Is Equal Protection a Language Game?

Abstract

The purpose of this contribution is to provide an insight into the semantics of the Equal Protection clause of the 14th Amendment to the US Constitution as interpreted by the US Supreme Court, how it has been submitted to the vagaries of context and opinions, as the Justices are speakers of the language of law. Legal interpretation will be approached in Part 1 via the exploration of “grammar” and “rules” that have produced contrasted and sometimes ambiguous results as expressed in the Court’s decisions, following Ludwig Wittgenstein’s concept of the “language game.” Such a notion can be seen as the substance that shapes the identity and the memory of groups that have been differently affected by legal decisions. Part 2 will show how the constitutional clause is structured in relation to its meaning and its complex relation with time, as defined by French philosopher Paul Ricœur. Conversely, claiming that society exerts some influence on the law is equally valid. Part 3 will address the question raised by Thomas Nagel, whether a law that gives “equal opportunities” to a group by means of “preferential treatment” is compatible with justice.

Keywords

• rule-following
• adjudication
• language games
• metaphoricity
• semanticism
• justice