The Prospects of a Language-Based Argument for Legal Determinacy

This essay is concerned with the issue of determinacy, not in general but in the (specific and local) context of legal practices. I start out by presenting two influential criticisms that has been levelled at the case for content-determinacy of legal contents, as this case is made by HLA Hart and Frederick Schauer. The first criticism holds that the determinacy of law is not primarily conditioned on the meaning of the words of law; rather, it is established by considerations related to the purpose of legal directives. The second criticism claims that the contents of law can only be determinate if certain fundamental factual and normative assumptions about law and its application are widely shared within the legal community; such widespread agreement, however, is (seen to be) lacking in today’s legal world, which is globalized and so encompasses not one but many diverse legal communities. Once these critical arguments have been introduced, I move to argue that an approach to legal determinacy based on the later development of Wittgenstein’s philosophical account of meaning and normativity is well worth further consideration. For, despite the fact that it cannot conclusively establish whether legal contents are determinate, Wittgenstein’s later philosophy has at least the potential to restructure the terms of the discussion on legal determinacy.