WITTGENSTEIN'S CONCEPTION OF LANGUAGE AND ITS …S... · wittgenstein’s conception of language and its implication for jurisprudence. by ugwudike, onyedikachi temple pg/m.a./10/52879

WITTGENSTEIN’S CONCEPTION OF LANGUAGE AND ITS IMPLICATION FOR

JURISPRUDENCE.

BY

UGWUDIKE, ONYEDIKACHI TEMPLE

PG/M.A./10/52879

DEPARTMENT OF PHILOSOPHY

FACULTY OF THE SOCIAL SCIENCES

UNIVERSITY OF NIGERIA, NSUKKA.

FEBRUARY, 2014.

WITTGENSTEIN’S CONCEPTION OF LANGUAGE AND ITS IMPLICATION FOR

JURISPRUDENCE.

BY

UGWUDIKE, ONYEDIKACHI TEMPLE

PG/M.A./10/52879

SUPERVISOR: DR. A. C. AREJI

This dissertation has been approved for the Department of Philosophy, University of Nigeria,

Nsukka for the award of Masters of Arts (M. A) Degree in Philosophy.

By

--------------------------------------------------- -------------------------------------------

Dr. A. C. Areji Internal Examiner

Supervisor

------------------------------------------------- --------------------------------------------

Rev. Fr. Dr. M. C. Chukwuelobe Rev. Fr. Prof. Marcel Izu Onyeocha

Head of Department External Examiner

----------------------------------------------

Prof. C.O.T. Ugwu

Dean

Faculty of Social Sciences

CERTIFICATION

Ugwudike Onyedikachi Temple, a postgraduate student in the Department of Philosophy,

with Registration Number PG/M.A./10/52879, has satisfactorily completed the requirements

for coursework and dissertation, for the degree of Master of Arts Degree (M.A.) in Social and

Political Philosophy. The work embodied in this dissertation is original and has not been

submitted in part or full for any other Diploma or Degree of this or any other university.

……………………………………….

DR. A.C. AREJI

(SUPERVISOR)

DEDICATION

This work is dedicated to creative minds and lovers of wisdom all over the world, for their

commitment in making our world free from encumbrances which tend to limit us from

gaining a clearer picture of the world and its derivatives.

ACKNOWLEDGEMENTS

All glory to God our help in ages past, and who is our hope for years to come for having led

me through the rigours of intent research and findings. I solemnly pledge my gratitude to you

for the health, strength and wisdom you accorded me. All I want to say is thank u Lord. My

profound gratitude goes to my never-tiring supervisor, Dr. Anthony C. Areji for his care,

moral support and doggedness. I have not seen one such devoted. Even when he is afar, he

makes himself within reach. I thank you most sincerely Sir for you are a good man. Also to

my dedicated H.O.D. Rev. Fr. Dr. M.C. Chukwuelobe and to my pragmatic lecturer, Rev’d

Fr. Dr. F.O.C. Njoku for their guidance throughout the course of this research, I say thank

you.

My sincere gratitude goes to my parents Sir Donatus and Lady Stella Ugwudike for their

prayers, support, encouragements, admonitions and advice which have kept me going.

Thanks for being a source of inspiration to me. I will never let you down. Thanks also to my

siblings for the calls and encouragements.

A million encomium goes to my friends and loved ones, Ubaelutu Chiamaka, Paul Haaga,

Okeke Chidubem, Ikenna Ezeofor, Chibuzo Obimdike and others too numerous to mention

for believing in me and also for their candid support and prayers. Also to the staff and

management of U.C. Networks Nsukka, and The Rock Chambers Onitsha, I say thank you for

giving me a grand support in the course of my research. Thank you all.

Ugwudike, Onyedikachi Temple

Department of Philosophy

University of Nigeria, Nsukka.

ABSTRACT

The meaning of an expression, or relation between words in general language usage is

ascertainable if the special use of language is understood. A major criticism leveled against

the language of law has been the idea that the language of law is indecipherable and barely

understood by those outside the legal terrain. Most of the criticisms range from the alleged

incoherence nature of the language of law, the classified nature of the language of the law,

and the technical/restricted nature of the language of law. In clearing these bugs of

misconception from the eyes of the critics, this work explores various ideas of Wittgenstein

in finding appropriate solutions. This becomes the thrust of this work. In showing how

Wittgenstein exonerates the language of law from these vilifying attacks, he thought that a

word has its meaning only within the context of its use in a language and, its form of life.

From his language-game thesis which forms one of the major bedrock in understanding

Wittgenstein’s language ideas, one would readily understand that in order to comprehend the

language of law, one must participate in the language game of lawyers. This is not a

manipulation of language or of words. Participation in the language game constitutes a

special way which enables one, within a language structure, and, with the assistance of the

rules of the language, to understand the rational core of the designations of certain

terminologies and concepts. In connection with law however, participation in the language-

game allows one to be cognitive of the normative meaning of such designations.

TABLE OF CONTENTS

Certification -------------------------------------------------------------------------------------- i

Dedication ---------------------------------------------------------------------------------------- ii

Acknowledgement ------------------------------------------------------------------------------ iii

Abstract ------------------------------------------------------------------------------------------ iv

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study -------------------------------------------------------------- 1

1.2 Statement of Problem ------------------------------------------------------------------ 2

1.3 Purpose of the Study ------------------------------------------------------------------ 3

1.4 Thesis of the Study --------------------------------------------------------------------- 3

1.5 Significance of the Study -------------------------------------------------------------- 3

1.6 Scope of the Study --------------------------------------------------------------------- 3

1.7 Research Methodology ---------------------------------------------------------------- 4

CHAPTER TWO

LITERATURE REVIEW --------------------------------------------------------------------- 6

CHAPTER THREE

WITTGENSTEIN’S CONCEPTION OF LANGUAGE

3.1 The Early Wittgenstein: (Tractatus Logico-Philosophicus) ----------------------- 23

3.1.1 Picture Theory -------------------------------------------------------------------------- 25

3.2 The Later Wittgenstein: (Philosophical Investigation) ----------------------------- 28

3.2.1 Wittgenstein on Language-Games and Rule-Following --------------------------- 31

3.2.2 The Private Language Argument ----------------------------------------------------- 34

CHAPTER FOUR

THE IMPLICATIONS OF WITTGENSTEIN’S CONCEPTION OF LANGUAGE TO

JURISPRUDENCE

4.1 Relationship between Language and Jurisprudence -------------------------------- 41

4.2 Jurisprudence as an Independent Form of Life ------------------------------------- 42

4.3 The Relevance of Wittgenstein’s Conception of Language to Jurisprudence --- 44

4.4 Wittgensteinian Projection Analogy as a Tool in Jurisprudence ------------------ 48

CHAPTER FIVE

Evaluation and Conclusion ------------------------------------------------------------ 55

Bibliography.

CHAPTER ONE

INTRODUCTION

1. Background of the Study

Not only does law constitute a language, but a very special kind of language, for it is

an attempt to structure the realities of human behaviour through the use of words. Law must

pattern human activity in such a way as to allow at least the great preponderance of members

of the polity to meet their felt needs and express their most deeply-held values. A legal

system must, therefore, provide some means for peaceful change of the patterns of behaviour

it enforces so that it can continue, in an orderly fashion, to meet the changing needs and

values of those who live under it.

This work brings to light the crucial use of language in jurisprudence. Not only does

the use of language crucial to philosophers of law, but in the special respect that lawmakers

typically use language to make the law, and courts typically use language to state their

grounds of decision. In this regard, philosophers of law need a good philosophical

understanding of the meaning and use of language in order to address a seemingly pensive

issue in jurisprudence of which the language of law has been adjudged of being too technical,

private and secluded from those it is meant to cover. In a bid to address this issue, different

philosophers have theorized and brought about diverse opinions and views to assuage this

uprising. It was against this backdrop that the researcher, having in mind to remedy the

situation, took-on the contributions of Ludwig Wittgenstein; a twentieth century analytic

philosopher who arose and made his contributions to the philosophy of language in his two

major works; Tractatus Logico Philosophicus and Philosophical Investigations. He made us

to know in the latter that: “to understand a sentence means to understand a language. To

understand a language means to be a master of a technique”.1 Thus, I would add that being a

master of a technique implies being acquainted with the ‘form of life’ that gives rise to such

technique. With the above statement from his Philosophical Investigations, Ludwig

Wittgenstein provided a framework upon which our language must be construed and

understood. Having said this, a critical look at Wittgenstein’s conception of language and its

implication to jurisprudence becomes imperative, and this is the thrust of this work.

2. Statement of Problem

The assertion made by David Mellinkoff in The Language of the Law that: “law is a

profession of words”2, is not doubtful, but the language of law has been adjudged and

criticized of possessing the nature of deceit in that legal contents are not comprehendible to

the legal laypersons. To this end, this work aims at exposing and addressing a major issue

posed by the critics of jurisprudence as regards its language structure which according to

them portrays law in a classified light. Also accompanied by this major challenge includes

different questions that may arise such as; what makes an addressee or a client unable to

capture the meaning of legal terms and concepts? Are those terms intentionally construed to

keep the addressee or the client in the dark? Are they ambiguous that the addressee finds it

unable capturing the meaning? Are the words incoherent, illogical, unintelligible, disjointed,

indecipherable, or are they just meaningless and full of jargons as posited by many critics of

legal language? Having listed these problems, this work will be geared towards ascertaining

if Wittgenstein’s conception of language was able to address them.

3. Purpose of the Study

The purpose of this study is to critically examine Wittgenstein’s conception of

language and its implication to jurisprudence, and to show to what extent his contribution

have proffered answers to criticisms against the language of the law. In an endeavour to

counteract the criticisms against the language of jurisprudence, this study spreads its tentacles

to various areas in seeking redress leaning closely on Wittgenstein’s conception of language.

4. The Thesis of the Study

Considering various efforts put forward by various theorists from diverse dimension

in proffering remedy to the criticisms against the language of jurisprudence, this paper

defends the thesis that Wittgenstein’s conception of language plays a therapeutic role for the

understanding of language as used in jurisprudence and thus, using his language conception,

a clearer understanding of law is achievable.

5. Significance of the Study

The significance of this study lies not alone on the role it will play in convincing and

clearing bugs of misconception from the mind of the critics of the language of law, but also in

projecting a clearer understanding of law by the scrutiny of its language structure through the

all embracing compass of philosophy which according to G. O. Ozumba ‘plays a therapeutic

role of curing us of linguistic bewitchment’3. On the other hand, this work will be of much

relevance to the academic body in-that it will broaden the students’ knowledge of language-

use and how best it applies to jurisprudence. It will also facilitate and equip a researcher with

the grundnorms of philosophy of language, and of the language of law..

6. Scope of the Study

This work is limited to the study of the implications of Wittgenstein’s conception of

language to jurisprudence, and will also, highlight the views and opinions of other

philosophers, linguists and legal theorists, whose contributions, thoughts and opinions in one

way or the other have bearing to Wittgenstein’ s conception of Language.

7. Research Methodology

The methodologies adopted for this work were historical, analytic, expository, and

critical. The historical method was used in order to pave way and give a broader and wider

approach for an analysis of Wittgenstein’s language thesis, which was critically evaluated in

finding its fitting in jurisprudence. The analytic method was applied in examining the various

strands of Wittgenstein’s language conceptions which includes; his argument against private

language, language-games, rule-following, and his notion of form of life. The expository

method was employed in an attempt to expose in a detailed description, the flaws immanent

in Wittgenstein’s language theses, and to further juxtapose his many language concepts with

the language of jurisprudence in finding its significance; the critical method was adopted to

analyze and proffer adequate solution to the criticisms against the language of jurisprudence,

and also to scrutinize the tenability and plausibility of Wittgenstein’s views and their

contemporary relevance. Data for this work were sourced from books, articles/periodicals and

internet.

ENDNOTES

1. Ludwig Wittgenstein, ed. Philosophical Investigations, G. E. M. Anscombe (London:

Basil Blackwell Ltd, 1958), paragraph 199.

2. David Mellinkoff, The Language of the Law (Boston: Little, Brown & Co. 1963), vi.

3. Godfrey Ozumba, Introduction to Philosophy of Language (Ibadan: Hope publications,

2004), 13.

CHAPTER TWO

LITERATURE REVIEW

There is no section of the world’s activity that does not involve language insofar as

communication and interaction take place. In the human world, language is a veritable tool

that instructs, guides, and shapes human conducts and activities. In our diverse language

communities or forms of life, the essentiality of language can never be over-emphasized.

Through language, I am able to understand my lecturer’s gestures, instructions and advice.

Through language, a lawyer addresses the court and states his case to the Judge. Through

language, a researcher expresses his ideas on a particular discourse. Language begets

understanding; in other words, there is no understanding without a corresponding language.

Language is itself the vehicle of thought. Language, of course asserts a unifying effect to all

relations of life. Thus, in a bid to understand and appreciate the concept of language, this

chapter focuses on the ideas of philosophers who have dwelt on the matters of language as it

concerns our everyday use and life experience.

Philosophy of language, though often regarded as a contemporary philosophical

concern, is traceable up to the earliest times. A historical excursion into the earliest times

reveals that the lonian philosophers were concerned with words. Thus, in defining the

constituent element of the universe, Thales chose water as the primary substrata of the world.

Anaximander said it was the Apeiron, the indeterminate, the Boundless, the unlimited. For

Anaximenes, it was “Air” that serves as the primordial substance. Air was chosen because for

him, it is unlimited. These Ionians painted the picture of reality as it was revealed to them in

different words. These different words, defined for them the basic constituent element of the

universe. Thus, one could possibly argue that their substance of inquiry was the same but

differed in words and thus, resulting in conceptual differences. In other words, it is a

difference in names, words and concepts. One thing note worthy is that; “the result of

philosophizing is not philosophical knowledge of reality, but clarity about our modes of

representing reality” 1. Though these Ionians did not identify their differences as linguistic or

conceptual, but it definitely is. From Heraclitus, Parmenides, Zeno, Pythagoras to Plato, and

Aristotle, it has all been a matter of conceptual differences, of giving different names to the

same or similar realities, thereby presenting the philosophers in deferring lights.

Socrates was also concerned with the proper meaning and use of words. His

dialectical or conversational method was chiefly concerned with the analysis of words, the

explanation of implicit and explicit meanings. The whole aim was to point to the abuse and

the ignorance of the users of words. Thus, in Theaetetus Plato led us to a conversation

between Socrates and Theaetetus on the question forwarded by Socrates, ‘What is

knowledge?’ Theaetetus answered that, “the things Theodorus teaches are knowledge; I mean

geometry and the subjects you enumerated just now. Then again there are the crafts such as

cobbling, whether you take them together or separately. They must be knowledge, surely” 2.

Going through the answer given by Theaetetus, he enumerated what the word ‘knowledge’

could be used to mean. But replying to Theaetetus’ definition of what knowledge is, Socrates

asserted thus;

that is certainly a frank and indeed a generous answer, my dear lad. I ask

you for one thing and you have given me many; I wanted something

simple but I have got a variety.... You were not asked to say what one may

have knowledge of, or how many branches of knowledge there are. It was

not with any idea of counting these up that the question was asked; we

wanted to know what knowledge itself is. Or am I talking nonsense? 3

Socrates was convinced that the surest way to attain reliable knowledge was through the

practice of disciplined conversation, this conversation for him however acts as an intellectual

midwife which helps in the delivery of ideas. In the above dialogue, Socrates aimed at

deducing the meaning of knowledge. He believed that “through the process of dialogue,

where all parties to the conversation were forced to clarify their ideas, the final outcome of

the conversation would be a clear statement of what was meant”4. Thus for Socrates, our

language should aim at the clarity of our thought.

In the same vein, a discussion between Plato and Socrates in The Republic shows how

crafty the use of words could be in representing reality. Thus:

the painter paints what looks like a shoemaker, though neither he nor his

public know about shoe-making, but judge merely by colour and form….

In same way the poet can use words and phrases as a medium to paint a

picture of any craftsman, though he knows nothing except how to

represent him, and the metre and rhythm and music will persuade people

who are as ignorant as he is, and judge merely from his words, that he

really has something to say about shoemaking or generalship or whatever

it may be 5.

Here, Socrates illustrates to Plato how meaning could be punctured through our unexamined

thoughts, and how deceptive it could be to the ignorant listener. The poet here uses words to

paint a picture of a craftsman he knew nothing about, and thereby giving out wrong

representation of the craft. He showcases by this illustration, how misleading it could be to

judge ones utterance merely by its rhetorical expression just as the poet who knew nothing

about the craft he presented. Furthermore on names, Plato believes that objects which have a

common name also have some reality in common, hence: “when a number of individuals

have a common name, we assume them to have also a corresponding idea or form”6. Thus,

there seems to be a very close relationship between language and reality in Plato’s view. He

shows in The Republic that the true philosopher wants to know the essential nature of things.

When he asks what is justice or beauty, he does not want examples of ‘just’ and ‘beautiful

things’, just as in the dialogue between Socrates and Theaetetus; he wants to know what

makes these things ‘just’ and ‘beautiful’. As Socrates his master, Plato adopted the dialogue

form because it imitates dialectic. Thus, in Plato‘s Ethics; “for just as dialectic proceeds by

question and answer, so the dialogue is composed of characters questioning and answering”.7

In a bid to knowing what makes things just and beautiful, the Socratic dialogue, though

laudable, lacks method. It leaves the addressee bewildered and confused in reaching the

required answer. It was amidst this puzzle that Aristotle came up with his idea of syllogism.

Aristotle in his Metaphysics, stated that “it was natural that Socrates should be

seeking the essence, for he was seeking to syllogise”8. With his idea of syllogism, Aristotle, a

pupil of Plato also known as the father of formal logic, came up with a scheme aimed at

restructuring of our dialogue pattern. This he did because he thought that “all men by nature

desire to know”9. The solution he proffered was encapsulated in his idea of syllogism which

he explained as a “discourse in which certain things being stated, something other than what

is stated follows of necessity from their being so” 10

. He considered logic to be an instrument

with which to formulate language properly.

Although Aristotle’s theory of syllogism is an effective tool for determining valid

relationships between premises and conclusions, his aim was to provide an instrument for

scientific demonstration. He thought that words and propositions are linked together because

the things which language mirrors are also linked together. Thus, the value of syllogistic

reasoning depended for Aristotle upon the accuracy of the premises. By introducing the idea

that arguments can be translated into syllogisms, Aristotle brought scientific thought into a

new dimension, it became possible to predict consequences by applying logic. The general

aim of rational inquiry, according to Aristotle,

is to advance from what is ‘better known to us’ to what is ‘better known

by nature’. We achieve this aim if: (1) we replace propositions that we

thought we knew with propositions that we really know because they are

true and we understand them; (2) we find general principles that explain

and justify the more specific truths that we began from; (3) we find those

aspects of reality that explain the aspects that are more familiar to us. 11

The things better known to us in a particular area are the relevant appearances. Aristotle

presents them through detailed collections of empirical data, reached as a result of ‘inquiry’.

In a similar vein, Aristotle’s logic played a unique role in the development of the

medieval thought. Although most of the greatest thinkers of the period like Augustine,

Anselm, Aquinas, and so on, were highly trained theologians, their work addresses perennial

philosophical issues and takes a genuinely philosophical approach to understanding the

world. Even their discussion of specifically theological issues is typically philosophical,

permeated with philosophical ideas, rigorous argument, and sophisticated logical and

conceptual analysis. The enterprise of philosophical theology is one of medieval philosophy’s

greatest achievements.

They were especially interested in how we are able to acquire knowledge of

universals and necessary truths, objects or truths that are immaterial, eternal, and unchanging,

given that the world around us is populated with particular material objects subject to change.

However, the answers medieval philosophers give to questions vary considerably, ranging

from Platonist accounts that appeal to our direct intellectual vision of independently existing

immutable entities, to naturalistic accounts that appeal to cognitive capacities wholly

contained in the human intellect itself that abstract universals from the data provided by sense

perception.

St. Augustine was one of the philosophers whose influence on most analytic

philosophers was quite enormous. His ostensive definition and training tells us how language

could be learnt by the act of pointing and naming. Thus, recounting the experience he had as

a little child in learning what words stand for, he took us to his Confessions where he narrated

thus;

for when I tried to express my meaning by crying out and making various

sounds and movements, so that my wishes should be obeyed, I found that I

could not convey all that I meant or make myself understood by everyone

whom I wished to understand me. So my memory prompted me. I noticed

that people would name some object and then turn towards whatever it

was that they had named. I watched them and understood that the sound

they made when they wanted to indicate that particular thing was the name

which they gave to it, and their actions clearly showed what they meant,

for there is a kind of universal language, consisting of expressions of the

face and eyes, gestures and tones of voice, which can show whether a

person means to ask for something and get it, or refuse it and have nothing

to do with it. So, by hearing words arranged in various phrases and

constantly repeated, I gradually pieced together what they stood for, and

when my tongue had mastered the pronunciation, I began to express my

wishes by means of them.12

In this way, he made his wants known to his family and they in turn, made theirs known to

him. The Augustinian model of language for instance, sees linguistic meaning in the

following way: “1. Words name objects: the meaning of a word is the object for which it

stands. 2. Every word has a meaning: The meaning of a word is independent of context. 3.

Sentence meaning is composed of word meanings”13

. This model of language is a simple

model and easy to comprehend, but some subtle aspects of it are not obvious at first because

it reinforces the basic dichotomy between words and meaning. For him also, spoken words

have been supplemented with signs of a more enduring nature. These are letters, which are

signs of words, for he opined that “signs are given only in order to communicate”14

. These

signs reveal themselves in this significant aspect of Augustine’s language thought which is

the ostensive definition and training; an act of pointing out to objects which corresponds to

the words.

Similarly, Anselm subscribes to the Augustinian view of language as a system of

signs. His account of signification, which is the foundation of his semantics, looks at the

semantics of names (or more precisely, referring expressions), and at his distinction between

signification and appellation as well as at different kinds of signification. Anselm’s account

on signification covers linguistic items such as utterances, inscriptions, gestures and at least

some acts of thought. It also covers non-linguistic items such as icons, statues, smokes (a sign

of fire), and even human actions which Anselm says are signs that the agent thinks the action

should be done. Thus, there is no limit in principle to the sort of object that can be a sign.

Anselm posited that, “what makes an object a sign is that it has ‘signification’: on the one

hand, it has the semantic relation of signifying, which is what a sign does and roughly

approximates our notion of meaning; on the other hand, it has a significate, which is the item

or items signified by the sign”15

. Therefore, Anselm implies that a sign signifies its significate

just as the ostensive practice of Augustine where the ‘name’ corresponds with the ‘pointed’

object. The name ‘Temple’ is a sign since it signifies the name of the bearer, Temple who is

thereby its significate. On his view on appellation, he explains that;

name is appellative of something by which the thing itself is so-called

(appellatur) in accordance with ordinary usage.... Roughly, ‘A’ appellates

S if calling S ‘A’ is acceptable in ordinary usage.... ‘Man’ appellates man,

‘brave’ appellates humans (the brave ones), ‘white’ appellates the white

horse of the two animals in the stable (a white horse and a black ox). 16

Anselm posits that appellation is used to allow for linking words to objects that may or may

not be their significates, and hence should no more be seen as reference than signification

itself. Thus, appellation goes hand in hand with signification.

Aquinas on the other hand made major contributions to the development of

philosophy. His philosophy stands out for its reliance on Aristotle. For him, all human

language is inevitably derived from our experience with things in our sensed world. He stated

that we can have no knowledge without sense experience, maintaining that nothing can be in

the intellect that was not first in the senses; nihil in intellectu quodprius non fuerit in sensu.

On Names, he realized that the names we apply to God are the same ones we use when

describing human beings and things. He thus asked, “if then, these names and words mean

different things to us when we use them respectively to describe creatures and God, the

critical question is whether we can know anything at all about God from our knowledge

about creatures?” 17

. Aquinas however asserts that insofar as we are creatures of God, we

must in some degree, even though imperfectly, reflect the nature of God. “People and God

are neither totally unlike, but their relationship is analogical.” 18

On a more empirical note, William of Ockham who parted company with Aquinas on

conceptual ground postulated what is called Ockham Razor, which he said should be used to

trim off the unnecessary words that cluster the philosophical concern’19

. Occam’s razor also

written as Ockham’s Razor is the law of parsimony (cost-cutting), economy or succinctness

(brevity and clarity). It is a principle urging one to select among competing hypotheses that

which makes the fewest assumptions and thereby offers the simplest explanation of the effect.

Going on his nearest pronouncement on the use of words, which occurred in his theological

work on the Sentences of Peter Lombard, “Numquam ponenda est pluralitas sine necessitate,

which being translated means Plurality must never be posited without necessity”20

, shows

that simpler explanations are, other things being equal, generally better than more complex

ones. On human knowledge, he opined that our minds do not know anything more than

individual things. For him, only concrete individual things exist, and when we use universal

terms we are simply thinking in an orderly way about particular things. Thus, “universal

terms such as humanity refer equally to James and John, but not because there is some real

substance of “human-ness” in which both James and John share or participate. Rather, it is

because the nature that is James is like the nature that is John”21

. Ockham here limited human

reason to the world of individual things where the law of parsimony plays its role on our

knowledge of things.

Consequently, amidst the interpretation bias and other numerous issues existent in

different epochs of philosophy, Francis Bacon came up with his idea of ‘great instauration’.

Bacon’s principal objective was the total reconstruction of the sciences, arts, and all human

knowledge, and this he called his ‘great instauration’. He fought a relentless battle to cure

philosophy of the ailments bequeathed to her through history. He gathered up the rising

discontent with medieval philosophy and sounded the call for a break with the lingering

influence of Aristotle. He was very critical of the medieval philosophers for creating these

problems. He posited in his philosophy that knowledge is power.

This knowledge which is derived through traditional learning has, for him made

learning inadequate because of the irrational blending of science with superstition, unguided

misconception and theology. In a bid to proffer solution, he advocated wiping the slate of

human knowledge clean and starting over again, using a new method for assembling and

explaining facts. For him, if philosophy must regain her pride of place as the mother of all

disciplines, and to appropriate the exactness of the sciences, then philosophy needed to be

cured of these ills. Francis Bacon identified these ills as fantastical, delicate, and contentious.

He attacked past ways of thinking, calling them “distempers of learning”.

Bacon described the fantastical learning, as where people concern themselves with

words, emphasizing texts, languages, and styles, and haunts more after words than matter. On

contentious learning which he viewed as the worse, he held that points of views of earlier

thinkers, which have fixed positions, are used as starting points in contentious

argumentations. Down to the final problem which he called the delicate learning, here, earlier

authors who claim more knowledge than can be proved are accepted by readers as knowing

much as they claim. In curing these ills, Bacon described a new method of acquiring

knowledge. Thus, “in order to penetrate into the inner and further recesses of nature, we need

to derive our notions from things in a more sure and guarded way. This way would include

ridding ourselves of prejudices and looking at things as they are: we must lead men to

particulars themselves”22

. Bacon vehemently countered Aristotle’s deductive method in the

sense that in his syllogism, the conclusions we draw only perpetuates the errors that are

already contained in the first and second premises. In place of Aristotle’s deductive method,

he introduced the inductive method where an argumentative strategy gives new information

upon which we can draw new conclusions.

On the other hand, Locke being influenced by Bacon came up with the view of

reconstructing all human knowledge. His aim was to fix linguistic abnormalities by talking

about ideas. For Locke; “words in their primary or immediate signification stand for nothing

but the ideas in the mind of him that uses them” 23

. Locke’s linking of a word’s signification

or meaning with an idea, resolves the problem of words that do not refer to a physical object

or type of object. Thus, “we may not be able to link all words to objects, but it seems evident

to some theorists that when we know the meaning of the words ‘rectitude’ or ‘unicorn’ we do

have something in mind. It is then easy to take the next step and assume that what we have in

mind is what the word means”24

. On his theory of knowledge, Locke assumed that if he could

describe what knowledge consists of and how it is obtained, he could determine the limits of

knowledge and decide what constitutes intellectual certainty. His conclusion was that

knowledge is restricted to ideas that are generated by the objects we experience. As appealing

as Locke’s theories might be, it suffers from considerable number of problems. He fell into

the problem of abstraction which is the belief that words can exist independent of the subjects

which they represent, or that general words can be made to stand for no particular thing but

all, and nothing in particular.

Thus, George Berkeley in his Principles of Human Knowledge fervently opposed

Locke’s notion of abstraction which he regarded as the foundation-head of all philosophical

problems. Abstraction for Berkeley, gives existence to what does not exist thereby giving

false impression which is misleading. He adopted his method of ‘esse est percipi’ (to be is to

be perceived). Thus in his Philosophical Commentary, Berkeley declared thus; “let it not be

said that I take away Existence. I only declare the meaning of the word so far as I can

comprehend it”25

.

As different views on language and human knowledge mount up, Immanuel Kant

affirmed that we possess a faculty that is capable of giving us knowledge without an appeal to

experience as against Berkeley’s view. He distinguished between two kinds of judgments, the

analytic and the synthetic judgments. A judgment he said is an operation of thought whereby

we connect a subject and predicate, where the predicate qualifies in some way as the subject.

In analytic judgments, the predicate is already contained in the concept of the subject, while

in a synthetic judgment, the predicate is not contained in the subject rather, it (the predicate)

adds something new to our concept of the subject.

Similarly, Georg Wilhelm Friedrich Hegel who stood out among his contemporaries

expounded further the dialectics of Aristotle. Just like Aristotle, Hegel’s dialectic process

exhibits a triadic movement from thesis to antithesis and finally, to synthesis after which the

synthesis becomes a new thesis and the process continues until it ends in the Absolute idea.

Hegel has it in his philosophy that single facts are irrational. Only when such single facts are

seen as aspects of the whole do they become rational. Nothing is unrelated for Hegel, for

whatever we experience as separate things will upon careful reflection, lead us to other things

to which they are related.

Following slightly Hegel’s trend, Jeremy Bentham has long ago issued a warning that

legal words demanded a special method of elucidation. He said we must never take these

words alone, but consider whole sentences in which they play their characteristic role. “We

must take not the word ‘right’ but the sentence ‘You have a right’, not the word ‘State’, but

the sentence ‘He is a member or an official of the State”26

. Linguistic acts struck him as

respectable empirical phenomena, and he made them an essential element of his theory of

law. He based his legal positivism on his claims about the meaning and use of words.

Language had not been especially important to the natural law theorists whose views

Bentham despised. They accounted for a law as a certain sort of reason. From that

perspective, philosophy of language has no special role in explaining the nature of law. Its

role in legal philosophy according to Bentham is the same as its general role in the

philosophy of practical reason.

Philosophy of language cannot explain the nature of reasons; perhaps it has the

additional role of explaining the possibility of expressing or communicating a reason.

Bentham, by contrast, needed the ‘sensible’ phenomenon of a perceptible, intelligible

linguistic act for his purpose of expounding the nature of law by reference to empirical

phenomena. He seems to have thought of the meaning of a word in causal terms, as its

capacity to act on a subject by raising an image of perceptible substances or emotions for

which, he said, the word was a name. Words that do not bring to view such perceptible things

have no meaning on that view, except insofar as they can be expounded by ‘paraphrases’.

Many philosophers of Law are concerned about the conceptions inherent in jurisprudence. On

definition, Bentham states accordingly that;

a law may be defined as an assemblage of signs declarative of a volition

conceived or adopted by the sovereign in a state, concerning the conduct

to be observed in a certain case by a certain person or class of persons,

who in the case in question are or are supposed to be subject to his

power…27

He went on to explain that such a signification of volition must be backed by

‘motives’ of pain or pleasure offered by the sovereign. Two features of this theory tie the

philosophy of law to the philosophy of language. One feature is methodological, and the

other is substantive. First, Bentham proposes his theory as a definition. Secondly, he defines

law as a particular kind of assemblage of signs. In Bentham’s view, a law is an utterance, and

legal philosophy is a form of philosophy of language. The legal theorist has a linguistic task

of defining the terms of legal discourse.

More so, Gottlob Frege, whose project was not principally directed at language rather

epistemology, concerned himself with using natural language to carry out his proofs. He has

it that natural language was too vague and imprecise to allow the characterization of precise

syntactic transformations that expressed instances of purely logical inference rules. Frege, in

developing his logicist project, adopted the Platonist position that arithmetic is about an

independently existing domain of abstract objects, namely numbers, and rejected the

formalist view that arithmetic is about signs.

However in Frege’s seminal paper On Sense and Meaning, it was gathered that he

raised topics that are even more germane for the study of natural languages than for the study

of formal languages. Here, he used the notion of sense to give an account of the meaning of

propositional attitude ascriptions, which are sentences involving propositional attitude verbs

such as “believes”, “doubts”, and “knows”. Frege’s reflections on natural language are not

limited to propositional attitude ascriptions, although his discussions of natural language

reflect a great deal of insight about language, especially for someone whose primary interest

was mathematics.

Consequently, upon the 19th century, a wave of approach to philosophical problems

emerged. Philosophical problems became classified as linguistic problems. The belief that

was prevalent in this century and early twentieth century was that ordinary language was

grossly inadequate for the capturing of truth or reality. The strident call then was the

purification of ordinary language, while some advocated total discarding of ordinary

language. Ordinary language was to be replaced by Ideal language. However, through the

Principia Mathematica, Russell and Whitehead had wanted to show that logic holds the

picture of the world.

This means that the language of the Principia should be seen as the language of the

world. Thus, the main contention is that “reality is made up of logical simples, which are held

in a bond through relations pictured as logical connectives. Reality can and is in fact,

reducible to its atomistic components, which is pictured by atomic statements”28

. Atomic

statements are the most basic statements and as such cannot be further reduced; example,

‘John is a boy’. A compound statement is the joining of more than one atomic statement by a

conjunction (.). ‘John and Peter are boys’ is a compound statement containing two simple

statements, thus, ‘John is a boy’ and ‘Peter is a boy’. This is what Russell calls his philosophy

of logical atomism.

According to Russell, “it is the philosopher’s job to discover a logically ideal

language, a language that will exhibit the nature of the world in such a way that we will not

be misled by accidental surface structure of natural language”29

. Language according to him,

“consists of a unique arrangement of words, and the meaningfulness of language is

determined by the accuracy with which these words represent facts”30

. In a logically perfect

language, the words in a proposition would correspond one by one with the components of

the corresponding facts says Russell. By analysis he furthered, certain simple words are

discovered. These are words that cannot be further analyzed into something more primary

and can therefore be understood only by knowing what they symbolize. Thus, this grabs the

clear picture of Russell’s Logical Atomism which in his logic he said could form the basis of

a language that could accurately express everything that could be clearly stated. Through his

logical atomism, the world would correspond to his specially constructed logical language.

Remarkably, this era gave birth to a Logical Positivism formed by a handful of

mathematicians, scientists and philosophers in Vienna. This group of elites is referred to as

the Vienna Circle. For them, a statement is meaningful only if it is either analytic or

empirically verifiable. In charging that metaphysical statements are meaningless, there is the

need for a verification criterion. Rudolf Carnap, a member of this Circle, in presenting

scientific knowledge, was motivated by the concern about objectivity. Thus for him, “science

wants to speak about what is objective, and whatever does not belong to the structure but to

the material … is, in the final analysis, subjective”31

.

Stating further on the unverifiability of metaphysical propositions, he felt that when

logical analysis is applied to metaphysics, its result is always negative. Take for example, the

proposition presented by Thales that the principle of the World is Water; Carnap had it that

we cannot deduce any propositions asserting any perceptions whatever that may be expected

in future. Such a proposition for him asserts nothing at all. He repeatedly emphasizes that no

conclusion should be drawn about the status of an object based on its reducibility or on the

existence of a constitutive definition. Manifestation of this attitude was shown in his

insistence that, “there is no significant distinction between scientific concepts and scientific

objects”32

; and that “an acceptable definition need only preserve the logical value or

extension of the sign being defined”33

.

Thus, any additional associations with a scientific statement are deemed irrelevant.

Carnap summarily jettisoned any unverifiable proposition as meaningless. He states it is the

major function of logic, to analyze all knowledge, all assertions of science and of everyday

life, in order to make clear the sense of each assertion and the connections between them. The

purpose of logical analysis is to discover how we can become certain of the truth or falsehood

of any proposition. Thus, he had it that the basic language is the language of logic because it

is the most precise and least likely to suggest improper interpretations. Additional languages

are used for clarification and motivation.

From the foregoing, language cannot be said to have any definite boundary. It extends

into areas of human endeavours so far there is communication. It wades into grammar,

psychology, anthropology, sciences, politics, religion, law, as seen through the history of

thought. Importantly, philosophy of language is closely bound up with logic. Logic is the

study of inference. It is the attempt to devise criteria for separating valid from invalid

inferences which is the onus of this study. Since reasoning is carried on in language, the

analysis of inference depends on an analysis of the statements that figure as premises and

conclusion.

ENDNOTES

1. G. P. Baker and P.M.S. Hacker, Wittgenstein: Rules, Grammar and Necessity, vol. ii

(West Sussex: Blackwell Publishers Ltd, 2009), 20.

2. David G. Stern, Philosophical Investigation: An Introduction (New York: Cambridge

University Press, 2004), 13.

3. Stern, Philosophical Investigation: An Introduction, 13.

4. Samuel E. Stumpf, Philosophy: History and Problems (New York: McGraw-Hill

Higher Education, 2003), 39.

5. Plato, ed. The Republic, Desmond Lee (London: Penguin Classics, 1974), 342.

6. Plato, The Republic, trans. G.M.A. Grube. (Indianapolis: Hackett Publishing

Company, 1974), 596.

7. Terence Irwin, Plato ‘s Ethics, (New York: Oxford University Press, 1995), 7.

8. Aristotle, Metaphysics, ed. David Ross (Mobi Classics Series, 2009), xiii 4.

9. Aristotle, Metaphysics, Book i 1.

10. Stumpf, Philosophy: History and Problems, 81.

11. Aristotle, (384-322 B.C.), http://www.muslimphilosophy.com/ipIrep/A022 (10 June

2012).

12. St. Augustine, The Confessions, trans. by R. S. Pine-Coffin, (London: Penguin books,

1961), book I section 8.

13. David C. Blair, “Language and Representation”, Annual Review of Information

Science and Technology 35 (1990): 14, http://www.deepblue.lib.umich.edu

14. St. Augustine, De Doctrina Christiana, http://en.wikipedia.org/wiki/De_doctrina_

christiana (accessed May 11, 2012).

15. Peter King, The Cambridge Companion to Anselm (CUP 2004), 2,

http://individual.utoronto.ca/pking/articles/Anselm_on_Langauge.CC.pdf

16. King, The Cambridge Companion to Anselm, 11.

17. Stumpf, Philosophy: History and Problems, 172.

18. Stumpf, Philosophy: History and Problems, 172.

19. Godfrey Ozumba, Introduction to Philosophy of Language (Ibadan: Hope

publications, 2004), 11.

20. William Occam, http://en.wikipedia.org/wiki/Occam’s_razor (15 May 2012).

21. Stumpf, Philosophy: History and Problems, 207.

22. Stumpf, Philosophy: History and Problems, 211.

23. John Locke, “An Essay Concerning Human Understanding”, in British Empirical

Philosophers (Book III), ed. A. J. Ayer & R. Winch (London: Routledge and

Kegan Paul,1985), 114.

24. Blair, Annual Review of Information Science and Technology, 20.

25. George Berkeley, Philosophical Commentaries, http://www.minerva.mic.ul.ie//vol

1/berkel.html, (assessed August 27, 2012).

26. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press,

1983), 26.

27. Jeremy Bentham, Of Laws in General, edited by H.L.A. Hart (London: Athlone

Press, 1970), 1.

28. Ozumba, Introduction to Philosophy of Language, 12.

29. Bertrand Russell, Stanford Encyclopaedia of Philosophy. http://plato.stanford.edu/

entries/Russell/, (assessed June10, 2012).

30. Stumpf, Philosophy: History and Problems, 425.

31. Rudolf Carnap, The Logical Structure of the World, trans. by R. George (Chicago:

Open Court Classics, 2003), paragraph 16.

32. Carnap, The Logical Structure of the World, para. 5.

33. Carnap, The Logical Structure of the World, para. 51.

CHAPTER THREE

WITTGENSTEIN’S CONCEPTION OF LANGUAGE

3.1 THE EARLY WITTGENSTEIN:

(Tractatus Logico-Philosophicus.)

Ludwig Josef Johann Wittgenstein was born on April 26, 1889 in Vienna, Austria, to

a wealthy industrial family, well-situated in intellectual and cultural Viennese circles. In 1908

he began his studies in aeronautical engineering at Manchester University where his interest

in the philosophy of pure mathematics led him to Frege. Upon Frege’s advice, in 1911 he

went to Cambridge to study with Bertrand Russell. Russell wrote, upon meeting

Wittgenstein: “An unknown German appeared ... obstinate and perverse, but I think not

stupid”1. Wittgenstein was personal in his habits and way of life, yet profoundly acute in his

philosophical sensitivity. During his years in Cambridge, from 1911 to 1913, Wittgenstein

conducted several conversations on philosophy and the foundations of logic with Russell,

with whom he had an emotional and intense relationship, as well as with Moore. He retreated

to isolation in Norway, for months in order to ponder these philosophical problems of logic

and to work out their solutions. In 1913 he returned to Austria and in 1914, at the start of

World War 1(1914-1918), joined the Austrian army. He was taken captive in 1917 and spent

the remaining months of the war at a prison camp. It was during the war that he wrote the

notes and drafts of his first important work, Tractatus Logico-Philosophicus known as the

Early Wittgenstein. After the war the book was published in German and translated into

English. Published in 1922, the Tractatus Logico-Philosophicus has been universally

admired. This work covers a vast range of topics ranging from the “nature of language; the

limits of what can be said; logic, ethics, and philosophy; causality and induction; self and the

will; death and the mystical; good and evil” 2.

The Early Wittgenstein has had a profound effect on philosophy since it was

published in 1922. The Tractatus is a work for which its author has stratospheric ambitions.

He claims in the preface of this work, to have found “on all essential points, the final solution

to the problems”3; thus, problems of philosophy. The Early Wittgenstein it must be noted

worked closely with Russell and shared his conviction that the use of mathematical logic held

great promise for an understanding of the world. Wittgenstein tried to spell out precisely what

a logically constructed language can and cannot be used to say. Its seven basic propositions

simply state that language, thought, and reality shares a common structure, fully expressible

in logical terms. The seven basic propositions are:

1. The world is all that is the case.

2. What is the case, a fact is the existence of states of affairs.

3. A logical picture of facts is a thought.

4. A thought is a proposition with a sense.

5. A proposition is a truth-function of elementary propositions. (An

elementary proposition is a truth function of itself.)

6. The general form of a truth-function is [p, E, N(E)]. This is the general

form of a proposition.

7. What we cannot speak about we must pass over in silence.4

In his Tractatus, he aimed at revealing the relationship between language and the

world; what can be said about it, and what can only be shown. Wittgenstein argues that

language has an underlying logical structure, a structure that provides the limits of what can

be said meaningfully, and therefore the limits of what can be thought. The limits of language,

for Wittgenstein, are the limits of philosophy. Much of philosophy involves attempts to say

what cannot be said thus, “what can be said at all can be said clearly, and what we cannot talk

about we must pass over in silence”5, he argues. Anything beyond that, religion, ethics,

aesthetics, the mystical, cannot be discussed. They are according to him, nonsensical. He

stresses further the need for a more distinct thought process, thus he wrote in the preface of

the Tractatus; “the aim of this book is to draw a limit to thought, or rather, not to thought, but

to the expression of thoughts: for in order to be able to draw a limit to thought, we should

have to find both sides of the limit thinkable (i.e. we should have to be able to think what

cannot be thought)” 6. Anything that can be thought at all, in so far as it is within the limits of

what can be thought, must as a matter of fact, be thinkable by both sides of the limit. It must

as a matter of fact be bipolar. Thus, from his Tractatus, “if the world had no substance, then

whether a proposition had sense would depend on whether another proposition was true”7.

More so, he asserted that in another paragraph that “a proposition must restrict reality to two

alternatives: yes or no”8. Also in his Lectures, “in order for a proposition to be capable of

being true, it must also be capable of being false” 9.

3.1.1 PICTURE THEORY

Continuing with the Picture Theory of language along the lines of Bertrand Russell’s

logical atomism, Wittgenstein stated that, “we picture facts to ourselves” 10

. A picture, he

says, is a model of the reality, and to the objects in the reality correspond the elements of the

picture; thus the picture itself is a fact. The fact that things have a certain relation to each

other is represented by the fact that in the picture, its elements have a certain relation to one

another. He stated that, “in the picture and the pictured, there must be something identical in

order that the one can be a picture of the other at all. What the picture must have in common

with reality in order to be able to represent it after its manner, rightly or falsely is its form of

representation” 11

. We speak of a logical picture of a reality when we wish to imply only so

much resemblance as is essential to its being a picture in any sense, that is to say, when we

wish to imply no more than identity of logical form. Wittgenstein maintains that everything

properly philosophical belongs to what can only be shown, to what is in common between a

fact and its logical picture. The result of philosophy he said is not a number of philosophical

propositions, but to make propositions clear. Thus;

philosophy aims at the logical clarification of thoughts. Philosophy is not a

body of doctrine but an activity. A philosophical work consists essentially

of elucidations. Philosophy does not result in ‘philosophical propositions’,

but rather in the clarification of propositions. Without philosophy thoughts

are, as it were, cloudy and indistinct: its task is to make them clear and to

give them sharp boundaries 12

His picture theory emphasizes that language is a true picture of reality. Just as a

picture has all things in common with what it pictures, so does language in relation to reality.

He says that what a picture has in common with what it pictures is the logical form. The

logical form is that unspoken, unexpressed relationship that exists between the picture

(language) and what it pictures (reality). The logical form is to stand outside language to be

able to picture it. A picture does not contain the picture of itself ; thus he asserted that “a

picture cannot, however, depict its pictorial form: it displays it”13

. His belief is that there is a

one to one correspondence of the elements that appear in language and the facts (or state of

affairs) which it pictures. Hence, “what a picture must have in common with reality, in order

to be able to depict it correctly or incorrectly in the way that it does, is its pictorial form… A

picture can depict any reality whose form it has. A spatial picture can depict anything spatial,

a coloured one anything coloured, etc”14

. He therefore implies that what cannot be pictured is

mystical and lacks the structure which agrees with the structure of language. Thus, they are

nonsensical and do not have any form of reality.

In talking about ideal language in the context of the picture theory, Wittgenstein

emphasizes that there already exists a logical order in the propositions of ordinary language,

for logic cannot give order where there is no pre-existing order and necessity. An ideal

language is for Wittgenstein, the language of logic. This he said because in logic, there exist

rules which are logical premise that must be strictly adhered to in order to arrive at a logical

meaning. Philosophers, then, have the task of presenting the logic of our language clearly.

This will not solve important problems but it will show that some things that we take to be

important problems are really not problems at all. The Tractatus presents itself as a key for

untying series of knots both profound and highly technical. In doing this, he tried to show a

means of identifying these problems thus;

most of the propositions and questions to be found in philosophical works

are not false but nonsensical. Consequently we cannot give any answer to

questions of this kind, but can only point out that they are nonsensical.

Most of the propositions and questions of philosophers arise from our

failure to understand the logic of our language. (They belong to the same

class as the question whether the good is more or less identical than the

beautiful.) And it is not surprising that the deepest problems are in fact not

problems at all 15

.

If the propositions of the Tractatus are nonsensical then they surely cannot put

forward the picture theory of meaning, or any other theory. Nonsense is nonsense. However,

this is not to say that the Tractatus itself is without value. Wittgenstein’s aim seems to have

been to show up as nonsense the things that philosophers (himself included) are tempted to

say. Philosophical theories, he suggests, are attempts to answer questions that are not really

questions at all (they are nonsense), or to solve problems that are not really problems. In

presenting how a proposition could be meaningful, we are presented with a slight

reconstruction of Frege’s conception of a proposition, thus;

Frege says that any legitimately constructed proposition must have a

sense. And I say that any possible proposition is legitimately constructed,

and, if it has no sense, that can only be because we have failed to give a

meaning to some of its constituents. (Even if we think that we have done

so.) Thus the reason why ‘Socrates is identical’ says nothing is that, we

have not given any adjectival meaning to the word ‘identical’ 16

.

The reason why ‘Socrates is identical’ means nothing is that there is no singular property

called ‘identical’. The proposition is nonsensical because we have failed to give meaning to

the adjective ‘identical’ qualifying the noun, Socrates. To get ourselves rid of such nonsense,

the logic of our language must be sound.

3.2 THE LATER WITTGENSTEIN:

(Philosophical Investigations)

Upon his return to civilian life after the war, Wittgenstein gave away the large fortune

he had inherited from his father, and lived a frugal and simple life. Feeling that he could

contribute nothing more to philosophy after publication of Tractatus, he searched for a new

vocation, first teaching in elementary school in Austria for several years, then returning to

gardening and architecture. In 1929, he felt that once again he could do creative work in

philosophy. He returned to Cambridge where he resumed his philosophical vocation, after

having been exposed to discussions on the philosophy of mathematics and science with

members of the Vienna Circle. His conception of philosophy and its problems underwent

dramatic changes that are recorded in several volumes of his conversations, lecture notes, and

letters during his first year in Cambridge. Through his lecture notes and the wide circulation

of notes taken by his students, he gradually came to exert a powerful influence on

philosophical thought throughout the English speaking world. In 1936 he began his second

major work, Philosophical Investigations known as the ‘Later Wittgenstein’. Few years later,

around 1945, he prepared the final manuscript of the Philosophical Investigations, but at the

last minute, withdrew it from publication, and only authorized its posthumous publication.

For a few more years he continued his philosophical work, which is marked by a rich

development. He travelled during this period to the United States and Ireland, and returned to

Cambridge, where he was diagnosed with cancer. Legend has it that, at his death in 1951,

April 29th, his last words were “Tell them I’ve had a wonderful life” 17

.

Most of his thoughts in his early work are seen in a more broadened light in his later

work the Philosophical Investigations. Thus, this and subsequent sections will possess traits

of the early Wittgenstein in order to get a clearer picture of what is meant to say.

Four years ago I had occasion to re-read my first book (the Tractatus

Logico-Philosophicus) and to explain its ideas to someone. It suddenly

seemed to me that I should publish those old thoughts and the new ones

together: that the latter could be seen in the right light only by contrast

with and against the background of my old way of thinking 18

.

The Philosophical Investigations began with a quotation from St. Augustine’s

Confessions where St. Augustine recounted his learning of language as a child from the

gestures of people around him, through the ostensive act of pointing to an object and always

making similar sound (i.e. naming the object). By continuous observation, he began arranging

the pieces of words, sounds, gestures, facial expressions etc, which later cumulated to his

understanding and speaking of language. Three things mindful of note in Wittgenstein’s

philosophy are his ideas of rule-following, language-games and forms of life. Thus, towing

the lane of Bertrand Russell on logical atomism, Wittgenstein stated that in a logically correct

symbolism, there will always be a certain fundamental identity of structure between a fact

and the symbol for it. It is the task of the philosopher to discover this fundamental identity of

structure between a fact and the language which is the symbol of the fact. But this task is not

possible to accomplish without a logically perfect language. He therefore considers it the

primary task of a philosopher to devise a logically perfect language, a language that will be

able to accord to a rule. Thus, the term language might necessarily mean many things to

different people, but in the context of this writing, Wittgenstein’s conception of language

may vary. Thus, in his Philosophical Investigation, he posits that in philosophy, many

problems abound due to our language usage and this have created rooms for various many

setbacks in the pursuit of knowledge. Thus for him, “philosophical problems arise when

language goes on holiday”19

. For language to go on holiday entails a wrong application of the

rules of such language in a particular language-game. Still on same carriage, he stated that “to

imagine a language means to imagine a form of life”20

. Wittgenstein uses the phrase ‘form of

life’ to connote the sociological, historical, linguistic, physiological, and behavioural

determinants that comprise the matrix within which a given language has meaning.

Following Russellian analytical intuition and inclinations, Wittgenstein set off to give

depth and breadth to his convictions on how this problem of language could be settled and

presented a proposal on how to arrive at an ideal language, which will take care of the pitfalls

of ordinary language. Making reference to the question posed by Socrates to Theaetetus on

the meaning of knowledge, Wittgenstein would answer in the affirmative to the last question

asked by Socrates, i.e., if he (Socrates) was talking nonsense on the meaning of knowledge.

Thus, in answering the question; what is knowledge, Theaetetus answered in varied forms by

telling Socrates of what one can possibly have knowledge of, but Socrates refuted his answer

emphasizing that “we want to know what knowledge itself is”21

. Wittgenstein emphatically

rejected systematic approaches to understanding language and knowledge. His likely answer

to the Socratic question about the nature of knowledge is that; “it has no nature, no essence,

and so it is a mistake to think one can give a single systematic answer”22

. In the Philosophical

Investigations, one of the principal reasons for Wittgenstein’s opposition to systematic

philosophical theorizing is that our use of language, our grasp of its meaning, depends on a

background of common behaviour and shared practices, not on agreement in opinions but in

‘form of life’ 23

. The Philosophical Investigations is an extended defence of Theaetetus’

initial answer. For him, the best we can do in answering questions about the essence of a

word such as ‘knowledge’ is to give examples with the aim of showing that Socrates is

talking nonsense, and so bring words from their metaphysical standpoint to their everyday

use. To do so, is to play a language game and to play a language game entails following

certain rules owing to one’s disposition on a given situation and in a given context. More so,

following of rules itself, entails being attentive to the form of life wherein one occupies. For

if this is done, our understanding and articulation of concepts becomes clearer.

3.2.1 WITTGENSTEIN ON LANGUAGE-GAMES AND RULE-FOLLOWING

The foremost objective of the later Wittgenstein is introduced in the first aphorism

where Wittgenstein quotes St. Augustine discussing how words are directly associated with

mental images in the subject's mind. The Philosophical Investigations questions Augustinian

conception of language, where words are seen as representation of reality. Wittgenstein

believes that this misconception stems from the fact that words resemble each other a lot.

Because of that, we fail to notice how different they actually are in the way we use them.

Wittgenstein builds up his criticism through the use of a methodology he refers to as

language-games. Language-games are imaginary, primitive languages, which the philosopher

can use to study different aspects of language. They consist “of language and the actions into

which it is woven”24

. Thus, we are presented with the first example of language-game as

introduced in the Philosophical Investigations:

The language is meant to serve for communication between a builder A

and an assistant B. A is building with building-stones: there are blocks,

pillars, slabs and beams. B has to pass the stones, in the order in which A

needs them. For this purpose they use a language consisting of the words

“block”, “pillar”, “slab”, “beam”. A calls them out; B brings the stone

which he has learnt to bring at such and such a call 25

.

Those language-games are used by Wittgenstein as counter-examples to the

Augustinian conception of language. For Wittgenstein, language is not a representation of the

world; it is more like an activity woven into the fabric of daily life. As he puts it: “to imagine

a language means to imagine a form of life”26

. The first notion that Wittgenstein sets to break

down is that of ostensive definition. In the Augustinian view, names could be learned by

pointing and naming. Although that simple idea seems logical and straightforward,

Wittgenstein shows us that it is not that simple. Imagine someone speaking a foreign

language, pointing to an object while saying a word thus; “someone coming into a strange

country will sometimes learn the language of the inhabitants from ostensive definitions that

they give him; and he will often have to guess the meaning of these definitions; and will

guess sometimes right, sometimes wrong” 27

. What does that mean? He could be naming the

object he's pointing to, but he could also be saying “look”, or saying your name, etc. Thus the

question; can we really learn those words by pointing and naming? We begin to see that some

foreknowledge is necessary for understanding. This ‘foreknowledge’ could also be referred to

as acquaintance. Thus, an acquaintance with the word or object is required for a proper

understanding. In On Certainty, Wittgenstein stated that “a meaning of a word is a kind of

employment of it. For it is what we learn when the word is incorporated into our language”28

.

He further claimed in his Investigations that words derive meaning from their use in language

games, that words by themselves have no intrinsic meaning, thus “the meaning of a word is

its use in the language”29

. We need to know the role that ‘table’ will play in our language

game. Thus, in his Lectures, he said that “sometimes we introduce a sentence into a language

without realizing that we have to show rules for its use”30

. By implication, Wittgenstein

demands that we know what role sentences or numbers play in the language, but what is this

prior idea? Wittgenstein discusses this by analogy with the game of chess. Thus, telling the

chess player, ‘this is the king,’ will only tell him anything if he already knows the rules of the

game. He goes on to ask how we might teach someone the game if he did not already

understand what a playing piece was. In order for an understanding of ‘this is the king’ be

gained, an acquaintance with what chess is, becomes imperative. The rules of the game and

the meaning of, ‘this is the king,’ have to co-exist; we cannot have one without the other. The

rules do not precede the meaning and the meaning does not precede the rules. The meaning

and the rules are so deeply intertwined as to be inseparable. We now see why the ‘pointing

and naming’ cannot be the sole basis for learning language as Augustine described.

Furthermore, there are public criteria for someone’s following a rule, applying a

technique, using signs and symbols, and whether someone is following a rule must be

determinable, in appropriate circumstances, by reference to their behaviour; hence rule-

following, for Wittgenstein, is a form of activity; a regularity perceived as a uniformity, and

conceived as a norm. He stated thus: “this was our paradox: no course of action could be

determined by a rule, because every course of action can be made to accord with the rule” 31

.

In other words, clarity is something we bestow on statements within a context, and not

something that statements bestows upon us. A diagrammatic illustration in his Philosophical

Investigations of a two-faced picture, which he calls the Duck-Rabbit, illustrates how we

bestow clarity on statements. Wittgenstein notes that there may be certain people who have

always seen this figure as say, a rabbit, and have never seen it in any other way. For them, the

figure would only represent a. rabbit and only a rabbit. He observes further that there could

even be people who are ‘blind’ to the possibility of seeing the figure as a duck despite having

had the figure’s ambiguity pointed out to them. This however portends to show how meaning

is derived from a statement used in different context by following different rules at different

stages.

On the application of rules, Wittgenstein says that rules are not to be applied in a rigid

way. His explanation is that in applying a rule, there must be a room for acceptable

innovations or amplitude of liberty to use our dexterity, finesse and expertise in applying the

rules. Thus Wittgenstein asserts: “don’t always think that you read off what you say from the

facts; that you portray these in words according to rules. For even so you would have to apply

the rule in the particular case without guidance”32

. In another paragraph, he says; “the

meaning of brackets lies in the technique of applying them” 33

. This view however raised the

question that if rules can be applied differently, that meaning will be affected. Wittgenstein

stated that the liberty is not that of ‘anything goes’, but that moderated by acceptable limits

and within specified standards. Thus if anything goes, there is no following of a rule at all.

“Whatever I do can, on some interpretation, be brought into accord with the rule” 34

. In

applying rules correctly, he says; “what one acquires here is not a technique; one learns

correct judgments. There are also rules, but they do not form a system, and only experienced

people can apply them right” 35

. Wittgenstein however poses a question on rule following on

whether it is possible to follow a rule in private language? His stance was that we cannot

follow a rule in a private language because rule following itself implies possibility of being

wrong. But in private rule-following, there is no possibility of being wrong because there are

no independently objective criteria for ascertaining in the mind of the individual whether the

rules are correctly followed. He therefore concludes that following a rule is a public thing not

private.

3.2.2 THE PRIVATE LANGUAGE ARGUMENT

The private language argument is associated with the question of whether private

language is possible. But, what is it that necessitates this question? Wittgenstein in answering

this question stated that it was necessitated by the view that since our meanings are products

of sensations, which are private, then there is private meaning and, hence, then there is

private language. This means that no two speakers of the same language can be perfectly sure

that they mean the same thing when using exactly the same string of words. Meaning is

linked with sensations which lodge in the private consciousness of the speakers. This was

seen as a worrisome philosophical problem.

Wittgenstein, who in his Philosophical Investigations made famous the private

language thesis, explained that the words of a language are to refer to what can be known

only to the speaker; to his immediate, private, sensations. So another cannot understand the

language. Here, what Wittgenstein meant by private language is that kind of language that is

conceived as necessarily comprehensible only to its single originator because the things

which define its vocabulary are necessarily inaccessible to others. Wittgenstein goes on after

presenting the private language thesis to argue that there cannot be such a language because it

lacks an objective force.

The private language argument is of central importance to debates about the nature of

language. One compelling theory about language is that language maps words to ideas,

concepts or representations in each person’s mind. On this account, the concepts in my head

are distinct from the concepts in your head. But I can match my concepts to a word in our

common language, and then speak the word. You then match the word to a concept in your

mind. So our concepts in effect form a private language which we translate into our common

language and so share. Wittgenstein’s argument seeks to show that this sort of account is

incoherent. If the idea of a private language is incoherent, then it would follow that all

language is essentially public. Hence, language is at its core a social phenomenon. The

private language being considered is thus not simply a language ‘in fact’ understood by one

person, but a language that ‘in principle’ can only be understood by one person. Wittgenstein

argues that the idea of a private language is nonsensical and incoherent because it is a

violation of grammar. Wittgenstein goes on to argue that there are two senses of ‘private’

which a philosopher might have in mind in suggesting that sensations are private, and that

sensations as they are talked about in natural languages are in fact private. Thus;

How do words refer to sensations? There doesn’t seem to

be any problem here; don’t we talk about sensations every

day, and give them names? But how is the connexion

between the name and the thing named set up? This

question is the same as: how does a human being learn the

meaning of the names of sensations? of the word “pain” for

example. Here is one possibility: words are connected with

the primitive, the natural, expressions of the sensation and

used in their place. A child has hurt himself and he cries;

and then adults talk to him and teach him exclamations and,

later, sentences. They teach the child new pain-behaviour.

“So you are saying that the word ‘pain’ really means

crying?” On the contrary: the verbal expression of pain

replaces crying and does not describe it. 36

Wittgenstein in the preceding paragraphs, asks in what sense are our sensations

private? Can any other know whether I am really in pain? He summed up by saying that if

another could however describe my state of pain, then it would be nonsensical because my

state can only be known to me. Consequently, he furthered to the question whether there

could be a private language at all?

Now, what about the language which describes my inner experiences and

which only I myself can understand? How do I use words to stand for my

sensations? As we ordinarily do? Then are my words for sensations tied up

with my natural expressions of sensation? In that case my language is not

a ‘private’ one. Someone else might understand it as well as me. But

suppose I didn’t have any natural expression for the sensation, but only

had the sensation? And now I simply associate names with sensations and

use these names in descriptions. 37

In attending to these questions, Wittgenstein stated that language can only be understood

from the point of view of language-games and, like every game, is guided by and known by

its rules. In his Investigations, he presented a use version of language where words are seen

as tools in a tool-box capable of being put to different uses, however, in line with acceptable

rules.

Consequently, Wittgenstein reflected on the difference between objective and

subjective understanding, and raised the question of whether an unshared language can still

be called ‘a language’ and whether its sounds and signs can still be deemed a ‘toolbox’ for

private use. To which he replied yes, as long as the speaker plays language-games with

himself. He thus posited an example in his Manuscripts in explaining this:

Just think of a Robinson Crusoe who employs signs for his own private

use. Imagine that you watch him doing so (without him seeing you). So

you see how, in various circumstances, he carves lines on wood, utters

sounds, and so forth. This is indeed a case of using signs, but only if one

can detect a certain regularity. 38

Here, Wittgenstein distinguishes between a private language which someone speaks

only to

himself and an essentially private language. The former is like the one Robinson had on his

desert island in which he was able to talk to himself. Had someone heard him and observed

him, he would have been able to learn Robinson’s language; for the meanings of the words

are apparent in Robinson’s behaviour. Thus, “a desert islander speaks only to himself. How

does he signify his sensations (or experiences)? If he does as we do, that is; if his sensation

words are bound up with his natural expressions of sensation, then of course, his language is

not essentially private”39

. The idea of a private language, a language that only one person

speaks, no matter how he acquired the requisite verbal skills is for Wittgenstein,

unobjectionable. Such a language would, to be sure, involve private unshared techniques,

practices, customs and usages. But, of course, none of these are in principle private.

Conclusively on private language, Wittgenstein has it that there is no such thing as a

private language that names and deals with private objects such as pain. When I say, “1 have

pain”, I am not naming a private object with a word belonging to a private language. I am

doing something else entirely. In a sense, Wittgenstein’s claim is that language more or less

belongs to our objective third person world. There is no such thing as a private language, no

such thing as an exclusively “first person language” that deals with or operates in the realm of

naming my private objects such as my pain.

His argument is that language is only possible as a social instrument for

communication. This means that a pre-social being, a Robinson Crusoe, cannot formulate a

language, and in fact, does not need one. Language presupposes the following of rules. An

individual in a world of his own will not be able to set up public criteria for differentiating

between a correct and incorrect use of words. In doing this, he will need to fall back to either

memory, instinct or his consciousness which are all private and subjective. What is private

and subjective cannot correct itself, since what it produces is only the option open to it.

Instinct and consciousness cannot exercise an objective judge of themselves. It is indeed not

only illogical, ridiculous, irrational, unfounded, and absurd, but nonsensical for an individual

to in fact, have a private language. We only conceive of the possibility because we are

already in a society where language is used. To speak to oneself as in soliloquy is madness

and to speak into the air is worse than madness. On his remarks, Wittgenstein declares: “if

language is to be a means of communication, there must be agreement not only in definitions

but also (queer as this may sound) in judgments. This seems to abolish logic, but does not do

so” 40

.

ENDNOTES

1. Ray Monk, Ludwig Wittgenstein: The Duty of Genius (New York: Macmillan,

1990), 3 8f.

2. Alice Ambrose, Wittgenstein ‘s Lectures: 1932-1935 (New York: Prometheus

Books, 1971), Ix.

3. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan

Paul Ltd, 1922), P. 1.

4. Wittgenstein, Tractatus Logico-Philosophicus, 1.

5. Wittgenstein, Tractatus Logico-Philosophicus, 1.

6. Wittgenstein, Tractatus Logico-Philosophicus, 1.

7. Wittgenstein, Tractatus Logico-Philosophicus, para. 2.0211.

8. Wittgenstein, Tractatus Logico-Philosophicus, para. 4.023

9. Ludwig Wittgenstein, Notebooks 1914-1916. G.E.M. Anscombe trans., 2 edition

(London, Basil Blackwell Ltd. 1984) P. 55e.

10. Wittgenstein, Tractatus Logico-Philosophicus, para 3.

11. Wittgenstein, Tractatus Logico-Philosophicus, para. 2.17.

12. Wittgenstein, Tractatus Logico-Philosophicus, para. 4.112.

13. Wittgenstein, Tractatus Logico-Philosophicus, para 2.172

14. Wittgenstein, Tractatus Logico-Philosophicus, para 2.16

15. Wittgenstein, Tractatus Logico-Philosophicus, para 4.003

16. Wittgenstein, Tractatus Logico-Philosophicus, para 5.4733

17. Monk, Ludwig Wittgenstein: The Duty of Genius, 579.

18. Ludwig Wittgenstein, ed. Philosophical Investigations, Trans. by G. E. M. Anscombe

(London: Basil Blackwell Ltd, 1958), viii

19. Wittgenstein, ed. Philosophical Investigations, para. 19.

20. Wittgenstein, ed. Philosophical Investigations, para. 19.

21. Wittgenstein, Tractatus Logico-Philosophicus, 1.

22. David G. Stern, Philosophical Investigations: An Introduction (New York: Cambridge

University Press, 2004), 14.

23. Wittgenstein, ed. Philosophical Investigations, 241.

24. Wittgenstein, Philosophical Investigations, para. 7.

25. Wittgenstein, Philosophical Investigations, para. 2.

26. Wittgenstein, Philosophical Investigations, para. 19.

27. Wittgenstein, Philosophical Investigations, para. 32.

28. Ludwig Wittgenstein, ed. On Certainty, G. E. M. Anscombe and Denis Paul (London:

Harper Torchbooks, 1972), 1 Ge.

29. Wittgenstein, Philosophical Investigations, para. 43

30. Wittgenstein, Notebooks 1914-1916, 19.

31. Wittgenstein, Philosophical Investigations, para. 201

32. Wittgenstein, Philosophical Investigations, para. 292.

33. Wittgenstein, Philosophical Investigations, para. 557.

34. Wittgenstein, Philosophical Investigations, para. 198.

35. Wittgenstein, Philosophical Investigations, 227.

36. Wittgenstein, Philosophical investigations, para. 244.

37. Wittgenstein, Philosophical Investigations, 256.

38. G. P. Baker and P.MS. Hacker, Wittgenstein: Rules, Grammar and Necessity, vol. ii

(West Sussex: Blackwell Publishers Ltd. 2009), 161.

39. Baker & Hacker, Wittgenstein: Rules, Grammar and Necessity, 161.

40. Wittgenstein, Philosophical Investigations, para. 242.

CHAPTER FOUR

IMPLICATIONS OF WITTGENSTEIN’S CONCEPTION OF LANGUAGE TO

JURISPRUDENCE

4.1 RELATIONSHIP BETWEEN LANGUAGE AND JURISPRUDENCE

Having made explicit Wittgenstein’s conception of language, this chapter assesses

aptly its implications to Jurisprudence. Jurisprudence, as a theory of law, has its base of

operation within the study of the philosophy of law, and therefore shares with philosophy

certain traditional methods of inquiry and investigative priorities. The term ‘jurisprudence’

tends to connote an enterprise having its operational base within the legal academy, an

enterprise that has tended to concentrate on rationalizing and legitimizing whole departments

of legal doctrine. Etymologically, the term ‘Jurisprudence’ is coined from two Latin words

‘juris’ meaning law and ‘prudens’ meaning science. Thus from its etymology, it is defined as

the science of law. As philosophers, on daily basis seek to unravel the folders of reality in the

search of a unifying concept, so are legal philosophers pre-occupied with the quest of

identifying and analysing the conceptual structure of all legal systems. In the pursuit of

identifying and analysing these conceptual structures, legal philosophers, according to Njoku;

“look for the normative aspect of law, that is, they do not just look at patterns of human

behaviour for laws are not in theory statements of facts, but are also rules or norms that

prescribe a course of conduct”1. This they do with the instrumentality of language.

Law is language. Not only language, but a very special kind of language, for law is an

attempt to structure the realities of human behaviour through the use of words. It is also

alleged that linguistic clarity focuses on thought and helps lawmakers and judges refine and

achieve their purposes; that it lets people know their rights and allows them to plan their

affairs with greater confidence about the legal consequences of their actions; that it is good

for popular democracy because it makes law’s contents more visible to the electorate; that it

loosens the odious stranglehold that a self-interested legal profession has on the ultimate

meaning of the public institutions that affect the lives of the people; and so forth.

Nevertheless, since legislators use language in making the law, lawyers use language in

interpreting the law, judges use language in dispensing and stating grounds of their decisions,

it presupposes that the burden of this chapter advertently lies in showcasing the implications

of the use of language in jurisprudence. This task shall be carried out using Wittgensteinian

conception of language.

4.2 JURISPRUDENCE AS AN INDEPENDENT FORM OF LIFE

It is a general understanding that language serves as a route to gaining knowledge in

different aspect of its use. This does not imply that our everyday assimilation and use of

language is perfect. Given the Wittgensteinian diagrammatic illustration of a duck-rabbit for

instance, we see how we bestow clarity on statements. This is however how jurists also assert

meaning in law given their form of life. People who are embedded in a particular form of life

will receive, interpret, and apply statements in accordance with the linguistic practices that

are typical of that form of life. This does not however negate variations in understanding.

Thus, the clarity or obscurity of a statement depends on the form of life in which it is

expressed. By ‘form of life’; which he calls ‘Lebensform’, Wittgenstein explained that “the

common behaviour of mankind is the system of reference by means of which we interpret an

unknown language”2. This is clearly a universalistic turn, recognizing that the use of

language is made possible by the human form of life. Observing though that this universalism

might be taken to an extreme, Wittgenstein reminds us that as philosophers “... we are not

doing natural science, nor yet natural history”3. The implication of this is that our use of

language, in as much as it evolves within a particular sphere of form of life, must accord with

a rule.

Wittgenstein notes that there may be certain people who have always seen this figure

as say, a rabbit, and have never seen it in any other way. For them, the figure would only

represent a rabbit and only a rabbit. He observes further that there could even be people who

are ‘blind’ to the possibility of seeing the figure as a duck despite having had the figure’s

ambiguity pointed out to them. Consequently, a legal formalist would accept as clear what he

immediately receives to be the sign’s meaning, and he does not pause to consider or think

about what makes this very phenomenon of receiving as clear as possible, thus according to

Catherine MacKinnon, “formalists of this type unthinkingly transform their own point of

view into the standard for point-of-viewlessness”4. Legal formalism is a theory that legal

rules stand separate from other social and political institutions. According to this theory,

“once lawmakers produce rules, judges apply them to the facts of a case without regard to

social interests and public policy”5.

As noted by Ezeanya in a philosophy journal; Logic, Philosophy and Human

Existence, “there is always a difference between the meaning of the actual words used in the

statute in question and the legal consequences and implications of the words”6, that was why

Ronald Dworkin in his Law’s Empire adviced that for participants in a linguistic practice to

understand one another: “means not just using the same dictionary, but sharing what

Wittgenstein called a form of life”7. Oftentimes, legal formalists, to an extent, have been

alleged to elevate to a level of dogma a particular reception of a legal sign that the receiver

and others who are like-minded do not doubt. They tend to follow the literal rule of law

which states that; “where the words used in a statute are plain and unambiguous, the court is

obliged to construe them in their ordinary grammatical sense even if such interpretation

would occasion absurdity or manifest injustice”8. This dogmatist belief not withstanding,

Wittgenstein pointed out that “how good a description is must be judged by how well it

achieves its end; and if a description makes people do the things you want them to do, it is a

successful description” 9. Nevertheless, “our use of words gives us an idea of very general

truths about the world”10

.

Upholding Wittgenstein’s purposive end comes the Mischief Rule. Unlike the literal

rule that has referential approach to interpretation of statutes, the mischief rule has a

purposive approach. Thus, “mischief rule does not restrict itself to the words used, but also

tries to interpret the general intention of the legislation or the purpose which the entire statute

is designed to achieve” 11

. The major advantage of the mischief rule is that it does not allow

anybody to escape justice under the cover of a seeming lapse in the wordings of a statute. If

for instance in trying to prevent cheating in examination, the law is that no student may stand

up from his seat once the examination starts without the permission of the supervisor, a

student is caught straightening his neck above the shoulder of another student on the seat in

front of him with the claim that he did not stand up, the mischief rule would identify

straightening of neck as part of the mischief the ban on standing up tries to arrest and correct

them accordingly. Thus, to a non expert in law, different rules that apply to different cases in

different situation may appear abysmal in-that, the understanding of legal concepts and laws,

are better appreciated within the form of life that has formed the lawyer who uses these laws

and statutes in presenting cases, the judge who uses these rules in stating grounds of

judgement and to the legislator, who makes these laws with the intent of addressing certain

challenges that experienced by the society.

4.3 THE RELEVANCE OF WITTGENSTEIN’S CONCEPTION OF LANGUAGE

TO JURISPRUDENCE

It is observed that inherent in jurisprudence lies a maze of interpretation bias

stemming from the views of most critics of the language of law. Thus in his work, The

Authority of Law, Raz tells us that, “one of the main stumbling blocks for legal positivists has

been the use of normative language, i.e. the very same terminology which is used in moral

discourse, in legal discourse”12

. Raz’s view is not quite different from many other theorists

that have seen loopholes in the legal language. Another similar view is that “legal language is

incoherent because the legal discourse was developed by lawyers deliberately in order to

impede other people’s understanding of the legal system”13

. To the non-expert in law, what

the courts do while interpreting statutes and addressing certain cases brought to them often

amounts to miscarriage of justice, especially when certain letters of the law are clear to the

understanding of the lay person whereas the judicial interpretation shows a different thing. In

that case, it is often wrongly said that lawyers are liars, and that the judiciary covers the truth

and makes justice elusive to the innocent people.

For these reasons, a proper examination needs to be made on the proper understanding

of our language forms. Flaws witnessed in our judgments emanate from the illogicalities

inherent in our ordinary language understanding. Thus, on the strength of Wittgenstein’s

conception, Gilbert Ryle was critical of ordinary language. He held that ordinary language

was both a source of philosophical mistakes and conceptual unclarity. However, he noted that

“if ordinary language is properly analysed, it is capable of yielding clearer understanding of

the world around us”14

. There is then a need for a more logical form of language in other to

extinguish and annihilate any form of interpretation bias from the realm of our language

enterprise. To achieve this, an imperative factor which must be considered is the

Wittgenstein’s language-game thesis which follows from his idea of rule-following. This is

so because in his rule-following thesis, he posited thus; “this was our paradox: no course of

action could be determined by a rule, because every course of action can be made out to

accord with the rule”15

. For one to participate in a language game, one needs to get

acquainted with the rules of the game as played within a form of life. The rules, it must be

noted, are not given separately, and they must be made in such a way that they will be

understood by the multitude of people it is made for. They are not restricted to specific

individuals. Thus, Hart in his Concept of Law made it clear that:

in any large group, general rules, standards, and principles must be the

main instrument of social control, and not particular directions given to

each individual separately. If it were not possible to communicate general

standards of conduct, which multitudes of individuals could understand,

without further direction, as requiring from them certain conduct when

occasion arose, nothing that we now recognize as law could exist 16

.

Thus, in other to make legal contents clearer, it ought not have a universalistic or objective

binding alone, but should also be geared towards gaining greater and insightful understanding

by the people it is made for. These rules need to be followed so as to get a balanced

understanding and appreciation of the game. Thus, if one is outside the form of life of the

game rules, one cannot however understand the tenets of the game and as such, will be unable

to understand and appreciate the game. Similarly, Njoku stressed further in his Studies in

Jurisprudence, in support of Hart’s notion that judges do not intrude their personal

preferences when choosing among alternatives in making decisions in hard cases, that:

“judges decide cases within the context of operation of rules in which multiple considerations

are taken on board before one adopts what is taken to be a good decision” 17

. The ‘context of

operation of rules’ is only what a Judge needs to ascertain a valid judgment. Outside of this

context, the decision of the judge becomes illusive.

Furthermore, Dennis Lloyd expounded the idea of Wittgenstein on rule when he

stated in The Idea of Law that, “a rule can hardly be said to be a rule at all unless it applies

generally to whatever persons or situations fall within it; and if the rules are not applied

impartially in accordance with their terms then there is really no system of rules at all”18

.

Thus, to say that language is rule-bound in Wittgenstein’s sense does not mean that there is a

book of rules somewhere that determines whether speakers are or are not in compliance.

Rather, we are the ones who find and articulate the rules while we are thinking

philosophically. By studying the way various group of people live and talk and reporting

honestly about the regularities in linguistic usage that we observe, we discover and describe

the linguistic rules of those group of people. This kind of regularity in people’s linguistic

behaviour is what Wittgenstein would refer to as a language-game which he defines as

“language and the actions into which it is woven”19

. As this definition of language-game

suggests, a regularity in the use of language necessarily clusters around Wittgenstein’s form

of life. Thus he articulates that “to imagine a language means to imagine a form of life”20

.

Undoubtedly, one could ask; how do we learn rules? How do we follow them? Are there

standards which decide if a rule is followed correctly? Are they in the mind, along with a

mental representation of the rule? Do we appeal to intuition for their application? Are they

socially and publicly taught and enforced? In a typical Wittgensteinian fashion, the very

formulation of the questions as legitimate questions, with coherent content, is put to test and

Wittgenstein is intent on freeing us from their bewitchment.

Significantly, Carnap in his book The Logical Structure of the World, insists on what

he referred to as the ‘constructional language’ stating that: “the basic language is the

language of logic because it is the most precise and least likely to suggest improper

interpretations”21

. In his Logical Structure of the External World, he listed three stages of

constructive interpretation:

1. A pre-interpretive stage in which a community identifies the relevant rules

and standards that applies to a given practice.

2. An interpretive stage in which the community settles on a justification for

the practice.

3. A post-interpretive stage in which individuals consider that justification to

determine for themselves what the practice actually requires. 22

This ‘Constructional Language’ of Carnap is what Dworkin would call the ‘conversational

interpretation’ and will also be found in Wittgenstein’s rule-following thesis. Conversational

interpretation, for instance, as explained by Dworkin, would prove a herculean task. In his

Law’s Empire, Dworkin explained that law is an interpretive practice in that lawyers and

judges, to identity the right principle to apply in a given case, must engage in a

“conversational interpretation”23

. By such engagement, he further explains that “judges and

lawyers seem to disagree very often about the law governing a case; they seem to disagree

even about the right texts to use”24

.

In his Essays in Jurisprudence, H.L.A. Hart stated that there are certain fundamental

concepts that the lawyer cannot hope to elucidate without entering the threatening jungle of

philosophical argument. Hart expresses the problem that arises from the fact that “though the

common use of these words is known, it is not understood; and it is not understood because

compared with most ordinary words, these legal words are in different ways anomalous”25

.

They are anomalous only to the ignorant section of the public who have failed or chose not to

acquaint themselves, with the language of law, as Wittgenstein advised in his Investigations.

They have also failed to heed to Dworkin’s advice when he counselled that for participants in

a linguistic practice to understand one another, means not just using the same dictionary, but

sharing what Wittgenstein called a form of life. Hart laments over the improper elucidation of

legal concepts by various theorists which have led to the propagation of needless theories.

Wittgenstein stressed emphatically in his Investigations that in the application of rules; “what

one acquires here is not a technique; one learns correct judgments. There are also rules, but

they do not form a system, and only experienced people can apply them right”26

. In the final

part of this assertion, ‘… only experienced people can apply them right’, Wittgenstein gives

room for expertise. Thus, following and the application of rules in jurisprudence rests on ones

good insight into the legal community. This way, the anomalies which Hart lamented over,

will be jettisoned from jurisprudence.

4.4 WITTGENSTENIAN PROJECTION ANALOGY AS A TOOL IN

JURISPRUDENCE

To say that the concept ‘law’ is itself lawful is like saying that the concept ‘red’ is

coloured red. Both ways of thinking and talking are confused. More generally, a great deal of

philosophical confusion, especially confusion about the problem of clarity and obscurity in

legal language stems from a failure to understand and appreciate the differences between

rules, propositions, and norms. These problems often arise as a result of our hasty rush into

areas where we did not pitch our tents thus resulting to illogicalities in interpretation. For

instance, given a metaphor of projection in as shown in Wittgenstein’s Lecture Notes, one

cannot infer or judge the nature of a given mathematical projection just by looking at a table

of geometry alone. Instead, one also needs to know the method of projection, and only with

this information in hand can one infer the nature of the given projection. Thus, it will be a

mathematical bias to ask whether a given projection is accurate without knowing the

techniques according to which they were produced, so too it is philosophically naive to ask

whether a given statement about the meaning of a legal norm is correct without knowing the

technique according to which it was produced and applied. In the Lecture Notes, Wittgenstein

makes use of the projection analogy to say that “the same thing happens when we depict

reality in our language in accordance with the subject-predicate form”27

. That is, just as you

will get nowhere by investigating what a particular projection means without knowing the

techniques according to which it was produced, so too you will spin your wheels hopelessly if

you ask what a given statement, legal or otherwise means without paying close attention to

the method according to which it is produced and applied. Thus, if two different judges from

two different backgrounds in the Nigerian Supreme Court were both to say; ‘due process of

law is an important value in our constitutional scheme,’ this does not imply that their methods

of getting to these words or their methods of applying them are the same. On the contrary,

just about every Nigerian lawyer knows that their ways of dealing with cases involving the

legal norm ‘due process of law’ are radically different. One might say that the two Justices

always project ‘due process of law’ according to different methods of projection despite the

fact that there are occasional congruencies in the shape of the resulting figures.

Lawyers and laypersons occupy different planes when they are trying to understand a

legal text. It should be noted that legal use of an expression may be very different from its

ordinary use. Thus, Wittgenstein would say that ‘meaning’ is relative to different forms of

life. I would add to this that the clarity or obscurity of a legal text is always clarity or

obscurity within a given speech community. One may ask, why? This is because different

rules are followed given different forms of life. Thus, when a lawyer reads a statute or

contract, the text is always received within the context of a form of life that has trained the

lawyer to be attentive to certain interpretive possibilities, certain remedial consequences, and

certain juridical risks and benefits of which the layperson that reads the same text has little if

any idea. This means that what is clear to the layperson about a plain-language statute such as

“No vehicles in the park” is clear in a different way to a lawyer. Likewise, what is obscure to

a lawyer about a given provision of, say, the tax code may also be obscure to a layperson in a

totally different way, for the lawyer knows where and how to look for an answer and the

layperson who is ill-acquainted or does not acquaint himself at all with such concepts, may

not.

For Wittgenstein, the word ‘meaning’ hangs closely together with the concept ‘form

of life’. For participants in a linguistic practice to understand one another, they must share in

a form of life as Wittgenstein posits. By implication, if one wants to talk and reason like a

lawyer; one should participate in the community or form of life of lawyers. This as well,

applies to all other spheres of discipline. Likewise, Akwanya wrote in his Language and

Habits of Thought that: “every linguistic community is a community of presuppositions about

the world and history, of shared habits of thought and perception. To belong to a language

group is to be held together in a distinctive network”28

. This is however a call for laypersons

to acquaint themselves with form of life that forms a lawyer in order to be attentive just like

the lawyers, to certain legal and juridical concepts. The most important sense of this

implication comes through plainly in the following passage from the Philosophical

Investigations: “so you are saying that human agreement decides what is true and what is

false? It is what human beings say that is true and false; and they agree in the language they

use. That is not agreement in opinions but in form of life”29

. To use and understand legal

language the same way that lawyers do, is to use it as they do, all the way down. It is to agree

in one’s behaviour and speech within their form of life, and not just to take notice of

something called a ‘meaning’. Thus, meaning, like rule, has reference to the context of usage.

Consequently, J. L. Austin explained in a listed format, the prerequisites for participating in a

given form of life. Thus;

A. 1 There must exist an accepted conventional procedure having a certain

conventional effect, that procedure to include the uttering of certain words

by certain persons in certain circumstances, and further,

A.2 The particular persons and circumstances in a given case must be

appropriate for the invocation of the

particular procedure invoked.

B.1 The procedure must be executed by all participants both correctly and

B.2 completely.

F. 1 Where, as often, the procedure is designed for use by persons having

certain thoughts or feelings, or for the inauguration of certain

consequential conduct on the part of any participant, then a person

participating in and so invoking the procedure must in fact have those

thoughts or feelings, and the participants must intend so to conduct

themselves, and further

F.2 must actually so conduct themselves subsequenly.30

Nevertheless, it should be noted also that in a given form of life, a sort of

incongruence often exist as the example given of two different judges from two different

backgrounds in the Nigerian Supreme Court on the ‘Rule of Law’. This incongruence arises

when there is disjointed interpretation or judgement. It is made right not outside the form of

life but within the form of life in which its language applies. Since meaning is relative to

different forms of life, so does their language and rules.

The contribution of Ludwig Wittgenstein to jurisprudence has allowed us to view law

in a more practical way. Wittgenstein gave a broader scope to law. As Cardozo writes,

Wittgenstein’s thesis plays an important role, because the

judges themselves live, breathe, and partake of the

atmosphere which gives meaning to legal words, the same

atmosphere in which the community lives and breathes.

Our judges are not monks or scientists.31

Here, Cardozo lays emphasis on Wittgenstein’s form of life. He recognises the fact that the

jurist has a particular form of life where he belongs. Thus, this differentiates our view on

language use. He allows us to see Law as a language with a vocabulary of its own, to be

learned and used just as any other language. The meanings of legal words, like the meanings

of words in any other language, depend upon their use in a particular context. When the

context changes, the meaning changes as well. Viewing law as a language from

Wittgenstein’s perspective allows us to see legal and constitutional change as a normal and

expected consequence of the way in which we use words. He frees legal words from the

tyranny of rigidly fixed meanings. Wittgenstein demands that we must not look for the

meanings of words in fixed definitions. Instead, he suggests, “let the use teach you the

meaning”32

. The logic of this is not in the consistent use of words across time, but in the use

of words in a manner appropriate to the context in which they appear.

ENDNOTES

1. Francis O. Njoku, Studies in Jurisprudence. a Fundamental Approach to the

Philosophy of Law, 2nd

Edition (Owerri: Claretian Publications. 2007), 8.

2. Ludwig Wittgenstein, ed. Philosophical Investigations, G. E. M. Anscombe (London:

Basil Blackwell Ltd, 1958), Para. 206.

3. Wittgenstein, ed. Philosophical Investigations, 230.

4. Louis Wolcher, How Legal Language Works, (Washington: Legal Left. 2006), 112.

5. Legal Information Institute, www.law.cornell.edu/wexllegal_formalism (assessed July

10, 2012.).

6. P. 0. Ezeanya, “Philosophy and Logic of Statutory Interpretation”. Logic, Philosophy

and Human Existence. 8 (2008): 90.

7. Ronald Dworkin, Law’s Empire (London: Harvard University Press, 1986), 63.

8. Ezeanya, “Philosophy and Logic of Statutory Interpretation”, 91.

9. Wolcher, How Legal Language Works, 123.

10. G. P. Baker and P.M.S. Hacker, Wittgenstein: Rules, Grammar and Necessity, vol. ii

(West Sussex: Blackwell Publishers Ltd. 2009), 340.

11. Ezeanya, “Philosophy and Logic of Statutory Interpretation”, 94.

12. Joseph Raz, The Authority Of Law: Essays On Law And Morality (New York:

Oxford University Press, 1979), 7.

13. Sol Azuelos Atias, “On the Incoherence of Legal Language to the General Public”,

Internaional Journal for the Semiotics of Law (New York: Spring Publishing

Company, 2011), 43.

14. Gerald Runkle, Theory and Practice: An Introduction to Philosophy (New York:

Holt, Rinehart and Winston, 1985), 557.

15. Wittgenstein, ed. Philosophical Investigations, Para. 201.

16. H.L.A. Hart, The Concept of Law (London: Oxford University Press, 1979), 121.

17. Francis 0. Njoku, Studies in Jurisprudence: A Fundamental Approach to the

Philosophy of Law, 33.

18. Dennis Lloyd, The Idea of Law (London: Penguin Books Ltd, 1991), 122.

19. Wittgenstein, ed. Philosophical Investigations, Para. 7.

20. Wittgenstein, ed. Philosophical Investigations, Para. 19.

21. Rudolf Camap, The Logical Structure of the World, Trans. R. George (Chicago:

Open Court Classics, 2003), 52.

22. Jesse Merriam, “Where do Constitutional Modalities Come From? Complexity

Theory and the Emergence of Intradoctrinalism”. The Journal Jurisprudence

Vol. 3 (Australia: Elias Clark Group, Melbourne, 2009), 195.

23. Ronald Dworkin, Law’s Empire, 63.

24. Ronald Dworkin, Law’s Empire, 4.

25. H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press,

1983) 22.

26. Wittgenstein, Philosophical Investigations, 227.

27. Ludwig Wittgenstein, Notebooks 1914-1916. G.E.M. Anscombe trans., 2nd

edition

(London: Basil Blackwell Ltd, 1984), 55e.

28. Amechi Akwanya, Language and Habits of Thought, 2nd edition (Enugu: New

Generation Books), 2005, 75.

29. Wittgenstein, ed. Philosophical Investigations, Para. 241.

30. John L. Austin, How To Do Things With Words (Oxford: Clarendon Press, 1962), 15.

31. Daniel G. Stoup, “Law and Language: Cardozo ‘s Jurisprudence and Wittgenstein ‘s

Philosophy”. Valparaiso University Law Review, 363. http://scholar.valpo.edu

/vulr/vol 1 8/iss2/3 (assessed May 10, 2012).

32. Wittgenstein, ed. Philosophical Investigations, 212.

CHAPTER FIVE

EVALUATION AND CONCLUSION

In all sectors of human enterprise, language defines our nomenclature; language

defines our existence and being. One comes to understand the importance of philosophy of

language when one realize that verbal discussion is the laboratory in which philosophers put

their ideas to test. The task of the philosopher of language is that of trying to put in good

condition this all-important tool, inspecting it, repairing and improving it. Language is

essential to law in at least two ways. First, laws or legal norms cannot exist without the

ability to articulate or describe them in language. Secondly, language is an essential tool in

carrying out the business of law. There is, without any doubt, an extremely close relationship

between language and law. Thus, law is language, and law problems are language problems

because law problems are being addressed using the implements of language. Nature has

made it that men must coexist with his likes within the periphery of their community. Men do

not exist in vacuum. Their existence links them up to the activities of their immediate

community and environment. An environment or community of people which is characterised

as having acceptable mode(s) of communication inculcates its culture and language into its

members who in turn internalizes the language structure of their immediate community.

Insofar as the members of this community understands their communication signs and

symbols, which might be vague to those outside the bounds of the community, their language

stands as being coherent. This distinguishing factor is what Wittgenstein in his Philosophical

Investigations calls the form of life. Thus, Humphrey Tonkin in an article publication

Language and Society observed that, “ethnicity is tied to language loyalty: staying with a

language even when you might expect economic forces to turn you away from it. Language is

a principal vehicle of culture”1. Language as a communicative art between the speaker and

the hearer is very important if we are to live a meaningful life in an interactive milieu.

Without language, individual men will be no better than isolated Robinson Crusoes on islands

of their own. Men will be so near and yet so far from one another. It is with language that

men engage in discourses, buy and sell in the market of ideas. Without language knowledge

of all kinds will be impossible. There will be no expressible ideas, no knowledge, no science,

no technology and therefore no development in every sphere of human existence. Hence,

language is therefore the bedrock of human civilisation and development, and therefore

matters to jurisprudence because everything concerning the activity of man boils down to its

bearing to stated rules. Despite having these excellent qualities and other more, diverse

anomalies have been spotted by various critics of language especially, as it relates to

jurisprudence. These criticisms shall be addressed accordingly.

Thus, the quest for an ideal and a logically perfect language that will solve the

problems of ambiguity, vagueness, unclarity and imprecision, which would take care of the

shortcomings of ordinary language, would be seen as a rather superfluous attempt. Inasmuch

as Socrates, Plato, Locke and some others like Augustine, Anselm and Berkeley, had harped

on the need to scrutinize language to make it a perfect mirror of reality, the point remains that

language, in spite of the numerous attempts at its sanitisation, has remained an enigma and a

problem to philosophers and also to the layman who finds it unable to understand and

interpret a particular legal text. The problem of language has become a matter of the more

you look the more problem you see. To construct a comprehensive language that is totally

different from ordinary language will result in a language that is prolix and verbose. Meaning

will become a mirage if such happens. John Locke had, before Wittgenstein, decried the near

impossibility of having a name for every existent thing. The invention of general names and

words is to save us the costly attempt of giving every existent thing a name, and yet this is

what an ideal language necessitates.

The aim of Wittgenstein’s writing on language was to debug all unfiltered notion we

have about the world as we present in our language. He fought a relentless battle to purge all

absurdities inherent in our language usage. He was meticulous with his use of terms in his

two major works; Tractatus Logico-Philosophicus and Philosophical Investigations. In the

former, he lets us know in his preface that ‘the world is all that is the case’2. He knew that our

use of language includes basically, among other things, to paint a picture of the world in our

own specific and dynamic ways. He went on to assert that “the world is the totality of facts,

not of things”3. Clearly, the book addresses the central problems of philosophy which deal

with the world, thought and language, and presents a solution to these problems which is

grounded in logic and in the nature of representation. Accordingly in his Philosophical

Investigations, he debunked the early Wittgenstein saying that the meaning of word lies in the

context of its use. He also thought that philosophy serves as a therapy in curing us of all

linguistic bewitchment. This thought, however, gives room for a special scrutiny of the

language of law, and thus, to proffer answers to the questions of the critics of the language of

the law.

One of the major criticisms against the legal language came up in the early 1970s,

through a movement known as the Plain English Movement which rose against what they

termed ‘the incoherent nature of legal language’. The premise behind this movement was that

legal documents ought to be plainer and more comprehensible to the average person. A

statute being a law enacted by the legislature for instance, should be something an average

person can readily understand. In fact, they thought that requiring that all statutes be

understandable to the lay public is almost surely an unrealistic goal. This movement had it

that, as the world around us becomes ever more complex, statutes inevitably are becoming

longer, denser, more specialized and relative. Arguably, they stated thus:

many statutes such as those relating to bankruptcy, civil procedure and

evidence, corporations, public utilities, the structure of government, and

the military, are not directed to the general public at all, but are rather

addressed to a sub-community of experts…. Yet there are statutory areas

that are of intense interest to the public. Examples include the criminal

law, as well as laws relating to the family, divorce, community property,

inheritance, employment, civil rights, landlord-tenant relations, and

consumer protection. Surely ordinary citizens ought to be able to

understand the rights conferred and obligations imposed by such statutes.4

They further argued that in our Criminal Statute for instance, members of the public have a

right to a criminal code that they can understand. The author of these codes they said, ought

to draft a code of conduct that explains to the public, in plain language, what they can and

cannot do. The basic argument here is that the content of legal documents are not understood

by the general lay-public, but rather, are meant for the appreciation of jurists and other legal

experts alone.

In this regard, Wittgenstein in his Investigations asserted that: “to understand a

sentence means to understand a language. To understand a language means to be master of a

technique”5. Being a master of a technique requires among other things, an in-depth

understanding of the form of life that gives rise to such technique. It is just like learning the

rules of a game of chess. Without the proper understanding of the game, a chess player will

only be wasting his or her time, moving a chess piece aimlessly over the board surface. Thus,

for a chess-layperson to play a game of chess there is need for an acquaintance with the rules

of the game. The chess-layperson ought to be tutored on the necessary skills for the

understanding and the playing of a chess game. Likewise, it also applies to the understanding

of statutes, criminal law, laws relating to the family, divorce, community property,

inheritance, employment, civil rights, landlord-tenant relations, consumer protection and

legal language in general. Thus, re-emphasizing what Dworkin said in his Law’s Empire that,

for participants in a linguistic practice to understand one another: “means not just using the

same dictionary, but sharing what Wittgenstein called a form of life”6, this is however a call

for the critics of the language of law to get themselves well acquainted with the language of

law so as to be as attentive as the lawyers to certain legal concepts.

Wagner and Cacciaguidi-Fahy, also in challenging what seems to them as a lapse in

the language of jurisprudence contends that: “the purpose of legalese is to conceal rather than

to enhance our understanding of a legal system”7.Wagner stretching further on the technical

discourse of law posited that:

it is a discourse in which a wide variety of complex linguistic devices,

which are indispensable to a technical field, may ‘use’ or ‘abuse’ ordinary

language to convey the law’s specialized meanings. However, this

technical discourse of the law remains subject to the influence of ordinary

language in which it is deeply rooted.8

In a defense of the language of law, Thomas in an article publication, “The Legal

Imagination and Language: A Philosophical Criticism” stated that:

if legal language is technical, then that fact alone distinguishes it from

ordinary language. That distinction is usually accepted as one of the

advantages of legal language over the notoriously vague, ambiguous, and

loose ordinary language. A technical language, we think, is a finer, keener,

sharper instrument. Thus, we assume that one of the virtues of the

language of the law must be its precision.9

A technical language as posited by Thomas is known to be a finer, keener, and sharper

instrument for the construction and arrangement of words in technical discourses. Thus,

considering the language of mathematics, inasmuch as it is regarded as highly technical, we

see how precise and straightforward it is in bringing about solutions to its problems by an

attentive adherence to its technical and rigorous rules and formulas. Hence, only individuals

that have an acquaintance and share in the form of life which mathematicians share, can use

and appreciate these mathematical rules and formulas. Accordingly, Thomas further

remarked that: “the institution of the law is the frame of reference within which acts and

events in the world are treated and considered in legal terms. In addition, the law constitutes a

certain world”10

.

Further still, White in his work; The Legal Imagination: Studies in the Nature of

Legal Thought and Expression observes that:

one might say that technical languages are shorthand expressions for what

could easily be said in plain English, and that while one cannot say

everything in the languages of law or medicine, one can translate into

plain English everything that is said in a technical language. If this

statement appeals to you, imagine an appellate argument in a tax case

carried on in plain English. If it still appeals to you, write out some of the

argument.11

The suggested exercise by White can be started but cannot be completed. One discovers that

some of our concepts are embedded in the world of the law and make sense only within a

legal context. Outside the legal context, its meaning will be punctured and hence might be

deceitful to the lay-public it is meant for. That is why the Lawyers often argue that,

“important nuances would be lost if the law were stated in plain English. In addition, legal

language facilitates communication within the profession; it might be very time-consuming

the try to explain the entire law in fully understandable language”12

. Critics of legal language,

who saw the above defence as unsatisfactory, revolted against it. They thought then that if

lawyers argue that important nuances would be lost if the laws were stated in plain English,

on whose detriment would that be? What then is the essence of the Law if not to make vivid

and explicit that which is to guide the individual that shares in the forms of life of a

community? If legal language only facilitates communication within the profession, what

then is law? Should it be private or something of general relevance? Does it matter how time

consuming it might be in achieving its aim of intimating the public clearly on what ought to

be known and done?

Furthermore, Tiersma in an International Journal for the Semiotics of Law, explicitly

maintains that, as a matter of fact, “legal language is a type of language that is quite

unfamiliar to the general public”13

. This observation however was supported by Jackson in

whose terms lawyers form a semiotic group. In Jackson’s words, a semiotic group is “a group

of people who share a particular system of communication, this system being restricted to

themselves”14

. Jackson explains that people cannot belong to a semiotic group when they do

not understand the messages communicated within it and emphasize that; “although English

Law is communicated largely in English, most speakers of the English language are excluded

from the semiotic group of the law, since they cannot understand the particular register of the

language which the law uses”15

. Attending to this criticism, it holds that for one to understand

a particular register of the language which the law uses, one must be imbued in what

Wittgenstein calls the ‘form of life’ of law. White would say here that the language of the law

is, “a linguistically separate dialect, with a peculiar vocabulary and peculiar constructions”16

.

What this means is that each specialty is peculiar and thus has special language with which it

gets things worked out. But we must note that what distinguishes these languages emanates

from their specific forms of life. In his Tractatus, Wittgenstein, in showing the relationship

between a picture and what it depicts, tells us more on how a language, as a picture of reality,

depicts the form of life wherein it is used. Thus, “if a fact is to be a picture, it must have

something in common with what it depicts…. What a picture must have in common with

reality, in order to be able to depict it correctly or incorrectly in a way that it does, is its

pictorial form…. A picture can depict any reality whose form it has”17

. From the above

assertion, it could be said here that what the legal language must have in common with

reality, in order to be able to depict it correctly or incorrectly in a way that it does, is the form

of life of lawyers. So, the legal language here, seen as a picture, represents what it depicts

which is the law. Then, if a picture can depict any reality whose form it has, why then this

surge of criticisms against the language of law?

In Wolcher’s argument against the plain English movement, he asserted thus:

this argument comes down to being a call for laypersons to begin

participating with lawyers in the same form of life. But notice: such a call

would not be the same as just asking laypersons to talk to lawyers or to

talk like lawyers talk. Rather, it would essentially ask them to become

lawyers. For lawyers are the only kind of people who can use and

understand legal language in the same way that lawyers use and

understand it…. If those in the “Clarity” and “Plain Language”

movements really want legal language to be as clear to laypersons as it is

to lawyers, then laypersons would have to begin using legal language as

lawyers use it, they would have to begin writing legal briefs and opinion

letters instead of emails and poetry.18

ENDNOTES

1. Humphrey Tonkin, “Language and Society”, Occasional Papers from the American

Forum for Global Education (2003-2004), http://www.globaled.org.

2. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan

Paul Ltd, 1922), 1.

3. Wittgenstein, Tractatus Logico-Philosophicus, 1.

4. Peter Tiersma, The Plain English Language Movement. Http://www.languageand

law.org/ plainenglish. htm (assessed April 18, 2012).

5. Ludwig Wittgenstein, ed. Philosophical Investigations, G. E. M. Anscombe (London:

Basil Blackwell Ltd, 1958), paragraph 199.

6. Ronald Dworkin, Law’s Empire (London: Harvard University Press, 1986), 63.

7. Anne Wagner and Sophie Cacciaguidi-Fahy, The Chiaroscuro of Legal Language.

Obscurity and Clarity in the Law, Prospects, Challenges (England: Ashgate

Publishing, 2008), 6.

8. Anne Wagner, “Introduction: The Abuse of Language in Legal Discourse”,

International Journal for the Semiotics of Law 15 (2002): 323 -324.

9. Thomas Eisele, “The Legal Imagination and Language: A Philosophical Criticism”,

Faculty Articles and Other Publications (1975), Paper 28. http://scholarship.

law.uc.edu/ fac_pubs/28.

10. Eisele, “The Legal Imagination and Language: A Philosophical Criticism” (1975),

Paper 28.

11. James White, The Legal Imagination: Studies in the Nature of Legal Thought and

Expression (Boston: Mass, Little, Brown & Co. 1973), 36.

12. Tiersma, The Plain English Language Movement. (assessed April 18, 2012).

13. Sol Azuelos Atias, “On the Incoherence of Legal Language to the General Public”,

International Journal for the Semiotics of Law (New York: Spring Publishing

Company, 2011), 45.

14. Jackson Bernard., Semiotics and the problem of interpretation. Law, interpretation

and reality, essays in epistemology, hermeneutics, jurisprudence (1990) 84

-85.

15. Bernard, Semiotics and the problem of interpretation, 103.

16. White, The Legal Imagination: Studies in the Nature of Legal Thought and

Expression, 6.

17. Louis Wolcher, How Legal Language Works (Washington: Legal Left. 2006), 112.

18. Wittgenstein, Tractatus Logico-Philosophicus, para. 2.171.

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