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REMARKS ON A LEGAL POSITIVIST MISUSE OF WITTGENSTEINS LATER PHILOSOPHY

(Accepted 16 April 2003)

I. PREMISE

The name legal positivism picks out not one, but myriad theories of law. Yet these theories, for all their diversity, are joined by a fundamental common tenet, the proposition that law pertains to an autonomous sphere of practical reason and consists mainly of norms which institutions having appropriate competence produce in observance of proper procedures (social thesis). On this view, laws are valid only insofar as they meet certain systemic and procedural criteria, regardless of whether any moral requirements are fullled in this doing.1 Among those who have questioned such a separation of law from morality are the legal theorists who endorse the thesis that law is entirely an interpretive practice, meaning by this that determining what the law requires in each and particular case necesMarie Curie Fellow at the University of Edinburgh. Funding for this research has been provided by the European Community, under a Marie Curie Fellowship, programme Human Potential, contract number HPMF-CT-2001-01171. I wish to express my indebtedness to Zenon Ba nkowski, Francesco Belvisi, Emilios Christodulidis, Massimo La Torre and Dennis Patterson for their helpful remarks on previous drafts of this essay. Yet I am solely responsible for the views expressed herein. 1 With the words of Jeremy Waldron: law can be understood in terms of rules and standards whose authority derives from their provenance in some human source, sociologically dened, and which can be identied as law in terms of that provenance. Thus statements about what the law is whether in describing a legal system, offering legal advice, or disposing of particular cases can be made without exercising moral or other evaluative judgement (Waldron, Jeremy, The Irrelevance of Moral Objectivity, in Robert P. George (ed.), Natural Law Theory (Oxford: Clarendon, 1992), pp. 158187, p. 160). Law and Philosophy 22: 513535, 2003. 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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sarily involves interpretation (interpretation thesis).2 The interpretation thesis is apparently at odds with the social thesis: since interpretation is essentially evaluative namely, its standard and familiar forms at least rely on evaluative considerations, as even legal positivists concede nowadays the idea that law is always a result of interpretation entails that determining what the law is always involves considerations about what it ought to be, which is precisely the negation of the social thesis.3 Hence, the social thesis and legal positivism are irreconcilable with the interpretation thesis and interpretativism (the legal approach based on the interpretation thesis): to the extent that the former pair is acceptable, the latter is bound to prove untenable, and vice versa. For this reason, legal positivists have subjected the interpretation thesis to careful scrutiny. In the attempt to disqualify this thesis, some of them have invoked Wittgensteins later thought, and in particular his rule-following considerations. The positivist argument from Wittgenstein was rst put forward by Andrei Marmor;4 Timothy Endicott5 and Martin Stone6 accepted it substantially, clarifying and widening its scope; and, then, Marmor7 returned to it and made it richer with detail. The argument aims to show that
The interpretation thesis is common to various contemporary legal theorists, whose approaches differ relevantly in the details. Aulis Aarnio, Robert Alexy, Steven Burton, Drucilla Cornell, Ronald Dworkin, Stanley Fish, Lon Fuller and Aleksander Peczenik are among them, to name but a few. Because they all accept the interpretation thesis, I will refer to them collectively as interpretativists, despite the signicant differences of detail and emphasis in their approaches. It will be stressed, however, that my argument does not stand or fall on this wide denition of interpretativism alone: I am criticising a line of reasoning, not classifying the contributions of a number of legal theorists in function of the interpretation thesis. 3 Marmor, Andrei, Positive Law and Objective Values (Oxford: Clarendon, 2001), p. 72. 4 See Marmor, Andrei, Interpretation and Legal Theory (Oxford: Clarendon, 1992), pp. 124154. 5 I refer to Endicott, Timothy, Putting Interpretation in Its Place, Law and Philosophy 13 (1994), pp. 451479. 6 In this regard, see Stone, Martin, Focusing the Law: What Legal Interpretation is Not, in Andrei Marmor (ed.), Law and Interpretation (Oxford: Clarendon, 1995), pp. 3196. 7 See Marmor (2001, pp. 7188).
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the interpretation thesis is inconsistent with the account of rulefollowing found in Wittgensteins later philosophy, and hence that we have to renounce this philosophy if we want to make a case for interpretativism. But the philosophy we are asked to renounce is quite signicant, so the argument from Wittgenstein, if tenable, will prove to be a powerful and persuasive weapon that legal positivism can wield against interpretativism. In this paper, I introduce and criticise the positivist rebuttal of the interpretation thesis grounded on the later Wittgensteins considerations as to how a rule is followed. Section II reconstructs and sorts out the details of the positivist argument. I point out here that my concern is not with just any proposed use of later Wittgensteins rule-following considerations, but with a given line of reasoning which has attracted some positivists. This reconstruction will serve as a premise for a sustained rejection of the positivist argument from Wittgenstein. In my refutation, I make two points. First, I observe that the positivists, in the argument they advance, pay little attention to the difference between Wittgensteins understanding of the opposition interpretation vs. rule-following and the legal philosophers understanding of it: whereas in jurisprudence interpretation and rule-following have been understood by both positivists and interpretativists as forms of reasoning, Wittgenstein calls into question this very assumption and claims that interpretation does pertain to the theoretical sphere, but rule-following is an activity, a practice, not an argumentative process. This difference in approaching interpretation and rule-following, I submit, is signicant and raises doubts about the use that positivists make of Wittgensteins philosophy. Second, I argue that legal positivists have an incoherence of their own to work out, since in their challenge to interpretativism they use a concept of rule incompatible with the concept emerging from Wittgensteins rule-following considerations. Therefore, there is not in the end any kinship between legal positivism and Wittgensteins considerations on rules, but rather a substantial incompatibility.
II. THE POSITIVIST ARGUMENT FROM WITTGENSTEIN

The argument from Wittgenstein was rst sketched by Marmor. He drew on Wittgensteins rule-following considerations for his critical

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analysis (not of the interpretation thesis but) of the debate between Herbert Hart and Lon Fuller as to the distinction between easy cases and hard cases. His argument was that Wittgensteins rule-following considerations can be used protably to support Harts view and, conversely, to refute Fullers rejection of that distinction. Fullers claim rests on the thesis that to understand a rule we must determine its purpose. According to Fuller, determining the purpose of a rule typically requires that we consider what the rule is there to settle: what a rule is will be decided in the light of its ought.8 Thus, in rejecting Harts distinction between easy cases and hard cases, Fuller makes an important general point; namely, that rulefollowing amounts to a form of interpretation because a rule cannot be followed without taking into account its purposes (or ought). In other terms, there is no conceptual difference between following and interpreting a rule: even in the so-called easy cases to follow a rule is to determine its purpose, and so to proceed upon an interpretation of it. By so arguing, Fuller commits himself to the interpretation thesis: to the extent that law is based on rule-following, it is always subject to interpretation; that is, to determine what the law is in a particular case we must perforce do some interpreting. For these reasons, the attack on Fullers view led Marmor to question directly the assumption that to understand a rule we are required, among other things, to have a grasp of the rules purpose, and so to interpret the rule. This initial attack, if followed through correctly, turns naturally against the view that law is necessarily an interpretive practice. But Marmor, at this early stage, mentioned neither the interpretation thesis nor interpretativism, and conned himself to discussing Fullers work. Subsequently, Endicott observed that although Ronald Dworkin never appears in Marmors discussion of following a rule, it is clear that his discussion is a powerful argument against the claim that law is an interpretative concept.9 Hence, while Marmor uses the argument explicitly only against Lon Fuller, it should be understood as underlying his attack on interpretative views in

See Fuller, Lon, Positivism and the Fidelity of Law A Reply to Professor Hart, Harvard Law Review 71 (1958), pp. 630672, 665669. 9 Endicott (1994, pp. 465466).

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general.10 In other words, Endicotts contribution made it apparent and explicit that Marmors original argument from Wittgenstein can be worked into a wider statement against interpretive theories of law at large. The legal positivists specic interest in Wittgensteins later philosophy as their weapon of choice against interpretativism found conrmation in Stones appeal to this philosophy in his crusade against various interpretativist theorists, among whom Steven Burton, Drucilla Cornell, and Stanley Fish.11 In the latest development, Marmor returned to his original argument against Fuller and mounted an all-embracing rebuttal of interpretativism.12 Here, Marmor not only accepted substantially Endicotts extension of the original argument, but also developed this argument further and added detail to it. Marmor sets up his argument from Wittgenstein as follows. To support the thesis that understanding a rule and following a rule are not necessarily purposive practices, because they do not consist in, and are not mediated by, imposing an interpretation upon it,13 he invokes the later Wittgensteins rule-following considerations. Here, Wittgenstein argues that understanding a rule consists in or rather, bears afnity with our ability to specify under normal circumstances what actions are in accord with the rule and so what actions go against it. On this view, someones following a rule is exhibited by this person obeying the rule. Conversely, says Marmor seeking support in Wittgenstein,14 interpretation is just another formulation of the rule, substituting one rule for another.15 This is to say that following a rule is conceptually different from interpreting a rule: to decide what acts are in accord with a rule and to reformulate a rule are distinct behaviours. The former requires one to establish a connection between language (the formulation of the rule) and the world (the actions in accord with the rule); the latter consists in associating two different, but synonymous, formulations of the rule, thereby effecting a linkup internal to the language. Thus,
Endicott (1994, p. 461). I refer to Stone (1995). 12 See Marmor (2001, pp. 7378). 13 Marmor (1992, p. 146). 14 In particular, Marmor makes reference to Wittgenstein, Ludwig, Philosophical Investigation (Oxford: Blackwell, 1968), 198201. 15 Marmor (1992, p. 151).
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following a rule (determining what actions are required by the rule) does not necessarily lead to interpreting the rule, or recasting its language for clearer expression: although interpreting a rule can help us follow the rule, the two activities are bound up, not by any necessary link, but only by a possible one. In other terms, rules can often be simply understood, and then applied, without the mediation of interpretative hypotheses about the rules purposes.16 To say otherwise is to contend that the application of a rule always requires its translation into another rule, which is an obvious absurdity.17 For these reasons, subscribing the interpretation thesis amounts to conating two conceptually different practices. Marmor develops further these remarks, and notes that we should nevertheless maintain the distinction between understanding the meaning of an expression and interpreting the same expression, making interpretation an exception to the ordinary understanding of a rule, and so an operation parasitic on rule-following and not necessarily entailed by it.18 The fallacy which the interpretativist conation of rule-following and interpretation incurs consists in arguing from the indeterminacy of some rules that every instance of following a rule is an interpretation of it. On the contrary, interpretation must be based on prior knowledge of how to go about using language and only once we know the meaning of expressions in a given language can we go about explaining one meaning in terms of another.19 Hence, suggesting that interpretation always mediates between an expression and our understanding of the expression is simply incoherent.20 To summarise, the argument states that Wittgensteins remarks commit us to the view that the understanding and following of a rule does not necessarily involve interpretation, and that from this perspective the notions of understanding an expression (or
Marmor (1992, p. 154). See also Marmor (2001, p. 78). Marmor (1992, p. 153). The absurdity referred to takes the form of an innite regress. As Endicott has it: the notion that an interpretation makes a transition from rule to action in accord with the rule is untenable since if every rule needs an interpretation to be followed, the interpretation also needs an interpretation, and we will never get to the action (Endicott 1994, pp. 464465). 18 Marmor (2001, p. 73). 19 Marmor (2001, p. 76). 20 Marmor (2001, p. 76).
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explaining its meaning), and interpreting it, should not be used interchangeably.21 These are grounds on which legal positivism can distinguish rule-following from interpretation and so reject the interpretation thesis.

III. WITTGENSTEINS REMARKS ON INTERPRETATION AND

RULE-FOLLOWING

Those who advocate the argument from Wittgenstein ground it entirely on the remarks on rule-following and interpretation found in Philosophical Investigations, notably in 198201 of this work. Yet, in these considerations Wittgenstein is concerned not with legal questions, but with longstanding and deep debates on the philosophies of mathematics, mind, and psychology. In fact Wittgenstein has barely anything on legal philosophy, or on practical philosophy in general, and these two elds differ markedly from those he discourses on. In any such appeal to Wittgenstein, then, one has to effect some kind of extension, getting Wittgensteins philosophical insights to apply validly to matters apparently extraneous their original focus. This difference in subject does not entail that Wittgensteins considerations cannot be applied at all or in any useful way to an analysis of legal issues. But it does suggest that these considerations, if we are to apply them to legal rules and the way they are followed and interpreted, will have to be somehow refashioned and made to take into account the peculiarities of the legal domain.22 The positivists who advocate the argument from Wittgenstein fail to appreciate this difculty and tend to overlook the differences in focus
Marmor (1992, p. 146). In like manner, Wittgenstein is particularly attentive to the differences among linguistic games and to the specicity of distinct domains: in his opinion, crossing language-games and breaking the boundaries of language-games prove often to be main sources of serious philosophical mistakes and multiple confusions. See Wittgenstein (1968, 116117) and Wittgenstein, Ludwig, Remarks on the Philosophy of Psychology, Vol. II (Oxford: Blackwell, 1980), 7071. For a critical analysis of these and other sources of what Wittgenstein points out as philosophical mistakes, see Baker, Gordon P. and Peter M. S. Hacker, Wittgenstein: Rules, Grammar and Necessity. An Analytical Commentary to the Philosophical Investigation, Vol. II (Oxford: Blackwell, 1985), pp. 1522.
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between Wittgenstein and legal theorists. This failure is apparent in their disregard of the fact that Wittgensteins use of the opposition between interpretation and rule-following differ remarkably from its current use in legal theory, evincing a different meaning as well. We may nd it of service here to compare Wittgensteins use of that opposition with the use apparent in the debate between positivists and intepretativists on the same issue. In this comparison I hope to show that Wittgensteins remarks on interpretation and rule-following are extraneous to the debate in legal theory that has pit positivists against interpretativists on the same issues. I submit, then, that legal positivists commit a fallacy in their bid to make Wittgensteins remarks do duty in the attack on interpretativism: this is so because, and to the extent that, their extension disallows the specicity of Wittgensteins use of the opposition between interpretation and rule-following and so obscures the implications of such specicity. Interpretation and rule-following, on both sides of the debate between positivism and interpretativism, have thus far been understood as forms of reasoning. The interpretativists adopt a broader sense of interpretation, which they take to be any argumentative process providing new insights into previously enacted law. Here, interpretation embraces all forms of deliberative reasoning, meaning any reasoning not determined entirely by pre-existing rules or other legal criteria.23 On this view, even when we follow a rule, to the extent that we are not in this fully governed by general standards, we are involved in a form of interpretation. Hence, for the interpretativists, no conceptual separation sets these two activities apart: since rule-following, too, consists in deliberative reasoning, it is not conceptually distinct from interpretation. The legal positivists who proceed upon the argument from Wittgenstein disagree with the interpretativist conclusion: they see this conclusion as based on a too broad and unjustiably comprehensive meaning of interpretation. In the narrower meaning proposed, interpretation is an exception to the standard underFor a similar use of interpretation see, for example, Dworkin, Ronald, Laws Empire (London: Fontana, 1986), p. VI; Alexy, Robert, A Theory of Legal Argumentation (Oxford: Clarendon, 1989), pp. 231232; and Alexy, Robert, Interpretazione giuridica, in Enciclopedia delle scienze sociali, vol. V (Rome: Istituto dellenciclopedia italiana, 1996), pp. 6471, p. 66.
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standing of language and communication, as it pertains only to those aspects of understanding which are under-determined by rules or conventions.24 Hence, it is wrong to equate the process of interpreting a rule with that of following a rule. It is noteworthy, however, that even here, in the positivist approach, interpreting a rule and following a rule are both intellectual operations, or forms of reasoning. The positivists conne themselves to rejecting the interpretativist attempt to quash the distinction between interpretation and other forms of reasoning, but they do not call into question the argumentative nature of rule-following.25 In other words, the positivists do concede that rule-following is a type of reasoning a theoretical operation or intellectual process but say that this process is not deliberative and so is conceptually different from interpretation. To sum up, in the positivist and the interpretativist camp alike, interpretation and rule-following are considered two forms of reasoning. But interpretativism pushes this sameness even further, by having the two activities pertain to the same subset (deliberative reasoning) of the kind theoretical activities, whereas positivism makes them out to be different species of this genus: deliberative reasoning the one, rule-bound reasoning the other. Wittgenstein is concerned with something altogether different. In his considerations on rule-following and interpretation, Wittgenstein challenges the thesis that every action according to the rule is an interpretation, where interpretation is dened as the substitution of one expression of the rule for another.26 According to Wittgenstein, we need not necessarily interpret a rule to follow it: interpretations by themselves do not determine meaning, since any interpretation still hangs in the air along with what it interprets, and cannot give it any support.27 Consequently, Wittgenstein argues that there must be a way of grasping a rule which is not an interpretation, but which is exhibited in what we call obeying
Marmor (1992, p. 12). Marmor (1992, p. 13). Emphasis supplied. The argumentative nature of rulefollowing results as well in Marmor (1992, pp. 126127), where it is claimed that in rule-following lies the core of judicial reasoning (emphasis supplied). 26 Wittgenstein (1968, 201). 27 Wittgenstein (1968, 198).
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the rule and going against it in actual cases.28 In these passages, the very passages quoted by the positivists who ground their view on the argument from Wittgenstein, Wittgenstein is indeed keeping interpretation separate from rule-following. But he does so in a way which proves irreconcilable with the positivist position. To understand Wittgensteins remarks on interpretation correctly we will have to set them into the context of his wider philosophical enterprise. These considerations are chiey designed to confute what Wittgenstein sees as misconceived ways of understanding the practice of following a rule. In this connection, he criticises a number of ideas and models: the idea that following a rule requires a substrate of conscious or unconscious mental activities, something akin to neural happenings; the phenomenological or empirical model that equates rule-following with someones acting in accord with a rule, and so leaves out of account the way agents might explain why they act as they do; the idea that to follow a rule is to call up a mental image or a general formula instructing one how to respond to particular instances of the rule; and, lastly, the conception that all future applications of a rule are determined at the outset, once and for all, in the rules formulation.29 These conceptions connect up with some more general theories that Wittgenstein argues to be wrong, such as intuitionism; the conception of understanding as a mental experience, or a neurophysiological mechanism, a neuronal state; and the mind/body distinction grounding the dualistic conception of the human being.30 In their turn, these broader views are expressions of an even more general philosophical approach, intellectualism. Thus, Wittgensteins focus on rule-following is part and parcel of his wider effort to expose, in all its workings and ramications, the modern intellectualist tradition that Descartes introduced into Western philosophy.31
Wittgenstein (1968, 201). These models are criticised in Wittgenstein (1968, 188197, 219, 222, 230). 30 In this regard, see Wittgenstein (1968, p. 59 fn. (a) and 149, 152154, 196). 31 This fact gives us reason to regard the rule-following considerations as a vital stage in which Wittgenstein gets rid of what Taylor calls the philosophical cul-de-sac of monological consciousness (Taylor, Charles, Philosophical Arguments (Cambridge: Harvard University Press, 1995), p. 169). For further remarks
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As Taylor argues, intellectualism in this sense can be summed up broadly in the idea that the human being is primarily an inner space, a centre of representations, a consciousness rather than an agent, in the sense of an acting being.32 For Descartes, and for intellectualism in general, the self is a res cogitans, a thinking being possessed of reason and qualitatively different from the rest of the world, namely, facts and other creatures (which, by contrast, are constituted of res extensa).33 Thus, on this view thoughts have primacy over actions: it is thought, the Cartesian cogito, that guarantees the subjects existence; it is the intellectual experience that makes human beings different from all other forms of life; it is by way of mental activity that we can secure objective foundations for our knowledge; nally, it is thanks to mental representations that we comprehend and come into contact with the world outside. For these reasons, actions and empirical experiences are viewed as parasitic on and subordinate to thoughts and intellectual appraisals of phenomena. The latter, rather than the former, are primary and beyond doubt: knowledge is an activity of mind and so a substantially private affair. By the same token, understanding is conceived of as a theoretical or intellectual operation on external data, not as an action, as a practical activity. Wittgenstein is concerned to show that intellectualism, though deeply entrenched in Western philosophy, proves untenable. In consequence, the primacy of thought that comes with it is likewise misleading and illusory. In Philosophical Investigations, sections 143 to 184 (focused mainly on meaning and understanding) and 185 to 242 (focused mainly on following a rule), he sets out his argument for the pre-eminence of deed praxis or action over thought. At the same time as he takes down the intellectualist concept of human being and replace it with the picture of the individual as an agent, rather than as a locus of representation, he situates understanding
on this aspect of Wittgensteins philosophy, see also Hacker, Peter M., Insight and Illusion (Oxford: Clarendon, 1986), pp. 276306. 32 Taylor (1995, pp. 168170). 33 Descartes expressed this conception effectively in his statement, I am therefore, precisely speaking, only a thinking thing, that is, a mind (mens sive animus), understanding, or reason (Descartes, Meditations on the First Philosophy (1641), in Descartes, A Discourse on Method (London: Dent & Sons, 1960), p. 88).

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in practice, in use. So it is with rule-following: it is viewed as a practical rather than theoretical operation. Following a rule does not consist in being at work to reason, whether deliberatively or straightaway, how particular cases t into a general pattern. Rather, to follow a rule is to use the rule in actual circumstances, to manifest in practice the normative ability of using the rule correctly in contrast to interpretation, which is precisely a theoretical process, an intellectual appraisal of a rule. It emerges from this reconstruction that when Wittgenstein compares interpretation with rule-following, he is looking at the relationship between two processes of different genera, not only of different species: a theoretical activity on the one hand (interpretation) and a practical activity on the other (rule-following). Hence, unlike legal theorists, positivist or interpretativist, Wittgenstein is not comparing two (arguably) different forms of reasoning on rules; nor he is interested in maintaining a distinction between two argumentative ways of understanding a rule, the one direct and immediate, the other deliberative and discretionary. Legal theorists focus on two processes they regard as theoretical, and then go on to discuss whether these two are conceptually different or identical. Wittgenstein, in contrast, draws a more radical opposition between reasoning and acting, and in so doing outlines a third position not reducible to either the interpretativist view or the positivist theory. In jurisprudence, this further view, irreducible to legal positivism or to interpretativism, has been upheld and defended by Dennis Patterson. In a recent article, he argues that an adequate treatment of normativity in law compels us to dispense with the two approaches to this issue now dominant in philosophical and jurisprudential literature, that is, subjectivism and objectivism.34 In Pattersons reading, the attempts that subjectivism and objectivism have thus far made to explain normativity are wanting, and they are so for the same reason, i.e., because they both adhere to the fundamental thesis that rule-following is an operation of mind, an intellectual or theoretical process.35 This intellectualistic approach, the one taken
See Patterson, Dennis, Normativity and Objectivity in Law, William and Mary Law Review 43 (2001), pp. 325386, 326330. 35 As a matter of fact, Patterson writes that despite their differences, objectivism and subjectivism share one fundamental: each theory adheres to the
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by interpretativism and positivism, too, similarly prevents subjectivism and objectivism from arriving at a correct understanding of normativity in law. Hence, Patterson urges that we break free of the existing debate, grounded as it is on a misleading premise, and take a fresh start.36 Pattersons alternative approach, which runs along the lines of Wittgensteins philosophy, is centred on the insight that rule-following is not a mental phenomenon and that normativity is located not in theoretical sphere, but in deed and action, and specically social action.37 This is not the place to discuss the merits and demerits of Pattersons contribution:38 my reference to it serves only to show that an approach to jurisprudence is possible which proceeds upon Wittgensteins idea of rule-following as an activity, rather than a theoretical phenomenon, and that a coherent development of Wittgensteins remarks on interpretation and rule-following proves inevitably at odds with both positivism and interpretativism.39 To summarise, a coherent use of Wittgensteins remarks on rule-following commits us to a position inconsistent with interpretativism and legal positivism, both. My argument, therefore, is that we cannot, without falling into serious error and manifesting a patent one-sidedness, use Wittgensteins rule-following considerations to confute interpretativism and at the same time defend positivism, because neither stance is compatible with Wittgensteins
thesis that rule-following is an operation of mind (Patterson 2001, p. 351). Of course, objectivism and subjectivism draw opposite implications from this shared premise: objectivism searches for the means by which disparate applications of a rule (or concept) can be said to be applications of the same standard, whereas subjectivism despairs of ever nding the Holy Grail of objectivism and resort to individual and collective subjectivity to explain the phenomenon of rule-following and, hence, normativity (Patterson 2001, p. 351). 36 Patterson (2001, p. 351). 37 Patterson (2001, pp. 351352). 38 I will only maintain here that Wittgensteins philosophy, if used coherently to explain legal interpretation and rule-following, leads to conclusions incompatible with both the positivist and that interpretativist views. Thus, I will not also evaluate whether and to what extent the attempt to explain legal interpretation and rule-following by drawing on Wittgenstein is a useful insight. 39 For Pattersons arguments against legal positivism, see Patterson, Dennis, Law and Truth (Oxford: Oxford University Press, 1996), pp. 5970; for his arguments against interpretativism, see Patterson (1996, pp. 71127).

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thought on rule-following: if interpretativism is incompatible in this sense so is positivism.

IV. THE NOTION OF A RULE IN LEGAL POSITIVISM AND IN

WITTGENSTEINS LATER PHILOSOPHY

It was argued in the previous section that the positivist argument from Wittgenstein rests on serious misunderstandings of Wittgensteins rule-following considerations. Now, we can substantiate this claim even further if we only look at the conceptual implications that the positivist reading of Wittgensteins considerations carries for the concept of rule. More to the point, the positivist reading seems to carry us into a notion of rule incompatible with Wittgensteins. On the legal positivist stance, there need not be any form of deliberative reasoning involved in following a rule: a rule is understood instanter, with no evaluative appreciation or turning issues over in the mind. There is at work here a specic concept of rule as a standard that guides peoples behaviour and justies their conduct. A rule so conceived typically performs a twofold function: it guides future actions and sets for these actions a standard of correctness. Thus, on the one hand a rule says what ought to be done and on the other why it ought be done.40 But rules cannot perform this double task unless the standard they set is given a fairly xed and stable meaning. According to this image call it the concept of rule as formulation the core meaning of a rule is settled by the meanings of its constituent words.41 Moreover, these words are assigned standard instances or meaning xed in general and contextindependent ways. As a result, the content of a rule is predetermined for all the standard applications of the rule in the future, independently of the use a community makes of the rule on particular occasions. In a coherent positivist perspective, then, the meaning of
This view can be found in Raz, Joseph, Practical Reason and Norms (London: Hutchinson, 1975), pp. 4984; and Jori, Mario, Il formalismo giuridico (Milano: Giuffr` e, 1980), pp. 46 and pp. 9091, among others. 41 Marmor (1992, pp. 125126) makes this an explicit statement: the formulation of legal rules in a natural language makes their meanings depend, primarily, on the meanings of the concept-words used in these formulations.
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a rule is, at least under standard conditions, considerably constant and determinate for all the cases the rule is applied to. What this comes down to is a reication of the rule, since the rule is seen as something that imposes constraints upon actions in a relatively objective and xed way independent of actual practices. On this view, rules are depicted as substantially established and stable schemas having an objectied content. Like a universal formula or a not-malleable generalisation, a rule governs particular situations and dictates specic behaviours, but it is not in turn affected by these situations and behaviours. This is to say that a unidirectional relationship exists between rules and the cases they apply to: the rule determines the behaviour to be held, and the case has no bearing upon the content of the rule. A rule is insensitive and impervious to the peculiarities of the case governed: these last cannot in any way amend, clarify, or ne-tune the rule they are governed by. It is therefore inconceivable, from a positivist perspective, that the content of a rule should be recast or rephrased as to enable us to apply the rule to match the specicities of any non-standard cases, those unaligned with the initial formulation of the rule but clearly encompassed by its underlying justication. For positivism it would simply be wrong to claim that the particular circumstances a rule applies to contribute to shaping its content. Arguably, by so framing the concept of rule legal positivism seeks to secure for the law understood chiey as a body of rules the highest degree of certainty and predetermination there is to be had. This certainty of law is thought possible only to the extent that a rule can function as a general standard entrenched in some encapsulatory form and not susceptible of being changed in the applicative stage, and to the extent that rule-following can be made to consist in imposing such an abstract standard upon specic cases without recurring to unrestricted deliberative reasoning. Therefore this concept of a rule as a formulation springs from a wider effort to achieve certainty, which in turn is a core value of legal positivism, one of its foundations. To line up this concept of rule with Wittgensteins later thought, the legal positivists who use the argument from Wittgenstein proceed upon the reading of his rule-following considerations that Gordon Baker and Peter Hacker put forward in a series of valu-

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able works in the eighties.42 In these writings Baker and Hacker reconstruct Wittgensteins view on rules taking issue with the socalled community view.43 Whilst the community view maintains that what counts as a correct application of a rule is determined completely by what the community of users takes the rule to be, Baker and Hacker claim that in Wittgensteins thought the relation between a rule and its application is grammatical, i.e., internal, rather than social (or such as to rely on an external link).44 Hence, for Wittgenstein, rst, a rule and its application cannot be considered independently of each other, and second, what is correct according to the rule does not consist in what a given community of users regards as correct.45 A rule, it is claimed, is not determined by its social appraisal: a rule determines social behaviour but is not shaped by it. Working from these premises, the legal positivists who take up the argument from Wittgenstein argue that his later philosophy is perfectly coherent with their own concept of a rule as a formulation. Baker and Hackers analysis of Wittgensteins rule-following considerations is, I believe, correct to some extent and nds much
These are frequently referred to by Marmor (1992, pp. 150151) for example. 43 This view originates from the reading of Wittgensteins rule following considerations put forward by Saul Kripke. See Kripke, Saul, Wittgenstein on Rules and Private Language (Oxford: Blackwell, 1982). The question that Kripke turned to was what makes the rules work, and the ensuing debate drew many philosophers. The essential contributions are from Baker, Gordon P. and Peter M. S. Hacker, Scepticism, Rules and Language (Oxford: Blackwell, 1984), pp. 155; Baker and Hacker (1985, pp. 154181); Blackburn, Simon, The Individual Strikes Back, Synthese 58 (1984), pp. 281301; McDowell, John, Wittgenstein on Following a Rule, Synthese 58 (1984), pp. 325363; McGinn, Colin, Wittgenstein on Meaning. An Interpretation and Evaluation (Oxford: Blackwell, 1984), pp. 7277 and pp. 168175; Peacocke, Christopher, Critical Notice to Wittgenstein on Rules and Private Language, Philosophical Review 93 (1984), pp. 263271; Wright, Crispin, Kripkes Account of the Argument against Private Language, The Journal of Philosophy 81 (1984), pp. 759778; Anscombe, Gertrude E. M., Wittgenstein on Rules and Private Language, Ethics 95 (1985), pp. 342352; Malcom, Norman, Nothing is Hidden. Wittgensteins Criticism of His Early Thought (Oxford: Blackwell, 1986), pp. 154181; and Malcom, Norman, Wittgensteins on Language and Rules, Philosophy 64 (1989), pp. 1528. 44 Baker and Hacker (1984, pp. 1821). 45 See Baker and Hacker (1985, pp. 171173).
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support in Wittgensteins later writings. In particular, Baker and Hacker are right to point out that Wittgenstein does not understand the content of a rule to depend completely upon what the community of users maintains about this content. Indeed, for Wittgenstein, the concept of a rule differs from that of an empirical generalisation, and for this reason the meaning of a rule does not coincide with the meaning most people think it has: the opinion most widespread among the members of a group is not the nal court of appeal when it comes to determining the content of a rule they follow, nor can their general behaviour be held up as the ultimate criterion for the correct application of the rule.46 Still, these views do not warrant the conclusion that Wittgenstein understands a rule to be a general and abstract formulation whose content in standard cases is totally predetermined independent of the rules application and so of its social use as legal positivists claim it to be. Baker and Hackers idea of a grammatical relation between a rule and its application is a way forward with respect to a sceptical reading of Wittgensteins later philosophy, to be sure. But, as Meredith Williams observes, the idea is not entirely without problems.47 There is nothing amiss in the minimal understanding of the grammatical relation as meaning that a rule and its application are not independent, and so that the grasping of a rule and the following of it are two inseparable operations. The idea becomes puzzling and less perspicuous, however, when meant in a strong sense, as Baker and Hacker still seem to do, and as the legal positivists need to do if they are to support their concept of a rule as a formulation. In this strong sense, the grammatical relation found to exist between formulating and following a rule is such that the meaning of the rule precedes and is independent of its future uses or applications. Contrary to what Baker and Hacker maintain, this strong sense of the concept of grammatical relation commits us to the idea that each
As Williams puts it, in applying a rule we are blind to the community in that we act and judge without checking with others (Williams, Meredith, Wittgenstein, Mind and Meaning (London: Routledge, 1999), p. 183). We might even say here that a rule is distinct from its social use, provided we understand this statement in a strict sense to mean exclusively that the correct application of the rule is autonomous and different from what most users maintain about this application. 47 Williams (1999, pp. 164166).
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meaning encloses within its boundaries all the objects it applies to. Wittgenstein expressly criticises this last conception in his rebuttal of the thesis that the meaning of a word can be grasped in a ash.48 Thus, for him, to go with this strong version of the grammatical relation is to incur a serious mistake, which consists in having recourse to a philosophical superlative, a super-expression or model a mysterious phenomenon not clearly accounted for in the effort to explain the nature of rule-following. Unless the notion of grammatical relation is spelled out, it threatens to become another candidate for a philosophical superlative, one of the polemical target of Wittgensteins investigation.49 Baker and Hackers analysis does a valuable service in criticising the sceptical readings of Wittgensteins remarks on rule-following, but it fails to grasp adequately the conceptual scope of rulefollowing and explain it without falling back on an even more confusing and hidden notion. If, on Baker and Hackers position, we conclude, in the manner of legal positivism, that the content of a rule is independent of the way we follow the rule, we will come out with a distorted picture of Wittgensteins notion of a rule, and will have Wittgenstein commit one of the philosophical errors he himself was looking to expose. So, while I agree that for Wittgenstein the communitys opinion about what the rule is is not the rule itself because the rule is not entirely xed by its social use I disagree with the assertion that for him rules stand completely apart from the way they are understood in society. In Wittgensteins later philosophy a rule, even if not completely determined by its social use, is viewed at least in part as a social construction. This partly social nature of rules emerges from several passages in Wittgensteins later work which yield a concept of rule different from that put forward by legal positivism. Wittgenstein, in his considerations on rules, does not only claim that obeying a rule is a practice.50 He claims as well that the meaning of a word, and so of
See Wittgenstein (1968, 138139 and 191192). I refer to Williams (1999, p. 166). 50 As Baker and Hacker rightly observe, to claim that rule-following is a practice is not yet to claim that it is necessarily a social practice. The claim merely says that rule-following partakes of a practical rather than theoretical nature: that it is an act rather than a thought. So it would be wrong to take Wittgensteins statement that rule-following is a practice to mean that applying a rule is a social
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a rule, depends on the regular use of it: the meaning of a word is its use in the language.51 Wittgenstein therefore establishes a direct connection between a rule its meaning or content and its use: the kind of way we always use it, the way we are taught to use it is the criterion for the way a rule is meant.52 The use referred to here is not a private use, the use a single person believes appropriate for that rule. For when Wittgenstein refers to use he means a shared, or public, use, a social custom under which a word or a rule is regularly employed.53 Thus, for Wittgenstein a rule (its content) and the mode of following of it relate to a common practice, and to a wider context than that of the single act by which the following of a rule takes place. As long as a rule (via the notion of meaning) maintains a connection with the idea of use, our following a rule is not only a practice: it is also, and prominently, a social practice. Williams has argued this point at length: it is her claim that the idea of normativity requires a socially structured context, a group of individuals who interact. So, the notion of rule-following, too, presupposes a context of structure, and that is provided by the actual harmonious interactions of a group of people . . . that is, the dynamic interactions of a group of people in sustaining certain regularities, customs and patters of actions over time.54 In this sense, rules are inescapably embedded in the social fabric since it is the existence of a social practice which provides the needed framework within which the rule can be understood (i.e., its meanings determined) and followed. A rule can exist only against the background of a group and a group practice. The social and regular use of a rule is the necessary context without which the rule can be
activity, and so that application depends entirely on an agreement among the users as to how the rule ought to be obeyed. Still, I will argue in what follows that Wittgenstein, in his remarks on meaning and use, does not conne himself to dening rule-following as a practice: he makes a step further and recognises that rule-following is not only a practice, but also a social activity. 51 Wittgenstein (1968, 43). 52 Wittgenstein (1968, 190). 53 This aspect of Wittgensteins notion of use is apparent in Wittgenstein (1968, 49, 199, 206, 240242) and in Wittgenstein Ludwig, Remarks on the Foundations of Mathematics (Oxford: Blackwell, 1978), p. 334. For a recent detailed reconstruction of it, see La Torre, Massimo, Norme, istituzioni, valori (Rome-Bari: Laterza, 1999), pp. 109117. 54 Williams (1999, p. 169).

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obeyed: there is no such thing as a rule, or any rule-following, occurring outside the context. An individual alone hasnt the resources for creating the context within which actions can be correct or incorrect:55 the community, and nothing else, provides the logical space for an array of alternatives in terms of which a rule can be said to be followed.56 Williams calls this stance the social view, to distinguish it from the radical community view.57 The two views are joined by the thesis that rule-following is connected with the regular and public use of a sign, and that it makes no sense to say of rules, and so rulefollowing, that they exist outside a social setting. Also common to the social and the community views is the thesis that community agreement on how the rule is to be used plays a role in shaping the meaning of the rule itself. But the claim that rule-following requires an agreement or harmony in action and judgement within a group does not entail the claim that the rule is what the majority of people think it is, as the community view argues. If the community is the context out of which rules cannot be said to exist, it still is not the ultimate measure by which to determine the rule and its content, the reason being that conventional practice is not the only factor involved in xing the meaning of a rule: we have standards only in virtue of group harmony and against the background of group harmony, but the standards themselves do not refer to, nor are described in terms of, group harmony.58 On this view, the process of training, education, and acculturation into a given community enables each individual to determine the content of the rule: the community as a whole, namely, the majority of users, has no privileged access to the content of the rule. Thus, the bulk of people are just as likely as the single person to misuse a rule: there
Williams (1999, p. 187). Williams (1999, p. 173). A caveat may be in order here. On this view, there is nothing to prevent isolated individuals from following a rule, as well as creating new practices of rule-following: this they can do in virtue of their notional membership in a given community. In other terms, living outside society is not a problem so long as the individuals so situated maintain at least an indirect link with this social structure, in the sense that they continue to follow the patterns and the practices learnt and assimilated when they lived in this society. 57 Williams (1999, p. 6). 58 Williams (1999, pp. 176177), original emphasis.
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is no such thing as a public or community check on the correct way to go about obeying a rule. It may even happen that the entire community, that is everybody, is following a rule erroneously. This way, the thesis that rule-following partakes of a social nature does not preclude the possibility of a large-scale or even global error in applying rules. This reading of Wittgensteins remarks enables us to account for the social nature of rule-following without running into the sceptical paradox inherent in the community view. In fact, the social view is not a reductionist theory: it says that a rule can be followed only within a social framework, and that the content of the rule is thereby affected, but not that the social framework is the exclusive determining factor in this process of content-shaping. The social view carries the thesis that a rule does not completely precede its use: the content of a rule is not something that can be objectied and appraised independently of our taking part in social practices. If the meaning of a phrase for us is characterised by the use we make of it,59 then the content of a rule is not completely independent of the way the rule is applied: the idea that the content of a rule is shaped (in part at least) by its social use as a normative standard of behaviour says in essence that the application of the rule and its formulation concur in bringing out its actual meaning and scope. Meaning and scope are not determined solely by the uniform application of the rule within society, as the community view argues, nor are they determined solely by the way the rule is formulated, as legal positivism claims. For it takes a duo to determine a rule: an interplay between formulation and (social) use. A rule exists in the practice it governs, and its denitive content results from an interaction between its general formulation and the specic circumstances the rule is applied to. For which reason particular cases work their way into the rule, affecting content as well as use (the way the rule is followed). A rule cannot be depicted as a general standard unresponsive to the specicity of the cases which it regulates. As Wittgenstein puts it, we tend to make up the rules as we go along and to alter them as we go along:60 a rule is a directive susceptible of being reshaped, further conceptualised, and claried
Wittgenstein, Ludwig, The Blue and Brown Books (Oxford: Blackwell, 1969), p. 65. 60 Wittgenstein (1968, 83).
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in the course of its application. Thus even if a rule never changes its formulation, the way the rule is followed its social use can change at any time, whenever a specic case brings to light this or that problem calling for a solution under the same rule. The effect a particular case will have on a general rule can be minimal, and it usually is. Even so, however minimal this inuence may be, it still entails, contrary to what the positivist view argues, that a twoway relationship obtains between the formulation of a rule and its application to concrete circumstances: if we are to be coherent with Wittgensteins philosophical enterprise, we should have to say that the meaning of a rule is modied, ne-tuned, and to a given extent determined by its application. To put it otherwise, what emerges from an analysis of Wittgensteins later thought is that the practice of rule-following can to some extent proceed by trial and error; the possibility of error is never absent, since the content of a rule depends in part on the context of its application and on the particularity of the single case. This also suggests that rule-following gives effect a two-way relationship between the general rule (its abstract formulation) and the specic (concrete) behaviours which accord with it: if, on the one hand, our behaviour is governed and determined in advance by the general rule, on the other hand, the same behaviour affects the contents of the rule and contribute to shaping that content more or less imperceptibly. So, when we follow a rule, when we take part in the social practice of obeying a rule, we contribute to forging the meaning of the rule, thereby extending or restricting its original content.61 The burden of these observations is that a rule, on the concept of it emerging from Wittgensteins later work, is not completely reducible to its linguistic formulation; the legal positivist reading of that work produces the concept of a reied rule, and so a concept incompatible with Wittgensteins notion of rule. For Wittgenstein, a rule is nothing like a general unchangeable formula to be put
Thus, in a perspective coherent with Wittgensteins philosophy we will have to say that the reasoning involved in following a rule is anything but entirely rule-bound: rule-following requires a high degree of insightful understanding, the ability to appreciate the relationship between the rules general formulation and the specicity of the cases to be governed. The expression high degree of insightful understanding is Taylors (1995, p. 177).
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into effect squarely and plainly, a linguistic formulation whose meaning is determined entirely by its constituent words, as legal positivists argue. It is rather a stratied complex of uses and applications, always under construction (or potentially so), uid, and ever changing with slight but constant improvement, such as enables the rule to accommodate particular circumstances not initially provided for in the general statement. This notion of rule nds a vivid expression in the image that Wittgenstein uses to convey the nature of language in general; this is the image of an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions from various periods; and this surrounded by a multitude of new boroughs with straight regular streets and uniform houses.62 In short, an analytical perspective coherent with Wittgensteins later philosophy will have to provide an account of rules altogether different from that put forward by legal positivism. To conclude, the positivist appeal to Wittgenstein is something of a paradox, since it ends up controverting the position of its own advocates. On the one hand, the positivists appeal to Wittgensteins rule-following considerations is faulty because based on a misuse of the opposition between interpretation and rule-following drawn by Wittgenstein; on the other, the same appeal leads to a concept of rule radically different from the concept central to legal positivism itself. All of which makes for a strong argument against positivism (as well as interpretativism): arguing from Wittgensteins philosophy can hardly be conceived of as a tenable strategy in support of legal positivism.
Marie Curie Fellow School of Law University of Edinburgh Old College, South Bridge Edinburgh EH8 9YL UK E-mail: stefano.bertea@ed.ac.uk

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Wittgenstein (1968, 18).