Perhaps there is no thinker of the twentieth century more influential in the field of philosophers than Ludwig Wittgenstein (1889-1951).
Wittgenstein did not create a philosophical way of understanding reality as Kant or Marx did. His entire work consists of remarks, full of metaphors that have illuminated aspects in distinct fields such as philosophy of language, logic, mathematics, psychology, methodology, epistemology, and ethics.
I will develop some of Wittgenstein’s remarks that I believe could serve as the foundations of mediation as an alternative dispute resolution method.
The life of Wittgenstein was hardly conventional. He was the youngest child of a very wealthy Viennese family and gave away his inherited fortune. He studied mechanical engineering in Germany. He went to England to do aeronautical research at the University of Manchester and later shifted to study logic with Bertrand Russell in Cambridge University. He entered the Austrian army during World War I and was taken prisoner by the Italians in 1919. After the war he worked some years as a village schoolteacher in rural Austria. He was a gardener in a monastery and designed his sister’s Vienna home. At the end of the twenties he returned to Cambridge University where he became professor of philosophy. From the thirties he began his Philosophical Investigations, which were published after his death in 1953 (PH). In World War II his job was as dispensary porter at Guy’s Hospital.
His philosophical work is unique in the sense that it generated two schools of thinking: logical positivism and ordinary language philosophy.
In young Wittgenstein, his central proposition was that language was a picture of the world. This was the core of the Tractatus Logico-Philosophicus published in 1922 (TLP). The essence of this work can be summed up best in Wittgenstein own words: "What can be said at all can be said clearly, and what we cannot talk about we must pass over in silence (TLP, P 3).
Language should refer to facts, whereas the teaching of words establishes an association between words and facts. Accordingly, the use of language could be right or wrong depending upon its correspondence with facts. Misunderstandings of language created the philosophical problems. The logical positivism relied in the Tractatus.
The mature Wittgenstein thought that the challenge for philosophy was to make clear the uses of languages. He developed the concept of language-game in order to show how the meaning of words was determined by the context in which they were used.
The task of philosophy was conceived as a therapeutic activity for the misuses of language. The activity of the philosopher was to reconcile different understandings of words in order to clarify philosophical problems. Wittgenstein wrote: "Philosophy is a battle against the bewitchment of our intelligence by means of language" (PI 109).
Nature of language
Wittgenstein said that a language is a form of life (PI 241), it is a part of a culture, and therefore it is not a private phenomenon. For him language games cannot exist separated from how we live, think and feel.
Words and what they represent are two different things. "It is impossible for words to appear in two different roles: by themselves, and in propositions" (TLF 2.0122). The word and what it represents are two different facts. The word fire does not burn.
In philosophy, problems arise when misunderstandings of languages emerge, when language goes on holidays (PI 38). This occurs because one or different words that have some sense in a particular language game are used in another language game. For example, in the query where is your soul, philosophical perplexities appear. Why? Because the ordinary sense in which we use the word soul, is a language game pertaining to immaterial realities that is distinct from the language game for naming physical objects where one may ask questions such as what is the meaning of the word table or where is the table. If one it is not aware of the overlapping of different language games, unsolvable problems are generated, with no persuasive answer.
Actually, in Wittgenstein’s words: "Language disguises thought. So much so, that from outward form of the clothing it is impossible to infer the form of the thought beneath it, because the outward form of the clothing is not designed to reveal the form of the body, but for entirely different purposes. The tacit conventions on which the understanding of everyday language depends are enormously complicated" (TLP 4.002).
Philosophy and conflict solution
It seems to me that legal conflicts also arise when there are misunderstandings of words and, therefore, a way of thinking for their solution may be similar to the methods that Wittgenstein suggests in dealing with philosophical problems. Law is a specific language game, a form of life for those who create and apply legal words either as state organs, as lawyers or as ordinary people. Law is a model to give meaning to human behavior and natural phenomena. Law is a system of rules, it does not cause direct change to the universe, what changes the world are human conducts and natural phenomena.
Resolution of legal conflicts
While the activity of clarifying philosophical problems may be carried by any person without any specific framework, when a legal issue arises, the solution is usually framed in light of two omnipresent issues: a) who is competent to solve it? and b) how it must be solved?
Current national legal systems adopt the view that to solve legal disputes between those involved, other impartial humans acting empowered by law (political bodies, administrative authorities, judges, arbitrators, etc.) should decide the dispute. However, this approach for conflict legal solution presupposes two epistemological false premises: a) That there is an objective universe, which can be known by those who decide, and b) Those who decide are impartial (i.e. humans with no parents, no country, no friends, no emotions, no thoughts, no wishes, no desires, etc.).
Subjective worlds Regarding the first premise, Hippocrates, the father of medicine professed that everything was in our brain. This is confirmed by the advances of modern neurobiology. It seems clearer than ever that there are only virtual realities in each of us. The ways in which our brains capture and process the information that we receive through our senses, demonstrates that each persons perceives and creates her or his reality. The universe is huge but every human only responds to his or her representation of the world. From this understanding follows that any decision regarding a legal conflict necessarily is a subjective opinion.
As far as the second premise, one hypothesis to explain this style of thinking is found in Plato and Aristotle. They developed an idea inherited from the pre-Socratic philosophers: nature created some men to command and others to obey. Their treaties show the preoccupation of setting criterion to designate those men that were born to decide the conflicts.
Today, a few thousand years later, the basis of their theory is implicit in political organization although with a different rationale. Now it is supposed that those who decide legal conflicts are impartial –not partial, not biased, neutral. However this assumption is only an epistemological construction by the law, necessary to give coherence to the judiciary as an impartial body to solve disputes; but disassociated from the actual way any human thinks, feels and behaves. All human view is biased and subjective.
A fresh approach
If there are no impartial humans what can be done to design a system for legal conflict solution without personal preferences?
One approach, as Albert Einstein stated in relation of problems already formulated by everyone and only the solution missing, is to reformulate the old problems or to discover new problems. In other terms, to change the framework of reference of the old problem.
To paraphrase the first Wittgenstein (TLP P2), to understand legal problems, we must be able to find ourselves beyond the limits of the law. One needs to take a perspective of legal problems out of the law, of the logic of the law. The attention must be paid in the creators and users of law, in humans with emotions and ideas and not in the logic of law.
Hypothesis of functional humans
The hypothesis is that humans feel, think and behave depending in their biology and environment in which such biology has grown. It can also be supposed that according with evolutionary and anthropological findings, there is not such an essentialist feature in all humans so that they are always friendly or always aggressive. Finally, studies of human evolution show that personal interaction inhibits aggression and facilitates friendships.
Instead of looking for unreal humans without personal feelings and thoughts, the legal system should promote the personal communication between the parties to solve their dispute. To this end, one option is mediation where in an informal and cooperative process the parties choose a mediator (also a human with personal emotions and thoughts) who facilitates a negotiation between the disputing parties to reach an acceptable solution to their conflict. Nature of legal problems
Legal problems consist of conflicting interpretations of rules. They are not empirical. Law as philosophy does not change the world; they "leave everything as it is" (PI, 123). Legal disputes require not a doctrine but an activity to elucidate meaningful legal propositions.
The legal conflict solution activity takes place in a similar vein that Wittgenstein approaches philosophical problems, "… they are solved, rather, by looking into the workings of our language, and that in such a way as to make us recognize those workings: in despite of an urge to misunderstand them. The problems are solved, not by giving new information, but by arranging what we have always known." (PI 109).
Another metaphor to signify the business of the legal conflict solver is not to resolve a contradiction by means of a discovery, "but to make it possible for us to get a clear view of the state that troubles us: the state of affairs before the contradiction is resolved." (PI 125).
In the legal world the role of the mediator in relation to the parties to a conflict, would be equivalent to Wittgenstein’s aim in philosophy: "To show the fly the way out of the fly-bottle." (PI 309). The mediator should facilitate parties to clarify their legal misunderstandings to reach an agreement.
Mediation as unique in each case
If there is the belief that one needs to apply rules for conflict solution, a very fundamental warning is appropriate. In words of the Viennese, "... the fundamental fact here is that we lay down rules, a technique, for a game, and that then when we follow the rules, things do not turn out as we had assumed. That we are therefore as it were entangled in our own rules. This entanglement in our rules is what we want to understand, to get a clear view of." (PI 125).
As a consequence, there is not one method or one set of rules for mediators to facilitate agreement between the parties, "though there are indeed methods, like different therapies" (PI 133).
Philosophical Investigations by Ludwig Wittgenstein, The English Text of the Third Edition, translated by G.E.M. Anscombe, The Macmillan Company, New York, 1968.
Tractatus Lógico-Philosophicus by Ludwig Wittgenstein, translated by D.F. Pears & B.F. McGuinness, with the Introduction by Bertrand Russell, Routledge & Kegan Paul, London 1981.
Plato, La República, UNAM, México, 1971. Aristotle, The Atenían Constitution. The Eudemian Ethics on Virtues and Vices, Harvard, 1981.