Sandro, P orcid.org/0000-0002-0601-9031 (2022) From rule-scepticism to the interpretive orthodoxy? On Wittgenstein, legal theory, and the difference between understanding and interpreting a rule. In: Gizbert-Studnicki, T, Poggi, F and Skoczeń, I, (eds.) Interpretivism and the Limits of Law. Elgar Studies in Legal Theory . Edwar Elgar , pp. 159-174. ISBN 9781802209310
Abstract
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.
Metadata
Item Type: | Book Section |
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Authors/Creators: |
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Editors: |
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Keywords: | Rule-following; Wittgenstein; Interpretivism; Application of rule; Meaning; Response-dependence |
Dates: |
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Institution: | The University of Leeds |
Academic Units: | The University of Leeds > Faculty of Education, Social Sciences and Law (Leeds) > School of Law (Leeds) |
Depositing User: | Symplectic Publications |
Date Deposited: | 06 Feb 2023 15:18 |
Last Modified: | 06 Feb 2023 15:18 |
Published Version: | https://www.elgaronline.com/edcollbook/book/978180... |
Status: | Published |
Publisher: | Edwar Elgar |
Series Name: | Elgar Studies in Legal Theory |
Identification Number: | 10.4337/9781802209327.00018 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:195918 |