Wittgenstein on Rules: The Phantom Menace

Oxford Journal of Legal Studies 22 (4):619-640 (2002)

Abstract

Ludwig Wittgenstein's work on rules has been put to a variety of uses by legal theorists. One wave of theorists employs Wittgenstein in an effort to show that law is radically indeterminate. They base their arguments on Saul Kripke's influential reading of Wittgenstein's Philosophical Investigations. This essay begins with a consideration of Kripke's view and its implications for law. Like many before, I conclude that Kripke's view is defective, and as such teaches us little about law. But it is important to explore the view in detail nonetheless, because only by doing so can we understand the mistakes of the second wave of theorists who employ Wittgenstein's remarks on rules in jurisprudential argument. The second wave includes Brian Bix and Andrei Marmor, who turn to Wittgenstein's remarks on rules to explain how it is that law can be determinate and also to show that law can often be understood without interpretation. I argue that both Bix and Marmor fail, and more importantly, that Wittgenstein's remarks on rules have little to offer legal theory. Nothing much can be learned about legal rules or legal interpretation by attending to Wittgenstein's remarks, because they were aimed at wholly different phenomena

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Scott Hershovitz
University of Michigan, Ann Arbor

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