Chapter

The Application (and Mis-Application) of Wittgenstein'S Rule-Following Considerations to Legal Theory

Brian Bix

in Law, Language, and Legal Determinacy

Published in print November 1995 | ISBN: 9780198260509
Published online March 2012 | e-ISBN: 9780191682100 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198260509.003.0003

Series: Clarendon Paperbacks

The Application (and Mis-Application) of Wittgenstein'S Rule-Following Considerations to Legal Theory

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Wittgenstein proposed to scrutinize problems arising out of inquiries into the normative nature of language, logic, and reasoning, particularly on standard practices that are misleadingly easy to comprehend. What is it about our rules that classify our responses as right or wrong? Legal indeterminacy theorists follow Wittgenstein's conclusion that the justification for the correct or wrong interpretation of the conceptual meaning is determined by the influential political and ideological consensus of the community. In contrast, Pears' discussion favours those opposing Wittgenstein: acknowledging gaps from language to the world. Proponents and opponents of radical indeterminacy have attempted to use Wittgenstein to support their stand, but the argument can only be as adequate as the limitations of rule-following considerations in understanding clear cases and hard cases.

Keywords: Wittgenstein; normative nature; standard practices; legal indeterminacy; consensus; rule-following; clear cases; hard cases

Chapter.  10607 words. 

Subjects: Jurisprudence and Philosophy of Law

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