Article

Or, Even, What the Law Can Teach The Philosophy of Language: A Response to Green’s Dworkin’s Fallacy

This essay is a response to the important central theme of Michael Green’s recent article, Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), which considers the relationship between the philosophy of language and the philosophy of law. Green argues forcefully that a number of theorists with quite different viewpoints commonly maintain a connection between the two which turns out to be unfounded. It is accepted that it is wrong to assume such a connection, but it is suggested that Green has failed to recognise the connection that can be established between the two disciplines due to the particular way in which law as a practice uses words.

The reasons given by Green for seeking to maintain a distinction between ordinary language practice and the language practice of the law are considered and rejected in part I of the essay. The general conclusion is reached that, irrespective of which position is adopted in the philosophy of law, at the point of judgment the philosophy of law and the philosophy of language are inextricably linked in being concerned to account for the same practice.

Part II of the essay considers the basic issues for the philosophy of language addressed in Green’s article, which are concerned with the search for the mechanism which links a particular meaning to a word. One reading of Wittgenstein’s rule skepticism, supported by Dennis Patterson, is to reject the existence of any mechanism interrupting the direct connection between the capacity we possess in our language practice and the capacity we possess in the practice to which our language refers. Patterson provides another target for Green’s allegation that theorists who take a position in the philosophy of law from their position in the philosophy of language are committing a fallacy. However, it is pointed out that within the Patterson-Wittgenstein position, there is no possibility of moving from one position to the other since both positions are already necessarily connected.

The remaining discussion in Part II then explores the apparently common connection between law and language established within the practice of judgment and within the general view of the nature of language favoured in Patterson’s reading of Wittgenstein. It is argued that Wittgenstein’s philosophical method may maintain a connection between law and language, and the positions adopted within their respective philosophies, but is incapable of resolving the controversy between competing views of how law/”law” should be understood. By contrast, the practice of judgment is used precisely to resolve controversy. Although this judgment is concerned primarily with a specific part of the law, its significance extends to how we regard the philosophical endeavours that need to provide an account of it. This provides lessons for both the philosophy of language and the philosophy of law.

Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies

The Article argues that administrative agencies should have a much greater role in defining the scope of private rights of action than is contemplated by current law or most of the existing legal literature. The Article proposes an extension of Chevron doctrine to the question whether federal statutes authorize enforcement suits by private citizens: statutes which do not on their face clearly create or clearly preclude private rights of actions should be read as empowering the responsible administrative agency to make this determination. Accepting this proposal would significantly expand the influence of the executive branch over private enforcement policy, a development supported and defended in the Article. 

English Jurisprudence Between Austin and Hart

John Austin and H.L.A. Hart are two of the most renowned figures in English jurisprudence. Austin formulated his version of legal positivism in his lectures at University College London in the early 1830s. Hart began developing a more sophisticated version of positivism around the time he was appointed as Oxford’s Professor of Jurisprudence in the early 1950s. But what happened to English jurisprudence during the many years that separated Austin and Hart? This Article examines the predicament of English jurisprudence during those years. It is shown that although various efforts were made to move English jurisprudence beyond Austin, the subject remained unimaginative and basically moribund. The Article then considers why, at a time when the American law schools were developing new conceptual and theoretical approaches to law, English jurists should have been incapable of jurisprudential innovation. Indifference and even hostility toward jurisprudence on the part of black-letter lawyers, and a general English tendency to denigrate theory and undervalue systematization, have sometimes been put forward as explanations for the failure of jurisprudence to develop as a discipline during the period separating Austin and Hart. It is argued in this Article that, while those explanations should not be dismissed, jurisprudence was slow to develop because law barely existed as an academic discipline in England during this period, and because, when the English law faculties did begin to emerge, they were generally not suited to the encouragement of serious jurisprudential inquiry.

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