Justice and the Ethics of Legal Interpretation

Susanna Hovinheimo

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136466007
• Edition: 1
• Topic: Philosophy
• Subtopic: Deconstruction in Philosophy

Justice and the Ethics of Legal Interpretation addresses how it is that legal texts -laws, statutes and regulations – can, and do have meaning. Conventionally, legal decisions are justified with reference to language. But since language is always open to interpretation, and so cannot fully justify any legal decision, there is a responsibility that is inherent in legal interpretation itself. In this book, Susanna Lindroos-Hovinheimo uncovers and analyses this responsibility – which, she argues, is not limited by the text that is being interpreted (and through its mediation, by the legal system). It is not simply a responsibility to read well; it implies a responsibility for the effects of the interpretation in a particular situation and with regard to those whose case is being decided. Ultimately, it is a responsibility to do justice. It is these two aspects of responsibility that are conceptualised here as the two key dimensions of the ethics of legal interpretation: the textual and the situational. Drawing on the work of Wittgenstein, Gadamer, Derrida and Levinas, Justice and the Ethics of Legal Interpretation offers a fresh approach to long-standing questions about language and meaning in law. It will be of enormous value to those with interests in jurisprudence and legal theory.

Chapter 1

The shared nature of language

The starting point in this book is the writings of Wittgenstein, especially his later philosophy. Wittgenstein has been widely studied in legal philosophy, especially in the Anglo-American tradition. He has been referred to by theorists who believe in the force of linguistic arguments but has also been an inspiration to those who claim that legal texts have no determinate meanings. But no matter how much he has been read, the later Wittgensteinian view of language is still fruitful and adds to our understanding in the field of legal interpretation. It serves well as a starting point also because it is compatible with other theories that are central to this study.

Reading Wittgenstein

Wittgenstein is one of those philosophers whose thinking has given rise to many opposing interpretations. Rather big differences exist between supporters of the different schools of Wittgenstein research.¹ His way of writing is certainly one reason for this, as is also the complexity of the issues he examines. A witty exposition of what the reader should and should not expect when studying Wittgenstein is given by O.K. Bouwsma. He is commenting on Wittgenstein's The Blue Book, although the same precautions apply to all Wittgenstein's writings.

[A]s for inventing any new apriori synthetic, a new drug to cure this or that, or any and all, sorts of incertitude, though he [Wittgenstein] seems at one time to have been interested in inventing a new type of airplane propeller and showed a keen interest in all sorts of gadgets, a milk bottle, for instance, from which, with the use of a spoon, one could pour off the cream – ‘Now, there's America for you!’ – this particular form of invention he seems not to have been interested in. He was more inclined to recommend a few old home remedies and common herbs, garden variety simples which he was insistent one should not confuse. And as for those readers in general who want answers to their questions and who, if they already have answers, want better reasons, the author gives neither better reasons for the old answers nor any answers, and those readers who keep their questions may be considered either fortunate or unfortunate as the case may be.

(Bouwsma 1961: 145)

Wittgenstein does not invent new drugs to cure incertitude. It is certainly well advised to warn readers of Wittgenstein's work that it is not to be approached with the aim of finding answers easily.² We are left with considerable incertitude that derives partly from the object of study, the questions that we try to find answers to, and partly from the way we study them and the ways that they can be studied.

Lately two prominent schools of Wittgenstein research have emerged. One is the so-called ‘resolute interpretation’, which has been put forward above all by Cora Diamond and James Conant. The other has been called the ‘ineffability interpretation’, which can be seen as the more traditional reading put forward by, for instance, P.M.S. Hacker. Although it seems that at the heart of this dispute lies interpretation of Wittgenstein's early work, the Tractatus, the different readings also understand his later philosophy in slightly different ways. The interest in this book is to concentrate on Wittgenstein's later writings. I do not take sides in the quarrels between supporters of the resolute interpretation and supporters of the ineffability interpretation but, rather, take advantage of ideas put forward by both.

Wittgenstein's way

Wittgenstein's way of philosophising causes many a problem for understanding his work, even more so because the way he philosophises is so important for the meaning of it. He is puzzled by philosophy, by how it can and should be done. The how is one of his central questions. It is so central that it partly dissolves the what, the content or object of philosophy. What is studied and how it is done are in philosophy essentially intertwined. Especially in his later philosophy, Wittgenstein avoided developing a theory or putting forward theses. The reason may be that by avoiding theories he can uphold a richer view of the things he is interested in than by building a coherent theoretical structure. In Philosophical Investigations, he writes that by presenting only a model, a measuring rod to which we can compare reality, we avoid the pitfalls of injustice and dogmatism into which, according to him, ‘we fall so easily in doing philosophy’ (Wittgenstein 1958: § 131).

His later work consists of different approaches to the same themes, each mapping the subject and explaining some elements of it but not painting a whole picture at once. He tries to construct models of how things might be, models which we can compare with reality and perhaps by the comparison see reality in new ways. Such models are, for instance, Wittgenstein's ‘clear and simple language-games’ (Wittgenstein 1958: § 130), which function as examples of how words can be used. The Tractatus can be mentioned as an example of the kind of dogmatism that Wittgenstein in his later work wishes to avoid. The Tractatus suffers from problems of emptiness and injustice in that it talks about what we must always do when we encounter philosophical problems. It claims that every possible proposition can be revealed to be a picture, or that the essence of every proposition is that it is a picture (Kuusela 2006: 310–311). Later, Wittgenstein's style is quite different.³ He does not want to make claims about how things essentially are (see, also, Wittgenstein 1958: § 109).⁴ According to him, we need to remove the logical glasses through which we look at reality, the glasses through which it seems that things must be like this or they must be like that (see Malcolm 1954: 546). Instead, we have to study the phenomena of language as they are in their different, sometimes even surprising, shapes and colours.

In Philosophical Grammar, Wittgenstein says that if we look at the actual use of a word we see something constantly fluctuating. In his own investigations he sets against this fluctuation something more fixed, just as one would paint a picture of a constantly changing landscape.

When we study language we envisage it as a game with fixed rules. We compare it with, and measure it against, a game of that kind. If for our purposes we wish to regulate the use of a word by definite rules, then alongside its fluctuating use we set up a different use by codifying one of its characteristic aspects. Thus it could be said that the use of the word ‘good’ (in an ethical sense) is a combination of a very large number of interrelated games, each of them as it were a facet of the use. What makes a single concept here is precisely the connection, the relationship, between these facets.

(Wittgenstein 1974: 77, § 36, emphasis in original)

Here he explains that we can envisage language as a game with fixed rules and then compare it with this kind of game. In the comparison, it seems, we can discover interesting things about language without falling into dogmatism. Studying language in this way, we can see the fluctuations and get some kind of understanding of them. These investigations allow us to see the manifold ways in which words are used (see Wittgenstein 1958: § 130). Often, the use of words is a combination of a number of interrelated games, where the concept itself is the relationship between the different usages.

It must be noted that this way of looking at different language uses also applies, in Wittgenstein's view, to the way of studying concepts such as ‘language’ and ‘meaning’ (see Wittgenstein 1958: § 108). He is thus in no way blind to the selfreferential nature of his method. He says that the word ‘language’ also has many uses. But what happens to the philosophy of language then?

But if the general concept of language dissolves in this way, doesn't philosophy dissolve as well? No, for the task of philosophy is not to create a new, ideal language, but to clarify the use of our language, the existing language. Its aim is to remove particular misunderstandings; not to produce a real understanding for the first time.

(Wittgenstein 1974: 115, § 72)

Philosophy is concerned with thoughts, sentences, and language. It does not have access to anything beyond what everybody else has access to. Philosophy cannot point to any real essence or truth, and it cannot define the meaning of something. It is concerned with language but not with a concept of language that would be the definition of language. This would require metaphilosophy; but for Wittgenstein there is no such thing (Wittgenstein 1974: 116, § 72; 1958: § 121).⁵ Philosophy is also language, even when it studies language.

In reflecting on language and meaning we can easily get into a position where we think that in philosophy we are not talking of words and sentences in a quite common-or-garden sense, but in a sublimated and abstract sense. – As if a particular proposition wasn't really the thing that some person utters, but an ideal entity […].

(Wittgenstein 1974: 121, § 77)

Dogmatic claims about how things must be or what the essence of a thing is include the danger of injustice in that these claims are not able to appreciate the manifoldness of things, the different cases, exceptions and individual characteristics of the things studied. The emptiness that derives from such theorising consists in the level of abstraction needed for the theory to be able to say something general about how things must be (see Wittgenstein 1958: § 92). For instance, the idea of propositions as pictures is a generalisation: propositions are considered on an ideal level (Kuusela 2006: 312–313). The style of Wittgenstein's later philosophy is an interesting attempt to try to avoid the emptiness, injustice and dogmatism that haunt philosophical work (see Wittgenstein 1958: §§ 128, 131).

The notion of language games can also be seen as a model, as a certain kind of heuristic tool.

Our clear and simple language-games are not preparatory studies for a future regularization of language – as it were first approximations, ignoring friction and air-resistance. The language-games are rather set up as objects of comparison which are meant to throw light on the facts of our language by way not only of similarities, but also of dissimilarities.

(Wittgenstein 1958: § 130, emphasis in original)

Thus the point with language games is, first, that they are sets of rules that provide us with something concrete ‘to be set against the manifoldness and blurredness of language use so as to bring order to linguistic relations and to make it possible to perceive them more clearly’ (Kuusela 2006: 319). ‘Language game’ is a hypothesis, a thought experiment. In some cases language does function in ways that resemble games, in some cases it does not. By comparing language to a game we can grasp things about language that would otherwise be difficult to notice. But to understand language as a rule-governed game is only one possible way of describing it. When we see language according to such a model we see some, perhaps dominant, features of the phenomenon but not necessarily all (Kuusela 2006: 323–324).

For Wittgenstein, different language games are related to each other in different ways.

Here we come up against the great question that lies behind all these considerations. – For someone might object against me: ‘You take the easy way out! You talk of all sorts of language-games, but have nowhere said what the essence of a language-game, and hence of language, is […]’. And this is true. – Instead of producing something common to all that we call language, I am saying that these phenomena have no one thing in common which makes us use the same word for all, – but that they are related to one another in many different ways.

(Wittgenstein 1958: § 65, emphasis in original)

The indeterminacy of meaning

We can now catch sight of the problems connected with Wittgenstein's thinking sketched above. By reference to what was said about his aims and style and his reluctance to build a theory or articulate theses, it becomes impossible for us to state that for Wittgenstein meaning is use, or anything else for that matter, in a definite manner. He is careful not to say too much.

For a large class of cases – though not for all – in which we employ the word ‘meaning’ it can be defined thus: the meaning of a word is its use in the language. And the meaning of a name is sometimes explained by pointing to its bearer.

(Wittgenstein 1958: § 43, emphasis in original)

In this famous quote he avoids saying anything general on meaning. He only states that in many cases the meaning of a word is the way it is used in a language. In The Blue Book, he says: ‘But if we had to name anything which is the life of the sign, we should have to say that it was its use’ (Wittgenstein 1969: 4, emphasis in original). He makes a model of how to understand meaning, and this model we can compare to different examples drawn from communication situations. In many cases meaning can be defined as use. But there can be situations where the word ‘meaning’ cannot be defined so that the meaning of a word is its use in language.

Wittgenstein considers language through the concept of family resemblance. Seen this way, there need not be one essential feature or necessary property through which we define language. Two neighbouring links in the chain are very similar to each other, whereas distant ones only belong to the same family (see Kuusela 2006: 333–334). Very different things fall under a concept, but they are united by family resemblance. There need not be one way of using a word. A number of kinships can exist between cases of language use that connect them as links in a chain.

That meaning exists is the self-evident starting point here. Language does include meanings that are sometimes even certain, in the sense that a person who knows a language knows how to use it and knows what the words in the language mean. The fact that words have meanings is something that we must take for granted (see Wittgenstein 1958: §§ 99, 100). Using words of a language that one knows is generally not very difficult and can certainly be done. It is also a fact that somebody starting to learn a language does not fully understand the meanings of the words, or can understand a word to mean something that it usually does not. So we can say that words have meanings and their meanings can be understood and misunderstood. The question is not if, but how.

Wittgenstein's thinking leads to the idea that there is no such thing as the meaning of a word. The fact that words do have meanings does not mean that we could draw limits to them, or that we could scientifically (mathematically or logically) determine what a word means and what it does not. This is caused by the rather trivial fact that words are used in different ways in different situations. Moreover, the meanings of words can change, as they frequently do. Meanings are slippery. Language bends, stretches, reflects and changes. It is like a labyrinth of paths. ‘You approach from one side and know your way about; you approach the same place from another side and no longer know your way about’ (Wittgenstein 1958: § 203).

There can be no strict limits to the meanings of words. In Philosophical Grammar, Wittgenstein discusses in an illuminating way the fact that we cannot draw clear boundaries for the use and the meaning of a word. It is only in special cases, not every time we use a word, that we draw boundaries between what falls under the word and what does not. Considering, for instance, the concept ‘plant’, we can distinguish between plants and what are not plants even though we do not draw clear boundaries. Wittgenstein points out that we commonly do not draw boundaries where we simply do not need them.

We are able to use the word ‘plant’ in a way that gives rise to no misunderstanding, yet countless borderline cases can be constructed in which no one has yet decided whether something still falls under the concept ‘plant’. Does this mean that the meaning of the word ‘plant’ in all other cases is infected by uncertainty, so that it might be said we use the word without u...

Table of contents

• Front Cover
• Justice and the Ethics of Legal Interpretation
• Title page
• Copyright Page
• Contents
• Acknowledgements
• Introduction: post-semantic interpretation
• 1 The shared nature of language
• 2 Derrida on language and meaning
• 3 Reading the law – hermeneutics and deconstruction
• 4 The ethics of language
• 5 Uncertain justice
• Conclusion
• Bibliography
• Index