© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_23
23. Blindly Following the Rules: Revisiting the Claritas Doctrine
Enodo Advisors Sp. z o.o., Warsaw, Poland
Drawing on Wittgenstein’s position on automatic (“blind”) rule-following and certainty, this paper re-examines the claritas doctrine as a tool used in the interpretation of legal provisions. The paper focuses on the maxim clara non sunt interpretanda expounded by the Polish philosopher of law, Jerzy Wróblewski, and also comments on the acte clair and acte éclairé doctrines of the Court of Justice of the European Union (ECJ).
The aim of this paper is to investigate whether the claritas doctrine can be put forward in a legal dispute as a valid argument. The mere existence of a legal dispute appears to exclude the claim of interpretative clarity. One party in a dispute cannot invoke the claritas doctrine in order to counter or refute the claims of another party; allowing this would allegedly be contrary to the ethics of legal discourse. On the other hand, however, a party acting in bad faith may bring into play artificial doubts as to the normative content of an otherwise clear legal provision and challenge the opponent (or the authority deciding the case) to prove them wrong. In this case, should “legitimate” and “illegitimate” doubts be discerned—and who would be in a proper position to do it?
Drawing on the philosophy of Wittgenstein, one way out of this dilemma is to shape a new incarnation of the argument from clarity. The argument should refer not to what people should think of the meaning of words (that is, in the context of this paper, how they should construe a legal provision), but rather to how people act when following such a provision. This paper’s argument is that the routine practice of rule-following serves to substantiate the claim of clarity in a legal case. Such an understanding allows for the restoration of the claritas argument, though in a new form.
KeywordsCertaintyPragmatic clarityClaritas doctrineLegal discourseRule-following
The influential claritas doctrine essentially entails that what is clear in legal cases is not or should not be subject to interpretation (in claris non fit interpretatio). I endeavour to show that Wittgenstein’s remarks on rule-following can inform the debate on how this doctrine should be understood and applied in legal discourse. This paper intends neither to fully articulate Wittgenstein’s position nor to give it thorough analysis. Rather, it intends to show that Wittgenstein’s remarks can be fruitfully employed to resolve a problem in legal practice.
23.2 The Claritas Doctrine of Jerzy Wróblewski
The below account of the claritas doctrine is based on a late paper titled Pragmatyczna jasność prawa (Pragmatic clarity of law) by the prominent Polish philosopher of law, Jerzy Wróblewski (Wróblewski 1988). In this paper, Wróblewski presents an embodiment of the doctrine that is deeply rooted in many legal traditions (MacCormick and Summers 1991). This particular account was chosen as a main point of reference for the current discussion not only due to its lucidity, but also because of the major impact it has on the practice of applying law in Poland.
Wróblewski’s account (as is suggested by his paper’s title) follows that the clarity of a legal provision should be understood in pragmatic terms. This means that the clarity of a given expression, including one used in a legal provision, should be judged both in terms of a given “communication act” (legal text) and in the context of a given “situation of communication” (p. 9). The latter is affected by a multitude of factors, including, among others, the linguistic competence of the users of a text, their epistemic attitudes and knowledge, the factual circumstances within which a text is used, and in the case of the law, the systematic and functional background of the legal system in which a text belongs.
Wróblewski distinguishes between the “direct understanding” of a (legal) expression and its “interpretation”1 (p. 5). In the everyday use of “natural” (common) language, the meaning of an expression may be thoroughly clear (“transparent”) between interlocutors (i.e., not giving rise to any doubt). In such cases, expressions are not subjected to interpretation, but treated as given. This observation, first formulated with regard to natural language, is then applied by Wróblewski to legal language, which he considers to be the register of the former with the same characteristics.
Wróblewski proposes four different maxims that together pertain to the claritas doctrine:
Thesis D1: clara non sunt interpretanda in the descriptive version of the doctrine claims that a clear legal text is not subjected to interpretation (i.e., it is “understood directly”).
Thesis N1a: clara non sunt interpretanda in the normative version calls for a ban on interpreting a clear legal text (i.e., you must not interpret what is clear).
Thesis D2: interpretatio cessat in claris in the descriptive version claims that once a legal text is rendered clear, it is not further interpreted.
Thesis N2a: interpretatio cessat in claris in the normative version calls for a ban on further interpreting an already clarified legal text (i.e., you must not interpret further what has already been rendered clear).
Departing from Wróblewski’s account of the doctrine, it is important to point out that the normative interpretation of the doctrine may take different shape, i.e., its versions weaker than N1a and N2a are available. Such versions may involve not the prohibition of interpretation, but the permission not to interpret a legal provision. Consequently, one may read “you are allowed not to interpret what is clear” (thesis N1b) and “you are allowed not to interpret further what has already been rendered clear” (thesis N2b).
The acte clair and acte éclairé doctrines of the ECJ bear a certain degree of similarity to the N1b and N2b theses of the claritas doctrine. These permit the national court of the last instance, which is otherwise obliged to do so, not to refer to the ECJ for a preliminary ruling either when “the correct application of community law2 is so obvious as to leave no scope for any reasonable doubt” (acte clair)3, “when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case,” or when the answer to the question can be derived from the ECJ’s ’settled case-law’ (acte éclairé)4. The acte clair and acte éclairé doctrines contain similarities to the N1b and N2b theses in that they permit the court to refrain from acting, in this case, from making use of the preliminary ruling procedure.
23.3 The Descriptive Face of the Claritas Doctrine, and Wittgenstein’s ‘Blind Rule-following’
Thesis D1 of the claritas doctrine speaks to the fact that in the everyday practice of understanding and “using” the law (be it abiding by it by all its addresses or applying it by administration and courts), the majority of legal rules are immediately comprehensible and automatically followed. That is, they do not give rise to any doubt as to their proper understanding. Their meanings are transparent to their users and devoid of discursive potential, seemingly agreed upon in a silent and inconspicuous consensus5. Accordingly, this phenomenon, although predominant in legal practice, often escapes attention—which is naturally focused on cases of interpretative doubt (such cases attract attention as easily observed). Once acknowledged, however, this phenomenon strikes us as easily evident or even commonplace.
In this respect, Wróblewski’s account broadly corresponds with Wittgenstein’s. Wittgenstein famously stated, “[w]hen I obey a rule, I do not choose. I obey the rule blindly“ (§ 219, PI6). “One follows a rule blindly not with the blindness of the sightless but with the blindness of complete certainty, i.e., without further reflection” (Baker and Hacker 2009, p. 31). Such practice of rule-following is characterized by full confidence in the correctness of one’s behaviour, and the unreflective and automatic practice of following legal rules is a prominent example of such confidence (Marmor 1992; Brożek and Zyzik 2010)7. Thanks to the uncontroversial meanings the entire edifice of law subsists, it does not fall apart due to inexorable universal doubt. Doubt is parasitic on certainty: “If you tried to doubt everything you would not get as far as doubting anything. The game of doubting itself presupposes certainty” (OC 115). Importantly, social practice built upon a legal text is formative for a rule—and not the text as such. To play on the word, one could say that a legal text is but a pre-text for a rule8. This notion is akin to the pragmatic aspect of Wróblewski’s account9.
23.4 The Normative Face of the Claritas Doctrine—a Problem in Need of a Solution
Within the normative claims of the claritas doctrine an issue arises. This issue is of much practical relevance, as the doctrine influences the practice of legal interpretation and the application of the law (as it is often claimed, having an adverse impact on it) in its normative, not descriptive, aspect. By definition, the doctrine’s descriptive face, while theoretically interesting, does not dictate such practice, but merely reflects it.