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8 J. Juris 647 (2010)
How to Do Things with Wittgenstein: The Relevance of Wittgenstein's Later Philosophy to the Philosophy of Law

handle is hein.journals/jnljur8 and id is 25 raw text is: THE JOURNALJURISPRUDENCE How To Do THINGS WITH WITTGENSTEIN: THE RELEVANCE OF WITTGENSTEIN'S LATER PHILOSOPHY TO THE PHILOSOPHY OF LAw David M. Finkelstein Abstract: This Article explores the later Wittgenstein's contribution to our understanding of legal norms. Wittgenstein's philosophy of language is widely credited with having important consequences for the debate over the determinacy of legal judgments and the objectivity of legal norms. One can't help but be struck, however, by the extent to which critics disagree about what Wittgenstein actually thought. According to some proponents of the critical legal studies movement, Wittgenstein shows that judgments about the law are indeterminate. More sophisticated defenders of critical legal studies have argued that Wittgenstein shows that legal judgments are rendered true or false by community consensus. A third view holds that Wittgenstein rejects as nonsense the sorts of theories of legal objectivity that proponents of the first two positions attribute to him. This Article considers and rejects all three of the above-mentioned positions, and proposes an alternative interpretation, according to which Wittgenstein shows how facts about what the law requires can be objectively true without being reducible to empirically verifiable, non- legal facts. 1. Introduction Ludwig Wittgenstein is routinely credited with changing the philosophical conversation by de-emphasizing the sorts of epistemological concerns that philosophers had inherited from the likes of Kant,' Hume,2 and Descartes, and emphasizing instead questions concerning the nature of language and how J.D., Columbia Law School, 2006. Ph.D, Philosophy, University of Pittsburgh, 2006. Many thanks to Andrew Ayers, Kevin Davey and Kate Swift for extremely helpful comments on earlier drafts of this paper. My deepest gratitude always goes out to my teachers: Circuit Judges Richard Cudahy and Rosemary Pooler, and Professors David H. Finkelstein and John McDowell. 1 See IMMANUEL KANT, CRITIQUE OF PURE REASON (N. Kemp Smith trans. 1965). 2 See DAVID HUME, AN ENQUIRY CONCERNING HUMAN UNDERSTANDING (Eric Steinberg ed., 1993). 3 See RENE DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY (John Cottingham ed., 1986). (2010) J. JURIS 647

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