Wittgenstein and legal determinacy

Thesis

In the jurisprudential literature, much attention has recently been given to the role of language within law, with various writers asserting that certain theories of meaning or theories of interpretation offer new insights into the nature of law. My survey of portions of this on-going debate will have two overlapping foci: the issue of legal determinacy and the application of Ludwig Wittgenstein's ideas to legal theory. In the context of a number of different discussions, I argue that a proper understanding of the nature of language and its role within law compels neither the conclusion that law is radically indeterminate nor the conclusion that law is completely determinate.

I disagree with the usual reading of H.L.A. Hart on "open texture", arguing instead that Hart's argument was as much about the proper way to apply legal rules as it was about the nature of language.

I offer a reading of Wittgenstein's rule-following considerations which differs from Saul Kripke's reading as well as from the reading some legal theorists have offered, and which I believe justifies only a modest view of the direct applicability of Wittgenstein to jurisprudence.

I argue that Ronald Dworkin's recent work leaves a number of unresolved questions regarding right-answer theories and that there are basic difficulties with his holistic-interpretative approach to law.

Finally, I discuss Wittgenstein's critique of platonism as part of an argument that Michael Moore's metaphysically realist approach to law offers no advantages compared to more conventional approaches.

Authors: Bix, B

• DOI: 10.5287/ora-9eak8exjp
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford