1

Benjamin Beizbeigei

!"##$%&'#%"&(' !"#$%#%&' *&+ #,% -*.
/

i. Intiouuction
The aim of this essay is to ieview philosophei Luuwig Wittgenstein's
!"#$#$%& ()*+,)-./+0)&)1/+,%& (1921), which pioviues us with a mouel of
"piopositional logic", anu then to exploie how this mouel might infoim the law. The
!"#,$#$%& itself is a continuation of Beitianu Russell's pioject in ."+2,+1+#
3#$/45#$+,# (191u, 1912, 191S) to iuentify a basic set of axioms fiom which
mathematical opeiations coulu be ueiiveu.
2
Yet, it uiffeis fiom .3 significantly in
that it is iefieshingly shoit (7S pages). Its publication iepiesents Wittgenstein's
uepaituie fiom his quest to aiticulate the founuations of logic (though it seems logic
woulu be a philosophical obsession foi Wittgenstein thioughout his life). The woik
also contains ethical anu existential piesciiptions, which incluue: humans have fiee
will, a face-to-face ethics of the 0thei must exist outsiue of logic anu language, anu
logic as a tool must be employeu in the physical anu inteipeisonal woilu to make it
meaningful.
To what uegiee theie is co-extension of 'justice', 'faiiness', anu 'ethics' woulu
be a long anu semantic uebate, but it seems coiiect to say the law is suiely
conceineu with the ethical. The law is also investeu with the binaiy tiuefalse
values that make up a piopositional logic. 0thei aieas of nexus between the law anu

1
A different version of this paper appears in: Law and Humanities, Vol. 6.1, pp. 65-83.
(Hart Publishing, June 2012).
2
For a background and analysis of the Tractatus, see Bertrand Russells introduction in Ludwig
Wittgenstein, Tractatus Logico-Philosophicus (1921); tr. C.K. Ogden (1922). Full text of B.R.s
introduction, and the Tractatus, available at www.gutenberg.org.
2
logic incluue the notions that law is 6)"5#0, law is ,)51%$#$+)2#0 (foi instance, in
how a uecision-makei can algoiithmically apply a iule), law is neutial anu
"464"42$+#0 (as opposeu to liteiaiy), anu any legal uispute must pioceeu via
piopositions that uesciibe a ieal event, but which can stiategically be alteieu to
contaminate oi to uivulge what ieally happeneu.
This essay is piimaiily exegetical anu aims to encapsulate Wittgenstein's iuea
of logic in a simple way, anu to show its inteisection with the law. It has the fuithei
aim of biinging a foimative text anu philosophei fiom the 2u
th
centuiy Euiopean
tiauition into Ameiican legal uiscouise, one of many (Beiueggei, Beiiiua, Levinas)
that coulu be useful to legal theoiists, aujuuicatois, anu othei paities that must
make use of - anu must woik within - a legal language.

ii. The pioposition: ieal to tiue
Foi Wittgenstein, the funuamental teiiain that logic ciosses is the "ieal" to
the "tiue". It iepiesents (oi it is) movement fiom the ieal to the tiue. A pioposition
iuentifies a ieal thing, that exists heie anu now, oi in the past, anu communicates it
via a statement. Foi instance, I see a paikeu cai in fiont my apaitment (the ieal). I
then say "Theie is a paikeu cai in fiont of my apaitment." 0i foi example, I see Pete
give Nate a 2u uollai bill (what actually happeneu, the ieal). Then I state, "It is tiue
that Pete gave Nate a 2u uollai bill." In this sense, a pioposition is a pictuie of
ieality.
S
It iepiesents. Something happeneu (the ieal); one communicates it via a
pioposition (that puipoits to be tiue). All of the following coulu be piopositions:

3
Tractatus, 2.1, 2.12
S
Bill gave a gift to Ben.
She is guilty of laiceny.
X + 2 = Y
The piinciple of equal piotection piohibits the exclusion of ethnic
minoiities fiom juiies.
Amanua Knox is innocent.
That injunction shoulu be gianteu.

Theie aie less uemonstiable instances of the pioposition. I can iepiesent a
piece on a chessboaiu via symbols that tag it to its squaie: "The pawn is at ES." I
can also take a photo of the chessboaiu. The photo is (so I claim) a pioposition; it
puipoits to iepiesent as "tiue" what is ieally the case, the actual chessboaiu.
0ne simple aiena in the law that exemplifies the "pioposition" is the
collection of uocuments (statements) that make up a litigateu lawsuit: consiuei its
vaiiances of pleauings, witness testimonies, inteiiogatoiies, anu appeals to a
ieviewing couit; heie, an event ieally happeneu (cai stiuck woman; business
acciuentally let gutteis oveiflow; fathei uieu leaving behinu ambiguous will) anu the
uocuments fileu puipoit to tell the "tiuth" of what happeneu. Eviuence can be
aumitteu oi not aumitteu baseu on whethei it will contaminate an accuiate
piesentation of what ieally happeneu. Foi instance, the time of a text message anu
the location fiom wheie it was sent can be useu to tie its usei to the scene of a ciime.
Peihaps the ,)2$42$ is meiely contaminative though anu will be excluueu (foi
instance, it is iacist oi lascivious anu has nothing to uo with the ciime at uispute,
anu thus will only bias the juiy). Theie is a "ieal" event, anu only the "tiue"
statements can be aumitteu to iepiesent it.
Theie is the "Facts" section of a biief, oi that usually begins a juuicial
uecision; they tell in a iefeiential way what ieally happeneu. Rule 8 of the Feueial
4
Coue of Civil pioceuuie asks foi a "shoit anu plain statement showing |pictuiing,
iepiesenting, piopositionalizingj that the pleauei is entitleu to ielief." Pleauings
talk of "unuisputeu" facts, meaning ones that neithei paity claims to be not tiue.
Theie aie "contesteu" facts, sometimes suggesting the pivotal site wheie the paities
have to gloss ovei (within an ethical bounuaiy) the facts in oiuei to win.
Beie aie two poles: when the event occuiieu, anu afteiwaius, the
piolifeiation of piopositions (the sentences that make up a complaint, tiial couit
biief, tiial couit uecision, appeal to ieviewing couit .) which iepiesent the event
that occuiieu. These piopositions aie pait iefeientially accuiate (iegaiuless of
stiategy, these facts uiu occui) anu pait stiategically accuiate (they aie the "best"
facts foi the client, the ones most "useful"). Peihaps, the wiitten pioposition
enhances in impoitance with movement away fiom tiial, upwaiu to a ieviewing
couit, wheie the couit cannot inspect witnesses, instiuct juiies, oi manage eviuence
as micioscopically as at tiial. Is the ieviewing couit "piey" to the litigatoi's
piopositions, which aie ethically ieflective of the ieal event, but always stiategic.
Peihaps a Supieme Couit litigatoi can binaiize the panel of }uuges by tuining each
}uuge into a yesno inuicatoi, oi at least ueteimine the piobability of a yesno. If
one is hoping a statute that expanus aboition iights will be ueemeu "within the
Constitution", the litigatoi must ueteimine how many of the "yes's" aie alieauy in
the set, anu then shape his aigument so as to biing howevei many moie aie neeueu.
Beie, the bettei litigatoi is inuiffeient to some static "law" wiitten on the page, but
sensitive only to two vaiiables, the set of "yes's" anu the set of "no's", anu the goal is
to acquiie at least S of "Yes". In a hypothetical suit that woulu ovei-tuin 7)4 89 :#;4,
S
the cuiient Supieme Couit panel woulu piobably fall into the following set: N0
|Bieyei, Kagan, Sotomayoi, uinsbuig, Kenneuyj anu YES |Alito, Robeits, Thomas,
Scaliaj. Since we'ie at No (S) anu Yes (4), now is not the iight time to biing a lawsuit
challenging 7)4 89 :#;4.
4


iii. Logic anu law as "foim"
}ustice Scalia wiites, "The iule of law is #<)%$ foim. Long live foimalism. It is
what makes a goveinment a goveinment of laws anu not of men."
S
The law
pioviues the black anu white outlines to the many colois of an event. The law says,
in this box (say, a violation listeu in Cal. Penal Coue 29u(c)), then also in this box
(iegistei face, name, anu auuiess on Negan's law website). Not in this box, then no
iegistiation. The law oiganizes the infinitely vaiieu events of the woilu with its
fine-combeu sets of iules, uefinitions, penalties, anu othei categoiies. Beie, to
Fiege's uiviue - iefeient vs. sense - the law is iefeiential. The "464"42$ of a
pioposition is the object(s) it iefeis to; the &42&4 of a pioposition is the =#> in which
it is expiesseu. Foi instance, }oyce wiites of main-chaiactei Bloom in ?0>&&4&,
"Kiuneys weie on his minu as he moveu about the kitchen softly,

4
As journalist Jeffrey Toobin suggests, the tactic of petitioner attorney Kathryn Kolbert, in Planned
Parenthood v. Casey 505 U.S. 833 (1992), was to argue that abandoning strict scrutiny and equal protection
for abortion rights would entail over-turning Roe v. Wade in full; so, at a strategic level, this meant
assuming that Justices Thomas, Scalia, Rehnquist, and White would equal 4 Nos; Blackmun and Stevens
were a Yes; Kennedy, OConnor, and Souter if it came down to overturn Roe or not would have to align
with Yes (not overturning), which they did. See Jeffrey Toobin, The Nine (Anchor Books, 2007), ch. 3-4.
This strategy could be compared to highlighting the qualifications that Planned Parenthood proposed for
Roe, rather than outright overturning. Transcripts from the oral argument bear out that the former strategy
was taken. Justice OConnor: Ms. Kolbert, you're arguing the case as though all we have before us is
whether to apply stare decisis and preserve Roe v. Wade in all its aspects. Nevertheless, we granted
certiorari on some specific questions in this case. Do you plan to address any of those in your argument?
See oral argument transcript, 1992 West Law 691955.
5
Antonin Scalia. Common-Law Courts In a Civil Law System. A Matter of Interpretation (Princeton
University Press, 1997), 25.
6
iighting hei bieakfast things on the humpy tiay." Beie, the objects iefeiieu to
incluue, liteially, Bloom himself, kiuneys, the kitchen, the tiay, oi bioauly to Bloom's
activity of making bieakfast. The figuiative meaning of that sentence is the sense, as
in the woiu 'humpy'; heie the sentence's sense expiesses Bloom's bumbling, funny,
uocile ways. 0i, in }ustice Kenneuy's famous, "At the heait of libeity is the iight to
uefine one's own concept of existence, of meaning, of the univeise, anu of the
mysteiy of human life.", the object iefeiieu to is the "iight"; its mysticism though
comes in its &42&4, its figuiative expiession.
6

The law is iefeiential, neutial, "object"-ive, in that it wants to pick out
piecisely which objects it is iefeiiing to. It is foimal, not figuiative. It is blinu to the
expiessive iuentity that bieathes fiom the soul into the outlines of that soul's
aiticulateu statements. It applies the same penalties anu benefits iegaiuless of
one's genuei, sexual oiientation, economic status, political affiliation, ieligious
upbiinging, anu so on.
Likewise, the goal of logic is to pioviue a uisciiminating foim to the woilu, as
if a scaffoluing.
7
Wittgenstein's example (which I'll expanu on heie) is of a machine
that can be piogiammeu to uiffeientiate always between uegiees of shaue -
uaikeilightei, blackeiwhitei.
8
Foi example, consiuei when one can coloi in a
black ciicle on a white page. A computei can be piogiammeu to always locate the
space within the ciicle, as opposeu to the exteiioi page, iegaiuless of the actual
colois. That is, it can be piogiammeu to spot a single "uiffeience" - uaikei-

6
Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992).
7
Tractatus, 3.42
8
Tractatus, 4.063
7
shauelightei-shaue, blackei-shauewhitei-shaue - anu theieby always point to the
coiiect point within the space of the ciicle vs. the space on the outsiue. Changing
the colois, say, white ciicle anu black page, oi pink ciicle anu blue page, is
meaningless to a machine that sees only "shaues" oi "uiffeiences". It can accomplish
its task - iefei to the ciicle-aiea vs. the exteiioi-page-aiea - iegaiuless of the colois.
In this way, logic (anu law) aie 1")/+<+$+84. The law says +2 this categoiy, but
simultaneously 2)$ in this categoiy. 0i, it is in this categoiy <4,#%&4 it is not in this
categoiy. The litigatoi uiu not win because he uiu 2)$ caiiy his buiuen of pioof. Be
uiu 2)$ meet this buiuen, anu theieby the foimal binaiy (inout, winlose) is
cieateu.

iv. Piopositional logic as binaiy: tiuefalse
The pioposition is binaiy. It has one of two values: tiue oi false.
9
A
'pioposition' is so-calleu because it actually 1")1)&4&. It makes a statement that
puipoits (tiue) to ieflect the ieal event, but might not be accuiate (false). A
pioposition pioffeis foith the statement ("Business A uefiauueu Business B") that,
fiom the litigatoi's siue, is not simply tiue, but &) cleaily tiue as to consiuei its
opposite woulu be foolish. A tiiei-of-fact might still ueteimine that pioposition to
be false though. Noie simply: I may think I saw Nate give Pete a 2u-uollai bill, anu
thus asseit "Nate gave Pete a 2u-uollai bill". Real event (Nate gives Pete $2u) moves
to pioposition ("Nate gave Pete ."). This pioposition puipoits to be tiue, to take a

9
Tractatus, 5.153
8
"tiue value". Although, my eyesight coulu have been off; it was ieally 1u uollais anu
thus my pioposition has a value of "false".
A simplest two-valueu logic is that which uiffeientiates via the binaiy, which
can be iepiesenteu in axioms: the law of bivalence (eveiy pioposition must eithei
be tiue oi false); the law of excluueu miuule (eveiy pioposition, because it is tiue oi
false, cannot have a thiiu, oi miuule, option); the law of non-contiauiction (no
piopositions in a system can contiauict one anothei; foi instance A anu not-A
cannot simultaneously be uphelu by the system).
1u

The law, as a collection of piopositions, is investeu with the binaiy. It
pioceeus thiough the aujuuication of a uispute via the calculation of yesno, inout,
tiuefalse statements. This is especially ieflecteu in its language.
giant vs. ueny
aumissible vs. inaumissible
stanuing vs. no stanuing
piosecute vs. uefense
guilty vs. innocent
sustaineu vs. ovei-iuleu
if guilty, then sentencing vs. if not guilty, then no sentencing
above u.u8% BAC, then 'intoxicateu' vs. at oi below .u8% BAC,
then 'not intoxicateu'

0ne aim of the philosophy of "ueconstiuction" is to take apait anu ie-allocate
the meaning of a pioposition, by showing that theie aie moie than just two
possibilities.
11
That is, to the <+2#"> queiy a juuge might ask heiself "Shoulu I giant

10
A common set from which to derive mathematical operations are the Boolean operatives (and, or, if, if
and only if, negation) and Freges quantifiers (for all and there exists at least one). See Martin Davis
introduction in: Paul Cohen, Set Theory and The Continuum Hypothesis (Dover Publications, 1966).
11
Legal theorist Jack Balkin points out that one aim of Jacques Derridas philosophy of deconstruction is to
show where two terms contain one another, for instance (my example) the defining of male via an
alternative female, or telos via an alternative natural origin. See Jack Balkin, Deconstructions Legal
Career, CARDOZO LAW REVIEW Vol. 27:2, p. 729.
9
the injunction oi not." theie is the ;4,)2&$"%,$+84 solution: let's bieak that binaiy
giantnot-giant into 4 categoiies, oi 6, oi some othei numbei that moie
uisciiminatingly tieats of the pioblem. Foi example: "I giant the injunction foi this
set of time, on this set of conuitions; otheiwise I uo not giant, anu insteau pioviue a
monetaiy iemeuy."
This solution (bieaking the two-valueu binaiy) into sub-sets still iesults in a
seiies of piopositions that aie eithei tiue oi false. That is, I ;) (as opposeu to ;)
2)$) giant the injunction foi this peiiou of time (anu 2)$/+2* )%$&+;4 this peiiou); I
;) (as opposeu to ;) 2)$) giant the injunction if these conuitions #"4 54$ (as
opposeu to #"4 2)$ 54$). The ueconstiuction of a staik binaiy iesults in 5)"4 two-
valueu piopositions with the hope that this fine-giaineu tieatment of an eitheioi
pioblem can leau to an equitable iesult.
Beconstiuction can function to accoiu ciiminals that face a staik eitheioi
penalty with a wiuei iange (moie ueiivative, moie uisciiminating) penalties. (An
analogy in civil law coulu be compaiative fault anu joint anu seveial liability.) Foi
instance, the Califoinia Penal Coue cuiiently exacts the same 29u iegistiation

I have to point out that, in his article, Jack Balkin makes a lot of claims about deconstruction, as a
philosophical method and a discipline, which simply are not correct. 1) Deconstruction as a discipline is
mostly taught in the United States in humanities fields (it is not an anti-humanist approach, as Balkin
weirdly claims); 2) Deconstruction should not be analogized to critical theory (as Balkin claims), this
tendency no doubt owing to its use by critical theorists in academia. Derrida has not been enthusiastic
about the usurpation here, and he states that critical theory, unlike deconstruction, must be structural:
Form fascinates when one no longer has the force to understand force from within itself. That is, to
create. This is why literary criticism is structuralist in every age, in its essence and destiny. Criticism has
not always known this, but understands it now, and thus is in the process of thinking itself in its own
concept, system and method. See Jaques Derrida, Force and Signification, Writing and Difference
(University of Chicago, 1978); 3) Deconstruction is an ethics (it doesnt lack a necessary ethical stance
as Balkin states). Two examples are its concern with an ethics of reading and authority (which texts take
authority over others) and its concern with the vulnerable plight of the radical Other, that Other which we
do not notice and thus do not accord just treatment. For a demonstration of this idea, see Simon Critchley,
The Ethics of Deconstruction (Edinburgh University Press, 1992). See Jacques Derrida, That Dangerous
Supplement , Of Grammatology (Johns Hopkins University Press, 1974).
1u
penalty (which often involves the online publication of name, photo, anu auuiess) to
the set of sex-offenueis that incluues (iegaiuless of age): vaginal iape (29uc),
souomy (286), intimate touching while that peison is iestiaineu (24S.4), uefiauuing
a female into peifoiming an act of piostitution (266).
12
Foi the two that aie less
seveie (intimate touching, uefiauuing), this penalty can be ueconstiucteu, peihaps
as: 1S yeai peimanent iegistiation with ieview by a County boaiu, followeu by
eithei ielease fiom iegistiation, oi anothei 1S yeai peiiou followeu by ieview. The
+;4#0 penalty-to-ciime ielation is always 1:1; uiffeient sexual ciimes (vaginal iape,
foiceu oial copulation) can be ueconstiucteu along the lines of age (ovei oi unuei
18, ovei oi unuei 14), then conuitionally (by means of foice oi by feai), anu so on.
In this sense, an iueal (hypothetical) penal coue woulu be infinitely uisciiminating.

v. Logic as "spatial"
A logical opeiatoi is a symbol useu to connect piopositions in a valiu way:
pioposition p oi q; pioposition p anu q; pioposition p but not q. Foi instance: my
fiienu Betty iiues hei bike past my winuow (ieal event), anu I say to someone,
"Betty ioue hei bike touay" (p); it's possible that my fiienu Quentin ioue his bike
touay, anu hence the pioposition "Quentin ioue his bike touay" (q). So, the
possibilities aie, iepiesenteu with theii opeiatoi symbol: p v q (oi); p A q (anu); p
anu q (not, oi uisjunction).

12
Cal. PC 290(b): Every person described in subdivision (c), for the rest of his or her life while residing in
California shall be required to register
Cal. PC 243.4: Any person who touches an intimate part of another person while that person is unlawfully
restrained
Cal. PC 266: and every person who, by any false pretenses, false representation, or other fraudulent
means, procures any female to have illicit carnal connection with any man.
11
Wittgenstein uses the Sheffei stioke to ieuuce all of these opeiatois (#2;, )",
2)$) to one: 24*#$+)2.
1S
Theie aie a funuamental set of piopositions that uesciibe
the woilu, anu fiom them, via negation, aie ueconstiucteu fuithei subsets. That is,
he inuicates, what one uoes in logic, what it is most useful foi, is stipulating which
piopositions aie most funuamental, anu then ueiiving fuithei, moie piecise
piopositions. Foi instance, if I state, "Betty left the stoie at S PN anu was home by
S:1S PN", theie aie a numbei of ueiivative tiuths that must be the case, which I
expiess in sub-statements: "Betty uiove hei cai home." "Theie was not heavy
tiaffic."
14


13
The Sheffer stroke (named after Henry Sheffer) was the mathematical device known to Wittgenstein,
though American mathematician Charles Pierce had developed the idea independently during the 1880s.
Its procedure is to treat an AND function as identical to a negated OR function, and vice versa. As in: NOT
(A AND B) = (NOT A) OR (NOT B); and as in: NOT (A OR B) = (NOT A) AND (NOT B). And thats
about as far as my understanding goes.
See Stanford Encyclopedia of Philosophy, The Algebra of Logic Tradition (updated May 2009); viewed
online (January 2012). <http://plato.stanford.edu/entries/algebra-logic-tradition/>
See Bertrand Russells explanation of the Sheffer stroke in the introduction to the Tractatus, p. 12.
14
I propose that the Tractatus itself represents a function, f(x) = y. It takes a basic set of vocabulary,
constructs the relations between these terms, and the effect (I think this is one way to read the Tractatus) is
to put equals signs (=) that carry you to derivative propositions (or vice versa). As in: If you want to start
with a small set of elementary propositions, you locate the number (say, an integer: 2, 3, 4 ) of ways of
configuring some scene before you. For instance, if you have a box that fits perfectly to 4 smaller, equal-
sized boxes (A, B, C, D) there are a finite number of ways of configuring those boxes. This number (# of
configurations) is instilled in an atomic fact, which is stated as an elementary proposition. Take all the
elementary propositions in your set, the total number of which is (n). The number of combinations you can
make, such that some are true and some are false at any given time, are called the truth possibilities and
their number equals 2 ^ n. This is also equal to the number of rows in Wittgensteins truth table (each row
representing a particular configuration of true or false elementary propositions). See sub-section of T. 4.31.
You then derive your second truth table (the truth conditions), via the operation 2 ^ (2 ^ n). See sub-section
of T. 5.101. So for instance, if you have two elementary propositions p and q, you derive a truth table of
4 rows and then a truth table of 16 rows; as in 2 ^ (2 ^ 2).
14
The result is a demonstration of the number of
ways of configuring the values (T or F) of your base set of elementary propositions. This is one reason why
the elementary proposition serves as the argument for Wittgenstein. You identify the number of elementary
propositions (x) and then drive that forward, through the algorithm f to make more specific propositions,
which equate to the range of results (y). Thanks to Gregory Konover for help with the mathematics in this
section.
One advantage of Wittgensteins demonstration is that it derives (in however esoteric a form) the modern
truth table, which is a staple of most introductory logic classes taught today. As Michael Potter points
out, drawings of truth tables have been preserved, in Wittgensteins handwriting, on some of Bertrand
12
Wittgenstein's fuithei inuication is that the object that a pioposition always
is about, that it iepiesents , is some configuiation of objects in eithei a 1, 2, oi S
uimensional space. What logic as a uiscipline is <4&$ foi (I piopose that the
!"#,$#$%& points out) is picking out how, say, that apple, oiange, anu peai aie
stationeu in the box, oi how that checkeiboaiu's pieces aie configuieu, oi how that
molecule's atoms aie configuieu. Then, fiom this initial stipulation (that theie aie
this many ways of configuiing these objects), one can ueiive subsets of ueiivative
piopositions, which explain with gieatei piecision the elementaiy piopositions.
To geneialize this point fiom the !"#,$#$%&: A simple two-valueu logic
(piopositional logic) is moie accuiate the moie it iefeis to thiee-uimensional
objects in a vacuum, uivoiceu fiom time. The position of an object in space can be
tieu to a S-integei name (say, 74, S4, 2S4), which is equivalent to its S points along a
thiee-uimensional (x, y, z) axis. With enough accuiacy to meaningfully
communicate the position of the object, one can say, "It is tiue that the object is at
point 74, S4, 2S4." All othei point-names (foi instance, 7S, 192, 2S) say something
false. The law of excluueu miuule is uphelu.
Wittgenstein's point is that any pioposition about an event in the futuie is
neithei tiue no false, but iathei has no binaiy tiuth value. It can be assigneu a
piobability (say, a 1 - 1uu peicentage) as to whethei a pioposeu event will occui.
This piobability can be veiy useful. But, a two-valueu logic, that puipoits to be a

Russells notes from their discussions. It is not clear whether they jointly (or one of them) developed the
truth table in its modern form, though Potter says he would guess Russell. As Potter further states, the truth
table is not necessarily unique in concept; it is a helpful way to show the performance of a function, f(x) =
y, where the domain (x) in question consists of two values, as opposed to three, four, etc. See Michael
Potter, Wittgensteins Notes on Logic (Oxford University Press, 2009), p. 160.

1S
mathematically peifect uesciiption, must inuicate 1uu peicent tiuth oi not; theie is
no miuule giounu.
1S
A pioposition such as "The baibei will cut my haii tomoiiow"
may in all likelihoou be tiue, but it is uesciiptively meaningless as it puipoits to be a
mathematical statement of what is 1uu peicent tiue oi not. Wittgenstein's logic is
piimaiily &1#$+#0. Imagine one comes acioss a chess match in the miuule of the
game. 0sing a two-valueu logic, one can, with knowleuge of the finite numbei of
squaies on a chessboaiu anu knowleuge of the finite moves each piece is capable of,
wiite out at that paiticulai moment the complete list of moves that aie possible foi
the playei to make. Bowevei, one cannot with 1uu peicent piecision wiite out a
complete list of all subsequent moves, at each switch of tuin, because theie is no
way of telling exactly at which tuin eithei one playei will win oi whethei they will
ueclaie a uiaw.
16
The fiist scenaiio is "complete"; the seconu is not because the
numbei of objects (possible moves, length of time) that can be auueu to its set is not
known.
Beie is one opening foi the uebate between 'textualism' anu 'living
Constitutionalism'. I inteipiet }ustice Scalia's essay explaining the science of
statutoiy constiuction to say the following: textualists such as Scalia believe theie is
a static meaning to a woiu that can be locateu in the past, its "oiiginal meaning";

15
Tractatus, 6.36311, 6.37.
16
Perhaps an example of a non two-valued logic that could be informative to decision-makers is so-called
subjective logic. Subjective logic (on one account) takes four values: belief that a proposition is true (b);
disbelief that the specified proposition is false (d); the amount of uncertainty, for instance non-knowledge
of certain circumstances (u); and the a priori probability in the absence of evidence (a). So to the
proposition, Witness A was inside the bank vault, a numerical value can be assigned that consolidates the
four values into a percentage 1-100 that the proposition is true. Wittgensteins point would be that as for its
descriptive mathematical value, this probability purports to make a true (and not false) statement, thus
being capable of being reduced to a two-valued (true/false) analysis. See Audun Jsang, et. al. Trust
Network Analysis with Subjective Logic (Twenty-Ninth Australian Computer Science Conference, 2006).
14
when one uoes statutoiy constiuction piopeily, one attempts to locate this static,
oiiginal meaning.
17
Living Constitutionalists - foi example Ronalu Bwoikin - accept
the aesthetic, oi the poetic, oi the moially conscientious outcome of a uispute to
holu a moie foiceful sway than this plain meaning, at least moie ieauily than Scalia's
texualist. An auuitional point woulu be that the living Constitutionalists tieat of the
2#""#$+84 of Constitutional inteipietation; theie is iecognition that uiffeient couits
have, at uiffeient times, constiueu its woius to have eithei expansive oi uisciete
meanings. A legal theoiy (anu juuicial uecision) must unite these meanings via a
puiposive naiiative.
18
}ustice Scalia's point is that iegaiuless of the passage of time,
theie is always a static oiiginal meaning, which can be ueuuceu via scientific methou
anu which is unchanging.
19

Inteiestingly, Wittgenstein's logical mouel woulu be of most use by the
textualists, because it pioviues piecise, foimal outlines foi the numbei of meanings
that a pioposition oi woiu, say "uue piocess", can possess. Yet, Wittgenstein's
conclusions about the %&4 of logic, as a heimeneutic, woulu be that it is subseivient
to a non-stiuctuieu peisonal ethic.




17
See Antonin Scalia, Scalia, Antonin. Common Law Court in a Civil Law System. A Matter of
Interpretation. Princeton University Press, 1997.
18
I take this to be an over-riding of theme in Ronald Dworkins work, Laws Empire (Harvard University
Press, 1986). See p. 58: I mean that an interpretation is by nature the report of a purpose; it proposes a
way of seeing what is interpreted a social practice or tradition as much as a text or painting as if this
were the product of a decision to pursue one set of themes or visions or purposes, one point, rather than
another.
19
Scalia, Common Law Courts, 45.
1S
vi. Aujuuication as computation
The vocabulaiy of Wittgenstein's !"#,$#$%& - 6%2,$+)2, )14"#$+)2, #"*%542$,
"4&%0$, ;4,+;4#<04@ ,)5104$4, 8#"+#<04, $>14 - is often co-extensive with computation
theoiy. Theie was also an explosion of philosophical inteiest in the founuations of
logic (Fiege, Russell, Whiteheau, Wittgenstein) that slightly pieceueu Tuiing's papei
"0n Computable Numbeis" (19S6), which is commonly vieweu as fiist uesciibing
the functions of a mouein computei.
2u

A function in its symbolic foim can be expiesseu as 'f (x) = y'. A function
expiesses a ielationship between an input anu an output. That is, one inputs an
object fiom the set of (x), to which coiiesponus, 'f', the appiopiiate iesult 'y'.
The input, x, is also calleu in computation theoiy the #"*%542$ of the
function. In Wittgenstein's logic, it is the #"*%542$ that uiives the function
foiwaiu.
21
We can simply wiite out the symbols on the page: f(x) = y. But it is the
paiticulai input, fiom the set (x), an aigument that puipoits to be tiue, that is issueu
fiist, followeu by evaluation. An analogy heie is to civil litigation, wheieby what
moves the case foiwaiu is the complaint. It is the positive aigument, always
thiusting foiwaiu as stiategically as it can. The application of iule 'f', to aigument 'x',
piouuces the outcome 'y', foi instance a legal, injunctive, oi ueclaiatoiy iemeuy.
Theie is an inteiesting connection heie with a piogiammei's use of the
iuentity sign (=). In piogiamming (so says my textbook), an '=' sign shoulu be

20
See Alan Turing. On Computable Numbers. Proceedings of the London Mathematical Society, (Ser.
2, Vol. 43, 1937). See esp. sections 1-3, where Turing lays out in an intuitive way the bases and
implications of a Turing machine. At least in one instance, Turing was a student of Wittgenstein at
Cambridge. See Alan Hodges, Alan Turing: The Enigma (London: Burnett Books, 1983), p. 152.
21
For Wittgenstein, it is the elementary proposition (n) that is usually identified first; this is the argument,
that which drives the function forward, via the equation 2 ^ (2 ^ n), to arrive at the number of truth
conditions. See generally Tractatus, section 5.
16
4510)>4;, as in "make it so". The expiession 'A = B' uoes not mean, puiely
uesciiptively, the name 'A' anu the name 'B' iefei to the same thing. It is the
piogiammei who is giving the compilei the instiuction, "Nake it the case such that
the vaiiable A ieceives the same opeiations as the vaiiable B."
22
Beie, }ustice
Scalia's textualism is passive; it ieaus the equals sign. It analyzes anu locates, within
the woiu of the statute itself, whethei that woiu's meaning equals the meaning of
the Constitution. Textualism is an analytic. The so-calleu Living Constitutionalist
uses the equals sign as an +2&$"%,$+)2. This juuge says: I am making it so that this
iesult is ieacheu. This juuge says: I am *+8+2* this Constitutional phiase - say, uue
piocess - this meaning (say, to piotect a woman's iight to an aboition). This is
Bwoikin's point that juuicial inteipietation is the imposition of a moial puipose
onto a static set of wiitten laws.
2S

If one conceives of logic as an #,$+8+$> (as Wittgenstein uoes), anu as an
activity that involves 1) static symbols on a page anu 2) +2&$"%,$+)2& that ;)
something to these symbols - anu now to caiiy along this analogy between law anu
the !"#,$#$%& A I wonuei if aujuuication aligns with these +2&$"%,$+)2&. 0i, +& a
juuicial uecision the making of these instiuctions. Boes the juuge "activate" the
wiitten law in applying it. To a uegiee that vaiies uepenuing on the uispute, a juuge
must both constiuct anu apply the instiuctions that aie neeueu. Peihaps theie is a
connection with 'uicta' heie, wheieby a juuge, in ueciuing a case that uoes not neeu

22
Jeri R Hanly. Elliot B. Koffman. Problem Solving and Program Design in C, 6
th
ed. (Addision Wesley,
2010), p. 58.
23
For instance, language of a statute is not first seen as ambiguous, and thus applied with great difficulty to
the facts; rather, the facts of a case are seen to test the limits of the meanings of a statute, and thus the
statutes language is ambiguous. See Dworkin, Laws Empire, p. 352.
17
a iule foi a just outcome to be achieveu (because the case can be ueciueu
comfoitably with existing law) uses the oppoitunity to feeu into the existing bouy of
law a new instiuction.
Am I wiong to obseive that legal specialists in Constitutional law often
specialize also in Civil Pioceuuie. Beie, the wiitten law of the Constitution is
(usually) not changeu. Its text iemains liteially the same whethei I ieau it on the
inteinet oi in a casebook, oi even whethei I heai it ieciteu. The symbols aie static -
they take up space on a page. They uo not "change" ovei time. Civil pioceuuie, by
contiast, ueals also with the naiiative of a uispute. The Feueial Coue of Civil
Pioceuuie (as opposeu to the text of the Constitution) contains many +2&$"%,$+)2&
along with uesciiptions. It speaks laigely to litigatois.
Rule S: "A civil action is commenceu by filing a complaint with the
couit." (i.e. You, file the complaint fiist.)

Rule 4(a)(1)(a): "A summons must name the couit anu the paities."
(i.e. You, name the couit anu the paities.)

Rule14(a)(1): ".But the thiiu-paity plaintiff must, by motion, obtain
the couit's leave if it files the thiiu-paity complaint moie than 14 uays
aftei seiving its oiiginal answei." (i.e. You, obtain leave if you want to
file aftei 14 uays..)

Within these instiuctions the litigatoi can maneuvei. Foi instance: be the
paity filing the appeal fiist anu you'ie the one who was most haimeu by the tiial
couit's mistaken iesult. This "timing" element cannot be ciicumsciibeu by the
Feueial Coue. It is a stiategic, peifoimative element, that has no 1uu peicent tiue oi
false "value". Law as static, spatial, anu uesciiptive accoius to what the law
;4&,"+<4&, what the law says to be +& $/4 ,#&4. Law as moving, tempoial, anu
18
piesciiptive accoius to law as &$"#$4*>, to which uiiection one wants to "take" the
law.
The point of Wittgenstein's !"#,$#$%& is that logic is an activity, anu by co-
extension, philosophy is an activity. The human peifoimei is necessaiy to "uo" any
logical move. To begin a logical calculation, one must make a stipulation (a
paiticulai integei), anu all ueiivations can theieby pioceeu via algoiithm. This
stipulation is a making, a constiuction, in the sense that theie is no iule that can
compute this stipulation. 0ne has to uo it; exit (oi uon't entei into) the fielu of
uesciiption anu begin with the peifoimative.
24
The iequiiement of a stipulation is a
pioblem foi any logical system because, if the stipulation itself cannot be aiticulateu
via iule, then the system cannot be "closeu" oi "pioveu". A peifect logic woulu both
aiticulate its funuamental axioms anu, using only these axioms, show itself to be
tiue.
Wittgenstein suggests that the tenuency to ieuuce ueiivative laws to basic,
simplei laws, which is what a complete logic uoes, anu which is a piinciple of
computing (iecuision), is a 1&>,/)0)*+,#0 motive.
2S
A slightly uiffeient example is
the following: if theie is a set of one object (1), anu one splits the object into two
equal paits (2), anu then splits each of these again into equal paits (4), one has a
hieiaichy of 1 ! 2 ! 4. 0i: (1) ! (1, 2) ! (1, 2, S, 4). A computei instiucteu to
pick one of the thiee levels has no inclination to pick the base set of 1, unless it is

24
I think Kripke makes a similar point when he says that counterfactuals are stipulated; one does not say:
Oh, I see that this counterfactual exists, now let us analyze. One says, Lets imagine this counterfactual;
lets say that it exists; now, the analysis begins. That is the goal of the hypothetical: to propose something
that could exist, and then show what is necessary within the constraints of this counterfactual; you dont go
around discovering possible worlds as if with giant telescopes. Saul Kripke, Naming and Necessity
(Harvard University Press, 1980), p. 44.
25
Tractatus, 6.363, 6.3631.
19
piogiammeu to uo so. A human will want to pick the most funuamental level, the
bottom level, the "one" oi the "all". It is the human peifoimei, Wittgenstein says,
that is iesponsible foi always ieuucing to the base, because theie is an inteinal uiive
to uo so.
A symmetiical example is Constitutional inteipietation, wheieby theie is a
funuamental set of sentences (liteially, "Congiess shall have the powei."), anu
anything "legal" must iecui to the Constitution. So, the following piopositions
cannot be incluueu in the same set: "That law is illegal" anu "That law is
Constitutional". If the "law" is the existing collection of wiitten statutes anu juuicial
uecisions, the numbei of piopositions has piolifeiateu thiough time. The oiigin of
these piopositions is the Constitution, a shoit set of elementaiy piopositions, which
themselves cannot iecui fuithei.
Theie aie a iemaikable numbei of self-iefeiential complications built into
the fiist 0S Supieme Couit uecisions, which ieflect the piagmatic necessity of
iooting both the wiiting of laws anu the application of these laws within the same
bouy. The fiist Couit was composeu of six }ustices that weie also involveu, to
vaiying uegiees, in the wiiting of the Constitution: }ohn }ay, }ames Wilson, William
Cushing, }ohn Blaii, }ohn Rutleuge, anu }ames Iieuell. 0ne of the fiist influential
cases ueciueu by the Supieme Couit, 3#"<%"> 89 3#;+&)2 S 0S 1S7 (18uS), involveu
Chief }ustice }ohn Naishall as both aujuuicatoi anu pivotal playei in the uispute
itself. This possibility of bias uiu nothing to pievent the uecision fiom establishing
the funuamental piinciple of juuicial ieview. The Naishall couit uecision stateu,
ultimately, that it woulu not extenu its poweis of oiiginal juiisuiction to ieview the
2u
case; yet, in some ieal sense, it uiu ieview the case anu wiote a uecision. Beclining
to have oiiginal juiisuiction foi ieview woulu liteially involve not ieviewing it oi
expounuing upon it at all. Though the text of the uecision is now wiuely available,
the Couit itself uiu not publish the uecision, anu it woulu have been lost if not foi
infoimal newspapei iepoiting anu notes taken by William Cianch. 0ne iionic claim
heie is that juuicial ieview anu its ielateu piinciple of &$#"4 ;4,+&+& weie baseu on a
uocument (the text of the uecision in 3#"<%">) that itself uiu not intenu to be
tiansciibeu anu wiuely uisseminateu. The countei-iesponse is that, even if not in
3#"<%">, juuicial ieview woulu have to be piomulgateu by some uifficult case soon
theieaftei.
26

To Bwoikin's iueal juuge that is "piotestant",
27
in the sense of self-conscious,
peisonal inteipietation of the }ust, an iueal textualist is "catholic", in the sense of
iequiiing a %2+6+4; theoiy. The iight statutoiy constiuction must pioceeu fiom a
methou that is ,)/4"42$, that is ueiiveu fiom the singulai, objective }ust. A statute's
Constitutionality has to be capable of being ueuuceu thiough axiomatic opeiation
fiom the text of the Constitution. A iigiu tuin to the "scientific" as a basis foi
statutoiy constiual ieflects the inteinal uiive to ieuuce to the one. That is, theie is
not 6+"&$ the iuentification of the law as scientific anu $/%& the use of a scientific
methou. A textualist seeks the singulai, the iecuisive, that which pioceeus via

26
See Harold Burton, The Extraordinary Case of Marbury v. Madison, 36 ABA JOURNAL (1950).
27
Ronald Dworkin. Laws Empire. (Belknap Press: 1986), p. 413.
21
aiticulable methou. This uesiie seeks out "science" as a function of its iueal object,
,)/4"42,4.
28

A paitial list of iesponses to }ustice Scalia's textualism incluues:
1) the oiiginal meaning of a statute may exist, but the stiategy foi B2)=+2*
this meaning will be tainteu with bias;
2) the "science" of statutoiy constiuction just means the "common sense"
meaning of a woiu;
29

S) it is moie impoitant to make a just uecision than to have a coheient
theoiy;
4) whethei a uecision is logically coiiect, anu pioveu to be so via syntactic
anu semantic iules, is suboiuinate to its piagmatic effect;
S) Constitutional inteipietation must, logically, be uiffeient than statutoiy
inteipietation; unlike statutes which iecui to a base text (the Constitution) foi

28
Scalia, Common Law Courts, 45. But the difficulties and uncertainties of determining original meaning
and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of
the philosophy which says that the Constitution changes
Professor Laurence H. Tribe arguing against the need for ultimate coherence in a legal theory: However
much undoubtedly divides the interpretive approaches of Professor Dworkin and Justice Scalia, what unites
them is, I fear, a shared failure to adhere to these canons of candor and of self-conscious humility, in the
face of a task about which none of us is entitled to feel too assured. There is, it seems to me, no
conclusive way to argue that Article V, or aything else in the Constitution, decisively establishes, say, that
it is the text and the text alone of something like the First Amendment or the Fourteenth Amendment that
has become the supreme Law of the Land upon ratification. Comment, A Matter of Interpretation
(1997), p. 72, 76.
29
Scalia, Common Law Courts, 24. The difference between textualism and strict constructionism can be
seen in a case [Smith v. United States, 508 U.S. 223 (1993)] my Court decided four terms ago. The statute
at issue provided for an increased jail term if, during and in relation to [a] drug trafficking crime, the
defendant uses . . . a firearm. The defendant in this case had sought to purchase a quantity of cocaine;
and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to
the drug-seller. The Court held, I regret to say, that the defendant was subject to the increased penalty,
because he had used a firearm during and in relation to a drug-trafficking crime. The vote was not even
close (6-3). I dissented a proper textualist, which is to say my kind of textualist, would surely have
voted to acquit. The phrase uses a gun fairly connoted use of a gun for what guns are normally used for,
that is, as a weapon. As I put the point in my dissent, when you ask someone, Do you use a cane? you
are not inquiring whether he has hung his grandfathers antique cane as a decoration in the hallway.
22
authoiity, the Constitution cannot iefei to itself as an authoiity foi how to inteipiet
itself.
Su

Peihaps The most compelling point in favoi of Scalia's textualist - anu moie
iauically, in favoi of the stiict constiuctionist - is the expeiimental iuea that 'law'
coulu be sepaiateu at times entiiely fiom 'justice'. I piopose the following as one
way to show ascenuing uifficulty when a juuicial uecision of high consequence must
be maue.
1) The uecision ieflects the common moial aim of public conscience (foi
example, a uecision in 2u12 that militates against cleai iacism in a coipoiation's
employee salaiies).
2) The uecision is ieacheu thiough a sophisticateu moial unueistanuing of
the law, though the uecision is not populai, anu even anathematic to a laige public
sectoi (equal piotection expansion in C")=2 89 C)#"; )6 D;%,#$+)2 (19S4)).
S) The uecision piouuces a palpably seveie anu less-than-peifect penalty oi
iemeuy to the paities involveu; that is, it is a case wheie the }ustices wisheu they
hau a uiffeient law to apply, but the legislatuie hau not yet piouuceu one. But, this
seveie outcome is still just, in the sense that it maintains a sense of naiiative
coheience anu concieteness to the law9 It pieseives a cleai stance such that the
public is cleai on what the law is, anu the institutions that have uevelopeu in
ieliance on this law (foi instance, aboition clinics that have been built anu opeiateu
on the piemise that 7)4 89 :#;4 woulu not be oveituineu lightly) can be confiuent
that the law will not change immeuiately upon a shifting juuicial make-up.

30
Scalia, Common Law Courts, 38. What I look for in the Constitution is precisely what I look for in a
statute: the original meaning of the text, not what the original draftsmen intended.
2S
4) A uecision that piouuces an outcome that seems i) fiom the inuiviuual
juuge's inteinal sense of ethics to be an unjust penalty; ii) fiom the public's moial
conscience to be ethically untenable; iii) fiom a bioauei-in-time, moie abstiact look
at the naiiative of law anu the institutions that it enfolus, the uecision seems to
piouuce an unjust outcome. Bowevei, the uecision still follows the law because it is
wiitten plainly on the page anu confoims to accepteu piinciples of &$#"4 ;4,+&+&.
The fouith type of uecision is peihaps a uystopic iueal, anu it woulu be a
foimative achievement to be able to suboiuinate entiiely one's sense of E%&$+,4,
when neeueu in a iaie instance, in oiuei to apply the law only because it is the law,
anu even when the outcome seems unjust to the juuge in all of its manifestations.
This iesponsibility coulu nevei be calleu upon by a hypothetical Supieme Couit
maue up of a single }uuge. Bowevei, in a Couit of multiple membeis, some of whom
beai the label of the aesthetic 'Living Constitutionalist', then can a juuge who
implements piecise, algoiithmic iules to facts pioviue a counteibalance. It matteis
not =/) takes on the iule of the algoiithmic stiict constiuctionist, but must someone
iule this way, to pioviue balance to those who view the Constitution as containing
highly liquiu meanings.






24
0%1%2#%+ !345'

Bwoikin, Ronalu. (#=F& D51+"49 Belknap Piess of Baivaiu 0niveisity Piess, 1986.

uouel, Kuit. "0n foimally unueciuable piopositions of Piincipia Nathematica anu
ielateu systems I". 3)2#$&/46$4 6G" 3#$/9 %9 ./>&+B S8, 17S-198, 19S1 ; ti.
Naitin Biizel, 2uuu.

Scalia, Antonin. "Common Law Couit in a Civil Law System." H 3#$$4" )6
I2$4"1"4$#$+)2. Piinceton 0niveisity Piess, 1997.

Tuiing, Alan. "0n Computable Numbeis." ."),44;+2*& )6 $/4 ()2;)2 3#$/45#$+,#0
J),+4$>, (Sei. 2, vol. 4S, 19S6).

Wittgenstein, Luuwig. !"#,$#$%& ()*+,)-./+0)&)1/+,%&, 1921. Routleuge & Kegan
Paul, 1981; ti. C.K. 0guen. (Incluues intiouuction by Beitianu Russell.)

Wittgenstein, Luuwig. 745#"B& )2 $/4 K)%2;#$+)2& )6 3#$/45#$+,&. Eus. u. B. von
Wiight, R. Rhees, & u. E. N. Anscombe. NIT Piess, 198S.