Law, Language and Legal Determinacy

by Brian Bix

Overview

This book discusses one of the central problems in the philosophy of law—the question of legal determinacy. Is the law a seamless web or are there gaps? Bix argues that the major re-thinking of the common and "common sense" views about law that have been proposed by various recent legal theories is unnecessary. He offers a reconsideration of the role of language in the law, and the way ideas about language have been used and misused in recent legal theory. He explores in depth the relationship to legal theory of Hart's influential idea of "open texture," Dworkin's interpretative approach to law, and Wittgenstein's philosophy.

Product Details

ISBN-13:	9780198260509
Publisher:	Oxford University Press, USA
Publication date:	02/28/1995
Edition description:	REPRINT
Pages:	232
Product dimensions:	5.38(w) x 8.50(h) x 0.56(d)
Lexile:	1670L (what's this?)

Table of Contents

INTRODUCTION		1	(6)
Language and Law		1	(1)
Interpretation in Context		2	(2)
Language and Context		4	(2)
An Overview		6	(1)
1. H. L. A. HART AND THE 'OPEN TEXTURE' OF LANGUAGE		7	(29)
Hart's Discussion of 'Open Texture'		7	(3)
Waismann's Discussion of 'Open Texture'		10	(4)
Waismann and Wittgenstein		14	(3)
Hart on 'Open Texture'--Revisited		17	(1)
'Open Texture' and Judicial Discretion		18	(4)
Hart on 'Open Texture'--In Conclusion		22	(3)
'Gaps', 'Extra-Legal Sources', and Discretion		25	(3)
An Overview of the Critics		28	(8)
2. THE APPLICATION (AND MIS-APPLICATION) OF WITTGENSTEIN'S RULE-FOLLOWING CONSIDERATIONS TO LEGAL THEORY		36	(27)
Introduction		36	(2)
The Rule-Following Considerations-A Summary		38	(3)
Disagreement and 'Forms of Life'		41	(4)
Over-Readings of Wittgenstein I: Langille		45	(5)
Over-Readings of Wittgenstein II: Patterson		50	(3)
Hard Cases and 'Contested Concepts'		53	(6)
Concepts and Conceptions		59	(2)
Conclusion		61	(2)
3. CLEAR CASES		63	(14)
The Idea of Easy Cases		63	(8)
Language and Discourse		71	(2)
Language and Dialect		73	(3)
Conclusion		76	(1)
4. RONALD DWORKIN'S RIGHT ANSWER THESIS		77	(56)
Introduction		77	(1)
The Concept of 'Right Answers'		78	(10)
The Scope of a Right Answer Thesis		88	(8)
Incommensurability		96	(10)
Interpretation and Disagreement		106	(5)
Interpretation and Consensus		111	(7)
Different Perspectives in Law		118	(2)
The Role of 'Purpose'		120	(9)
Intention and Interpretation		129	(2)
Conclusion		131	(2)
5. MICHAEL MOORE'S METAPHYSICAL REALISM		133	(45)
Introduction		133	(1)
Metaphysical Realism		134	(3)
Summary of Moore's Position		137	(3)
The Problem About 'Death'		140	(6)
Changing Beliefs and Changed Concepts		146	(2)
Wittgenstein's Critique of Metaphysical Realism		148	(3)
Moore's Project: A Second Look		151	(3)
Two Additional Criticisms		154	(3)
Summary of Brink's Position		157	(3)
Criticism of Brink		160	(2)
The Kripke-Putnam Theory of Reference		162	(6)
A Further Look at Natural Kinds		168	(3)
Alternatives to Natural-Kinds Analysis		171	(3)
Response to Moore		174	(2)
Conclusion		176	(2)
6. A SUMMING-UP		178	(21)
Introduction		178	(1)
Threads in the Rope		178	(5)
On Intention in Law		183	(7)
The Meaning of 'Law'		190	(5)
The Status of the Claims and the Temptation of Relativism		195	(4)
Bibliography		199	(18)
Index		217

Editorial Reviews

"Law, Language and Legal Determinacy makes an extremely important contribution to contemporary analytic jurisprudence.....The entire book is pervaded by a sophistication in the philosophy of language, and a sophistication in the bringing the philosophy of language to bear on important legal and jurisprudential questions, that is totally unmatched in the existing literature....Thinking about language seriously has been a large part of thinking about law and interpretation for some time, but Bix takes that thinking to a wholly new level."—Frederick Schauer, Kennedy School of Government, Harvard University

"The book makes an original and significant contribution to the general field of philosophy of law, and specifically to analytical jurisprudence....His book is to my mind a rare accomplishment: it is extremely valuable...."—Duncan Kennedy, Harvard Law School

"The best and most accessible analysis available of Hart's views on the 'open texture' of language...an excellent and penetrating analysis of Dworkin's legal theory...Each of these chapters is a sophisticated piece of work from which I have learnt a good deal. Remarkably, however, they are written in a style which is lucid and easily accessible to beginners. I have used Bix's book in my teaching quite successfully, and have found that newcomers to the subject find his style clear and informative....It is an important and thought-provoking piece of work, which shows substantial achievement."—Nigel Simmonds, Cambridge University

"Bix's book is carefully argued, analytically deft and subtle, well informed, and philosophically sophisticated. Even when one disagrees with some of the contentions for which Bix argues, one is led to think more searchingly about the matters that he discusses....Interesting insights crop up throughout Bix's volume....Highly intelligent and adeptly argued throughout....perceptive and thought-provoking....May his impressive book receive the wide attention that it deserves."—Matthew Kramer, Cambridge University

From the Publisher