Andrei Marmor - Philosophical Foundations of Language in the Law

(p.iv)

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The close connection between philosophy of language and philosophy of law was emphasized by H.L.A. Hart, and has been recognized for decades. As early as in his inaugural lecture, Hart argued that many central issues in jurisprudence depend on an adequate conception of language. Later, in his seminal work, The Concept of Law, he made it clear that he saw philosophy of language as playing a foundational role in his theory of law. In the preface to that work, he says:

[T]he book may also be regarded as an essay in descriptive sociology; for the suggestion that inquiries into the meaning of words merely throws light on words is false. Many important distinctions, which are not immediately obvious, between types of social situation or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on social context, itself often left unstated. In this field of study it is particularly true that we may use, as Professor J.L. Austin said, a sharpened awareness of words to sharpen our perception of the phenomena.

A few pages later, however, Hart warns us that the purpose of his book is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of the word can be tested. an important key to understanding the social institutions (like the law) in which such usage occurs.

In spite of Hart's linguistic characterization of his methodology, questions about the relationship between language and law did not become central for some decades after the publication of The Concept of Law. Partly because of the important substantive issues raised in the book, and partly because it does not contain much that is specific to philosophy of language (apart from the then ubiquitous metaphilosophical conviction that all conceptual connections are ultimately linguistic), commentators have largely ignored Hart's remarks about the role of language in understanding law. This persisted until the mid-1980s, when R. M. Dworkin raised the issue in his critique of what he took to be Hart's method. In