The import of ordinary language philosophy for legal theory

Corrigan, Vincent Noel (1979) The import of ordinary language philosophy for legal theory. LL.M(R) thesis, University of Glasgow.

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Abstract

The general theme of this thesis is an exploration of the relationship of Legal Theory to the general part of philosophy. Ordinary Language philosophy is uiniquely role-conscious, concerned not only with the what but with the why of philosophy; as such, it offers jurisprudence not only a contribution ab extra, but holds forth a more intimate offer in a role of philosophy which it may adopt to rehabilitate or accommodate itself within the realms of that very philosophy. This general theme is sometimes explicitly considered, but is implicit throughout the four chapters of this thesis, of v/hich the following synopses are provided, CHAPTER 1. ORDINARY LANGUAGE PHILOSOPHY The development of this modern philosophy is traced from its earliest adumbrations in the concerns of Frege and Russell with logic and language. The career of Wittgenstein, universally recognised as its most influential, if its most idiosyncratic philosopher, is tised as an ideal narrative vehicle for the chronicling of that development, and the ideal exponent of its characteristic doctrines. The ideas of the earlier and the later Wittgenstein are in turn considered with due regard paid to his methodological and substantive contributions and the extent to which these changed, endured, or interinformed throughout his philosophic development. Finally, his relationship to the generality of ordinary language philosophers, is considered by means of a comparison with Gilbert Ryle, equally a member, if less the leading light, of that movement. CHAPTER 2. ORDINARY LANGUAGE PHILOSOPHY AS APPLIED TO LEGAL THEORY To illustrate this, the writings of H.L.A. Hart are considered, firstly, to exhibit how the methods and substantive ideas of that philosophy can, almost intact, be applied within jurisprudence; secondly, it is shown, beyond this mere fact of application, that Hart's insights are not only successful applications, but are effective almost in proportion as they are exact applications of that philosophy's insights. Two major contributions by Hart, those on Ascriptive Language, and the Law as a system of rules, are subjected to an in-depth and corrective criticism,. This chapter concludes with a brief statement of the significance of the argument to date upon the relationship of legal theory to general philosophy. CHAPTER 3. ORDINARY LANGUGE PHILOSOPHY - REVIEW AND CRITICISM Here are treated several criticisms of crucial importance to this philosophy, the rebuttal of which is necessary to confirm our earlier advocation of it as the most rewarding method of philosophy. Firstly are considered criticisms made by structural linguists, that ordinary language philosophy, especially Wittgenstein's, is too much an abreaction from the errors of Logical. Positivism, and so misconceives the role of language in philosophy. Secondly, a set of criticisms, made by several philosophers, among them, phenomenologists, is considered to the effect that this philosophy has too arbitrarily and too behaviouristically excluded the "inner" or the "mental" from philosophy. Thirdly, an attempt is made to characterise, or expose the manner of conviction sought and achieved by this philosophy to vindicate it against charges of subjectivity. CHAPTER 4 JURISPRUDENCE - AN ALTERNATIVE APPROACH To provide a useful comparison, Scandinavian Realism, and the writings of Olivecrona, among other realists, are examined. As a relatively modern school in jurisprudence, its development, and that of Olivecrona's thought, are traced to reveal the important formative influences, upon Olivecrona, of the theories of Petrazycky, and upon both, the broadly anti-metaphysical movement in philosophy of the early part of this century. Olivecrona's ideas are critically evaluated with reference both to ordinary language philosophy, and to other theorists of the realist school. A comparison of the Realist and the Linguistic approach, as a philosophy of law, concludes this chapter. CHAPTER 5. A SHORT EXERCISE IN JURISPRUDENCE The thesis is concluded with a brief practical example of the use of a linguistic approach as a solvent to some traditional problems of legal theory. The grammar of the legal rule is examined to provide a distinction between rule as practice and ruling as 'speech-act'; this distinction is then applied to the relationship of the courts etc. to the corpus of legal practice and behaviour in both municipal and international law, and usefully extended to provide some insights into the interrelationship of those two structures of law themselves.

Item Type: Thesis (LL.M(R))
Qualification Level: Masters
Keywords: Philosophy
Date of Award: 1979
Depositing User: Enlighten Team
Unique ID: glathesis:1979-73367
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 14 Jun 2019 08:56
Last Modified: 14 Jun 2019 08:56
URI: http://theses.gla.ac.uk/id/eprint/73367

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