Law is also a competitive system (we would do better not to call it a system but rather an activity); law is best defined as a competition of arguments. Law may also be described as a language within competitive justice – for justice being an ideal appears only as the competitive balance – and this is not a statement of whether we like it or not. – In philosophy, and science, the question should not be about our preferences but about reality - about what in fact is the case.
Notwithstanding the underlying dogmatic beliefs in the exactness of law, interpretation has always fascinated legal scholars – this is because in reality behind all the imaginary theories reality always kicks in – and in all human communication interpretation is all there is to it: Want it or not at the end of the day it is about interpretation. The closest they have come to a healthy understanding in legal theory is the emphasis on interpretation. All the legal language-games seem to admit some kind of uncertainty and in order to remedy it they admit a role for interpretation. In law interpretation is not an auxiliary technique – it is all there is to it. A text is not a thing (even the individual words used are no things), therefore all we can do with a text is to interpret it; and the interpretation i.e. the result of it, is in turn an argument (a series of arguments).
The realization that there are only expressions and interpretations ultimately leads to the revelation that there is no correct interpretation. What seems like the legal truths are the perceptions created by the competition-like activity. The scoreboard of truth is a function of the competitive process. – This revelation effectively removes the hat from the riddle of law. -
What the positivists call ‘laws’ could equally well be called ‘interpretations’, i.e. when they are busy promulgating laws they are in fact issuing interpretations, or even ‘normative proposals’(I later call them ‘strong arguments’).
Law cannot even be about anything else than a competition of arguments, because there is nothing to prove in law: Opinions cannot be proven; feelings cannot be proven – they can just be promoted and defended – and this is what happens in law. There is one issue, though, that can both be proven and equally does not need to be proven (it goes without saying): This is right to life – but this is not an argument as such, it is a biological fact: life ends at death. From this follows the foundation of justice, which is the respect of life. Life belongs to the individual, when the individual dies life ends; Wittgenstein: “At death the world does not alter, but comes to an end” (Tractatus 6.431). – At death with the individual life all that counts dies – and no social justice will remedy that. – Apart from the life of an individual there is only one utilitarian good that can be recognized as a criterion for justice and this is the protection of the environment, the preservation of nature: the conditions for life.
In my view law is:
1. Social Practices: In a specialized treatment in law we may delimit this under the concept ‘legal practices’.
2. A Quest for Justice: An activity in the quest for justice (individual justice)
3. Arguments: The activity of law is advancing arguments to promote one or another view of desired behavior (a Competition of Arguments)
4. History of Law: The set of arguments that have a special function in law are those that have earlier been promoted as specific legal arguments: These are e.g. law texts as such (statutes, en actments); precedents and other court cases (reports on arguments earlier recognized in courts); scholarly work on law (research and opinions on how normative arguments have been treated and how they should be treated in the future). In law these arguments are studied. We just need to broaden the scope of the study to include all normative expressions.
5. Competition: The continuous flow of arguments can best be described as a competition between normative expressions (arguments); but do not confuse this with 'fair competition', which is the aim, and which could someday emerge when the individual is the king.
[For clarity of presentation this list of characteristic topics amounting to ‘law’ was amended for the e-version published August 13, 2006. ]
Law cannot be studied as a natural science, as an attempt to reach some final understanding of the norms, all the norms are just expressions and interpretations, opinions; they do not have any truth value, any underlying scientific meaning, or any hard core.
Language-Games of Law
I use Wittgenstein’s idea of language-games to illustrate how thinking and the perceptions we create of reality are confined to the mental need of creating self-explanatory and closed systems of knowledge. By comparing traditional jurisprudence to games we gain two insights: first insight, the analogy to a game (e.g. a ball game) helps us to see what kind of an idea we have formed; second insight, we should come to appreciate the essence of a game itself, understanding that even the game-like conception (i.e. the contemporary view) would require opening the mind to a broader and flexible understanding of what law (the normative interaction) is all about; after all not even the concept of game is restricted; the concept of game offers us a very elastic world-view, we can discern ‘complicated networks of similarities overlapping and criss-crossing; sometimes overall similarities, sometimes similarities of details’ (PI 66).
We see that legal positivism provides the setting for language-games – the problem is that they are not only describing a language-game, but fabricating them (artificial language-games) and partially the fabricated game takes root in reality: this happens when lawyers (and the public) start to believe in the animated concepts.
There is no possibility, no base (no support in reality) to claim that certain kind of behaviour or social relations would fall under the notion of law and other kind of behaviour would not (e.g. the claim that there are separate legal norms and moral norms). Law is not a system that would be separate from other appearances of normative systems. Any kind of behaviour which yesterday seemed like a ‘private moral matter’ may today be seen as a legal matter (e.g. yesterday it was showing affection, today it is sexual harassment). There is no border between legal norms and other norms – there is a border drawn in the language-games but not in reality
It is naive to make a philosophical distinction between punishments sanctioned in accordance with a state penal system and all the other penal systems: Both ‘official’ and ‘non-official’ punishments produce death.
Legal philosophy and the prevailing theories of jurisprudence do not account for any change in the system; the doctrines portray a static system confined in the language-games and do not cope with the obvious and constantly occurring changes in perceptions on justice. This is because law is defined as a system of (hypothetical) rules; (hypothetically) promulgated by a sovereign; with (hypothetical) validity – But all that counts i.e. justice is ignored. – All that can come out of such theories are nonsense and suffering. We have to reintroduce justice to the normative theories: because in practice it is there anyway: justice is the change for the better. – In reality the normative arguments are and have always been in constant competition in the system of law.
Legal practices: As law can be defined only as competition between arguments on each level of life, we also have to understand that the activity involving law does not happen only in the court rooms or in the parliaments; law takes place in all human interactions. Therefore we have to make use of the notion legal practices, and with the help of this insight study which are the typical situations where normative expressions combine to an activity which could be perceived to fall within a specialized notion of law (where law is understood broadly to involve the competition of normative expressions, arguments).
My aim is to show that law is not a thing, but social practices through and through. In Western societies there is a comparatively high degree of certainty and predictability (which does not mean the same as the systems being just – here a different perception is involved). – This predictability, to a larger or smaller extent, is something that may be perceived in many features of life – when focusing on law we may identify the aspects that create predictability within the notion legal practices.
It should be noticed that while law theories make the distinction between legal norms and other norms, legal practices (or social practices) do not
Understanding that law is about legal practices is especially important to notice when we analyze and opine on the Russian reforms and the state of society. In the West it has taken more or less an uninterrupted historic evolution to reach the notions of law and justice we have today (I stress that I do not regard this as necessarily an evolution going to an ever higher level – but there could be this kind of trend in very broad terms). With the introduction of Marx’s worldview to Russia by the Soviet dictatorship Russia entered a period which aimed at, and succeeded in, a total break with past traditions: throwing society into an abyss, where the patterns for interaction between people were interrupted by violent force; where all was turned upside down and inside up in whirlwinds. All elements that make for orderly social life were disrupted. - There could be no law and justice in such a setting, and there was none.
Norms and Rules
A legal rule is a condensed perception on how various arguments relate to each other in situations which resemble each other. - In reality ‘existence’ of a legal norm means the extent to which people interpret themselves to be compelled to a certain activity in accordance with their interpretation of the message contained in the norm - i.e. an interpretation of somebody else’s (singular or plural) norm statements (expressions), or perceived norm statements. The ‘existence’ could then be a question of to what extent the expression and interpretation match, and to which extent various people agree on the content of the norm expression.
Within traditional jurisprudence we could think in lines of there being finer and finer normative statements, and this would bring to the notion of atomic norms. Legal philosophy has not reached even this point of sophistication, though. Legal philosophy deals with complex normative statements of the kind of ‘rules’ (coarse entities). In Tractatus Wittgenstein reached the notion of logical atomism, which really is very similar to normative atomism. This notion brought him to realize that if the logical entities are so small and fine and manifold, then certainly there can be no logical system to cope with all the variations (in legal theory this problem has not even come up). Hence the notion of logical atomism led Wittgenstein to realize that it meant the same as if there would be no entities and no system at all. – If we submerge in the idea of logical atomism, and reach the comprehension that it is as if the constituent particles did not exist (which in fact is the case) – then what comes instead is the endless interplay between interpretations and expressions. - The only system there is, and can be, to cope with the infinitesimally small norm particles is the ordinary language. - (This contradiction was the object of Wittgenstein’s later work).
Yet to really grasp the picture of atomic norms one more hint is useful: Add to your imagination the picture of Brownian motion – imagine that the movement of the atomic norms would be that of Brownian motion (and this is also a hint for the crosswords logicians). - In at least Russia and Poland, so I have been told, it has long been common to compare human relations in society to the Brownian motion. The Brownian motion is an incessant, irregular and random swarming movement of microscopic particles suspended in liquids or gases. – So if we would be dealing with atomically small norms (for if anything at least they are not bigger), then certainly these atomic norms would be behaving in the same random irregular fashion as the molecules in Brownian motion. And if norms function like that, then we understand that there is no orderly pattern whereby they are arranged, and only an endless competition that arranges the perceptions.
In 1827 the English botanist Robert Brown had noticed that pollen grains suspended in water jiggled about under the lens of the microscope, following a zigzag path. Brown was studying pollen particles floating in water under the microscope. He then observed minute particles within vacuoles in the pollen grains executing this jittery motion, a rapid oscillatory motion of the pollen grains suspended in water under the microscope. By doing the same with particles of dust, he was able to rule out that the motion was due to pollen being alive, but it remained to explain the origin of the motion. - In one of the five important papers Einstein published in 1905, there was one on the Brownian Motion. In this paper it was shown that, according to the molecular-kinetic theory of heat, bodies of a microscopically visible size suspended in liquids must, as a result of thermal molecular motions, perform motions of such magnitudes that they can be easily observed with a microscope. Einstein wrote later that his major aim was to find facts that would guarantee as much as possible the existence of atoms of definite size. In the midst of this work, he discovered that, according to atomistic theory, there would have to be an observable movement of suspended microscopic particles. Later the physical theory of Brownian motion was scientifically established and ended the skepticism about the existence of atoms and molecules as actual physical entities. – But how long will it take until people will realize that these physical entities are physical only, and that language does not consist of things and thingly entities; and that in law (as in all social) we deal with arguments, opinions, expressions and interpretations, and that these are not things. – The same method of diligent observation that allowed mankind to penetrate into the secrets of physics and chemistry, should allow us to realize the essence of expressions and interpretations; understanding that all social activity is based on an interpretation of human feelings, and that these feelings are interpreted in language, and that language does not consist of a single atom, nor electron, nor proton, nor neutron, no thing at all. – Language is thingless interpretation of feelings. The understanding of the atom of the natural sciences should equally help us to understand the absence of an atom or any other particle in language (from the same insight we should be able to draw the opposite conclusions). Language, the fundament of the social, is thingless, while atom, the fundament of the natural, is thingly (this distinction has not been understood, and explains the backwardness of social sciences). But the thingless language stems from the thingly body; which connects social life with the biological individual, one individual with others in society, human time past with present; which connects words with deeds; and man with the nature (misuse of language, the weakness of language that is the peril and the butcher; is there a cure?).
Of course ‘any action according to a rule is an interpretation’; this because we simply do not have anything else to go by. A ‘rule’ is not a thing; there do not exist any rules, all we deal with are expressions and interpretations.