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Published online by Cambridge University Press: 09 June 2015
The preconceived idea of crystalline purity can only be removed by turning our whole examination around. (One might say: the axis of reference of our examination must be rotated, but about the fixed point of our real need.)
Wittgenstein wrote nothing on legal theory or law, so there is no obvious textual basis on which to draw possible connections between Wittgenstein and legal theory. And Wittgenstein abhorred theorizing in philosophy. So the odds are slim that Wittgenstein would have accommodated himself or his work to similar activity in the law. Where does this leave us?
At sea, which is where we normally are in life and, thus, where Wittgenstein wants us to recognize ourselves as being when doing philosophy too. But theory can disguise this fact from us, as it also can make us think that we have unrivalled powers of knowledge and understanding and explanation. Wittgenstein’s criticism of theory, or the activity of theorizing, is meant to get us to see, and to acknowledge, our limits in this respect. But even though his terms and intent are mostly negative in tone and thrust, his criticism of theorizing has positive implications for how we should try to understand what we are doing and what we have done, including what we are doing and have done in the law. So, if understanding the law better is something that legal theory does or tries to do, and Wittgenstein’s later work can help us understand the law better, then Wittgenstein’s later philosophy is connected to the task set legal theory.
I appreciate Dennis Patterson’s invitation to contribute to this symposium. This article surfaces more material from my unpublished doctoral dissertation, Wittgenstein’s Normative Naturalism: The Point of His Practice (Department of Philosophy, University of Michigan, 1984), which I hope to publish in a substantially revised form. I continue to benefit from criticisms made by the members of my dissertation committee—Stephen L. White, Frithjof Bergmann, Ken Walton, and James Boyd White—and from research time and money granted me by the College of Law at Tennessee.
I dedicate this article to my daughter, Carolyn, who daily leads me to explore the necessities, and the rewards, of our shared lives.
1. Wittgenstein, L., Philosophical Investigations, G.E.M. Anscombe trans., (New York: Macmillan Co., 1968) 3d ed., §108a.Google Scholar All otherwise unidentified citations in the text are citations to this work. All emphases, oddities of punctuation, and British spellings in the quotations from Wittgenstein are in the original.
2. Searle, J., Speech Acts (Cambridge: Cambridge Univ. Press, 1969) at 3.CrossRefGoogle Scholar
3. Cavell, S., The Claim of Reason (Oxford: Clarendon Press, 1979) at 90.Google Scholar
4. I also study this buried or repressed knowledge in the law (and its relation to Wittgenstein’s later philosophy) in my article, “The Activity of Being a Lawyer: The Imaginative Pursuit of Implications and Possibilities”, (1987) 54 Tenn. L. Rev. 345, 350–351. And, in another article, I say more about how Wittgenstein, through his use of stories, tries to get us to reactivate such knowledge.Google Scholar See Eisele, , “Wittgenstein’s Instructive Narratives: Leaving the Lessons Latent”, (March/June, 1990) 40 J. Legal Educ. 77.Google Scholar
5. Michael Oakeshott well–expresses the holistic sense I am after:
[P]olitical education is not merely a matter of coming to understand a tradition, it is learning how to participate in a conversation: it is at once initiation into an inheritance in which we have a life interest, and the exploration of its intimations. There will always remain something of a mystery about how a tradition of political behaviour is learned, and perhaps the only certainty is that there is no point at which learning it can properly be said to begin. The politics of a community are not less individual (and not more so) than its language, and they are learned and practised in the same manner. We do not begin to learn our native language by learning the alphabet, or by learning its grammar; we do not begin by learning words, but words in use; we do not begin (as we begin in reading) with what is easy and go on to what is more difficult; we do not begin at school, but in the cradle; and what we say springs always from our manner of speaking. And this is true also of our political education;… .
Oakeshott, M., “Political Education”, in Rationalism in Politics and Other Essays (New York: Basic Books, 1962), at 129.Google Scholar
6. See text at 9–10, supra.
7. See also Eisele, , “The Activity of Being a Lawyer”, supra n. 4, at 352.Google Scholar
8. Keats, J., The Selected Letters of John Keats, Trilling, L. ed., (Garden City, N.Y.: Doubleday & Co., 1956), at 103.Google Scholar See also Eisele, , “Review Essay/Dworkin’s ‘Full Political Theory of Law’”, (Summer/Fall, 1988), 7 Crim. Just. Ethics 49, at 64–65.Google Scholar
9. See text at 6, supra.
10. Quoted in Moore, G.E., Principia Ethica (Cambridge: Cambridge Univ. Press, 1902), at ii.Google Scholar
11. I say more about Wittgenstein’s later philosophy and its negative application to legal theorizing, in my commentary, “Hegelian Vanity, Common Law Humility: On Legal Theory, Its Expression and Its Criticism”, (1989) 10 Cardozo L. Rev. 915, 925–947. It is equally important to me, however, to indicate the positive work that can be done from a Wittgensteinian perspective in trying to gain some overview of the law and our activities within it. I intend my remarks in the second section of this article to begin to meet this need.Google Scholar
12. Cavcll, S., “Knowing and Acknowledging”, in Must We Mean What We Say? (New York: Charles Scribner’s Sons, 1969), at 258.Google Scholar See also Eisele, , “Hegelian Vanity, Common Law Humility”, id, at 928 & n.47.Google Scholar
13. James, H., “The Art of Fiction”, in Partial Portraits (Ann Arbor: Univ. of Michigan Press, 1970), at 388.Google Scholar See also Eisele, , “The Activity of Being a Lawyer”, supra n. 4, at 358–359;Google Scholar and White, J., The Legal Imagination (Boston: Little, Brown & Co., 1973), at 48–49.Google Scholar
14. Pears, D., Ludwig Wittgenstein (New York: Viking Press, 1970) (reissued with a new preface and identical pagination 1986).Google Scholar See also Cavell, S., supra n. 3, at 118–119.Google Scholar
15. Id. at 25.
16. Id. at 28.
17. Id.
18. Cavell, S., supra n. 3, at 83.Google Scholar
19. See text at 21, supra.
20. See text at 14, supra.
21. As Stanley Cavell says:
The anxiety in teaching, in serious communication, is that I myself require education. And for grownups this is not natural growth, but change. Conversion is a turning of our natural reactions; so it is symbolized as rebirth.
Cavell, S., supra n. 3, at 125.Google Scholar See also Eisele, , “The Legal Imagination and Language: A Philosophical Criticism”, (1976) 47 U. Colo. L. Rev. 363, 412–413.Google Scholar
22. See Frost, R., “The Figure a Poem Makes”, in Selected Prose of Robert Frost, Cox, H. & Lathem, E. eds., (New York: Holt, Rinehart and Winston, 1968), at 18.Google Scholar
23. See text at notes 16–17, supra.
24. Given in full, Cavell’s words are these:
… [I]n beginning with the words of someone else—in choosing to stop there, in hearing philosophy called upon in these unstriking words—the writer of the Investigations declares that philosophy does not speak first. Philosophy’s virtue is responsiveness. What makes it philosophy is not that its response will be total, but that it will be tireless, awake when others have all fallen asleep. Its commitment is to hear itself called on, and when called on-but only then, and only so far as it has an interest—to speak.
Cavell, S., This New Yet Unapproachable America: Lectures After Emerson After Wittgenstein (Albuquerque, New Mexico: Living Batch Press, 1989), at 74.Google Scholar
25. See text at 18, supra.
26. Simpson, , “The Common Law and Legal Theory”, in Oxford Essays in Jurisprudence, 2d Series, Simpson, A.W.B. ed., (Oxford: Clarendon Press, 1973), at 77;Google Scholar Simpson, , “The Common Law and Legal Theory” (rev.), in Legal Theory and Common Law, Twining, W. ed., (New York: Basil Blackwell, 1986) at 8.Google Scholar Since Simpson has republished his claim, I take it that he believes (and I agree) that nothing in the theoretical writing of the past fifteen years has disproved him.
27. Simpson, id. at 77 (Twining republication, at 8).
28. Sugarman, , “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition”, in Legal Theory and Common Law, supra n. 26, at 26 (footnote omitted).Google Scholar
29. The following represents at least one attitude typical of the common law mind.
“The old fashioned English lawyer’s idea of a satisfactory body of law was a chaos with a full index.” Holland, T., Essays 171 (1870). Holmes’ review of Holland’s book made this remark famous, or notoriousGoogle Scholar. See Holmes, , “Book Review”, (1870) 5 Am. L. Rev. 114.Google Scholar (I owe this quotation and the references to Dukeminier, J. & Krier, J., Teacher’s Manual for Property, Second Edition, (Boston: Little, Brown & Co., 1988), at 299.)Google Scholar
30. Oakeshott, M., supra n. 5, at 123–124.Google Scholar
31. I am appealing here to Lon Fuller’s notion that an internal morality of law exists for all legal systems, that this morality consists in several principles of legality, and that this morality states aspirations more so than duties. One such aspiration is that the rules within the system not contradict one another; yet another aspiration is that the announced rules be congruent with official actions in reading and applying those rules. See Fuller, L., The Morality of Law (New Haven: Yale Univ. Press, 1964), at 65–70, 81–91.Google Scholar
32. Simpson, supra n. 26, at 80, 91–94 (Twining republication, at 10, 18–21).
33. I use Simpson’s article to emphasize the extent to which rules of law are generated by the common law process, and thus depend upon that process for their existence and intelligibility, in “The Activity of Being a Lawyer”, supra n. 4, at 372–374, 377–385.Google Scholar I also discuss the common law as a way of acting, speaking, and thinking, in “Hegelian Vanity, Common Law Humility”, supra n. 11, at 942–947. In this later article, I make use of Harry Jones’ fine essay on the common law.Google Scholar See Jones, , “Our Uncommon Common Law”, (1975) 42 Tenn. L. Rev. 443.Google Scholar
34. Simpson, supra n. 26, at 79–80, 88, 89, 90 (Twining republication, at 10, 16, 17 (with some modifications]).
35. See text at n. 27, supra.
36. Milsom, S.F.C., Historical Foundations of the Common Law, 2d ed., (London: Butterworths, 1981), at vi.Google Scholar
37. Michael Oakeshott also illustrates the kind of inquiry that I regard as being essentially Wittgensteinian and criterial:
… [I]f political activity is impossible without a certain kind of knowledge and a certain sort of education, then this knowledge and education are not mere appendages to the activity but are part of the activity itself and must be incorporated in our understanding of it. We should not, therefore, seek a definition of politics in order to deduce from it the character of political knowledge and education, but rather observe the kind of knowledge and education which is inherent in any understanding of political activity, and use this observation as a means of improving our understanding of politics.
Oakeshott, M., supra n. 5, at 113.Google Scholar See also Eisele, , “The Activity of Being a Lawyer”, supra n. 4, at 352.Google Scholar
38. Milsom, S.F.C., supra n. 36, at 44–45.Google Scholar
39. Id. at 45.
40. Id.
41. Id. at 47.
42. Id.
43. Id. at 48.
44. Id. at 3.
45. Id. at 61.
46. Id. at vi.
47. Id.
48. Id. at 59.
49. Id. at 67.
50. Pollock, F. & Maitland, F., The History of English Law Before the Time of Edward 1, vol. 1., (2d ed. 1898),Google Scholar reissued with a new introduction by Milsom, S.F.C., (Cambridge: Cambridge Univ. Press, 1968), at xxv–xxvi, xxvii.Google Scholar
