Law as Language

Marianne Constable

Abstract


This paper proposes understanding law as language. Doing so offers an alternative both to jurisprudential accounts of law as a system of rules and to sociological accounts of law as effective (or ineffective) social power. Part II shows how approaching law as language takes doctrine and legal texts seriously, as speech acts of claiming that do things, rather than as nounlike rules or their application. Such an approach recognizes that legal actions or events of claiming are “imperfect” in a grammatical sense: practical knowledge of law is incomplete, continual and interruptible, while legal acts occur more and less well under particular conditions. Understanding law this way, part III shows, also enables one to critique narrow approaches to law as “policy” or as exclusively a problem-solving tool or instrument. The paper not only argues that law may be thought of as language then. It ultimately suggests another law: that we are creatures of language.

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