Chapter 11 Chapter 7 Analyzing Positivism

The French mathematician and philosopher Auguste Comte (Auguste Comte, 1798-1857 AD) can be considered the philosophical founder of modern positivism.He divided the evolution of human thought into three stages.According to Comte's classification, the first stage is the theological stage.At this stage, people explain all phenomena in terms of supernatural causes and divine intervention.The second stage is the metaphysical stage, where thought has recourse to ultimate principles and ideas; and such principles and ideas are believed to exist behind the appearance of things and are also believed to constitute the real driving force of human evolution.The third and final stage is the empirical stage.At this stage, under the guidance of the methods used in the natural sciences, people rejected all hypothetical constructions in philosophy, history, and science, and only focused on empirical investigations and the connection of facts.

Insofar as he considered positivism to be the final stage in the development of human thought, this famous "three-stage theory" was met with great opposition.Nevertheless, it is of interest for describing the development and general direction of Western philosophy from the early Middle Ages to the early 20th century.As far as legal philosophy is concerned, we have seen that the interpretation of law in the Middle Ages was strongly influenced by theology, so that law was closely related to divine revelation and God's will.In addition, the period from the Renaissance to the middle of the 19th century can be said to be the metaphysical period of legal philosophy.The theory of classical natural law and the philosophy of legal evolution advocated by Savigny, Hegel and Marx all have some metaphysical elements.These theories all attempt to explain the nature of law in terms of some idea or ultimate principle that is supposed to operate beneath the empirical appearance of things.Whether it is the eternal reason of the philosophers of natural law, Savigny's "national spirit" and "power of silent operation" about the structural law, Hegel's "world spirit" about passing the torch of evolution from one nation to another , or theories about the "death of law" in communist society cannot be judged and measured from the perspective of the empirical world.Broadly speaking, all of the above theoretical constructions are "metaphysical" in that they go beyond the physical manifestations of things, and all proceed from the assumption that they should be based on directly observable facts. Behind to explore the invisible power and the ultimate reason.

In the middle of the nineteenth century a powerful movement emerged against the various metaphysical theories developed in previous centuries.This movement can be described by a loose but accessible term: positivism.Positivism, as a scientific attitude, opposes transcendental speculation and seeks to confine itself to empirical data.It rejects the spirit of mysticism and confines scholarly work to the analysis of "given facts."It refuses to go beyond the realm of cognitive phenomena, denying the possibility of understanding the "essence" of nature. The great achievements in the natural sciences in the first half of the 19th century laid the foundation for positivism.This achievement created a powerful temptation to apply the methods used in the natural sciences to the social sciences.Careful observation of empirical facts and sense-data is one of the chief methods employed in the natural sciences.Consequently, it was expected at the time that the same methods could be employed with great effectiveness and value in the social sciences.

In the 20th century, positivism took on a new and extreme form, the logical positivism of the so-called Vienna Circle.This circle was formed after the First World War, and its central figures were Moritz Schlick and Rudolf Carnap.This circle has a considerable following in the UK, US and Scandinavian countries.Members of this circle preface the qualitative adjective logic to positivism because they wish to use in their analytical work the discoveries of modern logic, especially of symbolic logic.Although the early and late members of this circle did not share the same philosophical beliefs, some of their basic ideas and principles are typical of logical positivism.First, it rejects all dogmatic and speculative claims in philosophy, and holds that there are only statements about reality (or, more precisely, about phenomena that appear to be reality) based on tested and proven sensory experience. is valid.Second, adherents of this theory take a critical, almost contemptuous attitude towards the development of philosophy from Plato to modern times.Most of the great philosophers of Western civilization have been dismissed by them as metaphysicians and peddlers of nonsense.Third, the logical positivists believe that the task of science is to describe and analyze phenomena, and limit the task of philosophy to the logical classification of ideas. To paraphrase Scriek, "It is the responsibility of philosophy to determine and clarify the meaning of statements and problems." The peculiar duty." Only logical problems are regarded as philosophical problems; the construction of logical syntax is regarded as the highest task of philosophy.Fourth, logical positivists believe that ethical imperatives are nothing more than words of "roar" or "excitement" that have no cognitive value.Since the objective validity of a value or ethical norm cannot be empirically demonstrated, it is pointless to assert them.According to this view, it is not the task of ethics to give people guidance on how they should live.The task of ethics is at best to explain why people hold, accept, or reject certain ethical ideas.

From the second half of the 19th century, positivism began to penetrate into various branches of social science, including legal science.In general, legal positivism, like positivist theory, opposes metaphysical speculative methods and the practice of seeking ultimate principles, and opposes any attempt by jurists to identify and explain legal views that transcend the empirical reality of the current legal system.Legal positivism tries to exclude value considerations from the scope of scientific research in jurisprudence, and limits the task of jurisprudence to the scope of analyzing and dissecting real legal systems.Legal positivists believe that only positive law is law, and the so-called positive law, in their view, is the legal norms established by the state.In the words of Hungarian jurist Julius Moor: "Legal positivism holds that laws are made by rulers in the historical process of social development. This view holds that laws are simply what the rulers command so that on this condition whatever the ruler commands is law.” Legal positivists also insisted on a strict distinction between positive law and ethical norms and social policy, and tended to regard justice as legality ( legality), that is, to obey the rules formulated by the state.

Legal positivism is particularly prominent in analytical jurisprudence, which this book refers to as analytical positivism.Analytical positivism takes a specific legal system as its starting point, and extracts some basic concepts, concepts and characteristics from this legal system mainly through inductive methods, and compares them with those in other legal systems. Comparisons are made to identify certain common factors.As Julius Stone pointed out, analytical positivism is concerned with "analyzing legal terms and exploring the logical interrelationships of legal propositions."Using this approach, analytic positivism makes legal science a discipline that dissects legal institutions.However, it is also possible for legal positivism to manifest itself in a sociological form.Sociological Positivism is concerned with the study and description of the social forces that influence the making of positive law.It is concerned not with the analysis of the legal rules enacted by the state, but with the analysis of the various social factors that lead to the creation of those legal rules.Like analytic positivism, it treats law entirely with an empirical attitude, and does not agree with research and seeking the ultimate value of the legal system.

In the teachings of Bentham and Jhering, the analytic positivist point of view that law is essentially the order or normative statement of the state is already implied.But since both thinkers' jurisprudence is full of philosophical inferences about the purposes of law and the values ​​that legal institutions are supposed to promote, they cannot be considered true analytical positivists.The British jurist John Austin (John Austin, AD 1790-1859) was the true founder of the Analytical School of Law. Like Bentham, Austin embraced a utilitarian philosophy of life.In his view, the principle of utility is the ultimate criterion for testing the law.He said: "The lofty intention or purpose of a sovereign government is to promote the happiness of men to the greatest possible extent." Since the principle of utility is an ethical principle, and because the analytical method in legal science advocated by Austin rejects Putting ethical issues within the scope of legal discussions, some people think that Austin is not consistent in his approach to legal issues.This censure seems unjust.Austin drew a clear theoretical boundary between jurisprudence and the science of ethics, and it is precisely this that distinguishes him from Bentham.He believes that jurisprudence is an independent and self-sufficient theory of positive law. "The science of Jurisprudence (or jurisprudence for short) is concerned with positive law, or law in the strict sense, without regard to the good or evil of these laws." On the other hand, Austin argues, The science of legislation is the branch of ethics whose function is to determine the standards by which positive law must be measured and the principles on which positive law must depend in order to be recognized.The separation of jurisprudence from ethics advocated by Austin is actually one of the most important features of analytical positivism.According to this view, jurists are only concerned with the law in the sense of fact, and only legislators or ethical philosophers should pay attention to the law in the sense of what should be.Analytical jurists believe that positive law has nothing to do with ideal or just law.

Austin believes that the task of jurisprudence is to explain the general concepts and principles abstracted from positive legal systems.He noted that some of the more mature legal systems were linked by many similarities and similarities in their conceptual structures.The purpose of general jurisprudence (as distinguished from national or particular jurisprudence) is to illustrate these similarities or similarities. "What I call 'general jurisprudence' is the science concerned with elucidating principles, concepts, and features common to different legal systems: through the analysis of legal systems we can obtain such The cognition of the system, that is, those relatively complete and mature systems, because of their completeness and maturity, are also full of excellent guiding significance.”This work requires an explanation of key legal terms such as rights, obligations, harm, sanctions, punishment, and compensation.It requires, among other things, a separate classification of rights and duties, and a detailed elaboration of the peculiarities inherent in each legal system.

According to Austin's theory, the most essential feature of positive law is its coercive or imperative nature.Law is considered to be an order of the sovereign. "Any kind of positive law is formulated by a certain sovereign over a certain person or persons under his rule."However, Austin believes that not every kind of order is law, only general orders - forcing someone or some people to do or not to do a certain kind of behavior - have the nature of law. According to Austin, orders that can become law are not necessarily directly promulgated by national legislatures, such as the British Parliament.It may also be promulgated by an official body with legislative powers delegated by the sovereign.According to Austin, the law made by judges is positive law in the true sense, because the rules made by judges derive their legal force from the power vested in them by the state.It is possible for the state to confer this power explicitly, but generally the state confers it by tacit consent. "Because the state can annul the rules he (the judge) makes (but allows him to enforce them according to the powers of political society), the state, though not by express declaration, acts in a way that clearly expresses that 'he made The rule of law will acquire a 'sovereign will' like law." The norms elaborated by the judges are in line with Austin's most essential premise of substantive law, that is, law is guided by a politically superior person. made for the disadvantaged.However, this premise is not fulfilled in that branch of law known as international law.In keeping with this premise which he himself posits, Austin thus denies that the rules and principles of international law have a legal character.He believes that these rules and principles should only be regarded as the rules of "positive morality", that is, a normative system that Austin believes is "rules established or set by public opinion".

It is necessary for us to briefly discuss Austin's concept of justice.Austin does not deny that "positive law" may also be "unjust" in a not very strict sense if it is measured by an irrelevant standard, such as God's law.But in his view, this does not mean that man-made laws that conflict with God's laws are not mandatory or binding.Positive law, he argues, contains its own standard, according to which a departure or violation "is unjust, although it might be just under another law of higher authority. Justice and injustice are Both terms signify a standard, and only the observance of or departure from that standard. Alternatively, what the two terms express may simply be a dislike, which is expressed in a vague way rather than by malicious insults. Much better to express this disgust."On this view, whatever law actually exists is law, and disregard for such law can never be considered legally justified, although from a purely moral point of view such disregard for positive law is excusable.

Although Austin's theory received little attention during his lifetime, it had a great influence on the development of British jurisprudence later.Notable treatises on jurisprudence by Thomas Erskine Holland, William Markby, and Sheleon Amos, among others, are based in Austin On the basis of the analytical method advocated in legal science.Textbooks by George W. Paton in Australia and Sir John Salmond in New Zealand, while making some concessions to non-analytical jurisprudence, are still Has the characteristics of Austin's analytical approach. In the United States, John Chipman Gray, Wesley N. Hohfeld, and Albert Kocourek all contributed to analytical jurisprudence. made a contribution.Gray modified Austin's theory in one of his influential works.He moved the legislative position of the sovereign from the legislature to the judiciary.He argued that "the law of a nation, or the law of any organized group, consists of rules made by the courts—the judiciary of the nation—to determine legal rights and duties." Rules made by judges, he argues, are not An expression of pre-existing law, because it is law itself; judges are creators, not discoverers, of laws; and one must confront the fact that judges often make laws after the fact.He even believes that the laws enacted by the legislature can only be meaningful and accurate after being interpreted and applied by the court in a specific case.Gray argues that although judges do not seek the rules they make in their individual whims, but in general sources such as statutes, judicial precedents, expert opinion, custom, public policy, and moral principles theirs, but the law becomes concrete and substantive only in the pronouncements of the courts.Thus, for Gray, the law made by the judges is the ultimate and most authoritative form of law; it is this belief that he holds that leads him to the following general conclusion, Whether in the common law system or in the common law system, the rules made by the courts of a country correctly express the current law. Austin maintains that the true end or intention of government is "the greatest possible promotion of the happiness of men"; and, moreover, he maintains that the principle of utility—as stated above—is the fundamental guiding principle of the legislature in making laws.By raising the principle of utility to the level of authoritative standards governing "legislative science," Austin also injects an evaluative element into what he considers scientific research.In this sense, we can say that Austin's legal theory still has some remnants of "natural law" thinking. It was the goal of Hans Kelsen (1881-1973 AD) to remove all evaluation criteria and ideological elements from legal science.For example, Kelsen believes that justice is an ideological concept, an "irrational ideal" that reflects the subjective tendencies and value preferences of individuals or groups.He pointed out, "It is generally believed that there is such a thing as justice, but it cannot be clearly defined; obviously, this claim itself is a kind of contradiction. For human will and action, no matter how much justice is Necessary, it is impossible to know. From the point of view of rational knowledge, there are only interests and the resulting conflicts of interests."Kelsen believes that legal theory cannot answer the question of what is justice, because this question cannot be answered by scientific methods at all.If justice is to be given a scientifically meaningful name, it must be legality.Justice, according to Kelsen, is the application of some general rule to all cases in which it should apply according to its content. "'Justice' means the faithful application of a certain real order in order to protect its existence". Kelsen's methodological aim does not stop at eliminating political and ideological value judgments from legal science.He also hopes to get rid of legal theory from all external and non-legal factors, so as to further realize the goal of "purity" of law.He pointed out that "legal science has been uncritically mixed with elements of psychology, sociology, ethics and political theory".He also tried to restore the purity of the law by isolating the strictly "legal" aspects of the work of the legal practitioner or judge. According to Kelsen's pure jurisprudence, the research object of legal science is those norms that "have the nature of legal norms and can determine whether certain actions are legal or illegal".The so-called norm, Kelsen means "something should be or should happen, especially people should behave in a certain way".However, this definition of norms also applies to moral and religious norms.According to Kelsen, the characteristic of legal norms is to stipulate a certain behavior by using a mandatory order to sanction the contrary behavior.Pure jurisprudence holds that coercion is a fundamental and inseparable element of the concept of law. "Law is a coercive order concerning human behavior".According to Kelsen, the coercion imposed by this legal order is not primarily a psychological coercion.The sanction applied by the law is an extrinsic sanction, the forcible deprivation of life, liberty, property or some other measure which the individual concerned considers a disaster. A legal norm is valid if it has been recognized by another higher-level legal norm.A source of law can only be legitimized by norms, not by social facts such as general acceptance or practical application.Thus, an executive order is valid if it is endorsed by a statute, and a statute is valid if it conforms to the Constitution.Sequentially, a constitution is valid if its enactment was authorized by a previous constitution.But if a constitution is the first constitution of a newly formed state, there is no source of positive law from which it can obtain validity.If this happens, Kelsen appeals to the notion of a "basic norm," a norm presupposed by legal thought rather than an actual norm.The meaning of the so-called basic norms is as follows: "Coercion of persons against persons shall be carried out in accordance with the methods and conditions established by the first constitution in history."According to Kelsen, basic norms are the ultimate source of validity of all norms in the same legal system. Kelsen also distinguishes between validity and effectiveness of legal norms.Effectiveness means that a norm is actually observed and applied, while validity means that a norm should be observed and applied.In his early writings, Kelsen argued that the validity of a legal norm is not constrained by its actual effectiveness as long as most of the norms of the entire legal system are observed.In his later writings, however, he argued for a closer relationship between validity and effectiveness, declaring that "a norm that is nowhere obeyed by anyone, that is, a norm that is at least somewhat A norm that has no practical effect cannot be considered a valid norm.”From this, Kelsen draws the conclusion that although a norm needs to be sanctioned by another higher-level norm, minimum effectiveness is a further condition for the validity of the norm. Kelsen believes that "the legal order is not a system composed of norms juxtaposed at the same level, but a hierarchical system composed of legal norms at different levels".At the highest level in this structure are the fundamental norms that require any other norm to be faithful to the constitution, which (written or unwritten) provides the framework for statutory and customary law.The two legal forms, statute and customary law, in turn prescribe rules for judicial, administrative and personal activities.When the judiciary applies statute or customary law in a lawsuit, it concretizes a general norm for handling the case and makes a decision that constitutes an "individual norm."Such an individual norm is directed to a single individual or group of members identified, and prescribes a sanction (such as an award of damages) or other disposition aimed at ending the suit.The agency also establishes individual norms when it applies general norms in a case that leads to an executive order or other specific disposition.According to Kelsen, such individual norms are as much "law" as the general norms on which these individual norms are created. In Kelsen's view, "most legal norms both apply law and create law".There is no doubt that the legislature must create new laws, but it must make laws within the framework stipulated by the Constitution, so it is applying the provisions of the Constitution.The judicial body that decides whether and how to apply general norms in a particular case participates in part in the process of stating the law and in part in the process of making it.A judge (or other judicial official) must discover the existing law relevant to the handling of the case, but judicial decisions take on a constructive nature in proving the existence of the conditions requiring the application of the law and adjudicating it.Kelsen points out that, in certain areas of law, private contracts that regulate the mutual conduct of contracting parties may stand between the general laws of the state and judicial decisions.Similarly, the norms established by the parties are partly applying the general rules of contract law and partly creating new relationships between the parties.In the transformation process of applying legal norms, making them concrete and individualized, the final stage is the implementation and enforcement of mandatory decrees issued by courts or administrative agencies. According to Kelsen, law is a specific technology peculiar to social organization. "The concept of law has no moral connotation", the decisive criterion is the "factor of force".The law is an apparatus capable of protecting any political, economic, or social institution. "Any content may become law, and any human behavior can become the content of legal norms." Kelsen also claimed that the state and the law are one and the same.As a political organization, the state is a legal order; and every state is governed by laws.For Kelsen, therefore, "government of laws" is a redundant expression.The state is nothing but the sum of peremptory norms, and therefore state and law coexist. Kelsen's theory is perhaps the most coherent formulation of a theory of legal positivism, since legal positivism is characterized by a focus on the form and structure of law rather than its moral and social content; Regardless of whether the legal norms in between are just or not; it is trying to distinguish legal philosophy as thoroughly as possible from other disciplines, such as psychology, sociology, ethics and other disciplines.At least for analytical purposes, Kelsen treats law as something closed, as if it were in a closed and airtight container. A neo-analytic movement arose in the second half of the twentieth century, when the influence of pure jurisprudence was waning in most countries where it had prevailed in its early days.The movement was particularly powerful in the Anglo-American countries, and it also affected other countries around the world.It is characteristic of many representatives of this movement that they reject the single practice of early analytical jurists who tried to limit the task of jurisprudence to commentary on basic legal concepts and concepts.They admit that other approaches to legal phenomena—such as the interpretive methods of sociology and those of natural law philosophy—are also legitimate.In addition, among these jurists, quite a few commentators have used modern cutting-edge logic tools, including symbolic logic and computer science, while others have firmly relied on the development and achievements of language science in the 20th century.Last, but not least, new analytical jurists have investigated the judicial process more closely and in detail than traditional analytical jurists have done. The above-mentioned trends are clearly manifested in the writings of the British legal philosopher Herbet L.A. Hart (born 1907).Hart was the most famous advocate of this new analytical jurisprudence movement.The distinctly analytic orientation of Hart's thought is fully reflected in his proposition that the key problem in the science of jurisprudence lies in the combination of two classes of rules, which he calls primary and secondary rules. rules).Primacy rules are standard ways of behaving that force members of a society to do or not to behave in certain ways.These rules arise from the needs of society and are designed to ensure a satisfactory way of life.The basis of the binding force of these rules lies in the acceptance of them by the majority, and the majority exerts strong pressure on uncooperative members of society to obey these rules. According to Hart, a developed legal system must also have a set of "secondary" rules that establish a statutory means for recognizing and enforcing primary rules.First, these rules help to identify the valid rules in the legal system in some authoritative way.Second, the rules prescribe formal and routine procedures for changing the primary rule.Third, these rules ensure the enforcement of the primacy rule by establishing an exhaustive trial and enforcement process. Obviously, this view of law avoids the one-sidedness of Austin's command theory, and tries to build a bridge of communication between the command view of law and the sociological view of law.Hart also tried to moderate the sharp opposition between legal positivists and natural jurists.He made concessions to the theory of natural law.He says, "There are certain rules of conduct which any social organization must have, if the society is to survive," and these rules do in fact constitute the common elements of the laws of all societies.But on the other hand, he firmly defends the basic principle of positivism: the duty of "fidelity to the law" includes all rules that are regarded as valid according to the formal criteria of a legal system, even though some of them may be different from those of the social system. Clearly inconsistent with the moral consciousness. Professor Hart also provides a thorough critique of Austin's concept of sovereignty, a broad discussion of issues in the philosophy of criminal law, and a thorough analysis of legal method and judicial procedure.His treatises have aroused widespread comment and repercussions throughout the Anglo-American legal world. It is doubtful whether Ronald M. Dworkin (b. 1931) can be classified as a New Analytical jurist, since he has been a critic of legal positivism and has written some Works that are generally considered to analyze issues outside the purview of jurisprudence.However, the reason to classify Dworkin as a neoanalytical jurist lies in the fact that he conducted a broad analysis of fundamental legal concepts such as 'rights', 'duties', 'rules' and 'principles'.He points out that the absence of strictly defined rules guiding a trial in a particular case does not entitle judges to a discretion to create new law based on their own views of good policy. ).In such cases, on the contrary, the judge is bound to follow the general principles of justice and fairness recognized by the social order; although these principles are not clearly formulated and formally expressed in positive law, they nevertheless impose on judicial freedom. substantive restrictions.In this way, Dworkin has acknowledged the importance of informal sources of law. As mentioned above, the new analytical jurisprudence uses the cutting-edge tools of logic science in the 20th century, and also strives to rely on the research results of linguistics.Ulrich Klug, a German law teacher, and Ilmar Tammelo, an Austrian professor of legal philosophy who has taught in Australia for many years, constructed a method characterized by the extensive use of mathematical symbols. legal logic system.However, neither of these two commentators questioned the legitimacy of other approaches to jurisprudence.Tamanru, for example, supplements his logical studies by thinking carefully about the substantive issues of legal ordering, especially issues of justice. Glanville Williams (b. 1911) in England and Walter Probert (b. 1925) in the United States both emphasized the role of language in law.In his study of legal semantics, Williams treats extensively and at length the ambiguity of words and the emotive character of many legal terms.He believes that a great deal of confusion is caused by the use of legal terms that have many different meanings at the same time. Terms full of value judgments such as "rule of law" or "rule of law" are more emotional than rational.Pruebert stresses the need for lawyers to have "word-consciousness" because he sees language as "the main tool of social control."Norms and rules, he claims, are inherently ambiguous, and that the heart of common law procedure in courts is not rules (although they also have a role to play in them) but the use of language or rhetoric.His understanding of the semantics of law led him to define justice as "the search for some kind of linguistic guide that can help choose among multiple conflicting premises." Modern analytic and semantic jurisprudence draws much inspiration from the writings of the Austrian philosopher Ludwig Wittgenstein (1889–1951 AD), who later taught at Cambridge University, to be able to It had a decisive influence on the philosophical trend of thought in the Anglo-American countries.In his Tractatus Logico-Philosophicus, Wittgenstein analyzed language, a human enterprise that he called a schema of facts that constitute reality.Philosophy, he declared, was the critique of language, the object of which was the logical clarification of thought, and he thought so.通过把复杂的语句与命题分解成构成它们的基本成分（它们只描述简单的事实）来阐明它们的含义，具有特别的重要意义。维特根施坦反对这样一种观点，即哲学家的任务在于对宇宙的活动提供解释，或者在于建议个人或社会如何处理其事务。他并不否认人类面临着伦理与价值的问题，但他认为这些问题属于神秘主义的领域，而在这一领域中，人无法表述有意义的命题。 然而，维特根施坦在一部晚期著作《哲学研究》（Philosophical Investigations）中却否弃了他在《逻辑哲学论》一书中所提出的许多原则。他的关注点从对命题及其含义的逻辑分析转到了对语言实际作用的方式的思考。他在这部晚期著作中宣称，“一个字词的含义乃是它在语言中的使用，”而且“哲学绝不可能干预语言的实际使用；最终它只能描述它”。他希望，如果上述方法得以恰当运用，哲学的问题及其难解之谜就会完全消失。 维特根施坦之所以转向一种纯粹的语言经验主义，在很大程度上是因为这样一个事实，即《逻辑哲学论》一书仍然带有一种理想化的语言理论的因索。可能是为了辨识命题的“真正”含义，维特根施坦通过把命题分解成构成它们的基本成分，以发现隐藏于语言内部的逻辑结构并增进语义的理解。维特根施坦很可能得出了这样一个结论，即由于人们运用语词和概念的方法不尽相同，所有上述那种分析方式会给这样一种观点留下太多的空间，即主观且因人而异的解释乃是科学方法的正确基础。 分析法理学领域中所取得的大量成果，都和维特根施坦在《逻辑哲学论》一书中所提倡的哲学观念是一致的。分析法学家的目标就是通过辨识法律概念并将它们分解成构成它们的基本成分来阐明法律的概念。很可能有人会问，如果晚期维特根施坦的“日常语言”哲学被人们接受为法理学的基本原则，那么法理学会朝哪个方向发展呢？我们在这里必须考虑的是，法律语言包括有许多专门性的、技术性的术语，尽管其间也包含有日常语言中通常使用的广义的、非技术性的术语（如正义、合理和道德）。有人曾经提出，只要涉及的是各个特定学科或各行各业中所使用的专门术语的流行含义，那么“日常语言”就不能把它们排除在外。如果采取这种观点，那么分析法理学——被认为是日常语言哲学的一个分支——的任务就可被归结为对法律术语和概念的标准用法进行描述。