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

Wittgenstein’s writings on “rule-following” are 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. Wittgenstein 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)? The article explores Wittgenstein’s work. more recent commentaries on that work, and efforts by some legal theorists to apply the rule-following considerations to issues of legal interpretation. Both proponents and opponents of radical legal indeterminacy have tried to use Wittgenstein’s discussions on rule-following to ground their positions. Ultimately, both sides find more in Wittgenstein than is actually there. The discussions on rule-following do, however, have some limited use in understanding the problem of easy cases and hard cases. Some easy cases are easy because of the (short-term) determinacy of descriptive terms. Our consensus in applying such terms is due to some combination of our common human nature, our common training, and our common way of life. Wittgenstein did not discuss extensively cases the situation where consensus was absent, though some potential explanations for hard cases can be derived from his writing: e.g., that the people involved have different forms of life or that the key terms are evaluative rather than descriptive.

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