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The Application (and Mis-Application) of Wittgenstein’s Rule-Following Considerations to Legal Theory

Published online by Cambridge University Press:  09 June 2015

Brian Bix
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Wittgenstein’s writings on “rule-following” remain an important—and sharply contested—part of his later thought. The reference to “rules” in those writings was both broader and more basic than the use of that term in most discussions of practical reasoning or legal theory. Wittgenstein’s use of “rule” refers to all normative constraints which apply over an indefinite variety of cases, to practices where our actions might be said to be guided, to situations where characterizing actions as “correct” or “incorrect” makes sense. However, “[h]e aimed not to write a book on rules but to examine specific problems arising out of insights into the normative nature of a language, of logic and of reasoning.” He focused in particular on normative practices that on the surface do not seem troubling or difficult to understand: for example, using a word correctly, understanding a signpost, and continuing a simple mathematical series. In such examples, the interesting question is not whether a particular response or continuation is right or wrong; Wittgenstein specifically chose examples where there would be consensus on that issue. Wittgenstein’s question is what is it about the rule or about ourselves which makes our responses right or wrong (or which justifies us in reaching that evaluation)?

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 2 , July 1990 , pp. 107 - 121
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Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

I wish to thank Joseph Raz, Gordon Baker, Simon Blackburn, David Helman and Alan Thomas for their helpful comments on earlier versions of this article.

1. Baker, G.P. & Hacker, P.M.S. Wiltgenstein: Rules, Grammar, and Necessity at 39 (Oxford: Blackwell, 1985).Google Scholar

2. See Wittgenstein, L. trans. Anscombe , G.E.M. Philosophical Investigations ss. 143-242(New York: MacMillan Company 1953).Google Scholar

3. Kripke, S. Wiltgenstein on Rules and Private Language (Oxford: Blackwell, 1982);Google Scholar see, e.g., Yablon, CM. “Law and Metaphysics” (Book Review) (1987), 96 Yale Law Journal at 613.CrossRefGoogle Scholar At one point in his book, Kripke hedges regarding the extent to which the argument he elaborated was actually Wittgenstein’s. Kripke, id., at 5. At other places, he is more confident about the ascription. See, e.g.,id., at 70-71. My view is that Kripke’s reading does not accurately reflect Wittgenstein’s position, and that Wittgenstein’s actual position is superior to the one Kripke (more or less) ascribes to him. While I will in passing offer arguments to support both of these assertions, it is not my purpose in this paper to go into these disputes in any depth. See also infra n. 10.

4. See Kripke, S. Wittgenstein on Rules and Private Language, supra n. 3 at 70–71.Google Scholar

5. Yablon, CM. “Law and Metaphysics”, supra n. 3 at 628 Google Scholar (footnote omitted).

6. See Wittgenstein on Rules and Private Language, 11–13, 77-78, 84-93;Google Scholar see, e.g., Yablon, CM. “Law and Metaphysics”, 632;Google Scholar cf.Philosophical Investigationssupra n. 2, s. 201 :

This was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule. The answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it. And so there would be neither accord nor conflict here.

(However, s. 201 continues: “It can be seen that there is a misunderstanding here ....”)

7. See Wiltgenstein on Rules and Private Language at 90–98, 110-112;Google Scholar see, e.g., Yablon, CM. “Law and Metaphysics”, supra n. 3 at 632–636.Google Scholar

8. See, e.g., Yablon, CM. “Law and Metaphysics”, supra n. 3 at 632–636;Google Scholar Yablon, CM. “The Indeterminacy of the Law: Critical Legal Studies and the Problem of Legal Explanation” (1985), 6 Cardozo Law Review 917, 918–920, 929-945;Google Scholar Tushnet, M. Red, White, and Blue (1988) at 54–56, 60-69.Google Scholar

9. See, e.g., Yablon, CM. “Law and Metaphysics”, supra n. 3 at 632–636.Google Scholar

10. It is very hard to find a Wittgenstein Scholar who is in substantial agreement with Kripke’s reading. For contrary readings, see, e.g., McDowell, J. “Wittgenstein On Following a Rule” (1984), 58 Synthese 325;Google Scholar Blackburn, S. “The Individual Strikes Back” (1984), 58 Synthese 281;Google Scholar Baker, CP. & Hacker, P.M.S. Scepticism, Rules and Language (Oxford: Blackwell, 1984);Google Scholar McGinn, C. Wittgenstein on Meaning (Oxford: Blackwell, 1984) 59–92;Google Scholar Goldfarb, E. “Kripke on Wittgenstein on Rules” (1985), 82 Journal of Philosophy 471;Google Scholar Malcolm, N. Nothing is Hidden (Oxford: Blackwell, 1986) at 154–181;Google Scholar Pears, D. The False Prison, Vol. 2 (Oxford: Clarendon Press, 1988) at 463–501;CrossRefGoogle Scholar Lewis, A. “Wittgenstein and Rule-Scepticism” (1988), 38 Philosophical Quarterly 280.Google Scholar

One note of caution: Wittgenstein’s ideas in the Philosophical Investigations, supra n. 2, including the material on rule-following, is presented in short passages which are often aphoristic or cryptic. To read a particular argument or viewpoint into these comments requires an implicit or explicit filling out of details and clarification of ambiguities. The interpretation I present is by no means the only tenable one. However, it does coincide generally with those given by Peter Hacker, Gordon Baker, David Pears, John McDowell, Colin McGinn, and Simon Blackburn, among others (who, whatever their disagreements about other aspects of Wittgenstein scholarship, are in consensus or near-consensus regarding the aspects of rule-following relevant to my discussion).

11. See Philosophical Investigations, supra n. 2, s. 192.

12. Simon Blackburn notes that Wittgenstein would not have expressed the point in those terms. See Blackburn, “The Individual Strikes Back” (1984), 58 Synthese 281, 285.Google Scholar As an alternative more congenial to Wittgenstein’s approach, Blackburn offers: “taking a term in a certain way is something different from presenting anything as an aid to understanding it, or from accepting anything as aids to understanding it.” Id., at 288.Google Scholar

13. See Wittgenstein on Rules and Private Language, supra n. 3 at 61–69.Google Scholar Crispin Wright has pointed out that Kripke’s reading of Wittgenstein inverts the focus of Wittgenstein’s discussions. Kripke’s Sceptic has us wondering how we could know what rule we are or had been following, wondering, in fact, about “the very existence of rules and rule-following”. Wright, C. Critical Notice, (reviewing McGinn, C. Wittgenstein on Meaning, supra n. 10, (1989)), 98 Mind 289, 303.Google Scholar By contrast, Wittgenstein was actually concerned with “the nature and epistemology of rule-following”—that is, how we can know what a rule requires of us in a particular situation. Id.

14. Philosophical Investigations, supra n. 2, s. 201.

15. Pears, D. The False Prison, Vol. 2, supra n. 10 at 432.Google Scholar

16. See Philosophical Investigations, supra n. 2, ss. 185-187.

17. See Wittgenstein, L. Tractatus Logico-Philosophicus (London: Routledge and Kegan Paul, 1951), s. 6.51:Google Scholar

Scepticism is not irrefutable, but obviously nonsensical, when it tries to raise doubts where no question can be asked.

For doubt can exist only where a question exists, and an answer only where something can be said.

18. Philosophical Investigations, supra n. 2, s. 217.

19. Baker, CP. & Hacker, P.M.S. Scepticism, Rules and Language, supra n. 10 at 85;Google Scholar see also id., at 78: If the question is: “What do you mean by ‘W’?”, then it is fully answered by an explanation of meaning (hence without reference to any community). If the question is “Are you sure that you know what ‘W’ means?” (or “Are you sure that your explanation of what ‘W’ means is correct?”) then it is typically (though not necessarily) answered by “Yes, of course I know what ‘W’ means! I speak English. I have used ‘W’ innumerable times and heard it used innumerable times.” [footnote omitted]

20. Pears, D. The False Prison. Vol. 2 supra n. 10 at 442.Google Scholar

21. See Wittgenstein, L. Zettel (Berkeley: Univ. of Calif. Press, 1967), s. 431.Google Scholar

22. Wright, “Critical Notice” (reviewing McGinn, C. Wittgenstein on Meaning, (1984)) (1989), 98 Mind 289. 297.Google Scholar

23. See Baker, CP. & Hacker, P.M.S. Wittgenstein: Rules, Grammar and Necessity, supra n. 1 at 81–106.Google Scholar

24. Philosophical Investigations, supra n. 2, ss. 185-187.

25. McDowell, J. “Non-Cognitivism and Rule-Following”, in Wittgenstein: To Follow a Rule, Hollzman, S. & Leich, C. eds. (London: Rourledge abd Kegan Paul, 1981) at 149.Google Scholar

26. Philosophical Investigations, supra n. 2, ss. 224-225.

27. See McGinn, C. Wittgenstein on Meaning, (Oxford: Blackwell, 1984)Google Scholar (equating “judgment” with “unreflective and ‘blind’ application of a sign”).

28. See Wittgenstein, L. Anscombe, G.E.M. trans. Remarks on the Foundation of Mathematics rev’d ed. (Cambridge: MIT Press, 1978).Google Scholar

29. See, e.g. philosophical Investigations, supra n. 2, s. 142:

The procedure of putting a lump of cheese on a balance and fixing a price by the turn of the scale would lose its point if it frequently happened for such lumps to suddenly grow or shrink for no obvious reason. C/.L. Wittgenstein, Zeliel s. 351 (1967):

“If humans were not in general agreed about the colours of things, if undetermined cases were not exceptional, then our concept of colour could not exist.” No—our concept would not exist.

For a more detailed discussion of how Wittgenstein saw agreement in judgments and stability in nature work as presuppositions in our ideas, see Baker, G.P. & Hacker, P.M.S. Wittgenstein: Rules, Grammar and Necessity, supra n. 4 at 229–251.Google Scholar

30. Cf. Pears, D. Ludwig Wittgenstein 179 (New York: Viking, 1986):Google Scholar “We could say that this is fortunate, except that this would be like saying that it is fortunate that life on earth tolerates the earth's natural atmosphere. What we ought to say is that there is as much stability as there is.”

31. See Philosophical Investigations, supra n. 2, s. 242, quoted above.

32. It is quoted in Baker, G.P. & Hacker, P.M.S. Wittgenstein: Rules, Grammar and Necessity, supra n. 1 at 258,Google Scholar and labelled “MS 160, 51”.

33. For an overview of how Wittgenstein used the concept of “form(s) of life”, see Haller, R., Questions on Wittgenstein, (Lincoln: Univ. of Nebraska Press, 1988), at 129–136.Google Scholar

34. Haller, R. Questions on Wittgenstein, 130–136.Google Scholar One example of the second usage appeared in Wittgenstein, L. Lectures and Conversations on Aesthetics, Psychology & Religious Belief Google Scholar, Barrett, C. ed. (Berkeley: Univ. of California, Los Angeles, 1978), at 58:Google Scholar “Why shouldn’t one form of life culminate in an utterance of belief in a Last Judgment?”

For an argument that Wittgenstein’s phrase “form(s) of life” referred primarily to cultural rather than biological aspects of human nature, see Baker, G.P. & Hacker, P.M.S. Wittgenstein: Rules, Grammar and Necessity, supra n. 1 at 238–243.Google Scholar

35. Langille, “Revolution Without Foundation: The Grammar of Scepticism and Law”, (1988), 33 McGill Law Journal 451;Google Scholar see also Hutchinson, “That’s Just the Way It Is: Langille on Law” (1989), 34 McGill Law Journal 145.Google Scholar

36. Langille, id., at 452.

37. See id., at 452-475, 486-495.

38. Id., at 498. See also Langille, “The Jurisprudence of Despair, Again” (1989), 23 University of British Columbia Law Review 549: id. at 558 Google Scholar (“the grammar of judicial review”); id. at 560 n.43 (“the grammar”, “the grammar of common law adjudication”); and id. at 562 (“the grammar of constitutional adjudication”). The point is simple: Wittgenstein used the term “grammar” when talking about words and concepts, and it is at best misleading to move that analytical tool to a different set of topics—social practices.

39. See generally Baker, G.P. & Hacker, P.M.S. Wittgenstein: Rules, Grammar and Necessity, supra n. 1 at 34–64.Google Scholar

40. Wolgast, E. The Grammar of Justice (Ithaca: Cornell Univ. Press, 1987), at 10.Google Scholar

41. See Philosophical Investigations, supra n. 2, s. 246.

42. See Zettel, supra n. 21, s. 434.

43. See, e.g.,Philosophical Investigations, supra n. 2, ss. 90, 520.

44. Langille, “Revolution Without Foundation”, supra n. 35 at 497–498.Google Scholar

45. Cf. Wolgast, E. The Grammar of Justice, supra n. 40.Google Scholar

46. Langille, “Revolution Without Foundation”, supra n. 35 at 498.Google Scholar

47. Id., at 499.

48. Philosophical Investigations, supra n. 2 s. 240, quoted above; see supra text accompanying note 24.

49. Blackburn, S. Spreading the Word (Oxford: Clarendon, 1984), at 99 n. 17.Google Scholar

50. Ibid.

51. See Schauer, F. Playing By The Rules: A Philosophical Examination of Rule-Based Decisionmaking in Law and in Life (forthcoming) (Oxford: Clarendon Press, 1991), s. 4.3.Google Scholar

52. See Blackburn, S. “Rule-Following and Moral Realism”, supra n. 25 at 170.Google Scholar

53. Id., 170-171.

54. McDowell, , “Non-Cognitivism and Rule-Following”, supra n. 25 at 160 n.14.Google Scholar

55. Philosophical Investigations, supra n. 2 s. 231; McDowell, “Non-Cognitivism and Rule-Following”, supra n. 25 at 151–152.Google Scholar

56. Philosophical Investigations, supra n. 2 s. 231.

57. McDowell, , “Non-Cognitivism and Rule-Following”, supra n. 25 at 151–153;Google Scholar Fish’s analogous concept is “interpretive communities”, Wittgenstein’s is “forms of life”.

58. Id., 160 n. 14.

59. See, e.g., Bell, , “The Acceptability of Legal Arguments”, in The Legal Mind MacCormick, N. & Birks, P. eds. (Oxford: Clarendon, 1986) at 45–65;Google Scholar Fiss, O.M. “Objectivity and Interpretation” (1982), 34 Stanford Law Review 739.Google Scholar

60. Cf. Philosophical Investigations, supra n. 2 s. 185:

Now we gel the pupil to continue a series (say +2) beyond 1000—and he writes 1000, 1004, 1008, 1012.

We say to him: “Look what you’ve done!”—He doesn’t understand. We say: “You were meant to add two: look how you began the series!”—He answers: “Yes, isn’t it right? I thought that was how I was meant to do it.”—Or suppose he pointed to the series and said: “But I went on in the same way.”—It would now be no use to say: “But can’t you see ....?”—and repeat the old examples and explanations.—In such a case we might say, perhaps: It comes natural to this person to understand our order with our explanations as we should understand the order: “Add 2 up to 1000, 4 up to 2000, 6 up to 3000 and so on.”

Such a case would present similarities with one in which a person naturally reacted to the gesture of pointing with the hand by looking in the direction of the line from finger-tip to wrist, not from wrist to finger-tip.

61. S. Fish, in his analysis of “interpretive communities”, is particularly good in describing these scenarios in which issues seem obvious within a subgroup but highly controversial across subgroups.

62. Gallie, W. “Essentially Contested Concepts”, Proceedings of the Aristotelian Society, Vol. 56 (London: Harrison, 1955–56), at 167.Google Scholar

63. See Dworkin, R. Law’s Empire (Cambridge, Mass: Harvard Univ. Press, 1986) at 87–91.Google Scholar

64. See id., at 87-90.

65. Cf. Gallie, “Essentially Contested Concepts”, supra n. 62 at 168, 180-181.

66. Plato, , Euthyphro 10c-llb, in The Dialogues of Plato, Vol. 1, (New York: Liveright, 1953) at 319–320.Google Scholar

67. See, e.g., Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press, 1961), at 122–123.Google Scholar

68. See Dworkin, R. Law’s Empire, supra n. 63 at 65–66, 87-91.Google Scholar

69. See, e.g., Gallie, supra n. 62, at 175-176.

70. McGinn, C. Wittgenstein on Meaning, supra n. 10 at 146;Google Scholar see also id., at 147 (“we cannot ... make sense of employing a concept with a different content from that originally intended—it would just be a different concept”).

71. Dworkin, R. Taking Rights Seriously (Cambridge, Mass: Harvard Univ. Press, 1978), at 128.Google ScholarPubMed

72. Gallie, “Essentially Contested Concepts”, supra n. 62 at 196.

73. Id., 176.

74. Dworkin, R. Law’s Empire, supra n. 63 at 71.Google Scholar

75. Id. at’43-49, 68-76; see also id., 424-425 n.20 (discussing why this analysis would not work as well with “justice and other higher-order moral concepts“ which have a global claim and no strong connection with any particular community’s practices).

76. Id., at 65-66.

77. Id., at 87-89.

78. Id., at 44.

79. Some might argue that Dworkin’s conflation here of “Law” with “the law” reflects a similar conflation that permeates and defines his approach to legal theory. See Hart, H.L.A. “Comment on Dworkin”, in Issues in Contemporary Legal Philosophy, Gavison, R. ed., (Oxford: Clarendon 1986) at 36;Google Scholar Finnis, J. “On Reason and Authority in Law’s Empire” (1987), 6 Law and Philosophy 357, at 367–370.Google Scholar

80. Rawls, J. A Theory of Justice (Cambridge, Mass: Belknap Press, 1972) at 5.Google Scholar

81. See id.: “no arbitrary distinctions are made between persons … and … the rules determine a proper balance between competing claims”; though, of course, what distinctions are considered legitimate and what is considered a proper balance of claims is left to the various conceptions of the concept of justice.

It would be left open, I believe, for other theorists to argue that there is no necessary or a priori content (or structure) to theories of justice.

82. Johnston, P. Wittgenstein and Moral Philosophy (London: Routledge and Kegan Paul, 1989) at 93.Google Scholar

83. See id., at 95–96.

84. Id., at 96.

85. Id.

86. Id., at 99–101.