Wittgenstein's Poker and Restoring the Lost Constitution

My friend Chagrin and I both recently read Wittgenstein's Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers, by David Edmonds and John Eidinow. I found the book frustrating because I couldn't get a sense of Wittgenstein's philosophy from it. Or, rather, the sense I did get was frustrating. (Note 1.)

According to Wittgenstein's Poker, Wittgenstein founded two schools of philosophy, denoted by Edmonds and Eidinow as Wittgenstein I and Wittgenstein II. "But in Wittgenstein II the metaphor of language as a picture is replaced by the metaphor of language as a tool." (p. 228)

Further, according to Wittgenstein's Poker,

Philosophical questions, then, are puzzles rather than problems. In unraveling them, we are not uncovering the hidden logic unearthed by Russell and Wittgenstein I, but merely reminding ourselves of what really exists, how language is actually employed. Can I "know" I am in pain? Well, in ordinary usage this is not a question that can be raised. Expressions of knowledge -- "I know that Vienna is the capital of Austria," for example -- are predicated on the possibility of doubt. But my pain is, to me, beyond doubt. What time is it on the sun? We cannot say -- not because we do not know the answer, but rather because the concept of time on the sun has not been allocated a place in our language; there are no rules to govern its application.

Does all this mean that philosophy is useless except to those intent on learning their living in it -- those liable to fall into the mire of self-deluded profundity? As Gilbert Ryle put it, what has the fly lost who never found himself in the fly bottle? The answer of Wittgenstein II [the second school of philosophy founded by Wittgenstein] was that his method combats the philosopher in us all. We are almost bound to topple into fly bottles -- it comes with the language. Although only a few of us are philosophers lecturing at the podium, all of us are philosophers at the kitchen table or in the Dog and Duck.

pp. 231-32

So according to Wittgenstein, there are no philosophical problems, only language puzzles.

But as a lawyer with an interest in the philosophy of law, I have to say that there are real philosophical problems. I am reading Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty, which is itself a work on the philosophy of the U.S. Constitution. I intend to blog about Barnett's book as I read it; consider this the first post.

In Chapter Two of Restoring the Lost Constitution, Barnett addresses the legitimacy of a constitutional regime without unanimous consent -- the current state of affairs in the United States. He takes as an example of unanimous consent Leisure World, the private residential community his parents live in.

Unlike the town and state I live in, Leisure World originally purchased and owned all the land on which it is built and sold parcels on condition that the purchaser accept its governance structure. Because of its original ownership, it could rightly condition the sale of its property on obedience to the governance structure of Leisure World. There is a world of difference between obtaining land rightfully and conditioning its sale on consent to a lawmaking process, and imposing a lawmaking process on a nonconsenting rights holder. It is the difference between real consent and no consent.

(p. 41)

As Barnett acknowledges in a footnote to the above paragraph, he is eliding a number of philosophical issues.

Though I am not unaware of the serious philosophical issues raised by this paragraph, it would be unduly distracting to parse and pursue them at this point. For example, how do physical resources come justly to be privately owned in the first place, and what conditions can justly be placed on their alienation [i.e., their sale or rental]? However they are resolved, the difference remains: justifying the control over property exercised by persons who obtain title by the consent of previous rightful owners, or by first possession,is a substantially different matter from justifying the claims of some to rule territory belonging to others. For further discussion on the rightful acquisition of property, see Barnett, The Structure of Liberty, 69-71, 153-54.

Id.

What we must do, thought Wittgenstein II, is battle against the bewitchment of our language. We should constantly remind ourselves about everyday language -- language in the home. Our bafflement arises when language is used in unfamiliar ways, "when language goes on holiday." Can something be red and green all over? No, but that is not a deep metaphysical truth--it is a rule of our grammar. Perhaps in a far-flung corner of the world, in a distant part of a remote jungle, there is an undiscovered tribe in which descriptions of shrubs or berries or cooking pots as "red and green all over" are commonplace.

Wittgenstein's Poker, p. 231.

To a legal philosopher, consent and ownership are real issues. No amount of language manipulation can do away with the philosophical problems of individual consent to a legal regime, or ownership of property. These problems do not exist because of lacunae in the language used to describe them. To use one of the metaphors of Wittgenstein's Poker, there cannot exist a tribe somewhere whose language somehow untangles the "confusions" of consent and ownership.

I don't mean to deny the existence of language problems, or even language puzzles; I just refuse to grant them primacy of place in philosophy. I like language games -- as anyone who knows me will attest. But it is because I like them that I know that they are not the sole concern of philosophy.

Note 1. I confess: I tried to read Wittgenstein's Tractatus Logico-philosophicus while reading Wittgenstein's Poker, and found it impenetrable. I know it's bad form -- and possibly intellectually dishonest -- to rely on someone else's interpretation of philosophy in criticizing it, but c'mon.