Bertea - Remarks on a Legal Positivist Misuse of Wittgenstein's Later Philosophy

STEFANO BERTEA

REMARKS ON A LEGAL POSITIVIST MISUSE OFWITTGENSTEINS LATER PHILOSOPHY

(Accepted 16 April 2003)

I. PREMISE

The name legal positivism picks out not one, but myriad theoriesof law. Yet these theories, for all their diversity, are joined by afundamental common tenet, the proposition that law pertains toan autonomous sphere of practical reason and consists mainly ofnorms which institutions having appropriate competence produce inobservance of proper procedures (social thesis). On this view, lawsare valid only insofar as they meet certain systemic and proceduralcriteria, regardless of whether any moral requirements are fulfilledin this doing.1 Among those who have questioned such a separationof law from morality are the legal theorists who endorse the thesisthat law is entirely an interpretive practice, meaning by this thatdetermining what the law requires in each and particular case neces-

Marie Curie Fellow at the University of Edinburgh. Funding for this researchhas been provided by the European Community, under a Marie Curie Fellowship,programme Human Potential, contract number HPMF-CT-2001-01171. I wishto express my indebtedness to Zenon Bankowski, Francesco Belvisi, EmiliosChristodulidis, Massimo La Torre and Dennis Patterson for their helpful remarkson previous drafts of this essay. Yet I am solely responsible for the viewsexpressed herein.

1 With the words of Jeremy Waldron: law can be understood in terms of rulesand standards whose authority derives from their provenance in some humansource, sociologically defined, and which can be identified as law in terms ofthat provenance. Thus statements about what the law is whether in describing alegal system, offering legal advice, or disposing of particular cases can be madewithout exercising moral or other evaluative judgement (Waldron, Jeremy, TheIrrelevance 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 interpre-tation thesis is apparently at odds with the social thesis: sinceinterpretation is essentially evaluative namely, its standard andfamiliar forms at least rely on evaluative considerations, as evenlegal positivists concede nowadays the idea that law is alwaysa result of interpretation entails that determining what the law isalways involves considerations about what it ought to be, which isprecisely the negation of the social thesis.3 Hence, the social thesisand legal positivism are irreconcilable with the interpretation thesisand interpretativism (the legal approach based on the interpretationthesis): to the extent that the former pair is acceptable, the latter isbound to prove untenable, and vice versa.

For this reason, legal positivists have subjected the interpretationthesis to careful scrutiny. In the attempt to disqualify this thesis,some of them have invoked Wittgensteins later thought, and inparticular his rule-following considerations. The positivist argu-ment from Wittgenstein was first put forward by Andrei Marmor;4Timothy Endicott5 and Martin Stone6 accepted it substantially,clarifying and widening its scope; and, then, Marmor7 returned toit and made it richer with detail. The argument aims to show that

2 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 andAleksander Peczenik are among them, to name but a few. Because they all acceptthe interpretation thesis, I will refer to them collectively as interpretativists,despite the significant differences of detail and emphasis in their approaches.It will be stressed, however, that my argument does not stand or fall on thiswide definition of interpretativism alone: I am criticising a line of reasoning,not classifying the contributions of a number of legal theorists in function of theinterpretation 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 andPhilosophy 13 (1994), pp. 451479.

6 In this regard, see Stone, Martin, Focusing the Law: What Legal Interpreta-tion is Not, in Andrei Marmor (ed.), Law and Interpretation (Oxford: Clarendon,1995), pp. 3196.

7 See Marmor (2001, pp. 7188).

THE POSITIVIST MISUSE OF WITTGENSTEIN 515

the interpretation thesis is inconsistent with the account of rule-following found in Wittgensteins later philosophy, and hence thatwe have to renounce this philosophy if we want to make a case forinterpretativism. But the philosophy we are asked to renounce isquite significant, so the argument from Wittgenstein, if tenable, willprove to be a powerful and persuasive weapon that legal positivismcan wield against interpretativism.

In this paper, I introduce and criticise the positivist rebuttal of theinterpretation thesis grounded on the later Wittgensteins considera-tions as to how a rule is followed. Section II reconstructs and sortsout the details of the positivist argument. I point out here that myconcern is not with just any proposed use of later Wittgensteinsrule-following considerations, but with a given line of reasoningwhich has attracted some positivists. This reconstruction will serveas a premise for a sustained rejection of the positivist argument fromWittgenstein. In my refutation, I make two points. First, I observethat the positivists, in the argument they advance, pay little atten-tion to the difference between Wittgensteins understanding of theopposition interpretation vs. rule-following and the legal philos-ophers understanding of it: whereas in jurisprudence interpretationand rule-following have been understood by both positivists andinterpretativists as forms of reasoning, Wittgenstein calls into ques-tion this very assumption and claims that interpretation does pertainto the theoretical sphere, but rule-following is an activity, a prac-tice, not an argumentative process. This difference in approachinginterpretation and rule-following, I submit, is significant and raisesdoubts about the use that positivists make of Wittgensteins philos-ophy. Second, I argue that legal positivists have an incoherenceof their own to work out, since in their challenge to interpreta-tivism they use a concept of rule incompatible with the conceptemerging from Wittgensteins rule-following considerations. There-fore, there is not in the end any kinship between legal positivismand Wittgensteins considerations on rules, but rather a substantialincompatibility.

II. THE POSITIVIST ARGUMENT FROM WITTGENSTEIN

The argument from Wittgenstein was first sketched by Marmor. Hedrew on Wittgensteins rule-following considerations for his critical

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analysis (not of the interpretation thesis but) of the debate betweenHerbert Hart and Lon Fuller as to the distinction between easy casesand hard cases. His argument was that Wittgensteins rule-followingconsiderations can be used profitably 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 mustdetermine its purpose. According to Fuller, determining the purposeof a rule typically requires that we consider what the rule is there tosettle: what a rule is will be decided in the light of its ought.8Thus, in rejecting Harts distinction between easy cases and hardcases, Fuller makes an important general point; namely, that rule-following amounts to a form of interpretation because a rule cannotbe followed without taking into account its purposes (or ought). Inother terms, there is no conceptual difference between following andinterpreting a rule: even in the so-called easy cases to follow a ruleis to determine its purpose, and so to proceed upon an interpretationof it. By so arguing, Fuller commits himself to the interpretationthesis: to the extent that law is based on rule-following, it is alwayssubject to interpretation; that is, to determine what the law is in aparticular case we must perforce do some interpreting.

For these reasons, the attack on Fullers view led Marmor toquestion directly the assumption that to understand a rule we arerequired, among other things, to have a grasp of the rules purpose,and so to interpret the rule. This initial attack, if followed throughcorrectly, turns naturally against the view that law is necessarily aninterpretive practice. But Marmor, at this early stage, mentionedneither the interpretation thesis nor interpretativism, and confinedhimself to discussing Fullers work.

Subsequently, Endicott observed that although Ronald Dworkinnever appears in Marmors discussion of following a rule, it isclear that his discussion is a powerful argument against the claimthat law is an interpretative concept.9 Hence, while Marmoruses the argument explicitly only against Lon Fuller, it shouldbe understood as underlying his attack on interpretative views in

8 See Fuller, Lon, Positivism and the Fidelity of Law A Reply to ProfessorHart, Harvard Law Review 71 (1958), pp. 630672, 665669.

9 Endicott (1994, pp. 465466).


general.10 In other words, Endicotts contribution made it apparentand explicit that Marmors original argument from Wittgenstein canbe worked into a wider statement against interpretive theories oflaw at large. The legal positivists specific interest in Wittgensteinslater philosophy as their weapon of choice against interpretativismfound confirmation in Stones appeal to this philosophy in hiscrusade against various interpretativist theorists, among whomSteven Burton, Drucilla Cornell, and Stanley Fish.11 In the latestdevelopment, Marmor returned to his original argument againstFuller and mounted an all-embracing rebuttal of interpretativism.12Here, Marmor not only accepted substantially Endicotts extensionof the original argument, but also developed this argument furtherand added detail to it.

Marmor sets up his argument from Wittgenstein as follows. Tosupport the thesis that understanding a rule and following a rule arenot necessarily purposive practices, because they do not consist in,and are not mediated by, imposing an interpretation upon it,13 heinvokes the later Wittgensteins rule-following considerations. Here,Wittgenstein argues that understanding a rule consists in or rather,bears affinity with our ability to specify under normal circum-stances what actions are in accord with the rule and so what actionsgo against it. On this view, someones following a rule is exhibitedby this person obeying the rule. Conversely, says Marmor seekingsupport in Wittgenstein,14 interpretation is just another formulationof the rule, substituting one rule for another.15

This is to say that following a rule is conceptually different frominterpreting a rule: to decide what acts are in accord with a rule andto reformulate a rule are distinct behaviours. The former requiresone to establish a connection between language (the formulation ofthe rule) and the world (the actions in accord with the rule); the latterconsists in associating two different, but synonymous, formulationsof the rule, thereby effecting a linkup internal to the language. Thus,

10 Endicott (1994, p. 461).11 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, Philosoph-

ical 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 itslanguage for clearer expression: although interpreting a rule canhelp us follow the rule, the two activities are bound up, not by anynecessary link, but only by a possible one. In other terms, rulescan often be simply understood, and then applied, without themediation of interpretative hypotheses about the rules purposes.16To say otherwise is to contend that the application of a rulealways requires its translation into another rule, which is an obviousabsurdity.17 For these reasons, subscribing the interpretation thesisamounts to conflating two conceptually different practices.

Marmor develops further these remarks, and notes that we shouldnevertheless maintain the distinction between understanding themeaning of an expression and interpreting the same expression,making interpretation an exception to the ordinary understandingof a rule, and so an operation parasitic on rule-following and notnecessarily entailed by it.18 The fallacy which the interpretativistconflation of rule-following and interpretation incurs consists inarguing from the indeterminacy of some rules that every instance offollowing a rule is an interpretation of it. On the contrary, interpre-tation must be based on prior knowledge of how to go about usinglanguage and only once we know the meaning of expressions in agiven language can we go about explaining one meaning in terms ofanother.19 Hence, suggesting that interpretation always mediatesbetween an expression and our understanding of the expression issimply incoherent.20

To summarise, the argument states that Wittgensteins remarkscommit us to the view that the understanding and following ofa rule does not necessarily involve interpretation, and that fromthis perspective the notions of understanding an expression (or

16 Marmor (1992, p. 154). See also Marmor (2001, p. 78).17 Marmor (1992, p. 153). The absurdity referred to takes the form of an infinite

regress. As Endicott has it: the notion that an interpretation makes a transitionfrom rule to action in accord with the rule is untenable since if every rule needsan 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).


explaining its meaning), and interpreting it, should not be usedinterchangeably.21 These are grounds on which legal positivismcan distinguish rule-following from interpretation and so reject theinterpretation thesis.

III. WITTGENSTEINS REMARKS ON INTERPRETATION ANDRULE-FOLLOWING

Those who advocate the argument from Wittgenstein ground itentirely on the remarks on rule-following and interpretation foundin Philosophical Investigations, notably in 198201 of this work.Yet, in these considerations Wittgenstein is concerned not with legalquestions, but with longstanding and deep debates on the philoso-phies of mathematics, mind, and psychology. In fact Wittgensteinhas barely anything on legal philosophy, or on practical philos-ophy in general, and these two fields differ markedly from thosehe discourses on. In any such appeal to Wittgenstein, then, one hasto effect some kind of extension, getting Wittgensteins philosoph-ical insights to apply validly to matters apparently extraneous theiroriginal focus.

This difference in subject does not entail that Wittgensteinsconsiderations cannot be applied at all or in any useful way to ananalysis of legal issues. But it does suggest that these considerations,if we are to apply them to legal rules and the way they are followedand interpreted, will have to be somehow refashioned and made totake into account the peculiarities of the legal domain.22 The posi-tivists who advocate the argument from Wittgenstein fail to appre-ciate this difficulty and tend to overlook the differences in focus

21 Marmor (1992, p. 146).22 In like manner, Wittgenstein is particularly attentive to the differences

among linguistic games and to the specificity of distinct domains: in his opinion,crossing language-games and breaking the boundaries of language-games proveoften to be main sources of serious philosophical mistakes and multiple confu-sions. See Wittgenstein (1968, 116117) and Wittgenstein, Ludwig, Remarkson the Philosophy of Psychology, Vol. II (Oxford: Blackwell, 1980), 7071.For a critical analysis of these and other sources of what Wittgenstein pointsout as philosophical mistakes, see Baker, Gordon P. and Peter M. S. Hacker,Wittgenstein: Rules, Grammar and Necessity. An Analytical Commentary to thePhilosophical Investigation, Vol. II (Oxford: Blackwell, 1985), pp. 1522.

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between Wittgenstein and legal theorists. This failure is apparent intheir disregard of the fact that Wittgensteins use of the oppositionbetween interpretation and rule-following differ remarkably from itscurrent use in legal theory, evincing a different meaning as well. Wemay find it of service here to compare Wittgensteins use of thatopposition with the use apparent in the debate between positivistsand intepretativists on the same issue. In this comparison I hope toshow that Wittgensteins remarks on interpretation and rule-follow-ing are extraneous to the debate in legal theory that has pit positivistsagainst interpretativists on the same issues. I submit, then, that legalpositivists commit a fallacy in their bid to make Wittgensteinsremarks do duty in the attack on interpretativism: this is so because,and to the extent that, their extension disallows the specificity ofWittgensteins use of the opposition between interpretation andrule-following and so obscures the implications of such specificity.

Interpretation and rule-following, on both sides of the debatebetween positivism and interpretativism, have thus far been under-stood as forms of reasoning. The interpretativists adopt a broadersense of interpretation, which they take to be any argumenta-tive 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 rulesor other legal criteria.23 On this view, even when we follow a rule, tothe extent that we are not in this fully governed by general standards,we are involved in a form of interpretation. Hence, for the inter-pretativists, no conceptual separation sets these two activities apart:since rule-following, too, consists in deliberative reasoning, it is notconceptually distinct from interpretation.

The legal positivists who proceed upon the argument fromWittgenstein disagree with the interpretativist conclusion: they seethis conclusion as based on a too broad and unjustifiably compre-hensive meaning of interpretation. In the narrower meaningproposed, interpretation is an exception to the standard under-

23 For a similar use of interpretation see, for example, Dworkin, Ronald,Laws Empire (London: Fontana, 1986), p. VI; Alexy, Robert, A Theory of LegalArgumentation (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.


standing of language and communication, as it pertains only tothose aspects of understanding which are under-determined by rulesor conventions.24 Hence, it is wrong to equate the process ofinterpreting a rule with that of following a rule. It is noteworthy,however, that even here, in the positivist approach, interpreting arule and following a rule are both intellectual operations, or forms ofreasoning. The positivists confine themselves to rejecting the inter-pretativist attempt to quash the distinction between interpretationand other forms of reasoning, but they do not call into questionthe argumentative nature of rule-following.25 In other words, thepositivists do concede that rule-following is a type of reasoning a theoretical operation or intellectual process but say that thisprocess is not deliberative and so is conceptually different frominterpretation.

To sum up, in the positivist and the interpretativist camp alike,interpretation and rule-following are considered two forms ofreasoning. But interpretativism pushes this sameness even further,by having the two activities pertain to the same subset (deliberativereasoning) of the kind theoretical activities, whereas positivismmakes them out to be different species of this genus: deliberativereasoning the one, rule-bound reasoning the other.

Wittgenstein is concerned with something altogether different. Inhis considerations on rule-following and interpretation, Wittgensteinchallenges the thesis that every action according to the rule is aninterpretation, where interpretation is defined as the substitu-tion of one expression of the rule for another.26 According toWittgenstein, we need not necessarily interpret a rule to follow it:interpretations by themselves do not determine meaning, sinceany interpretation still hangs in the air along with what it inter-prets, and cannot give it any support.27 Consequently, Wittgensteinargues that there must be a way of grasping a rule which is notan interpretation, but which is exhibited in what we call obeying

24 Marmor (1992, p. 12).25 Marmor (1992, p. 13). Emphasis supplied. The argumentative nature of rule-

following results as well in Marmor (1992, pp. 126127), where it is claimed thatin 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 viewon the argument from Wittgenstein, Wittgenstein is indeed keepinginterpretation separate from rule-following. But he does so in a waywhich proves irreconcilable with the positivist position.

To understand Wittgensteins remarks on interpretation correctlywe will have to set them into the context of his wider philosoph-ical enterprise. These considerations are chiefly designed to confutewhat Wittgenstein sees as misconceived ways of understandingthe practice of following a rule. In this connection, he criticises anumber of ideas and models: the idea that following a rule requiresa substrate of conscious or unconscious mental activities, some-thing akin to neural happenings; the phenomenological or empiricalmodel that equates rule-following with someones acting in accordwith a rule, and so leaves out of account the way agents mightexplain why they act as they do; the idea that to follow a ruleis to call up a mental image or a general formula instructing onehow to respond to particular instances of the rule; and, lastly, theconception that all future applications of a rule are determined at theoutset, once and for all, in the rules formulation.29 These concep-tions connect up with some more general theories that Wittgensteinargues to be wrong, such as intuitionism; the conception ofunderstanding as a mental experience, or a neurophysiologicalmechanism, a neuronal state; and the mind/body distinction ground-ing the dualistic conception of the human being.30 In their turn,these broader views are expressions of an even more general philo-sophical approach, intellectualism. Thus, Wittgensteins focus onrule-following is part and parcel of his wider effort to expose, in allits workings and ramifications, the modern intellectualist traditionthat Descartes introduced into Western philosophy.31

28 Wittgenstein (1968, 201).29 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 philosophicalcul-de-sac of monological consciousness (Taylor, Charles, Philosophical Argu-ments (Cambridge: Harvard University Press, 1995), p. 169). For further remarks


As Taylor argues, intellectualism in this sense can be summed upbroadly 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 intellectu-alism in general, the self is a res cogitans, a thinking being possessedof reason and qualitatively different from the rest of the world,namely, facts and other creatures (which, by contrast, are consti-tuted of res extensa).33 Thus, on this view thoughts have primacyover actions: it is thought, the Cartesian cogito, that guaranteesthe subjects existence; it is the intellectual experience that makeshuman beings different from all other forms of life; it is by wayof mental activity that we can secure objective foundations forour knowledge; finally, it is thanks to mental representations thatwe comprehend and come into contact with the world outside.For these reasons, actions and empirical experiences are viewed asparasitic on and subordinate to thoughts and intellectual appraisalsof phenomena. The latter, rather than the former, are primary andbeyond doubt: knowledge is an activity of mind and so a substan-tially private affair. By the same token, understanding is conceivedof as a theoretical or intellectual operation on external data, not asan action, as a practical activity.

Wittgenstein is concerned to show that intellectualism, thoughdeeply entrenched in Western philosophy, proves untenable. Inconsequence, the primacy of thought that comes with it is likewisemisleading and illusory. In Philosophical Investigations, sections143 to 184 (focused mainly on meaning and understanding) and 185to 242 (focused mainly on following a rule), he sets out his argumentfor the pre-eminence of deed praxis or action over thought. Atthe same time as he takes down the intellectualist concept of humanbeing 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 andIllusion (Oxford: Clarendon, 1986), pp. 276306.

32 Taylor (1995, pp. 168170).33 Descartes expressed this conception effectively in his statement, I am there-

fore, 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 apractical rather than theoretical operation. Following a rule doesnot consist in being at work to reason, whether deliberatively orstraightaway, how particular cases fit into a general pattern. Rather,to follow a rule is to use the rule in actual circumstances, to manifestin practice the normative ability of using the rule correctly incontrast to interpretation, which is precisely a theoretical process,an intellectual appraisal of a rule.

It emerges from this reconstruction that when Wittgensteincompares interpretation with rule-following, he is looking at therelationship between two processes of different genera, not only ofdifferent species: a theoretical activity on the one hand (interpreta-tion) and a practical activity on the other (rule-following). Hence,unlike legal theorists, positivist or interpretativist, Wittgenstein isnot comparing two (arguably) different forms of reasoning onrules; nor he is interested in maintaining a distinction between twoargumentative ways of understanding a rule, the one direct andimmediate, the other deliberative and discretionary. Legal theoristsfocus on two processes they regard as theoretical, and then go onto discuss whether these two are conceptually different or identical.Wittgenstein, in contrast, draws a more radical opposition betweenreasoning and acting, and in so doing outlines a third position notreducible to either the interpretativist view or the positivist theory.

In jurisprudence, this further view, irreducible to legal positivismor to interpretativism, has been upheld and defended by DennisPatterson. In a recent article, he argues that an adequate treatment ofnormativity in law compels us to dispense with the two approachesto this issue now dominant in philosophical and jurisprudentialliterature, that is, subjectivism and objectivism.34 In Pattersonsreading, the attempts that subjectivism and objectivism have thusfar made to explain normativity are wanting, and they are so forthe same reason, i.e., because they both adhere to the fundamentalthesis that rule-following is an operation of mind, an intellectual ortheoretical process.35 This intellectualistic approach, the one taken

34 See Patterson, Dennis, Normativity and Objectivity in Law, William andMary Law Review 43 (2001), pp. 325386, 326330.

35 As a matter of fact, Patterson writes that despite their differences, objec-tivism and subjectivism share one fundamental: each theory adheres to the


by interpretativism and positivism, too, similarly prevents subjec-tivism and objectivism from arriving at a correct understanding ofnormativity in law. Hence, Patterson urges that we break free ofthe existing debate, grounded as it is on a misleading premise,and take a fresh start.36 Pattersons alternative approach, which runsalong the lines of Wittgensteins philosophy, is centred on the insightthat rule-following is not a mental phenomenon and that norma-tivity is located not in theoretical sphere, but in deed and action,and specifically social action.37 This is not the place to discussthe merits and demerits of Pattersons contribution:38 my refer-ence to it serves only to show that an approach to jurisprudence ispossible which proceeds upon Wittgensteins idea of rule-followingas an activity, rather than a theoretical phenomenon, and that acoherent development of Wittgensteins remarks on interpretationand rule-following proves inevitably at odds with both positivismand interpretativism.39

To summarise, a coherent use of Wittgensteins remarks onrule-following commits us to a position inconsistent with inter-pretativism and legal positivism, both. My argument, therefore, isthat we cannot, without falling into serious error and manifesting apatent one-sidedness, use Wittgensteins rule-following considera-tions to confute interpretativism and at the same time defendpositivism, because neither stance is compatible with Wittgensteins

thesis that rule-following is an operation of mind (Patterson 2001, p. 351). Ofcourse, objectivism and subjectivism draw opposite implications from this sharedpremise: objectivism searches for the means by which disparate applications ofa rule (or concept) can be said to be applications of the same standard, whereassubjectivism despairs of ever finding the Holy Grail of objectivism and resort toindividual and collective subjectivity to explain the phenomenon of rule-followingand, 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 incompat-ible with both the positivist and that interpretativist views. Thus, I will not alsoevaluate whether and to what extent the attempt to explain legal interpretation andrule-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 hisarguments against interpretativism, see Patterson (1996, pp. 71127).

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

IV. THE NOTION OF A RULE IN LEGAL POSITIVISM AND INWITTGENSTEINS LATER PHILOSOPHY

It was argued in the previous section that the positivist argu-ment from Wittgenstein rests on serious misunderstandings ofWittgensteins rule-following considerations. Now, we can substan-tiate this claim even further if we only look at the conceptualimplications that the positivist reading of Wittgensteins considera-tions carries for the concept of rule. More to the point, the positivistreading seems to carry us into a notion of rule incompatible withWittgensteins.

On the legal positivist stance, there need not be any form ofdeliberative reasoning involved in following a rule: a rule is under-stood instanter, with no evaluative appreciation or turning issuesover in the mind. There is at work here a specific concept of rule asa standard that guides peoples behaviour and justifies their conduct.A rule so conceived typically performs a twofold function: it guidesfuture actions and sets for these actions a standard of correctness.Thus, on the one hand a rule says what ought to be done and onthe other why it ought be done.40 But rules cannot perform thisdouble task unless the standard they set is given a fairly fixed andstable meaning. According to this image call it the concept ofrule as formulation the core meaning of a rule is settled bythe meanings of its constituent words.41 Moreover, these words areassigned standard instances or meaning fixed in general and context-independent ways. As a result, the content of a rule is predeterminedfor all the standard applications of the rule in the future, independ-ently of the use a community makes of the rule on particularoccasions. In a coherent positivist perspective, then, the meaning of

40 This view can be found in Raz, Joseph, Practical Reason and Norms(London: Hutchinson, 1975), pp. 4984; and Jori, Mario, Il formalismo giuridico(Milano: Giuffre`, 1980), pp. 46 and pp. 9091, among others.

41 Marmor (1992, pp. 125126) makes this an explicit statement: the formula-tion of legal rules in a natural language makes their meanings depend, primarily,on the meanings of the concept-words used in these formulations.


a rule is, at least under standard conditions, considerably constantand determinate for all the cases the rule is applied to.

What this comes down to is a reification of the rule, since therule is seen as something that imposes constraints upon actions ina relatively objective and fixed way independent of actual prac-tices. On this view, rules are depicted as substantially establishedand stable schemas having an objectified content. Like a universalformula or a not-malleable generalisation, a rule governs partic-ular situations and dictates specific behaviours, but it is not in turnaffected by these situations and behaviours. This is to say that aunidirectional relationship exists between rules and the cases theyapply to: the rule determines the behaviour to be held, and thecase has no bearing upon the content of the rule. A rule is insensi-tive and impervious to the peculiarities of the case governed: theselast cannot in any way amend, clarify, or fine-tune the rule theyare governed by. It is therefore inconceivable, from a positivistperspective, that the content of a rule should be recast or rephrasedas to enable us to apply the rule to match the specificities of anynon-standard cases, those unaligned with the initial formulation ofthe rule but clearly encompassed by its underlying justification. Forpositivism it would simply be wrong to claim that the particularcircumstances a rule applies to contribute to shaping its content.

Arguably, by so framing the concept of rule legal positivismseeks to secure for the law understood chiefly as a body of rules the highest degree of certainty and predetermination there is tobe had. This certainty of law is thought possible only to the extentthat a rule can function as a general standard entrenched in someencapsulatory form and not susceptible of being changed in theapplicative stage, and to the extent that rule-following can be madeto consist in imposing such an abstract standard upon specific caseswithout recurring to unrestricted deliberative reasoning. Thereforethis concept of a rule as a formulation springs from a wider effort toachieve 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 Wittgensteinproceed upon the reading of his rule-following considerations thatGordon 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 Hackerreconstruct Wittgensteins view on rules taking issue with the so-called community view.43 Whilst the community view maintainsthat what counts as a correct application of a rule is determinedcompletely by what the community of users takes the rule to be,Baker and Hacker claim that in Wittgensteins thought the rela-tion 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, first, a rule and its application cannot be consideredindependently of each other, and second, what is correct accordingto the rule does not consist in what a given community of usersregards as correct.45 A rule, it is claimed, is not determined by itssocial appraisal: a rule determines social behaviour but is not shapedby it. Working from these premises, the legal positivists who takeup the argument from Wittgenstein argue that his later philosophy isperfectly coherent with their own concept of a rule as a formulation.

Baker and Hackers analysis of Wittgensteins rule-followingconsiderations is, I believe, correct to some extent and finds much

42 These are frequently referred to by Marmor (1992, pp. 150151) forexample.

43 This view originates from the reading of Wittgensteins rule followingconsiderations put forward by Saul Kripke. See Kripke, Saul, Wittgenstein onRules and Private Language (Oxford: Blackwell, 1982). The question that Kripketurned to was what makes the rules work, and the ensuing debate drew manyphilosophers. The essential contributions are from Baker, Gordon P. and PeterM. S. Hacker, Scepticism, Rules and Language (Oxford: Blackwell, 1984),pp. 155; Baker and Hacker (1985, pp. 154181); Blackburn, Simon, TheIndividual 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, CriticalNotice to Wittgenstein on Rules and Private Language, Philosophical Review93 (1984), pp. 263271; Wright, Crispin, Kripkes Account of the Argumentagainst Private Language, The Journal of Philosophy 81 (1984), pp. 759778;Anscombe, Gertrude E. M., Wittgenstein on Rules and Private Language, Ethics95 (1985), pp. 342352; Malcom, Norman, Nothing is Hidden. WittgensteinsCriticism of His Early Thought (Oxford: Blackwell, 1986), pp. 154181; andMalcom, 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).


support in Wittgensteins later writings. In particular, Baker andHacker are right to point out that Wittgenstein does not understandthe content of a rule to depend completely upon what the communityof users maintains about this content. Indeed, for Wittgenstein, theconcept of a rule differs from that of an empirical generalisation,and for this reason the meaning of a rule does not coincide withthe meaning most people think it has: the opinion most widespreadamong the members of a group is not the final court of appeal whenit comes to determining the content of a rule they follow, nor cantheir general behaviour be held up as the ultimate criterion for thecorrect application of the rule.46

Still, these views do not warrant the conclusion that Wittgensteinunderstands a rule to be a general and abstract formulation whosecontent in standard cases is totally predetermined independent ofthe rules application and so of its social use as legal positivistsclaim it to be. Baker and Hackers idea of a grammatical relationbetween a rule and its application is a way forward with respect to asceptical reading of Wittgensteins later philosophy, to be sure. But,as Meredith Williams observes, the idea is not entirely without prob-lems.47 There is nothing amiss in the minimal understanding of thegrammatical relation as meaning that a rule and its application arenot independent, and so that the grasping of a rule and the followingof it are two inseparable operations. The idea becomes puzzling andless perspicuous, however, when meant in a strong sense, as Bakerand Hacker still seem to do, and as the legal positivists need to doif they are to support their concept of a rule as a formulation. Inthis strong sense, the grammatical relation found to exist betweenformulating and following a rule is such that the meaning of therule precedes and is independent of its future uses or applications.Contrary to what Baker and Hacker maintain, this strong sense ofthe concept of grammatical relation commits us to the idea that each

46 As Williams puts it, in applying a rule we are blind to the communityin that we act and judge without checking with others (Williams, Meredith,Wittgenstein, Mind and Meaning (London: Routledge, 1999), p. 183). We mighteven say here that a rule is distinct from its social use, provided we understandthis statement in a strict sense to mean exclusively that the correct application ofthe rule is autonomous and different from what most users maintain about thisapplication.

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 rebuttalof the thesis that the meaning of a word can be grasped in a flash.48Thus, for him, to go with this strong version of the grammaticalrelation is to incur a serious mistake, which consists in havingrecourse to a philosophical superlative, a super-expression ormodel a mysterious phenomenon not clearly accounted for in theeffort to explain the nature of rule-following. Unless the notion ofgrammatical relation is spelled out, it threatens to become anothercandidate for a philosophical superlative, one of the polemicaltarget of Wittgensteins investigation.49

Baker and Hackers analysis does a valuable service in criticisingthe sceptical readings of Wittgensteins remarks on rule-following,but it fails to grasp adequately the conceptual scope of rule-following and explain it without falling back on an even moreconfusing and hidden notion. If, on Baker and Hackers position,we conclude, in the manner of legal positivism, that the content of arule is independent of the way we follow the rule, we will come outwith a distorted picture of Wittgensteins notion of a rule, and willhave Wittgenstein commit one of the philosophical errors he himselfwas looking to expose. So, while I agree that for Wittgenstein thecommunitys opinion about what the rule is is not the rule itself because the rule is not entirely fixed by its social use I disagreewith the assertion that for him rules stand completely apart from theway they are understood in society. In Wittgensteins later philos-ophy a rule, even if not completely determined by its social use, isviewed at least in part as a social construction.

This partly social nature of rules emerges from several passagesin Wittgensteins later work which yield a concept of rule differentfrom that put forward by legal positivism. Wittgenstein, in hisconsiderations on rules, does not only claim that obeying a rule is apractice.50 He claims as well that the meaning of a word, and so of

48 See Wittgenstein (1968, 138139 and 191192).49 I refer to Williams (1999, p. 166).50 As Baker and Hacker rightly observe, to claim that rule-following is a prac-

tice is not yet to claim that it is necessarily a social practice. The claim merelysays that rule-following partakes of a practical rather than theoretical nature: thatit is an act rather than a thought. So it would be wrong to take Wittgensteinsstatement that rule-following is a practice to mean that applying a rule is a social


a rule, depends on the regular use of it: the meaning of a word is itsuse in the language.51 Wittgenstein therefore establishes a directconnection 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 itis the criterion for the way a rule is meant.52 The use referred to hereis not a private use, the use a single person believes appropriate forthat rule. For when Wittgenstein refers to use he means a shared,or public, use, a social custom under which a word or a rule isregularly employed.53 Thus, for Wittgenstein a rule (its content) andthe mode of following of it relate to a common practice, and to awider context than that of the single act by which the following ofa 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 isnot only a practice: it is also, and prominently, a social practice.

Williams has argued this point at length: it is her claim that theidea of normativity requires a socially structured context, a groupof individuals who interact. So, the notion of rule-following, too,presupposes a context of structure, and that is provided by theactual harmonious interactions of a group of people . . . that is,the dynamic interactions of a group of people in sustaining certainregularities, customs and patters of actions over time.54 In thissense, rules are inescapably embedded in the social fabric sinceit is the existence of a social practice which provides the neededframework within which the rule can be understood (i.e., its mean-ings determined) and followed. A rule can exist only against thebackground of a group and a group practice. The social and regularuse of a rule is the necessary context without which the rule can beactivity, and so that application depends entirely on an agreement among the usersas to how the rule ought to be obeyed. Still, I will argue in what follows thatWittgenstein, in his remarks on meaning and use, does not confine himself todefining rule-following as a practice: he makes a step further and recognises thatrule-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 theFoundations of Mathematics (Oxford: Blackwell, 1978), p. 334. For a recentdetailed 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, occur-ring outside the context. An individual alone hasnt the resourcesfor creating the context within which actions can be correct orincorrect:55 the community, and nothing else, provides the logicalspace for an array of alternatives in terms of which a rule can besaid to be followed.56

Williams calls this stance the social view, to distinguish it fromthe radical community view.57 The two views are joined by thethesis that rule-following is connected with the regular and publicuse of a sign, and that it makes no sense to say of rules, and so rule-following, that they exist outside a social setting. Also common tothe social and the community views is the thesis that communityagreement on how the rule is to be used plays a role in shapingthe meaning of the rule itself. But the claim that rule-followingrequires an agreement or harmony in action and judgement within agroup does not entail the claim that the rule is what the majority ofpeople think it is, as the community view argues. If the communityis the context out of which rules cannot be said to exist, it still isnot the ultimate measure by which to determine the rule and itscontent, the reason being that conventional practice is not the onlyfactor involved in fixing the meaning of a rule: we have stand-ards only in virtue of group harmony and against the backgroundof 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 givencommunity enables each individual to determine the content of therule: the community as a whole, namely, the majority of users, hasno privileged access to the content of the rule. Thus, the bulk ofpeople are just as likely as the single person to misuse a rule: there

55 Williams (1999, p. 187).56 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 wellas creating new practices of rule-following: this they can do in virtue of theirnotional membership in a given community. In other terms, living outside societyis not a problem so long as the individuals so situated maintain at least an indirectlink with this social structure, in the sense that they continue to follow the patternsand the practices learnt and assimilated when they lived in this society.

57 Williams (1999, p. 6).58 Williams (1999, pp. 176177), original emphasis.


is no such thing as a public or community check on the correctway to go about obeying a rule. It may even happen that the entirecommunity, that is everybody, is following a rule erroneously. Thisway, the thesis that rule-following partakes of a social nature doesnot preclude the possibility of a large-scale or even global error inapplying rules. This reading of Wittgensteins remarks enables usto account for the social nature of rule-following without runninginto the sceptical paradox inherent in the community view. In fact,the social view is not a reductionist theory: it says that a rule canbe followed only within a social framework, and that the content ofthe rule is thereby affected, but not that the social framework is theexclusive determining factor in this process of content-shaping.

The social view carries the thesis that a rule does not completelyprecede its use: the content of a rule is not something that can beobjectified and appraised independently of our taking part in socialpractices. If the meaning of a phrase for us is characterised by theuse we make of it,59 then the content of a rule is not completelyindependent of the way the rule is applied: the idea that the contentof a rule is shaped (in part at least) by its social use as a normativestandard of behaviour says in essence that the application of the ruleand its formulation concur in bringing out its actual meaning andscope. Meaning and scope are not determined solely by the uniformapplication 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 inthe practice it governs, and its definitive content results from aninteraction between its general formulation and the specific circum-stances the rule is applied to. For which reason particular caseswork their way into the rule, affecting content as well as use (theway the rule is followed). A rule cannot be depicted as a generalstandard unresponsive to the specificity of the cases which it regu-lates. As Wittgenstein puts it, we tend to make up the rules as wego along and to alter them as we go along:60 a rule is a directivesusceptible of being reshaped, further conceptualised, and clarified

59 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 changesits formulation, the way the rule is followed its social use canchange at any time, whenever a specific case brings to light this orthat problem calling for a solution under the same rule. The effecta particular case will have on a general rule can be minimal, andit usually is. Even so, however minimal this influence may be, itstill entails, contrary to what the positivist view argues, that a two-way relationship obtains between the formulation of a rule and itsapplication to concrete circumstances: if we are to be coherent withWittgensteins philosophical enterprise, we should have to say thatthe meaning of a rule is modified, fine-tuned, and to a given extentdetermined by its application.

To put it otherwise, what emerges from an analysis ofWittgensteins later thought is that the practice of rule-followingcan to some extent proceed by trial and error; the possibility oferror is never absent, since the content of a rule depends in part onthe context of its application and on the particularity of the singlecase. This also suggests that rule-following gives effect a two-wayrelationship between the general rule (its abstract formulation) andthe specific (concrete) behaviours which accord with it: if, on theone hand, our behaviour is governed and determined in advance bythe general rule, on the other hand, the same behaviour affects thecontents of the rule and contribute to shaping that content more orless imperceptibly. So, when we follow a rule, when we take partin the social practice of obeying a rule, we contribute to forgingthe meaning of the rule, thereby extending or restricting its originalcontent.61

The burden of these observations is that a rule, on the conceptof it emerging from Wittgensteins later work, is not completelyreducible to its linguistic formulation; the legal positivist readingof that work produces the concept of a reified rule, and so a conceptincompatible with Wittgensteins notion of rule. For Wittgenstein,a rule is nothing like a general unchangeable formula to be put

61 Thus, in a perspective coherent with Wittgensteins philosophy we will haveto say that the reasoning involved in following a rule is anything but entirelyrule-bound: rule-following requires a high degree of insightful understanding,the ability to appreciate the relationship between the rules general formulationand the specificity of the cases to be governed. The expression high degree ofinsightful understanding is Taylors (1995, p. 177).


into effect squarely and plainly, a linguistic formulation whosemeaning is determined entirely by its constituent words, as legalpositivists argue. It is rather a stratified complex of uses and appli-cations, always under construction (or potentially so), fluid, and everchanging with slight but constant improvement, such as enables therule to accommodate particular circumstances not initially providedfor in the general statement. This notion of rule finds a vivid expres-sion in the image that Wittgenstein uses to convey the nature oflanguage in general; this is the image of an ancient city: a maze oflittle streets and squares, of old and new houses, and of houses withadditions from various periods; and this surrounded by a multitudeof new boroughs with straight regular streets and uniform houses.62In short, an analytical perspective coherent with Wittgensteins laterphilosophy will have to provide an account of rules altogetherdifferent from that put forward by legal positivism.

To conclude, the positivist appeal to Wittgenstein is somethingof a paradox, since it ends up controverting the position of its ownadvocates. On the one hand, the positivists appeal to Wittgensteinsrule-following considerations is faulty because based on a misuse ofthe opposition between interpretation and rule-following drawn byWittgenstein; on the other, the same appeal leads to a concept of ruleradically different from the concept central to legal positivism itself.All of which makes for a strong argument against positivism (aswell as interpretativism): arguing from Wittgensteins philosophycan hardly be conceived of as a tenable strategy in support of legalpositivism.

Marie Curie FellowSchool of LawUniversity of EdinburghOld College, South BridgeEdinburgh EH8 9YLUKE-mail: [email protected]

62 Wittgenstein (1968, 18).

Bertea - Remarks on a Legal Positivist Misuse of Wittgenstein's Later Philosophy

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