Language, Truth and Law
Current Legal Issues, Michael Freeman and Fiona Smith (eds), Vol. 15, 2012
18 Pages Posted: 28 Mar 2012
Date Written: March, 27 2012
This essay seeks to deal with fundamentals regarding the interrelationships between language, truth and law, but by taking a path that progresses through observations that can be stated uncontroversially, in contrast to an elaborate view of how an understanding of language, truth and law should be combined to promote a comprehensive account of human life and social existence. Different configurations of the three elements of the title produce different priorities. One emphasizes a technical understanding of language in deriving a true understanding of law. Another emphasizes the particular features of law and its practice in shaping the acceptable meaning that can be conveyed by language in the legal context. It is also possible to find a prioritizing of truth governing acceptable understandings of law.
Although all of the configurations mentioned are considered in the essay, the strategy for working through them is oblique, in examining different possible relationships between language, truth and law as they emerge in a number of scenarios involving the putative operation of legal texts. On the understanding that the set of scenarios chosen is sufficiently representative of the different ways in which legal texts operate, the investigation reaches a number of general conclusions about language, truth and law.
The essay considers the nature of legal propositions, the basic characteristic of legal language, different ways in which the language of the law is regarded as becoming unclear and the corresponding views on how that uncertainty is resolved. Models are introduced to exhibit the elementary scenarios of acknowledging and dealing with uncertainty in legal texts, as a basis for discussing the interrelationships between language, truth and law.
The conclusions reached from this discussion are that the meaning of legal language cannot be assisted by a deeper technical understanding of language; that truth is inappropriately invoked as the basis for establishing the meaning of legal texts; that clear cases do not provide illumination for hard cases, but the reverse (thus casting doubt on Hart’s central or standard case analysis of legal language); and, in general, that legal language follows the practice of law.
Keywords: law and language, law and truth, legal propositions, Hart, Dworkin, Finnis
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