach reasonable conclusions in the face of seeming unreasonable linguistic meaning (as applied in some situation), but that those resources should not be considered part of the meaning of the legal term. See Bix (1993, 33–35), Lyons (1982, 240). But whether, as a normative matter, we ought to consider this a matter of meaning or instead a matter external to meaning is a question intimately related to what we might think of as the dispute between Bentham and Fuller, and thus to the question whether law should be understood as speaking to lay people, or to lawyers and judges, and, if to both, in what proportion. As a descriptive and not normative matter, it is worth noting that treating the manifestation in particular cases of defeasibility as a matter of (changed) meaning is a common, albeit not universal, approach adopted by many judges. In Yates (2015), for example, the Supreme Court of the United States held that, in light of the purpose of the long and complex Sarbanes-Oxley Act, an act which was aimed at banking and financial misconduct, a fish would not be considered a “tangible object,” even though a fish caught by a fisherman is plainly a tangible object in ordinary language. And if, as Lon Fuller would have said, the meaning of the term comes from the purpose of a particular statute, then there is no reason to deny that it could not come from the purpose of law itself taken in its entirety. (I am grateful to Mark Greenberg for pressing me on this point, although I am confident that he still disagrees with my analysis and conclusion.)
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Schauer, F. (2019). Friedrich Waismann and the Distinctive Logic of Legal Language. In: Makovec, D., Shapiro, S. (eds) Friedrich Waismann. History of Analytic Philosophy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-25008-9_12
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