Wittgensteinian praxeology versus Kelsenian transcendentalism

Abstract

This article argued against the praxeological thesis (the praxeological conception of meaning of the second Wittgenstein [1989] claims that the meaning of the words of language is in their use) that underlies the attempts to extend the ideas of the second Wittgenstein about language and meaning to the field of the science of law. Likewise, reasons are offered in favor of the “transcendental” conception of knowledge postulated by Kant, refined by the neo-Kantian movement and adopted by Hans Kelsen. First, some of the approaches that have been made with the purpose of applying Wittgensteinian ideas to legal science are exposed. Next, the confusion between knowledge and practice of the law on which these approaches are based is criticized. As it will be explained, this confusion derives from a praxeological conception of meaning. Then, a general description of the epistemology of the Marburg Neokantism is provided to show that it gives us a better explanation of legal knowledge than that which derives from the praxeological conception of meaning. In sum, the conclusion is that Wittgenstein’s ideas are not applicable to jurisprudence. It is further suggested that perhaps some extra-legal discussions, more typical of a philosophical reflection on law than of its conceptualization and description, could be the object of the type of grammatical analysis that we find in the Philosophical investigations.