Historical noteSystematic attempts to use philosophical insights about language to solve problems in philosophy of law are recent, and are a distinctive feature of modern English-speaking jurisprudence. Jeremy Bentham was perhaps the first to make such an attempt. He developed a radically empiricist theory of the meaning of words, which supported his utilitarianism and his legal theory. Bentham wanted to abandon what he considered to be a nonsensical mythology of natural rights and duties — that is, moral rights and duties that people have regardless of whether anyone is prepared to enforce them. He looked for ‘sensible’ phenomena by which to explain the nature of law without any such phantoms. 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 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 ancillary 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. Bentham 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. ‘By these general terms or names, things and persons, acts, and so forth are brought to view…’ (Bentham 1782, 82; see also Bentham 1776, 28, 108n). Words that do not bring to view such perceptible things have no meaning, on that view, except insofar as they can be expounded by ‘paraphrasis’ — Bentham's method of translating whole sentences in which those words are used into sentences that do raise images of perceptible things. To many legal theorists, as H.L.A. Hart put it, that approach ‘appeared as a revelation, bringing down to earth an elusive notion and restating it in the same clear, hard, empirical terms as are used in science’ (Hart 1994, 84). The theory supports not only Bentham's empiricism, but also his utilitarianism, because it privileges what he viewed as the ultimate intelligible ‘affections’: the pain and pleasure that utilitarianism treats as the basis for a theory of value and of morality. ‘ Pain and pleasure at least, are words which a man has no need, we may hope, to go to a Lawyer to know the meaning of.’ (Bentham 1776, 28) In his legal theory, this view of language became the basis of an innovative account of law as the expression of the will of a sovereign in a political community. Bentham stated it as follows: 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… (Bentham 1782, 1) 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 (see section below, on ‘Definition as a methodology in philosophy of law’). Secondly, he defines law as a particular kind of assemblage of signs (see section below, on ‘Law and 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 (especially law, but others as well) of legal discourse. That, in brief, is the apogee of the use of philosophy of language in philosophy of law. But Bentham was ahead of his time. His theory of the meaning and use of words anticipated various trends in twentieth-century philosophy of language (including Frege's and Wittgenstein's ‘context principle’, some views of logical positivists, and the development of speech act theory). It was H.L.A.Hart who, in the 1950s and 1960s, made a concerted effort to use twentieth-century developments in philosophy of language to ‘elucidate’ the nature of law. He did so with an enthusiasm for the work of Wittgenstein, and also of Oxford ‘ordinary language’ philosophers such as J.L.Austin. So Hart had some advantages over Bentham. Wittgenstein's Philosophical Investigations had been directed against the view that a word's meaning is a thing for which it stands as a name (which is one of the misconceptions that had distorted Bentham's theory of the meaning of words). And J.L.Austin took an attitude to ordinary discourse that was quite opposed to that of Bentham, who thought that philosophy must tear away the ‘veil of mystery’ that ordinary language throws over every object of study (Bentham 1782, 251). Wittgenstein's attitude was more complex: he thought both that philosophers create philosophical problems by bewitching themselves with language, and also that a clear understanding of the use of language could provide healthy therapy for people suffering from philosophical problems. Taking advantage of the insights of Wittgenstein and J.L.Austin, Hart aimed to put philosophy of language to work in addressing problems of legal philosophy, without making what he regarded as Bentham's extravagant mistakes (such as thinking that a word like ‘right’ is a name for a ‘fictitious entity’ — Bentham 1782, 251). In 1962, Hart's book The Concept of Law raised issues that have occupied legal philosophers ever since. He borrowed J.L. Austin's method of ‘using a sharpened awareness of words to sharpen our perception of the phenomena’ (Hart 1994, v, 14). That method sets the background for the two problems I will outline in part 2 below: ‘Language and the normativity of law’, and ‘The Semantic Sting’. Hart's observations about the use of language in law were the basis of an innovative approach to the challenge of explaining the normativity of law — a problem for legal theory that can be clearly seen, Hart claimed, in the faulty explanation of normative language that had captivated Bentham. Hart's new approach to the issue has been the starting point for discussions of the normativity of law since he wrote his book [see section 3.2 below]. Ronald Dworkin has opposed Hart's theory of law on the basis that his whole approach to legal philosophy is undermined or ‘stung’ by his approach to words — that he wrongly thought ‘that lawyers all follow certain linguistic criteria for judging propositions of law’ (Dworkin 1986, 45). That is Dworkin's ‘semantic sting’ argument [see below], an argument in the philosophy of language that has set an agenda for much recent debate in philosophy of law (see, for example, the essays in Coleman, 2001). Finally, it should be noted that, like Bentham, many legal theorists of the twentieth century aimed to debunk conventional views about law by taking advantage of sceptical views about the meaning of the language of the law. The Scandinavian legal realists viewed legal terms like ‘right’ as ‘lacking semantic reference’ and ‘denoting nothing’. So they considered statements asserting the existence of rights, duties, and other legal relations to be incapable of being true or false (Olivecrona 1971, 246, 255, 261). They variously explained the use of such statements as attempts to perform magical incantations, or as tools for taking advantage of the psychological conditioning that leads officials and citizens to act in one way or another when they hear such statements (see the outline of Scandinavian realism in Olivecrona 1971 at 174–182, and see Ross 1956. See also section 5 of the entry on Naturalism in Legal Philosophy.). Similarly, various strands in the influential American legal academic enterprise of ‘economic analysis of law’ share Bentham's debunking attitude toward central legal terms such as ‘right’ and ‘obligation’. Like Bentham, some economic analysts oscillate (or equivocate) between (1) a moral theory that reduces those normative terms to terms describing maximization of human satisfactions, and (2) a theory that abandons moral concepts generally and only claims to describe human motivation, accounting for terms such as ‘right’ and ‘obligation’ as rhetorical epithets that agents use to pursue what they will [see entry on Economic Analysis of the Law section 2.2]. Not all legal sceptics have been driven by the empiricism of Bentham and the Scandinavians. Many other forms of scepticism about law have sought support in scepticism about the meaning of language. Recent attacks on the coherence of the idea of the rule of law, and on the meaningfulness of legal discourse, have used ideas in the philosophy of language as diverse as Saul Kripke's interpretation of Wittgenstein's remarks on rule following, and deconstruction (on Kripke, see entry on Interpretation and Coherence in Legal Reasoning).
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