On the Application of Wittgenstein’s Later Ideas in Modern Legal Theory

The attitude to the ideas of the “later” Wittgenstein in the theory and philosophy of law was and remains very ambiguous, which is reflected both in the variability of their interpretations and in the assessments-from apologetically enthusiastic to radically skeptical. To some degree this polarization of positions is because Wittgenstein himself provides neither what a rule is, nor what criteria allow us to determine what it means to follow a rule; and because it is clear what kinds of rule we are talking about when discussing the application of Wittgenstein’s Philosophical Investigations in the theory and philosophy of law. But no matter how the positions of legal scholars were formed regarding the application of “later” Wittgenstein’s ideas to the legal sphere, and no matter what strategy they followed, they are united by a common methodological motive-how to solve (elucidate and, if possible, eliminate) the so-called legal indeterminacy problem. The essence of this problem is reduced to the question of whether legal rules (legal norms) determine the result of a judicial decision (or other law enforcement) in each particular case. Legal formalists answer this question positively, since they believe that the task of a judge is to resolve judicial disputes by applying consistent principles to the facts in order to obtain a result. Legal anti-formalists, on the contrary, argue that legal rules and legal concepts (and law in general) are “radically indeterminate” because of the indeterminacy of the language itself. The idea about the “direct application” of Wittgenstein’s thoughts to solve the legal indeterminacy problem caused criticism and heated debates. For example, the modern American legal philosopher Brian Bix sharply opposed it, who argued that Wittgenstein’s ideas were not directly related to jurisprudence. Considering and analyzing the discussions and arguments of legal formalists and legal anti-formalists, Bix formulates his own philosophical position. He does not consider himself to be one of the opposing sides, but a careful consideration of his arguments shows that he rather adheres to the position of philosophical anti-realism, according to which formal procedures affect the interpretation of legal constructions that are often hypothetical in nature.

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