Didikin on Law as a Linguistic Phenomenon

Anton Didikin, Higher School of Economics; Russian Academy of Sciences, Russian Academy of Sciences Institute of State and Law, has published Law As a Linguistic Phenomenon: Analytical Approach at 13 Proceedings of the Institute of State and Law of the RAS 40 (2018). Here is the abstract.

Law as a regulator of the conduct of social subjects cannot be directly equated with other methods of controlling the behavior in society. The grounds of legally significant actions allow determination of the context of the application of legal rules. The meaning of each legal term, as argued by L. Wittgenstein, depends on its “context of use” and the conventions of use at the moment. Therefore, the interpretation of the rules cannot be based solely on the principles of logic and be completely neutral. On the one hand, “we follow the rule blindly”, but at the same time, the repeatability of the behavior of other people and the ability to observe their behavior (by analogy with the mathematical concepts of addition and sum) encourage “learning” the rules and acting in accordance with the rules. The ascription of the legal language and the “imputation” principle of the legal interpretation of facts allow defining a key concept that cannot exist beyond the constructed social reality. The attempts to analyze non-legal factors appeal not to legal arguments but to other phenomena. The legal term in its nature not only describes empirical facts but also encourages action.The most dismal example of a change in philosophical argumentation and legal reasoning in the philosophy of law is the influence of Quine’s arguments. In the context of the methodology of legal explanation, the naturalization of the epistemology of law is possible only when the limitations and specifics of traditional methods of interpretation of legal reality are considered. The paper focuses on the analysis of some arguments made by the analytical legal philosophers regarding the linguistic content of legal rules with no reference to any social determination or formulation of the significant judgments about the linguistic nature of legal reality.

Download the essay from SSRN at the link.