INDETERMINACY OF LAW AS A LINGUISTIC PROBLEM IN THE CONTEXT OF WITTGENSTEIN’S LATER PHILOSOPHY
DOI: 10.23951/2312-7899-2020-4-137-149
The linguistic indeterminacy of law is the most discussed topic of modern legal philosophy, the key issue of which is whether legal rules determine the result of judicial decision in each case. Legal formalists (and partly legal positivists) respond positively to this question, since they believe that the task of a judge is to resolve judicial disputes by applying consistent principles to facts. The judicial decision, therefore, is interpreted as the consistent application of generally accepted principles to established facts, that is, a judicial decision is reduced to a deductive inference where the truth of the conclusion is guaranteed by the truth of the premises (legal norms and facts). On the contrary, legal anti-formalists argue that legal rules and the concepts they contain (and law in general) are “radically indeterminate” and primarily because of the indeterminacy of language in which they are expressed. Anti-formalists, defending the position of linguistic indeterminacy, proceed from the fact that if legal texts (as well as the words that they contain) do not have an independent meaning, then the application of certain provisions of the law cannot be directly derived from its text. Their argument is not that some words are ambiguous or vague, and, therefore, we cannot be sure of their correct application, but that the application of all words will inevitably be indeterminate only if the unit of meaning is words themselves. They argue that certainty and determinacy in use of words depend solely on the agreement of linguistic community on how a particular word should be used. Formalists refer to the ideas of “late” Wittgenstein to confirm their position, while anti-formalists refer to Kripke’s interpretation. But there are legal philosophers who question the applicability of Wittgenstein’s ideas to solve the problem of legal indeterminacy, although they do not deny that some of his ideas are quite appropriate for analyzing the problem of legal interpretation and judicial enforcement.
Keywords: rule, interpretation, application, rule-following argument, semantics, legal norm, legal language, Wittgenstein
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Issue: 4, 2020
Series of issue: Issue 4
Rubric: ARTICLES
Pages: 137 — 149
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