Table Of Content
- About the author(s)/editor(s)
- About the book
- This eBook can be cited
- Table of Contents
- Vito Breda, Lidia Rodak - Introduction
- PART I Philosophical Perspectives
- Michal Pazdziora - 1. What rationality? Whose objectivity?
- Lucia Berdisova - 2. Objectivity and arbitrariness of blind rule-following or what it means to follow a (legal) rule blindly
- Pietro Denaro - 3. The causality of omissions and the objectivity of human agency
- PART II Analytical Perspectives
- Maciej Pichlak - 4. Objectivity and Institutional Reflexivity in Law
- Lidia Rodak - 5. “Essentialism of a kind” and “objectivity of a kind” as necessary for law
- Marcin Pieniążek - 6. The objectivity of the legal text in view of the concept of semantic autonomy. Comments on Paul Ricoeur’s theory.
- Jaqueline Sena - 7. The imperative of objectivity and neutrality in legal science and its repercussion on judicial activity: an analysis of the ideas of the Latin-American jurist Luis Alberto Warat
- PART III Historical Perspectives
- Cosmin Cercel - 8. The Purloined Letter: Law, History and the Theory of Totalitarianism
- David Marrani - 9. Postmodern Evolution of Places of Justice: The Use and Abuse of Transparency
- PART IV Empirical Perspectives
- Vito Breda - 10. The Concept of Objectivity in the UK Supreme Court through a Comparative Looking Glass
- Antal Szerletics - 11. Paternalism and ‘Objective’ Best Interests
Objectivity is an inherently complex philosophical concept and, as such, it is a continually recurring theme in philosophical and jurisprudential debates. One of the fundamental questions, still surrounded in controversy, is whether objectivity is a “self-generated” universal concept that transcends local discourse. If so, how can it be philosophically justifiable, and what part, if any, does the jurisprudential debate play in such a discourse? Although these questions may appear a bit naive nowadays, they express the ambitions and power of the concept of objectivity. On one hand, it represents the desire for truth, akin to Kant’s “things in themselves”, something fixed and eternal. On the more negative side, objectivity interpreted as the narration of a timeless universal truth is associated with its power to impose authority from above.
In “The Structure of Scientific Revolution”, Thomas Kuhn claimed: “that there is no representation of facts without an observatory language, and there is no observatory language which is “theory free’”. Under this system, a rejection of objectivity in its strong sense seems inevitable. In line with this way of thinking, social sciences have adopted the concept of intersubjectivity in place of objectivity, which seems better suited to humanities in general. Law and legal discourse, however, which play central roles in organizing human society, remain strongly committed to the notion of objectivity, despite all the controversy that surrounds it. The rationale behind this is far from straightforward. It is not at all clear whether law has a distinctive type of objectivity, separate from scientific epistemic methods, or whether legal discourse has its own specificity that influences legal objectivity. If either of these are true, we have to ask what it is for law to be objective and whether objectivity is suitable for law, given its contested and changeable nature. If objectivity is somehow necessary for law, we also need to ascertain whether there is just one type of objectivity or different types of objectivity that meet its requirements. These questions are all addressed in the book.
The main aim of this edited collection of essays is to contribute to the debate on legal objectivity. The authors address the debates on the status of law and judicial discourse separately and the papers can be roughly divided into two categories. Articles in the first category focus on the general debate over metaphysical objectivity (by Pazdziora, Berdisova, Pichlak and Rodak). Articles in the second category form part of the debate over the possibility of epistemologically objective procedures (by Pieniazek, Denaro, Sena, Cercel, Marrani, Breda, and Szerletcs). ← 7 | 8 →
Taking into account the specific character of practical legal discourse, which has a strong commitment to both objectivity and subjectivity, it can be questioned whether objectivity is suitable for legal discourse at all. In order to understand the scope of the papers in this collection, it is helpful to look briefly at some of the criticisms of objectivity in this respect. Sir Neil MacCormick has written extensively on the practice of legal reasoning and objectivity and, on several occasions, he admitted to his doctoral students that he considered the concept of objectivity in judicial discourse as an unhelpful idea. In MacCormick’s later renderings, objectivity in judicial discourse is a contested concept for two different sets of reasons. The first set relates to the failure of objectivity in judicial discourse to eliminate the subjective; the second set focuses on ideological bias.
The first set of critiques is based on the law’s inability to evaluate complex data. For example, MacCormick argues that, in an ideal scenario, the numbers of variables and infinite number of possible commutations that the court would have to consider as part of its judicial activity make a judgement based on subjective opinions inevitable. So, by definition, this is antithetical to the idea of objectivity. However, these types of critical engagements, which focus on the objectivity of legal narrative, are drawn from a misguided representation of what can be expected from judicial reasoning and they are seldom mentioned in this book. Most contemporary legal authors accept that few complex scientific activities can deliver an absolutely objective result. It is reasonable to expect judges to act in a similar way to scientists and normalise the results of their studies after having considered all the variables. Normalising the results may sound ‘dodgy’ and, to some extent, it is. For example, judges may prefer certain epistemic practices to others, and this may be exploited by lawyers who seek to bias the judgement. However, the practice of reducing relevant variables, evaluating narratives, and assessing results is axiomatic of most complex scientific activities. Over the centuries, these epistemic activities have delivered reasonably consistent results and progressively increased the precision of legal studies. In other words, scientific methods have delivered the ‘goods’. As Richard Rorty argues, judicial opinions based on a series of intersubjective evaluations have, over the years, been perceived as objective by a community of experts. Objectivity of legal discourse, as in any other branch of science, cannot be constructed in absolute terms.
In comparison to MacCormick’s epistemic critiques that deny the possibility of judicial objectivity, his ideological critiques suggest that objectivity in law is a pernicious concept and that judges are instruments of power, making use of their positions to protect ideological assumptions, reactionary ideas, and even discriminatory practices against minorities and women. The Critical Legal Studies, Critical Gender Studies and Critical Race Theories movements have been ← 8 | 9 → instrumental in exposing the effects of discriminatory judicial practices, judicial paternalism and xenophobia.
This set of critiques is well represented in this collection of essays. However, the contributors substantiate their narratives with different types of scholarship, employing philosophical, analytical, historical and architectural perspectives, along with empirical studies and in-depth comparative analyses of the legal systems researched. This process was aided by a series of workshops (including those organised at the biennial IVR World Congress of Legal Philosophy, and at the University of Palermo). The results of these activities matured over a long period to form the present collection.
From the meetings that preceded the completion of this collection, it emerged that law has a strong demand for objectivity, yet it might be approached from many different perspectives. The papers in this volume all conform to this view, each revealing its own perspective and employed theory. As a consequence, objectivity, as analyzed in this volume, avoids any claims to universality.
The complexity of the issues will become apparent by reading this volume, but the reader may find it helpful to first have a brief overview of each of the articles, outlining the author’s chosen aspects of legal objectivity.
The first set of articles, representing the philosophical and analytical approaches, refer mainly to the metaphysical aspect of legal objectivity. Papers by Michal Pazdziora, Lucia Berdisova, Maciej Pichlak and Lidia Rodak all address the question of what type of objectivity is suitable for law. Each of the authors proposes their own solution.
Michał Paździora, author of “What rationality? Whose objectivity?” (1), poses the question of who or what is the subject of objectivity and rationality in law. Reflecting on the significance of the objectivity of law for lawyers, he points out that it is possible to identify an ideological bias under the surface of legal discourse. He introduces the importance of legal reality, which necessarily involves the perspective of subjects, even if this is in an “invisible way”. His arguments for a “subjectively underpinned objectivity” sketch out the background for the other papers, revealing the participants of objective legal discourse.
Lucia Berdisova, in her paper “Objectivity and arbitrariness of a blind rule-following or what it means to follow a (legal) rule blindly?” (2), seeks a normative justification for procedural objectivity. Through her discussion of the “Kripkenstein” argument on the impossibility of following rules, she poses fundamental questions on the concept of law and its objectivity. By refuting the arguments of rule scepticism, the author defends objectivity of law and reaches the conclusion that objectivity is created, not discovered. She continues the discussion by looking at the human agency involved in creating objectivity, leading neatly into the ← 9 | 10 → question posed by the next contributor of who is responsible for creating objectivity of law. Through the interpretative debate on “whether or how is it possible to follow rules”, she shows how the epistemological and metaphysical perspectives are tightly connected.
Maciej Pichlak (4) discusses the interplay between objectivity and institutional reflexivity in law. His essay aims to answer the question of how objectivity is possible within law. It focuses on two notions of objectivity that can be observed in legal practice: objectivity as a social fact, and objectivity as a moral ideal of legal practice. Employing an institutional perspective on social sciences, he claims not only that these two dimensions of objectivity may be plausibly explained, but also that they concur within social institutions. Concurrence does not mean conflation though: the relation between the factual and ideal aspects of objectivity is dialectical in nature and they need to be distinguished clearly. After explicating the weaknesses of other theoretical perspectives that fall into the fallacy of conflating the factual and the ideal, the paper subsequently develops an institutional concept of objectivity. Adopting the notion of institutional reflexivity as characterizing contemporary institutions, the author outlines the idea of “reflexive objectivity” in law.
Lidia Rodak (5) continues the discussion on what kind of objectivity is suitable for law. Through her analysis of debates from the different schools of Feminist Jurisprudence on the limitations of essentialist and anti-essentialism positions, she proposes “essentialism of a kind” as the ideal model for objectivity of law. Such a position recognises the role of subjectivity in protecting the rights of citizens, while admitting that law necessarily needs “objectivity of a kind”. The next group of papers addresses the question of how, if at all, it is possible to apply objectivity in practical legal discourse. The authors investigate the internal procedures and mechanisms of practical legal discourse to trace the involvement of human agency in legal objectivity. This debate is divided in four discussions, from analytical, philosophical and empirical, and historical perspectives, providing a full interdisciplinary picture of legal objectivity.
Marcin Pieniążek, (6.) comments on Paul Ricœur’s theory of semantic autonomy of texts and the perspective of the legislator. The objective meaning of legal texts is, inter alia, of deep interest for the jurisprudence in the context of both the interpretation and the application of law. Pieniążek proposes Ricœur’s views as the foundation for “the third way” of thinking about the objectivity of legal texts. The author manages to interpret semantic autonomy as a form of understanding the objectivity of legal texts, whilst retaining their autonomy in the context of the legislator’s intention and still conforming to the hermeneutical model of the application of law. ← 10 | 11 →
Taking a philosophical perspective, Pietro Denaro (3) continues the discussion on human agency involved in legal discourse by sketching out the key arguments for defending a theory whereby both actions and omissions have a causal role. In the first part of his essay, he criticizes those views which deny the causal role of omissions. In the second part, he presents a rapid overview of some of the problems relating to metaphysical objectivity in theories of human agency in order to affirm that we do make a difference by omitting as well as by acting.
Finally, Jaqueline Sena (7), discusses the possibility of neutrality in legal science and judicial activity by reviewing the works of Luis Alberto Warat. She postulates that neutrality is not possible within a judicial activity, making reference to contemporary democracies that have lost their power to represent the people. Her conclusion is that the idea of neutrality of judges is nothing more than a harmful fiction.
Papers in the historical perspective section discuss whether historical and architectural perspectives could provide a justification for current judicial procedures.
Cosmin Sebastian Cercel (8) explores the dark partnership between authoritarianism and law. His paper aims to further complicate the articulate the question of objectivity within legal and historical discourse by exploring the theoretical intricacies raised by the historiography of totalitarianism. His focus is on the ambiguous status of law within authoritarian settings, one marked by thorough complicity between ideology and “legal” normativity. The paper addresses three core questions, namely: the role of the theory of totalitarianism in historical and memorial discourses in structuring the law within authoritarian contexts; the historiographical and jurisprudential implications of examining the past through the chosen framework; and the construction of meaning through a historical recollection marked by the paradox of evil law. By underlining the pivotal role of the theory of totalitarianism in politics for representing the past, he attempts, through a genealogical reading informed by the works of Giorgio Agamben and Lacan’s psychoanalysis, to explore the potentialities of a different rendering of totalitarian law as part of legal modernity. In this way, the author critically examines the limits of representation of law and totalitarianism in both historiographical and jurisprudential settings.
David Marrani (9) focuses on the institution of the “Palaces of Justice”. Empirical evidence shows that there is a link between the architecture of the courts of justice and respect for the law. Court architecture may influence the efficiency of the law in terms of individual case resolution, which in turn has an impact on the cohesion of society. Law courts operate like microcosms of social organisation In the past, the myth of authority was represented by neoclassical architecture in civil law countries, such as France, or Gothic revival architecture in common law countries, such as the UK; the “palaces of justice”. In more recent years, we have ← 11 | 12 → witnessed a radical shift in courthouse design with wide scale use of glass. The use of transparency, or what the author terms the new opacity, can be seen as in tune with postmodern idea of objectivity as an empty form. This fascinating article studies the relation between the architecture of the courts and types of objectivity.
The empirical debate reflects on how procedural objectivity affects the decision process in current legal practice.
Vito Breda (10) reports on the results of his hermeneutical research project entitled “Objectivity in UK Judicial Discourse”. The research focuses on mapping out the cluster of interpretations of objectivity (and arguments derived there from) made by common law judges in the UK, with a particular emphasis on judgements made by the House of Lords and the UK Supreme Court.
Antal Szerletics (11) postulates a connection between paternalism and “objective” best interests. He examines the paternalistic character of the English Mental Capacity Act (2005). It is argued that, although the system of surrogate decision-making in the EMCA seems to fit well within a liberal political framework, there are certain value-driven background assumptions that influence the way mentally incapacitated people are paternalised‘. This is so both with respect to the construction of the concept of mental capacity (i.e. the statutory “threshold” for paternalistic interventions) and the determination of best interests. The best interest standard is explored in the second part of the paper through an analysis of relevant case law of the Court of Protection.
Overall, this collection of essays explores the connection, and the pretence of such a connection, between transparency and objectivity in legal narratives. Through discussing the involvement of human agency and the analysis of legal discourse from different perspectives, the debate on objectivity in law is transformed into one about an objectivity that is co-created by its participants. The essays reveal the inevitable intersections between the epistemological and metaphysical foundations of law, where a set of epistemic techniques permanently verify the status of legal objectivity from the bottom of the legal discourse rather than from the top. It is more about many types of objectivity suitable for law, rather than just one legal objective narration.
“To become a lawyer, or even a teacher of law, has meant to enter an exterior world, to engage in a distinct vocation, to learn an art that is distant from the self. […] it is written, it legislates, it is an exterior fate, a foreign of institutional will inscribed on the soul.”1
The quotation above from the introduction to P. Goodrich’s and D. G. Carlson’s “Law and the Postmodern Mind” testifies to the connection between the modernistic concept of law and the categories of external reality and objectivity. What is more, for lawyers themselves, i.e. the actors viewing the institution of law from inside, this connection seems constitutive. Therefore, in the legal practice law and jurisprudence appear as an external and objective reality. While subscribing to the view that any discussion of objectivity in law can not disregard legal practice, I would like to focus on two issues, emphasised by K. Marx in the Theses on Feuerbach.
“The question whether objective truth can be attributed to human thinking is not a question of theory but is a practical question. Man must prove the truth — i.e. the reality and power, the this-sidedness of his thinking in practice. The dispute over the reality or non-reality of thinking that is isolated from practice is a purely scholastic question”2.
Even though Marx never elaborated on his theory of practice, his analyses of the relationship between the theory and practice may be quite enlightening despite their limited scope. However, unlike Marx, we have to reject the belief in “theoretical certainty or revolutionary self-confidence”3 and we are forced to relinquish any theology of reason or the logic of history. Yet, despite the weak points indicated, ← 15 | 16 → Marx’s theses raise two important issues. Firstly, the question of “objectivity” must be seen as a practical issue rather than a purely theoretical one. Consequently, the category of objectivity becomes a practical issue of how reality emerges and is perceived in the lawyers’ awareness. Secondly, all theoretical models of objectivity disregarding universally established practice of creating reality inevitably become scholastic. In the Theses on Feuerbach theory becomes theoretical practice which perceives the relationship between the determinants and their results not as an expressive relation, i.e. static inevitability which may be identified, but as a relationship of creation, i.e. dynamic contingency of the inevitable4. To alter the practice it is not sufficient to provide theoretical arguments in support of a definite concept of objectivity; it is necessary to alter theoretical practice. We are well aware that our consciousness is a product of conditioning and educating, while we tend to forget that people alter the conditions and that the educators themselves must be educated first5.
In this article, I will primarily focus on the reality seen from the epistemological perspective. Objectivity related to epistemology manifests itself in the endeavour to be independent from the factors which may distort the cognitive process. In this sense, objectivity has routinely been contrasted with subjectivity. Especially in law this claim of objectivity is particularly emphasised both in the doctrine and case-law.
“(…) the demand to be objective is the demand to be free of bias or other factors that distort judgment, that prevent the things we are judging from presenting themselves clearly and accurately. This, then, is a demand for epistemic objectivity: that the cognitive processes and mechanisms by which we form beliefs about the world be constituted in such a way that they at least tend toward the production of accurate representations of how things are.”6
The relationship between objectivity and subjectivity brings about three concepts of objectivity: strong objectivity as completely independent of the subject, modest version of objectivity as minimisation of the subject’s intervention and minimal version of objectivity which is based on the acceptance of majority in a certain group7. The article’s central aim is to provide arguments not only proving that it is impossible to eliminate subjectivity in the process of interpretation and application ← 16 | 17 → of law, but primarily to emphasise its constitutive and creative role in the process of establishing objectivity. For this purpose (I) I am going to present the way in which modern philosophy enables connecting objectivity with the category of rationality in order to indicate, in accordance with Marx’s theses, how the issue of objectivity may be constructed and reconstructed in connection with practice. Then, (II) I am going to discuss the category of hard cases in law in order to assess the consequences of the adopted view of objectivity in legal practice. Although questioning the legitimacy of the search for objectivity, both in theory and practice, seems to have recently become fashionable while emphasising the subjective element in law, I am not going to deprecate the need for objectivity. To the contrary, I am convinced that objectivity by all means needs to be cultivated. The article also aims at proving that objectivity in law cannot be treated in absolute terms. Considering subjectivity as a necessary condition for objectivisation enables the rethinking of =the concept of objectivity in law.
Bogdan Baran points out that the history of philosophy employs two meanings of the notion8. The first – stemming from the notion of rationalism – refers to the theoretical-methodological view, connected with the process of explaining the reality and justification of statements describing it by putting it under the spell of the system of concepts. By and large, rationality is simply equated here with a scientific method. Rationality in the other meaning is an existential category referring to individual and particular decisions. To act rationally is thus to make conscious choices in accordance with what is imposed by the current circumstances. Actions of an individual “thrown into a situation” are qualified as rational if they are justified by his or her way of understanding the reality. The rationality thus defined is not used in the logical sense, in the former meaning, but in the psychological and sociological sense, placing it not so much within the supraindividual criteria of choice, but within the understanding of the surrounding reality, particular situations and events affected by a multiplicity of factors, characteristic for an individual.
“Epistemology – as ontology of knowledge – must then ‘carve’ its object from the onset; it will not be the ‘cognition’ as the part of epistemic field separated from the ‘object’, but precisely the relation between cognition and object – thus the area itself in its comprehensive structure.”9
Siemek defines the epistemic form of knowledge as the state of direct reflection of a certain ontic reality. The area constituting knowledge, dichotomically divided into ontic sphere of the “object” and logically cognitive sphere of the “subject”, is defined as epistemic level. Cognitive action is mainly focused here on the “objective” level and accumulates in the form of independent “objective” knowledge about the reality itself – episteme. The question about episteme is a question exceeding the status and cognitive functions of the theory of the epistemic level as it is the level of questions concerning the structural whole and the determinants enabling the perception of something as objective10. Enquiring about rationality at the epistemic level, we are in fact enquiring about the cohesion of the subjectively perceived system of possible meanings, but also non-meanings, which are always invisible within the functioning view. By enquiring about rationality at the epistemological level, we are enquiring about the conditions of the possibility of knowledge, perceiving the epistemic field as comprehensively conditioned by them, thus enabling the articulation of the senses which can not appear within the determined paradigm and revealing its problematic and non-apparent character. According to Siemek, new theoretical instruments escaping any doctrinal restrictions that emerged in the second half of the 20th century operate at the epistemological level. Not only does it formulate a new kind of theory, but – confronted by a new kind of theoretical objects – it thus discovers another sphere of reality. “It thus discovers that ‘the subject’ always is an inherent element of each instance of its ‘objectivity’”.11 Thus, the created epistemic level loses its ontological innocence – by constituting one of the determinants of human experience, it determines the scope of human action. ← 18 | 19 →
“Historicity, socialisation, culture; these are various terms – and possibly various dimensions – of new objectivity (…).”12
The horizon of an epistemological question does not have to be understood as Kantian transcendentalism, even though it obviously is rooted in Kantian philosophy. In the sense of the research area characteristic for philosophy Siemek included Gadamer’s and Ricouer’s hermeneutics, trends in Sartre’s and Merlau-Pounty’s phenomenological epistemology, the representatives of the Frankfurt School (Adorno, Horkheimer, Marcuse, Fromm), their heir and creator of the universal pragmatics J. Habermas, a representative of transcendental pragmatics K. O. Appel, representatives of structuralism and semiology (Barthes and Eco) and representatives of reflexively-oriented sociology. The argumentation of the Polish philosopher may be illustrated with Ch. S. Peirce’s metaphor of the cable. This new philosophical instrumentarium should not form a chain which is no stronger than its weakest link, but a cable whose fibres may be ever so slender, provided they are sufficiently numerous and intimately connected.
To summarise: human reality is the existence of sense; enquiring about it, one should be guided by the question about sense-making determinants, which enabled and preceded experience13. After rationality becomes established in experience, it determines categories, assumptions and interpretation procedures, thus not only creating the human living space but also organising the manner of acquiring new experience. R. Kwaśnica clarifies this relation in the following way:
“(…) while the source of rationality is everything which surrounds us, which we encounter in our lives and which we experience as the determinants of our actions, yet these determinants do not constitute a complex of “pure” facts, i.e. the facts that have not been commented on by the generations preceding ours and by our contemporaries, but they are a structure of sense. This denotes that what we experience as the determinants of our actions has been identified before us and equipped with the meaning corresponding to the human way of experiencing the world, while we – undertaking to interpret these meanings, decrypting and modifying their content – transfer them and establish within the structure of our experience, constructing our own rationality.”14
If rationality is understood as a sense-making structure, it results in two types of organisation of experience, relative to the axiological orientation established and dominating in our experience: adaptive rationality based on instrumental values and emancipation rationality based on non-instrumental axiological orientation. ← 19 | 20 → If the world is the world of sense, rationality decides on the manner of attributing it with sense, i.e. objectivising it in one’s own experience. In the following pages, I am going to prove that each of the discussed types of rationality constructs disparate pictures of objectivity.
Instrumental values impose the relation between the means and the ends. The basic model to which adaptive rationality refers is the model of instrumental action. Equating human action with the type of instrumental action reduces the function of rationality to the efficiency in the selection of means for the ends determined beforehand. The action is appropriate if it results in notable effects. Effects (aims of the action) are then reduced to certain data and thus they may be empirically verified. The view of objectivity created in this way is based on the assumption of obviousness, order and unquestioned reality of culturally defined world, typicality of situations, motivation, means and rationality of other people. These interpretation assumptions result in failure to perceive subjectivity of one’s own knowledge and “suspension of doubts”. This naturally does not mean that adaptive rationality excludes doubts, as they always appear despite the effort to avoid them; from the point of view of this discussion it is the way of rejecting them that is vital.
If, in accordance with Marx’s remarks, we focus on the very practice of creating reality, the procedures responsible for sustaining its particular view gain in importance. The procedures basically consist in: the manner of justifying knowledge, the manner of reacting to alternative patterns of competences, the manner of introducing changes in one’s own view of the world. In practice dominated by instrumental values the sole justification of knowledge is its source and effects which may be attained on its basis. “The more trustworthy the source of knowledge is (i.e. the more universal acceptance of this knowledge is and the more authoritative the people using it are), the more effective the action based on this knowledge is, the better it is justified.”15 In other words, we attribute accidental social practices with the characteristics of strong objectivity, as we best function within the structure which may be attributed with features of obviousness, the structure which is totally predictable and unchanging. The complex of truths and indisputable assessments functioning in a given group, which in practice are perceived as a reflection of the natural order of things, is the source of cognitive fundamentalism. Any departure from the accepted cognitive rules is tantamount to their negation and rejection, actions transgressing against the functioning patterns of behaviour are perceived as incomprehensible and senseless. This results in cognitive reactivity totally eliminating the subjective factor in constructing the ← 20 | 21 → objectivity. Interestingly, R. Kwaśnica remarks here that the changes in one’s own view of the world are constrained. “An individual accepts them under the pressure of inevitability, treating them, as it were, as a compromise which must be reached if one wants to sustain one’s own view of the world as a whole.”16
Differences between the structure of sense determined by adaptive rationality and the structure of sense determined by emancipation rationality are primarily seen in disparate axiological perspective – the remaining differences are solely the consequences of disparate axiological assumptions. To present the structure of emancipation rationality, it is best to begin with the reconstruction of the axiological perspective, different than that in adaptive rationality, and go on to contrast both rationalities. Emancipation rationality is based on the values which perceive life not in terms of possessions but in terms of widely conceived change and self-improvement. In the perspective of emancipation rationality the ultimate value is the ability to be the subject of one’s own action. In other words, the possibility of deciding on the directions of one’s action is expressed in the freedom to determine its ends17. The categories of description and interpretative assumptions determined by emancipation values enable treating the social reality as a set of variable interpretations. The knowledge of reality does not display the characteristics of objectivity in the strong sense, as our knowledge of the reality is constantly being communally determined, interactively confirmed and reviewed. Culture ceases to be a set of the regulations conceived beforehand, which must be taken into consideration at each instance of a particular action under the threat of its failure, but it is rather a set of intersubjectively adopted convictions (objectivity in the weaker sense), which require justification and are subject to criticism, constant change and review.
The implemented interpretative procedures are based on universality of justifications. Contrary as in the case of instrumentality of justification of one’s actions and their results, whose only criterion is their effectiveness, justification is correct not due to its result but due to the respect of the rules of discourse. Contrary to cognitive fundamentalism, which interpreted the set of rules functioning within a particular group as a reflection of natural, “objective” order of things thus resulting in negation and rejection of each departure from the pattern, cognitive antifundamentalism, as perceived in the manner of reacting to alternative models of competences, manifests itself in the awareness of its provisional character. Other people are never cast in the role of means or resources at our disposal to be used ← 21 | 22 → to accomplish tasks entrusted to us, but they are partners in the dialogue, partners whose alternative points of view enrich our experience. Contrary to cognitive interventionism, which focuses on sustaining one’s own view of the world by rejecting reactively these elements which interfere with it, cognitive intentionality manifests itself in the awareness of the shortcomings of one’s own knowledge, searching for them and going beyond them. Changes in one’s own view of reality are not extorted by external factors but are intentionally created.
Both types of rationality offer two different ways of objectivising reality. The structures creating objectivity based on instrumental values result in the fact that our reality loses its lucidity. Knowledge of reality is unable to comprise its own constitutive rules with its cognition, as the logic of instrumental action is a self-confirmatory structure. Effectiveness of action in each instance confirms the accuracy of the adopted view of the world. Therefore, departure from the current ways of interpreting reality is perceived as a transgression against the “objective” order and it is equated with excessive subjectivity, i.e. the error of arbitrariness. Domination of instrumental values prevents the interpretation of objectivity as a practical manner of emergence of reality and its perception. Thus, objectivity becomes a static category – objectivity exists or it does not. Theoretical practice remains at the epistemic level and adopts the view of objectivity created within it as static inevitability.
In the structure of emancipation rationality the manner of acquiring experience is mainly determined by universal values (in the formal meaning), procedural and communicative perception of reality and the assumption of uniqueness of situations, means and other people’s rationality. Contrary to adaptive rationality, results of the action undertaken on the basis of emancipation rationality do not guarantee anything. Emancipation rationality encourages reflection not so much on the results of undertaken action as on the manner of executing it. Reality perceived from this perspective does not display the characteristics of unquestioned reality, as emancipation is a process which may be implemented only when questions are asked, doubts and problems seen and appreciated. Freedom involves continuous attempts at achieving self-fulfilment and self-awareness, it is not a manipulative unrestricted choice of means to attain ends. The aim of emancipation is to be the subject of one’s own action. Therefore, we can not speak of objectivity in the static sense but of the process of objectivisation. Objectivisation is a characteristic of the process of creation of knowledge. Thus objectivity is not rooted in preceding data or coherence of logical theory but in the basis of human intersubjectivity. It is not a static necessity of the created determinants, but due to the fact that the structure of emancipation reality is able to comprise its own determinants of creation, objectivity is perceived in dynamic terms as an accidental necessity. ← 22 | 23 →
The occurrence of hard cases in law is now associated with R. Dworkin’s integrity of law philosophy. In very general terms, a hard case is a case where we are not confronted with a mechanical (syllogistic) application of law; it is a situation in which a judge has no unambiguous legal norms at his or her disposal. The rules of legal methodology in hard cases do not unequivocally result in an unambiguous result. I suggest that the following definition of a hard case be adopted: a hard case in law is a situation when a routine action (mechanical, syllogistic application of law) is not possible18. The action may be disrupted by numerous factors. The problem disrupting the action does not result – although most of the time it is probably the case – from an ambiguity of a legal text. A problematic situation may just as well arise when law “meets” other normative systems such as morality, customs, culture or science. Continuously emerging new problems with the application of law in the ever-changing reality. For instance the cases concerning bioethics, distinctly point out to the potential for the emergence of hard cases in the process of law-making and its binding force in application. I aim to reveal the correlations between the deeply rooted manner of action and the ways of objectivising the knowledge of law by a way to which they seem so obvious because of the sets of practical solutions they escape any attempt of reflection. Let us repeat: a hard case is a problematic situation which interferes with a lawyer’s smoothly developing practice in the multidimensional space of law.
The adopted concept of hard cases on a non-teleological constituting the basis of pragmatism according to which:
“The alternative to a teleological interpretation of action, with its inherited dependence on Cartesian dualism, is to conceive of perception and cognition not as preceding action but as a phase of action by which action is directed and redirected in its situational contexts. According to this alternative view, goal-setting does not take place by an act of the intellect prior to the actual action, but is instead the result of reflection on aspirations and tendencies that are prereflective and have already always been operative. In this act of reflection, we thematize aspirations which are normal at work without our being actively aware of them […]. According to this view, our perception of the word appears to be structured by our capacities for, and experiences of, action. Even when we are not pursuing any immediate intention of action, the world exists not simply as an external counterpart to our internal self, but in the form of possible actions.”19 ← 23 | 24 →
Hard cases do not exist beyond the context of an individual action. They are not inherent elements of the legal system and of its functioning, because difficulties cannot be perceived and can not be overcome if they do not constitute an obstacle that is interfering with the action of an individual. An encounter with a hard case exposes the fact that the existing habits do not bring about an expected result. Routine interpretative efforts, tested and reliable (so far) fail. Emerging interferences render reality, or at least its certain fragments, problematic. The emerging problematic situation within the current practice provisionally hinders action. The only solution is the reconstruction of the disrupted context. The solution to the problem is a selective and differentiating behaviour and not the action aiming at externally set ends, since the solution of a particular problematic situation always involves ambiguity, numerous determinants and aspects. Hard cases in law draw attention to conventionality of current premises of action, unquestioned until the problem arose. Confronting the problem reveals the hypothetical character of the reality, conventionality and diversity of the habits functioning within the practice of law.
‘For the pragmatists, the setting of ends is not an act of consciousness that takes place outside of context of action. Rather, the setting of an end can only be a result of a reflection on resistances encountered by the variously oriented behavior of a life form whose world is already schematized in a practical manner prior to all reflection.’20
Thus, the action aiming at solving a hard case can not be based on the pattern proposed by analytical philosophy, where reflectiveness becomes the point of departure for interpreting action. In the proposed concept of hard cases the action develops in the opposite direction. At the beginning, there is action based on habit and only when it is disrupted, is reflection possible. The basic pattern in a hard case is not reflection followed by action but action followed by reflection on the practice preceding the reflection, within which the hard case has emerged. Rationality in the case of action aiming at the solution of a hard case in law thus consists in self-criticism, as the disrupted action requires reorganisation of the current patterns and their readaptation. John Dewey formulated it in the following way:
‘While the content of knowledge is what has happened, what is taken as finished and hence settled and sure, the reference of knowledge is future or prospective. For knowledge furnishes the means of understanding or giving meaning to what is still going on and what is to be done.’21 ← 24 | 25 →
A hard case has a twofold character; on the one hand it is always subjective and individual as it appears and is solved in the consciousness of an individual, on the other hand, its solution, if it is to become an element of cognition, must have supraindividual legal validity.22 The adopted perspective testifies to the constitutive role of subjectivity in objectivisation of knowledge. Even though a hard case is a problem experienced solely subjectively, its solution must be presented in general terms reflecting the perspective of the whole group, i.e. it must acquire intersubjective validity. Focusing attention on the practical and creative role of knowledge of law in solving legal problems testifies to cognitive openness of legal practice, self-criticism and intersubjective character.23
When two different views of objectivity determined by the two defined types of rationality are recalled, their relation to the problem of hard cases in law becomes distinct. The concept of objectivity dominated by instrumental values is expressed in registering and consolidating primarily these circumstances accompanying the practice of law which support the established structure of thinking and are contained within it. The facts questioning the structure are confronted with the whole system of thinking of an individual, ignored or – finally – invalidated and rejected. In other words, the so-called strong objectivity results in the fact that theoretical knowledge of the way in which objectivity emerges in practice comprises solely the circumstances which confirm it. If effectiveness is a factor decisive for truthfulness of knowledge of law, all forms of awareness must be adapted to it. If the role of lawyers is reduced to the freedom of selection of means to attain the ends independent of the practice, this determines the technical character of the practice of law. This attitude performs an ideological function in justifying legal positivism. Legal positivism stems from positivistic methodological awareness based on the separation of the sphere of observable facts from the sphere of values. The object of cognition exists independently of the subject, it is, in its own way, already given. Positivism causes undesirable neutralisation of objectivity equating legitimisation of knowledge with a particular research method – equating epistemology with methodology, while the ignored epistemological issues result in a number of ontological solutions; unquestioned ontology becomes metaphysics.24 ← 25 | 26 → The assumption that reality is a sphere of facts independent of human cognition is aptly described by Habermas as “ontology of reality”. Consistently ignored epistemological problems in cognition of law lead to its secondary ontologisation by equating analytical theory of interpretation of law dominating in legal positivism with law as such. Understanding law as objective reality independent of subjective determinants results in ignoring the role of legal interpretation in cognition of law. The desire of objectivity is satisfied with the passivity of cognition of law.
Meanwhile, the relation of means (methods of interpretation) to ends (content of law) is never neutral.
‘Only when we recognize the certain means are available to us do we discover goals which had not occurred to us before. Thus, means not only specify goals, but they also expand the scope for possible goal-setting.’25
The wider the choice of interpretative and argumentative tools is, the greater is the possibility of objectivisation of law. The impulse for reinterpretation of current results of interpretation of law is the axiological discomfort, the feeling that all previous interpretations of a legal text may cause gross injustice. Appreciation of interpretative problems is connected with a lawyer’s subjective determinants. Although such subjectivity can not constitute the grounds for legitimisation of the proposed solution, it is a condition for objectivisation of law. Adherence to the letter of law should not be equated with the adherence to the current interpretative routine. Selection of interpretative tools enables emergence of new ends, while the necessity to persuade a group to change current interpretation of law inevitably results in intersubjective evaluation and legitimisation. Intersubjectivity constitutes the basis for developing the understanding of objectivity appropriate for legal sciences, which does not come from empirical sciences as is the case of positivism. Objectivity understood as objectivisation places time over place, change over possessing, dynamism over stagnation. What is individual and unique in a hard case becomes an impulse to impart law with new content. Objectivisation of law is a process which consists in creative reconstruction of methods of interpretation and not in reactive adjustment of the content to the method, it is a process in which subjective qualities of lawyers are of epistemic significance. Dewey claimed that assessment of institutions ought to be based on the personality type which they favour. The concept of objectivity dominated by instrumental values causes one to view legal culture as a set of accepted patterns of behaviour as well as tried and tested work directives. Difficult cases are seen as a threat to self- evident truths and unquestionable opinions functioning within a given group. A ← 26 | 27 → novel experience brings about a “defensive reflex” taking the form of a cognitive reaction aiming at preserving the integrity of a world view. In a problematic situation the particular and the unique becomes removed and hidden. Any change in an existing pattern of legislation is regarded as a forced compromise which one must accept in order to ensure security and peace of mind. Unlike the objectivity based on instrumental values the intersubjective interpretation of objectivity views legal culture as a practice of continuous renegotiating of conventions. Any modifications of routine interpretations resulting from dealing with difficult cases are intentional rather than imposed.
1 Peter Goodrich (ed), Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence (Univ of Michigan Press 1998) 1.
2 2nd Karl Marx Thesis on Feuerbach Friedrich Engels, Ludwig Feuerbach and the End of Classical German Philosophy (Electric Book Co 2001) 61–65 <http://site.ebrary.com/id/2001676> accessed 19 April 2015.
3 Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (4 pr, Univ of Pennsylvania Press 1991) 230.
4 Louis Althusser and Etienne Balibar, Czytanie ‘Kapitału’ [Reading Capital] (Wiktor Dłuski tr, 1st edn, Państwowy Insytut Wydawniczy 1975) 75.
5 3rd Karl Marx Thesis on Feuerbach Engels (n 2) 61–65.
6 Brian Leiter (ed), Objectivity in Law and Morals (Cambridge University Press 2001) 1.
7 Lidka Rodak, ‘Objective Interpretation as Conforming Interpretation’ (2011) 1 Oñati Socio-Legal Series 4.
8 Bogdan Baran, ‘Przyczynek Do Krytyki Bieżących Badań Nad Racjonalnością’ [Contribution to the Critique of Current Research on Rationality] (1980) 2 Studia Filozoficzne 109–16.
9 Marek J. Siemek, Idea Transcendentalizmu U Fichtego I Kanta: Studium Z Dziejów Filozoficznej Problematyki Wiedzy [The Idea of Transcendentalism in Fichte and Kant. The Study of the History of Philosophical Problems of Knowledge] (1st edn, Państwowe Wydawn Naukowe 1977) 43.
10 Marek J Siemek, Drogi Współczesnej Filozofii [The Ways of contemporary philosophy] (1st edn, Czytelnik 1978); see also: Marek J Siemek, Filozofia, Dialektyka, Rzeczywistość [Philosophy, Dialectic, Reality] (1st edn, Państwowy Insytut Wydawniczy 1982) 62–3.
11 Robert Kwaśnica, Dwie racjonalności : Od filozofii sensu ku pedagogice ogólnej ogólnej, [Two of Rationality. From Philosophy of Sense to General Pedagogy] (2nd edn, Wydawnictwo Naukowe Dolnośląskiej Szkoły Wyższej Edukacji TWP 2007) 38.
12 ibid 45.
13 ibid 22.
14 ibid 35.
15 ibid 95.
16 ibid 93.
17 ibid 97–100.
18 Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press; Oxford University Press 1978) 197.
19 Hans Joas, The Creativity of Action (The University of Chicago Press 1996) 158.
20 Hans Joas, Pragmatism and Social Theory (University of Chicago Press 1993) 248.
21 John Dewey, Democracy and Education (Dover ed, Dover Publications 2004) 366.
22 Leszek Koczanowicz, G.H. Mead (1992 edn, Wydawnictwo Uniwersytetu Wrocławskiego) 32.
23 Sanne Taekema, ‘Beyond Common Sense: Philosophical Pragmatism’s Relevance to Law’ (2006) 29 Nordisk Juridisk Tidsskrift 22.
24 Dorota Wolska, Odzyskać Doświadczenie : Sporny Temat Humanistyki Współczesnej [Recover Experience. Controversial Topic of Contemporary Humanities] (Universitas 2012) 169–170.
25 Joas (n 19) 154.
However, imagine that everything that you had written by your right side so far would have been written by your left side. Try to see what is going on in here in such a way.
Juan José Millás, Two women in Prague
In 1982 Saul Kripke published his influential study Wittgenstein on rules and private language1, which enhanced his citation index enormously. The replies and other reactions were mostly of a critical kind, but this does not mean that the study is not worth analysis; quite the contrary. Many “applications” of Ludwig Wittgenstein’s ideas on (in) the domain of legal theory rely on Kripke’s study; they are inspired by it or they engage in argument against it. Many of them then lead to the thesis about the specific indeterminacy of law. My aim in this paper is to refute the argument of the impossibility of following rules, i.e. the so-called rule scepticism in the version proposed by Kripke that is transferred into the discussion on the concept of law. Following this I will also refute the argument made against Kripke provided by G. Baker and P.M.S Hacker in Scepticism, Rules and Language. Subsequently I strive to provide an argument on the objectivity of law that is crucially based on Dennis Patterson’s approach, although Patterson’s final “finding” is thereby modified. This will be done based on (de)limitation of the application of Wittgenstein’s reminders on legal theory.
In order to achieve these aims I firstly sum up Kripke’s argument (part I); secondly I show how he misunderstood Wittgenstein, how Baker and Hacker replied to Kripke and why they even are partially wrong (part II); thirdly I provide some examples of misunderstandings or misuses of Wittgenstein’s ideas about the field of law in favour of rule scepticism that stem from Kripke’s fallacy or fallacies of a similar kind, and I explain their roots (part III); and finally (part IV) ← 29 | 30 → I follow Patterson’s new analogy provided in Normativity and Objectivity in Law, which sheds new light on the objectivism-subjectivism dispute. However, I revise Patterson’s concept of the forms of argument that serves as the background for his stipulation of objectivity as relative to a domain.
The issue of ontological objectivity of law as determinate correctness2 is at stake in the background of this paper, because of two problems identified by Kripke. Firstly, what we believe we do according to a rule might not correspond to what the rule really required us to do. So we believe we have obeyed the rule while in fact we have not. Secondly, how then do rules guide us? Moreover, if the law is not sufficiently determinate, the space for epistemic subjectivity of law (e.g. in the sense of lack of impartiality) opens up too. Moreover, the question of law as being epistemically objective in the sense of being “open” to discovery of correct answers is at stake in connection with legal interpretation.3 Here, Wittgenstein’s ideas have been used to defend quite opposite views.4 I provide an example of such opposite views in the third part of this paper in the writings of J. Boyle and A. Marmor, whereby I criticise both of them. The idea is this: if legal rules may be followed without the need of their interpretation, hence without “subjective” contamination by agents, they are in this way objective.5 On the other hand, if there is always a need for interpretation, there exists space for contamination by agents all the time.6 ← 30 | 31 →
Saul Kripke interprets Wittgenstein’s Philosophical investigations7 (hereinafter “the Investigations”) in such a way that he formulates a paradox of rule-following which he calls the “Wittgensteinian paradox”8. Kripke’s Wittgenstein, as his ideas are explained in the respective study, has produced the ironical name – Kripkenstein.9
Kripke encourages us to think about the way we have grasped the rule of addition which is denoted by the word ‘plus’ or by the symbol ‘+’. The key to grasping a rule, for him, is that the rule determines my answer for indefinitely many sums (ones I have never even considered before) even if I myself have done only a finite number of sums in the past.10 Let us then imagine that ‘68 + 57’ is a computation I have never performed before.11 When I perform the computation the answer is of course ‘125’. This answer, for Kripke, is correct not only in the arithmetical sense but also in the metalinguistic sense (i.e. in the sense that the word ‘plus’ as I wanted to use it in the past, denoted such a function which if applied to the numbers 68 and 57 ‘provided’ the answer ‘125’).12 However, then the voice of the bizarre sceptic, as Kripke calls it, comes into play. The bizarre sceptic contests the correctness of my answer and my certainty about the answer in a metalinguistic sense. This sceptic claims for instance that I might have used the word ‘plus’ in such a way that answer which I intended for ‘68+57’ was ‘5’. This is possible because the sceptic could say that I used the word ‘plus’ in such a way that it denoted the function ‘quus’. Now when performing quaddition with numbers smaller than 57 the answer is the same as performing addition. But when performing quaddition ← 31 | 32 → with numbers equal or bigger than 57 the answer is always ‘5’.13 According to Kripke the sceptic is hence asking whether there is any fact that I meant the term ‘plus’ in the past such and such which would answer the sceptic’s challenge.14 In other words, whether there is any fact I can point to that shows what I meant by the word ‘plus’ in the past and hence ‘prove’ to the sceptic that his scepticism is unjustified, because I indeed meant it in such a way that it denoted the function ‘plus’, and not ‘quus’ or any other function. Kripke’s sceptic does not end here. He also questions whether I have any reason to be sure that I must provide the answer ‘125’ and not ‘5’ for ‘68+57’.15 The problem is therefore not how I know that 68 plus 57 equals 125 (arithmetical problem) but how I know that 68 plus 57 as I meant ‘plus’ in the past denotes 125 (metalinguistic problem).16
This puzzle is formulated on an example of arithmetic, but Kripke believes that the sceptical problem which is its core applies to any use of language and any use of rules.17
Just to make this clearer for lawyers I can perhaps reformulate this paradox in the following way: if I used some rule in the past and based on it I now act in a certain way, how do I know how I meant this rule in the past (i.e. how do I know what rule I have followed)? Then how can the rule ‘guide’ me when I apply it in a new case? And moreover, what justifies the use of the specific rule in the present, if everything I have done in the past was also in conformity with different rules?
Following his reading of Wittgenstein, Kripke thinks of more than one answer to his bizarre sceptic. One of them is that I would just point to my previous interpretation of the rule. But according to Kripke such a reference would not satisfy the sceptic. This is so because interpretation is in a way a rule of interpretation of the rule and because even such a rule might be interpreted in more than one way, and hence there is a need to point to a further (more basic) rule of interpretation of the rule which supposed to interpret a previous rule, etc. ad infinitum. There, the sceptical challenge is not resolved and for the sceptic the application of a rule is still only a leap in dark.18 If my interpretation of the rule does not justify the application of the rule, what else can do so? Another answer which is considered by Kripke is a disposition to apply a certain rule and not another rule. According to dispositive theory (as described by Kripke) we have the disposition to answer ← 32 | 33 → ‘125’ not ‘5’ as the members of a certain community. But not even this would satisfy the sceptic, because not only I but also the whole community may be wrong. That would lead dispositive theory into a blind alley, because whatever I or the community consider to be correct (right answer, correct application of the proper rule) merges with what is correct. And if there is no incorrect use of the rule there is no correct use of the rule.19
The conclusion is that it is not possible to mean something with words or use them according to the rules, because each use of a rule is a leap in the dark. Kripkenstein is hence the creator of a new form of scepticism that is supposed to produce ‘the most radical and original sceptical problem that philosophy has seen to date’.20 But this is not the end of Kripkenstein’s extraordinariness. Wittgenstein in Kripke’s reading was able to provide a so-called sceptical solution to the sceptical paradox.21
This solution is supposed to consist ‘in such a description of the game of concept attribution’ which provides (i) ‘the conditions under which we are justified in attributing concepts to others’22 and also (ii) ‘an account of the utility of this game in our lives’.23 Kripke speaks of game/games and so he speaks about a community which plays the games. This is so because Kripke understands the so-called private language argument in such a way that a rule may not be followed privately (in isolation from the community, as in the case of Friday on Lonesome Island). That does not mean physical isolation of the person who should follow the rule, but one who is not a member of any community.24 But let us get back to the description of the game which Kripke provides. This description is based on the clarification of three concepts, namely of agreement, form of life and criteria. Agreement in reactions, in what we do, or how we respond, is essential for the game because it creates the background on which it is possible generally to attribute the grasp of ideas to any member of the community.25 So we can attribute the concept of rule-following to ← 33 | 34 → a person only if this person acts in sufficient conformity with the actions and reactions of the community. Moreover, ‘[t]he set of responses in which we agree, and the way they interweave with our activities, is our form of life’26. Then those who respond as if they perform quaddition not addition would share a different form of life.27 For Kripke, the traditional explanation of our shared form of life is not possible. What justifies us in claiming that by ‘+’ we meant addition is part of our language game that is maintained by the fact that we generally agree.28 Kripkenstein’s idea of the concept of criteria may be briefly summed up thus: the criterion of rule-following is the community itself, the others. So someone ‘who claims to be following a rule can be checked by others’.29
Let me recall that Kripke’s example ‘68+57’ is of such a kind that anyone who is at least mediocre at addition would have no doubt about the answer s/he should provide. For this reason Kripke is in a better position (comparing our intuition and general skills) to state that we answer unhesitatingly. Our situation regarding this example of computation does not belong among the situations when we hesitate as to what rule to follow/use (which rule ‘fits’ the case) or how to follow the rule (how to use it in this case). But aren’t the latter cases the most interesting ones for legal practitioners and especially academics? Is it not a task for legal philosophy to explain30 disagreement rather than agreement that is why we do not agree on one single answer, and what such an answer (correct response) should consist of?31 ← 34 | 35 →
II. Kripkenstein versus Wittgenstein
I have outlined Kripkenstein’s sceptical challenge and his reply to the bizarre sceptic. In this part I proceed to the identification of the key difference between Kripkenstein, i.e. Wittgenstein as read by Kripke, and Wittgenstein as I understand him. The task is to realise in which way Kripke misreads Wittgenstein and hence what is misinterpreted in works of scholars who follow or rely on Kripke’s interpretation. I focus mainly on the misunderstandings connected with Wittgenstein’s philosophical method and its use. I would also comment on one of the most famous critiques of Kripke’s study provided by G. Baker and P.M.S. Hacker in the collection of their essays Scepticism, rules and language.32
My first critical remark: the sceptic in the first place did not question what I meant by the term such and such in the past, but he questioned the existence of the fact that I meant the term such and such as a state of mind. But later on the sceptic claimed that if there is no such fact, then there is no meaning. Does any one of us doubt that it is possible to mean something with words? Why would Wittgenstein question the very possibility of meaning something with words? I believe he did not. Wittgenstein ‘only’ commented on the effort of philosophers to look for answers to questions like ‘What is it to mean something with words?’ or ‘What is the meaning of a word?’. Answers to such questions cannot be provided, and looking for such answers is the result of our captivation with the modality that there must exist something that is “to mean” in a word, or something that is the meaning of a/the word in the sense of some object or fact.33 Again, the undertaking to answer such questions results from the captivation with our grammar34, and it is a symptom of our craving for generality. For example the grammar of the word ‘to measure’ in the expression ‘to measure length’ is different from grammar of this word in the expression ‘to measure time’. And an analogy of structures in the language lead us to the question: ‘What is time?’ or ‘How we can measure time?’. The past has already happened so it’s gone and we cannot measure it, the future ← 35 | 36 → is only about to come, it is not here now, so we cannot measure it yet, and the present does not have dimensions so we cannot measure it either. But if we take a look at the rules of the use of the word ‘time’ in the language, we realise that they just differ. In our common language we do not have any problems with the use of the word ‘time’, apart from keeping deadlines of course (to make a little joke), but still no definition fits all the cases or instances of its use. Definition hence cannot explain what we wanted to explain when we surrendered the analogy.35 By the description of different language games in the Investigations, Wittgenstein shows us that we use language in many ways and that the meaning of a word does not need to be (even if it can be) the object it ‘represents’ or denotes. As words are used in many ways we could say that their meaning consists in their use. But even the word ‘meaning’ has different uses, and so it is impossible to create a theory of meaning (of words). I believe that exactly this is overlooked by some philosophers and lawyers when they conclude that in § 43 of the Investigations Wittgenstein claims that the meaning of a word is its use.36 Wittgenstein in fact writes that ‘[f]or a large class of cases – though not for all – in which we employ the word “meaning” it can be defined thus: the meaning of a word is its use in the language’.37 Hence Wittgenstein did not claim or argue that it is impossible to mean something with words, but he pointed out that to look for the fact of meaning or to look for something that is a meaning (even if the meaning of the word may be in some cases its use) is to surrender to the tendencies Wittgenstein warned us against.
Secondly, Kripkenstein’s sceptic said that I follow the rule blindly and so I make a leap in the dark. But Kripkenstein and Wittgenstein crucially differ even here.38 Wittgenstein stated for a specific purpose that I (can) follow the rule blindly, but not that I make a leap in the dark. What is that specific purpose? As a matter of fact, we would need to focus here and be more patient, as this part of the paper ← 36 | 37 → does not only strive to interpret the Investigations according to the blind rule-following statement of Kripke. It will also provide the background for discussion in the third part of the paper. In fact, proper understanding of the rule-following part of the Investigations calls for clarification of Wittgenstein’s method and hence also for an outline of the context of the rule-following part.39
In § 219 of the Investigations Wittgenstein provides only a “mythological” description of a rule with the aim of disentangling a certain puzzle. To disentangle the puzzle is the specific purpose. Paragraph 219 states:
“All the steps are really already taken” means: I no longer have any choice. The rule, once stamped with a particular meaning, traces the lines along which it is to be followed though the whole of space.—But if something of this sort really were the case, how would it help?
No; my description only made sense if it was to be understood symbolically.—I should have said: This is how it strikes me.
When I obey a rule, I do not choose.
I obey the rule blindly.
To find the puzzle we need to go back to the preceding paragraphs of the Investigations. The “problem” to “solve” was the nature of language, its relation to the world, or the meaning of words. Wittgenstein criticised many views on language including his own in the Tractatus, where the image he was reduced to was in fact that operating language is like calculus according to definite rules. He also criticized similar efforts as being (among others) based on speculation that captivated us in the picture40 that something must be like this or that41, or as being in a muddle42 also because of the confusion which overcomes us ‘when language is like an engine idling, not when it is doing work’43. In order to see things more clearly, to see more clearly the use of words, there is a need to make our grammar more perspicuous, which can be done through perspicuous representations so that we can see connections.44 And in order to see how it really is, with a view that the use of words may be compared to games and to calculi with fixed rules, we must try to see the concepts of understanding, meaning or thinking more ← 37 | 38 → clearly.45 Granted, at some point we could say that to understand a word is to know how to use it, and the meaning consists in the use of the word.46 But then, is the use of a word clearly prescribed? If so, it is so in normal cases, but there are also abnormal cases.47 Where is the standard? Is understanding a state which is the source of correct use?48 And if so, when do you know the application? When do you understand?49 What does it mean to say that I understand the system/the rule? Wittgenstein says that it can mean many things, and to say that understanding is a state would itself be an improper simplification, as many things can go on in fact. So Wittgenstein gave us a new analogy: look at meaning as the way of use of words, and then he disentangles the puzzles which emerge with this new analogy. The new puzzles may arise in connection with (i) understanding a rule, (ii) performing the correct step/action according to the rule, (iii) the criterion of how we mean the rule, (iv) the interpretation of the rule and (v) justifications for following the rule in a certain way – just like this.
There are many ways of teaching somebody to follow rules, e.g. to write or count. We can for instance draw the original letters and then make a pupil draw ← 38 | 39 → shapes so as to match the original shapes. So we have influence and guiding here. But how does that work? Is there something going on in me? Does this following consist in my feeling as I draw the line following the shape of the original?50 How is it decided that I have taken the right step in following the rule, e.g. at some point, or at some stage?51 The answer may be that the right step is the one that accords with the order/rule as it was meant.52 But how was it meant? Are all the steps somehow taken already? If so, what is the criterion for the way the rule was meant?53 How am I to follow the rule if anything I do might accord with some interpretation of that rule? Wittgenstein responds that this is a misunderstanding in § 198 (part one):
“But how can a rule shew me what I have to do at this point? Whatever I do is, on some interpretation, in accord with the rule.” – That is not what we ought to say, but rather: any interpretation still hangs in the air along with what it interprets, and cannot give it any support. Interpretations by themselves do not determine meaning.
So Wittgenstein’s answer to the preceding question is in fact a new question, a new view, a new analogy (§ 198, part two):
“Then can whatever I do be brought into accord with the rule?”–Let me ask this: what has the expression of a rule–say a sign-post–got to do with my actions? What sort of connection is there here? –Well, perhaps this one: I have been trained to react to this sign in a particular way, and now I do so to react to it.
Another objection that Wittgenstein formulates could be: ‘But this is only to give a causal connection; to tell how it has come about that we now go by the sign-post; not what this going-by-the-sign really consists in.’ Wittgenstein’s answer is the following (§ 198, last part):
On the contrary; I have further indicated that a person goes by a sign-post only in so far as there exists a regular use of the sign-posts, a custom.
How are we to understand these reminders? Interpretations themselves do not determine meaning. So besides interpretations we need something else. But this does not mean that under some circumstances the interpretation would not help me. One of the possibilities is that we are trained and so we just act in this way or that. The question “can a rule determine what I shall do here?” is recognised as a puzzle, and it is deepened in § 201: ← 39 | 40 →
This was our paradox: no course of action could be determined by a rule, because any course of action can be made out to accord with the rule. The answer was: if any action can be made out to accord with the rule, then it can also be made out to conflict with it. And so there would be neither accord nor conflict here.
It can be seen that there is a misunderstanding here from the mere fact that in the course of our argument we give one interpretation after another; as if each one contended us at least for a moment, until we thought of yet another standing behind it. What this shews is that there is a way of grasping a rule which is not an interpretation, but which is exhibited in what we call “obeying the rule” and “going against it” in actual cases.
Hence there is an inclination to say: any action according to the rule is an interpretation. But we ought to restrict the term “interpretation” to the substitution of one expression of the rule for another.
Then § 202 of the Investigations states:
And hence also ‘obeying a rule’ is a practice. And to think one is obeying a rule is not to obey a rule. Hence it is not possible to obey a rule ‘privately’: otherwise thinking one was obeying a rule would be the same thing as obeying it.
This means we are trained to follow this rule like this, and the practice of rule-following connects the rule, expression of the rule and the action of rule-following. But does it mean that there is never a need for interpretation? No. This becomes clear in the third part of this paper: Wittgenstein’s reminders show agreement in language but they do not explain disagreement in law. Then do I need a justification to follow this rule like this? No, ‘if I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: “This is simply what I do.”’54 In my opinion this reminder about the bedrock of reasoning led Wittgenstein to the symbolical description of a rule which leads us to a new analogy, because we think that the meaning of the rule bridges the gap between the rule and its application, or that we need to decide how to use it in every step we make. And this new analogy can be found in § 219. However, it is a new analogy only. It is the picture that dissolves the puzzle that I always need the interpretation of a rule to follow it. We shall not generalise it and claim that we always follow any rule blindly, so that only rules determine every correct and incorrect reaction. Then language would be like logic (see § 81). Language is part of our form of life. Just to reiterate, the sentence ‘I obey the rule blindly’ from the reminder in § 219 of the Investigations should not be interpreted in such a way that I always obey all the rules, and so even legal rules, blindly (i.e. I do not choose). This reminder elucidates the grammar of the word ‘rule’ in the context of following ← 40 | 41 → the rules of language games, also by pointing out the difference between causal determination (i.e. the cause of my following the rules of the game like that) and logical determination (i.e. the reason I follow the rules of the game like that), i.e. it points even to the “fact” that the justification of why I follow the rules in this way ends somewhere.55
Hence, in Wittgenstein’s mythological description (I follow the rule blindly), if I shoot at a target with my eyes covered, and I just hit the target, I am trained, I do not need to look around, I do not need to see, I do not need to aim, I just act. I have done it (shot and hit) many times before. However, Kripkenstein’s sceptical archer does not have covered eyes; he actually shoots into the darkness. But Wittgenstein never claimed that rules cannot guide us, so he never claimed that if we were to train Kripkenstein’s sceptical archer, he would be able to hit the target. There is no possibility of a target in darkness. So Kripkenstein’s archer cannot aim at all. Wittgenstein’s reminders are in a way about the reflexivity of the action of rule-following as repeated practice, and about the fact that the justification of why I follow a rule just like this ends somewhere.
Thirdly, the reason why in Kripke’s reading Wittgenstein was supposed to have produced the paradox is that Kripke generalised Wittgenstein’s reminders on rule-following, although they originally served the purpose of clarification (on the utterance) of (the concept of) meaning via language games. Kripke’s sceptic thus created a theory of rule-following in terms of the impossibility of rule-following, which was then challenged by Kripkenstein’s new theory of rule-following that was supposed to refute the sceptical challenge.56 I would also add that Kripke mixes up the question of how I meant a certain rule in the past (what rule had I used before?) with the question of how to apply the rule in a new case. But if I am certain about the rule I used in the past (May I normally not know it except for the cases I have simply forgotten?), then in my opinion the second question is not challenged or touched by the sceptic.
G. Baker and P.M.S. Hacker replied to Kripke in Scepticism, Rules and Language57. In the first part of this collection of essays they state that they believe it to be obvious that Kripke’s interpretation contradicts Wittgenstein’s intentions in the rule-following part of the Investigations. In connection with this they claim that Kripke wrongly reconstructed its meaning and he incorrectly identified the ← 41 | 42 → aim of Wittgenstein’s reminders.58 Their framework objection is that Wittgenstein considered scepticism to be nonsensical59, so it would be very surprising to make it a central feature of his own work as Kripke claims.60 What is considered to be the sceptical paradox in the eyes of Kripke, leading to the conclusion that language is impossible as there is no meaning of words, Baker and Hacker consider to be conceptual nihilism. Granted, it may be interesting to find out what led to it, but it is certain that it is incorrect.61 Baker and Hacker remark that Wittgenstein would surely not refute what everybody else ordinarily believes, and he would not advance theses hence he would not advance scepticism.62 According to them, if we search the archaeology of § 201 we will realise that it is not the ratio of the Investigations. It in fact deepens and evolves § 198 and so it does not speak about rule-following as community practice, but that ‘to follow a rule’ is an activity which manifests the grasp of the rule.63 It has nothing to do with the fact that we are a communal species and that rule-following is in general also community practice.64
Baker and Hacker do not only object that the sceptical paradox emerges from misreading of Wittgenstein; they also aim their criticism at the alleged sceptical solution. They offer their own interpretation of the “rule-following” parts of the Investigations and they conclude, referring to Wittgenstein’s MS 165, that ‘it is not the interpretation that builds the bridge between the sign and what is signified or meant; only the practise does that’65. This is why the rules themselves do not determine the meanings, but the way we use them in what we do, in our activities, does so. We are taught and trained in what is in accordance with the rules, and ← 42 | 43 → what is not. We are checked, corrected and criticised in our behaviour (in the use of rules).66 ‘It is acting according to a rule, a practise of normative behaviour that lies at the bottom of our language-games. Language, far from being a reflection of thought, is a form of behaviour.’67
Baker and Hacker also focus on the problem of how a rule determines the action that is in accordance with it. They criticise both the concept of community fixation of application of rules through community view, and the dispositive theory.68 Their objection to the dispositive theory is that it ignores the fact that:
[T]o understand a rule is to grasp an internal relation between the rule and its (potential) extension. This is something stipulated, not discovered, a fortiori not a matter of dispositions, either public or private. Whether a person is following a rule, or only thinks incorrectly that he is following a rule, does not depend on what others are or might be doing.69
That is to say, if we ask how the rule determines the action which accords with it and we are looking for something that is between the rule and its application, Baker and Hacker answer that there is nothing of the kind. The question of what is between them makes no sense because there is an inner relation between the rule and its application and so they are not independent.70 According to them ‘to grasp a rule is to be able to say what accords with it’.71
But even if there is nothing between the rule and its application as Baker and Hacker claim, that does not mean that the “text allows the text only”, as they are interpreted by Procházka when he discusses the issue of grasping a rule and interpretation.72 The reason is that there is a difference between the rule and the ← 43 | 44 → expression of the rule in language. The latter aspect does not have key importance for Baker and Hacker here, but it is crucial for Procházka’s book. Moreover I believe that such interpretation of Baker and Hacker is simply not in conformity with their interpretation of Wittgenstein, and it is so because the rules themselves do not determine their meaning.
I believe that Baker and Hacker wrote about the rules of language in order to recognise the sceptic’s challenge as nonsensical. They did not state that every time I know/understand a rule (let us say a legal rule), I must automatically know how to apply it. In fact, they explicitly state that I can understand a rule but I may not be able to apply it. These cases they called hard cases.73
The conclusion from these two parts of this paper is that Wittgenstein did not create the sceptical paradox, and hence he did not provide its solution. But still, some legal scholars have used Wittgenstein’s reminders as being in favour of indeterminacy of law through indeterminacy of language (which might be partially correct under some circumstances), as well as the impossibility of fixing the application of rules by rules themselves. This is supposed to undermine the ideal of Rule of Law, not rule of man, because rules cannot rule.
III. Legal scepticism on rule-following
In this part of the paper I analyse some applications of Wittgenstein’s later philosophy, or to put it more properly, his late philosophising, on legal science, which led to legal rule-following scepticism. There are many examples that could have been chosen, however I have selected those that seem to be exemplary for us to show typical offences against Wittgenstein’s method that also replicate Kripke’s fallacy.
Discussions over Wittgenstein’s reminders on rule-following seem to have become a quite stable part of writings on the indeterminacy of law. In fact, they are used to argue in favour of quite contradictory views, as I have mentioned above.
Sceptical reading of Wittgenstein may be found mostly in the writings of legal scholars in the eighties and nineties.74 I believe that they were crucially influenced by Kripkenstein or, what is more, even by incautious reading of Kripkenstein. ← 44 | 45 →
One of those philosophers is James Boyle.75 Boyle applies Wittgenstein’s ideas in the context of methods and enterprises of the types of theory within Critical Legal Studies (“CLS”). Just to put CLS into context, he is focusing on legal realism76 and he reproduces one of the realists’ claims: language is not neutral and in the application of law there is a need for interpretation, which is in fact a subjective and political act.77 Boyle further writes that there is good reason for legal scholars’ interest in language and meaning as long as the post-Wittgensteinian view on language spreads in the field of law. According to him, this view could be summed up in four forms:
(i) words do not have “essences”, (ii) words do not have “core meanings”, (iii) language is, or can be, used in an infinite number of ways: it is a malleable instrument for communication, (iv) that a word is most commonly used to mean X does not mean that X is the “core,” or “plain,” or “essential” meaning of that word. To look to the “plain meaning” of a word as its “real meaning” is a special type of reification, since it ignores the purpose for which the word is actually being used.78
This view then must have concrete implications in law, whereby one of them is that it undermines the vision of a judiciary which neutrally interprets the law.79 Wittgenstein’s view on language is then relativistic, according to Boyle.80
My objection to Boyle’s interpretation of Wittgenstein is that according to Wittgenstein words can be used in many ways, but the uses are however still normative, they are guided by rules, which is why there might appear correct and incorrect uses or normal and abnormal uses; there is a correct and incorrect reaction. It is not like Feyerabend’s “Anything goes!”. Surely, the rules of language games may ← 45 | 46 → change, and while speaking – use of language – is our form of life81, our form of life (or perhaps rather: the content of our form of life) could have been different. But this is far from meaning that the use of language is indeterminate and that language is relativistic in the way Boyle claims. Everything could have been different, but it is not. Is it really true that people would not recognize if a judge used the words, even the wording of the law, differently from how it should have been used, or how the legal text should have been interpreted in some specific context, in some specific situation? Even when we accept the view that language is not neutral in the sense that it is not a calculus operating on definite rules, and the applications of words do not stem from rules as if they come out of a calculating machine, it would still not mean that normally we do not know what to say; it would not mean that we normally have doubts as to how we should react; or it would not mean that a judge can interpret words in the way s/he (subjectively) pleases in order to favour his or her (possibly political) goals. And it would certainly not mean that ‘objectivity’ of law was lost either, as the judge is simply not able, even if he or she ← 46 | 47 → tried as hard as possible, to interpret or better to say understand the wording of the law without the need to employ his or her ‘subjective’ (possibly political) views.
Surely, since language is not a calculus of rules, in some cases we have doubts as to how to understand some utterance, legal provision or legal text. But then we are able to argue reasonably in favour of interpretation X, interpretation Y or even interpretation Z. But in such cases (usually called hard ones) the interpretation is a matter of opinion, and there may well be a lack of consensus as to the right answer.82 In the interpretation of law we sometimes have struggles, different opinions on how to interpret the law83 and how to apply the legal rules84 – but what does Wittgenstein have to do with that?
Scepticism about language as exposed by legal realists is also refuted in the concise study by Zapf and Moglen.85 In their view, scepticism as to rule-following, even in the case of judicial decision-making, is in fact only a political argument in favour of wider judicial discretion.86 Such scepticism is based on looking for problems where there are no problems really, as Wittgenstein suggested in stating that the ‘logical relation between words and applications that we read off them is unproblematic’87. According to Zapf and Moglen, if the meaning of a word lies in its use, then to know the meaning means to know the use of the word. Hence there is no need to justify our use of words while using language; we can follow the rules of language blindly. But in the sphere of law it is quite different, as they claim, and I have presented a similar objection above. What is expected of those who apply the law, e.g. judges, is really to justify the use and provide reasons for the application of legal rules in particular cases specifically when there is a dispute ← 47 | 48 → about their application. So judges decide which application is the “right” one.88 Then ‘[j]ustice may be blind, but only if it is not mute’.89
Referring to Wittgenstein, even Andrei Marmor strives to show that judges do not need to reach for extra-textual evidence in order to apply rules in specific cases.90 Marmor applies Wittgenstein on the background of the Hart – Fuller discussion. His aim is to show that to distinguish easy cases and hard cases, as positivists do, is not arbitrary. Marmor defines easy cases as cases where the law may be applied straightforwardly. In contrast, in hard cases ‘the issue is not determined by the existing legal standards’.91 The Hart – Fuller discussion has implications as to whether judges create the law or just apply it.92
So let me briefly sum up Marmor’s undertaking which led him to the application of Wittgenstein’s ideas. Marmor investigates the difference between easy cases and hard cases based on Hart’s core of certainty v. penumbra of doubt cases of the use of terms which, as I mentioned above, Boyle in fact denies.93 There is no need to remind readers of the famous “no vehicles in the park”. Marmor seeks ← 48 | 49 → to defend Hart’s position against objections by Fuller. He does so by referring to Wittgenstein, while arguing against the scepticism consisting in the claim that the sole expression of the rule in the language cannot guide a judge in deciding a case by the sole application of the legal rule, excluding the need to seek its purpose. Marmor formulates Fuller’s critique of Hart thus: ‘[U]nderstanding a rule must always involve an understanding of its particular purposes’.94 The judge then according to Fuller needs something more than knowledge of the language, i.e. understanding the language and words in which the legal rules are expressed.
And here Marmor applies Wittgenstein. He asks whether it makes sense to claim that to understand the rule means always to understand its purpose, which is meant to be achieved through its application.95 Marmor transforms this question into at the first sight Wittgenstein’s question whether to understand the rule and to follow the rule consists in interpretation.96 Marmor then exposes the problem of the alleged gap between the rule and its use that needs to be bridged, and this bridge should be interpretation. Wittgenstein in Marmor’s reading repudiates this idea, and he dedicates to it quite a large part of the Investigations.97 Here, as I believe, Marmor made a key mistake as he did not bear in mind Wittgenstein’s method, and he did not apply it as (i) he used Wittgenstein’s reminders on rule-following as theory, as theses, and moved them to the field of law; (ii) he ignored the aim of those reminders; and (iii) he made a generalisation. Moreover, Marmor relies on interpretation by Baker and Hacker in the above-mentioned study, emphasising that between a rule and its application there is an inner (grammatical) relation and hence it does not make sense to say that somebody can understand a rule and at the same time not be able to apply it.98 But Marmor took Baker’s and Hacker’s claim out of context, and he probably overlooked what they mentioned in the brackets. In concreto, they stated that based on their aims they would not deal with hard cases.99 Right, the reader may say, however this is enough for Marmor to show that easy cases in law are possible, and in these cases we do not ← 49 | 50 → need interpretation encompassing understanding of purposes which should be employed in order to understand the rule and apply it. With this I would agree, but my aim was not to show that there are no easy cases in law, or that in order to follow a legal rule there is always a need for interpretation as substitution of one expression of a rule for another. My aim is to show how Marmor misunderstands Wittgenstein, so his argument would not work based solely on Wittgenstein’s reminders. I also intend to show that Marmor mixes rules of language with legal rules, as they are both rules and so what Wittgenstein wrote about rules works for both. I believe this is a mistake. We must bear in mind that legal rules are often formulated in language but they are distinct from the rules of language. When the concept of rule-following is elucidated in the Investigations, it is done in order to make clear something about language which was improperly understood before (for instance by Wittgenstein in his Tractatus), not something about law. It is true that it elucidates something about our activities and that law may be seen as an activity, but which of the puzzles of lawyers or legal scholars are resolved by the rule-following reminders in the Investigations? Which was the puzzle that supposedly led Fuller into claiming the need for purpose in the application of legal rules? Does Wittgenstein have anything to say about that?
When Marmor interprets § 201 and § 198 of the Investigations just like Baker and Hacker, he claims that Wittgenstein states that interpretation as substitution of one expression of a rule for another cannot determine the correct application. I can agree with that to some extent, however for the first part of § 201 I propose a different interpretation. This is that ‘interpretation’ in the first part of § 201 is a rule for interpretation of a rule, or a rule for the use of the rule in this step. It is not the substitution of one expression of the rule for another, which is the case of the second part of § 201. And this is of some relevance because then the space for interpretation as engagement of purposes or principles is open. In fact, even Marmor leaves that space open, as we will see later.
Let me just note here that there is one more difference between the rules of language (games) and legal rules. When I formulate/explicate a legal rule, e.g. some customary rule, I do not need to follow this rule at the same time. However, when I formulate the rule of a language game (e.g. we are in a café and I tell the waiter “When I say ‘coffee’, I want you to bring me ristretto and Pepsi, which is what I always drink here.”) I follow the rules of the language and this language game at the same time.
Now let us focus on what Marmor believes Wittgenstein meant about normal and abnormal uses of words, and how this might be useful for legal theory. I believe that Marmor is correct here. It is possible to use words normally and abnormally (in the latter case it is not clear whether the term ‘fits’, whether it is ← 50 | 51 → used correctly). This is a statement about language hence it is a statement about legal language too. The law is vague in this way, because the language which communicates legal rules is sometimes vague.100 And as the language is vague there is sometimes doubt about the applicability of some legal rule. And there we need interpretation, which Marmor claims Wittgenstein intended as the substitution of one expression of the rule for another. And in such interpretation the purpose of the rule plays a role.101 But according to Marmor such interpretation does not involve grasping the rule because ‘there is nothing more to explain or understand about its meaning’102, it is just a translation of the expression of the rule. And if judicial decision-making should be an activity of translating it would really be a strange activity. This is why Marmor concludes that ‘[i]nterpretation is required only when the formulation of the rule leaves doubts as to its applicability in a given set of circumstances’103. For Marmor therefore, legal positivism must be rescued, supposedly because legal positivism and interpretativism are said to be incompatible, and interpretativism has been refuted by Marmor thanks to his application of Wittgenstein.104
Marmor replicates some of Kripke’s fallacies in his violations of Wittgenstein’s method. Marmor uses some of the latter’s reminder as theses and applies them in the sphere of law. They then lead him to claim that there is an inner relation between legal rules and the application of these rules. Moreover, he takes one more step and he extends this thesis to judicial decision-making when he claims that when judges apply legal rules there is no need for their interpretation.
Marmor’s fallacy, his “leap”, may perhaps become clearer when I provide an example. Let us image a game which has two rules only: R1 and R2.
R1 states: It is prohibited to smoke in public places.
R2 states: Judge Dredd decides upon violation of R1.105
Now let’s try to disentangle Marmor’s puzzle using Wittgenstein’s reminders (questions). How do the players follow rule R1? How does Judge Dredd follow rule R1 when deciding upon violation of the rule or compliance with it? ← 51 | 52 →
Marmor ignores single cases. When R1 is applied by a player who smokes or does not smoke in public places, this application is different from the application of R1 when Dredd decides upon violation or compliance in a specific case.106 Applying the rule when deciding upon its non/violation is different from following or breaking this rule, even though this is also an application of the rule.
As a matter of fact, Marmor ultimately generalises Wittgenstein’s reminder from § 201 and creates an apparent definition: interpretation is translation.
But this makes the issue of interpretation of law even more confusing. If there is any doubt as to what rule is expressed in a legal text as the legal text is vague, can translation that I myself perform ever help me to understand the rule? In order to translate, I already need to understand. Could interpretation in the form of translation really be helpful?107 Or does Marmor have in mind cases in which there is some doubt about the expression of the legal rule? As if a judge could possibly ← 52 | 53 → think of three ways of reading which would lead to three different readings of the rule, and then the judge would need to select one of them? If so, what role would translation play? Would it be the process or only the result of judicial activity here?
In this part of the paper I have shown some examples of the use of Wittgenstein’s reminder on rule-following that I believe to be improper. Hence arguments on objectivity in law founded on them are erroneous too. In the last part of the paper I follow Dennis Patterson’s ideas, which should disentangle the puzzle that requires us to take either the position of objectivism or the position of subjectivism.
IV. Objectivity, rules, Patterson
Dennis Patterson tried to disentangle the puzzle or the question of whether objectivism or subjectivism is right in his Normativity and Objectivity in Law108. His intention was to lead us to a different analogy, so that the question would disappear. For an objectivist, as Patterson writes, external facts make assertions true or false. An objectivist would claim for example that if we call some objects ‘fruits’, we do so because there are indeed fruits.109 The idea is that if there were no real standard, i.e. were it not for the fact that there are indeed things like fruits in this world, then following a rule would be the same as thinking that one followed the rule. So the criterion of truth must be outside of our mind, and there must be standards independent of rules. Patterson recognises this as a misunderstanding revealed in the Investigations, as the objectivist’s picture is that of a rule on rails which cannot determine the application of a rule if we are not able to use this independent standard (§ 218). Moreover, the standard might be interpreted variously, so we need something else, something more again to guide us. Hence objectivism does not work. And what about subjectivism? Is the meaning always produced through interpretation? Patterson argues with § 198 of the Investigations, which undermines the subjectivist’s position: interpretations themselves cannot determine meaning because of the infinite regression of interpretation that needs interpretation, and so on110 So in fact even subjectivism fails.
Hence, Patterson identifies the shared fallacy of objectivism and subjectivism: they see rule-following as an operation of mind. Wittgenstein then helps us to arrive at a new analogy by perceiving normativity as action: following a rule means being trained to act, so it consists of practice. Then it follows that ‘[n]ormativity ← 53 | 54 → is concerned not with how we make judgements of correctness and incorrectness, but in what those judgements consist’.111 Patterson, interpreting his way through the Investigations, comes to the conclusion that ‘normativity of rule-following—the ground of correctness and incorrectness—is not to be found in the agreement of others as such. Agreement is a necessary feature of the normativity of our practices, but the “agreement” must be regularity in reaction to use’.112 What does this meant for the law? The law is normative too, and so Patterson engages in the task of making legal practise more perspicuous, employing Wittgenstein’s method. He claims that the training of lawyers provides them with a set of argumentative skills which are indeed specific, as there is a need to provide persuasive argument leading to correct assertions about the law. Accordingly, he states that forms of argument (textual, historical, doctrinal, prudential and perhaps some others) allow rule-following, and so the law is possible thanks to them. This however is all presented rather “out of the blue” for any reader not familiar with Wittgenstein. Readers familiar with Wittgenstein tend to suspect that Patterson is trying to get close to his form of life (in law). Patterson’s explanation is that the forms of argument are (i) ways in which we do things with law; (ii) make it possible for us to engage in activities called “law”; and (iii) allow us to demonstrate the correctness, incorrectness, veracity or falsity of assertions about the law.113 The forms of argument allow for a certain kind of objectivity. They are culturally endorsed and their existence rests upon their use by lawyers. Patterson claims that they could have been different but they are not, although they still might change.114 Here we can assume that Patterson also accepts the causal “objectivity” of the forms of argument, while at the same time they are “logically” arbitrary; they could have been quite different but they are not. It also follows then that objectivity is ‘relative to a domain’.115
Patterson’s view might perhaps be rewritten in the form of a reminder like this (compare the reminder in the Investigations, § 241):
“So you are saying that human agreement decides what are true and what are false utterances about the law?”—It is what human beings claim about the law that is true and false; and they agree in the forms of argument they use. That is not agreement in opinions but in form of life. ← 54 | 55 →
In my view, the notion of form of life is connected with the level of justification where the “spade is turned” (§ 217 Investigations), and I just do what I do. Similarly, it is connected with what Wittgenstein wrote in reaction to G. E. Moore’s common-sense proof of an external world. In order to have doubts about something, we need to have a system within which such doubts might exist. ‘I have arrived at the rock bottom of my convictions. And one might almost say that these foundation-walls are carried by the whole house.’116 Form of life in fact has such foundations. As no opinions are present at that level, no meaningful discussion is possible. If no meaningful discussion is possible, no justification and no reasoning are needed. Patterson was looking for something in law being part of the form of life, so it would allow solid objective grounds for law. Would it not then be the case that the law’s empire would be the lawyer’s empire? Laypeople are certainly not acquainted with the forms of argument, but that does not mean that they are not to follow legal rules or in general do things within the law.
The forms of argument are not to be underestimated in any way, but they fix the practice for those who are trained in them. Patterson is on the correct track, I believe, as he is looking for a standard or a matrix that might set some criteria in practice. He is looking for something in the activities called “law” that might be beyond correct and incorrect, as this would settle the criteria for correct and incorrect. This something should allow objectivity in law (as this would constrain our actions within this activity), even though this standard could be different, so it is “logically” arbitrary. However, looking in the practice of law we can see more activities than just the things that lawyers do. Even the “list of expressions of legal rules”117 can play some role in connection with repeated practice in applying those rules if we want to refute scepticism about rules and rule-following. On the ontological level, legal norms are surely mind-independent at the existential level,118 and we are surely trained to follow some laws in some way, so most of the time we do not have doubts as to whether we have obeyed the law or violated it. This is the case also because language is mostly determinate, so there are no huge epistemic constraints for us to find out what the law actually requires us to do. ← 55 | 56 → And in cases where we have doubts as to the proper way of following or applying a rule, or how, as a judge, the case should be decided, we have methods of legal reasoning that set criteria for a competent quest for the right answer. Perhaps this is as much objectivity as we can get. Is there any other “deeper” bedrock where our spade could ultimately turn?
1 Saul A Kripke, Wittgenstein on Rules and Private Language (8th edn, Harvard University Press 1995).
2 For types of objectivity cf. e.g. Matthew Kramer, Objectivity and the Rule of Law (CUP 2007). Kramer distinguishes ontological, epistemic and semantic objectivity (genus of objectivity). The ontological type has dimensions of mind-independence, determinate correctness and uniform applicability. Epistemic objectivity has dimensions of transindividual discernibility and impartiality. Truth aptitude is a species of semantic objectivity. The topic of in/determinacy of law falls within the discussions regarding determinate correctness as a species of ontological objectivity.
3 Cf. dimensions of objectivity in Brian Leiter (ed.), Objectivity in Law and Morals (CUP 2001) 3.
4 S. Bertea provides argumentation to refute the use of Wittgenstein by some positivists whose aim is to rebut the thesis of the need of interpretation every time we are about to determine what the law requires. Bertea argues that Wittgenstein understood interpretation as pertaining to the theoretical sphere and rule-following as an activity, while positivists (just as interpretativists) understand both as forms of reasoning. See: Stefano Bertea, ‘Remarks on a Legal Positivist Misuse of Wittgenstein’s Later Philosophy’ (2003) 22 Law and Philosophy 513.
5 It is surely possible to argue that the need for interpretation of law does not mean the loss of objectivity.
6 Moreover, the issue of semantic objectivity may arise if one treats Wittgenstein’s writings as criteria for semantic objectivity that are determined based on concept of language we accept.
7 The Investigations were first published in 1952. This paper uses quotations from Ludwig Wittgenstein, Philosophical Investigations, (3rd edn, Blackwell Publishers 2001).
8 Kripke considers this paradox to be fundamental for the Investigations, and it is supposed to create the basis for the so-called private language argument. See: Saul A Kripke, Wittgenstein on Rules and Private Language (8th edn, Harvard University Press 1995) 2ff.
9 See: Jaroslav Peregrin, ‘Wittgensteinstein a pravidla našich jazykových her’ [Eng. ‘Wittgenstein and Rules of Our Language Games’] in R Kišoňová and V Vitálošová and A Démuth (eds.), Wittgensteinovské skúmania [Eng. Wittgensteinian Investigations] (Schola Philosophica 2008) 77.
10 Saul A Kripke, Wittgenstein on Rules and Private Language (8th edn, Harvard University Press 1995) 7.
11 Ibid, 8. Kripke chooses this example, but in trying to grasp this point we might do better by imagining a more complex computation (e.g. 7 665 034 plus 622 135).
13 Ibid, 8–9.
14 Ibid, 11.
16 Ibid, 12.
17 Ibid, 7, 58 or 110.
18 Ibid, 17 and following.
19 Ibid, 22ff. There are other objections against dispositive theory provided by the sceptic. Kripke also replies to the sceptic using the ‘philosophy of mind’ argument (i.e. the argument that a certain act of meaning of a rule belongs among qualia as an irreducible experience perceptible only by introspection). In any case, Kripke does not consider any answer to the sceptic to be sufficient until he provides his own (or Kripkenstein’s one).
20 Ibid, 60.
21 Kripke speaks about a sceptical solution because according to him it is not a direct solution of the problem. Ibid, 69.
22 I.e. even the concepts of rule or rule-following, as I understand Kripke.
23 Ibid, 95.
24 Ibid, 110.
25 Ibid, 96.
28 Ibid, 97.
29 Ibid, 101.
30 Following Wittgenstein’s method we must not explain disagreement but describe it. Wittgenstein’s philosophical activity is a descriptive activity; it does not lead to creation of theories, it reminds us of what we already know but did not see clearly. For this reason we should mostly classify our existing knowledge, not seek to gain new. Cf. § 124 Investigations: ‘Philosophy may in no way interfere with the actual use of language; it can in the end only describe it. For it cannot give it any foundation either. It leaves everything the way it is. (…).’ Cf. also § 126 Investigations: ‘Philosophy simply puts everything before us, and neither explains nor deduces anything.—Since everything lies open to view there is nothing to explain. For what is hidden, for example, is of no interest of use. One might also give the name “philosophy”: to what is possible before all new discoveries and inventions’.
31 See: Brian Bix, ‘Cautions and Caveats for the Application of Wittgenstein to Legal Theory’ in Joseph K Campbell and Michael O’Rourke and David Shier (eds), Topics in Contemporary Philosophy (MIT Press 2005, 217–229) 221.
32 There is a great number of papers and books that analyse Kripkenstein and compare him to the ‘real’ Wittgenstein. There is no need to name the basic sources to achieve our aims. But obviously the frequency of critique shows that Kripke’s reading is the controversial one.
33 Cf. § 115 of Investigations, and the preceding and following paragraphs. Subsequently Wittgenstein even criticised his own image theory of language from the Tractatus logico-philosophicus.
34 Let me remind that Wittgenstein uses the word ‘grammar’ in specific way. See e.g. Gordon P Baker, Wittgenstein’s Method. Neglected Aspects (Blackwell Publishing 2004) 24, 42, 85.
35 Cf. Ludwig Wittgenstein, The Blue and Brown Books (Harper Torchbooks 1965) 26.
36 E.g. Stefano Bertea, ‘Remarks on a Legal Positivist Misuse of Wittgenstein’s Later Philosophy’ (2003) 22 Law and Philosophy 513, 531. In any case, most of Bertea’s insights are very valuable.
37 Investigations, § 43. Gordon Baker reads the use of italics by Wittgenstein in various ways. He does not believe that Wittgenstein always intends only to stress some words. Baker in this case considers the use of italics for the word ‘large’ to be an effort by Wittgenstein to point out the negative outcomes of the word ‘large’. If I understand Baker properly, Wittgenstein here strives to lead the reader to focus and rethink even the class of cases where we use the word ‘meaning’ differently. See: Gordon P Baker, Wittgenstein’s Method. Neglected Aspects (Blackwell Publishing 2004) 228.
38 I had already argued that there is no big sceptical challenge or paradox that Wittgenstein was about to solve. Let’s keep that in mind here too.
39 Cf. e.g. Gordon P Baker, Wittgenstein’s Method. Neglected Aspects (Blackwell Publishing 2004).
40 Investigations, § 115.
41 Ibid, § 112.
42 Ibid, § 153.
43 Ibid, § 132.
44 Ibid, § 122.
45 Investigations, § 81:
F. P. Ramsey once emphasized in conversation with me that logic was a ‘normative science’. I do not know exactly what he had in mind, but it was doubtless closely related to what only dawned on me later: namely, that in philosophy we often compare the use of words with games and calculi which have fixed rules, but cannot say that someone who is using language must be playing such a game. –But if you say that our languages only approximate to such calculi you are standing on the very brink of a misunderstanding. For then it may look as if what we were talking about were an ideal language. As if our logic were, so to speak, a logic for a vacuum. –Whereas logic does not treat of language – or of thought – in the sense in which a natural science treats of a natural phenomenon, and the most that can be said is that we construct ideal languages. But here the word “ideal” is liable to mislead, for it sounds as if these languages were better, more perfect, than our everyday language; and as if it took the logician to shew people at last what a proper sentence looked like.
All this, however, can only appear in the right light when one has attained greater clarity about the concepts of understanding, meaning, and thinking. For it will then also become clear what can lead us (and did lead me) to think that if anyone utters a sentence and means or understands it he is operating a calculus according to definite rules.
46 Investigations, § 138. In fact Wittgenstein claims that it might be the case, but it does not have to be.
47 Ibid., § 141 and § 142.
48 Ibid, § 146.
49 Ibid, § 148.
50 Ibid, § 177.
51 Ibid, § 186.
53 Ibid., § 190.
54 Ibid, § 217.
55 See also § 220ff of the Investigations.
56 See previous footnotes.
57 Gordon P Baker and PMS Hacker, Scepticism, Rules and Language (Basil Blackwell 1984).
58 Ibid, vii.
59 Baker and Hacker explicitly refer to the passages of Wittgenstein’s diaries, and to his unfinished remarks published as On Certainty.
60 Gordon P Baker and PMS Hacker, Scepticism, Rules and Language (Basil Blackwell 1984) 5. Even McGuinness claims that ‘we should not look in him [Wittgenstein – author’s note] for theories and for ingenious scepticism, as the bad habits of his profession led Saul Kripke to do’. Brian McGuinness, Approaches to Wittgenstein (Routledge 2002) 4.
61 Gordon P Baker and PMS Hacker, Scepticism, Rules and Language (Basil Blackwell 1984) 6.
62 Ibid, 9. I have already mentioned something similar in my objections.
63 Gordon P Baker and PMS Hacker, Scepticism, Rules and Language (Basil Blackwell 1984) 14–16, 20. See also my own objection against Kripke connecting § 219 to § 81 and interpreting it in the light of the effort to make clear what made us hold onto the wrong picture.
64 Ibid, 21.
65 Ibid, 52.
67 Ibid, 53.
68 Ibid, 70ff.
69 Ibid, 76. By ‘extension’ Baker and Hacker de facto mean ‘application’.
70 Ibid, 96.
71 Ibid. See also 83–84:
What justifies calling rubies ‘red’? Red is this ↑ colour; and rubies are this ↑ colour; i.e. red! Saying ‘rubies are red’ is a correct application of this rule for the use of ‘red’. What makes it correct? Nothing. That is what we call ‘applying “red” correctly’. There is no room for justification. And as there is no room for justification, so too there is no room for genuine doubt.”.
72 See Radoslav Procházka, Dobrá vôľa, spravodlivý rozum: Hodnoty a princípy v súdnej praxi [eng. Goodness of Will, Fairness of Reason] (Kalligram 2005) 198. Procházka is here probably tempted by the interpretation of Baker and Hacker provided by Dennis Patterson (in Law’s Pragmatism: Law as Practise and Narative) as Procházka builds his argument on Patterson’s paper. Moreover, Bix argues that Patterson is over-reading Wittgenstein. See: Brian Bix, ‘Cautions and Caveats for the Application of Wittgenstein to Legal Theory’ in Joseph K Campbell and Michael O’Rourke and David Shier (eds), Topics in Contemporary Philosophy (MIT Press 2005, 217–229).
73 Gordon P Baker and PMS Hacker, Scepticism, Rules and Language (Basil Blackwell 1984) 72.
74 It seems to me that even though philosophers’ interest in Wittgenstein has slightly decreased, the interest of legal scholars appears to be increasing. The same is claimed in Andrew Halpin, Reasoning with Law (Hart Publishing 2001) 107.
75 James Boyle, ‘The Politics of Reason: Critical Legal Theory and Local Social Thought’ (1985) 133 University of Pennsylvania Law Review 685.
76 The realists’ approach differs from Wittgenstein’s at the first sight, as claimed by Halpin in Andrew Halpin, Reasoning with Law (Hart Publishing 2001) 143. This is so because:
If the approach of Wittgenstein is characterised as refining our understanding by seeking to clarify the meaning of words through a more acute grasp of the social practices which those words express, realism appears to stand this process on its head. We are supposed to refine our understanding of our social practices (and anything else besides) by clarifying our meaning of words in relation to a reality that may not be fully evident in the social practices we observe.
77 James Boyle, ‘The Politics of Reason: Critical Legal Theory and Local Social Thought’ (1985) 133 University of Pennsylvania Law Review 685, 695.
78 Ibid, 708–709.
79 Ibid, 709–710.
80 Ibid, 732, footnote 142.
81 Wittgenstein wrote that language is part of our form of life, and the reminders that surround the often-quoted § 241 of the Investigations (‘“So you are saying that human agreement decides what is true and what is false?”—It is what human beings say that is true and false; and they agree in the language they use. That is not agreement in opinions but in form of life.’) justify, as I believe, the interpretation that language belongs among the (foundations of) human activities in which people agree, so discussion on what is or should be correct on this fundamental level is simply not possible. Can we imagine reasonable discussion on whether a certain colour is indeed blue? Whether it is truly blue? What if it is in fact hdiuhfs (or any other line of random letters)? How can I justify my calling this colour ‘blue’? There is no way. It is the way it is. (Granted, we can think about the ‘causal’ reason, the word somehow emerged, somebody used it ‘for the first time’, but this is not what we were asking about. Surely, there is something we could call the ‘causal’ reason, but that would be a different question, on a different level.) In the form of life there is no place for justification and hence no (reasonable) doubt so there is no need for agreement in opinions. Let me return to the example with blue colour one more time. I might point to the (blue) sky and say: “The sky is blue.” How shall I justify my assertion if somebody reacts and says: “No, the sky is brown!” This is not a matter of opinion(s); matters of opinion are for instance the decriminalisation of drugs, gay marriage, the limits of democracy while defending against terrorism, or the actual importance or need for legal philosophers. I simply call this colour blue. Wittgenstein made clearer the basic agreement in language (even though language is not a calculus working to definite rules), and his intention was not to analyse the situation where we do not agree what the legal text means and how we should interpret the legal text. Such interpretation would in fact be a matter of opinion.
82 L. E. Wolcher distinguishes consensus of use, consensus of opinion and consensus of interpretation. See: Louis E. Wolcher, ‘Ronald Dworkin’s Right Answers Thesis Through the Lens of Wittgenstein’ (1997) 29 Rutgers Law Journal 43, 51.
83 What does this text mean? What is the rule?
84 How to follow the rule in this situation?
85 Christian Zapf and Eben Moglen, ‘Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein’ (1996) 84 Georgetown Law Journal 485.
86 Ibid, 486.
87 Ibid, 485.
88 Zapf and Moglen slightly avoid the problem of identification of legal rules in which the “only” difficulty the judge may have is to select the applicable rule (if there is more than one) and to justify the selection. So I believe there are many situations that may occur while deciding a case. For example, I can have trouble finding out what the rule expressed in the sentence “Unusual punishment is prohibited” requires me to do when imposing a sanction on a criminal. Is capital punishment unusual? It is not that I do not understand the sentence. I know what it means; I have grasped the rule in it. I am just hesitating whether it is applicable tocapital punishment. Or does this hesitation mean that I have not grasped the legal rule? I would probably have had no problem understanding and applying the rule about unusual punishment if I had been a judge living in the USA in 1900. My point is a very simple one: judicial decision-making, and in fact the whole of legal practice, is much more colourful or much richer than it might seem when we look at it as the simple application of rules. So even though using language is normative activity, activity in which we somehow apply and use the rules of language, it cannot simply be stated that what is said about language as normative activity can also be always properly claimed about the practice of law, just because it is normative too and language is somehow involved as well.
89 Christian Zapf and Eben Moglen, ‘Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein’ (1996) 84 Georgetown Law Journal 485, 519.
90 Andrei Marmor, ‘No Easy Cases?’ in Andrei Marmor, Interpretation and Legal Theory (Clarendon Press 1992, pp. 124–154).
91 Ibid, 124.
93 See: Herbert L A Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 131.
94 Andrei Marmor, ‘No Easy Cases?’ in Andrei Marmor, Interpretation and Legal Theory (Clarendon Press 1992, pp. 124–154) 336.
95 Ibid, 146.
97 Ibid, 147, 148.
98 Ibid, 148.
99 See: Gordon P Baker and PMS Hacker, Scepticism, Rules and Language (Basil Blackwell 1984) 72. In footnote 88 I tried to show that perhaps in hard cases I indeed understand the legal rule because I understand the normative text, but I am still not sure how to decide the specific case based on it.
100 Andrei Marmor, ‘No Easy Cases?’ in Andrei Marmor, Interpretation and Legal Theory (Clarendon Press 1992, pp. 124–154) 152.
101 Ibid, 153.
103 Ibid, 154.
104 S. Bertea shows us why this is not in fact the case. See: Stefano Bertea, ‘Remarks on a Legal Positivist Misuse of Wittgenstein’s Later Philosophy’ (2003) 22 Law and Philosophy 513.
105 For our purposes there is no need for sanction.
106 In this sentence I use the word ‘application’ in the manner it was used by Wittgenstein. However, I am aware of the fact that in the first case jurisprudential discourse would say that the player simply follows the rule, i.e obeys or disobeys the rule. The difference between the uses of the words by Wittgenstein and by legal scholars might constitute the misunderstandings pointed by S. Bertea in BERTEA, S.: Remarks on a Legal Positivist Misuse of Wittgenstein’s Later Philosophy. Law and Philosophy, 22: 513–535.
107 P. Bobbitt in Philip C Bobbitt, ‘What it Means to Follow a Rule of Law?’ in Linda Meyer (ed), Rules and Reasoning: Essays in Honor of Fred Schauer (Hart Publishing 1999, 55–60) 58 formulates this “problem” thus:
Following a rule does not depend upon placing an interpretation on it. To interpret is simply to translate and translation cannot by itself invest understanding because the new formulation must itself be understood. We translate—or interpret—in order to shift to a new decisional pattern for reasons that have nothing to do with understanding. If we did not understand the original statement we could not translate it. And to say that interpretation enables rule-following presupposes that the rule-following in the translated matter is already enabled.
It seems to me that Marmor’s study collapses on this very paradox, and this is so because on the one hand he claims that nothing stands between a (legal) rule and its application, so when I understand the rule I know how to apply it, while on the other hand he maintains that interpretation as translation is not the way to grasp the rule as there is nothing more to explain about its meaning. Does he mean here a legal rule or a language game rule? If he has the first in mind, it would not certainly fit. Secondly, Marmor’s study would appear to collapse also because he seems to consider all the rules, whether rules of language or legal rules, to be explicable using language itself. So he does not see the difference between rules of language and legal rules which I have mentioned above.
108 Dennis Patterson, ‘Normativity and Objectivity in Law’ (2001) 43 William and Mary Law Review 325.
109 Ibid, 330. Patterson here uses italics for the term ‘really’.
110 Ibid, 334–339.
111 Ibid, 342.
112 Ibid, 348 (footnotes omitted).
113 Ibid, 355.
114 Ibid, 363.
116 Ludwig Wittgenstein, On Certainty (Basil Blackwell 1969) 33, note 248.
117 Cf. Investigations §198. Wittgenstein wrote about a list of rules, and in fact refuted the possibility of any list itself connecting rules with action. Nevertheless we have a good deal of practice in following those rules.
118 See the thesis of weak mind-independence of law in Matthew Kramer, Objectivity and the Rule of Law (CUP 2007) 6.
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