The Linguistic turn in Legal Philosophy
Analytical Legal Philosophy as an intellectual current was formed in the 40’s-60’s of the 20th century as a result of the rethinking of the problems in legal philosophy from the positions of the empirical study of law, the analysis of the empirical content of legal constructions, and the study of the legal language and the logic of legal reasoning. Considering the detailed elaboration of the methodology of study of legal phenomena and legal constructions, the purpose of the discussions among analytical legal philosophers was to clarify the specifics of legal language. The widespread popularity and citation of philosophical works written by the representatives of the analytical legal philosophy (H. Kelsen, H. Hart, P. Hacker, J. Raz, etc.) contributed to the formation of academic community and specific intellectual environment. In the second half of the 20th century, the development of the analytical tradition in philosophy of law was influenced by the general principles and methods of analytical philosophy (mainly, from the Oxford school of linguistic analysis and ordinary language philosophy), as well as by classical theories of philosophy and law.
The «linguistic turn» in the legal philosophy originated not only as the result of the influence of the analytical philosophy methods used to clarify the meanings of the terms of the legal language but it also served for the purposes of justification of the conceptual analysis as the main method of resolving possible contradictions. The nature of legal statements began to be interpreted in the context of the linguistic content of legal rules. Additionally, in some cases, the social context began to be considered not from the viewpoint of law and social reality relations but as a context in which the legal terms are used, for example, in judicial argumentation or in the process of ascribing the legal significance to actions.
The range of issues that relate to the analytical tradition in legal philosophy has not expanded significantly but has received a new impetus for further philosophical and legal research on the legal concepts. Based on the classic arguments of John Austin and Hans Kelsen, H. Hart updated the methodology of resolving the philosophical and legal issues. The rule-following problem and the possibility of its application to the legal language led to long discussions in the analytical legal philosophy.
Along with conceptual analysis, the methodological basis of interpretation was introduced in philosophy of law; and various forms of interpretation of the legal norms that may have a theoretical significance came to be acceptable. These methods of interpretation have become particularly important due to the complexity of resolving the issues related to judicial discretion and the «open texture» of law, and for the first time, they were reviewed in the philosophical and legal concept of Ronald Dworkin. R. Dworkin himself formulated a number of original arguments against legal positivism but, from a methodological viewpoint, he followed the views of the positivists, supplementing them with arguments; thus, he rather improved legal positivism than opposed it. Therefore, Dworkin’s theory of a «constructive interpretation» hardly can be viewed as the theory that opposes the legal positivism; rather, R. Dworkin is an opponent of some aspects of Hart’s concept, but, ultimately, a contributor to their development.
Another important phase of the development of analytical legal philosophy was the project of the «naturalization of epistemology». Based on the ideas of W. Quine, the project partially addressed the realistic argumentation against legal positivism, and largely induced legal philosophers to discuss the extent to which Quine’s arguments were applicable in the legal sphere. Despite the fact that, since the beginning of the 20th century, legal realism developed as an independent current of legal philosophical study, its naturalized version can be attributed to discussions in the area of analytical legal philosophy.
The legal language characteristics and the ways of its philosophical study are determined by the specific functions of law that is a regulator of legally significant actions. There are a number of theories in the philosophy of law that focus on the issue of how legal phenomena are reflected in legal statements. Particularly, in Kelsen’s normativism, law is presented in the form of the system of the interrelated legal norms that have a common and individual nature. These legal norms contain a model of a «proper» social relations development and methods of their regulation; however, traditional notions of the causality and effect are not applicable to such social relations as the empirically observed actions can get a legal meaning and significance only if there is an act of an authorized subject. In other words, legal reality is reflected in the legal language differently than the other objects in the world. Similarly, H. Hart notes the ascriptive nature of legal statements, since the use of grammatical constructions in law, unlike other areas of knowledge, suggests the simultaneous performance of a legally significant action, qualification and assessment of ongoing events and actions, and in some cases, prosecution. Epistemological questions arise specifically during the analysis of interactions of the legal norms, legal relations, and actions.
