The Linguistic Inclination In The Understanding Of Law

H.L.A.Hart's legal theory is the product of the"linguistic turn"in the development of western philosophy in 20th century and is the specific practice of philosophy of language in jurisprudence. It was the booming period of the movement of ordinary language analysis led by later Wittgenstein and the Oxford School when Hart began engaged in legal research which therefore had been deeply influenced by this movement. As a member of the Oxford School, it is quite obvious that Hart was influenced by this school which is also known as the Ordinary Language School with J.L.Austin as its leader. But the evidence that Hart was influenced by later Wittgenstein is not so obvious as that. This article is to use the thoughts of later Wittgenstein in interpreting Hart's legal theory to reveal the Wittgensteinian factors demonstrated in it explicitly or implicitly and try to make us better in understanding Hart's legal theory at the background of the philosophy of language. This article begins with the inquiry of the relations between Hart and Wittgenstein from point of view of outside history of thoughts. Then it focuses on the inside history of thoughts and compares Hart's argument on legal concepts, legal statements, legal system with Wittgenstein's"family resemblance"theory ,"language games"theory and"form of life"theory to reveal the relations between them. As to legal concepts, Hart strongly opposed the traditional method to work out the definition of legal concepts, that is, per genus et differentium, and thought that most of them had an unique peculiarity that many legal phenomena are ascribed to a single legal concept not because they have a common character but they are connected together in different ways. This is just the spirit of Wittgenstein's"family resemblance"theory. As to legal statements, Hart expressed two points on it. First, Hart thought legal statements a unique kind of statements that could be completely understood only against the background of the whole legal system. This point is consistent with Wittgenstein's opinion that the whole language game is the basic unit of meaning. Secondly, Hart thought that there were two kinds of statements about law, internal statements and external statements. If we are unable to see the difference between them or even look on the external statements as the only legitimate statements about law, then we will be at lost in understanding the law correctly. This kind of variety of legal statements is just parallel to that of language games. In the discussion of legal system, Hart said that the statements of the validity of the rule of recognition which is the foundation of a legal system were different from the statements of the validity of other rules in that the former was internal statements while the latter was external statements. So the existence of a legal system means the fact that the rule of recognition is obeyed by all the people or at least the official community. This conclusion is in conformity with Wittgenstein's"form of life"theory. In addition, through the revelation of philosophical factors in Hart's legal theory, this article also demonstrates the effort made by Hart in curing the rational deceases such as essentialism, scientism and foundationalism in the research of jurisprudence. At the end of this article, the relations among Hart, J.L.Austin and Wittgenstein and the disputes on this problem among scholars are given a brief discussion.