WITTGENSTEIN’S CONCEPTION OF LANGUAGE AND ITS IMPLICATION FOR
JURISPRUDENCE.
BY
UGWUDIKE, ONYEDIKACHI TEMPLE
PG/M.A./10/52879
DEPARTMENT OF PHILOSOPHY
FACULTY OF THE SOCIAL SCIENCES
UNIVERSITY OF NIGERIA, NSUKKA.
FEBRUARY, 2014.
WITTGENSTEIN’S CONCEPTION OF LANGUAGE AND ITS IMPLICATION FOR
JURISPRUDENCE.
BY
UGWUDIKE, ONYEDIKACHI TEMPLE
PG/M.A./10/52879
SUPERVISOR: DR. A. C. AREJI
This dissertation has been approved for the Department of Philosophy, University of Nigeria,
Nsukka for the award of Masters of Arts (M. A) Degree in Philosophy.
By
--------------------------------------------------- -------------------------------------------
Dr. A. C. Areji Internal Examiner
Supervisor
------------------------------------------------- --------------------------------------------
Rev. Fr. Dr. M. C. Chukwuelobe Rev. Fr. Prof. Marcel Izu Onyeocha
Head of Department External Examiner
----------------------------------------------
Prof. C.O.T. Ugwu
Dean
Faculty of Social Sciences
CERTIFICATION
Ugwudike Onyedikachi Temple, a postgraduate student in the Department of Philosophy,
with Registration Number PG/M.A./10/52879, has satisfactorily completed the requirements
for coursework and dissertation, for the degree of Master of Arts Degree (M.A.) in Social and
Political Philosophy. The work embodied in this dissertation is original and has not been
submitted in part or full for any other Diploma or Degree of this or any other university.
……………………………………….
DR. A.C. AREJI
(SUPERVISOR)
DEDICATION
This work is dedicated to creative minds and lovers of wisdom all over the world, for their
commitment in making our world free from encumbrances which tend to limit us from
gaining a clearer picture of the world and its derivatives.
ACKNOWLEDGEMENTS
All glory to God our help in ages past, and who is our hope for years to come for having led
me through the rigours of intent research and findings. I solemnly pledge my gratitude to you
for the health, strength and wisdom you accorded me. All I want to say is thank u Lord. My
profound gratitude goes to my never-tiring supervisor, Dr. Anthony C. Areji for his care,
moral support and doggedness. I have not seen one such devoted. Even when he is afar, he
makes himself within reach. I thank you most sincerely Sir for you are a good man. Also to
my dedicated H.O.D. Rev. Fr. Dr. M.C. Chukwuelobe and to my pragmatic lecturer, Rev’d
Fr. Dr. F.O.C. Njoku for their guidance throughout the course of this research, I say thank
you.
My sincere gratitude goes to my parents Sir Donatus and Lady Stella Ugwudike for their
prayers, support, encouragements, admonitions and advice which have kept me going.
Thanks for being a source of inspiration to me. I will never let you down. Thanks also to my
siblings for the calls and encouragements.
A million encomium goes to my friends and loved ones, Ubaelutu Chiamaka, Paul Haaga,
Okeke Chidubem, Ikenna Ezeofor, Chibuzo Obimdike and others too numerous to mention
for believing in me and also for their candid support and prayers. Also to the staff and
management of U.C. Networks Nsukka, and The Rock Chambers Onitsha, I say thank you for
giving me a grand support in the course of my research. Thank you all.
Ugwudike, Onyedikachi Temple
Department of Philosophy
University of Nigeria, Nsukka.
ABSTRACT
The meaning of an expression, or relation between words in general language usage is
ascertainable if the special use of language is understood. A major criticism leveled against
the language of law has been the idea that the language of law is indecipherable and barely
understood by those outside the legal terrain. Most of the criticisms range from the alleged
incoherence nature of the language of law, the classified nature of the language of the law,
and the technical/restricted nature of the language of law. In clearing these bugs of
misconception from the eyes of the critics, this work explores various ideas of Wittgenstein
in finding appropriate solutions. This becomes the thrust of this work. In showing how
Wittgenstein exonerates the language of law from these vilifying attacks, he thought that a
word has its meaning only within the context of its use in a language and, its form of life.
From his language-game thesis which forms one of the major bedrock in understanding
Wittgenstein’s language ideas, one would readily understand that in order to comprehend the
language of law, one must participate in the language game of lawyers. This is not a
manipulation of language or of words. Participation in the language game constitutes a
special way which enables one, within a language structure, and, with the assistance of the
rules of the language, to understand the rational core of the designations of certain
terminologies and concepts. In connection with law however, participation in the language-
game allows one to be cognitive of the normative meaning of such designations.
TABLE OF CONTENTS
Certification -------------------------------------------------------------------------------------- i
Dedication ---------------------------------------------------------------------------------------- ii
Acknowledgement ------------------------------------------------------------------------------ iii
Abstract ------------------------------------------------------------------------------------------ iv
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study -------------------------------------------------------------- 1
1.2 Statement of Problem ------------------------------------------------------------------ 2
1.3 Purpose of the Study ------------------------------------------------------------------ 3
1.4 Thesis of the Study --------------------------------------------------------------------- 3
1.5 Significance of the Study -------------------------------------------------------------- 3
1.6 Scope of the Study --------------------------------------------------------------------- 3
1.7 Research Methodology ---------------------------------------------------------------- 4
CHAPTER TWO
LITERATURE REVIEW --------------------------------------------------------------------- 6
CHAPTER THREE
WITTGENSTEIN’S CONCEPTION OF LANGUAGE
3.1 The Early Wittgenstein: (Tractatus Logico-Philosophicus) ----------------------- 23
3.1.1 Picture Theory -------------------------------------------------------------------------- 25
3.2 The Later Wittgenstein: (Philosophical Investigation) ----------------------------- 28
3.2.1 Wittgenstein on Language-Games and Rule-Following --------------------------- 31
3.2.2 The Private Language Argument ----------------------------------------------------- 34
CHAPTER FOUR
THE IMPLICATIONS OF WITTGENSTEIN’S CONCEPTION OF LANGUAGE TO
JURISPRUDENCE
4.1 Relationship between Language and Jurisprudence -------------------------------- 41
4.2 Jurisprudence as an Independent Form of Life ------------------------------------- 42
4.3 The Relevance of Wittgenstein’s Conception of Language to Jurisprudence --- 44
4.4 Wittgensteinian Projection Analogy as a Tool in Jurisprudence ------------------ 48
CHAPTER FIVE
Evaluation and Conclusion ------------------------------------------------------------ 55
Bibliography.
CHAPTER ONE
INTRODUCTION
1. Background of the Study
Not only does law constitute a language, but a very special kind of language, for it is
an attempt to structure the realities of human behaviour through the use of words. Law must
pattern human activity in such a way as to allow at least the great preponderance of members
of the polity to meet their felt needs and express their most deeply-held values. A legal
system must, therefore, provide some means for peaceful change of the patterns of behaviour
it enforces so that it can continue, in an orderly fashion, to meet the changing needs and
values of those who live under it.
This work brings to light the crucial use of language in jurisprudence. Not only does
the use of language crucial to philosophers of law, but in the special respect that lawmakers
typically use language to make the law, and courts typically use language to state their
grounds of decision. In this regard, philosophers of law need a good philosophical
understanding of the meaning and use of language in order to address a seemingly pensive
issue in jurisprudence of which the language of law has been adjudged of being too technical,
private and secluded from those it is meant to cover. In a bid to address this issue, different
philosophers have theorized and brought about diverse opinions and views to assuage this
uprising. It was against this backdrop that the researcher, having in mind to remedy the
situation, took-on the contributions of Ludwig Wittgenstein; a twentieth century analytic
philosopher who arose and made his contributions to the philosophy of language in his two
major works; Tractatus Logico Philosophicus and Philosophical Investigations. He made us
to know in the latter that: “to understand a sentence means to understand a language. To
understand a language means to be a master of a technique”.1 Thus, I would add that being a
master of a technique implies being acquainted with the ‘form of life’ that gives rise to such
technique. With the above statement from his Philosophical Investigations, Ludwig
Wittgenstein provided a framework upon which our language must be construed and
understood. Having said this, a critical look at Wittgenstein’s conception of language and its
implication to jurisprudence becomes imperative, and this is the thrust of this work.
2. Statement of Problem
The assertion made by David Mellinkoff in The Language of the Law that: “law is a
profession of words”2, is not doubtful, but the language of law has been adjudged and
criticized of possessing the nature of deceit in that legal contents are not comprehendible to
the legal laypersons. To this end, this work aims at exposing and addressing a major issue
posed by the critics of jurisprudence as regards its language structure which according to
them portrays law in a classified light. Also accompanied by this major challenge includes
different questions that may arise such as; what makes an addressee or a client unable to
capture the meaning of legal terms and concepts? Are those terms intentionally construed to
keep the addressee or the client in the dark? Are they ambiguous that the addressee finds it
unable capturing the meaning? Are the words incoherent, illogical, unintelligible, disjointed,
indecipherable, or are they just meaningless and full of jargons as posited by many critics of
legal language? Having listed these problems, this work will be geared towards ascertaining
if Wittgenstein’s conception of language was able to address them.
3. Purpose of the Study
The purpose of this study is to critically examine Wittgenstein’s conception of
language and its implication to jurisprudence, and to show to what extent his contribution
have proffered answers to criticisms against the language of the law. In an endeavour to
counteract the criticisms against the language of jurisprudence, this study spreads its tentacles
to various areas in seeking redress leaning closely on Wittgenstein’s conception of language.
4. The Thesis of the Study
Considering various efforts put forward by various theorists from diverse dimension
in proffering remedy to the criticisms against the language of jurisprudence, this paper
defends the thesis that Wittgenstein’s conception of language plays a therapeutic role for the
understanding of language as used in jurisprudence and thus, using his language conception,
a clearer understanding of law is achievable.
5. Significance of the Study
The significance of this study lies not alone on the role it will play in convincing and
clearing bugs of misconception from the mind of the critics of the language of law, but also in
projecting a clearer understanding of law by the scrutiny of its language structure through the
all embracing compass of philosophy which according to G. O. Ozumba ‘plays a therapeutic
role of curing us of linguistic bewitchment’3. On the other hand, this work will be of much
relevance to the academic body in-that it will broaden the students’ knowledge of language-
use and how best it applies to jurisprudence. It will also facilitate and equip a researcher with
the grundnorms of philosophy of language, and of the language of law..
6. Scope of the Study
This work is limited to the study of the implications of Wittgenstein’s conception of
language to jurisprudence, and will also, highlight the views and opinions of other
philosophers, linguists and legal theorists, whose contributions, thoughts and opinions in one
way or the other have bearing to Wittgenstein’ s conception of Language.
7. Research Methodology
The methodologies adopted for this work were historical, analytic, expository, and
critical. The historical method was used in order to pave way and give a broader and wider
approach for an analysis of Wittgenstein’s language thesis, which was critically evaluated in
finding its fitting in jurisprudence. The analytic method was applied in examining the various
strands of Wittgenstein’s language conceptions which includes; his argument against private
language, language-games, rule-following, and his notion of form of life. The expository
method was employed in an attempt to expose in a detailed description, the flaws immanent
in Wittgenstein’s language theses, and to further juxtapose his many language concepts with
the language of jurisprudence in finding its significance; the critical method was adopted to
analyze and proffer adequate solution to the criticisms against the language of jurisprudence,
and also to scrutinize the tenability and plausibility of Wittgenstein’s views and their
contemporary relevance. Data for this work were sourced from books, articles/periodicals and
internet.
ENDNOTES
1. Ludwig Wittgenstein, ed. Philosophical Investigations, G. E. M. Anscombe (London:
Basil Blackwell Ltd, 1958), paragraph 199.
2. David Mellinkoff, The Language of the Law (Boston: Little, Brown & Co. 1963), vi.
3. Godfrey Ozumba, Introduction to Philosophy of Language (Ibadan: Hope publications,
2004), 13.
CHAPTER TWO
LITERATURE REVIEW
There is no section of the world’s activity that does not involve language insofar as
communication and interaction take place. In the human world, language is a veritable tool
that instructs, guides, and shapes human conducts and activities. In our diverse language
communities or forms of life, the essentiality of language can never be over-emphasized.
Through language, I am able to understand my lecturer’s gestures, instructions and advice.
Through language, a lawyer addresses the court and states his case to the Judge. Through
language, a researcher expresses his ideas on a particular discourse. Language begets
understanding; in other words, there is no understanding without a corresponding language.
Language is itself the vehicle of thought. Language, of course asserts a unifying effect to all
relations of life. Thus, in a bid to understand and appreciate the concept of language, this
chapter focuses on the ideas of philosophers who have dwelt on the matters of language as it
concerns our everyday use and life experience.
Philosophy of language, though often regarded as a contemporary philosophical
concern, is traceable up to the earliest times. A historical excursion into the earliest times
reveals that the lonian philosophers were concerned with words. Thus, in defining the
constituent element of the universe, Thales chose water as the primary substrata of the world.
Anaximander said it was the Apeiron, the indeterminate, the Boundless, the unlimited. For
Anaximenes, it was “Air” that serves as the primordial substance. Air was chosen because for
him, it is unlimited. These Ionians painted the picture of reality as it was revealed to them in
different words. These different words, defined for them the basic constituent element of the
universe. Thus, one could possibly argue that their substance of inquiry was the same but
differed in words and thus, resulting in conceptual differences. In other words, it is a
difference in names, words and concepts. One thing note worthy is that; “the result of
philosophizing is not philosophical knowledge of reality, but clarity about our modes of
representing reality” 1. Though these Ionians did not identify their differences as linguistic or
conceptual, but it definitely is. From Heraclitus, Parmenides, Zeno, Pythagoras to Plato, and
Aristotle, it has all been a matter of conceptual differences, of giving different names to the
same or similar realities, thereby presenting the philosophers in deferring lights.
Socrates was also concerned with the proper meaning and use of words. His
dialectical or conversational method was chiefly concerned with the analysis of words, the
explanation of implicit and explicit meanings. The whole aim was to point to the abuse and
the ignorance of the users of words. Thus, in Theaetetus Plato led us to a conversation
between Socrates and Theaetetus on the question forwarded by Socrates, ‘What is
knowledge?’ Theaetetus answered that, “the things Theodorus teaches are knowledge; I mean
geometry and the subjects you enumerated just now. Then again there are the crafts such as
cobbling, whether you take them together or separately. They must be knowledge, surely” 2.
Going through the answer given by Theaetetus, he enumerated what the word ‘knowledge’
could be used to mean. But replying to Theaetetus’ definition of what knowledge is, Socrates
asserted thus;
that is certainly a frank and indeed a generous answer, my dear lad. I ask
you for one thing and you have given me many; I wanted something
simple but I have got a variety.... You were not asked to say what one may
have knowledge of, or how many branches of knowledge there are. It was
not with any idea of counting these up that the question was asked; we
wanted to know what knowledge itself is. Or am I talking nonsense? 3
Socrates was convinced that the surest way to attain reliable knowledge was through the
practice of disciplined conversation, this conversation for him however acts as an intellectual
midwife which helps in the delivery of ideas. In the above dialogue, Socrates aimed at
deducing the meaning of knowledge. He believed that “through the process of dialogue,
where all parties to the conversation were forced to clarify their ideas, the final outcome of
the conversation would be a clear statement of what was meant”4. Thus for Socrates, our
language should aim at the clarity of our thought.
In the same vein, a discussion between Plato and Socrates in The Republic shows how
crafty the use of words could be in representing reality. Thus:
the painter paints what looks like a shoemaker, though neither he nor his
public know about shoe-making, but judge merely by colour and form….
In same way the poet can use words and phrases as a medium to paint a
picture of any craftsman, though he knows nothing except how to
represent him, and the metre and rhythm and music will persuade people
who are as ignorant as he is, and judge merely from his words, that he
really has something to say about shoemaking or generalship or whatever
it may be 5.
Here, Socrates illustrates to Plato how meaning could be punctured through our unexamined
thoughts, and how deceptive it could be to the ignorant listener. The poet here uses words to
paint a picture of a craftsman he knew nothing about, and thereby giving out wrong
representation of the craft. He showcases by this illustration, how misleading it could be to
judge ones utterance merely by its rhetorical expression just as the poet who knew nothing
about the craft he presented. Furthermore on names, Plato believes that objects which have a
common name also have some reality in common, hence: “when a number of individuals
have a common name, we assume them to have also a corresponding idea or form”6. Thus,
there seems to be a very close relationship between language and reality in Plato’s view. He
shows in The Republic that the true philosopher wants to know the essential nature of things.
When he asks what is justice or beauty, he does not want examples of ‘just’ and ‘beautiful
things’, just as in the dialogue between Socrates and Theaetetus; he wants to know what
makes these things ‘just’ and ‘beautiful’. As Socrates his master, Plato adopted the dialogue
form because it imitates dialectic. Thus, in Plato‘s Ethics; “for just as dialectic proceeds by
question and answer, so the dialogue is composed of characters questioning and answering”.7
In a bid to knowing what makes things just and beautiful, the Socratic dialogue, though
laudable, lacks method. It leaves the addressee bewildered and confused in reaching the
required answer. It was amidst this puzzle that Aristotle came up with his idea of syllogism.
Aristotle in his Metaphysics, stated that “it was natural that Socrates should be
seeking the essence, for he was seeking to syllogise”8. With his idea of syllogism, Aristotle, a
pupil of Plato also known as the father of formal logic, came up with a scheme aimed at
restructuring of our dialogue pattern. This he did because he thought that “all men by nature
desire to know”9. The solution he proffered was encapsulated in his idea of syllogism which
he explained as a “discourse in which certain things being stated, something other than what
is stated follows of necessity from their being so” 10
. He considered logic to be an instrument
with which to formulate language properly.
Although Aristotle’s theory of syllogism is an effective tool for determining valid
relationships between premises and conclusions, his aim was to provide an instrument for
scientific demonstration. He thought that words and propositions are linked together because
the things which language mirrors are also linked together. Thus, the value of syllogistic
reasoning depended for Aristotle upon the accuracy of the premises. By introducing the idea
that arguments can be translated into syllogisms, Aristotle brought scientific thought into a
new dimension, it became possible to predict consequences by applying logic. The general
aim of rational inquiry, according to Aristotle,
is to advance from what is ‘better known to us’ to what is ‘better known
by nature’. We achieve this aim if: (1) we replace propositions that we
thought we knew with propositions that we really know because they are
true and we understand them; (2) we find general principles that explain
and justify the more specific truths that we began from; (3) we find those
aspects of reality that explain the aspects that are more familiar to us. 11
The things better known to us in a particular area are the relevant appearances. Aristotle
presents them through detailed collections of empirical data, reached as a result of ‘inquiry’.
In a similar vein, Aristotle’s logic played a unique role in the development of the
medieval thought. Although most of the greatest thinkers of the period like Augustine,
Anselm, Aquinas, and so on, were highly trained theologians, their work addresses perennial
philosophical issues and takes a genuinely philosophical approach to understanding the
world. Even their discussion of specifically theological issues is typically philosophical,
permeated with philosophical ideas, rigorous argument, and sophisticated logical and
conceptual analysis. The enterprise of philosophical theology is one of medieval philosophy’s
greatest achievements.
They were especially interested in how we are able to acquire knowledge of
universals and necessary truths, objects or truths that are immaterial, eternal, and unchanging,
given that the world around us is populated with particular material objects subject to change.
However, the answers medieval philosophers give to questions vary considerably, ranging
from Platonist accounts that appeal to our direct intellectual vision of independently existing
immutable entities, to naturalistic accounts that appeal to cognitive capacities wholly
contained in the human intellect itself that abstract universals from the data provided by sense
perception.
St. Augustine was one of the philosophers whose influence on most analytic
philosophers was quite enormous. His ostensive definition and training tells us how language
could be learnt by the act of pointing and naming. Thus, recounting the experience he had as
a little child in learning what words stand for, he took us to his Confessions where he narrated
thus;
for when I tried to express my meaning by crying out and making various
sounds and movements, so that my wishes should be obeyed, I found that I
could not convey all that I meant or make myself understood by everyone
whom I wished to understand me. So my memory prompted me. I noticed
that people would name some object and then turn towards whatever it
was that they had named. I watched them and understood that the sound
they made when they wanted to indicate that particular thing was the name
which they gave to it, and their actions clearly showed what they meant,
for there is a kind of universal language, consisting of expressions of the
face and eyes, gestures and tones of voice, which can show whether a
person means to ask for something and get it, or refuse it and have nothing
to do with it. So, by hearing words arranged in various phrases and
constantly repeated, I gradually pieced together what they stood for, and
when my tongue had mastered the pronunciation, I began to express my
wishes by means of them.12
In this way, he made his wants known to his family and they in turn, made theirs known to
him. The Augustinian model of language for instance, sees linguistic meaning in the
following way: “1. Words name objects: the meaning of a word is the object for which it
stands. 2. Every word has a meaning: The meaning of a word is independent of context. 3.
Sentence meaning is composed of word meanings”13
. This model of language is a simple
model and easy to comprehend, but some subtle aspects of it are not obvious at first because
it reinforces the basic dichotomy between words and meaning. For him also, spoken words
have been supplemented with signs of a more enduring nature. These are letters, which are
signs of words, for he opined that “signs are given only in order to communicate”14
. These
signs reveal themselves in this significant aspect of Augustine’s language thought which is
the ostensive definition and training; an act of pointing out to objects which corresponds to
the words.
Similarly, Anselm subscribes to the Augustinian view of language as a system of
signs. His account of signification, which is the foundation of his semantics, looks at the
semantics of names (or more precisely, referring expressions), and at his distinction between
signification and appellation as well as at different kinds of signification. Anselm’s account
on signification covers linguistic items such as utterances, inscriptions, gestures and at least
some acts of thought. It also covers non-linguistic items such as icons, statues, smokes (a sign
of fire), and even human actions which Anselm says are signs that the agent thinks the action
should be done. Thus, there is no limit in principle to the sort of object that can be a sign.
Anselm posited that, “what makes an object a sign is that it has ‘signification’: on the one
hand, it has the semantic relation of signifying, which is what a sign does and roughly
approximates our notion of meaning; on the other hand, it has a significate, which is the item
or items signified by the sign”15
. Therefore, Anselm implies that a sign signifies its significate
just as the ostensive practice of Augustine where the ‘name’ corresponds with the ‘pointed’
object. The name ‘Temple’ is a sign since it signifies the name of the bearer, Temple who is
thereby its significate. On his view on appellation, he explains that;
name is appellative of something by which the thing itself is so-called
(appellatur) in accordance with ordinary usage.... Roughly, ‘A’ appellates
S if calling S ‘A’ is acceptable in ordinary usage.... ‘Man’ appellates man,
‘brave’ appellates humans (the brave ones), ‘white’ appellates the white
horse of the two animals in the stable (a white horse and a black ox). 16
Anselm posits that appellation is used to allow for linking words to objects that may or may
not be their significates, and hence should no more be seen as reference than signification
itself. Thus, appellation goes hand in hand with signification.
Aquinas on the other hand made major contributions to the development of
philosophy. His philosophy stands out for its reliance on Aristotle. For him, all human
language is inevitably derived from our experience with things in our sensed world. He stated
that we can have no knowledge without sense experience, maintaining that nothing can be in
the intellect that was not first in the senses; nihil in intellectu quodprius non fuerit in sensu.
On Names, he realized that the names we apply to God are the same ones we use when
describing human beings and things. He thus asked, “if then, these names and words mean
different things to us when we use them respectively to describe creatures and God, the
critical question is whether we can know anything at all about God from our knowledge
about creatures?” 17
. Aquinas however asserts that insofar as we are creatures of God, we
must in some degree, even though imperfectly, reflect the nature of God. “People and God
are neither totally unlike, but their relationship is analogical.” 18
On a more empirical note, William of Ockham who parted company with Aquinas on
conceptual ground postulated what is called Ockham Razor, which he said should be used to
trim off the unnecessary words that cluster the philosophical concern’19
. Occam’s razor also
written as Ockham’s Razor is the law of parsimony (cost-cutting), economy or succinctness
(brevity and clarity). It is a principle urging one to select among competing hypotheses that
which makes the fewest assumptions and thereby offers the simplest explanation of the effect.
Going on his nearest pronouncement on the use of words, which occurred in his theological
work on the Sentences of Peter Lombard, “Numquam ponenda est pluralitas sine necessitate,
which being translated means Plurality must never be posited without necessity”20
, shows
that simpler explanations are, other things being equal, generally better than more complex
ones. On human knowledge, he opined that our minds do not know anything more than
individual things. For him, only concrete individual things exist, and when we use universal
terms we are simply thinking in an orderly way about particular things. Thus, “universal
terms such as humanity refer equally to James and John, but not because there is some real
substance of “human-ness” in which both James and John share or participate. Rather, it is
because the nature that is James is like the nature that is John”21
. Ockham here limited human
reason to the world of individual things where the law of parsimony plays its role on our
knowledge of things.
Consequently, amidst the interpretation bias and other numerous issues existent in
different epochs of philosophy, Francis Bacon came up with his idea of ‘great instauration’.
Bacon’s principal objective was the total reconstruction of the sciences, arts, and all human
knowledge, and this he called his ‘great instauration’. He fought a relentless battle to cure
philosophy of the ailments bequeathed to her through history. He gathered up the rising
discontent with medieval philosophy and sounded the call for a break with the lingering
influence of Aristotle. He was very critical of the medieval philosophers for creating these
problems. He posited in his philosophy that knowledge is power.
This knowledge which is derived through traditional learning has, for him made
learning inadequate because of the irrational blending of science with superstition, unguided
misconception and theology. In a bid to proffer solution, he advocated wiping the slate of
human knowledge clean and starting over again, using a new method for assembling and
explaining facts. For him, if philosophy must regain her pride of place as the mother of all
disciplines, and to appropriate the exactness of the sciences, then philosophy needed to be
cured of these ills. Francis Bacon identified these ills as fantastical, delicate, and contentious.
He attacked past ways of thinking, calling them “distempers of learning”.
Bacon described the fantastical learning, as where people concern themselves with
words, emphasizing texts, languages, and styles, and haunts more after words than matter. On
contentious learning which he viewed as the worse, he held that points of views of earlier
thinkers, which have fixed positions, are used as starting points in contentious
argumentations. Down to the final problem which he called the delicate learning, here, earlier
authors who claim more knowledge than can be proved are accepted by readers as knowing
much as they claim. In curing these ills, Bacon described a new method of acquiring
knowledge. Thus, “in order to penetrate into the inner and further recesses of nature, we need
to derive our notions from things in a more sure and guarded way. This way would include
ridding ourselves of prejudices and looking at things as they are: we must lead men to
particulars themselves”22
. Bacon vehemently countered Aristotle’s deductive method in the
sense that in his syllogism, the conclusions we draw only perpetuates the errors that are
already contained in the first and second premises. In place of Aristotle’s deductive method,
he introduced the inductive method where an argumentative strategy gives new information
upon which we can draw new conclusions.
On the other hand, Locke being influenced by Bacon came up with the view of
reconstructing all human knowledge. His aim was to fix linguistic abnormalities by talking
about ideas. For Locke; “words in their primary or immediate signification stand for nothing
but the ideas in the mind of him that uses them” 23
. Locke’s linking of a word’s signification
or meaning with an idea, resolves the problem of words that do not refer to a physical object
or type of object. Thus, “we may not be able to link all words to objects, but it seems evident
to some theorists that when we know the meaning of the words ‘rectitude’ or ‘unicorn’ we do
have something in mind. It is then easy to take the next step and assume that what we have in
mind is what the word means”24
. On his theory of knowledge, Locke assumed that if he could
describe what knowledge consists of and how it is obtained, he could determine the limits of
knowledge and decide what constitutes intellectual certainty. His conclusion was that
knowledge is restricted to ideas that are generated by the objects we experience. As appealing
as Locke’s theories might be, it suffers from considerable number of problems. He fell into
the problem of abstraction which is the belief that words can exist independent of the subjects
which they represent, or that general words can be made to stand for no particular thing but
all, and nothing in particular.
Thus, George Berkeley in his Principles of Human Knowledge fervently opposed
Locke’s notion of abstraction which he regarded as the foundation-head of all philosophical
problems. Abstraction for Berkeley, gives existence to what does not exist thereby giving
false impression which is misleading. He adopted his method of ‘esse est percipi’ (to be is to
be perceived). Thus in his Philosophical Commentary, Berkeley declared thus; “let it not be
said that I take away Existence. I only declare the meaning of the word so far as I can
comprehend it”25
.
As different views on language and human knowledge mount up, Immanuel Kant
affirmed that we possess a faculty that is capable of giving us knowledge without an appeal to
experience as against Berkeley’s view. He distinguished between two kinds of judgments, the
analytic and the synthetic judgments. A judgment he said is an operation of thought whereby
we connect a subject and predicate, where the predicate qualifies in some way as the subject.
In analytic judgments, the predicate is already contained in the concept of the subject, while
in a synthetic judgment, the predicate is not contained in the subject rather, it (the predicate)
adds something new to our concept of the subject.
Similarly, Georg Wilhelm Friedrich Hegel who stood out among his contemporaries
expounded further the dialectics of Aristotle. Just like Aristotle, Hegel’s dialectic process
exhibits a triadic movement from thesis to antithesis and finally, to synthesis after which the
synthesis becomes a new thesis and the process continues until it ends in the Absolute idea.
Hegel has it in his philosophy that single facts are irrational. Only when such single facts are
seen as aspects of the whole do they become rational. Nothing is unrelated for Hegel, for
whatever we experience as separate things will upon careful reflection, lead us to other things
to which they are related.
Following slightly Hegel’s trend, Jeremy Bentham has long ago issued a warning that
legal words demanded a special method of elucidation. He said we must never take these
words alone, but consider whole sentences in which they play their characteristic role. “We
must take not the word ‘right’ but the sentence ‘You have a right’, not the word ‘State’, but
the sentence ‘He is a member or an official of the State”26
. Linguistic acts struck him as
respectable empirical phenomena, and he made them an essential element of his theory of
law. He based his legal positivism on his claims about the meaning and use of words.
Language had not been especially important to the natural law theorists whose views
Bentham despised. They accounted for a law as a certain sort of reason. From that
perspective, philosophy of language has no special role in explaining the nature of law. Its
role in legal philosophy according to Bentham is the same as its general role in the
philosophy of practical reason.
Philosophy of language cannot explain the nature of reasons; perhaps it has the
additional role of explaining the possibility of expressing or communicating a reason.
Bentham, by contrast, needed the ‘sensible’ phenomenon of a perceptible, intelligible
linguistic act for his purpose of expounding the nature of law by reference to empirical
phenomena. He seems to have thought of the meaning of a word in causal terms, as its
capacity to act on a subject by raising an image of perceptible substances or emotions for
which, he said, the word was a name. Words that do not bring to view such perceptible things
have no meaning on that view, except insofar as they can be expounded by ‘paraphrases’.
Many philosophers of Law are concerned about the conceptions inherent in jurisprudence. On
definition, Bentham states accordingly that;
a law may be defined as an assemblage of signs declarative of a volition
conceived or adopted by the sovereign in a state, concerning the conduct
to be observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his
power…27
He went on to explain that such a signification of volition must be backed by
‘motives’ of pain or pleasure offered by the sovereign. Two features of this theory tie the
philosophy of law to the philosophy of language. One feature is methodological, and the
other is substantive. First, Bentham proposes his theory as a definition. Secondly, he defines
law as a particular kind of assemblage of signs. In Bentham’s view, a law is an utterance, and
legal philosophy is a form of philosophy of language. The legal theorist has a linguistic task
of defining the terms of legal discourse.
More so, Gottlob Frege, whose project was not principally directed at language rather
epistemology, concerned himself with using natural language to carry out his proofs. He has
it that natural language was too vague and imprecise to allow the characterization of precise
syntactic transformations that expressed instances of purely logical inference rules. Frege, in
developing his logicist project, adopted the Platonist position that arithmetic is about an
independently existing domain of abstract objects, namely numbers, and rejected the
formalist view that arithmetic is about signs.
However in Frege’s seminal paper On Sense and Meaning, it was gathered that he
raised topics that are even more germane for the study of natural languages than for the study
of formal languages. Here, he used the notion of sense to give an account of the meaning of
propositional attitude ascriptions, which are sentences involving propositional attitude verbs
such as “believes”, “doubts”, and “knows”. Frege’s reflections on natural language are not
limited to propositional attitude ascriptions, although his discussions of natural language
reflect a great deal of insight about language, especially for someone whose primary interest
was mathematics.
Consequently, upon the 19th century, a wave of approach to philosophical problems
emerged. Philosophical problems became classified as linguistic problems. The belief that
was prevalent in this century and early twentieth century was that ordinary language was
grossly inadequate for the capturing of truth or reality. The strident call then was the
purification of ordinary language, while some advocated total discarding of ordinary
language. Ordinary language was to be replaced by Ideal language. However, through the
Principia Mathematica, Russell and Whitehead had wanted to show that logic holds the
picture of the world.
This means that the language of the Principia should be seen as the language of the
world. Thus, the main contention is that “reality is made up of logical simples, which are held
in a bond through relations pictured as logical connectives. Reality can and is in fact,
reducible to its atomistic components, which is pictured by atomic statements”28
. Atomic
statements are the most basic statements and as such cannot be further reduced; example,
‘John is a boy’. A compound statement is the joining of more than one atomic statement by a
conjunction (.). ‘John and Peter are boys’ is a compound statement containing two simple
statements, thus, ‘John is a boy’ and ‘Peter is a boy’. This is what Russell calls his philosophy
of logical atomism.
According to Russell, “it is the philosopher’s job to discover a logically ideal
language, a language that will exhibit the nature of the world in such a way that we will not
be misled by accidental surface structure of natural language”29
. Language according to him,
“consists of a unique arrangement of words, and the meaningfulness of language is
determined by the accuracy with which these words represent facts”30
. In a logically perfect
language, the words in a proposition would correspond one by one with the components of
the corresponding facts says Russell. By analysis he furthered, certain simple words are
discovered. These are words that cannot be further analyzed into something more primary
and can therefore be understood only by knowing what they symbolize. Thus, this grabs the
clear picture of Russell’s Logical Atomism which in his logic he said could form the basis of
a language that could accurately express everything that could be clearly stated. Through his
logical atomism, the world would correspond to his specially constructed logical language.
Remarkably, this era gave birth to a Logical Positivism formed by a handful of
mathematicians, scientists and philosophers in Vienna. This group of elites is referred to as
the Vienna Circle. For them, a statement is meaningful only if it is either analytic or
empirically verifiable. In charging that metaphysical statements are meaningless, there is the
need for a verification criterion. Rudolf Carnap, a member of this Circle, in presenting
scientific knowledge, was motivated by the concern about objectivity. Thus for him, “science
wants to speak about what is objective, and whatever does not belong to the structure but to
the material … is, in the final analysis, subjective”31
.
Stating further on the unverifiability of metaphysical propositions, he felt that when
logical analysis is applied to metaphysics, its result is always negative. Take for example, the
proposition presented by Thales that the principle of the World is Water; Carnap had it that
we cannot deduce any propositions asserting any perceptions whatever that may be expected
in future. Such a proposition for him asserts nothing at all. He repeatedly emphasizes that no
conclusion should be drawn about the status of an object based on its reducibility or on the
existence of a constitutive definition. Manifestation of this attitude was shown in his
insistence that, “there is no significant distinction between scientific concepts and scientific
objects”32
; and that “an acceptable definition need only preserve the logical value or
extension of the sign being defined”33
.
Thus, any additional associations with a scientific statement are deemed irrelevant.
Carnap summarily jettisoned any unverifiable proposition as meaningless. He states it is the
major function of logic, to analyze all knowledge, all assertions of science and of everyday
life, in order to make clear the sense of each assertion and the connections between them. The
purpose of logical analysis is to discover how we can become certain of the truth or falsehood
of any proposition. Thus, he had it that the basic language is the language of logic because it
is the most precise and least likely to suggest improper interpretations. Additional languages
are used for clarification and motivation.
From the foregoing, language cannot be said to have any definite boundary. It extends
into areas of human endeavours so far there is communication. It wades into grammar,
psychology, anthropology, sciences, politics, religion, law, as seen through the history of
thought. Importantly, philosophy of language is closely bound up with logic. Logic is the
study of inference. It is the attempt to devise criteria for separating valid from invalid
inferences which is the onus of this study. Since reasoning is carried on in language, the
analysis of inference depends on an analysis of the statements that figure as premises and
conclusion.
ENDNOTES
1. G. P. Baker and P.M.S. Hacker, Wittgenstein: Rules, Grammar and Necessity, vol. ii
(West Sussex: Blackwell Publishers Ltd, 2009), 20.
2. David G. Stern, Philosophical Investigation: An Introduction (New York: Cambridge
University Press, 2004), 13.
3. Stern, Philosophical Investigation: An Introduction, 13.
4. Samuel E. Stumpf, Philosophy: History and Problems (New York: McGraw-Hill
Higher Education, 2003), 39.
5. Plato, ed. The Republic, Desmond Lee (London: Penguin Classics, 1974), 342.
6. Plato, The Republic, trans. G.M.A. Grube. (Indianapolis: Hackett Publishing
Company, 1974), 596.
7. Terence Irwin, Plato ‘s Ethics, (New York: Oxford University Press, 1995), 7.
8. Aristotle, Metaphysics, ed. David Ross (Mobi Classics Series, 2009), xiii 4.
9. Aristotle, Metaphysics, Book i 1.
10. Stumpf, Philosophy: History and Problems, 81.
11. Aristotle, (384-322 B.C.), http://www.muslimphilosophy.com/ipIrep/A022 (10 June
2012).
12. St. Augustine, The Confessions, trans. by R. S. Pine-Coffin, (London: Penguin books,
1961), book I section 8.
13. David C. Blair, “Language and Representation”, Annual Review of Information
Science and Technology 35 (1990): 14, http://www.deepblue.lib.umich.edu
14. St. Augustine, De Doctrina Christiana, http://en.wikipedia.org/wiki/De_doctrina_
christiana (accessed May 11, 2012).
15. Peter King, The Cambridge Companion to Anselm (CUP 2004), 2,
http://individual.utoronto.ca/pking/articles/Anselm_on_Langauge.CC.pdf
16. King, The Cambridge Companion to Anselm, 11.
17. Stumpf, Philosophy: History and Problems, 172.
18. Stumpf, Philosophy: History and Problems, 172.
19. Godfrey Ozumba, Introduction to Philosophy of Language (Ibadan: Hope
publications, 2004), 11.
20. William Occam, http://en.wikipedia.org/wiki/Occam’s_razor (15 May 2012).
21. Stumpf, Philosophy: History and Problems, 207.
22. Stumpf, Philosophy: History and Problems, 211.
23. John Locke, “An Essay Concerning Human Understanding”, in British Empirical
Philosophers (Book III), ed. A. J. Ayer & R. Winch (London: Routledge and
Kegan Paul,1985), 114.
24. Blair, Annual Review of Information Science and Technology, 20.
25. George Berkeley, Philosophical Commentaries, http://www.minerva.mic.ul.ie//vol
1/berkel.html, (assessed August 27, 2012).
26. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press,
1983), 26.
27. Jeremy Bentham, Of Laws in General, edited by H.L.A. Hart (London: Athlone
Press, 1970), 1.
28. Ozumba, Introduction to Philosophy of Language, 12.
29. Bertrand Russell, Stanford Encyclopaedia of Philosophy. http://plato.stanford.edu/
entries/Russell/, (assessed June10, 2012).
30. Stumpf, Philosophy: History and Problems, 425.
31. Rudolf Carnap, The Logical Structure of the World, trans. by R. George (Chicago:
Open Court Classics, 2003), paragraph 16.
32. Carnap, The Logical Structure of the World, para. 5.
33. Carnap, The Logical Structure of the World, para. 51.
CHAPTER THREE
WITTGENSTEIN’S CONCEPTION OF LANGUAGE
3.1 THE EARLY WITTGENSTEIN:
(Tractatus Logico-Philosophicus.)
Ludwig Josef Johann Wittgenstein was born on April 26, 1889 in Vienna, Austria, to
a wealthy industrial family, well-situated in intellectual and cultural Viennese circles. In 1908
he began his studies in aeronautical engineering at Manchester University where his interest
in the philosophy of pure mathematics led him to Frege. Upon Frege’s advice, in 1911 he
went to Cambridge to study with Bertrand Russell. Russell wrote, upon meeting
Wittgenstein: “An unknown German appeared ... obstinate and perverse, but I think not
stupid”1. Wittgenstein was personal in his habits and way of life, yet profoundly acute in his
philosophical sensitivity. During his years in Cambridge, from 1911 to 1913, Wittgenstein
conducted several conversations on philosophy and the foundations of logic with Russell,
with whom he had an emotional and intense relationship, as well as with Moore. He retreated
to isolation in Norway, for months in order to ponder these philosophical problems of logic
and to work out their solutions. In 1913 he returned to Austria and in 1914, at the start of
World War 1(1914-1918), joined the Austrian army. He was taken captive in 1917 and spent
the remaining months of the war at a prison camp. It was during the war that he wrote the
notes and drafts of his first important work, Tractatus Logico-Philosophicus known as the
Early Wittgenstein. After the war the book was published in German and translated into
English. Published in 1922, the Tractatus Logico-Philosophicus has been universally
admired. This work covers a vast range of topics ranging from the “nature of language; the
limits of what can be said; logic, ethics, and philosophy; causality and induction; self and the
will; death and the mystical; good and evil” 2.
The Early Wittgenstein has had a profound effect on philosophy since it was
published in 1922. The Tractatus is a work for which its author has stratospheric ambitions.
He claims in the preface of this work, to have found “on all essential points, the final solution
to the problems”3; thus, problems of philosophy. The Early Wittgenstein it must be noted
worked closely with Russell and shared his conviction that the use of mathematical logic held
great promise for an understanding of the world. Wittgenstein tried to spell out precisely what
a logically constructed language can and cannot be used to say. Its seven basic propositions
simply state that language, thought, and reality shares a common structure, fully expressible
in logical terms. The seven basic propositions are:
1. The world is all that is the case.
2. What is the case, a fact is the existence of states of affairs.
3. A logical picture of facts is a thought.
4. A thought is a proposition with a sense.
5. A proposition is a truth-function of elementary propositions. (An
elementary proposition is a truth function of itself.)
6. The general form of a truth-function is [p, E, N(E)]. This is the general
form of a proposition.
7. What we cannot speak about we must pass over in silence.4
In his Tractatus, he aimed at revealing the relationship between language and the
world; what can be said about it, and what can only be shown. Wittgenstein argues that
language has an underlying logical structure, a structure that provides the limits of what can
be said meaningfully, and therefore the limits of what can be thought. The limits of language,
for Wittgenstein, are the limits of philosophy. Much of philosophy involves attempts to say
what cannot be said thus, “what can be said at all can be said clearly, and what we cannot talk
about we must pass over in silence”5, he argues. Anything beyond that, religion, ethics,
aesthetics, the mystical, cannot be discussed. They are according to him, nonsensical. He
stresses further the need for a more distinct thought process, thus he wrote in the preface of
the Tractatus; “the aim of this book is to draw a limit to thought, or rather, not to thought, but
to the expression of thoughts: for in order to be able to draw a limit to thought, we should
have to find both sides of the limit thinkable (i.e. we should have to be able to think what
cannot be thought)” 6. Anything that can be thought at all, in so far as it is within the limits of
what can be thought, must as a matter of fact, be thinkable by both sides of the limit. It must
as a matter of fact be bipolar. Thus, from his Tractatus, “if the world had no substance, then
whether a proposition had sense would depend on whether another proposition was true”7.
More so, he asserted that in another paragraph that “a proposition must restrict reality to two
alternatives: yes or no”8. Also in his Lectures, “in order for a proposition to be capable of
being true, it must also be capable of being false” 9.
3.1.1 PICTURE THEORY
Continuing with the Picture Theory of language along the lines of Bertrand Russell’s
logical atomism, Wittgenstein stated that, “we picture facts to ourselves” 10
. A picture, he
says, is a model of the reality, and to the objects in the reality correspond the elements of the
picture; thus the picture itself is a fact. The fact that things have a certain relation to each
other is represented by the fact that in the picture, its elements have a certain relation to one
another. He stated that, “in the picture and the pictured, there must be something identical in
order that the one can be a picture of the other at all. What the picture must have in common
with reality in order to be able to represent it after its manner, rightly or falsely is its form of
representation” 11
. We speak of a logical picture of a reality when we wish to imply only so
much resemblance as is essential to its being a picture in any sense, that is to say, when we
wish to imply no more than identity of logical form. Wittgenstein maintains that everything
properly philosophical belongs to what can only be shown, to what is in common between a
fact and its logical picture. The result of philosophy he said is not a number of philosophical
propositions, but to make propositions clear. Thus;
philosophy aims at the logical clarification of thoughts. Philosophy is not a
body of doctrine but an activity. A philosophical work consists essentially
of elucidations. Philosophy does not result in ‘philosophical propositions’,
but rather in the clarification of propositions. Without philosophy thoughts
are, as it were, cloudy and indistinct: its task is to make them clear and to
give them sharp boundaries 12
His picture theory emphasizes that language is a true picture of reality. Just as a
picture has all things in common with what it pictures, so does language in relation to reality.
He says that what a picture has in common with what it pictures is the logical form. The
logical form is that unspoken, unexpressed relationship that exists between the picture
(language) and what it pictures (reality). The logical form is to stand outside language to be
able to picture it. A picture does not contain the picture of itself ; thus he asserted that “a
picture cannot, however, depict its pictorial form: it displays it”13
. His belief is that there is a
one to one correspondence of the elements that appear in language and the facts (or state of
affairs) which it pictures. Hence, “what a picture must have in common with reality, in order
to be able to depict it correctly or incorrectly in the way that it does, is its pictorial form… A
picture can depict any reality whose form it has. A spatial picture can depict anything spatial,
a coloured one anything coloured, etc”14
. He therefore implies that what cannot be pictured is
mystical and lacks the structure which agrees with the structure of language. Thus, they are
nonsensical and do not have any form of reality.
In talking about ideal language in the context of the picture theory, Wittgenstein
emphasizes that there already exists a logical order in the propositions of ordinary language,
for logic cannot give order where there is no pre-existing order and necessity. An ideal
language is for Wittgenstein, the language of logic. This he said because in logic, there exist
rules which are logical premise that must be strictly adhered to in order to arrive at a logical
meaning. Philosophers, then, have the task of presenting the logic of our language clearly.
This will not solve important problems but it will show that some things that we take to be
important problems are really not problems at all. The Tractatus presents itself as a key for
untying series of knots both profound and highly technical. In doing this, he tried to show a
means of identifying these problems thus;
most of the propositions and questions to be found in philosophical works
are not false but nonsensical. Consequently we cannot give any answer to
questions of this kind, but can only point out that they are nonsensical.
Most of the propositions and questions of philosophers arise from our
failure to understand the logic of our language. (They belong to the same
class as the question whether the good is more or less identical than the
beautiful.) And it is not surprising that the deepest problems are in fact not
problems at all 15
.
If the propositions of the Tractatus are nonsensical then they surely cannot put
forward the picture theory of meaning, or any other theory. Nonsense is nonsense. However,
this is not to say that the Tractatus itself is without value. Wittgenstein’s aim seems to have
been to show up as nonsense the things that philosophers (himself included) are tempted to
say. Philosophical theories, he suggests, are attempts to answer questions that are not really
questions at all (they are nonsense), or to solve problems that are not really problems. In
presenting how a proposition could be meaningful, we are presented with a slight
reconstruction of Frege’s conception of a proposition, thus;
Frege says that any legitimately constructed proposition must have a
sense. And I say that any possible proposition is legitimately constructed,
and, if it has no sense, that can only be because we have failed to give a
meaning to some of its constituents. (Even if we think that we have done
so.) Thus the reason why ‘Socrates is identical’ says nothing is that, we
have not given any adjectival meaning to the word ‘identical’ 16
.
The reason why ‘Socrates is identical’ means nothing is that there is no singular property
called ‘identical’. The proposition is nonsensical because we have failed to give meaning to
the adjective ‘identical’ qualifying the noun, Socrates. To get ourselves rid of such nonsense,
the logic of our language must be sound.
3.2 THE LATER WITTGENSTEIN:
(Philosophical Investigations)
Upon his return to civilian life after the war, Wittgenstein gave away the large fortune
he had inherited from his father, and lived a frugal and simple life. Feeling that he could
contribute nothing more to philosophy after publication of Tractatus, he searched for a new
vocation, first teaching in elementary school in Austria for several years, then returning to
gardening and architecture. In 1929, he felt that once again he could do creative work in
philosophy. He returned to Cambridge where he resumed his philosophical vocation, after
having been exposed to discussions on the philosophy of mathematics and science with
members of the Vienna Circle. His conception of philosophy and its problems underwent
dramatic changes that are recorded in several volumes of his conversations, lecture notes, and
letters during his first year in Cambridge. Through his lecture notes and the wide circulation
of notes taken by his students, he gradually came to exert a powerful influence on
philosophical thought throughout the English speaking world. In 1936 he began his second
major work, Philosophical Investigations known as the ‘Later Wittgenstein’. Few years later,
around 1945, he prepared the final manuscript of the Philosophical Investigations, but at the
last minute, withdrew it from publication, and only authorized its posthumous publication.
For a few more years he continued his philosophical work, which is marked by a rich
development. He travelled during this period to the United States and Ireland, and returned to
Cambridge, where he was diagnosed with cancer. Legend has it that, at his death in 1951,
April 29th, his last words were “Tell them I’ve had a wonderful life” 17
.
Most of his thoughts in his early work are seen in a more broadened light in his later
work the Philosophical Investigations. Thus, this and subsequent sections will possess traits
of the early Wittgenstein in order to get a clearer picture of what is meant to say.
Four years ago I had occasion to re-read my first book (the Tractatus
Logico-Philosophicus) and to explain its ideas to someone. It suddenly
seemed to me that I should publish those old thoughts and the new ones
together: that the latter could be seen in the right light only by contrast
with and against the background of my old way of thinking 18
.
The Philosophical Investigations began with a quotation from St. Augustine’s
Confessions where St. Augustine recounted his learning of language as a child from the
gestures of people around him, through the ostensive act of pointing to an object and always
making similar sound (i.e. naming the object). By continuous observation, he began arranging
the pieces of words, sounds, gestures, facial expressions etc, which later cumulated to his
understanding and speaking of language. Three things mindful of note in Wittgenstein’s
philosophy are his ideas of rule-following, language-games and forms of life. Thus, towing
the lane of Bertrand Russell on logical atomism, Wittgenstein stated that in a logically correct
symbolism, there will always be a certain fundamental identity of structure between a fact
and the symbol for it. It is the task of the philosopher to discover this fundamental identity of
structure between a fact and the language which is the symbol of the fact. But this task is not
possible to accomplish without a logically perfect language. He therefore considers it the
primary task of a philosopher to devise a logically perfect language, a language that will be
able to accord to a rule. Thus, the term language might necessarily mean many things to
different people, but in the context of this writing, Wittgenstein’s conception of language
may vary. Thus, in his Philosophical Investigation, he posits that in philosophy, many
problems abound due to our language usage and this have created rooms for various many
setbacks in the pursuit of knowledge. Thus for him, “philosophical problems arise when
language goes on holiday”19
. For language to go on holiday entails a wrong application of the
rules of such language in a particular language-game. Still on same carriage, he stated that “to
imagine a language means to imagine a form of life”20
. Wittgenstein uses the phrase ‘form of
life’ to connote the sociological, historical, linguistic, physiological, and behavioural
determinants that comprise the matrix within which a given language has meaning.
Following Russellian analytical intuition and inclinations, Wittgenstein set off to give
depth and breadth to his convictions on how this problem of language could be settled and
presented a proposal on how to arrive at an ideal language, which will take care of the pitfalls
of ordinary language. Making reference to the question posed by Socrates to Theaetetus on
the meaning of knowledge, Wittgenstein would answer in the affirmative to the last question
asked by Socrates, i.e., if he (Socrates) was talking nonsense on the meaning of knowledge.
Thus, in answering the question; what is knowledge, Theaetetus answered in varied forms by
telling Socrates of what one can possibly have knowledge of, but Socrates refuted his answer
emphasizing that “we want to know what knowledge itself is”21
. Wittgenstein emphatically
rejected systematic approaches to understanding language and knowledge. His likely answer
to the Socratic question about the nature of knowledge is that; “it has no nature, no essence,
and so it is a mistake to think one can give a single systematic answer”22
. In the Philosophical
Investigations, one of the principal reasons for Wittgenstein’s opposition to systematic
philosophical theorizing is that our use of language, our grasp of its meaning, depends on a
background of common behaviour and shared practices, not on agreement in opinions but in
‘form of life’ 23
. The Philosophical Investigations is an extended defence of Theaetetus’
initial answer. For him, the best we can do in answering questions about the essence of a
word such as ‘knowledge’ is to give examples with the aim of showing that Socrates is
talking nonsense, and so bring words from their metaphysical standpoint to their everyday
use. To do so, is to play a language game and to play a language game entails following
certain rules owing to one’s disposition on a given situation and in a given context. More so,
following of rules itself, entails being attentive to the form of life wherein one occupies. For
if this is done, our understanding and articulation of concepts becomes clearer.
3.2.1 WITTGENSTEIN ON LANGUAGE-GAMES AND RULE-FOLLOWING
The foremost objective of the later Wittgenstein is introduced in the first aphorism
where Wittgenstein quotes St. Augustine discussing how words are directly associated with
mental images in the subject's mind. The Philosophical Investigations questions Augustinian
conception of language, where words are seen as representation of reality. Wittgenstein
believes that this misconception stems from the fact that words resemble each other a lot.
Because of that, we fail to notice how different they actually are in the way we use them.
Wittgenstein builds up his criticism through the use of a methodology he refers to as
language-games. Language-games are imaginary, primitive languages, which the philosopher
can use to study different aspects of language. They consist “of language and the actions into
which it is woven”24
. Thus, we are presented with the first example of language-game as
introduced in the Philosophical Investigations:
The language is meant to serve for communication between a builder A
and an assistant B. A is building with building-stones: there are blocks,
pillars, slabs and beams. B has to pass the stones, in the order in which A
needs them. For this purpose they use a language consisting of the words
“block”, “pillar”, “slab”, “beam”. A calls them out; B brings the stone
which he has learnt to bring at such and such a call 25
.
Those language-games are used by Wittgenstein as counter-examples to the
Augustinian conception of language. For Wittgenstein, language is not a representation of the
world; it is more like an activity woven into the fabric of daily life. As he puts it: “to imagine
a language means to imagine a form of life”26
. The first notion that Wittgenstein sets to break
down is that of ostensive definition. In the Augustinian view, names could be learned by
pointing and naming. Although that simple idea seems logical and straightforward,
Wittgenstein shows us that it is not that simple. Imagine someone speaking a foreign
language, pointing to an object while saying a word thus; “someone coming into a strange
country will sometimes learn the language of the inhabitants from ostensive definitions that
they give him; and he will often have to guess the meaning of these definitions; and will
guess sometimes right, sometimes wrong” 27
. What does that mean? He could be naming the
object he's pointing to, but he could also be saying “look”, or saying your name, etc. Thus the
question; can we really learn those words by pointing and naming? We begin to see that some
foreknowledge is necessary for understanding. This ‘foreknowledge’ could also be referred to
as acquaintance. Thus, an acquaintance with the word or object is required for a proper
understanding. In On Certainty, Wittgenstein stated that “a meaning of a word is a kind of
employment of it. For it is what we learn when the word is incorporated into our language”28
.
He further claimed in his Investigations that words derive meaning from their use in language
games, that words by themselves have no intrinsic meaning, thus “the meaning of a word is
its use in the language”29
. We need to know the role that ‘table’ will play in our language
game. Thus, in his Lectures, he said that “sometimes we introduce a sentence into a language
without realizing that we have to show rules for its use”30
. By implication, Wittgenstein
demands that we know what role sentences or numbers play in the language, but what is this
prior idea? Wittgenstein discusses this by analogy with the game of chess. Thus, telling the
chess player, ‘this is the king,’ will only tell him anything if he already knows the rules of the
game. He goes on to ask how we might teach someone the game if he did not already
understand what a playing piece was. In order for an understanding of ‘this is the king’ be
gained, an acquaintance with what chess is, becomes imperative. The rules of the game and
the meaning of, ‘this is the king,’ have to co-exist; we cannot have one without the other. The
rules do not precede the meaning and the meaning does not precede the rules. The meaning
and the rules are so deeply intertwined as to be inseparable. We now see why the ‘pointing
and naming’ cannot be the sole basis for learning language as Augustine described.
Furthermore, there are public criteria for someone’s following a rule, applying a
technique, using signs and symbols, and whether someone is following a rule must be
determinable, in appropriate circumstances, by reference to their behaviour; hence rule-
following, for Wittgenstein, is a form of activity; a regularity perceived as a uniformity, and
conceived as a norm. He stated thus: “this was our paradox: no course of action could be
determined by a rule, because every course of action can be made to accord with the rule” 31
.
In other words, clarity is something we bestow on statements within a context, and not
something that statements bestows upon us. A diagrammatic illustration in his Philosophical
Investigations of a two-faced picture, which he calls the Duck-Rabbit, illustrates how we
bestow clarity on statements. Wittgenstein notes that there may be certain people who have
always seen this figure as say, a rabbit, and have never seen it in any other way. For them, the
figure would only represent a. rabbit and only a rabbit. He observes further that there could
even be people who are ‘blind’ to the possibility of seeing the figure as a duck despite having
had the figure’s ambiguity pointed out to them. This however portends to show how meaning
is derived from a statement used in different context by following different rules at different
stages.
On the application of rules, Wittgenstein says that rules are not to be applied in a rigid
way. His explanation is that in applying a rule, there must be a room for acceptable
innovations or amplitude of liberty to use our dexterity, finesse and expertise in applying the
rules. Thus Wittgenstein asserts: “don’t always think that you read off what you say from the
facts; that you portray these in words according to rules. For even so you would have to apply
the rule in the particular case without guidance”32
. In another paragraph, he says; “the
meaning of brackets lies in the technique of applying them” 33
. This view however raised the
question that if rules can be applied differently, that meaning will be affected. Wittgenstein
stated that the liberty is not that of ‘anything goes’, but that moderated by acceptable limits
and within specified standards. Thus if anything goes, there is no following of a rule at all.
“Whatever I do can, on some interpretation, be brought into accord with the rule” 34
. In
applying rules correctly, he says; “what one acquires here is not a technique; one learns
correct judgments. There are also rules, but they do not form a system, and only experienced
people can apply them right” 35
. Wittgenstein however poses a question on rule following on
whether it is possible to follow a rule in private language? His stance was that we cannot
follow a rule in a private language because rule following itself implies possibility of being
wrong. But in private rule-following, there is no possibility of being wrong because there are
no independently objective criteria for ascertaining in the mind of the individual whether the
rules are correctly followed. He therefore concludes that following a rule is a public thing not
private.
3.2.2 THE PRIVATE LANGUAGE ARGUMENT
The private language argument is associated with the question of whether private
language is possible. But, what is it that necessitates this question? Wittgenstein in answering
this question stated that it was necessitated by the view that since our meanings are products
of sensations, which are private, then there is private meaning and, hence, then there is
private language. This means that no two speakers of the same language can be perfectly sure
that they mean the same thing when using exactly the same string of words. Meaning is
linked with sensations which lodge in the private consciousness of the speakers. This was
seen as a worrisome philosophical problem.
Wittgenstein, who in his Philosophical Investigations made famous the private
language thesis, explained that the words of a language are to refer to what can be known
only to the speaker; to his immediate, private, sensations. So another cannot understand the
language. Here, what Wittgenstein meant by private language is that kind of language that is
conceived as necessarily comprehensible only to its single originator because the things
which define its vocabulary are necessarily inaccessible to others. Wittgenstein goes on after
presenting the private language thesis to argue that there cannot be such a language because it
lacks an objective force.
The private language argument is of central importance to debates about the nature of
language. One compelling theory about language is that language maps words to ideas,
concepts or representations in each person’s mind. On this account, the concepts in my head
are distinct from the concepts in your head. But I can match my concepts to a word in our
common language, and then speak the word. You then match the word to a concept in your
mind. So our concepts in effect form a private language which we translate into our common
language and so share. Wittgenstein’s argument seeks to show that this sort of account is
incoherent. If the idea of a private language is incoherent, then it would follow that all
language is essentially public. Hence, language is at its core a social phenomenon. The
private language being considered is thus not simply a language ‘in fact’ understood by one
person, but a language that ‘in principle’ can only be understood by one person. Wittgenstein
argues that the idea of a private language is nonsensical and incoherent because it is a
violation of grammar. Wittgenstein goes on to argue that there are two senses of ‘private’
which a philosopher might have in mind in suggesting that sensations are private, and that
sensations as they are talked about in natural languages are in fact private. Thus;
How do words refer to sensations? There doesn’t seem to
be any problem here; don’t we talk about sensations every
day, and give them names? But how is the connexion
between the name and the thing named set up? This
question is the same as: how does a human being learn the
meaning of the names of sensations? of the word “pain” for
example. Here is one possibility: words are connected with
the primitive, the natural, expressions of the sensation and
used in their place. A child has hurt himself and he cries;
and then adults talk to him and teach him exclamations and,
later, sentences. They teach the child new pain-behaviour.
“So you are saying that the word ‘pain’ really means
crying?” On the contrary: the verbal expression of pain
replaces crying and does not describe it. 36
Wittgenstein in the preceding paragraphs, asks in what sense are our sensations
private? Can any other know whether I am really in pain? He summed up by saying that if
another could however describe my state of pain, then it would be nonsensical because my
state can only be known to me. Consequently, he furthered to the question whether there
could be a private language at all?
Now, what about the language which describes my inner experiences and
which only I myself can understand? How do I use words to stand for my
sensations? As we ordinarily do? Then are my words for sensations tied up
with my natural expressions of sensation? In that case my language is not
a ‘private’ one. Someone else might understand it as well as me. But
suppose I didn’t have any natural expression for the sensation, but only
had the sensation? And now I simply associate names with sensations and
use these names in descriptions. 37
In attending to these questions, Wittgenstein stated that language can only be understood
from the point of view of language-games and, like every game, is guided by and known by
its rules. In his Investigations, he presented a use version of language where words are seen
as tools in a tool-box capable of being put to different uses, however, in line with acceptable
rules.
Consequently, Wittgenstein reflected on the difference between objective and
subjective understanding, and raised the question of whether an unshared language can still
be called ‘a language’ and whether its sounds and signs can still be deemed a ‘toolbox’ for
private use. To which he replied yes, as long as the speaker plays language-games with
himself. He thus posited an example in his Manuscripts in explaining this:
Just think of a Robinson Crusoe who employs signs for his own private
use. Imagine that you watch him doing so (without him seeing you). So
you see how, in various circumstances, he carves lines on wood, utters
sounds, and so forth. This is indeed a case of using signs, but only if one
can detect a certain regularity. 38
Here, Wittgenstein distinguishes between a private language which someone speaks
only to
himself and an essentially private language. The former is like the one Robinson had on his
desert island in which he was able to talk to himself. Had someone heard him and observed
him, he would have been able to learn Robinson’s language; for the meanings of the words
are apparent in Robinson’s behaviour. Thus, “a desert islander speaks only to himself. How
does he signify his sensations (or experiences)? If he does as we do, that is; if his sensation
words are bound up with his natural expressions of sensation, then of course, his language is
not essentially private”39
. The idea of a private language, a language that only one person
speaks, no matter how he acquired the requisite verbal skills is for Wittgenstein,
unobjectionable. Such a language would, to be sure, involve private unshared techniques,
practices, customs and usages. But, of course, none of these are in principle private.
Conclusively on private language, Wittgenstein has it that there is no such thing as a
private language that names and deals with private objects such as pain. When I say, “1 have
pain”, I am not naming a private object with a word belonging to a private language. I am
doing something else entirely. In a sense, Wittgenstein’s claim is that language more or less
belongs to our objective third person world. There is no such thing as a private language, no
such thing as an exclusively “first person language” that deals with or operates in the realm of
naming my private objects such as my pain.
His argument is that language is only possible as a social instrument for
communication. This means that a pre-social being, a Robinson Crusoe, cannot formulate a
language, and in fact, does not need one. Language presupposes the following of rules. An
individual in a world of his own will not be able to set up public criteria for differentiating
between a correct and incorrect use of words. In doing this, he will need to fall back to either
memory, instinct or his consciousness which are all private and subjective. What is private
and subjective cannot correct itself, since what it produces is only the option open to it.
Instinct and consciousness cannot exercise an objective judge of themselves. It is indeed not
only illogical, ridiculous, irrational, unfounded, and absurd, but nonsensical for an individual
to in fact, have a private language. We only conceive of the possibility because we are
already in a society where language is used. To speak to oneself as in soliloquy is madness
and to speak into the air is worse than madness. On his remarks, Wittgenstein declares: “if
language is to be a means of communication, there must be agreement not only in definitions
but also (queer as this may sound) in judgments. This seems to abolish logic, but does not do
so” 40
.
ENDNOTES
1. Ray Monk, Ludwig Wittgenstein: The Duty of Genius (New York: Macmillan,
1990), 3 8f.
2. Alice Ambrose, Wittgenstein ‘s Lectures: 1932-1935 (New York: Prometheus
Books, 1971), Ix.
3. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan
Paul Ltd, 1922), P. 1.
4. Wittgenstein, Tractatus Logico-Philosophicus, 1.
5. Wittgenstein, Tractatus Logico-Philosophicus, 1.
6. Wittgenstein, Tractatus Logico-Philosophicus, 1.
7. Wittgenstein, Tractatus Logico-Philosophicus, para. 2.0211.
8. Wittgenstein, Tractatus Logico-Philosophicus, para. 4.023
9. Ludwig Wittgenstein, Notebooks 1914-1916. G.E.M. Anscombe trans., 2 edition
(London, Basil Blackwell Ltd. 1984) P. 55e.
10. Wittgenstein, Tractatus Logico-Philosophicus, para 3.
11. Wittgenstein, Tractatus Logico-Philosophicus, para. 2.17.
12. Wittgenstein, Tractatus Logico-Philosophicus, para. 4.112.
13. Wittgenstein, Tractatus Logico-Philosophicus, para 2.172
14. Wittgenstein, Tractatus Logico-Philosophicus, para 2.16
15. Wittgenstein, Tractatus Logico-Philosophicus, para 4.003
16. Wittgenstein, Tractatus Logico-Philosophicus, para 5.4733
17. Monk, Ludwig Wittgenstein: The Duty of Genius, 579.
18. Ludwig Wittgenstein, ed. Philosophical Investigations, Trans. by G. E. M. Anscombe
(London: Basil Blackwell Ltd, 1958), viii
19. Wittgenstein, ed. Philosophical Investigations, para. 19.
20. Wittgenstein, ed. Philosophical Investigations, para. 19.
21. Wittgenstein, Tractatus Logico-Philosophicus, 1.
22. David G. Stern, Philosophical Investigations: An Introduction (New York: Cambridge
University Press, 2004), 14.
23. Wittgenstein, ed. Philosophical Investigations, 241.
24. Wittgenstein, Philosophical Investigations, para. 7.
25. Wittgenstein, Philosophical Investigations, para. 2.
26. Wittgenstein, Philosophical Investigations, para. 19.
27. Wittgenstein, Philosophical Investigations, para. 32.
28. Ludwig Wittgenstein, ed. On Certainty, G. E. M. Anscombe and Denis Paul (London:
Harper Torchbooks, 1972), 1 Ge.
29. Wittgenstein, Philosophical Investigations, para. 43
30. Wittgenstein, Notebooks 1914-1916, 19.
31. Wittgenstein, Philosophical Investigations, para. 201
32. Wittgenstein, Philosophical Investigations, para. 292.
33. Wittgenstein, Philosophical Investigations, para. 557.
34. Wittgenstein, Philosophical Investigations, para. 198.
35. Wittgenstein, Philosophical Investigations, 227.
36. Wittgenstein, Philosophical investigations, para. 244.
37. Wittgenstein, Philosophical Investigations, 256.
38. G. P. Baker and P.MS. Hacker, Wittgenstein: Rules, Grammar and Necessity, vol. ii
(West Sussex: Blackwell Publishers Ltd. 2009), 161.
39. Baker & Hacker, Wittgenstein: Rules, Grammar and Necessity, 161.
40. Wittgenstein, Philosophical Investigations, para. 242.
CHAPTER FOUR
IMPLICATIONS OF WITTGENSTEIN’S CONCEPTION OF LANGUAGE TO
JURISPRUDENCE
4.1 RELATIONSHIP BETWEEN LANGUAGE AND JURISPRUDENCE
Having made explicit Wittgenstein’s conception of language, this chapter assesses
aptly its implications to Jurisprudence. Jurisprudence, as a theory of law, has its base of
operation within the study of the philosophy of law, and therefore shares with philosophy
certain traditional methods of inquiry and investigative priorities. The term ‘jurisprudence’
tends to connote an enterprise having its operational base within the legal academy, an
enterprise that has tended to concentrate on rationalizing and legitimizing whole departments
of legal doctrine. Etymologically, the term ‘Jurisprudence’ is coined from two Latin words
‘juris’ meaning law and ‘prudens’ meaning science. Thus from its etymology, it is defined as
the science of law. As philosophers, on daily basis seek to unravel the folders of reality in the
search of a unifying concept, so are legal philosophers pre-occupied with the quest of
identifying and analysing the conceptual structure of all legal systems. In the pursuit of
identifying and analysing these conceptual structures, legal philosophers, according to Njoku;
“look for the normative aspect of law, that is, they do not just look at patterns of human
behaviour for laws are not in theory statements of facts, but are also rules or norms that
prescribe a course of conduct”1. This they do with the instrumentality of language.
Law is language. Not only language, but a very special kind of language, for law is an
attempt to structure the realities of human behaviour through the use of words. It is also
alleged that linguistic clarity focuses on thought and helps lawmakers and judges refine and
achieve their purposes; that it lets people know their rights and allows them to plan their
affairs with greater confidence about the legal consequences of their actions; that it is good
for popular democracy because it makes law’s contents more visible to the electorate; that it
loosens the odious stranglehold that a self-interested legal profession has on the ultimate
meaning of the public institutions that affect the lives of the people; and so forth.
Nevertheless, since legislators use language in making the law, lawyers use language in
interpreting the law, judges use language in dispensing and stating grounds of their decisions,
it presupposes that the burden of this chapter advertently lies in showcasing the implications
of the use of language in jurisprudence. This task shall be carried out using Wittgensteinian
conception of language.
4.2 JURISPRUDENCE AS AN INDEPENDENT FORM OF LIFE
It is a general understanding that language serves as a route to gaining knowledge in
different aspect of its use. This does not imply that our everyday assimilation and use of
language is perfect. Given the Wittgensteinian diagrammatic illustration of a duck-rabbit for
instance, we see how we bestow clarity on statements. This is however how jurists also assert
meaning in law given their form of life. People who are embedded in a particular form of life
will receive, interpret, and apply statements in accordance with the linguistic practices that
are typical of that form of life. This does not however negate variations in understanding.
Thus, the clarity or obscurity of a statement depends on the form of life in which it is
expressed. By ‘form of life’; which he calls ‘Lebensform’, Wittgenstein explained that “the
common behaviour of mankind is the system of reference by means of which we interpret an
unknown language”2. This is clearly a universalistic turn, recognizing that the use of
language is made possible by the human form of life. Observing though that this universalism
might be taken to an extreme, Wittgenstein reminds us that as philosophers “... we are not
doing natural science, nor yet natural history”3. The implication of this is that our use of
language, in as much as it evolves within a particular sphere of form of life, must accord with
a rule.
Wittgenstein notes that there may be certain people who have always seen this figure
as say, a rabbit, and have never seen it in any other way. For them, the figure would only
represent a rabbit and only a rabbit. He observes further that there could even be people who
are ‘blind’ to the possibility of seeing the figure as a duck despite having had the figure’s
ambiguity pointed out to them. Consequently, a legal formalist would accept as clear what he
immediately receives to be the sign’s meaning, and he does not pause to consider or think
about what makes this very phenomenon of receiving as clear as possible, thus according to
Catherine MacKinnon, “formalists of this type unthinkingly transform their own point of
view into the standard for point-of-viewlessness”4. Legal formalism is a theory that legal
rules stand separate from other social and political institutions. According to this theory,
“once lawmakers produce rules, judges apply them to the facts of a case without regard to
social interests and public policy”5.
As noted by Ezeanya in a philosophy journal; Logic, Philosophy and Human
Existence, “there is always a difference between the meaning of the actual words used in the
statute in question and the legal consequences and implications of the words”6, that was why
Ronald Dworkin in his Law’s Empire adviced that for participants in a linguistic practice to
understand one another: “means not just using the same dictionary, but sharing what
Wittgenstein called a form of life”7. Oftentimes, legal formalists, to an extent, have been
alleged to elevate to a level of dogma a particular reception of a legal sign that the receiver
and others who are like-minded do not doubt. They tend to follow the literal rule of law
which states that; “where the words used in a statute are plain and unambiguous, the court is
obliged to construe them in their ordinary grammatical sense even if such interpretation
would occasion absurdity or manifest injustice”8. This dogmatist belief not withstanding,
Wittgenstein pointed out that “how good a description is must be judged by how well it
achieves its end; and if a description makes people do the things you want them to do, it is a
successful description” 9. Nevertheless, “our use of words gives us an idea of very general
truths about the world”10
.
Upholding Wittgenstein’s purposive end comes the Mischief Rule. Unlike the literal
rule that has referential approach to interpretation of statutes, the mischief rule has a
purposive approach. Thus, “mischief rule does not restrict itself to the words used, but also
tries to interpret the general intention of the legislation or the purpose which the entire statute
is designed to achieve” 11
. The major advantage of the mischief rule is that it does not allow
anybody to escape justice under the cover of a seeming lapse in the wordings of a statute. If
for instance in trying to prevent cheating in examination, the law is that no student may stand
up from his seat once the examination starts without the permission of the supervisor, a
student is caught straightening his neck above the shoulder of another student on the seat in
front of him with the claim that he did not stand up, the mischief rule would identify
straightening of neck as part of the mischief the ban on standing up tries to arrest and correct
them accordingly. Thus, to a non expert in law, different rules that apply to different cases in
different situation may appear abysmal in-that, the understanding of legal concepts and laws,
are better appreciated within the form of life that has formed the lawyer who uses these laws
and statutes in presenting cases, the judge who uses these rules in stating grounds of
judgement and to the legislator, who makes these laws with the intent of addressing certain
challenges that experienced by the society.
4.3 THE RELEVANCE OF WITTGENSTEIN’S CONCEPTION OF LANGUAGE
TO JURISPRUDENCE
It is observed that inherent in jurisprudence lies a maze of interpretation bias
stemming from the views of most critics of the language of law. Thus in his work, The
Authority of Law, Raz tells us that, “one of the main stumbling blocks for legal positivists has
been the use of normative language, i.e. the very same terminology which is used in moral
discourse, in legal discourse”12
. Raz’s view is not quite different from many other theorists
that have seen loopholes in the legal language. Another similar view is that “legal language is
incoherent because the legal discourse was developed by lawyers deliberately in order to
impede other people’s understanding of the legal system”13
. To the non-expert in law, what
the courts do while interpreting statutes and addressing certain cases brought to them often
amounts to miscarriage of justice, especially when certain letters of the law are clear to the
understanding of the lay person whereas the judicial interpretation shows a different thing. In
that case, it is often wrongly said that lawyers are liars, and that the judiciary covers the truth
and makes justice elusive to the innocent people.
For these reasons, a proper examination needs to be made on the proper understanding
of our language forms. Flaws witnessed in our judgments emanate from the illogicalities
inherent in our ordinary language understanding. Thus, on the strength of Wittgenstein’s
conception, Gilbert Ryle was critical of ordinary language. He held that ordinary language
was both a source of philosophical mistakes and conceptual unclarity. However, he noted that
“if ordinary language is properly analysed, it is capable of yielding clearer understanding of
the world around us”14
. There is then a need for a more logical form of language in other to
extinguish and annihilate any form of interpretation bias from the realm of our language
enterprise. To achieve this, an imperative factor which must be considered is the
Wittgenstein’s language-game thesis which follows from his idea of rule-following. This is
so because in his rule-following thesis, he posited thus; “this was our paradox: no course of
action could be determined by a rule, because every course of action can be made out to
accord with the rule”15
. For one to participate in a language game, one needs to get
acquainted with the rules of the game as played within a form of life. The rules, it must be
noted, are not given separately, and they must be made in such a way that they will be
understood by the multitude of people it is made for. They are not restricted to specific
individuals. Thus, Hart in his Concept of Law made it clear that:
in any large group, general rules, standards, and principles must be the
main instrument of social control, and not particular directions given to
each individual separately. If it were not possible to communicate general
standards of conduct, which multitudes of individuals could understand,
without further direction, as requiring from them certain conduct when
occasion arose, nothing that we now recognize as law could exist 16
.
Thus, in other to make legal contents clearer, it ought not have a universalistic or objective
binding alone, but should also be geared towards gaining greater and insightful understanding
by the people it is made for. These rules need to be followed so as to get a balanced
understanding and appreciation of the game. Thus, if one is outside the form of life of the
game rules, one cannot however understand the tenets of the game and as such, will be unable
to understand and appreciate the game. Similarly, Njoku stressed further in his Studies in
Jurisprudence, in support of Hart’s notion that judges do not intrude their personal
preferences when choosing among alternatives in making decisions in hard cases, that:
“judges decide cases within the context of operation of rules in which multiple considerations
are taken on board before one adopts what is taken to be a good decision” 17
. The ‘context of
operation of rules’ is only what a Judge needs to ascertain a valid judgment. Outside of this
context, the decision of the judge becomes illusive.
Furthermore, Dennis Lloyd expounded the idea of Wittgenstein on rule when he
stated in The Idea of Law that, “a rule can hardly be said to be a rule at all unless it applies
generally to whatever persons or situations fall within it; and if the rules are not applied
impartially in accordance with their terms then there is really no system of rules at all”18
.
Thus, to say that language is rule-bound in Wittgenstein’s sense does not mean that there is a
book of rules somewhere that determines whether speakers are or are not in compliance.
Rather, we are the ones who find and articulate the rules while we are thinking
philosophically. By studying the way various group of people live and talk and reporting
honestly about the regularities in linguistic usage that we observe, we discover and describe
the linguistic rules of those group of people. This kind of regularity in people’s linguistic
behaviour is what Wittgenstein would refer to as a language-game which he defines as
“language and the actions into which it is woven”19
. As this definition of language-game
suggests, a regularity in the use of language necessarily clusters around Wittgenstein’s form
of life. Thus he articulates that “to imagine a language means to imagine a form of life”20
.
Undoubtedly, one could ask; how do we learn rules? How do we follow them? Are there
standards which decide if a rule is followed correctly? Are they in the mind, along with a
mental representation of the rule? Do we appeal to intuition for their application? Are they
socially and publicly taught and enforced? In a typical Wittgensteinian fashion, the very
formulation of the questions as legitimate questions, with coherent content, is put to test and
Wittgenstein is intent on freeing us from their bewitchment.
Significantly, Carnap in his book The Logical Structure of the World, insists on what
he referred to as the ‘constructional language’ stating that: “the basic language is the
language of logic because it is the most precise and least likely to suggest improper
interpretations”21
. In his Logical Structure of the External World, he listed three stages of
constructive interpretation:
1. A pre-interpretive stage in which a community identifies the relevant rules
and standards that applies to a given practice.
2. An interpretive stage in which the community settles on a justification for
the practice.
3. A post-interpretive stage in which individuals consider that justification to
determine for themselves what the practice actually requires. 22
This ‘Constructional Language’ of Carnap is what Dworkin would call the ‘conversational
interpretation’ and will also be found in Wittgenstein’s rule-following thesis. Conversational
interpretation, for instance, as explained by Dworkin, would prove a herculean task. In his
Law’s Empire, Dworkin explained that law is an interpretive practice in that lawyers and
judges, to identity the right principle to apply in a given case, must engage in a
“conversational interpretation”23
. By such engagement, he further explains that “judges and
lawyers seem to disagree very often about the law governing a case; they seem to disagree
even about the right texts to use”24
.
In his Essays in Jurisprudence, H.L.A. Hart stated that there are certain fundamental
concepts that the lawyer cannot hope to elucidate without entering the threatening jungle of
philosophical argument. Hart expresses the problem that arises from the fact that “though the
common use of these words is known, it is not understood; and it is not understood because
compared with most ordinary words, these legal words are in different ways anomalous”25
.
They are anomalous only to the ignorant section of the public who have failed or chose not to
acquaint themselves, with the language of law, as Wittgenstein advised in his Investigations.
They have also failed to heed to Dworkin’s advice when he counselled that for participants in
a linguistic practice to understand one another, means not just using the same dictionary, but
sharing what Wittgenstein called a form of life. Hart laments over the improper elucidation of
legal concepts by various theorists which have led to the propagation of needless theories.
Wittgenstein stressed emphatically in his Investigations that in the application of rules; “what
one acquires here is not a technique; one learns correct judgments. There are also rules, but
they do not form a system, and only experienced people can apply them right”26
. In the final
part of this assertion, ‘… only experienced people can apply them right’, Wittgenstein gives
room for expertise. Thus, following and the application of rules in jurisprudence rests on ones
good insight into the legal community. This way, the anomalies which Hart lamented over,
will be jettisoned from jurisprudence.
4.4 WITTGENSTENIAN PROJECTION ANALOGY AS A TOOL IN
JURISPRUDENCE
To say that the concept ‘law’ is itself lawful is like saying that the concept ‘red’ is
coloured red. Both ways of thinking and talking are confused. More generally, a great deal of
philosophical confusion, especially confusion about the problem of clarity and obscurity in
legal language stems from a failure to understand and appreciate the differences between
rules, propositions, and norms. These problems often arise as a result of our hasty rush into
areas where we did not pitch our tents thus resulting to illogicalities in interpretation. For
instance, given a metaphor of projection in as shown in Wittgenstein’s Lecture Notes, one
cannot infer or judge the nature of a given mathematical projection just by looking at a table
of geometry alone. Instead, one also needs to know the method of projection, and only with
this information in hand can one infer the nature of the given projection. Thus, it will be a
mathematical bias to ask whether a given projection is accurate without knowing the
techniques according to which they were produced, so too it is philosophically naive to ask
whether a given statement about the meaning of a legal norm is correct without knowing the
technique according to which it was produced and applied. In the Lecture Notes, Wittgenstein
makes use of the projection analogy to say that “the same thing happens when we depict
reality in our language in accordance with the subject-predicate form”27
. That is, just as you
will get nowhere by investigating what a particular projection means without knowing the
techniques according to which it was produced, so too you will spin your wheels hopelessly if
you ask what a given statement, legal or otherwise means without paying close attention to
the method according to which it is produced and applied. Thus, if two different judges from
two different backgrounds in the Nigerian Supreme Court were both to say; ‘due process of
law is an important value in our constitutional scheme,’ this does not imply that their methods
of getting to these words or their methods of applying them are the same. On the contrary,
just about every Nigerian lawyer knows that their ways of dealing with cases involving the
legal norm ‘due process of law’ are radically different. One might say that the two Justices
always project ‘due process of law’ according to different methods of projection despite the
fact that there are occasional congruencies in the shape of the resulting figures.
Lawyers and laypersons occupy different planes when they are trying to understand a
legal text. It should be noted that legal use of an expression may be very different from its
ordinary use. Thus, Wittgenstein would say that ‘meaning’ is relative to different forms of
life. I would add to this that the clarity or obscurity of a legal text is always clarity or
obscurity within a given speech community. One may ask, why? This is because different
rules are followed given different forms of life. Thus, when a lawyer reads a statute or
contract, the text is always received within the context of a form of life that has trained the
lawyer to be attentive to certain interpretive possibilities, certain remedial consequences, and
certain juridical risks and benefits of which the layperson that reads the same text has little if
any idea. This means that what is clear to the layperson about a plain-language statute such as
“No vehicles in the park” is clear in a different way to a lawyer. Likewise, what is obscure to
a lawyer about a given provision of, say, the tax code may also be obscure to a layperson in a
totally different way, for the lawyer knows where and how to look for an answer and the
layperson who is ill-acquainted or does not acquaint himself at all with such concepts, may
not.
For Wittgenstein, the word ‘meaning’ hangs closely together with the concept ‘form
of life’. For participants in a linguistic practice to understand one another, they must share in
a form of life as Wittgenstein posits. By implication, if one wants to talk and reason like a
lawyer; one should participate in the community or form of life of lawyers. This as well,
applies to all other spheres of discipline. Likewise, Akwanya wrote in his Language and
Habits of Thought that: “every linguistic community is a community of presuppositions about
the world and history, of shared habits of thought and perception. To belong to a language
group is to be held together in a distinctive network”28
. This is however a call for laypersons
to acquaint themselves with form of life that forms a lawyer in order to be attentive just like
the lawyers, to certain legal and juridical concepts. The most important sense of this
implication comes through plainly in the following passage from the Philosophical
Investigations: “so you are saying that human agreement decides what is true and what is
false? It is what human beings say that is true and false; and they agree in the language they
use. That is not agreement in opinions but in form of life”29
. To use and understand legal
language the same way that lawyers do, is to use it as they do, all the way down. It is to agree
in one’s behaviour and speech within their form of life, and not just to take notice of
something called a ‘meaning’. Thus, meaning, like rule, has reference to the context of usage.
Consequently, J. L. Austin explained in a listed format, the prerequisites for participating in a
given form of life. Thus;
A. 1 There must exist an accepted conventional procedure having a certain
conventional effect, that procedure to include the uttering of certain words
by certain persons in certain circumstances, and further,
A.2 The particular persons and circumstances in a given case must be
appropriate for the invocation of the
particular procedure invoked.
B.1 The procedure must be executed by all participants both correctly and
B.2 completely.
F. 1 Where, as often, the procedure is designed for use by persons having
certain thoughts or feelings, or for the inauguration of certain
consequential conduct on the part of any participant, then a person
participating in and so invoking the procedure must in fact have those
thoughts or feelings, and the participants must intend so to conduct
themselves, and further
F.2 must actually so conduct themselves subsequenly.30
Nevertheless, it should be noted also that in a given form of life, a sort of
incongruence often exist as the example given of two different judges from two different
backgrounds in the Nigerian Supreme Court on the ‘Rule of Law’. This incongruence arises
when there is disjointed interpretation or judgement. It is made right not outside the form of
life but within the form of life in which its language applies. Since meaning is relative to
different forms of life, so does their language and rules.
The contribution of Ludwig Wittgenstein to jurisprudence has allowed us to view law
in a more practical way. Wittgenstein gave a broader scope to law. As Cardozo writes,
Wittgenstein’s thesis plays an important role, because the
judges themselves live, breathe, and partake of the
atmosphere which gives meaning to legal words, the same
atmosphere in which the community lives and breathes.
Our judges are not monks or scientists.31
Here, Cardozo lays emphasis on Wittgenstein’s form of life. He recognises the fact that the
jurist has a particular form of life where he belongs. Thus, this differentiates our view on
language use. He allows us to see Law as a language with a vocabulary of its own, to be
learned and used just as any other language. The meanings of legal words, like the meanings
of words in any other language, depend upon their use in a particular context. When the
context changes, the meaning changes as well. Viewing law as a language from
Wittgenstein’s perspective allows us to see legal and constitutional change as a normal and
expected consequence of the way in which we use words. He frees legal words from the
tyranny of rigidly fixed meanings. Wittgenstein demands that we must not look for the
meanings of words in fixed definitions. Instead, he suggests, “let the use teach you the
meaning”32
. The logic of this is not in the consistent use of words across time, but in the use
of words in a manner appropriate to the context in which they appear.
ENDNOTES
1. Francis O. Njoku, Studies in Jurisprudence. a Fundamental Approach to the
Philosophy of Law, 2nd
Edition (Owerri: Claretian Publications. 2007), 8.
2. Ludwig Wittgenstein, ed. Philosophical Investigations, G. E. M. Anscombe (London:
Basil Blackwell Ltd, 1958), Para. 206.
3. Wittgenstein, ed. Philosophical Investigations, 230.
4. Louis Wolcher, How Legal Language Works, (Washington: Legal Left. 2006), 112.
5. Legal Information Institute, www.law.cornell.edu/wexllegal_formalism (assessed July
10, 2012.).
6. P. 0. Ezeanya, “Philosophy and Logic of Statutory Interpretation”. Logic, Philosophy
and Human Existence. 8 (2008): 90.
7. Ronald Dworkin, Law’s Empire (London: Harvard University Press, 1986), 63.
8. Ezeanya, “Philosophy and Logic of Statutory Interpretation”, 91.
9. Wolcher, How Legal Language Works, 123.
10. G. P. Baker and P.M.S. Hacker, Wittgenstein: Rules, Grammar and Necessity, vol. ii
(West Sussex: Blackwell Publishers Ltd. 2009), 340.
11. Ezeanya, “Philosophy and Logic of Statutory Interpretation”, 94.
12. Joseph Raz, The Authority Of Law: Essays On Law And Morality (New York:
Oxford University Press, 1979), 7.
13. Sol Azuelos Atias, “On the Incoherence of Legal Language to the General Public”,
Internaional Journal for the Semiotics of Law (New York: Spring Publishing
Company, 2011), 43.
14. Gerald Runkle, Theory and Practice: An Introduction to Philosophy (New York:
Holt, Rinehart and Winston, 1985), 557.
15. Wittgenstein, ed. Philosophical Investigations, Para. 201.
16. H.L.A. Hart, The Concept of Law (London: Oxford University Press, 1979), 121.
17. Francis 0. Njoku, Studies in Jurisprudence: A Fundamental Approach to the
Philosophy of Law, 33.
18. Dennis Lloyd, The Idea of Law (London: Penguin Books Ltd, 1991), 122.
19. Wittgenstein, ed. Philosophical Investigations, Para. 7.
20. Wittgenstein, ed. Philosophical Investigations, Para. 19.
21. Rudolf Camap, The Logical Structure of the World, Trans. R. George (Chicago:
Open Court Classics, 2003), 52.
22. Jesse Merriam, “Where do Constitutional Modalities Come From? Complexity
Theory and the Emergence of Intradoctrinalism”. The Journal Jurisprudence
Vol. 3 (Australia: Elias Clark Group, Melbourne, 2009), 195.
23. Ronald Dworkin, Law’s Empire, 63.
24. Ronald Dworkin, Law’s Empire, 4.
25. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press,
1983) 22.
26. Wittgenstein, Philosophical Investigations, 227.
27. Ludwig Wittgenstein, Notebooks 1914-1916. G.E.M. Anscombe trans., 2nd
edition
(London: Basil Blackwell Ltd, 1984), 55e.
28. Amechi Akwanya, Language and Habits of Thought, 2nd edition (Enugu: New
Generation Books), 2005, 75.
29. Wittgenstein, ed. Philosophical Investigations, Para. 241.
30. John L. Austin, How To Do Things With Words (Oxford: Clarendon Press, 1962), 15.
31. Daniel G. Stoup, “Law and Language: Cardozo ‘s Jurisprudence and Wittgenstein ‘s
Philosophy”. Valparaiso University Law Review, 363. http://scholar.valpo.edu
/vulr/vol 1 8/iss2/3 (assessed May 10, 2012).
32. Wittgenstein, ed. Philosophical Investigations, 212.
CHAPTER FIVE
EVALUATION AND CONCLUSION
In all sectors of human enterprise, language defines our nomenclature; language
defines our existence and being. One comes to understand the importance of philosophy of
language when one realize that verbal discussion is the laboratory in which philosophers put
their ideas to test. The task of the philosopher of language is that of trying to put in good
condition this all-important tool, inspecting it, repairing and improving it. Language is
essential to law in at least two ways. First, laws or legal norms cannot exist without the
ability to articulate or describe them in language. Secondly, language is an essential tool in
carrying out the business of law. There is, without any doubt, an extremely close relationship
between language and law. Thus, law is language, and law problems are language problems
because law problems are being addressed using the implements of language. Nature has
made it that men must coexist with his likes within the periphery of their community. Men do
not exist in vacuum. Their existence links them up to the activities of their immediate
community and environment. An environment or community of people which is characterised
as having acceptable mode(s) of communication inculcates its culture and language into its
members who in turn internalizes the language structure of their immediate community.
Insofar as the members of this community understands their communication signs and
symbols, which might be vague to those outside the bounds of the community, their language
stands as being coherent. This distinguishing factor is what Wittgenstein in his Philosophical
Investigations calls the form of life. Thus, Humphrey Tonkin in an article publication
Language and Society observed that, “ethnicity is tied to language loyalty: staying with a
language even when you might expect economic forces to turn you away from it. Language is
a principal vehicle of culture”1. Language as a communicative art between the speaker and
the hearer is very important if we are to live a meaningful life in an interactive milieu.
Without language, individual men will be no better than isolated Robinson Crusoes on islands
of their own. Men will be so near and yet so far from one another. It is with language that
men engage in discourses, buy and sell in the market of ideas. Without language knowledge
of all kinds will be impossible. There will be no expressible ideas, no knowledge, no science,
no technology and therefore no development in every sphere of human existence. Hence,
language is therefore the bedrock of human civilisation and development, and therefore
matters to jurisprudence because everything concerning the activity of man boils down to its
bearing to stated rules. Despite having these excellent qualities and other more, diverse
anomalies have been spotted by various critics of language especially, as it relates to
jurisprudence. These criticisms shall be addressed accordingly.
Thus, the quest for an ideal and a logically perfect language that will solve the
problems of ambiguity, vagueness, unclarity and imprecision, which would take care of the
shortcomings of ordinary language, would be seen as a rather superfluous attempt. Inasmuch
as Socrates, Plato, Locke and some others like Augustine, Anselm and Berkeley, had harped
on the need to scrutinize language to make it a perfect mirror of reality, the point remains that
language, in spite of the numerous attempts at its sanitisation, has remained an enigma and a
problem to philosophers and also to the layman who finds it unable to understand and
interpret a particular legal text. The problem of language has become a matter of the more
you look the more problem you see. To construct a comprehensive language that is totally
different from ordinary language will result in a language that is prolix and verbose. Meaning
will become a mirage if such happens. John Locke had, before Wittgenstein, decried the near
impossibility of having a name for every existent thing. The invention of general names and
words is to save us the costly attempt of giving every existent thing a name, and yet this is
what an ideal language necessitates.
The aim of Wittgenstein’s writing on language was to debug all unfiltered notion we
have about the world as we present in our language. He fought a relentless battle to purge all
absurdities inherent in our language usage. He was meticulous with his use of terms in his
two major works; Tractatus Logico-Philosophicus and Philosophical Investigations. In the
former, he lets us know in his preface that ‘the world is all that is the case’2. He knew that our
use of language includes basically, among other things, to paint a picture of the world in our
own specific and dynamic ways. He went on to assert that “the world is the totality of facts,
not of things”3. Clearly, the book addresses the central problems of philosophy which deal
with the world, thought and language, and presents a solution to these problems which is
grounded in logic and in the nature of representation. Accordingly in his Philosophical
Investigations, he debunked the early Wittgenstein saying that the meaning of word lies in the
context of its use. He also thought that philosophy serves as a therapy in curing us of all
linguistic bewitchment. This thought, however, gives room for a special scrutiny of the
language of law, and thus, to proffer answers to the questions of the critics of the language of
the law.
One of the major criticisms against the legal language came up in the early 1970s,
through a movement known as the Plain English Movement which rose against what they
termed ‘the incoherent nature of legal language’. The premise behind this movement was that
legal documents ought to be plainer and more comprehensible to the average person. A
statute being a law enacted by the legislature for instance, should be something an average
person can readily understand. In fact, they thought that requiring that all statutes be
understandable to the lay public is almost surely an unrealistic goal. This movement had it
that, as the world around us becomes ever more complex, statutes inevitably are becoming
longer, denser, more specialized and relative. Arguably, they stated thus:
many statutes such as those relating to bankruptcy, civil procedure and
evidence, corporations, public utilities, the structure of government, and
the military, are not directed to the general public at all, but are rather
addressed to a sub-community of experts…. Yet there are statutory areas
that are of intense interest to the public. Examples include the criminal
law, as well as laws relating to the family, divorce, community property,
inheritance, employment, civil rights, landlord-tenant relations, and
consumer protection. Surely ordinary citizens ought to be able to
understand the rights conferred and obligations imposed by such statutes.4
They further argued that in our Criminal Statute for instance, members of the public have a
right to a criminal code that they can understand. The author of these codes they said, ought
to draft a code of conduct that explains to the public, in plain language, what they can and
cannot do. The basic argument here is that the content of legal documents are not understood
by the general lay-public, but rather, are meant for the appreciation of jurists and other legal
experts alone.
In this regard, Wittgenstein in his Investigations asserted that: “to understand a
sentence means to understand a language. To understand a language means to be master of a
technique”5. Being a master of a technique requires among other things, an in-depth
understanding of the form of life that gives rise to such technique. It is just like learning the
rules of a game of chess. Without the proper understanding of the game, a chess player will
only be wasting his or her time, moving a chess piece aimlessly over the board surface. Thus,
for a chess-layperson to play a game of chess there is need for an acquaintance with the rules
of the game. The chess-layperson ought to be tutored on the necessary skills for the
understanding and the playing of a chess game. Likewise, it also applies to the understanding
of statutes, criminal law, laws relating to the family, divorce, community property,
inheritance, employment, civil rights, landlord-tenant relations, consumer protection and
legal language in general. Thus, re-emphasizing what Dworkin said in his Law’s Empire that,
for participants in a linguistic practice to understand one another: “means not just using the
same dictionary, but sharing what Wittgenstein called a form of life”6, this is however a call
for the critics of the language of law to get themselves well acquainted with the language of
law so as to be as attentive as the lawyers to certain legal concepts.
Wagner and Cacciaguidi-Fahy, also in challenging what seems to them as a lapse in
the language of jurisprudence contends that: “the purpose of legalese is to conceal rather than
to enhance our understanding of a legal system”7.Wagner stretching further on the technical
discourse of law posited that:
it is a discourse in which a wide variety of complex linguistic devices,
which are indispensable to a technical field, may ‘use’ or ‘abuse’ ordinary
language to convey the law’s specialized meanings. However, this
technical discourse of the law remains subject to the influence of ordinary
language in which it is deeply rooted.8
In a defense of the language of law, Thomas in an article publication, “The Legal
Imagination and Language: A Philosophical Criticism” stated that:
if legal language is technical, then that fact alone distinguishes it from
ordinary language. That distinction is usually accepted as one of the
advantages of legal language over the notoriously vague, ambiguous, and
loose ordinary language. A technical language, we think, is a finer, keener,
sharper instrument. Thus, we assume that one of the virtues of the
language of the law must be its precision.9
A technical language as posited by Thomas is known to be a finer, keener, and sharper
instrument for the construction and arrangement of words in technical discourses. Thus,
considering the language of mathematics, inasmuch as it is regarded as highly technical, we
see how precise and straightforward it is in bringing about solutions to its problems by an
attentive adherence to its technical and rigorous rules and formulas. Hence, only individuals
that have an acquaintance and share in the form of life which mathematicians share, can use
and appreciate these mathematical rules and formulas. Accordingly, Thomas further
remarked that: “the institution of the law is the frame of reference within which acts and
events in the world are treated and considered in legal terms. In addition, the law constitutes a
certain world”10
.
Further still, White in his work; The Legal Imagination: Studies in the Nature of
Legal Thought and Expression observes that:
one might say that technical languages are shorthand expressions for what
could easily be said in plain English, and that while one cannot say
everything in the languages of law or medicine, one can translate into
plain English everything that is said in a technical language. If this
statement appeals to you, imagine an appellate argument in a tax case
carried on in plain English. If it still appeals to you, write out some of the
argument.11
The suggested exercise by White can be started but cannot be completed. One discovers that
some of our concepts are embedded in the world of the law and make sense only within a
legal context. Outside the legal context, its meaning will be punctured and hence might be
deceitful to the lay-public it is meant for. That is why the Lawyers often argue that,
“important nuances would be lost if the law were stated in plain English. In addition, legal
language facilitates communication within the profession; it might be very time-consuming
the try to explain the entire law in fully understandable language”12
. Critics of legal language,
who saw the above defence as unsatisfactory, revolted against it. They thought then that if
lawyers argue that important nuances would be lost if the laws were stated in plain English,
on whose detriment would that be? What then is the essence of the Law if not to make vivid
and explicit that which is to guide the individual that shares in the forms of life of a
community? If legal language only facilitates communication within the profession, what
then is law? Should it be private or something of general relevance? Does it matter how time
consuming it might be in achieving its aim of intimating the public clearly on what ought to
be known and done?
Furthermore, Tiersma in an International Journal for the Semiotics of Law, explicitly
maintains that, as a matter of fact, “legal language is a type of language that is quite
unfamiliar to the general public”13
. This observation however was supported by Jackson in
whose terms lawyers form a semiotic group. In Jackson’s words, a semiotic group is “a group
of people who share a particular system of communication, this system being restricted to
themselves”14
. Jackson explains that people cannot belong to a semiotic group when they do
not understand the messages communicated within it and emphasize that; “although English
Law is communicated largely in English, most speakers of the English language are excluded
from the semiotic group of the law, since they cannot understand the particular register of the
language which the law uses”15
. Attending to this criticism, it holds that for one to understand
a particular register of the language which the law uses, one must be imbued in what
Wittgenstein calls the ‘form of life’ of law. White would say here that the language of the law
is, “a linguistically separate dialect, with a peculiar vocabulary and peculiar constructions”16
.
What this means is that each specialty is peculiar and thus has special language with which it
gets things worked out. But we must note that what distinguishes these languages emanates
from their specific forms of life. In his Tractatus, Wittgenstein, in showing the relationship
between a picture and what it depicts, tells us more on how a language, as a picture of reality,
depicts the form of life wherein it is used. Thus, “if a fact is to be a picture, it must have
something in common with what it depicts…. What a picture must have in common with
reality, in order to be able to depict it correctly or incorrectly in a way that it does, is its
pictorial form…. A picture can depict any reality whose form it has”17
. From the above
assertion, it could be said here that what the legal language must have in common with
reality, in order to be able to depict it correctly or incorrectly in a way that it does, is the form
of life of lawyers. So, the legal language here, seen as a picture, represents what it depicts
which is the law. Then, if a picture can depict any reality whose form it has, why then this
surge of criticisms against the language of law?
In Wolcher’s argument against the plain English movement, he asserted thus:
this argument comes down to being a call for laypersons to begin
participating with lawyers in the same form of life. But notice: such a call
would not be the same as just asking laypersons to talk to lawyers or to
talk like lawyers talk. Rather, it would essentially ask them to become
lawyers. For lawyers are the only kind of people who can use and
understand legal language in the same way that lawyers use and
understand it…. If those in the “Clarity” and “Plain Language”
movements really want legal language to be as clear to laypersons as it is
to lawyers, then laypersons would have to begin using legal language as
lawyers use it, they would have to begin writing legal briefs and opinion
letters instead of emails and poetry.18
ENDNOTES
1. Humphrey Tonkin, “Language and Society”, Occasional Papers from the American
Forum for Global Education (2003-2004), http://www.globaled.org.
2. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan
Paul Ltd, 1922), 1.
3. Wittgenstein, Tractatus Logico-Philosophicus, 1.
4. Peter Tiersma, The Plain English Language Movement. Http://www.languageand
law.org/ plainenglish. htm (assessed April 18, 2012).
5. Ludwig Wittgenstein, ed. Philosophical Investigations, G. E. M. Anscombe (London:
Basil Blackwell Ltd, 1958), paragraph 199.
6. Ronald Dworkin, Law’s Empire (London: Harvard University Press, 1986), 63.
7. Anne Wagner and Sophie Cacciaguidi-Fahy, The Chiaroscuro of Legal Language.
Obscurity and Clarity in the Law, Prospects, Challenges (England: Ashgate
Publishing, 2008), 6.
8. Anne Wagner, “Introduction: The Abuse of Language in Legal Discourse”,
International Journal for the Semiotics of Law 15 (2002): 323 -324.
9. Thomas Eisele, “The Legal Imagination and Language: A Philosophical Criticism”,
Faculty Articles and Other Publications (1975), Paper 28. http://scholarship.
law.uc.edu/ fac_pubs/28.
10. Eisele, “The Legal Imagination and Language: A Philosophical Criticism” (1975),
Paper 28.
11. James White, The Legal Imagination: Studies in the Nature of Legal Thought and
Expression (Boston: Mass, Little, Brown & Co. 1973), 36.
12. Tiersma, The Plain English Language Movement. (assessed April 18, 2012).
13. Sol Azuelos Atias, “On the Incoherence of Legal Language to the General Public”,
International Journal for the Semiotics of Law (New York: Spring Publishing
Company, 2011), 45.
14. Jackson Bernard., Semiotics and the problem of interpretation. Law, interpretation
and reality, essays in epistemology, hermeneutics, jurisprudence (1990) 84
-85.
15. Bernard, Semiotics and the problem of interpretation, 103.
16. White, The Legal Imagination: Studies in the Nature of Legal Thought and
Expression, 6.
17. Louis Wolcher, How Legal Language Works (Washington: Legal Left. 2006), 112.
18. Wittgenstein, Tractatus Logico-Philosophicus, para. 2.171.
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