I recently published a long article discussing a variety of topics from Joseph Raz’s The Morality of Freedom. The article was part of a symposium on Raz’s work in the Southern California Law Review . Raz responded to the articles in that symposium, including my own.

From a perspective which surveys the whole range of views on political philosophy, Raz’s view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But there is one set of issues we disagree about and where we seem to lack even a common understanding of the disagreement. These are issues about how authoritative directives function as reasons for action, and about whether, when we follow authority in the proper way, we can be said to “obey” it.

Wittgenstein wrote nothing on legal theory or law, so there is no obvious textual basis on which to draw possible connections between Wittgenstein and legal theory. And Wittgenstein abhorred theorizing in philosophy. So the odds are slim that Wittgenstein would have accommodated himself or his work to similar activity in the law. Where does this leave us?

At sea, which is where we normally are in life and, thus, where Wittgenstein wants us to recognize ourselves as being when doing philosophy too. But theory can disguise this fact from us, as it also can make us think that we have unrivalled powers of knowledge and understanding and explanation. Wittgenstein’s criticism of theory, or the activity of theorizing, is meant to get us to see, and to acknowledge, our limits in this respect. But even though his terms and intent are mostly negative in tone and thrust, his criticism of theorizing has positive implications for how we should try to understand what we are doing and what we have done, including what we are doing and have done in the law. So, if understanding the law better is something that legal theory does or tries to do, and Wittgenstein’s later work can help us understand the law better, then Wittgenstein’s later philosophy is connected to the task set legal theory.

But, even ignoring the vagueness of “believes in”, this tells us even less about liberalism than,

tells us about Catholicism. Neither statement distinguishes one creed from its rivals. Socialists, conservatives, anarchists and Buddhists can all believe in liberty (sometimes, but not always, different concepts of liberty); just as Protestants, Jews, Muslims and Hindus all believe in God (sometimes, but not always, different gods). (2), though, has at least the virtue of conveying one definite, fundamental and necessary belief of the Catholic: that there exists a supreme being. It is agreed, even by sympathizers, that (1) gives the liberal no such thing. “By definition, a liberal is a man who believes in liberty,” says Professor Cranston, “but because different men at different times have meant different things by liberty, ‘liberalism’ is correspondingly ambiguous.” If Liberty be its god, it should come as no surprise that liberalism is a schismatic church.

Wittgenstein seeks to inoculate us against the lure of metaphors. The conundrums of philosophy are, he implies, often the misbegotten offspring of abused metaphors. How many rooms are needed to house the “furniture of our mind”? With what key do others gain access to my “private” thoughts and feelings?

Jurisprudence has its own syllabus of philosophical puzzles. One of the hardiest is the issue of judicial license and judicial standards. This issue has special fascination for American legal theorists because of the pivotal role played by the Supreme Court in exercising the power of judicial review by interpreting the Constitution. American theorists have taken for granted, and other theorists have seemed to acquiesce in this assumption, that to understand the nature of law is to understand how appellate judges find and/or make law.

In Law’s Empire, Ronald Dworkin introduces an important distinction between what he calls the ‘grounds’ and the ‘force’ of law. The former primarily interest Dworkin in LE and concern the “circumstances in which particular propositions of law should be taken to be sound or true.” (110) Propositions of law, we are told, are “all the various statements and claims people make about what the law allows or prohibits or entitles them to have.” (4) That Canadians owing income tax to the federal government must file their returns before April 30 or face a late penalty is presumably an example of a proposition of law. That the United States constitution prohibits slavery is another. These (true) propositions of law simply report the law’s (present) requirements, requirements which normally should be respected but which might justifiably be disobeyed or disregarded in exceptional cases. A true proposition of law, then, does not necessarily entail an answer to the question: What should I do, or decide (if called upon to render a judicial decision)? It also does not necessarily entail an answer to the question: Should the coercive power of the state be exercised against this person?

Of all the various aspects of legal positivism, it is those bearing upon a theory of adjudication which have prompted its critics’ fiercest attacks. Legal positivism is taken to be committed to the thesis that a distinction exists between (so called) ‘easy’ cases—where the law can be identified and applied straightforwardly—and ‘hard’ cases—where the issue is not determined by the existing legal standards. Most critics are united in their rejection of this dichotomy, but divided by the two main routes they follow. The more familiar one, first outlined by Professor R.M. Dworkin, sets out to deny that hard cases are not regulated by legal standards. The other objection, and the one I wish to consider here, strives to show that the distinction itself is illusory since in all relevant respects, there are no easy cases as the positivist presumes.

Contemporary legal theory is increasingly marked by the clash between two opposing, basic approaches to law and legal doctrine. The first approach is skeptical: it seeks both to expose the conceptual and normative commitments of tort or contract or constitutional law, and to impeach them on the grounds that they comprise what are in fact incoherent and morally insupportable ideologies. By contrast, the second approach is explicitly apologetic: it aims to celebrate law by offering a reconstruction and justification of the basic features of constitutional or statutory or common law practice. The first approach is of course represented by the “deconstructionism” imported into law from literary and social theory by those scholars associated with the Critical Legal Studies (“CLS”) movement. At its most controversial, the work of these recent legal skeptics seeks to link traditional legal doctrine, and the modes of analysis and pedagogic methods peculiar to it, with a radical critique of political liberalism by showing that the doctrine and its methods serve to legitimate existing social inequalities, hierarchies, and forms of domination, while at the same time obscuring their own legitimating role. One important corollary of this general thesis is the emphasis upon what Roberto Unger has called “the contradictory and manipulable character of legal doctrine”, i.e., the effort, inspired by the familiar deconstructionist premise that texts lack any fixed or stable and coherently formulable meaning, to “deconstruct” the basic categories of (liberal) legal discourse with the aim of exposing tensions and inconsistencies inherent within them, and of depicting the responsiveness of this “patchwork quilt” to background social, political, and economic forces.

The interest of political theory in the acceptance of law is obvious. If one believes that a regime is legitimate only if it governs with the consent of the governed, then the notion of acceptance is deeply linked with the notion of legitimacy, a fundamental concern of political theory. The interest of legal theory in the notion of acceptance is less obvious. I construe it to arise in the following way. One central tradition in legal theory is that of positivistic or content-independent theories of law. Positivism, crudely speaking, is characterized by some form of the Separation Thesis—that the existence of law is one thing and its merit or demerit another. But if it is important for positivistic legal theory to mark the separation of law and the merits of law, then it must also be important to mark the separation between law and the acceptance of law. The existence of law must be one thing and its acceptance as meritorious another. In deference to the separation of existence and merit, positivism tries to find a content-independent account of the validity of law. Equally, in deference to the separation of law and acceptance, positivism tries to find a content-independent account of the acceptance of law. The topic of this paper is whether the separation of law and the acceptance of law is possible. I shall try to suggest, in service of a non-positivistic or content-dependent approach to law, that this separation is not possible. I will attempt to argue on the basis of points which legal positivism itself has acknowledged to form valid constraints on any theory of acceptance. My ambitious thesis is that positivism has presented us with the reasons for rejecting it. Even if that thesis is not made out, I have a less ambitious thesis which I am confident of securing, that the demand for an account of law which permits law to be accepted ‘for any reason whatever’ is not a theoryneutral demand which might decide between positivism and natural law theory. Rather, it is an expression of a prior commitment to positivism. It is the familiar demand of natural law theory that the convergence of attitudes towards law which makes for acceptance of law must be a convergence for the right kind of reasons; ones that have to do with the value of law.

Is there the possibility of a critical standpoint from which to adjudicate the correctness or validity of constitutional interpretation? This basic question has been given considerable attention in contemporary constitutional theory and has been the focus of the pragmatist law as literature movement born of the interpretive turn in legal theory. At issue is the very purpose of constitutional practice: is it to recover the truth of a set of foundational, moral ideals from the constitution and apply it to a particular factual conflict? Or is it to preserve continuity between the various elements of our cultural practices, to keep the peace?

Despite the tremendous literature that has sprung up concerning Hart’s The Concept of Law, one very important feature of the work has been somewhat overlooked: its methodological underpinnings. While Hart himself says The Concept of Law may “be regarded as an essay in descriptive sociology”, this claim has not received adequate philosophical examination. Though a dedicated philosophical positivist, the distinctive feature of Hart’s legal philosophy – the internal aspect of rules – requires a social science methodology that moves him in the direction of hermeneutics. In defending the importance of the internal aspect of rules against the predictive theory of Scandinavian Legal Realist Alf Ross, Hart argues that without the internal aspect, one

Wittgenstein’s writings on “rule-following” remain 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. However, “[h]e aimed not to write a book on rules but to examine specific problems arising out of insights into the normative nature of a language, of logic and of reasoning.” He 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)?

When Legal Realism first appeared in American jurisprudential thought in the 1920’s and early 1930’s, it was frequently misunderstood as an attack on the integrity and truthfulness of the American judiciary. After all, wasn’t it a central tenet of Legal Realism that judges did not decide cases by applying preexisting and authoritative legal rules, but merely decided cases in whichever way they thought was best? Such considerations led to the derogatory restatement of the Realist position as holding that the law is determined by “whatever the judge ate for breakfast”.

It is not transparently obvious why legal theorists are increasingly attracted to the ideas and methods of Ludwig Wittgenstein. After all, Wittgenstein’s writings are notoriously difficult and he said almost nothing, and certainly nothing sustained, about law. And why would self-proclaimed legal theorists be attracted to someone who was quite explicitly hostile to “theory”, who viewed philosophy as a sort of therapy, and who said, famously, “philosophy leaves everything as it is”? But a still more interesting question is, why has Wittgenstein received such curious and conflicting treatment at the hands of the critical legal theorists? On the one hand critical legal theory celebrates Wittgenstein’s work as a key to the dismantling of traditional jurisprudence, but on the other hand critical scholars bemoan his alleged debilitating endorsement of the status quo. It is this last question upon which this essay is focussed.

Legal theorists have become increasingly interested in whether or to what extent the later writings of Wittgenstein support scepticism about the possibility of rational objectivity or determinacy in legal reasoning and discourse. Some critical legal theorists have explicitly relied upon Wittgensteinian arguments to support arguments for radical scepticism. More recently, anti-sceptical theorists have argued that reliance by critical theorists upon Wittgensteinian arguments involves a serious misinterpretation. I shall in this essay add my voice to those already making this argument.

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.