Philosophy of law can gain from a good philosophical account of the meaning and use of language, and from a good philosophical account of the naga4d institutionalized resolution of disputes over language. Philosophy of language can gain from studying the stress-testing of language in legal regulation and dispute resolution. And philosophers of language can gain from the reminder that their task is not only to account for what people share in virtue of the mastery of a language; they also need to account for the possibility of disagreements over the meaning and use of language, and for the possibility that there might be good reason for resolving those disagreements in one way rather than another.
After a brief historical note on the linguistic preoccupations of legal philosophers in section 1, section 2 outlines the relation between the law of a jurisdiction and the language with which law can be made and in https://reddoortavern.com/ which it can be expressed. Section 3 surveys philosophical work on the nature of law that rejects a preconception that you can find in this introduction and in sections 1 and 2: that law can be made by the use of language. Section 4 addresses the implications for legal philosophy of the widespread use of evaluative language in law, and section 5 addresses the implications for legal philosophy of the widespread use of vague language in law. Section 6 concludes with an assessment of philosophers’ efforts to use insights from the philosophy of language to address problems of the nature of law.
Bentham and Austin would have had a ready response: that people ordinarily misuse the word ‘obligation’. They fail to give it a meaning that can be expounded by reference to sensible objects. Bentham and Austin were linguistic philosophers, but (unlike J.L. Austin) not ordinary language philosophers. They sought a way of using language that would back up their empiricism and utilitarianism, and they were actually pleased if that technique called for a reorganisation of ordinary language: it showed that they were disclosing what had been obscured by mere cant.
Hart’s approach to language was different. It may seem that he did not need to talk about language, and that his point could have been made without mentioning types of assertions, or what ‘we would say’. His argument, you might think, simply puts into the linguistic mode an argument that could be made with no mention of language: an argument that you can have an obligation without being liable to sanction. And yet, the linguistic form of the argument was important to Hart. He wanted to avoid explaining the difference between obligation and coercion in the way a natural law theorist might (by saying that an obligation is a kind of reason). So his focus on the use of the word ‘obligation’ is no accident. He did not point out the way we use that word as an oblique way of appealing to our shared wisdom as to what obligation is. It was actually important to him to point out how we use the word. His explanation of the normativity of law relies on the use of such words to display an attitude.
Hart claimed that a legal system is a system of power-conferring and duty-imposing rules, which are validated by a ‘rule of recognition’. That rule is not made valid by another rule; it is a ‘social rule’. In explaining that crucial notion of a social rule, Hart turned to the use of words to explain the normativity of law. He claimed that a social rule is a regular pattern of conduct accompanied by a ‘distinctive normative attitude’, which ‘consists in the standing disposition of individuals to take such patterns of conduct both as guides to their own future conduct and as standards of criticism’ (Hart, 2012, 255). In accounting for that disposition, or ‘internal attitude’, Hart’s emphasis was on speech acts—on the use that participants in the practice make of normative language.
