Emilia Mickiewicz: Formalism, Scepticism and Wittgenstein (with Aleksandra Wawrzyszczuk)

Emilia Mickiewicz, is a Lecturer in Law at the University of Newcastle, and will be presenting the fourth paper of Michaelmas Term: “Formalism, Scepticism and Wittgenstein”. Dr Mickiewicz's presentation will be followed by comments from Aleksandra Wawrzyszczuk (NYU).

This seminar takes place in Massey Room, at Balliol College, University of Oxford (Broad St, Oxford OX1 3BJ) at 5:00pm on Thursday 7 November.

Abstract:

A demand for certainty and the need to leave general concepts open for determination in novel contexts contribute to a long-standing tension in common law. On the one hand, formalism asserts that the meaning of legal concepts is settled. On the other hand, rule sceptics assert that legal concepts are open-textured and provide no stable bedrock against which to resolve legal disputes. H.L.A. Hart famously sought to address this problem by devising his elegant distinction between core and penumbra. He argued that that some cases fall within an already established core of settled meaning, whereas others are not covered by the existing rules, and need to be determined anew. However, as Lon Fuller and others have persuasively shown, the distinction cannot be sustained. The established meaning can shift if the context or the purpose for which a rule was devised changes. Yet, the distinction between core and penumbra continues to dazzle the minds of legal scholars. practitioners and judges. The leading modern test for negligence proposed by Lord Reed in the case of Robinson rests on a dubious assumption that a clear line can be drawn between the established and novel categories of negligence.

This paper explores further reasons, and examples as to why the distinction cannot be sustained. As Wittgenstein demonstrates in his final work—On Certainty—natural language is neither determinate, as formalists would have it, nor radically open-textured. Instead, it exhibits relative stability. Legal concepts, just like other expressions of natural language, do not exhibit the propositional character of formal theorems but acquire meaning through analogical use in practice.

This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

If you want to receive the papers we discuss in our seminars join our mailing list by sending a blank email at jurisprudence-discussion-group-subscribe[at]maillist.ox.ac.uk.