The Standard View
The problem of language-games is involved in another key issue: the ontology of law. What else in the world of life is but a basis for an ontology, which is why a further question has to be answered: How does the law exist? A classic example of an ontological problem has the form: Is my overcoat in the hall even if I cannot see it? Bishop Berkeley could have asked this question.
In his famous thesis he wrote that “the world is my idea”. What exists is nothing but a subjective (mental) image created by the perceiving subject with his reasoning.However, let us take Bishop Berkeley and those who share his opinion seriously. Is my overcoat really in the hall, even if I cannot see it? What about the world surrounding me? From where I sit in the home of Ernesto Garzon Valdes I can see a chair and a table, the trees in the garden, rose bushes and other things. I can hear the sound of birds, as well as the thumping of riverboats on the Rhine. Is everything still “there” if I close my eyes, or if I don't hear anything? One resorting to everyday experience thinks questions like these are silly, as does a large group of esteemed lawyers. My own place is safely on their side. After all, who would believe that the world disappears completely when the perceiver dies, not to mention that objective reality makes an exit and returns depending on whether the perceiver has his eyes open or closed? All things considered, my overcoat stays on the coat hanger, even if I close my eyes and can't immediately see it.
Hence the hypothesis about the world remaining after the death of the perceiver is a sensible foundation for an ontology. The difficulties arise after hypotheses like this. What, in the end, has to be assumed to “exist”? Creatures, characteristics, mental images, memory traces or what? As far as law and legal institutions are concerned, this is a crucial question.
However, the answer is difficult to shape; far more difficult than it is to sneer at Bishop Berkeley's ideas. What actually is the ontological relation between the perceiving subject and objective reality? In addition to this, Bishop Berkeley was a wise man, not a “village idiot”, and the problems he dealt with prove to be skilful enough when analysed in detail.As already mentioned, the problems of ontology are not important for the everyday world of the lawyer, nor does anyone devote much attention to them. Still, it is certain that as soon as the problem of ontology is thrown out through the back door, it makes its way back through the front door before we have even noticed. As far as DSL is concerned, the scholar has necessarily to accept an ontological assumption of some kind, at least implicitly. No one would like to admit to be examining something that is non-existent or basing a decision on a non-existent entity.
This is why ontology is not the sophistry of philosophers. At its core, it is about the DSL being DSL. Otherwise, the scholar has not fully internalised his or her own profession. That scholar works mechanically, guided by external forces (like economic goals), going about his business blindly, whom no amount of theory can save. He takes his everyday routines to his grave. However, as soon as someone takes the deep structure of law, as well as the foundations of DSL, seriously, the ontological table is set for him or her.
Axel Hägerstrom formed the basic ontological question characteristic of the Scandinavian realism. For Hägerstrom, all knowledge is knowledge about reality. Knowledge is like a mirror picture received from reality. According to him, only one reality exists, and it includes objects located in time and space, which, in their turn, are objective. What cannot be placed in time and space does not exist. The expression “the world outside time and space” is self-contradictory (Hägerstrom 1953, 17; Marc-Wogau, 113; Bjarup 1980, 153).
Those entities which really do exist define which statements are meaningful as an object of scientific research. Only statements that describe the existing entities belong to the language of science. That is why all kinds of metaphysics are impossible. “Preterca censeo metaphysicam esse delendam”, Hägestrom wrote, modifying Cato's famous sentence concerning Karthago. The same basic idea was accepted, for instance, by Alf Ross and Karl Olivecrona (Ross 1953, 340, 456; Olivecrona, 80, 212).According to Hägerstrom, reality comprehensively covers the states of affairs that can be the subject matter of meaningful sentences. From the ontological point of view, this idea is called nominalism: Only real entities do exist, while general concepts (redness) or mathematical entities do not. Ontological realism is a counterpoint to nominalism. For a realist, the mathematical entities, as well as the general concepts, are real and they may be parts of consistent arguments (Peczenik 1989, 258).
This is not Hägerstom's idea. For him, three kinds of entities belong to the reality. First, physical objects, human beings and events. They belong to reality not only as the contents of thoughts but also directly. The second group consists of recollections, emotional sensations and other mental states and processes. They are only parts of reality in an indirect way - that is, as qualities of entities that belong to reality directly. The third group consists of, among others, the contents of dreams and imaginations. They only belong to reality as the contents of thoughts and thus, in an indirect way, like the entities of the second group.
Entities that cannot be classified in any of these three groups are not real in the Hägerstromian sense. He called these entities metaphysical and excluded them from the realm of science because one cannot know anything of metaphysical reality. Religious entities, as well as creatures of fairy tales, belong to that “reality”. There can be poetry about these things, but no verifiable propositions.
The Hagerstromian ontology is an example of a well-formulated and rigid, but also a problematic and vulnerable approach. The difficulties are especially significant as far as law and especially where the existence of legal institutions is concerned. Let us look at the proposition.
P1: “That building is over two hundred years old”.
P1 expresses a fact, the elements of which are “building” and “200 years old”. There are no special problems with which to get a touch on the meaning of P1. The language of law does not refer to the qualities of reality (the real world) in the same way as is the case in P1. This can be elucidated by proposition P2.
P2: “A is the CEO of company B”.
The fact A is the CEO of company B is different from the facts involved in P1. Terms like “company” and “CEO” cannot be reduced to “reality” in the same way as a building and its age.