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.
WITTGENSTEIN’S CONCEPTION OF LANGUAGE AND ITS IMPLICATION FOR JURISPRUDENCE.
