Breaking the rules? Wittgenstein and legal realism.

• Author: Arulanantham, Ahilan T.
• Position: Ludwig Wittgenstein

Recent years have seen a growth of interest in the relationship between the later philosophy of Ludwig Wittgenstein(1) and questions in the philosophy of law.(2) This interest has compelling historical origins. Professor H.L.A. Hart acknowledged his debt to Wittgenstein in the context of his discussion of legal rules in The Concept of Law,(3) a book commonly considered to be the first thorough account of legal positivism and perhaps the seminal modern text on jurisprudential theory. More recently, writers from a very different tradition--that of legal realism--have begun to turn to Wittgenstein for inspiration as well.(44)

In particular, several realist scholars have focused on the legal implications of Wittgenstein's sustained treatment of rule following in Philosophical Investigations.(5) There are at least two reasons to think their interest in this topic is important. First, one might expect that a central task of legal theory is to explain how it is that we live our lives guided by legal rules. Learning to bring one's behavior into accord with rules can be understood, on this view, as a central phenomenon of life under law.(6) Second, an account of law in terms of rules has traditionally been crucial to explaining the legitimacy of the legal system.(7) As one prominent legal realist puts it, "Determinacy is necessary to the ideology of the rule of law, for both theorists and judges. It is the only way judges can appear to apply the law rather than make it. Determinative rules and arguments are desirable because they restrain arbitrary judicial power."(8) If law does not guide behavior through rules, such theorists assert, it must guide through unconstrained decisions, leaving people subject to a system governed by the arbitrary whim and caprice of individual judges--an illegitimate system.(9)

Given the importance of legal rules for understanding the legitimacy of the judicial system, I seek to examine the writing of legal theorists who focus on Wittgenstein's treatment of rules. I argue that what appears to be a relatively technical debate about the nature of Wittgenstein's rule-following arguments and their relevance for law actually brings to light deep and important issues in the political theory of legal interpretation. An understanding of Wittgenstein's arguments and their application to law provides insight into a central dispute concerning the legitimacy of the rule of law.

To that end, I am interested in a debate among legal scholars about the use that certain legal realists make of Wittgenstein. James Boyle,(10) Mark Tushnet,(11) and Charles Yablon(12) are three prominent theorists from the realist tradition(13) who use Wittgenstein's rule-following considerations to argue that the law is radically indeterminate.(14) They have been criticized by several commentators, including Brian Langille,(15) Gene Smith,(16) and Andrei Marmor(17) (whom I will call the "anti-realists").(18) The anti-realists contend that the legal realists fundamentally misunderstand the point of the rule-following arguments. Wittgenstein, they argue, does not argue for the indeterminacy of language or law; rather, he demonstrates that the conclusion that language is indeterminate rests on a mistaken picture of how language operates. In particular, the anti-realists claim that the Wittgensteinian realists are led astray by Saul Kripke's infamous misreading of Wittgenstein.(19)

I believe the anti-realists are right insofar as they claim that Wittgenstein did not argue for the indeterminacy of rules(20) in Philosophical Investigations. However, it is significant that Wittgenstein's comments in Philosophical Investigations are limited primarily to examples from everyday language use and mathematics.(21) He does not talk about the law explicitly in these passages, thus leaving open the question of how his theory could be applied to rule following in the legal context.

I believe many of the parties in this debate have failed to consider exactly how we should apply Wittgenstein's examples of rule following to law. I do not deny that many of Wittgenstein's comments on language and mathematics may be fruitfully brought to bear on legal rule following. However, I wish to draw attention to features of language and mathematics (on Wittgenstein's account) that the law does not share and that therefore complicate the analogy drawn by legal realists and anti-realists alike. In particular, I wish to draw a distinction between Wittgenstein's critique of rule-based models of meaning and his alternative accounts of how linguistic and mathematical understanding are really possible. I argue that Wittgenstein's general critique poses deep problems for accounts of rule following in the law, but that his alternative accounts of language and mathematics are quite specific to those practices and therefore offer little help for dealing with the deep problems generated by his critique as applied to law. The critique of rule following applies to any practice in which rules generate correctness; in contrast, the alternatives Wittgenstein suggests in Philosophical Investigations rely on the specific characteristics of mathematics and language--characteristics that are not easily generalizable to law.

Langille, Smith, and Marmor fail to recognize that Wittgenstein's alternative model of correctness has a very limited range of applicability when they argue that Wittgenstein's work does not justify rule skepticism in law. Thus, in an interesting way, the legal realists' initially misguided use of Wittgenstein proves more compelling than it may have first appeared. While Wittgenstein does not argue, as the realists suggest, for the indeterminacy of language, his arguments against a rule-based understanding of meaning may undermine the determinacy of legal rules.

Through the largely negative project of explicating Wittgenstein's critique of rule following and how it is to be applied to law, I also aim to reveal more constructive resources within Wittgenstein's work. An examination of Wittgenstein's considered views on correctness reveals a blueprint for generating a theory that explains legal correctness by focusing on certain characteristics that are fundamental to legal practice. While I do not attempt to provide such a theory here, I hope to point in the direction that such a theory should take, and to describe some of the minimal constraints on any Wittgensteinian legal theory. Thus, through an explication of the proper role for Wittgenstein in the debate about the determinacy of legal rules, I aim to demonstrate the manner in which the realists' critique can be used constructively.

In Part I of this Note, I briefly describe the legal realist project in order to place the Wittgensteinian realists in context. I argue that we should understand the legal realists as (primarily) advancing an argument against the legitimacy of the legal system, not an argument against the predictability of judicial decisions. In Part II, I describe the argument that the Wittgensteinian realists make, using a detailed exposition of Kripke's treatment of Wittgenstein's argument. I then explain how these theorists apply Wittgenstein's argument to law. In Part III, I describe the account of the antirealists and explain their claim that the realists fundamentally misunderstand the nature of Wittgenstein's arguments about rule following. In Part IV, I introduce my arguments against the anti-realists. Although I agree that Wittgenstein can be read as an opponent of skepticism in mathematics and language, I argue that the Wittgensteinian solution to mathematical and linguistic indeterminacy cannot be applied to legal indeterminacy.(22) In arriving at this conclusion, however, I show that there are resources within Wittgenstein's method that could be helpful in constructing a new, alternative theory of legal correctness. In Part V, I consider how we might construct a Wittgensteinian theory of legal correctness and derive certain constraints that must apply to any such theory.

Before embarking on this heuristic comparison of rule following in mathematics, language, and law, I should clarify what I mean by each of these terms. In general, the examples I use from mathematics deal with very basic mathematical rules, such as the rule for addition or the rule for continuing a series of even numbers. Similarly, when I refer to determinacy "in language," I refer to the presence (or absence) of certainty (in the minds of most speakers and listeners)(23) about the meaning of everyday words and sentences, as in conversation or simple reading.(24) When discussing legal determinacy, I have in mind cases (including those at the appellate level) that interpret statutes and the Constitution, as well as commentary on those cases.

Here one might object that I use a shifting baseline for comparison when I compare determinacy in mathematics, language, and law. After all, my examples from mathematics and language involve simple and uncontroversial practices, while my focus in law is on the comparatively complex and abstract use of legal concepts developed by judges and scholars. If I consider addition in math, one might argue, shouldn't I consider something equally straightforward in law, such as the rules about page lengths for briefs or the rules for following speed limits?

This worry rests on a misunderstanding of my project. My aim is not to compare correctness in mathematics and language to correctness in law. A global project of that kind would be beyond my competence. Instead, my goal is to see what use Wittgenstein's analysis of mathematics and language may have for either supporting or answering a critique posed by the legal realists. The realists ask how judicial decisions can be legitimate if they are not determinate by virtue of a rule-guided system. Wittgenstein (on my reading) offers just such an account: an explanation of how mathematics and language are determinate that does...