The Role of Linguistics in Legal Analysis

Abstract

Legal theory has traditionally made a fairly extensive use of the philosophy of language. At a very general level it has frequently been argued that linguistic philosophy is a valuable heuristic tool for the elaboration of general questions concerning the institutional nature of law and the meaning of key legal terms. At a more substantive level it has also been claimed that linguistic methodology and the various exegetical and hermeneutic traditions of textual analysis may aid in the practical endeavour of explaining the intricacies of rule interpretation and rule application. Despite such claims, however, the role of linguistics — both historical and potential — in legal analysis has never been an object of systematic study. It is indeed something of a paradox that while problems of definition, of interpretation and of vagueness, ambiguity and polysemy generally are constantly referred to by the major theories of law, no attempt has been made to analyse the specifically linguistic basis of such problems. If one concedes that the major schools of legal thought are differentiated, as much as anything else, by the divergence of their approaches to the theory of adjudication and of law application, the absence of any encounter with linguistics might well be taken to indicate the subordination of the will to truth to the need to conceal; the privileging of ideological concerns over the pursuit of knowledge.

Antiquity was acquainted only with theories of oratory and poetry which facilitated production… that formed real orators and poets, while at the present day we shall soon have theories upon which it would be as impossible to build up a speech or a poem as it would be to form a thunderstorm from a brontological treatise.

F. Nietzsche¹