The New Wittgensteinians and the End of Jurisprudence
This article seeks to critically evaluate the new approach to jurisprudence and legal justification. In particular, one of the most significant contributions of the article is that it seeks to evaluate the new approach by, among other things, examining the history of the Wittgensteinian descriptive project in other areas of philosophy. The article focuses primarily on the work of Philip Bobbitt who has offered the leading example of this type of neo-Wittgensteinian approach. The arguments generated in the course of the article, however, may be applied against any neo-Wittgensteinian internalist approach to jurisprudence. Thus, the article seeks to provide a general critique of the neo-Wittgensteinian internalist project in law.
Part II sets out a brief account of Wittgenstein's later approach to philosophy. It also explains that Wittgenstein influenced philosophers to take the linguistic turn. Thus, it describes the approaches of the ideal language philosophers and the ordinary language philosophers.
Part II then locates Bobbitt's project within the Wittgensteinian tradition and sets out Bobbitt's basic descriptive approach to jurisprudence. Part II closes by contrasting internal with external approaches to jurisprudence. Part III sets out some alternatives to the internalist descriptive project. Part IV seeks to evaluate the neo-Wittgensteinian internalist descriptive approach to jurisprudence. The article concludes that the neo-Wittgensteinian project should be rejected.
Loyola of Los Angeles Law Review
George A. Martinez, The New Wittgensteinians and the End of Jurisprudence, 29 LOY. L.A. L. REV. 545 (1996)