We live in the age of the so-called 'interpretive orthodoxy'. Held by a striking range of legal theorists (who often disagree on pretty much anything else), at its core lies the idea that there is no such thing as a 'mere' application of a rule. Every application of a rule is, actually, an interpretation of it. And given that interpretation is routinely understood to be a creative process - the activity of 'making choices' as to the meaning of an utterance - it is not just the determinacy and objectivity of legal rules that are threatened, but the very possibility of following a rule in the first place. Is this where Ludwig Wittgeinstein's rule-following considerations in the Philosophical Investigation lead us to? I begin the chapter by illustrating how the sceptical reading of Wittgenstein arises - following Kripke's influential account - and how it has been rejected by hartian legal positivists. Their position has been criticized, however, on the grounds that the version of the 'international relation' thesis they adopt is susceptible to the same objection it is supposed to meet. I thus present a different version of the 'internal relation' thesis - which distinguishes between linguistic meaning and rule-following in general - based on Pettit's 'response-dependence' theory. This version, I submit, can meet those criticisms, and clarifies that there is indeed a sense of 'applying a rule' which is not an interpretation of it. This, in turn, confirms the existence of objectively (that is, inter-subjectively) determinate cases of linguistic meaning and as such undermines the main ground upon which the interpretive orthodoxy in law is based.
CORE (COnnecting REpositories)
CORE (COnnecting REpositories)