Language and "Ought" On the Boundary between Jurisprudence and Sociology of Law

• Published in: The Sociology of Law Vol. 2002; no. 57; pp. 62 - 79,259
• Main Author: Nakayama, Ryuichi
• Format: Journal Article
• Language: English; Japanese
• Published: The Japanese Association of Sociology of Law 30.09.2002
• ISSN: 0437-6161; 2424-1423
• DOI: 10.11387/jsl1951.2002.57_62

This essay sketches the methodological shift in legal theories in the postwar Japan. From the end of the Second World War until the mid-1970s, Jurisprudence and Sociology of Law in Japan were dominated by the "science"-oriented approach, in which the "linguistic" scrutiny was emphasized both in methodology of legal interpretation and empirical study of legal practices. In this approach, the separation of the world of "Ought" and that of "Is" was crucial, and Jurisprudence dealt with the former while Sociology of Law the latter. Since the model of linguistic analysis applied was that of C.K. Ogden and I.A. Richards and that of behaviouristic science of the day, this approach was capable of illustrating the mechanism of the "social control" by law, but it could not at all shed light on the discursive process in "conflict resolution". It was the Austinian or Wittgensteinian understanding of the "language" that has opened up a new approach towards the Law. As exemplified by the pioneering work by H.L.A. Hart, in this new perspective of the legal studies, the legal language is not treated as transparent medium of the meaning or the "mirror of the nature", but something performative which do things. Moreover, by introducing the notion of "institutional fact", this new approach of "law and language" challenges the conventional boundary between "Ought" and "Is", and, at the same time, between Jurisprudence and Sociology of Law. It also led to the introduction of the diverse constructionist approaches, such as ethnomethodology, discourse analysis, hermeneutics and narrative studies etc. into the legal studies, and opened up a possibility to explore the genesis of the "normative" out of legal practices.