Bewitched By Language: Wittgenstein and the Practice of Law

Abstract

The problems inherent in importing the practices and mores of certain types of philosophical inquiry into law may stem from the different context in which philosophical theories are spawned and take root. As Gould notes, the method employed by philosophers differs from that employed by either law or science. As a result, the transfer from one discipline to another of a theory, for example a theory of meaning, may be disastrous or it may be banal. It could be similar to planting a hothouse flower in a refrigerator or discovering you planted cattails when bulrushes were intended.

In this article I want to illustrate some problems with the transference of theory between disciplines. My examples derive from legal literature and reported legal opinions which rely upon or incorporate the philosophy of Ludwig Wittgenstein as an aid to understanding some facet of law. In order to set up the discussion, I first sketch some salient points of Wittgenstein's philosophy that have attracted attention by scholars and courts.15 With this interpretation in place, I then show how different, and equally or more plausible, interpretations can lead to different results in particular cases. I do this by surveying some attempts, by academics and judges, to incorporate Wittgenstein into legal scholarship and into individual cases. In most cases, I find the use of Wittgenstein to be either irrelevant to the matter discussed, or superfluous-bordering on the gratuitous or the theanthropic. The obvious suggestion is that such citations or discussions are not very useful in the sense adumbrated above: they don't have the power or the capacity to change or inform views.

My goal is not to rid legal scholarship of philosophical insights. That would be as wrongheaded as it would be wrong. Rather, by the descriptions offered, I hope to illustrate the contingent nature of legal scholarship based solely upon philosophy, and to suggest that the impact of extending these contingencies in particular cases, or classes of cases, is not beneficial to academic debate, nor is it necessary to decide particular cases.