Research Proposal

How am I able to obey a rule? if this is not a question about causes, then it is about the justification for my following the rule in the way I do. If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: This is simply what I do.1 What is the test for determining whether a legal rule has been followed? How do we justify the legal reasoning process specifically with reference to Wittgenstein's questions surrounding this matter as outlined in Philosophical Investigations? Wittgenstein, in his seminal work Philosophical Investigations coins the term language game, which is what, at its most basic level, more than almost any other discipline, is what the law can be boiled down to. He cleverly using the analogy of the near impossibility for us to come up with a definition of the word game that actually encompasses all varieties of game and couples this with the idea that, well, obviously we use the word all of the time and know exactly what it means. Legal reasoning often attempts to impose a meta-language over ordinary English, constructed with varying degrees of fluency, that obscures the ambiguous rules of the language game in favour of the use of ostensive definitions, arguments from authority or vague recourse to areas such as sociology that a judge may have no training in. How far should legal linguistic analysis go? How does legal rule-following function in any coherent and predictable manner? Using Ludwig Wittgenstein's late philosophy, which itself has been used by many legal scholars, we can see that attempts to ground legal reasoning are exceedingly difficult. There are many problems with legal reasoning based upon interpretation of language, particularly within the context of statutory and importantly, constitutional interpretation. There are many examples of these linguistic problems that occur in practice. for example, employment contracts principally rest on the idea that an employment contract exists if there is a significant amount of control of an employee's actions. Seeing as the exact nature of this control is not written into an employment contract it it determined based upon looking at the manner in which the contract is performed and determining if there were the amount of control deemed necessary. The contract is inextricably linked to its performance in such a case and thus the words written into the contract cannot give its meaning as an employment contract. The fact that such a complex paradox can exist when discussing something as commonplace as an employment contract indicates a fundamental problem with legal language and its operation. This essay will not deal with the results of this, the way in which language is used in a manipulative manner due to its essential groundlessness, but rather will tackle the way that the law is actually able to use language. I will therefore take as a presumption the idea that judges are trying to follow the law as closely as possible and that the myriad of ways in which this is done can show the inherent difficulties in using language, and the different techniques used in order to attempt to overcome this. Another example is in the area of constitutional interpretation, early Australian constitutional interpretation is fascinating partly because initial High Court justices such as Edmund Barton saw the composition of the court change and saw the constitution they had a hand in drafting used in ways contradictory to their actual intentions. Yet another example is the distinction in medical negligence claims between a claim for wrongful life and a parent's claim for wrongful birth. This is yet another example of this type of difficult linguistic distinction. The notion in contract law of good faith, whether this is implied or what it means if it is made explicit. The list of these sorts of definitional problems within law crosses all facets of law and is one of the most difficult
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questions to answer. Finkelstein in How to do things with Wittgenstein shows the various manners in which Wittgenstein's thoughts regarding the way that language creates meaning and critiques the idea that his philosophy is inherently sceptical. In analysing Wittgenstein's ideas concerning rule following and his thought experiments regarding them (which offer extremely valuable insights into the assumptions underlying legal reasoning), Finkelstein attempts to reject the manner in which previous thinkers have interpreted Wittgenstein as applied to the field of jurisprudence. His essential argument ends up being that peoples' scepticism about our ability to use language is unfounded and that we cannot think objectively enough about language to make such a claim to scepticism. Stroup in Law and Language discusses the failures of the correspondence theory of language the theory mentioned above that words can be defined ostensibly and puts in its place Wittgenstein's more complex contextual theory, essentially mounting an argument for legal realism as a kind of middle road, being simultaneously grounded by a language that is able to be mutated contextually. Patterson in Wittgenstein and Constitutional Theory looks at competing theories of constitutional interpretation and compares them to Wittgenstein's philosophical arguments. What I got from this is that essentially if we maintain that a constitution has a meaning, then there's no second order interpretation involved (this is contrasted with views such as that of Dworkin for example), a constitution is something that can be argued from using a certain grammar and vocabulary. Our collective interpretation of a constitution or other legal text is not based on interpretation of its meaning, because that is to presuppose a meaning (this is linked to the definition of employment alluded to above). If we aren't interpreting then what are we doing? Well we're likely essentially pretending to interpret (and ex post facto rationalising), despite having forgone conclusions, this argument is a form of the argument that legal interpretation is a constructed elucidation of an imagined reasoning process. To think of the law in such a way, as though we can apply different lenses to it and come up with different outcomes, until finally we find a clear lens that reveals the true meaning of the law is importantly divorced from the actuality of the reasoning process. Landers in Undermining Rule Scepticism makes a similar argument to Finkelstein, arguing that people such as Saul Kripke, who interprets Wittgenstein as having a solution to thesceptical paradox - that no one can ever know when or if they are following a rule or what rule they are following, are misreading Wittgenstein who is in fact saying that this is a false problem. Wittgenstein is a valuable philosopher to refer to within the context of jurisprudence in that these types of thought experiments and ways of viewing language are useful tools for allowing a judge or a person critiquing a judgement to determine their fundamental motivations. He is a difficult thinker to deal with because a lot of this argumentation seems obvious and childish in a way, it also seems moderately pointless to consistently break things down in this manner. Having said this, the stripping back of assumptions regarding logical reasoning is useful in examining political biases, arguments from authority and in attempting to strengthen the legal process by somewhat brutally ripping apart many of the assumptions inherent in legal reasoning and legal linguistic analysis.