Wittgenstein and the Rule of Law

Anil Shankar, New York University School of Law

Abstract

Legal theorists have made a number of attempts to extend Wittgenstein’s remarks on rule-following to the law, but no consensus has emerged as to their appropriate implications. This paper articulates a limited sense in which Wittgenstein’s remarks are of interest to legal theory, as remarks capable of changing how we view and justify our involvement with legal rules. This position responds to both the exaggerations and misreadings that have dominated legal discussion of Wittgenstein and to the recent wave of articles suggesting Wittgenstein’s philosophy has nothing to offer the law. In addition, the article directly raises the question that has lurked in the background of debates about Wittgenstein’s role in legal theory, by asking and evaluating what effect adopting a Wittgensteinean understanding of rules will have on our commitment to the rule the law. The final section reviews the variety of theoretical approaches available to deal with the challenges his work raises.