McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Mon treal
Volume 33
No 3
Revolution Without Foundation: The Grammar of Scepticism
1988
and Law
Brian Langille*
Scepticism about the legitimacy of law and
adjudication is popular and pervasive. In this
article the author assesses certain “strong”
sceptical claims concerning the law, the rule
of law, and constitutional adjudication. In
particular, he refutes the argument that scep-
ticism based on the “indeterminacy of lan-
guage” can be derived from the philosophy
of Ludwig Wittgenstein. The author argues
that the implications of Wittgenstein’s phi-
losophy are in fact antithetical to scepticism,
and that a sensitive reading of Wittgenstein
offers insights into the viability of law, legal
discourse and legal critique. These insights
enable us not only to see the error of strong
indeterminacy critics who invoke Wittgen-
stein, but also to understand the mistakes
made by others who invoke an external –
sometimes, but not always economic – anal-
ysis of law.
Le scepticisme quant A Ia lgitimit6 du droit
jouit d’une grande popularit6 et tire profit
d’une imposante diffusion. Dans cet article,
l’auteur considre certains arguments mdi-
caux relatifs au droit, A la r~gle de droit et au
processus judiciaire en mati~re constitution-
nelle. Plus particuli~rement, il rejette l’argu-
ment A l’effet que le scepticisme fondd sur
l’impr~cision du langage soit tir6 de la phi-
losophie de Ludwig Wittgenstein. L’auteur
soutient que les implications de la philoso-
phie de Wittgenstein constituent une anti-
th~se du scepticisme, et qu’une lecture
attentive de Wittgenstein permet d’entrevoir
la viabilit6 du droit, du discours legal et de
la critique du systme juridique. Par cette d6-
monstration, nous sommes A m8me de cons-
tater la faiblesse des arguments formulas par
les critiques de limpr~cision qui invoquent
Wittgenstein, mais aussi celle d’autres criti-
ques qui, quant A eux, recourent A une ana-
lyse externe du droit –
ffit-elle 6conomique
ou autre.
*Associate Professor, Faculty of Law, University of Toronto. A version of this paper was
presented to the “Labour Law Under the Charter” Conference held at Queen’s University,
Kingston, Ontario, in September 1987. I would like to thank the organizers of the Conference
for their invitation. I would also like to acknowledge the support of the Connaught Programme
in Law and Public Policy at the Faculty of Law, University of Toronto, and of the Social
Sciences and Humanities Research Council of Canada in the form of a Leave Fellowship in
the year 1986-87.
REVUE DE DROIT DE McGILL
[Vol. 33
Synopsis
I.
Introduction
Strong Internal Scepticism
II. The Critical Arguments
Indeterminacy of Language
A.
B. The Radical Subjectivity of Ethical Judgment
C. Contradiction
D. Mystification
E. Summary
III. The Canadian Critics
IV. A New Starting Point
Hart, Fiss, Dworkin
Strong External Scepticism
V.
VI. Conclusion
Scepticism and solutions to scepticism … make their way in the world mostly
as lessons in hypocrisy; providing solutions one does not believe in to problems
one has not felt.
I.
Introduction
This essay is about the nature of constitutional critique. It takes as its
starting point a set of strong sceptical arguments invoked by certain con-
stitutional sceptics. Although I identify and discuss other strong sceptical
arguments, I am interested most especially in strong claims made about the
indeterminacy of language and the impact of this alleged indeterminacy
upon our ideas about the nature of constitutional discourse. The strong
sceptics draw very powerful lessons from many philosophical sources and
they argue that these lessons are corrosive of fundamental ideas about law,
IS. Cavell, The Claim ofReason: Wittgenstein, Skepticism, Morality and Tragedy (New York:
Oxford University Press, 1979).
19881
SKEPTICISM AND LAW
the rule of law, and constitutional adjudication. In this essay I trace the
reliance of these strong sceptics (labelled in this essay “strong internal scep-
tics”) upon the philosophy of Ludwig Wittgenstein. My claim is that strong
internal sceptics misuse this potent source of inspiration, reading in sceptical
conclusions which Wittgenstein would regard as nonsense. But my claim
also goes beyond mere exegetical detail. It is my view that strong sceptics
are quite correct in turning to Wittgenstein in their efforts to understand
law, and that an alternative and non-sceptical reading of Wittgensteinian
philosophy is available. This non-sceptical reading, far from corroding our
ideas of law, permits insight into the fundamental nature of legal and con-
stitutional discourse. The word “fundamental” carries a lot of freight here.
Reading Wittgenstein will not solve concrete constitutional cases. As Witt-
genstein repeatedly emphasized “philosophy leaves everything as it is”. But,
and this is the critical claim, the lessons of Wittgensteinian philosophy let
us see what we do when we argue and decide constitutional cases.
The essay also contains another claim. The non-sceptical reading of
Wittgenstein leads us not only to reject the conclusions of the strong internal
sceptics relying upon him, but also to understand and reject another form
of scepticism, which I call strong external scepticism. Those in this latter
class reject legal discourse, and believe that law must be analysed from
perspectives external to legal discourse, for example “economic” discourse.
Thus the basic argument of the essay is of the following form. Strong
internal sceptics are correct in seeking inspiration in Wittgensteinian phi-
losophy, but draw the wrong conclusions. In studying the arguments of
strong internal sceptics, an alternative and better account of legal discourse
is revealed. This account lets us reject not only the conclusions of the strong
internal sceptic, but also lets us understand the fundamental flaw in the
position of the strong external sceptics.
The essay proceeds in the following fashion. First, I identify and talk
about strong internal scepticism. Second, I identify four “critical arguments”
repeatedly invoked by the strong internal sceptics. These arguments I label
“indeterminacy of language”, “radical subjectivity of ethics”, “contradic-
tion”, and “mystification”. For the purposes of the essay the most important
argument is the first. Third, I show that these arguments are doing a lot of
work in the writings of well known Canadian constitutional critics, especially
Professors Hutchinson, Monahan and Petter. Fourth, I undertake a re-
evaluation of the strong internal critics’ reliance upon Wittgenstein. Fifth,
I briefly make the claim that this non-sceptical reading of Wittgenstein is,
and should be more explicitly, at the forefront of our philosophizing about
law. Sixth, I turn the non-sceptical account of law upon those I have iden-
tified as strong external sceptics. My selection of candidates and works for
discussion here is somewhat arbitrary, but I believe the general point not
McGILL LAW JOURNAL
[Vol. 33
to require anything more than some examples. Finally, I conclude with some
very general remarks about where all of this leaves us and our constitutional
law.
Strong Internal Scepticism
Scepticism about law is fashionable and scepticism about law is easy.
Almost all first year law students suffer a severe bout of it and some, it
seems, never recover. Indeed, it seems clear that a prime purpose of first
year legal education is to expose students to this very contagious point of
view.2 The question is, do we and should we do that in order to inoculate
them against the disease of scepticism, or with the view that scepticism is
itself the cure for some other disease, say formalism?
Interpretation is also a fashionable idea. Critical legal scholars3 sparked
or at least rekindled our current interest in both scepticism and problems
of interpretation 4 but recently the flames so created seem to have lept the
political fireline from left toward the right and are raging there among “lib-
eral” legal scholars.5 The “turn to interpretation” as we now understand it
is sometimes viewed as a “liberal” or “mainstream” reaction to the critique
of critical legal studies, 6 but its recent origins lie on the critic’s side. This is
to their credit, and we are all in their debt.
But while there are many important and compelling ideas and insights
in this new literature and many uses of ideas such as “indeterminacy”, I
2For example, see J. Swan & B. Reiter, Contracts, 3d ed., (Toronto: Emond Montgomery,
1985), where the first case, Peevyhouse v. Garland Coal & Mining Company (1963), 382 P.2d
109 (Okla.S.C.) is utilized to immediately de-stabilize the apparently clear rule concerning
“expectation level damages” enunciated by Lord Atkinson in Wertheim v. Chicoutimi Pulp
[1911] A.C. 301.
3There is of course great diversity among those scholars identified with the critical legal
studies movement. See for example D. Kairys, ed., The Politics of Law (New York: Pantheon,
1982); The symposium on Critical Legal Studies, (1984) 36 Stan. L. Rev. A bibliography of
C.L.S. Scholarship by D. Kennedy and K. Klare is contained in (1984) 94 Yale L.J. 461. See
also the sources cited below. A useful overview of the major lines of development within C.LS.
Scholarship is contained in J. Boyle, “The Politics of Reason” (1985) 133 U. Penn. L. Rev.
685.
4G. Peller, “The Metaphysics of American Law” (1985) 73 Cal. L. Rev. 1151; S. Levinson,
“Law as Literature” (1982) 60 Tex. L. Rev. 373; J. Singer, “The Player and the Cards: Nihilism
and Legal Theory” (1984) Yale L.J. 1; Boyle, supra, note 3; M. Tushnet, “Following the Rules
Laid Down” (1982) 96 Harv. L. Rev. 781.
50. Fiss, “Objectivity and Interpretation” (1982) 34 Stan. L. Rev. 739; 0. Fiss, “Conven-
tionalism” (1985) 58 S. Cal. L. Rev.; R. Dworkin, A Matter of Principle (Cambridge, Mass.:
Harvard University Press, 1984); R. Dworkin, Law’s Empire (Cambridge, Mass.: Belknap Press,
1986); R. Fallon, “A Constructivist Coherence Theory of Constitutional Interpretation” (1987)
100 Harv. L. Rev. 1189.
6D. Kennedy, “The Turn to Interpretation” (1985) 58 S. Cal. L. Rev. 251.
1988]
SKEPTICISM AND LAW
am primarily interested in a particularly strong sceptical argument about
interpretation which recurs in some well known and recent writing. It is a
simple but powerful thesis about the indeterminacy of language and the rule
of law. It may roughly be summarized as follows. In a democratic political
culture dedicated to the virtues of the rule of law, a central jurisprudential
issue and political concern is that of unelected judges imposing upon others
their own ideas of how things should be. The legitimacy of the judicial
process is at stake in this debate. That legitimacy turns upon the power of
the “law” to constrain, direct, and limit judges in the exercise of their power
“according to law”. This in turn trades upon the capacity of language (the
language of common law precedents, of statutes, of our constitutional doc-
ument) to constrain, direct, and limit judicial decision-making. In the critical
literature this point is made by insisting that “mainstream legal thought ‘ 7
or “liberal legalism”8 requires that this be the case. In short, if the law is
to constrain judges, then language as law’s universal medium must be ca-
pable of doing so. But language is indeterminate, unstable, subject to ma-
nipulation and incapable of expressing rules and principles which constrain
judges. Thus the law is a failure on its own terms and the virtues of the
rule of law are impossible to secure.
In the strands of literature to which I refer, this strong argument is
embraced and “proved” with enthusiasm, and reliance is placed upon many
different ideas and theories in the philosophy of language. 9 But the three-
part central message remains constant across this variety of inspirational
sources. That message is first, that the rule of law requires certainty and
constraint of a certain sort. Second, this does not exist because law’s uni-
versal medium, language, is unstable. Law is therefore political choice.
Third, the critics add that any certainty we see is simply the product of our
own contingent conventions and arbitrary choices. It is one particular var-
iation upon this theme that seems to me most interesting and potentially
illuminating. It is the reliance of certain critical scholars upon the later
philosophy of Ludwig Wittgenstein, the “first philosopher of our age”,’ 0 in
order to make out their sceptical claims. For reasons which I hope become
clear, I believe this to be a shallow but “deeply shallow”‘1 approach to
7Singer, supra, note 4 at 6.
8See R. Gordon in Kairys, supra, note 3, 281 at 284.
9For example, Gary Peller, supra, note 4 relies upon the deconstructive philosophy ofJacquest
Derrida; Joseph Singer, supra, note 4 relies upon the pragmatic philosophy of Richard Rorty;
Sanford Levinson, supra, note 4, relies upon the new literary criticism of Stanley Fish and
others; Mark Tushnet, supra, note 4 relies upon the later philosophy of Ludwig Wittgenstein.
see RE Strawson, “Review of the Philosophical
Investigations” (1954) 63 Mind 70; Hacker, Insight and Illusion, rev’d ed. (New York: Clarendon
Press, 1986), preface.
‘OA widely acknowledged description –
II borrow this phrase and idea from Bernard Williams in “Anto-da-Fe” New York Review
of Books (28 April 1983) 33 at 35.
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Wittgenstein’s philosophy and its significance for law. It is deeply shallow
because while I believe the sceptical reading of Wittgenstein’s message is a
misguided one, there is great significance and potential for illumination in
an alternative understanding of that philosophy.
The basic argument which I have just outlined is what I shall refer to
as the “simple indeterminacy” thesis or alternatively the “indeterminacy of
language” thesis. But a reading of the literature upon which I am focusing
leads to the conclusion that there are other strong and central ideas at play
in the most dramatic forms of the sceptical assault and that these ideas
intermingle and are interwoven with the strong indeterminacy of language
critique. It is useful to distinguish: 1) the simple indeterminacy thesis, 2)
the “subjectivity of value” or “logical positivism” thesis, 3) the “contra-
diction” thesis and 4) the “mystification” thesis.
The first three of these are critical ideas which contain the main intel-
lectual ammunition in the strong critical attack upon the “rule of law” or
“liberal law” or “mainstream legal thought”. The “mystification” thesis
operates by way of supplementary explanation of how and why law can and
does operate in spite of the fact that the first three theses are valid.
I focus upon the strong versions of these critical arguments, and their
limitations, because I believe it illuminating to do so and because it is this
strong form of critique which is invoked in the Canadian constitutional
context by Canadian constitutional critics. 12 Through an examination of
these strong critical arguments and the Canadian literature relying upon
them, some insight into our constitutional practice may be possible.
II. The Critical Arguments
My purpose here is to review in a brief way the four strong versions
of the critical arguments listed above. I shall concentrate upon the inde-
terminacy of language argument which, it seems to me, is most central to
the current vogue of scepticism, and also most central to the recent less
sceptical theorizing based upon the philosophy of language. 13
A.
Indeterminacy of Language
This is the most important of the four strong critical arguments, im-
portant in the sense of its place in the literature but also because of the
‘?The essays I concentrate upon are: a) A. Petter, “The Politics of the Charter” (1986) 8 Sup.
Ct Law Rev. 473; b) PP Monahan, “Judicial Review and Democracy: A Theory of Judicial
Review” (1987)21 U.B.C. L. Rev. 87; c) A.C. Hutchinson and A. Petter, “Private Rights/Public
Wrongs: The Liberal Lie of the Charter”, forthcoming in 38 U.T.L.J.
“See the sources cited supra, note 5.
19881
SKEPTICISM AND LAW
potential for a reconsideration of the argument to provide positive assistance
in understanding our practice of constitutional, and other, interpretation.
While my main focus will be upon the Wittgensteinian version of this ar-
gument, there are many lines of development of the indeterminacy thesis,
and it is a thesis which has an honourable history in our jurisprudential
literature.14 The central issue here is, to put it somewhat crudely, that of
“law and order”.15 The essential argument is that language is sufficiently
unstable that “law and order” is impossible. There are obviously two sorts
of claims being made here. One is a claim about what “mainstream” or
“liberal” legal thought or the “rule of law” requires, and the other neces-
sitates a demonstration that these conditions do not obtain. Thus, for ex-
ample, Singer writes:
Determinacy is necessary to the ideology of the rule of law, for both theorists
and judges. It is the only way judges can appear to apply the law rather than
make it. Determinative rules and arguments are desirable because they restrain
arbitrary judicial power. 6
And Singer goes on to explicate the requirements of determinacy in the
following words:
A legal theory or set of legal rules is completely determinate if it is compre-
hensive, consistent, directive and self-revising. Any doctrine or set of rules that
fails to satisfy any one of these requirements is indeterminate because it does
not fully constrain our choices.’ 7
And having set the requirements strong critics have had no hesitation
in expressing language’s failure to meet them. A particularly strong version
of this thesis is found in Gary Peller’s “The Metaphysics of American
Law”.18 Legal theory, according to Peller, “consistently appeals to the image
of legal discourse as a neutral medium which merely reflects social events.”‘ 19
But the language of the law is “merely one instance in a series of (arational)
attempts to capture social experience in a reproducible form. ‘ 20 There is
no “pure form of communication which merely represents rather than cre-
ates context” and all “representational practice … inevitably is ideologi-
14ES. Cohen, “Transcendental Nonsense and the Functional Approach” (1935) 35 Columbia
L. Rev. 809 may be cited as a classic example of the relevant realist and post-realist literature.
15D.F Pears, Wittgenstein (Cambridge, Mass: Harvard University Press, 1986).
16Singer, supra, note 4 at 12.
171bid. at 14.
IsPeller, supra, note 4.
191bid. at 1159.
2OIbid. at 1155.
458
McGILL LAW JOURNAL
[Vol. 33
cal.”’21 Language is not a transparent vessel for expressing meanings, rather,
meaning is dependent upon language22 that is the “categories of commu-
nication available in the linguistic community. 23 Peller states his conclusion
in this way:
[T]here is no determinative way to know this world separate from the socially
created representation systems through which we approach the world. Knowl-
edge and social power are inseparable …. [I] am not arguing that we never
communicate or understand each other when we speak or act. That would be
absurd. Rather, there is no way to achieve closure with respect to the meaning
of expressions or events. The distribution of meaning depends on socially
created and contingent representational conventions. Each attempt to fix mean-
ing is belied by the dependence of meaning on language. Meaning is dependent
on artificial and differential signification practices. 24
When particular representation categories for dividing up the world are reified
and achieve a hegemony in a particular community, description is taken as
fact rather than “mere” opinion or ideology. In such a context, the social
conventions for representing the world are viewed as flowing from the way the
world really is. Their contingent and provisional status is suppressed. Fiction
is presented as truth.25
A concern over the workings of language and its impact upon “law and
order”, that is the need for determinacy, is long standing. It was, for example,
one of the key issues in one of the most famous jurisprudential debates
within “mainstream” legal theory, that between Hart and Fuller.26 This is
of interest not only for historical reasons but also because we see here a
very early sign of the influence upon legal theory of the later views of Ludwig
Wittgenstein. 27 This influence has carried forth directly into the modern
strong indeterminacy argument. In his debate with Fuller, Hart saw the
problem which the new critics now point to, and he wrote:
If we are to communicate with each other at all, and ifas in the most elementary
forms of law, we are to express our intention that a certain form of behaviour
be regulated by rules, then the general words we use must have some standard
instances in which no doubts are felt about its application. There must be a
core of settled meaning, but there will as well be a penumbra of debatable
cases.28
21Ibid. at 1159.
22lbid. at 1160.
31bid. at 1161.
241bid. at 1170.
25Ibid. at 1181.
26See H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L.
Rev. 533; L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart” (1958) 71
Harv. L. Rev. 630.
27As contained mainly in L. Wittgenstein, Philosophical Investigations, trans. G.E.M. An-
scombe (Oxford: Blackwell, 1953) [hereinafter Philosophical Investigations].
28Hart, supra, note 26 at 607.
1988)
SKEPTICISM AND LAW
Hart’s key point was that penumbral cases, which involved an appeal to
something (such as statutory purposes, context, or values) beyond the words
on the page, were rare.29 It is precisely this point and Hart’s reasons for
making it (that law and communication would be impossible) which Fuller
attacked. Fuller, relying upon Wittgenstein, insisted that meaning is always
dependent upon the context, and purpose within which and for which the
language is used. What Hart takes to be the “easy” cases of inert “core”
meaning (when a staute prohibits the taking of “vehicles” into a park it
must include an ordinary Chevrolet automobile being driven into the park)
are no different from the “hard”, “penumbral” cases. They are the same
and involve the same judgment of meaning in light of context and purpose.
A neutral text is never determinative. The “easy” cases are simply those in
which “however one might formulate the precise objective or purpose of
the statute, this would come within it.”’30 In conducting this argument in
the pages of the Harvard Law Review Hart appears, in retrospect, as the
champion of “law and order” against the Fuller or Wittgensteinian view3 1
which, it is alleged, makes law and language impossible. Many of those
advancing the strong indeterminacy thesis still rely heavily upon a version
of Wittgenstein’s theory as their theoretical base, and they utilize that theory
to come to conclusions much harsher than those advanced by Fuller. Ref-
erences to Wittgenstein have become, as Boyle observes, “ubiquitous” 32 and
his work is referred to as “basic”. 33 The view of the modem critic is that
Wittgenstein’s work is “corrosive” 34 for legal theory. Thus, Tushnet writes:
Since the Realists wrote, we have come to understand that the problems they
described arose from the concept of rules and from the nature of language. 35
Tushnet states that Wittgenstein is his “fancy citation” 36 for this proposition.
And Boyle writes:
I draw ideas about the breakdown of rationality in the study of linguistic
philosophy from an interpretation of Wittgenstein’s later works, an interpre-
tation that Wittgenstein did not seem to share…. [I]t seems that the success
that such writers as Foucault and Derrida have had in Britain and the United
States is partly due to the particularly corrosive effect that the post-Wittgen-
29Ibid. at 607, 615.
30Fuller, supra, note 26 at 663.
31Fuller explicitly acknowledges the Wittgensteinian nature of his views at 669 of his reply
to Professor Hart, supra, note 26. Harts position here is an odd one in light of his obvious
indebtedness to and command of Wittgensteinian theory –
something I discuss below in text
accompanying notes 218-24.
32Boyle, supra, note 3 at 713.
33Ibid., note 28 of that text.
34Ibid. at 711.
35M. Tushnet, “Legal Scholarship, Its Causes and Cure” (1981) 90 Yale L.J. 1205.
36Ibid.
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[Vol. 33
steinian view of language has had on all the academic discourses within those
countries…. One could say that the anesthetic hold of essentialism is broken
in precisely the moment when it is realized that the question “what is law, art,
science, etc?” is literally meaningless. Wittgenstein’s outstanding contribution
was that he flushed the mediaeval fascination with essences from its most secure
hiding-place –
in the everyday objectivication of
linguistic meaning.3 7
right under our noses –
There are really two lines of development of Wittgensteinian theory in
the strong critical literature. The first is straightforward and aims at ex-
ploding Hart’s attempt to cabin the Wittgensteinian insight, which Fuller
pointed out, that the text has no plain, core, or essential meaning. Thus
Boyle describes Hart’s efforts and his failure as follows:
linguistic indeterminacy –
As with a medical inoculation, the patient was going to be given a weakened
form of the disease –
in order to acquire a re-
sistance to it. Hart’s attempt at inoculation theory accepted that words were
sometimes indeterminate but insisted that there was a “core meaning” to every
word and, provided the judge only dealt with cases that fell in “core”, no
subjectivity or discretion was involved. Thus the rule of law was saved, if
weakened, and the judge need only have recourse to political factors such as
policy argument in the “penumbra” of legal rules. 38
371bid. note 75 of that text at 707.
38Boyle, supra, note 3 at 711; see also Singer, supra, note 4 at 13 (speaking of the “right mix”
of determinacy and indeterminacy). Fuller’s point in his debate with Hart was, as has been
indicated, that context always plays a key role, even in the “core” cases, not solely in the gray
area of the “penumbra”. A passage from Wittgenstein’s Philosophical Investigations, supra,
note 27, which Fuller referred to as “a sort of running commentary on the way words shift
and transform their meaning as they move from context to context” (Fuller, supra, note 26 at
669), has become almost well known in law schools. I refer to Wittgenstein’s famous discussion
of “games”:
Consider for example the proceedings that we call “games”. I mean board-games,
card-games, ball-games, Olympic-games, and so on. What is common to all of them?
– Don’t say: “There must be something common, or they would not be called
“games” –
but look and see whether there is anything common to all. – For if
you look at them you will not see something that is common to all, but similarities,
relationships, and a whole series of them at that. To repeat: don’t think, but look!
– Look for example at board-games, with their multi-various relationships. Now
pass to card-games; here you find many correspondences with the first group, but
many common features drop out, and others appear. When we pass next to ball-
games, much that is common is retained, but much is lost. – Are they all “amus-
ing”? Compare chess with noughts and crosses. Or is there always winning and
losing or competition between players? Think of patience. In ball-games there is
winning and losing; but when a child throws his ball at the wall and catches it again,
this feature has disappeared. Look at the parts played by skill and luck; and at the
difference between skill in chess and skill in tennis. Think now of games like ring
around the rosies; here is the element of amusement, but how many other char-
acteristic features have disappeared! And we can go through the many, many other
groups of games in the same way; can we still see how similarities crop up and
1988]
SKEPTICISM AND LAW
The importance of all of this is that Boyle believes that the “post-
Wittgensteinian view of language” 39 is “corrosive”: 40
Once the step to purposive interpretation has been taken, it appeared that there
was no going back. “Purposes” and “intentions” were obviously just as con-
ceptually reified as “plain meanings”. Who knows what Congress intends?
What if there were conflicting viewpoints? … In other words, this view of
language subverts the possibility of a method of adjudication that is separable
from political argument in general, since the Court must go beneath the words
into the political producing them. 4′
This position is simply asserted –
law becomes politics.
Other strong indeterminacy critics, such as Sanford Levinson, come to
their sceptical views through the work of literary critics such as Stanley Fish,
who, in spite of the fact that he nowhere cites him, is clearly heavily influ-
enced by Wittgenstein. 42 Levinson writes, setting up the problem:
Any writer, including a framer of a constitution, presumably imagines the
following relationship between text and reader “the reader sets himself to make
out what the author has designed and signified through putting into play a
disappear.
And the result of this examination is: we see a complicated network of similarities
overlapping and criss-crossing: sometimes overall similarities, sometimes similar-
ities of detail.
I can think of no better expression to characterize these similarities than “family
resemblances”; but the various resemblances between members of a family: build,
features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the
same way. – And I shall say: “games” form a family. (Wittgenstein, Philosophical
Investigations, supra, note 27, para. 66 and 67.)
Fuller himself was particularly fond of quoting Wittgenstein’s example of “teach the children
a game”:
Someone says to me: “shew the children a game.” I teach them gaming with dice,
the other says “I didn’t mean that sort of game.” Must the exclusion of the game
with dice have come before his mind when he gave me the order? (Ibid. at 33.)
such as “frustration” in contract law
see L. Fuller and D. Eisenberg, Basic Contract Law, 4th ed. (St. Paul: West, 1981) at 852;
This is actually a nice question in many areas of law –
–
and L.E. Trakman, “Winner Take Some” (1985), 69 Minn. L. Rev. 471.
These famous passages are actually ones in which Wittgenstein is making a complex double
barreled argument about the nature of language in general as well as about the concept of a
“game”. (See RE Strawson’s review of Wittgenstein’s Philosophical Investigations (1954) 63
Mind 70, reprinted in G. Pitcher, ed., Wittgenstein: The Philosophical Investigations (Notre
Dame, Ind.: University of Notre Dame Press, 1968) at 22.) But for our purpose the importance
of the passage lies in its use by legal scholars to drive home the “anti-essentialist” point that
words do not have “literal”, “core”, “plain” or “essential” meaning.
39Boyle, supra, note 3 at 708.
4Olbid. at 711.
411bid. at 712, 713.
42″Wittgenstein” does not appear in the index of Fish’s Is There a Text in This Class?: The
Authority ofInterpretive Communities (Cambridge, Mass.: Harvard University Press, 1980).
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linguistic and literary expertise that he shares with the author. By approxi-
mating what the author undertook to signify the reader understands what the
language of the work means.” And, of course, in the case of those particular
texts called legal, by understanding the meaning the conscientious adjudicator/
reader becomes authorized to enforce it.43
And Levinson believes, or at the very least is deeply worried by,44 the in-
fluence of literary critics such as Stanley Fish upon this vision of the nature
of constitutions, the purpose and process of interpretation, and thus the
possibility of legitimate adjudication. In Levinson’s view, critics such as
Fish are disturbing because they attack the “stability of meaning at any
given moment.” 45 He believes that the “plain meaning” and intent of the
framers’ approach cannot salvage stable “meaning”:
The view endorsed by Fish regards “human beings as at any moment creating
the experiential spaces into which a personal knowledge flows.” Meaning is
created rather than discovered, though the source of creative energy is the
particular community within which one finds him or herself.46
And Levinson concludes:
It would obviously be nice to believe that my Constitution is the true one and,
therefore, that my opponent’s versions are fraudulent, but that is precisely the
belief that becomes steadily harder to maintain. They are simply different Con-
stitutions. There are as many plausible readings of the United States Consti-
tution as there are versions of Hamlet, even though each interpreter, like each
director, might genuinely believe that he or she has stumbled onto the one best
answer to the conundrums of the texts. That we cannot walk out of offending
productions of our national ethic poem, the Constitution may often be an-
guishing, but that may be our true constitutional fate.47 [emphasis added]
Still other strong indeterminacy critics, such as Mark Tushnet, draw
upon the other and deeper line of Wittgensteinian argument in order to
justify their views. This is the “rule following critique”. This line of de-
velopment flows directly from the work of the “later” Wittgenstein in the
Philosophical Investigations. The rule following critique is best viewed as
another string in the critic’s bow. But it is this critique which comes closest
to the heart of Wittgenstein’s theory. It argues that indeterminacy at a most
fundamental level, a truly radical scepticism, flows from Wittgenstein’s the-
Partisan Rev. 248.
43Levinson, supra, note 4 at 376.
44See S. Levinson, “On Dworkin, Kennedy and Ely: Decoding the Legal Past” (1984) 51
45Levinson, supra, note 4 at 377.
46Ibid. at 383.
471bid. at 391-92. As a result of this Levinson was labelled a “nihilist” by Owen Fiss, in
“Objectivity and Interpretation”, supra, note 5. See Levinson’s response in the Partisan Review,
supra, note 44, and in “Law as Literature”, supra, note 4 at 392. See also J. Stick’s view of
Levinson’s Nihilism, in “Can Nihilism Be Pragmatic?” (1986) 100 Harv. L. Rev. 332 at 332-
33 n. 2, 342 n. 32, 344 n. 42.
1988]
SKEPTICISM AND LAW
ory of language. It is an assault upon the easiest of cases, an assault which
Neil MacCormick was able to say in the 1970s “no one has ever ad-
vanced….’48 Welcome to the 1980s. The rule following critique has an ob-
vious link to the basic indeterminacy assault. But there is clearly a more
direct link between scepticism about the possibility of knowing what it is
to follow a rule, and law. If rule following is an illusion, the law, quintes-
sentially viewed as a rule following (normative) activity is brought directly
into question. The link between the critique of rule following and the fun-
damental critique of the rule of law (“liberal legalism”) is clear. The fun-
damental critique postulates a view of the world in which law is the objective
arbiter between conflicting individual interests and in which, in order to
fulfill the objectives of the rule of law and not “men”(!), the law must be
objectively knowable and formally manipulable. The concept of a rule,
which can be known in advance, guide behaviour in the world, and direct,
generate, and demand certain judicial responses is central. In short, rules
are central to the “rule of law”. If rule following is an illusion, then law is
as well, at least if “law” is to fulfill the requirements said by the critic to
be required by the rule of law.
The use in context idea (“Teach the children a game”) is the simple
message of the later Wittgenstein’s theory. Many lawyers have a superficial
acquaintance with this notion. The rule following critique is a more complex
argument but the idea of “rule following” is the “centre of Wittgenstein’s
later theory of meaning. ‘ 49 It is also true that Wittgenstein’s ideas on rule
following have recently come to be seen as more central to his later work.50
The publication of Kripke’s Wittgenstein: On Rules and Private Languages’
was an important if controversial 52 moment in the ascendancy of the prob-
lem of rule following. A recent review of Kripke’s book in the pages of the
Yale Law Journal53 draws attention to the importance of Kripke’s sceptical
views for law and legal scholarship.
Mark Tushnet invokes the rule following critique in his essay “Follow-
ing the Rules Laid Down: A Critique of Interpretivism and Neutral
Principles” ’54 by making use of a version of a famous Wittgensteinian puzzle
48N. MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978).
49Pears, supra, note 15 at xv.
50See G.P Baker & P.M.S. Hacker, Language, Sense and Nonsense: A Critical Investigation
Into Modern Theories of Language (Oxford: Blackwell, 1984); S.H. Hotzman & C.M. Leich,
eds, Wittgenstein: To Follow A Rule (Boston: Routledge & Kegan Paul, 1981), at xi-xii.
51S.A. Kripke, Wittgenstein On Rules and Private Language: An Elementary Exposition
52See the preface in Baker & Hacker, supra, note 50; P. Winch, “Facts and Superfacts” 33
53C.M. Yablon, “Law and Metaphysics” (1987) 96 Yale L.J. 613.
s4Supra, note 4.
Philosophical Q. 398 (review of Kripke, supra, note 51).
(Cambridge, Mass.: Harvard University Press, 1982).
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[Vol. 33
utilized by Peter Winch in his important book The Idea of a Social Science.55
Tushnet writes:
Consider the following multiple choice question: “Which pair of numbers
comes next in a series 1, 3, 5, 7?’
(a) 9, 11;
(b) 11, 13;
(c) 25, 18.
f(n – 2); if neither n nor (n –
1.] Thus if asked to follow the underlying rule –
It is easy to show that any of these answers is correct. The first is correct
if the rule generating the series is “list the odd numbers”; the second is correct
if the rule is quote “list the odd prime numbers”; and the third is correct if a
more complex rule generates the series. [One possible rule is the following:
f(l) = 1; for n > 1, if n is divisible by 5, f(n) = n2; if(n – 1) is divisible by
I) is divisible by 5,
5, f(n) = R(n – 1) –
f(n) = 2n –
the “principle”
of the series – we can justify a tremendous range of diversion answers by
constructing the rule so that it generates the answer that we want. As the legal
realists showed, this result obtains for legal as well as mathematical rules. The
situation in law might be thought to differ, because judges try to articulate the
rules they use. But even when an earlier case identifies the rule that it invokes,
only a vision of the contours of the judicial role constrains judges’ understand-
ing of what counts as applying the rule. Without such a vision, there will always
be a diversity of subsequent uses of the rule that could fairly be called consistent
applications of it.
[Tihere is, however, something askew in this anarchic conclusion. After
all, we know that no test maker would accept (c) as an answer to the mathe-
matical problem; and indeed we can be fairly confident that test makers would
not include both (a) and (b) possible answers, because the underlying rules that
generate them are so obvious that they make the question fatally ambiguous.
Another example may sharpen the point. The examination for those seeking
driver’s licenses in the District of Columbia includes this question: “What is
responsible for most automobile accidents? (a)The car; (b) The driver; (c) Road
conditions.” Anyone who does not know immediately that the answer is (b)
does not understand what the testing enterprise is all about.
In these examples, we know something about the rule to follow only be-
cause we are familiar with the social practices of intelligence testing and drivers’
education. That is, the answer does not follow from a rule that can be uniquely
identified without specifiying something about the substantive practices.56
We should pause for a moment to notice the essential ingredients of
this point of view and to consider its implications. First, the fundamental
starting point is that “liberalism” requires neutral application of rules. Sec-
ond, that multiple choices for continuation of the series (multiple “inter-
5p. Winch, The Idea of a Social Science and Its Relation to Philosophy (New York: Hu-
manities Press, 1958).
56Tushnet, supra, note 4 at 822-23.
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SKEPTICISM AND LAW
pretations” are available) is always the condition under which even the
simplest act of adjudication takes place. Choice is inevitable. Third, this
unlimited choice is limited by the “mind set”, “point of view”, “bias”,
“ideological perspective” or selective training of the adjudicators. And it is
only this collective “vision”, to use Tushnet’s term, that makes the problem
of the continuation of the series or “following the rule”, for practical pur-
poses, 57 unambiguous. This is a specific three-part rendition of a general
three-part indeterminacy argument, based upon the notion of rule following
said to be found in Wittgenstein’s thought. 58
Note the result of Tushnet’s philosophising –
it is to destabilize all
rules, and thus to destabilize language. The only salvation is found in the
habits of the community. Tushnet’s skepticism about the continuation of
the series59 of numbers may be viewed as a simplistic version of the more
complex and controversial argument put forth by Kripke. While the book
has received a “mixed” reception from Wittgensteinian scholars60 its at-
traction for lawyers has been significant. 61 Yablon in his review states that
lawyers “will ultimately find Kripke’s work most valuable. ’62
The important point is that the strong indeterminacy critic reads Witt-
genstein as denying that language itself can constrain because it is always
malleable and open to the politics of context. Furthermore, rules themselves
do not guide, determine, or direct what results flow from them. That is,
nothing is in the text or the rule –
all of the action is with the reader. In
short we do not have rule by law (language or text) but rule by the politics
of our judges (readers). The cat is out of the bag.63
57Ibid. at 823.
5 8The actual Kripkean rule following argument is more complex. Kripke believes he can
demonstrate that following even the simplest rule (“addition”, using the word “red”) is “im-
possible”. Past precedents always “underdetermine” the application of the rule to a new sit-
uation. And any appeal to an “intention” I have in my mind would take the form of a “rule
for following a rule”. To appeal to a rule to explain how I follow a rule is the equivalent of
buying two copies of the morning newspaper in order to make certain what the first one
contained is true. (There can be no rule for following a rule … ) Kripke believes this to lead
to the paradox that language is “impossible”. The only way out is the appeal to a “community
consensus” which chooses or selects the correct “interpretation” from the many available. It
is a “sceptical conclusion”, as Kripke calls it, to a sceptical argument.
note 47 at 344; Posner, infra, note 79.
59See also Tushnet, supra, note 35.
6See Baker & Hacker, supra, note 50; Hacker, supra, note 10 at 247 (“a complete distortion”).
61See, for example, citations by Owen Fiss in “Conventionalism”, supra, note 5; Stick, supra,
62Yablon, supra, note 53 at 615.
631 borrow this metaphor from: G. Graff, “‘Keep off the Grass’, ‘Drop Dead’, and Other
Indeterminacies: A Response to Professor Levinson” (1982) 60 Tex. L. Rev. 405. I return to
it later.
McGILL LAW JOURNAL
[Vol. 33
B. The Radical Subjectivity of Ethical Judgment
The question of the status of ethical or political judgment is pervasive
in our philosophical heritage and it would be obviously inaccurate to suggest
that our modem legal critics are responsible for a radical reassessment of
these problems.64 Nevertheless some of the strong legal critics have clearly
identified themselves with those who have severely devalued the currency
of ethical discourse. In a modem, scientific, empiricist age it is in fact true,
I believe, that “logical positivism” and a general value scepticism associated
with liberal pluralism have become, as John Stick puts it, part of the “general
intellectual heritage of American Law”. 65 “Logical positivism” is the phil-
osophical doctrine identified with the Vienna Circle of the 1920s which held
that only propositions which are empirically verifiable or analytic can be
meaningful. All else, including ethical and political discourse, is nonsense.
As Searle puts it “propositions of ethics had only a kind of second class
meaning, an emotive meaning, because they weren’t really verifiable, ana-
lytically or empirically, but were just used to express feelings and emo-
tions.”’66 A famous English exposition of this position is A.J. Ayer’s
Language, Truth and Logic. 67 Of course general scepticism about the “ob-
jectivity of ethics” and the status of ethical judgments has the longest tra-
dition in Western philosophy. Such scepticism “finds its polite and
conservative expression in Hume and its radically demonic expression in
Nietzsche” 68 but for our immediate purposes it is again the direct link from
Wittgenstein to the modem critics which is illustrative of the central thesis.
In the Tractatus Logico-Philosophicus69 Wittgenstein deployed a vision of
philosophy (the aim of philosophy is to determine the bounds of sense) and
64While it is impossible to give a representative sampling of the sources, modem and well
known readings on this point would include A.C. McIntyre, After Virtue: A Study in Moral
Theory, 2d ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984); J.L. Mackie, Ethics:
Inventing Right and Wrong (New York: Penguin, 1978). And very important recent contri-
butions include B. Williams, Ethics and the Limits of Philosophy (Cambridge, Mass.: Harvard
University Press, 1985); T Nagel, The View from Nowhere (New York: Oxford University
Press, 1986), c. 8-11; J. Finnis, Fundamentals of Ethics (Washington: Georgetown University
Press, 1983); S. Hampshire, Morality and Conflict (Cambridge, Mass.: Harvard University
Press, 1983), c. 6, 7.
65Stick, supra, note 47 at 332-33 n. 2.
66J. Searle in B. Magee, Men of Ideas (New York: Viking Press, 1979).
67A.J. Ayer, Language, Truth and Logic (New York: Oxford University Press, 1936). See
68Finnis, supra, note 64 at 7. For a general description of the “naturalistic fallacy” (“ought
from is”) see B. Williams, supra, note 64 at 121-124. For discussions important to this theory
see J.R. Searle, Speech Acts (London: Cambridge University Press, 1969) at 175-199 and S.
Cavell, “Must We Mean What We Say?” in S. Cavell, ed., Must We Mean What We Say? (New
York: Cambridge University Press, 1976) 1.
69L. Wittgenstein, Tractatus Logico-Philosophicus, trans. D.E Pears & B.E McGuiness (Lon-
especially c. 6.
don: Routledge & Kegan Paul, 1961) (First published in 1921, and in English in 1922).
1988]
SKEPTICISM AND LAW
of the nature of language (the “picture theory”) which led him to a view of
the limits of sensical discourse which entailed the rejection of ethical dis-
course as “nonsense”, meaning that such discourse exceeded the bounds of
sense, that is, what can be said.70 This classical positivist conclusion was
summed up in this famous last cryptic line in the Tractatus: “What we
cannot speak about we must pass over in silence.”‘ 71 The link between Witt-
genstein and the strong ethical scepticism in some strands of the critical
literature is found in the life work of Arthur Allen Leff of the Yale Law
School.72 Leff was the true heir to the realists in the sense that he believed
he was facing up to the true meaning of their legacy. This is made apparent
in the following:
Let us start with a couple of vicious intellectual parodies. Once upon a
time there was Formalism. The law itself was a deductive system, with un-
questionable premises leading to ineluctable conclusions. It was, potentially at
least, all consistent and pervasive. Oh, individual judges messed up, and even
individual professors, and their misperceptions and mispronouncements
needed rationalization, connection, and correction. But that was the proper
job of one of the giants we had in the earth in those days. The job of legal
commentators, and a fortiori of treatise writers, was to find the consistent
thread in the inconsistent statements of others and pull it all together along
the seam of what was implicit in “the logic of the system”. When you found
enough threads and pulled them just hard enough, you made a very neat bag
–
say, Beale’s Conflict of Laws.
Then, out of the hills, came the Realists. What their messianic message
was has never been totally clear. But it is generally accepted that, at least in
comparison to the picture of their predecessors which they drew for themselves,
they were much more interested in the way law actually functioned in society.
There were men in law, and the law created by men had an effect on other
men in society. The critical questions were henceforward no longer to be those
of systematic consistency, but of existential reality. You could no longer criticize
law in terms of logical operations, but only in terms of operational logic.
Now such a move, while liberating, was also ultimately terrifying. For if
you were interested in a society, and with law as an operative variable within
that society, you would have to find out something about that subject matter
and those operations. You would, it seems, have to become an empiricist. That,
as we shall see, is no picnic when the facts you are searching out are social
facts. But there is a worse worry yet. If you no longer are allowed to believe
in a deductive system, if criticism is no longer solely logical, you no longer
70For an excellent introduction to these points generally see Hacker, Insight and Illusion,
supra, note 10 and J.V. Canfield, Wittgenstein, Language and the World (Amherst: University
of Massachusetts Press, 1981). For a positive and inspirational account of Wittgensteinian
ethics see J.C. Edwards, Ethics without Philosophy: Wittgenstein and the Moral Life (Tampa:
University Presses of Florida, 1982).
71Tractatus, supra, note 69, para. 7.
72See the Memorials in (1985) 94 Yale L.J. 1843 and also A. Leff, “The Leff Dictionary of
Law: A Fragment” (1985) 94 Yale L.J. 1855.
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[Vol. 33
can avoid the question of premises. Premises, in terms of logic, are just that:
those things you don’t talk about. But if you are under an obligation to talk
about non-foreordained conclusions, you must start to talk about non-given
starting points. Any (mostly implicit) assumptions that one’s premises in some
mysterious manner are at least congruent with the commands of the universe
would (and did) come under increasing pressure. If “good” were seen solely
in terms of effects, the only good premises were those that came up with good
effects. Thus, by dropping formalism we (quite rightly) fell into the responsi-
bility of good and evil.
But not, alas, the knowledge thereof. While all this was going on, most
likely conditioning it in fact, the knowledge of good and evil, as an intellectual
subject, was being systematically and effectively destroyed. The historicalfen
through which ethical wanderings led was abolished in the early years of this
century (not for the first time, but very clearly this time); normative thought
crawled out of the swamp and died in the desert. There arose a great number
of schools of ethics –
axiological, materialistic, evolutionary, intuitionist, sit-
uational, existentialist, and so on – but they all suffered the same fate: either
they were seen to be ultimately premised on some intuition (buttressed or not
by nose counts of those seemingly having the same intuitions), or they were
even more arbitrary than that, based solely on some “for the sake of argument”
premises. I will put the current situation as sharply and nastily as possible:
there is today no way of “proving” that napalming babies is bad except by
asserting it (in a louder and louder voice), or by defining it as so, early in one’s
game, and then later slipping it through, in a whisper, as a conclusion. 73
The authority cited for the underlined portion of this passage is Wittgen-
stein’s Tractatus. Much of Leff’s work involved examining the theories of-
fered by others on both the left and right and exposing the values inevitably
smuggled in by those theorists, and on this basis challenging the legitimacy
of the theory.74 Left believed in certain values but he did not believe his
values could be in any way justified. In one of his most famous passages
he wrote:
As things now stand, everything is up for grabs.
Nevertheless:
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up to and died resisting
Hitler, Stalin, Amin, and Pol Pot –
Custer too – have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
[As together now:] Sez who?
God help us.7″
and General
L. Rev. 451 (Review of R. Posner, Economic Analysis of Law).
73A. Leff, “Economic Analysis ofLaw. Some Realism about Nominalism” (1974) 40 Virginia
74See A. Leff, “Memorandum” (1977) 29 Stan. L. Rev. 879 (Review of Unger, Knowledge
and Politics); Leff, “Law and Technology: On Shoring up a Void” (1976) 8 Ottawa L. Rev. 530;
Left, “Unspeakable Ethics, Unnatural Law” (1979) 6 Duke L.J. 1229; Leff, supra, note 73.
75Left, “Unspeakable Ethics, Unnatural Law”, supra, note 74.
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SKEPTICISM AND LAW
Arthur Leff had read the Tractatus and he never changed his mind. And if
Leff is the most honest heir to the realists, current strong sceptical writing
is directly linked to his legacy. In fact, Levinson dedicates his essay “Law
as Literature” 76 to the memory of Leff and in his final footnote he recites
the passage just set out. And Mark Tushnet finishes a pessimistic essay about
legal scholarship with the following observation:
That … leads to the final possible responses to the argument I have made.
Legal scholars can devote themselves to replaying the Realist line each time
someone comes up with some clever but, the chances are, unfounded way
around Realism’s critique of the rule of law. The work of Professor Leff is my
example. 77
While it would be terribly unfair to label all or most C.L.S. Scholarship
as strongly sceptical there is clearly in some strands of that literature a direct
and strong adoption of the radically sceptical thesis. 78 Such scepticism is of
course not necessarily limited to those identified with the critical legal stud-
ies movement.79 In labour law we have a classic example of strict ethical
scepticism in our current debates about the idea of the duty to bargain in
76Supra, note 4.
77Tushnet, supra, note 35 at 1223. See also M. Brest, “The Fundamental Rights Controversy:
The Ethical Contradictions of Normative Constitutional Scholarship” (1981) 90 Yale L.J. 1067,
who begins his essay with the quote in the text accompanying note 75. And see Singer, supra,
note 4 at 39:
The point is that morality is not a matter of truth or logical demonstration, it is a
matter of conviction based on experience, emotion and conversation…. Since legal
reasoning uses and systematizes all of the conflicting arguments that people find
plausible, there is no reason to expect it to provide a basis for decision making that
transcends these ordinary conflicts.
78See Stick, supra, note 47 for a balanced and careful approach to different lines of C.L.S.
Scholarship measured against the standard of nihilism. And see J. Radin, “Risk of Error Rules
and Non-Ideal Justification” in J.R. Pennock & J.W. Chapman, eds, Justification (New York:
New York University Press, 1986) (Nomos XXVIII) 33 at 47-48 [hereinafter Nomos XXVIII].
Some members of the “critical legal studies” movement … have enthusiastically
debunked the notion of neutral principles separate from politics or ethics. They
seem to think this automatically knocks out the rule of law. But it does not, unless
the rule of law is defined as synonymous with such neutral principles, or unless
ethics is itself necessarily arbitrary, subjective, just a matter of preference, etc. So
far this assumption has seemed implicit in much “C.L.S. writing”, yet this isola-
tionist view of ethics is contrary to the communitarian spirit of their enterprise. A
renewed interest in varieties of objectivity, or in dissolving this subjective/objective
dichotomy, seems to be on the horizon….
79See 0. Fiss, “The Death of the Law?” (1986) 72 Cornell L. Rev. 1 for an equation of law
and economics and C.L.S. scholarship on this point. See also R. Posner “Conventionalism:
The Key to Law As An Autonomous Discipline!” 1987 Wright Lecture, University of Toronto
Law School, (forthcoming in University of Toronto Law Journal) (bracketing C.L.S. and law
and economics in this way is now a “clich”).
McGILL LAW JOURNAL
[Vol. 33
good faith in the negotiation of a collective agreement.80 Indeed it was Alan
Hyde, a C.L.S. labour lawyer, who offered the less sceptical response in this
case.8 ‘
There is an obvious synergy and link between the subjectivity and
indeterminacy thesis. Indeterminacy leads to choice and choice is a problem
because of inherent subjectivity. In fact, as we shall see, all four of these
theses interact together and can be utilized to arrive at extremely sceptical
conclusions.
C. Contradiction
It is difficult to separate completely the notions of indeterminacy, sub-
jectivity, and contradiction. However the idea of “contradiction” is central
to some of the most powerful of the new critical work which aims at re-
vealing the antinomies or contradictions in the thought or value system
espoused by liberal legal theory.82 Although now “repudiated” 8 3 the critical
thesis is a “strong one”. 84 As Michelman puts it:
It speaks of “contradiction” not just “tension” or “ambivalence”, meaning
thus to insist that the resultant element of arbitrariness in law is pervasive and
inescapable – not manageable, for example, by fracturing social life into sub-
realms with individualistic rules and principles for one and socialistic rules
for another.85
Collective Choice” (1983) 56 S. Cal. L. Rev. 461.
8See M.G. Freed, D.D. Polsby & M.L. Spitzer, “Unions, Fairness and the Conundrums of
81A. Hyde, “Can Judges Identify Fair Bargaining Procedures?: A Reply to Freed, Polsby &
Spitzer, “Unions, Fairness and the Conundrums of Collective Choice” (1984) 57 S. Cal. L.
Rev. 415.
82The foundational writing here is contained in R. Unger, Knowledge and Politics (New York:
Free Press, 1975). The most oft quoted statement of the contradiction thesis is that of the
“fundamental contradiction” of D. Kennedy in “The Structure of Blackstone’s Commentaries”
(1979) 28 Buffalo L. Rev. 205 at 211-13. See also R. Unger, “The Critical Legal Studies Move-
ment” (1983) 96 Harv L. Rev. 563.
83See P. Gabel and D. Kennedy, “Roll Over Beethoven” (1984) 36 Stan. L. Rev. 1.
84F Michelman, “Justifications and Justifiability of Law in a Contradictory World” in Nomos
XXVIII, supra, note 78, 71 at 78.
85Ibid. at 78. And as Robert Gordon states:
[C.L.S.] … carries the claim oflaw’s indeterminate relation to life a significant step
further [than the legal realists carried it]: the same body of law, in the same context,
can always lead to contrary results. This is because law is indeterminate at its core,
in its inception, not just in its applications: because its rules derive from structures
of thought (collective constructs of many minds) that are fundamentally contra-
dictory … Since the fundamental contradiction has never been (perhaps can never
be?) overcome, legal structures represent unsuccessful and thus inherently unstable
mediations of the contradiction: over time, therefore, they will tend to become
unglued and therefore to collapse. R. Gordon, “Critical Legal Histories” (1984) 36
Stan. L. Rev. 57 at 62, as cited in Michelman, supra, note 84 at 84.
19881
SKEPTICISM AND LAW
The literature of contradiction is a complex one, and many contradictions
are found in many areas of our law.86 But the engine driving the contra-
diction thesis is a belief in the inability of law to recognize the actuality of
contradictory values and still sustain its legitimacy as law. Indeterminacy
and contradiction merge and are energized by the subjectivity thesis.87
Strong versions of the contradiction, indeterminacy, and subjectivity theses
are particularly debilitating. For example, Singer writes:
It is easy to create completely determinate legal rules and arguments. For
example, an absolutely determinate private law system could be based on the
rule that no one is liable to anyone else for anything and that everyone is free
to do whatever she wants without government interference…. The plaintiff
would always lose. The problem is that this or any other determinate system
bears no relation to anything anyone would consider to be just or legitimate.
The reasons is obvious. We cannot accept such a system because it would not
protect other important, competing values –
security, privacy, reputation,
freedom of movement. We invent more complicated rule systems to accom-
modate our contradictory values. Thus, in our current way of thinking about
law, we have to draw lines between principles and counter-principles, to de-
termine the scope of existing rules, and decide whether to change the rules.88
The net of theories that have been proposed to resolve the contradictions are
hopelessly vague, ambiguous, or themselves entirely contradictory. Nothing
tells us conclusively, when to accept or when to reject a particular argument.8 9
D. Mystification
As the ideas of contradiction, indeterminacy, and arbitrariness of value
judgment merge in their strongest forms in the strongest arguments within
the new critical literature the idea of an alternate mode of explanation of
how legal discourse actually functions becomes necessary. I am interested
here only in the broadest contours of this type of alternative explanation.
The central point is that there is a link between this thesis and the previous
three arguments. 90 One aspect of this thesis should be cleared out of the
way immediately. It is apparent that deconstructing legal doctrine, laying
86See for example, Ronald Dworkin’s discussion of the views of Alan Hutchinson in Law
Empire, supra, note 5 at 442 regarding contradictions in tort theory; and Unger, “The Critical
Legal Studies Movement”, supra, note 82, revealing contradictions in several areas of law
including contract and “equal protection” law.
87See, for example, Hutchinson & P Monahan, “The “Rights’ Stuff: Roberto Unger and
Beyond” (1984) 62 Tex. L. Rev. 1477 at 1483; Brest, supra, note 77 at 1105-1109; and Singer,
supra, note 4 at 6, 11, 15, 16.
88Singer, supra, note 4 at 11.
89 bid. at 16.
9For a useful and detailed review of these points see L.B. Solum, “On the Indeterminacy
Crisis: Critiquing Critical Dogma” (1987) 54 U. Chicago L. Rev. 462.
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bare the assumptions and ideas that lay behind legal rules, is an entirely
familiar and useful enterprise. This resembles no more radical an exercise
than simply trying to understand what in fact we are doing. 91 Although, to
some people, that appears to be a radical step in itself, I wish to dissociate
myself from that point of view. Rather, the point I am interested in is the
idea of “legal consciousness” or “mystification” as a mode of argument and
explanation of legal phenomena. Roughly put, the point I am after is this:
it seems that the stronger one’s identification with contradiction, subjectiv-
ity, and indeterminacy, the more one will be driven to an irrationalist mode
of understanding legal discourse and argument about legal discourse. That
is, strong acceptance of indeterminacy, contradiction, and arbitrariness (sub-
jectivity) leaves one with no other ground to stand upon to offer an alter-
native mode of explanation. Argument, discourse, and rational disagreement
must drop out as a method for understanding or dealing with law and legal
issues. And in fact this is what has happened in the critical literature. Psy-
chology, or at least social psychology, replaces philosophy.
There are certain direct ways in which this can be established and tied
directly to our previous discussion. For example, the Wittgensteinian de-
velopment of the indeterminacy thesis by strong sceptics points directly in
this direction. The text and the rule are meaningless. What counts are the
(arbitrary) social conventions of those encountering the text or invoking the
rule. No guidance exists in the world, in the rule or the text. Rather, it is
in the consciousness of the (interpretative?) community where the truth
(fiction) resides. This is evident in Tushnet’s treatment of the Wittgenstei-
nian problem of “rule following”. Tushnet reads Wittgenstein as a sceptic.
Rules do not guide. Rules are always open to several interpretations. Which
one we choose hangs upon the “disposition” of our community. It is entirely
“arbitrary” how we choose to interpret the rule.92
Much critical theory is dedicated to developing the ideas of “legiti-
mation” and “reification” as explanatory devices for the operations of law.
I do not mean to address these problems here. My point is a simple one
that strong sceptical arguments drive one away from argumentative or direct
modes of explanation to psychological indirect modes of explanation. There
is obviously a spectrum here, and I wish to focus upon one extreme end of
it, that occupied by strong sceptics.
91Fuller and Purdue remark that Nietzsche said that the most common form of stupidity
lies in forgetting what one is trying to do. L. Fuller & W. Purdue, “The Reliance Interest in
Contract Damages” (1936) 46 Yale L.J. 52 at 52.
92See also on this point S. Brainerd, “The Groundless Assault: A Wittgensteinian Look at
Language, Structuralism and Legal Theory” (1985) 34 American U. L. Rev. 1231.
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An accessible and lucid development of the mystification argument is
contained in Bob Gordon’s “New Developments in Legal Theory”. 93 Gor-
don develops the ideas of law as a “cluster of belief’ or “complex cultural
code” or “system of meaning”. But Gordon believes there still are “prom-
ising tactics” available through the use of “ordinary rational tools of intel-
lectual inquiry” 94 in dealing with this view of law. In his view, historical
and empirical research revealing the contingency of our belief systems is of
assistance. But for the strongest critics, however, such appeals to “ordinary
rational tools of intellectual inquiry” are illegitimate. The argument of con-
sciousness becomes an end in itself, the ultimate stop in intellectual inquiry.
The result is that strong critics ride a paradox. Their strong theoretical
scepticism runs the risk of undermining the position from which they launch
their sceptical attacks. At the very least strong critics are resigned to the
purely negative aspect of theorizing. This negative aspect must take the
form of mere description, rather than prescription. Although in some cases
it is difficult, given the theoretical suppositions of the critic, to take seriously
the legitimacy of the description. This is not an end in itself –
the pointing
out of self-contradiction, or self-inflicted wounds. That would amount to
mere game playing. A more positive agenda would be to demonstrate the
inconsistency with a view to establishing the illegitimacy of the strong scep-
ticism which is its source. That is, what is really required is a re-examination
of the arguments which the strong critics believe sustain the strong critical
position. Only then will their own work be able to transcend paradox.
E. Summary
What does adoption of these strong sceptical arguments, or some mix-
ture or combination of them, mean for constitutional discourse? In my view,
these strong theoretical positions conspire to debilitate, trivialize, and mis-
direct our reflection upon the issues of constitutional interpretation and its
legitimacy.95 In what ways does this occur?
First, there is the obvious problem of theoretical self-destruction. This
is not a difficult or novel insight, but the casualty rate among critics resulting
from self-inflicted wounds continues to be high, even among those who are
aware of the risk.96 The simple point is that adopting either a total Leffian
931n The Politics of Law, supra, note 3, 281.
941bid. at 289.
95See Stick, supra, note 47.
96Ibid., and S. Fish, “Anti-Professionalism” (1986) 7 Cardozo L. Rev. 645. See also A.C.
Hutchinson & P.J. Monahan, “Law, Politics, and the Critical Legal Scholars: The Unfolding
Drama of American Legal Thought” (1984) 36 Stan. L. Rev. 199 at pp. 233-238 and 242. See
also the discussion of Hutchinson and Monahan below and compare the differences in
approach.
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ethical scepticism, or the ethical stalemate of the fundamental contradiction,
eviscerates both the criticism the critic advances, and his or her discussion
of significant normative alternatives. Yet our critics insist upon both ad-
vancing strong critical arguments and at least hinting at superior (norma-
tively superior) alternatives. Self-contradictions abound.
And adoption of strong indeterminacy of language arguments leads to
a similar paradox. Our strong critics undermine language and our knowledge
of the world completely.97 These strong critics adopt a very healthy version
of what Donald Davidson calls scheme/content dualism. Yet they have no
trouble writing lengthy essays explaining all of this to us. 98
The fundamental object of much of the strong criticism is that of re-
vealing that both language and ethics are not grounded in anything, that is,
any objective basis or foundation. Theirs is what might be called a “negative
non-foundationalism”. Here the strong critics somewhat ironically insist
upon extraordinarily high standards of rationality and justification as nec-
essary for the legitimacy of law. They are, if you like, “more firmly caught
up in the grasp of Cartesian dualism” 99 than the “liberals” they attack. They
then part company with the liberals by insisting that such necessary con-
ditions for legitimacy do not hold. As Gerald Graff puts it, the difference
between the strong critics and those they oppose is merely a “tactical or
political difference”.100 That is, the formalists and the strong critics both
believe in the same necessary conditions for law, but “whereas [the for-
malists] would presumably keep the cat in the bag, [the strong critic] would
let it out.””o
To pursue the specifically Wittgensteinian line of development, the
strong critic reads Wittgenstein as saying that language is not grounded in
anything. Any one of a number of arbitrary schemes could be imposed upon
the content of the world, any one of a number of various “interpretations”
of any rule, could be chosen, and is arbitrarily chosen, by community con-
97See Peller, supra, note 4 and Gordon, supra, note 85.
98Donald Davidson, “On the Very Idea of a Conceptual Scheme” in D. Davidson, ed,,
Inquiries into Truth and Interpretation (New York: Oxford University Press, 1985) at 183. He
writes:
Whorf, wanting to demonstrate that Hopi incorporates a metaphysics so alien to
ours that Hopi and English cannot, as he puts it, “be calibrated”, uses English to
convey the contents of sample Hopi sentences. Kuhn is brilliant at saying what
things were like before the revolution using – what else? – our post-revolutionary
idiom. Quine gives us a feel for the “pre-individuative phase in the evolution of
our conceptual scheme”, while Bergson tells us where we can go to get a view of a
mountain undistorted by one or another provincial perspective.
99Stick, supra, note 47 at 394.
100Graff, supra, note 63 at 406.
lOlIbid.
1988]
SKEPTICISM AND LAW
sensus or disposition. Here normativity becomes a matter of statistics. Its
majority rule, a democracy of truth.10 2
When a theory accepts strong and negative non-foundationalism in
ethics, epistemology, and language, the theory is driven to arational, psy-
chological, modes of explanation –
to the idea of “visions” and “complex
cultural codes” and to forces that work behind the scenes which move these
props around –
reification, mystification, and other “subtle” ideas. Con-
ceptual schemes, ways of looking at the world, are necessarily “arbitrary”
and cannot be discussed or argued about, only mocked. There is no me-
diating between them –
they can merely be exposed. Argument, discussion,
the possibility of disagreement as a source of explanation, fall aside. Crit-
icism takes the form of, not discussion, but the attribution or elaboration
of the conceptual or ideological scheme the “other” side is using. The re-
vealing of unarticulated assumptions and unexplored implications is a val-
uable part of legal scholarship, but only if connected to a critical argument
or debate that goes beyond mere exchange of caricatures of world views
and only if based in a set of theoretical assumptions which do not undermine
critique itself.
III. The Canadian Critics
In this part of the essay I wish to establish that these strong sceptical
arguments are performing hard labour for a number of Canadian consti-
tutional critics. I focus upon recent writings of Professors Petter, Monahan
and Hutchinson. In addition to bringing our discussion to a concrete Ca-
nadian context, this focus provides explicit examples of the sorts of problems
identified as the necessary consequences of strong internal supervision.
I should start by saying that I have no desire to forbid Professors Hutch-
inson, Monahan, and Petter their right to say “I told you so!” in connection
with their views of the Charter. But I allow them this only in so far as saying
“I told you so!” is taken as a warning that the Supreme Court of Canada
decisions we actually see are substandard in many ways. It is true that the
decisions are not wonderful and deserve criticism along many dimensions.
But insofar as our Canadian critics are simply saying “I told you so!” with
regard not to the outcome of the decisions, but to the validity of their views
about law, I believe they are mistaken. To a large and yet unacknowledged’0 3
degree our Canadian critics accept the four theses just described and con-
1020n this point see G.E Baker & P.M.S. Hacker, Scepticism, Rules, and Language (New
York: Blackwell, 1984) at 68.
103At least in the articles themselves. Professor Hutchinson has been tremendously and
admirably prolific in defending his theoretical views elsewhere.
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tained in the critical literature already cited. Yet these assumptions, critical
to the success of their enterprise are rarely explicitly defended. The simple,
largely wholesale acceptance of these theses leaves a hole in the heart of this
criticism that is fatal to its success. The sorts of problems referred to above,
including self-contradiction and self-inflicted wounds, are among the un-
favoured intellectual practices which result.
Andrew Petters “The Politics of the Charter”’10 4 is based upon and
accepts without argument most of the strong sceptical theses deployed in
the strand of American critical jurisprudence identified above. The clear
conclusion that one draws from Petter’s constitutional theorizing is that he
is remarkably sanguine about the political process. There is expressed in
his work a fervent belief in a simple majoritarianism as an adequate politics.
Petter is driven to this point of view because of his acceptance of the critical
theses. Specifically, he believes that our constitutional language is
“indeterminate”” 05 and empty. All of the major provisions in the Consti-
tution, from equality rights to rights to freedom of expression, freedom of
conscience, freedom of association, are “amorphous”. They have no mean-
ing at all until they are “infused with political content.”‘ 1 6 It seems to be
Petter’s view that the text of the Constitution is of little or no value. For
example, it is of no significance that “protection of property” rights are
omitted.’0 7
But the adoption of the indeterminacy thesis is critical to Petter only
because of his assertion of the “logical positivism” thesis. The belief on
Petter’s part that language, specifically constitutional language, is “indeter-
minate” and useless until it is “infused with political content” would not
be particularly tragic if Petter did not also believe that all such “infusion”
is in its nature “arbitrary” and based upon “personal economic and social
beliefs.” 10 8 In adopting this thesis wholesale Petter inflicts upon himself the
basic wounds suffered by so many of the strong critics. Having denied the
possibility of anything but an arbitrary and personal ethics or politics, he
then proceeds directly to make strong ethical/political claims. Petters main
argument about the distributional nature of rights also embodies and reflects
his quiet adoption of the basic ideas of indeterminacy and subjectivity.
104Petter, supra, note 12 at 473.
1051bid. at 486.
106Ibid. at 477.
107Ibid at 489.
108Ibid at 477 citing Dickson J., as he then was in Harrison v. Carswell [1976] 2 S.C.R. 200.
In this pre-Charter case Dickson wrote at 218:
The submission that this Court should weigh and determine the respective values
to society of the right to property and the right to picket raises important and difficult
political and socio-economic issues, the resolution of which must, by their very
nature, be arbitrary and embody personal economic and social beliefs.
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SKEPTICISM AND LAW
Conferral of rights is a “zero sum game”. 0 9 Someone wins at someone else’s
expense. But this is so only because, as we have seen, he assumes that there
is no metric or concept of what is to constitute a “win” and what is to
constitute a “loss” –
that is, who ought to win (the state or the accused,
the property owner or the picketer). It is a zero sum game only because
Petter is a sceptic about our ability, or the Constitution’s ability, to make
or at least assist in making those judgments.
Petter also briefly, but without development, associates himself with
the “mystification” thesis. In his view it is ingrained in the judicial ethos
that property rights are part of the “natural order of things”.1 10 This is not
necessarily “conscious”. Petter therefore is not only a sceptic about language
and value but also a sceptic about judges. Petter’s version of the “mystifi-
cation” thesis is in part a familiar and useful story with a respectable pe-
digree.111 Relying upon ideas articulated by J.A.G. Griffith in the Politics
of the Judiciary1 2 Petter draws attention to the background and inclination
of the sort of people who adorn the bench in Canada.’ 13
Implicit in Petter’s writing is a faith in the idea of a simple majoritar-
ianism as an adequate account of democracy. This idea is given patent
expression in Patrick Monahan’s “Judicial Review and Democracy: A The-
ory of Judicial Review”. 14 Monahan brings to Canadian constitutional the-
ory the central thesis of American scholar John Hart Ely’s well known
Democracy and Distrust1 5 and he invites us to accept wholesale its con-
troversial and discredited majoritarian thesis. Although Monahan seems to
acknowledge, several times, the legitimacy and strength of well known dev-
astating criticisms of Ely’s work, a central problem with his essay is its failure
to account for these defects.’ 16
l9Ibid at 474. Petter also in making his distributional claims asserts that rights are negative
ones (“in a liberal democracy” (at 475)) against the government. Petter cites (at 455) Hunter
v. Southam, [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, 41 C.R. (3d) 97, as his authority for
this view, in spite of the fact that that case explicitly involved a constitutional freedom from
certain interferences. He also contradicts himself by noting Rod Macdonald’s reiteration of the
positive/negative rights distinction (at 493).
“llbid, at 489.
“‘See e.g. Cohen, supra, note 14 at 895.
” 2J.A.G. Griffith, The Politics of the Judiciary (London: Fontana, 1978).
“13Petter, supra, note 12 at 489, also notes, among other things, restrictions upon access to
courts.
University Press, 1980).
” 4Supra, note 12.
“1J.H. Ely, Democracy and Distrust:A Theory ofJudicialReview (Cambridge, Mass.: Harvard
t16For example at 89 Monahan refers to “intense and often effective” criticism and at 137
refers to “widespread”, “effective”, and “punishing” criticism. In both instances he refers to
Dworkin “The Forum of Principle” in A Matter of Principle, supra, note 5 at 33 and L. Tribe,
“The Puzzling Persistence of Process-Based Constitutional Theories” (1980) 89 Yale L.J. 1063.
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The Ely/Monahan thesis is that judicial review is anti-democratic. But
this anti-democratic thesis is based upon a strong acceptance of the inde-
terminacy of text and subjectivity of value arguments. Monahan expresses
the indeterminacy position in a moderate fashion at the beginning of his
essay by stating that the Constitution empowers judges with a “wide dis-
cretion”,1 1 7 because the text is “open-ended and abstract”,118 “vague”,11 9
and “inexact”.1 20 But very quickly Monahan takes the gloves off in his
articulation of the indeterminacy thesis by maintaining that the constitu-
tional text and its constituent rights, particularly the rights to equality and
liberty, resemble “blank slates on which the judiciary can scrawl the imagery
of their choice.”‘ 21
Section 1 of the Charter will require the Court to develop a “substantive
theory of freedom and democracy”. 22 But in the Ely/Monahan view there
are no “right answers” to these sorts of substantive ethical/political issues,
and thus no right answer to the question of whether a particular piece of
legislation violates the Charter. Scepticism about judgments of these sorts
are at the heart of the Ely/Monahan view. 123 The acceptance of this strong
thesis drives the theorists to the conclusion that issues of substance are to
be avoided. As Monahan puts it:
[T]he judiciary should not undertake the task of testing the substantive out-
comes of the political process against some theory of the right or the good.
The resolution of the Charter issues is not to be found in the philosophies of
John Rawls, Robert Nozick or Ronald Dworkin. Rather, the central focus of
judicial review should be the integrity of the political process itself.124 [emphasis
added]
The judiciary should interpret the Constitution as a vehicle for inquiry
into the legitimacy of the process by which legislation comes into being –
not as a vehicle for reviewing the substantive decisions contained therein.
And by legitimate process Ely/Monahan mean majoritarianism. The textual
motivation for this in Ely’s case flows from the famous footnote 4 of the
Carolene Products case.125 Monahan has no Canadian textual equivalent.
“17Monahan, supra, note 12 at 87.
11lbid, at 87.
1191bid. at 89.
120lbid. at 87.
2’Ibid at 97.
122Ibid. at 89.
1231f one has any doubts on this score one should refer to J.H. Ely, “On Discovering Fun-
damental Values” (1987) 92 Harv. L. Rev. 1, which appears as Chapter 3 of Democracy and
Distrust, supra, note 115.
124Monahan, supra, note 12 at 89.
125United States v. Carolene Products Co., 304 U.S. 144 at 152-53 (1938).
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SKEPTICISM AND LAW
The Ely/Monahan thesis suffers many deep flaws. Monahan, as has
been pointed out, acknowledges his awareness of many of the flaws exposed
by Ronald Dworkin and Lawrence Tribe. Both Tribe and Dworkin have
demonstrated the futility of trying to separate process from substance. In-
quiries into the legitimacy of process and acceptance of the idea of the
legitimacy of process always collapse into issues of substance. But Monahan
believes these criticisms relate only to the “internal logic”1 2 6 of Ely’s theory
and he believes the crucial reason for the failure of Ely’s project in the United
States lies not in the theory, but in the data, that is in the U.S. Constitution.
In Monahan’s view the U.S. Constitution is not amenable to an Ely-like
interpretation. But, in Monahan’s view, the Canadian Constitution is. Mon-
ahan then spends considerable time making out this case. He explicitly
acknowledges that his case is a normative one. But this gambit is deeply
problematic in the following way.
The Ely/Monahan thesis is a thesis about proper constitutional inter-
pretation. It is a view of how judges “should”‘ 127 interpret the Constitution.
It is a normative argument. The constitutional text clearly underdetermines
the theory of proper interpretation (It is a “blank slate”, remember?). The
issue is which is the best interpretation to choose. But the theory also insists
that there are no right answers to substantive and normative issues and that
therefore judges should not engage in such theorizing. Yet, and this is the
key point, the theory is a normative argument, addressed to judges. The
problem here is one of paradox. 128 One can only accept the Ely/Monahan
theory by rejecting it. This is not a difficulty which disappears at the Ca-
nadian border. This paradox Monahan completely ignores. But he ignores
it in a dramatic way. In the essay Monahan clearly comes clean in pointing
to the overtly normative nature of his argument. I admire the bravado of
this approach, but I am still deeply puzzled by the paradox.
There is much else that could be mentioned about the specifics of Mon-
ahan’s argument, but the basic point is this: the theory is one which is
sceptical about right answers to ethical questions and positively hostile to
judicial determination of such issues, yet it argues a right answer to the
central ethical issue of constitutional adjudication and urges judges to accept
and enforce it.129 A shorthand way of noting this problem is to point out
that Monahan warns us 130 that constitutional theory should not expect to
find resolution in the philosophy of either John Rawls, Robert Nozick, or
126Monahan, supra, note 12 at 91.
127See the quotation in text accompanying note 124.
128As Dworkin, supra, note 114 and others such as Fallon, supra, note 5 have pointed out.
129J. Nagel, “The Supreme Court and Political Philosophy” (1981) 56 N.Y.U. L. Rev. 519
130See the quotation in text accompanying note 124.
at 520.
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[Vol. 33
Ronald Dworkin. But then Monahan immediately finds his constitutional
theory in what can be styled a Robert Nozick type argument favouring
process over substance. The whole point of the Ely “move” to process
(securing legitimacy for judicial review in a democracy) is lost.
Thus the first major deficiency with the Ely thesis is that it makes an
impossible distinction between process and substance. The second is the
paradox that it relies upon the very substantive normative judgments it
condemns. (This is, as we have already observed, simply the price to be
paid for adoption of the strong sceptical thesis.) The third difficulty, to which
I turn now, is that the substantive normative judgments upon which it relies
are deeply unappealing. And, contrary to Monahan’s assertions, they may
be even less appealing in Canada than they are in America. These judgments
are driven by the same fundamental aversion to issues of substance. And
Monahan believes Canadian society is on his side, that it shares his
scepticism.
This third point requires two observations. First, the value of Ely’s
contribution to the debate was to give articulate expression to one sceptical
extreme. It asserts that there is only one value expressed in the Constitution
and that it is the value of a well functioning majoritarianism. Yet it is clear
that our constitutional values, as expressed in the Charter, can be reduced
to this “process view” only with extreme distortion of much of our con-
stitutional language, and in the end without any real account of what is of
value in majoritarianism anyway. There is more in our Constitution than
a simple commitment to pure majoritarianism. As eloquent a statement of
this fact as I have found is that by the distinguished American philosopher
Thomas Nagel who wrote, in response to Ely:
I would express this not by saying that my interpretation of democracy differs
from Professor Ely’s, but rather by admitting that my committment to de-
mocracy is weaker than Professor Ely’s – for I think there is a fairly strong
connection between democracy and majoritarianism, but that these values are
not the whole of our political morality. The moral equality of equal liberty is
just as fundamental as the moral equality of equal representation.’ 3
1 [emphasis
added]
It requires the grossest distortion to read the Charter as being subservient
to a single over-arching 132 theory of majoritarianism, even read as equal
access to the democratic process. But, and this is the second observation,
Professor Monahan bolsters his view that the process/majoritarian approach
31Nagel, supra, note 129 at 521.
321t is what Fallon would refer to as “privileged factor” theory. See Fallon, supra, note 5 at
1
1209ff.
1988]
SKEPTICISM AND LAW
is correct by an appeal to the “distinctive quality of the Canadian political
tradition.”” 33 Monahan believes that those who see in the Constitution val-
ues beyond the process of simple well-working majoritarianism espouse a
“profoundly individualistic philosophy (of right as “trumps” against the
community). 134 Monahan also believes that those who go beyond process
embrace an “impoverished conception of communal politics.”‘1 35 In Mon-
ahan’s view those who believe in more than majoritarianism believe that
“all roads converge on the atomistic pre-political individual maximizing
his or her self-interest.”‘ 136 Monahan believes that Canada does have a less
individualistic political tradition and that therefore we should be sceptical
of any substantive values and should be more willing to embrace his simple
majoritarianism. But doesn’t this all sound rather odd –
even counter
intuitive? 137
I am prepared to accept, for the sake of argument, Monahan’s view that
Canada does have a less individualistic political tradition, but the conclusion
he draws is at odds with the description itself. The difficulty we encounter
here may be summed up as follows. Monahan alleges that because we have
a richer, less individualistic, less atomistic political culture we should be
even more wary (!) of taking our Constitution to express values which go
beyond respecting the simple counting of individualistic atomistic prefer-
ences in a strictly majoritarian regime. At the very least there is some dif-
ficulty here. Part of it has to do with Monahan’s tendency to characterize
rights as purely negative, that is, against the community. Here Monahan
shares with Petter and Hutchinson a particularly narrow idea of substantive
rights. Why must rights be so characterized? 38
Furthermore, why cannot a self-reflective community recognize that its
deepest values must sometimes be protected by constitutional text. Why
cannot constitutional rights be understood as expressing a political culture’s
deepest values which must to some extent transcend the immediate impulse
of a self-interest maximizing majoritarian calculus? These are large questions
but they point to difficulties in Monahan’s thesis which are simply unan-
swered. There is in Monahan an assumed link between a communitarian
society and majoritarian politics, to the exclusion of constitutional value.
And the linchpin in this assumption is Monahan’s scepticism.
133Monahan, supra, note 12 at 129.
134Ibid. See also Petter on the character of rights as negative rights, above, text accompanying
note 109.
135Monahan, supra, note 12 at 130.
136Ibid. at 152.
’37I do not wish to explore in detail the sense of perplexity which arrives with Monahan’s
conclusion –
I do not seek to finally resolve the debate which he here explores.
138See, on this point, Michelman, supra, note 84 at 91. And see what Monahan himself has
written in Hutchinson & Monahan, supra, note 87 at 1490.
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While these are the central theoretical objections to Monahan’s thesis
they to some extent seem irrelevant to the concrete applications Monahan
reflects upon at the end of his essay. For example, Monahan argues that the
Canadian constitution does not rest upon a rigid distinction between public
and private realms so that a more egalitarian, redistributive, communitarian
interpretation is available and desirable. Thus, campaign financing legis-
lation which regulates and limits spending and thus secures some equality
of liberty in the political process is to be sustained.139 The notions of formal
equality and negative freedom are to be rejected in favour of a notion of
real or substantive equality and positive or actual freedom. 140 But the role
of Monahan’s process theory is deeply ambiguous. Both the formal and
substantive approaches to campaign financing legislation can be said to be
carried out in the name of a “pure process”. All of the weight of Monahan’s
argument here is borne by the appeal to substantive notions of equality.
The central question with which we are left is whether there is one and
only one over-arching theory based upon democracy and equality of access
to the political system that informs our Constitution. The idea that there
is one theory that drives the Constitution is a peculiar one.’ 41 And in any
case it is an argument that Monahan cannot sustain without contradicting
his basic theoretical assumptions.
Andrew Petter and Patrick Monahan both embrace, at least in part, the
indeterminacy and subjectivity thesis. A recent contribution by Professors
Hutchinson and Petter broadens and deepens the involvement of our
Canadian constitutional interpretation literature with the four strong lines
of critique. In their “Private Rights/Public Wrongs: The Liberal Lie of the
Charter” many familiar themes are assembled in what may fairly be de-
scribed, I think, as a tirade against both the Charter and the dark force of
“liberalism”. Professors Hutchinson and Petter do not mince words when
it comes to the indeterminacy thesis. They tell us that the Charter is based
on nothingness and that all is void.142 Scary stuff. They believe there is in
the Charter a “vision”, a “particular vision of society and social justice.”‘143
But unlike liberals our authors are not afraid to look over the edge and
report back that they have seen nothing which could serve as the foundation
to this vision, and also report that it favours the well-off at the expense of
139Here Monahan does seem to get inspiration not from Nozick, but Rawls. See J. Rawls,
A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971) at 244ff (on the need for “fair
value of political liberty”).
14Monahan, supra, note 12 at 160-61.
141Fallon, supra, note 5.
142Hutchinson & Petter, supra, note 12 at 2.
1431bid.
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the disadvantaged. 144 This is because the vision is “only partial”, 145 and
while not determinative of any particular case (indeterminacy is still our
fate) it “energizes” and “informs” and “pushes” towards “certain types” of
conclusions. But this “ideological paradigm” is implicit. Like Simon and
Garfunkel’s vision it is creeping and it leaves its seeds while we are sleep-
ing. 146 We are caught in its web without knowing it. Petter and Hutchinson
believe that the Supreme Court of Canada’s decision in Dolphin Delivery’47
is deeply revealing of all these truths, and especially of the “inherent con-
tradiction of a liberal ideology in a positivist age.”‘ 148 They tell us, again,
that Charter rights are to be understood as “negative” and aim at repelling
the state.149
Here again the technique of constructing a straw person is utilized. 150
It becomes evident that what bothers our authors is not liberalism, but
libertarianism. 15 Having erected a straw target the rest is easy. All manner
of normative and descriptive abuse is hurled at it and it is defenseless to
respond. Note, however, that even here it is not at all clear upon which
platform our authors mount their intellectual artillery, given that all is
“void” and “nothingness”.
On the normative side the separation of state and individual, of public
and private, is taken as a central dilemma for the liberal (read libertarian),
especially the positivist liberal. 52 Hutchinson and Petter know and state
that there is no natural distinction between public and private –
the line
is chosen. We choose the free market. The distinction is “illusory” and and
liberalism “covertly ideological”. 153 Liberalism is also a “formal fraud that
perpetuates a substantive injustice.”‘ 5 4 Here the Economics 1001’5 or first
year Contracts class insight, that the market is simply one method of or-
2 S.C.R. 593, 33 D.L.R. (4th) 174.
144Ibid. at 3.
145jbid.
146Simon & Garfunkel, “The Sounds of Silence”.
147Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986]
148Hutchsinson & Petter, supra, note 12 at 8.
149Ibid. at 8-9.
150See note 162, infra.
151See T. Nagel, “Libertarianism without Foundations” (1975) 85 Yale L.J. 136 (review of
Nozick, Anarchy State and Utopia); see also C. Sunstein, “Two Faces of Liberalism” (1986)
41 U. Miami L. Rev. 245.
152Hutchinson & Petter, supra, note 12 at 10.
153Ibid. at 13.
154 bid.
I55See for example the introduction of this idea in R. Heilbroner, The Making of Economic
Society, 7th ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1985).
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ganizing social relations that is chosen, 156 is treated as an intellectual trump
card which proves the covert corruption of liberal thought. This is accom-
plished only by assuming that it must be true that because we choose to
draw a line it must be illusory, or that it is non-existent because we deny
we choose it. But both of these claims are remarkable only for their
invalidity.
On the empirical side Hutchinson and Petter insist that the liberal (read
libertarian) vision is out of sync with Canadian reality because we have The
Welfare State. Of course the Charter and its liberal defenders are bound to
be off the mark, if they are consigned to the sort of implied Nozickian
libertarianism with which our authors saddled them. But that’s a trifle unfair
as a style of argument. Even those such as David Beatty who have broken
out of the public/private distinction are condemned as incoherent because,
on our authors’ view of “liberalism”, some theory of distributive justice is
now involved and thus liberalism is lost. The failures in others which are
apparent to our authors are in fact the reflections of their own distorted
image of what others are saying. The straw person upon whom our authors
heap abuse must insist that law is neutral and apolitical, that there is an a
priori division between the public and the private realms, and that all con-
siderations of substantive justice are off limits to the law.
Professors Hutchinson and Petter have a great faith in the power of
doctrine, of visions, of analytic distinctions, to blind us to the politics of
law. They accuse many people of self-deception in this regard. They ignore
the possibility, and seem to regard it as unnecessary to explore the view,
that others are not duped, or blinded, or labouring under a myth –
but
simply disagreeing, perhaps wrongly, with them. And they ignore the truth
that operating upon certain assumptions is not “bad faith”, even if the
assumptions are wrong. This form of “argument” or “debate” is the con-
sequence of our authors having painted themselves into an irrationalist
comer.
In the view of Hutchinson and Petter we would apparently be better
off without a Charter 157 although their argument would seem to be for a
broader application of that document. But in their view we have the worst
156Although we must be careful here about how we use the word choice. Clearly a market
or free contract regime only makes sense in societies of certain sorts. That is, the grammar of
contract is not automatically available everywhere. Thus our notion of choice, is tempered by
our understanding that we can only choose what we are capable of knowing. See Cavell, supra,
note 1 at 308. (“[T]he law of contract itself would only develop in a society in which that form
of life already existed.”) E Kessler & G. Gilmore, Contracts: Cases and Materials, 2d ed.
(Boston: Little, Brown, 1970), Introduction. Here Hutchinson and Petter assume an Archi-
medean point.
ISlHutchinson & Petter, supra, note 12 at 23.
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of both worlds because the courts have been using the Charter to restrict
public endeavors, while ignoring private injustices. 158 Interestingly enough,
this is where our authors do good work – where they abandon their in-
sistence upon indeterminacy, subjectivity, and mystification. That is, when
our authors cease explaining our problems by reference to the mind-
numbing false god of liberalism and engage in concrete critique of the results
which have been generated by our courts they are in many cases convincing.
Here the weird and untenable distinctions the courts have managed to draw
at this stage of our constitutional history are pointed out. They write,
powerfully:
When the rights of property owners and speakers collide, speakers stand dumb
before the claims of property. While the courts invalidate legislation that seeks
to restrict the exaggerated impact of the wealthy on electoral campaigning, they
uphold manufacturers’ claims that their freedom of speech is infringed by
legislation that restricts television advertising for children. 59
The power in this sort of critique lies in standard arguments about con-
sistency, even-handedness, and equal treatment. These are familiar ideas.
The arguments here cohere with our understandings of legal discourse and
practice. And our authors reveal the illogic of Dolphin Delivery with similar
aplomb. Here Hutchinson and Petter abandon the rhetoric and engage in
standard constitutional discourse. That is, here they play the language
game.160 Yet, on their own theoretical terms, it is difficult to know what
status these arguments have. For them, at least when they speak theoretically,
the Charter and all attempts at Charter discourse are to be regarded as islands
of false consciousness in a sea of nothingness. The lesson is that they are
better offjettisoning their basic theoretical assumptions which are their own
unique mixture of very strong versions of the four critical arguments of
indeterminacy, subjectivity, contradiction, and mystification. Their strong
identification with extraordinarily strong versions of these theses under-
mines their critique and makes their plea for a more egalitarian conception
of law and social justice theoretically empty.
The purpose of reviewing these contributions to Canadian constitu-
tional scholarship is not simply to point out their internal theoretical prob-
lems. Rather, it is the idea that this self-contradiction must point to some
inadequacy in the sceptical theoretical underpinnings the authors them-
selves invoke. And this in turn would explain why our authors are in the
end unable to live out their theoretical claims and instead revert to what
we see as meaningful criticism. It is to the task of exploring this idea which
I turn now. What follows is the most preliminary outline of the foundation
15 81bid at 23.
’59Ibid at 25.
’16 See also their critique of the treatment of corporations under the Charter, ibid. at 27.
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of a more adequate account of law –
nings of what I call “Law’s Grammar”.
a sketch of the most basic underpin-
IV. A New Starting Point
Strong internal scepticism fails (and its own practitioners abandon it
at the crunch) because it holds the idea of law hostage to a set of demands
which is not just practically impossible to obtain but conceptually
incoherent.
Earlier I suggested that the strong critics’ use of the later philosophy of
Ludwig Wittgenstein was “deeply shallow”. 161 This was my starting point.
The basic idea is a simple one. Strong critics misunderstand Wittgenstein’s
view of language in a manner which is symptomatic of their overall enter-
prise. Those critics demand too much from language and law (as well as
ethics).162 There were, it will be recalled, two kinds of development of Witt-
genstein’s later thought, particularly as found in the Philosophical Investi-
gations. First is the idea of the use of words in context, and the second, the
idea of “rule following”. Along both lines of development the strong critics
read maximum scepticism into Wittgenstein’s writings. But this is wrong.
Wittgenstein was not a sceptic, rather, he viewed scepticism as a form of
nonsense.1 63 In Wittgenstein’s view the role of philosophy was not to build
up theories, 164 but to dispel confusions –
to reveal nonsense created by
the spell which language puts on us –
to, as he put it, “show the fly the
’61See above, text accompanying note 11.
t62″Many observers have noted that strong critics in assembling the target of “liberal” law
for destruction engage in the exercise of constructing a “straw man” –
see Stick, supra, note
47; Burton, An Introduction to Law Legal Reasoning (Boston: Little, Brown & Co., 1985) at
4, 19, 169, 181, 187-89; J. Finnis, “On the Critical Legal Studies Movement” (1985) 30 Am.
J. Jurisprudence 21; Dworkin, Law’s Empire, supra, note 5; MacCormick, supra, note 48. The
accusation is that the critics construct a straw target requiring an overblown and nonsensical
requirement of absolute certainty and predictability as necessary conditions for the validity of
the project of legal regulation. The legal theorists under attack as “mainstream” or “liberal”
all hold more sophisticated theories about legal reasoning, the requirements of legal certainty
or determinacy, and the ideal of the rule of law than those ascribed to them. In this regard
many critics impose an “unrealizable ideal” (Burton, at 4) and in fact resort to the demands
of “legal formalism” (Burton, at 169, 181, 187) in adjudication. Scepticism is the result of an
overly formalistic demand upon our system of adjudication and of a severe inability to shake
the grips of logical positivism as a method of understanding any form of normative or ethical
discourse. (Stick, supra, note 5). H.L.A. Hart said that “the rule-sceptic is sometimes a dis-
appointed absolutist: he has found that rules are not all they would be in a formalist’s heaven….”:
The Concept of Law (Oxford: Clarendon Press, 1961) at 135.
163Baker & Hacker, supra, note 50 at 5ff.
164See Cavell, supra, note 1 at 15: “Wittgenstein has no philosophy of language at all. He
can be better read as attacking philosophy’s wish to provide theories of language….”
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way out of the fly bottle.”‘ 65 And scepticism is one such form of confusion;
the sceptic one more fly in a bottle.
The Philosophical Investigations are grammatical investigations in-
volving the “eliciting of what he [Wittgenstein] calls criteria” 166 for the
proper utilization of concepts. The fundamental aim of philosophy is still
the same: the aim of “putting in order our ideas as to what can be said
about the world.” 167 Wittgenstein aims at providing a “surview” of our
language obtained by a “careful description of our own ordinary uses of
language.”‘ 168 And “we obtain a proper surview when we grasp the grammar
of language. 169 The concepts of criteria and grammar are central. But these
are obtained or grasped only by a description of our language in ordinary
use. Wittgenstein wrote, “a main source of our failure to understand is that
we do not command a clear view of the use of our words.” 70 Philosophical
confusion involves the misuse of language and the violation of, or the failure
to understand, the grammar of our concepts. Concepts are misused when
they are used out of the context in which they reside and are used. The
great subjects of philosophical debate and confusion are generated when
philosophers and others utilize concepts without regard to the grammar
governing their use, which is discernable by careful investigation of the use
of these concepts.171 As Wittgenstein puts it “philosophical problems arise
when language goes on holiday.”‘ 172 That is, philosophical problems arise
when philosophers use language out of context, when it is not at work, doing
its normal job in our lives. 173 And Wittgenstein continues:
What we do is bring words back from their metaphysical to their everyday
use.174
’65Philosophical Investigations, supra, note 27, para. 309.
166Ibid., para. 6.
t67Hacker, supra, note 10 at 51.
1681bid. at 151-52. And “we obtain a proper surview when we grasp the grammar of language.”
169Ibid, at 152.
170Philosophical Investigations, supra, note 27, para. 122 [emphasis in the original].
t71See Hacker, supra, note 10 at 168 for a list of types of grammatical errors which Witt-
genstein points to in the course of the Philosophical Investigations. Huck Finn said “You can’t
pray a lie.” This is a grammatical point. When someone says a word is on the “tip of their
tongue” we don’t ask them to open their mouths. Yet we make the same sort of mistake in
language all the time, in Wittgenstein’s view. (This example is taken from Hacker, supra, note
10 at 172).
172Philosophical Investigations, supra, note 27 para. 39.
173See Cavell, supra, note 1 at 226.
174Philosophical Investigations, supra, note 27 para. 116.
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The results of philosophy are the uncovering of one or another piece of
plain nonsense and of bumps that the understanding has got by running its
head up against the limits of language. 175
Philosophy may in no way interfere with the actual use of language; it can
in the end only describe it. For it cannot give any foundation either. It leaves
everything as it is ….176
The strong sceptic misses the central message of the Investigations, a
message which is not destructive of but important for law. More than any-
thing it is the idea of language as an activity (not a mental process) which
resonates throughout the Philosophical Investigations. Wittgenstein came to
view language as an activity performed by human beings in the endless
variety of interactions and functions in which they are engaged. It is this
message which the strong critics misunderstand and misuse. In Wittgen-
stein’s view understanding is akin to an ability or mastery of a technique.
The criteria for understanding lie in behaviour –
the ability to use an
expression in accord with its explanation, the rules for its use; or, to put it
more plainly, the ability to play the “language game” in which the expression
has a home. 177
So, when the strong critic such as Boyle, claims that Wittgensteinian
philosophy is corrosive because of the indeterminacy it creates by “referring
out” to “political” context, his assertion is simply offthe mark. 178 As Gerald
Graffputs it, in Wittgenstein’s world, indeterminacy is not the result because
our language has the “determinacy of an activity”. 179 Nor is the lesson of
the rule following critique scepticism, but rather, insight into the idea of
practice as “bedrock”. 180
Recall the sort of example which Tushnet and Kripke utilized –
the
example of the continuation of the series 1, 3, 5, 7. Many possible rules or
“interpretations” of what the rule might be are available. And even if we
state the rule (“list the odd numbers”), that rule is open to multiple inter-
pretations. Neither precedent nor intention can govern or dictate the out-
come. Although all of this is true and as we shall see, unimportant, the
strong sceptics still focus upon the following remark of Wittgenstein’s.
175Ibid. para. 119.
76 Ubid. para. 124.
‘ 77Canfield, supra, note 70 at 27.
178See above, text accompanying note 41.
179Graff, supra, note 63 at 408.
“80See Canfield, supra, note 70 at 27; see also Hacker, supra, note 10; Baker & Hacker, supra,
note 50; P. Winch, The Idea of a Social Science (London: Routledge and Kegan Paul, 1958);
P. Winch, Ethics in Action, (London: Routledge and Kegan Paul, 1972).
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This was our paradox: no course of action could be determined by a rule,
because every course of action can be made out to accord with the rule. The
answer was: if everything can be made out to accord with the rule, then it can
also be made out to conflict with it. And so there would be neither accord nor
conflict here.’ 8′
But this ignores what immediately follows in paragraph 201 of the
Investigations:
It can be seen that there is a misunderstanding here from the mere fact that
in the course of our argument we give one interpretation after another; as if
each one contented us at least for a moment, until we thought of yet another
standing behind it. What this shows is that there is a way of grasping a rule
which is not an interpretation, but which is exhibited in what we call “obeying”
the rule and “going against it” in actual cases. 82 [emphasis is added in first
line]
And earlier Wittgenstein said:
“But how can a rule shew me what I have to do at this point? Whatever I do
is, on some interpretation, in accordance with the rule.” – This is not what
we ought to say, but rather any interpretation still hangs in the air along with
what it interprets: and cannot give it any support. Interpretations by themselves
do not determine meaning.
Then can whatever I do be brought into accord with the rule? – Let me
ask this: what has the expression of a rule –
got to do with
my actions? What sort of connexion is there here? – Well, perhaps this one:
I have been trained to react to this sign in a particular way, and now I do so
react to it.
say a sign-post –
But that is only to give a causal connexion; to tell how it has come about
that we now go on by these sign-posts; not what this going-by-the-sign really
consists in. On the contrary; I have further indicated that a person goes by a
sign-post only in so far as there exists a regular use of sign-posts, a custom.
Is this what we call “obeying a rule” something that would be possible for
only one man to do, and to do only once in his life? – This is of course a
note on the grammar of the expression to “obey a rule”.
It is not possible that there should have been only one occasion in which
someone obeyed a rule. It is not possible that there should have been only one
occasion on which a report was made, an order given or understood; and so
on. – To obey a rule, to make a report, to give an order, to play a game of
chess, are customs (uses, institutions).
181Philosophical Investigations, supra, note 27 para. 201.
I82Ibid.
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To understand a sentence means to understand a language. To understand
a language means to be master of a technique. 83
Kripke and Tushnet believe that Wittgenstein is sceptical of language and
rules. 184 They believe that there are multiple interpretations of even the
simplest of rules (the rule for addition, for the use of the word “red”) and
that the community “decides” or “achieves consensus” or “is disposed” or
“determines” which “interpretation” is to be considered correct. And “cor-
rect” here simply means that which the community is disposed to do. But
this is a misconstrual. Scepticism arises only if we insist that following a
rule, using an expression correctly, is a mental process (choosing an inter-
pretation) and not a form of activity. Wittgenstein is saying that obeying a
rule is not a product of thinking, but of acting. This is a point about the
“grammar” of rule following. In the end our knowledge of rules is simply
knowing “now to go on”, and our explanations “run out”. But this is not
a defect in rules or in us. Rules cannot apply themselves.
This is not a point about “community consensus”, or “custom”, as
arbiters of what is correct or incorrect in the application of a concept. It is
a grammatical point about the necessary background conditions for the
existence or use of concepts at all.
Kripke focuses upon several famous lines in the Investigations in his
attempt to ground his sceptical views. Wittgenstein says:
How can he know how he is to continue a pattern by himself – whatever
If that means “have I
instruction you give him? – Well, how do I know? –
reasons?” the answer is: My reasons will soon give out. And then I shall act,
without reasons. 185
How am I able to obey a rule? –
if this is not a question about causes,
then it is about the justification for my following the rule in the way I do. If
1837 Wittgenstein, Philosophical Investigations, supra, note 27 paras. 198, 199. See also par.
454:
Everything is already there in… How does it come about that this arrow points?
“No, not the dead line
Doesn’t it seem to carry in it something besides itself? –
on paper, only the physical thing, the meaning, can do that.” – That is both true
and false. The arrow points only in the application that a living being makes of it.
This pointing is not a hocus-pocus which can be performed only by the soul.
On this idea of the guidance a sign-post can give see C. Michelman, “Politics as Medicine: On
Misdiagnosing Legal Scholarship” (1981) 90 Yale L.J. 1224 at 1226-27.
184Owen Fiss also accepts their sceptical starting point, wrongly: see 0. Fiss, “Objectivity
and Interpretation” (1982) 34 Stan. L. Rev. 735 at 762. On this point see D.M. Patterson,
“Interpretation in Law: Towards a Reconstruction ofthe Current Debate” 29 Villanova L. Rev.
671.
185Philosophical Investigations, supra, note 27, para. 211.
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I have exhausted the justifications I have reached bedrock, and my spade is
turned. 86
When I obey a rule, I do not choose. I obey the rule blindly.187
What is Wittgenstein saying here? He is seeking to get rid of confusion
created by a certain model or a notion of rule following that is based upon
a mistake. Rule following cannot be in the end a matter of “interpretation”,
it must be a matter of application. Wittgenstein concentrates upon how we
actually instruct others, and how we ourselves learn the correct application
of concepts such as (+2) or “red”. There is nothing we can do beyond giving
examples and insisting upon practice in order to communicate all we our-
selves know about the use of these concepts. This is not some deficiency in
our understanding. In the end, as Wittgenstein noted in paragraph 1 of the
Investigations “explanations must come to an end somewhere.”1 88 Prece-
dent, as Kripke correctly points out, always underdetermines current correct
usage. And a mental rule explaining how to follow the rule will not do the
trick, for it too is subject to doubt. The lesson is not that paradox is our
fate, but that we are searching for a sort of explanation inappropriate to
understanding how rules actually work. Kripke’s sceptical solution to the
sceptical problem was to argue that the community consensus selects which
of the many contending interpretations is the correct one. It looks among
the contenders and chooses a winner. Kripke’s mistake is archetypical. He
wishes to plug the gap between the rule and following the rule. But, as Pears
points out “it is logically impossible that anything in the rule followers mind
should act as a substitute for the unavoidable leap from language to the
world.” 189 And any argument which thinks paradox or scepticism flows from
noting that nothing can be found to fill the gap is wrongheaded. “Paradox
is always disguised nonsense.”‘ 190 The lesson ought to be that there is no
gap to be filled.’ 91 This is a fundamental point in Wittgenstein’s philosophy
in the Philosophical Investigations. What makes language possible, language
games possible, and what permits us to follow rules, is not simply agreement
in defintions, but agreement in judgments. Wittgenstein writes:
“So you are saying that human agreement decides what is true and what is
false?” –
It is what human beings say that is true and false; and agree in the
language they use. That is not agreement in opinions but in forms of life.If
language is to be a means of communications there must be agreement not
186Ibid., para. 117.
187Ibid., para. 219.
188Philosophical Investigations, supra, note 27.
189Pears, supra, note 15 at xx. See also E. Lepore, ed., Truth and Interpretation (Oxford: Basil
Blackwell, 1986).
19Baker & Hacker, supra, note 50 at 19.
191See Graft, supra, note 63 and text accompanying notes 213ff, infra.
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only in definitions but also (queer as this may sound) in judgments. This seems
to abolish logic, but it does not do so. –
It is one thing to describe methods
of measurement, and another to obtain and state results of measurements. But
what we call “measuring” is partly determined by a certain constancy in results
of measurements.192
What is this idea of “agreement … in judgments” and “agreement in
… form of life”? There is general consensus among Wittgensteinian scholars
that paragraph 242 of the Investigations is of central importance. What
makes language possible and what provides the stability which language has
is our agreement in “judgments”. Hacker unpacks this critical point as
follows:
Grammar cannot come into conflict with reality, anymore than can rules of a
game…. Grammatical rules … determine what makes sense not what is true …
But we apply our grammars, use our languages, against a context of normality
conditions consisting of general regularities of nature. Like a legal system …
our concepts can be said to rest upon such normality conditions not in the
sense of being made true or correct by them, but in the sense of having a point
only in such contexts. Unless average human beings had the normal capacities
for self-control, foresight, recollection, forming intentions and decisions, much
of the criminal law concerning intention, recklessness, negligence etc. would
be pointless. Similarly, in the absence of certain kinds of regularity of constancy
of specific natural phenomena the applicability of concepts would be under-
mined and the point of kinds of concept-laden activities would be lost. Our
concepts of weights and measures only have application and point in a world
with relatively constant gravitational field and relatively stable rigid objects ….
It is, of course, not only the constancy of the physical world which in this
sense, conditions are formed of representations, but also the constance of our
common human nature. Without shared discriminatory capacity we would not
have a common vocabulary of perceptual quality expressions which we char-
acteristically explain by reference to samples. Red/green colour-blindness ex-
cludes the possibility of mastering the use of expressions “red” and “green”,
since the colour-blind cannot employ the samples we employ in ostensive
definitions that constitute standards for the correct applications of these colour
names. If, as a matter of fact, there were radical disagreements in application
of expressions defined by reference to samples, there would no longer be these
language games …. 193
And Cavell, in explaining the importance of paragraphs 241 and 242 writes:
In order for there to “be such things as rules, we have to agree in our judgment
that a rule has been obeyed (or not). (The rule itself is dead). In order for there
to be such things as (what we call) measurements, we have to agree in our
judgment that a particular thing turns out to have such and such measurements.
It is one thing to know that you measure length by successive layings down
of a stick; it is something else to know that this object is just under 14 sticks
long. (The stick itself is dead. It doesn’t tell you where to begin laying it down;
’92Philosophical Investigations, supra, note 27 paras. 241 and 242.
’93Hacker, supra, note 10 at 190-91.
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what counts is succession, and when, and what you do if, the last laying down
goes just over). It would be empty to say that wincing is a criterion of being
in pain if we never accepted any occurrence as wincing (it would be like being
able to count i.e. run up the integers, without being able to count things.) And
while you have a criterion for some things being a wince … eventually, soon
further criterion are added in. 94
This is a truly remarkable and radically different view of language to that
propounded in the Tractatus. It rests, as Pears points out, on an “extreme
Anthropocentrism”.195 It is a form of “linguistic naturalism”.196 What is
crucial for our purposes to see is that while Wittgenstein may here be in a
sense promoting a form of conventionalism197 it is not a form of conven-
tionalism in the sense of it being arbitrary, or a matter of “consensus”. The
conventionalism which Wittgenstein points to here is prior to any form of
conscious human agreement or consensus. The point is that agreement in
judgments is a necessary precondition of language, the background “given”
which makes language possible, but “agreement does not enter into our
language”‘ 198 and only in this sense are the rules of grammar “arbitrary”.199
Scepticism of the sort which Kripke promotes, and Yablon and others
celebrate, results from a refusal to take the Wittgensteinian explanation as
an explanation. The skeptic is driven by a desire to go further. As Wittgen-
stein put it, in typical Wittgensteinian terms, “[i]n order to find the real
artichoke we divest it of its leaves.” 200 Far from providing a rich source of
inspiration or a straighforward indeterminacy of language argument, Witt-
genstein establishes language in our “agreement and judgments”. This is
just the way things are. There is as much stability as there is 20 1 and Witt-
genstein’s appeal to the community here is a vastly different appeal to the
community than that commonly asserted by Kripke, Yablon, Fiss, and oth-
ers who share the general framework of the skeptical or nihilist approach
to language. There are not a multitude of contending interpretations or
meanings of the expressions we use in language. These are not then somehow
evaluated, voted upon, or in any way chosen by the community. There is
no community “consensus”. There is a community agreement, but this does
194Cavell, supra, note 1 at 36.
195Pears, supra, note 15 at 179.
196Ibid, at 197.
197Fiss, “Conventionalism”, supra, note 5; and see Hacker, supra, note 10 at 190-92.
198L. Wittgenstein, Zettel, ed. by G.E.M. Anscombe & G.H. von Wright, trans. G.E.M.
Anscombe (Los Angeles: University of California Press, 1970), para. 430.
’99Philosophical Investigations, supra, note 27, para. 7; Hacker, supra, note 10 at 192.
20 Philosophicallnvestigations, ibid., para. 164. See also Baker & Hacker, supra, note 50 who
quotes at 10 from Dr. Johnson: “Truth, sir, is a cow, which will yield such people no more
milk, and so they are gone to milk the bull.”
201Pears, supra, note 15 at 179.
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not “enter into” 202 our language. It is the framework condition with which
language makes language possible. The result is that rules and language are
possible and exist.
In the end, of course, the sort of justification one can give in explaining
the use of an expression or the application of a rule must give out: “Ex-
planations come to an end somewhere. ’20 3 This is not a source of skepticism,
but a point about the nature of justification, given our understanding of
how language actually works, that it is an activity. In On Certainty, Witt-
genstein wrote: “As if giving grounds did not come to an end sometime.
But the end is not an ungrounded presupposition: it is an ungrounded way
of acting. ‘204
Baker and Hacker expand upon this point as follows:
The supposition that the skeptic can rationally outstrip my justifications is
false. What Wittgenstein says is “If I have exhausted the justifications I have
reached bedrock”. That quote “exhausting the justifications” does not mean:
having no justification. It means: having run through them all. When I have
spent my last penny paying off all my debts, it is true that I have no money
left but it is also true that I have no more debts! If I am asked what an expression
means, I can explain it. An explanation of meaning is a norm of correct use.
If my explanation is not understood, I can clarify it, i.e. I can give a further
explanation of my explanation (a rule for the application of the rule). Ulti-
mately, perhaps, I would explain by giving a series of examples with an “and
so on” rider. This too is an expression of the rule. Now my explanations will
terminate at the point of showing that this and this … is what I call “going on
the same.” If I am now asked “Why?”, I can only say “This is simply what I
do.” I have no further justification but I have given a justification for what I
do, so I cannot be accused of having made a stab in the dark…. Absence of
grounds is a criticism if grounds are at least possible and if doubt about jus-
tification is reasonable. But neither of these conditions obtains here, where
justification is terminated. Precisely because a rule and its extension [appli-
cation] are internally related, because this nexus is grammatical, there can be
no such thing as justifying it. For there is no such thing as justifying gram-
matical, conceptual connections by reference to reality…. What justifies calling
rubies “red”? … What makes it correct? Nothing. This is what we call “applying
“red” correctly”. There is not room for justification.
And as there is no room for justification, so too there is no room for
genuine doubt.205
As Wittgenstein himself put it:
202See above, text accompanying note 184.
203Philosophical Investigations, supra, note 27, para. 1.
204. Wittgenstein, On Certainty, ed. by G.E.M. Anscombe & G.H. von Wright, trans. D.
205Baker & Hacker, supra, note 50 at 82-84.
Paul & G.E.M. Anscombe (New York: Harper & Row, 1969)[hereinafter On Certainty].
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SKEPTICISM AND LAW
You must bear in mind that the language-game is so to speak, something
unpredictable: it is not based on grounds. It is not reasonable or unreasonable.
It is there, like our life.20 6
The simple indeterminacy argument, the argument from uncertainty
because of use in context, and the skepticism based on Wittgenstein’s re-
marks on rule-following are ill-founded. All three of the major steps con-
tained in the general critical argument, and based upon these sources, are
illegitimate ones. First, it is a misunderstanding of rules to insist that they
somehow be “self-enforcing” or contain within themselves the projection
of their own application. That this is a necessary condition of liberal theory
is equally and for the same reason an untenable view. This view of rules
misunderstands the idea of rule-following. It insists that rules be some sort
of platonic mechanism located in a metaphysical realm unconnected to the
real world. The critic is held captive by the sort of image of rule-following
Wittgenstein sought to condemn. Far from being a source of inspiration on
this count, Wittgenstein rejects this view as nonsense.
Second, the allegation that the rule of law fails to secure the ideal be-
cause of the possibility of multiple interpretations is wrong. In the end, the
application of a rule does not turn upon an interpretation, but on a way of
acting.
The third ingredient in the skeptics’ basic argument is that we are
rescued from a sea of uncertainty (multiple interpretations) by a community
consensus as to which interpretation ought to be considered the correct one.
This is a complete misunderstanding of the nature of language. Community
consensus does not enter into our agreements and judgments, but rather is
a framework condition for the possibility of language. To insist, as Kripke
and Tushnet do, that the community consensus rescues us is to deny rules
of all their normativity.20 7 When a child is taught to use a word like “red”
she is not taught “this is what most people call red”, but rather simply, “this
is red.”‘208 A majority of people can be wrong, and often have been. As Baker
and Hacker point out, there is a world of difference between the normative
notion of following a rule correctly and the statistical notion of acting the
same way as most people are disposed to. There is a difference, that is,
between empirical and normative statements. 209 The result then is that these
most fundamental forms of skepticism are unsound.
The upshot of Wittgenstein’s view of language is that all of our language
has meaning only within the language games and “forms of life” in which
20 60n Certainty, supra, note 204, para. 559.
207Ibid. at para. 46.
208Baker & Hacker, supra, note 50 at 72; D. Comell, “Convention and Critique” (1986) 7
Cardozo L. Rev. 679.
209Baker & Hacker, ibid. at 71.
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they are imbedded. One must understand the use, the context, the activity,
the purpose, the game which is being played. One must have mastered the
technique for an expression’s use. To understand an expression is to un-
derstand its place in our lives. There are many important lessons here for
law, but skepticism is not one of them.21 0
These are very basic lessons, lessons about utilizing the simplest of
rules, and the simplest of concepts. What does all of this have to do with
law and constitutional interpretation? The beginnings of an answer to this
question are in the fact that this is the level at which the strong sceptics
launch their attack. They assert that language is unstable and indeterminate
at this basic level and in regard to these straightforward rules and simple
concepts. Their critique claims that if there is instability here, well…. The
benefits of attacking this assertion are not simply to refute the sceptics on
their own ground. There is positive benefit in beginning at this simple level.
The sceptic’s view is not only shallow but “deeply shallow”. What we see
is that even the simplest and most concrete use of simple language, manip-
ulation of straightforward concepts, and application of the most basic rules
can only be understood within the framework of the language game or “form
of life” in which the language, concept, or rule, is embedded. This is the
lesson of the meditations upon rule following. And the critics are right in
thinking that what we learn at this basic level is generalizable. The gener-
alizable lesson from Wittgenstein’s thoughts on rule following is that, as
Peter Winch puts it, “human rationality is essentially social in character.”‘211
In the Wittgensteinian world language is public, not private, and in the
world, not in the mind. In following rules, in using language we participate
in forms of life and language games. This is the point which John Searle
made against Jacques Derrida in a now well known essay “The Word Turned
Upside Down”:
Now, in the 20th century, mostly under the influence of Wittgenstein and
Heidegger, we have come to believe that this general search for … foundations
is misguided. There aren’t, in the way classical metaphysicians supposed, any
foundations for ethics or knowledge. For example we can’t in the traditional
sense found language and knowledge on “sense data” because our sense data
are already infused with our linguistic and social practices. Derrida correctly
sees that there aren’t any such foundations, but he then makes the mistake
that marks him as a classical metaphysician. The real mistake of the meta-
physician was not the belief that there were metaphysical foundations, but
rather the belief that somehow or other such foundations were necessary, the
2t0Some of the positive lessons regarding “interpretation” are explored tentatively in B.
Langille, “Language, Scepticism and the Rule of Law” forthcoming in Canadian Institute for
Advanced Legal Studies, ed., The Cambridge Lectures 1987 (Montreal: Yvon Blais, 1988).
21’See P. Winch, “Nature and Convention” in Winch, Ethics and Action, supra, note 180,
50 at 60 referring to Winch, The Idea of A Social Science, supra, note 180.
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SKEPTICISM AND LAW
belief that unless there are foundations something else is lost or threatened or
undermined or put in question.
It is this belief that Derrida shares with the tradition he seeks to decon-
struct. Derrida sees that the Husserlian project of a transcendental grounding
for science, language, and commonsense is a failure. But what he fails to see
is that this doesn’t threaten science, language, or commonsense in the least.
As Wittgenstein says, it leaves everything exactly as it is. The only “founda-
tion”, for example, that language has or needs is that people are biologically,
psychologically, and socially constituted so that they succeed in using it to state
truths, to give and obey orders, to express their feelings and attitudes, to thank,
apologize, warn, congratulate, etc. 21 2
To revert to Gerald Graff’s wonderful metaphor about letting the cat out
of the bag, the lesson which Searle points to is that while the formalist would
keep the cat in the bag and the strong critic would let it out, the fact is there
is no cat in the bag.213
What I have called “negative non-foundationalism” in the assessment
of language and ethics is what Wittgenstein would call a grammatical
mistake.
2 14
And it is this Wittgensteinian idea regarding rule following and thus
human rationality as being grounded in the bedrock of practice which we
now have begun to see as central to an understanding of law. It is this idea
which is at the core of the recent non-sceptical “turn to interpretation”. It
212J. Searle, “The Word Turned Upside Down” New York Review of Books (27 October 1983)
(Review of J. Culler, On Deconstruction: Theory and Criticism After Structuralism).
213Graff, supra, note 63 at 406-07.
Levinson actually makes the same mistake committed by those whom he is at-
tacking. Like them, he believes that if meaning is not an inner essence in utterances,
meaning is then indeterminate and disputes over meaning are susceptible to rational
procedures of adjudication. The difference between Levinson and those he opposes
is purely a tactical or political difference: whereas they would presumably keep the
cat in the bag, Levinson would let it out. The mistake of both parties is in supposing
that there is any radical consequence in letting the cat out, or indeed that there is
any cat in the bag to begin with.
214But some refuse to take this point, believing that every question which sounds like a
sensical question is a sensical question:
The only true scepticism about knowledge is the radical one –
as irrefutable as it
is empty –
that denies that controversies over particular truths could ever reveal
anything about the world other than the stratagems of our self-deception or that
they could even allow us to pursue our practical interest more successfully. It does
no good to answer to radical sceptics by protesting that no form of knowledge
familiar to us ever could possess the unconditional self-validation that he requires
for knowledge. He will merely answer- that’s just the point: Unger, “The Critical
Legal Studies Movement”, supra, note 82 at 564.
On this type of bullheadedness see generally Nagel, supra, note 64.
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is the explication of the grammar of law, and more particularly the grammer
of constitutional jurisprudence.
Hart, Fiss, Dworkin
It is this sort of Wittgensteinian hermeneutical project which has re-
cently occupied Owen Fiss 215 and Ronald Dworkin.216 Both attempt to se-
cure law against the strong sceptical or “nihilist” 217 attack and both find
solace and inspiration in a common pool of resources in literary theory and
the philosophy of language which is Wittgensteinian in content.
Fiss attempts to defend law by establishing what might be called the
“structural conditions” for a Wittgensteinian view of law -the
existence
of a set of constraining rules utilized by judges as a social group. Dworkin,
on the other hand, has sought to describe and articulate the content or nature
of the actual practice carried on within the structures described by Fiss.
But it was H.L.A. Hart in the Concept of Law218 who first developed
the notion of regarding law as a practice or set of social rules, taken seriously
by judges, that is, in demonstrating the relevance of Wittgensteinian views
about rule following to an understanding of law. The central theoretical
advance in the Concept of Law was the bringing of Wittgensteinian her-
meneutics to bear upon the classic problems of jurisprudence. 219 The cor-
nerstone of Hart’s attempt to elucidate the concept of law was the
Wittgensteinian and Winchian idea of a “social rule”. What characterizes
a social rule is its internal aspect which distinguishes it from a mere regular
pattern of behaviour or habit.220 Law is one set of social rules. The key to
a legal system, in Hart’s view, lies in the existence of “secondary” rules. The
most important of these is the “rule of recognition”, which is a social rule
imposing duties upon, and accepted from the internal point of view, by
judges regarding the identification of the sources of legitimate law.
215See Fiss, “Objectivity and Interpretation”, supra, note 5; Fiss, supra, note 79; Fiss, “Con-
2 16R. Dworkin, “Law as Interpretation” (1982) 60 Tex. L. Rev. 527; Dworkin, A Matter of
ventionalism”, supra, note 5.
Principle, supra, note 5, Part 2; Dworkin, Law’s Empire, supra, note 5.
217Fiss, “Objectivity and Interpretation”, supra, note 5.
218Supra, note 162.
219See P.M.S. Hacker, “Hart’s Philosophy of Law” in P.M.S. Hacker & J. Raz, eds, Law,
Morality and Society: Essays in Honour of H.L.A. Hart (Oxford: Clarendon Press, 1977) 1.
“20Ibid at 12: “Where rules, with their internal aspect exists, then there is room for two
distinct points of view with respect then, an external and an internal point of view.” For a full
elaboration of the conditions which must be met for a social duty-imposing rule to exist see
Hacker, ibid. at 17.
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SKEPTICISM AND LAW
While Hart’s project focused upon the elaboration of the rule of rec-
ognition and other secondary rules, Owen Fiss speaks more loosely of a set
of “constraining” rules. Yet the key to both Hart and Fiss is the hermeneutic
idea central to Wittgenstein’s philosophy of rule following. Hart’s devel-
opment of the idea of social rules (as opposed to habits) is a direct contin-
uation of the work of Peter Winch and Wittgenstein.2 2′ In The Idea of A
Social Science Peter Winch distinguished rules from habits.222 Winch states,
correctly I think, that Wittgenstein’s ideas about rule following, while de-
veloped in relation to the nature of language, also have deep relevance to
“other forms of human interaction”, and indeed any form of “meaningful
behaviour”. 22 3 Meaningful behaviour consists of a move in a game, that is
following a rule; it is not merely “conditioned” response as behaviorists
would have it. Hart’s idea of judges utilizing social rules from the internal
point of view is the bringing of Wittgenstein’s fundamental point about rule
following to the judicial rule. In continuing this tradition Fiss and Dworkin
are surely correct. 224
Others, however, reject the tradition wholesale. They deny that the
internal, interpretive, Wittgensteinian hermeneutic approach is vital to our
understanding of law. Strong internal sceptics overread and misunderstand
Wittgenstein’s hermeneutics. But external sceptics deny the relevance of
rules at all. It is to these strong external sceptics that I now turn briefly.
V. Strong External Scepticism
Strong external sceptics deny the internal rationality of legal discourse
and hold that legal decision making can be understood and analyzed in
terms of forces or ideas external to the actual concepts or reasons which
those engaged in the practice allege that they utilize. Strong external sceptics
say that self-understanding is irrelevant to a proper and “scientific” view
of the law. Strong external sceptics are law’s behaviorists. Behaviorism is a
phenomenon of both the left and the right. Our most obvious example of
legal behaviorism lies in the work of many law and economics scholars such
as Judge Richard Posner. Arthur Alan Leff in his standard debunking mode
draws attention to the law and economics movement as a form of behav-
iorism in the posthumously published “fragment” of his never completed
legal dictionary:
221See Hart, supra, note 218 at 242, 249.
2 2See Winch, The Idea of a Social Science, supra, note 180 at 48-5 1.
23Ibid. at 45.
224Although each, in my view, makes errors in carrying on within the tradition.
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Behaviorism:
An approach to psychology which, either for methodological or ideological
reasons, abandons any consideration of mental processes, and focuses upon
the objective behavior of animals, including and especially people. In effect,
the subjects are considered as black boxes; one sees what they do under various
conditions, and seeks to generate the laws of their behavior without reference
to any subjective happenings. It should be pointed out that behaviorism does
not require a firm belief that there is no such thing as mental process (“dogmatic
behaviorism”), but only that paying attention only to objective actions is sci-
entifically fruitful, and perhaps necessitated by the “invisibility” of the sub-
jective (“methodological behaviorism”). Many modem economists, including
most practicing economic analysis of law, are implicit behaviorists in this last
sense.225
Judge Posner has self-consciously addressed this issue in terms of what he
calls the decline of the autonomy of law. 226
The explanations offered by economic analysts of legal decisions lies
in theories of behavior totally unconcerned with the reasons given by the
participants in the process for what they do. Externalism or behaviorism
of this sort is precisely the approach to social phenomenon and institutions,
such as law, which Winch revealed as conceptually illegitimate in The Idea
ofa Social Science.227 Causal explanations of the sort offered by the scientific
behaviorists rob the world of normative explanation. Rule following be-
havior, meaningful behavior is not possible and the basic Wittgensteinian
insight that it is only within the language game or form of life that meaning
is possible is lost. Laws behaviorists make a common and recurring mistake
and like all of those who take an external view to phenomenon, invite
misunderstanding:
Normative behavior, reviewed externally, in ignorance of the norms which
inform it, may seem altogether unintelligible. The story is told of a Chinese
mandarin passing through the foreign legations’ compound in Peking. Seeing
two European staff playing an energetic game of tennis, he stopped to watch.
Bemused, he turned to a player and said, “If it is, for some obscure reason,
necessary to hit this little ball back and forth thus, would it not be possible to
get the servants to do it?” 22
2-5Leff, supra, note 72 at 2146.
2 2 6
R. Posner, “The Decline of Law as an Autonomous Discipline 1962-1987” (1987) 100
Harv. L. Rev. 761; Posner, “Conventionalism: The Key to Law As an Autonomous Disciplinel”,
supra, note 79. Posner thinks he can reject conventionalism, but he cannot. He believes that
ideas from economics and elsewhere have “penetrated” law – but he does not and cannot –
offer any account of how, or why that happens or even what it is for that to happen. He needs
“conventionalism” to do that.
27Supra, note 180.
228Baker & Hacker, Language, Sense and Nonsense, supra, note 50 at 257. What we see here,
is typically, a mistake being made in law which was made in other social disciplines twenty
or thirty years ago. And now we struggle to get it right, again with the time lag of twenty or
thirty years.
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Like the mandarin the external legal sceptic, by refusing to account for
the meaningfulness of legal behavior, misses the point, the purpose, the
meaning of the activity involved. Instead external, irrelevant, and often
perverse assumptions and purposes and meanings are imposed upon the
activity. And this is done in the name of objectivity! Such an approach is
like that of the drunk who loses a set of keys in the dark, but looks for them
under the street light. When asked the point of looking there, and not where
the keys were lost, the person explains “Because it’s light here.” The Witt-
gensteinian response is terribly straightforward – you must look where the
keys are. And further, as Winch points out, if you attempt to get a picture
of law you will find that it will not develop under the light of the external
viewpoint. It is only within a practice, culture, and form of life that meaning
is possible. To refuse to engage in normative explanation is to miss the
crucial dimensions of human life that matter to law. This is not to deny
that there are other ways of viewing human life beyond that of internally
meaningful behaviour; it is only to deny that one cannot explain norma-
tivity, and thus law, from a totally external perspective.
Strong external scepticism is not, however, a phenomenon of the right
exclusively. Recent papers by Judith Fudge and Harry Arthurs offer proof
of that. Of the two, Harry Arthurs is the more ambiguous on this point. He
begins by pointing out the dreary predictability of anti-labour judicial de-
cision making, but then he says he has no explanation for the continuation
of this phenomenon. Arthurs’ most dramatic claim is set out as follows:
Law cannot rule. Law does not make itself. Law does not interpret itself. Law
does not enforce itself. It is people who do all of these things in the name of
the law, and it is therefore people who rule, not law.229
But then (and this is where the ambiguity in the position becomes apparent)
Harry Arthurs spends the rest of his essay explaining how the Charter (law)
directly and indirectly does affect, if only slightly, the way things turn out.
And it is bad for labour. The key point is Harry Arthurs’ opposition of the
rule of law and rule by people. This is, as Wittgenstein demonstrated, a false
opposition. In Wittgensteinian terms, which sound much like Arthurs’, “the
rule is dead. ‘2 30 A rule only has such meaning and normative significance
as our normative practices infuse it with. This is not fatal to normativity,
rather, as we have seen, it is necessary to normativity. Arthurs points out
that the law is not all there is in the world. This is a healthy tonic for
lawyers. Insofar as law is a part of our world, it is not a flaw that it exists
in the practices of people. It could not be otherwise. And it is only within
229Forthcoming in proceedings of conference on “Labour Law Under the Charter”, Queen’s
University, September 1987.
230Cavel, supra, note 1 at 36.
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those practices that the criticisms Arthurs makes of decisions past, present,
and anticipated in the future, make sense. I think that this is why Arthurs
too could not resist his catalogue of direct and indirect effects of the Charter,
which on his own theory would be idle chatter.
Judith Fudge is not so ambivalent in her rejection of the internal per-
spective. She is clearer in arguing that (internalist) argument does not de-
termine, and reasons given are irrelevant to, legal outcomes. 23’ Reasons are
relevant in her world only as a smokescreen, as an ongoing attempt to
legitimate what is illegitimate, to separate law and politics. 232
Fudge’s starting point is that the Charter transfers “virtually untram-
meled power” 233 to the judges, resulting in a “massive legalization of po-
litical discourse” 234 which is a “grave threat to our committment to a liberal
political democracy. ‘235 No grammar or method of discourse is available
to avoid controversial judgments. The only proper approach to Charter
analysis is one which simply looks to results. Merely counting outcomes in
terms of success or failure of Charter challenges and labelling a court as
“activist” or “passive” misses the point in her view. Useful Charter analysis
of results involves looking at results analyzed in terms not merely of success
or failure of a challenge, but in terms of the “concrete interest” involved 236
– who wins (employers or unions) and on what sort of challenge? The
search is for patterns of outcomes. As one reads her analysis of the cases it
becomes clear that Fudge is serious about sticking to this externalist analysis.
While pointing out that court decisions are predictable in light of the status
quo she never pauses to consider or to ask whether the decision in question
is justified, whether it is rightly or wrongly decided. The analysis is con-
stantly cast in terms of what courts are “prepared” or “not prepared” to do
– not whether they were correct, justified, or wrong in so doing.237 Reasons,
justifications, arguments, are all irrelevant. And Fudge’s conclusion bears
this out:
The cumulative effect of the decisions is to reinforce the legitimacy of legal
relations and categories essential to a liberal political economy.238 [emphasis
added]
231J Fudge, “Labour, the New Constitution, and Old Style Liberalism”, forthcoming in
proceedings of conference on “Labour Law Under the Charte?’, Queen’s University, September
1987.
232Ibid. at 27.
233Ibid. at 5.
234Ibid. at 6.
235Ibid. at 13.
2361bid. 26.
237See for example ibid. at 82-83 where there is a particularly heavy barrage of “prepareds”
and “not prepareds”.
238lbid. at 83.
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But is this surprising? And more importantly, is it “illegitimate”? Fudge
notes:
The decisions of the various courts, boards and arbitrators … confirm that the
Charter will not be used in ways which threaten the economic and political
status quo.23 9
The key words here are “will not”. These words have no critical edge. It is
mere externalist observation. It is a note on the behaviorists clipboard. The
crucial and truly critical question is –
should this be so? On her own
approach Fudge has, literally, nothing to say on these issues. Her only critical
comment comes at the end of the paper when she is forced to revert to a
conspiratorial theory of the reasons for judicial action or inaction.240 This,
I think, is grossly inadequate as a basis for criticism, at least without a great
deal being said or demonstrated.241 I believe the problem with Fudge’s anal-
ysis here is that she wants to have it both ways –
to maintain an externalist
perspective, and yet offer criticism which has bite within our legal discourse.
But having adopted a vigorously externalist perspective she is left with a
simple allegation of bias. Furthermore, it should be noted that an assertion
of bias can be transformed from a neutral observation into a basis for
reproach only by speaking to values that have meaning within our ideas
about law.
The benefit of Fudge’s analysis should not, however, be overlooked. It
is her view that legal argument and discourse, the language game of the law,
takes place within a larger form of life – our social, economic and political
form of life. This is certainly true. And it is a Wittgensteinian truth. It is
also a truth that is important for thinking about various ways of analyzing
law. What Fudge points out, that legal discourse takes place within a large
form of life, is in one sense an important truism. Not every concept is
”available” in every form of life.
Consider, for instance, the practice of child sacrifice in pre-Abrahamic Hebrew
society. This is a practice which, in terms of our own way of living and the
moral ideas which go along with it, is just unintelligible. To try to understand
it is to try to understand something of what life and thought must have been
like in that society. What I want to emphasize here is that the main problem
about this is one of understanding what was involved; not just one of taking
up an attitude, for without understanding we should not know what we were
taking up an attitude to. And it would be no more open to anyone to propose
that this practice should be adopted in our own society than it is open to
239Ibid at 85.
24Ibid. at 88.
241And Harry Arthurs’ at least casual observations lead him to a contrary conclusion on this
point. See Arthurs, supra, note 229 at 7.
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2 42
anyone to propose the rejection of the second law of thermodynamics in
physics.
And this is true for concepts like “contract” and “property” as well. 243
Externalist analysis of the conditions under which certain concepts are
“made available” within a form of life is a viable enterprise. But while all
of this is true, it seems implicit in Fudge’s analysis (otherwise, what’s the
point?) that there is a perspective beyond our form of life from which it
may be critically analyzed. Here she shares the mistake of the strong internal
critics.
What Fudge really objects to is a “liberal political economy” and to
the institutions of property and contract as she portrays them. Fudge does
not offer arguments about these. She rests content with observations about
the link between the forms of life within which these institutions have
meaning, and the legal system which resides and is imbedded within that
form of life. The critical force in her paper must come from (unarticulated)
ideas about the legitimacy of those institutions. Such criticism in turn must
be comprehensible –
strike a chord, be
understandable. And to do that it must be criticism which operates within
a normative practice. Externalist observation, while interesting in its own
dimension, cannot amount to criticism which involves invoking normative
concepts. Normative concepts only have meaning within forms of life. Po-
litical theory does permeate law. The relationship between the legal language
game and the form of life in which it is embedded ensures that. To criticize
one must argue political theory, not point it out. This is what Fudge, as a
constant and strong externalist, cannot do, although she comes to it even-
tually in the end with her argument about bias.
it must play a recongizable role –
VI. Conclusion
Fudge and other strong external critics thus reject the necessary theo-
retical ground for understanding and criticism. Hutchinson, Monahan and
Petter are in the end only slightly different and can be seen as a variation
upon this theme. Their strong internal critique also leaves them with no
critical ground from which to undertake such criticism. They too can merely
point. But in the end they too break down, and do offer critique.
When strong sceptics, both internal and external, abandon their self-
imposed critical exile they offer proof of Simone Weil’s observation that:
“like all human activities, the Revolution draws all its vigour from a tra-
dition.”244 The rebel is no exception to the fact that “ideas are intelligible
242Winch, “Nature and Convention”, supra, note 211 at 54-55.
243See above, text accompanying note 156.
244S. Weil, The Need For Roots (New York: Harper & Row, 1952) at 49.
1988]
SKEPTICISM AND LAW
only within a certain context and to understand them will require some
understanding of the way of life and the traditions to which they belong. ‘245
For our purposes the philosopher John Searle put the point in a remarkably
useful way:
Proudhon said: “Property is theft”. If one tries to take this as an internal
remark it makes no sense. It was intended as an external remark attacking and
rejecting the institution of private property. It gets its air of paradox and its
force by using terms which are internal to the institution in order to attack the
institution.
Standing on the deck of some institutions one can tinker with constitutive
rules and even throw some other institutions overboard. But could one throw
all institutions overboard … ? One could not and still engage in those forms
of behavior we consider characteristically human.246
Abandoning strong scepticism, either external or internal, lets us make
sense of our agreements and disagreements. It makes criticism, and even
rebellion, meaningful.
245R.W. Beardsmore, Moral Reasoning (London: Routledge & Kegan Paul, 1969) at 55.
246J. Searle, Speech Acts, supra, note 68 at 186.
