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Rules and the Rule-Following Argument

Published online by Cambridge University Press:  09 June 2015

Frederick Schauer
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Extract

Sparked by books by Saul Kripke and Crispin Wright, the last several years have seen a renewal of interest in Wittgenstein’s remarks on rules. A large part of the contemporary discussion centers on what it is to follow a rule, how it is that human beings come to follow them, and what facts, mental or otherwise, determine or explain why some but not other logically equivalent extensions of a rule are deemed to constitute a following of the rule.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 2 , July 1990 , pp. 187 - 192
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

Earlier versions of this article have been presented at the Dartmouth College Department of Philosophy, Washington University Department of Philosophy, and University of Alberta Faculty of Philisophy.

1. References are omitted to protect the guilty.

2. This is not to say that there are not interesting and important issues surrounding the legal-rule-skepticism commonly referred to as Legal Realism. Indeed, if the rule-skepticism of Legal Realism is a claim that legal decisionmakers are not in fact constrained by rules in the way in which they purport to be in their articulated justifications (such as judicial opinions), or a claim that legal decisionmakers are constrained by rules other than the rules they claim constrain them, then it is in many domains true. But if Legal Realism is true, it is because some decisionmakers do not in fact follow the rules they claim to follow, and not because it is impossible to follow a rule.

3. “The meaning of an expression cannot be identified with the object it is used, on a particular occasion, to refer to. The meaning of a sentence cannot be identified with the assertion it is used, on a particular occasion, to make. For to talk about the meaning of an expression or sentence is not to talk about its use on a particular occasion, but about the rules, habits, conventions governing its correct use, on all occasions, to refer or to assert.” Strawson, P.F., “On Referring”, (1950), 59 Mind 327.Google Scholar See also Alston, William, “Meaning and Use”, (1963), 13 Philosophical Quarterly, 107–24.CrossRefGoogle Scholar

4. See Brink, David, “Legal Theory, Legal Interpretation, and Judicial Review”, (1988), 17 Philosophy and Public Affairs, 105–48.Google Scholar

5. It was in fact Leibniz who first made this point. “|I]f someone draws an uninterrupted curve which is now straight, now circular, and now of some other nature, it is possible to find a concept, a rule, or an equation common to all the points of the line, in accordance with which the very changes must take place. . . . Thus we may say that no matter how God might have created the world, it would have always been regular and in a certain general order.” Discourse on Metaphysics, trans. Martin, R.H.D. and Brown, S., (Manchester: Manchester Univ. Press, 1988) at 304.Google Scholar

6. No one but the skeptic claims that there is nothing that serves this purpose, for “if it were always possible ... to give a rule to justify any answer, a rule to make any answer correct, then there is no sense of the idea of ‘incorrect,’ and thus no sense of operating according to a rule at all.” Guy Stock, “Leibniz and Kripke’s Sceptical Paradox”, (1988), 38 Philosophical Quarterly, 326–29.

7. “And besides, what about quaddition?” “And what about ‘2’?”

8. On the distinction between “real” rules and rules of thumb, and on the relation between rules and both their formulations and their background justifications, see my forthcoming Playing By the Rules: A Philosophical Examination of Rule-Based Decisionmaking in Law and in Life (Oxford: Clarendon Press, 1991).Google Scholar