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Indeterminacy: Critical Notice: Law, Language and Legal Determinacy by Brian Bix*
Published online by Cambridge University Press: 09 June 2015
Extract
It is not easy to summarize what this book is about, except to say that it is an exploration of a variety of themes and a variety of authors on the role of language in the practice of law, the role of theories of language in legal theory, and how all this bears on “the problems of legal determinacy.” By the latter we are to understand problems having to do with whether the law always, almost always, or never provides uniquely correct answers to legal questions like “Does the Canadian Charter of Rights and Freedoms invalidate the Federal government’s ban on tobacco advertising?” or “Is this defendant guilty of defamatory libel?” The works of several authors are discussed, with emphasis placed on Wittgenstein, Friedrich Waismann, Herbert Hart, Ronald Dworkin, Michael Moore, and Lon Fuller. As with the writings of Wittgenstein, who serves as Bix’s philosophical inspiration, it is not always abundantly clear what the discussions all add up to. Nevertheless, it is possible to distil from Bix’s somewhat unfocused discussions the following central themes. These, as Bix himself notes, are linked by nothing stronger than “family resemblance.”
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- Critical Notice
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- Copyright © Canadian Journal of Law and Jurisprudence 1996
References
1. Law, Language and Legal Determinacy at 178. Unless otherwise indicated, all page references are to this text.
2. Ibid, at 1, quoting Wittgenstein, L. Philosophical Investigations, sec. 67 (New York: Macmillan, 1968).Google Scholar
3. Moore’s position is developed in a number of places including: “The Semantics of Judging” (1981) 151 S. Cal. L. Rev.; “A Natural Law Theory of Interpretation” (1985) 58 S. Cal. L. Rev. 277; “The Interpretive Turn in Modern Theory: A Turn for the Worse?” (1989) 41 Stan. L. Rev. 871. Brink’s views are developed principally in “Legal Theory, Legal Interpretation, and Judicial Review” (1988) 17 Phil. & Publ. Affairs 105 and “Semantics and Legal Interpretation (Further Thoughts)” (1989) II Can. J. of Law & Juris. 181.
4. Kripke’s views are developed in Wittgenstein on Rules and Private Language (Cambridge, MA: Harvard University Press, 1982).
5. Dworkin is famous (notorious?) for claiming that “Jurisprudence is the general part of adjudication, silent prologue to any decision at law” and that “no firm line divides jurisprudence from adjudication or any other aspect of legal practice.”(Law’s Empire, (Cambridge, MA: Harvard University Press, 1986) at 90). For an extensive critique of Dworkin’s collapse of the important distinction between legal practice and legal theory, see my Inclusive Legal Positivism, (Oxford: Clarendon Press, 1994) at Chs. 2 and 3. See also, Hart, H.L.A. The Concept of Law, 2nd edition (Oxford: Clarendon Press, 1994) at 239–44Google Scholar (Postscript). Interestingly enough, Bix seems at times to acknowledge the importance of not blurring the distinction, though his discussions do not always reflect that acknowledgement. At one point Bix observes that it “is too easy for theorists to project their activity on to the subject of their work: for example, to see legal interpretation as being abstract and philosophical, analogous to or constituted primarily by theories of legal interpretation. Legal interpretation cannot be fully understood unless its context of institutional processes, politics, and coercion is also considered”(3). I cannot agree more.
6. See the works by Moore and Brink cited above. Langille’s arguments are presented in “The Jurisprudence of Despair, Again” (1989) 23 U. of B. Colum. L. Rev. 549; “Political World” (1990) 3 Can. J. of Law & Juris. 139; and “Revolution Without Foundation: The Grammar of Scepticism and Law” (1988) 33 McGill L. J. 451. Dennis Patterson’s views are presented in, e.g., “Law’s Pragmatism: Law as Practice and Narrative” (1990) 76 Va. L. Rev. 937.
7. For a defence of this claim, and an attempt to link it to general theories about the nature of law, see my Inclusive Legal Positivism, ch. 8.
8. As Bix observes, Hart seemed to have fully appreciated this point. Take, for example, the question whether a skateboard is a vehicle and thus subject to a law prohibiting vehicles from the park. Hart repeatedly asks not simply whether a skateboard is a vehicle but whether it is a vehicle for the purposes of the rule. See Bix at 7 ff.
9. Hart, H.L.A. “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev., 593;CrossRefGoogle Scholar Fuller, Lon “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harv. L. Rev. 630.CrossRefGoogle Scholar
10. Supra note 1 at 8, quoting The Concept of Law at 121.
11. See The Concept of Law, ch. 7.
12. This is a complaint which Bix makes against others as well, most notably those who employ Wittgenstein’s reflections on meaning to derive jurisprudential conclusions. I will not address here the question whether Bix’s complaints against these theorists are valid.