One common sentiment that underlies public perception of the Supreme Court, as well as the field of jurisprudence in general, is one of pedantry; a needless, almost sophistic obsession with the semantics of the law. Although certainly based in a grain of truth (as all tropes are), this misunderstanding critically misinterprets the integral role that language, as well as the usage of language, play in developing conceptions of "truth" and "understanding" in legal procedures.
As academic Danial G. Stroup inputs:
"Law is language- not only language, but a very special kind of language, for law is an attempt to structure the realities of human behavior through the use of words. When a legislature passes a law or a court hands down a decision, it is altering the status of individuals, changing their relationship to other individuals, to possessions and objects, to the state. Legal language does not merely describe these relationships; it affects what it describes."
Although it has always existed to a degree, this advanced fixation on language as a tool for legal decision-making with regard to the U.S. Supreme Court in particular first chronologically coincided with philosophy's "Linguistic Turn," a period in Anglo-American academic philosophy that saw increased interest in the relationship between philosophy, language, and how the users of language interact with the two. Indeed, the single most transformative event in the aforementioned relationship and what remains the single most pertinent one in the contemporary Supreme Court would occur in 1953 with the publishing of what remains one of the most integral works in the Western philosophical canon.
Philosophical and Historical Context
Much of the latter half of the career of twentieth century analytic philosopher Ludwig Wittgenstein was spent disrupting the causal relationship between logic, language, and the construction of reality. This disruption, foremostly expressed in the aptly titled and previously alluded to Philosophical Investigations (PI), is significant in that it runs directly contrary to the methodology first laid out by Wittgenstein's Tractatus Logo-Philosophicus, a much more conventional, typically analytical work aligned with the existing linguistic philosophies of Gottlob Frege and Bertrand Russell. PI famously rejects nearly all of the major conclusions that the Tractatus reaches, summarily through its repudiation of the necessity of a logically codified language. Thus, at the fundament of the discrepancy between the two works lies their opposing contextualizations of language. While the Tractatus defines language as something foundationally understood and defined by its logical form (i.e., the analogy of a "picture"), PI is strongly anti-essentialist, asserting that language and the words that underpin it lack a single essence and are only significant insofar as what is construed by them (i.e., the analogy of a "game"). With respect to legal language, PI's most profound contribution is through the concept of a "language game." A language game is composed of the tacit, mutually understood set of "rules" that exists between "players" (language users) in the construction of the meaning of words in a given context, and its legal implications are legion in the decision-making and interpretation of the law that is essential to the function of the Supreme Court.
Supreme Court Decisions as a Language Game
The usage of a consistent, structured, universally "regulated" language in the Supreme Court is paramount to its vitality, as all of its justices must operate under the same linguistic premises and definitions for any meaningful legal decisions to be made. In the context of the stated goal of the Supreme Court and its adherence to the Constitution, the specific language game that the Justices play is one hinged on the fundamental interweaving and equalizing of description and prescription. In playing the language game of the Constitution and attempting to form a legal thesis, Supreme Court Justices assume a precise linguistic similarity between the diction of the document in its usage of words such "all," "equal," "firearms," "delegated," and "life" and the implied moral connotations of such words. As for "morality" in law, all issues of morality are ultimately but confusions of language, and to play a language game with perfect linguistic clarity (to Wittgenstein, the "goal" of philosophy) is to view supposed moral issues with perfect clarity as well, per Wittgenstein (in both stages of his career, in fact). The issue in the Supreme Court's language game arises with the circumvention or subversion of the basis of its "rules," namely in the form of attempts to hijack the language of the Constitution so as to deprive it of its necessary mutual intelligibility. In the contemporary legal and political landscape, "cheating" the language game that the Constitution plays typically concerns politics, policy, and ideology, concepts that exist as a product of the increasingly polarized Supreme Court and are diametrically opposed to any legitimate attempts to create legal clarity or reach a consensus on the language of the Constitution. Future editions of this article will cover relevant contemporary examples of this phenomenon and how they violate the notion of a language game.
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