Show Me How to Get There: The Rule of Law as a Language Game

Rule of law;consistency;language game;Political Science

Merriam, JesseGrossman, Joel ;

Johns Hopkins University

关键词: Rule of law;    consistency;    language game;    Political Science;   

Others  :  https://jscholarship.library.jhu.edu/bitstream/handle/1774.2/60304/MERRIAM-DISSERTATION-2014.pdf?sequence=1&isAllowed=y

瑞士|英语

来源: JOHNS HOPKINS DSpace Repository

【 摘 要 】

This dissertation is about the relationship between legal consistency and the rule of law.Chapter 1 begins the dissertation with four prefatory points central to exploring this relationship.Chapter 2 then surveys how different periods of legal thought have conceived of legal consistency.Chapter 3 takes a step back to consider this issue from a broader perspective, investigating the philosophical foundations for this link between consistency and the rule of law.Chapter 4 continues this philosophical examination by looking at divisions on the subject within contemporary analytical legal philosophy.Chapter 5 tackles the empirical side of the debate, exploring how different political science models of judicial decision-making have sought to measure and understand legal consistency.Chapter 6 marks a break in the dissertation, turning away from survey and synthesis, and moving toward creating a new model and theory of legal consistency. Chapters 6 lays the foundation for this new model by providing an original taxonomy of the different types of legal consistency in an effort to develop a fuller and richer account of legal consistency and its relationship to the rule of law.This chapter argues that legal consistency is not a univocal but rather a protean concept, consisting of various meanings, applications, and uses, with each bearing a distinct relationship to the rule of law.To explore the context-dependency of the concept, Chapter 7 borrows from Wittgenstein’s philosophy of language.Based on this examination, Chapter 7 concludes that the rule of law is not an essential concept, but neither is it an essentially contested concept.Arguing against both extremes, Chapter 7 demonstrates how the rule of law operates like a Wittgensteinian language game.This analogy helps illuminate how, over time, certain legal propositions become foreclosed as implausible due to their being inconsistent in particular ways with settled legal norms.Chapter 8, the final chapter, applies this theory to the three areas of law discussed throughout the dissertation – abortion, church-state, and affirmative-action law – to demonstrate how participants in legal discourse tend to converge in the long-term.The dissertation identifies this convergence as central to the rule of law.So while adjudicative inconsistency continues to exist to some extent, adjudicative convergence, rather than complete consistency, is what makes the rule of law possible.The dissertation concludes with some reflection on what the preceding discussion teaches us about the relationships among law, politics, logic, and language.The upshot is that law is not politics, but it is not purely a logical exercise either.Legal rationality is a special hybrid of both sheer politics and metaphysical logic.Holmes was thus only partly right when he said that;;[t]he life of the law has not been logic; it has been experience.”The life of the law is both experience and logic, and this is because it is a language.