© 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_21
21. Inerpretation and Rule Following in Law. The Complexity of Easy Cases
Institute for Staatswissenschaft and Philosophy of Law, Albert-Ludwigs-Universität Freiburg, Freiburg im Breisgau, Germany
Lon L. Fuller challenged the positivist distinction between the law “as it is” and the law “as it ought to be” by insisting on the need for interpretation even in easy cases of adjudication. Fuller argued that interpretation is always creative in the light of the purpose of the rule to be applied and thus always draws on the law “as it ought to be”. Andrei Marmor tried to defend positivism against this challenge by advancing the thesis that there is no need for interpretation in easy cases. He drew on Ludwig Wittgenstein’s remarks on rule following to suggest that in easy cases the law is just in need of understanding not of interpretation. Although I also think that positivism can be saved from Fuller’s challenge, I do not think that it can be done with the help of Wittgenstein’s distinction between interpretation and understanding. Fuller’s challenge and Wittgenstein’s remarks on the relation between a rule and its application address different aspects of the process of adjudication in easy cases, which build upon, but which cannot be played out against each other. We have to distinguish between two different elements of our practice of adjudication in easy cases: On the one side the communicative interpretation of utterances—in the case of the law legal texts—in the sense Paul Grice was concerned with; on the other side the application of a rule thus identified as the content of a communicative intention and its application that Wittgenstein’s remarks on rule following are concerned with. Fuller can be understood to have insisted rightly on the ubiquity of the former, which cannot be refuted by any account of the latter. The upshot, though, is not that Fuller’s challenge is successful. Its flaw, however, does not lie in the insistence on the ubiquity of communicative interpretation, but in its exploitation of an ambiguity of the creative element in interpretation, which can designate epistemic and the creativity involved in amending the law via legal construction. In principle only the former is involved in communicative interpretation; only the latter concerns the distinction between the law “as it is” and the law “as it ought to be”.
KeywordsEasy casesRule followingLegal interpretationUnderstandingLegal positivismLegal constructionHartFuller
Lawyers and legal theorists alike are fascinated by hard cases. They are central to law as a professional practice; they are the cases dealt with in appellate and supreme courts; they are preserved for posterity in the law reports; and they are the cases doctrinal legal scholars spend their intellectual energy on. In legal theory, the most central debates of the twentieth century on the relation of law and morals, on one-right-answer-theories and on legal realism have centered on or taken their starting point from hard cases.
Deep in the shadow of these wide-ranging debates on hard cases there has been a far quieter debate on their counterparts: easy cases. At first sight it might seem that easy cases could hardly be of interest. What could be interesting about the legal question of whether someone who jumped a red light or exceeded the speed limit by 30 mph violated the law. In legal practice they might be of some pecuniary interest for lawyers, but do not demand their professional expertise. In legal theory there might be some self-centered theoretical interest in belaboring the obvious, but easy cases seem to have no strong theoretical import.
21.2 Lon Fullers’s Easy Case Challenge to Positivism
There is, however, an argument which links easy cases to the mother of all Anglo-Saxon legal theory debates—the debate on legal positivism. The link is not only interesting for the import of easy cases on the debate about positivism, but also because the arguments exchanged in this segment of the debate can help to shed light on the relation between the interpretation and the application of rules—besides legal construction two of the most basic operations in the process of adjudication. The link was made by Lon Fuller in his interpretation of H.L.A. Hart’s distinction between the core and the penumbra of legal concepts. Hart famously held:
If we are to communicate with each other at all and if, as in the most elementary form of law, we are to express our intentions that a certain type of behavior be regulated by rules, then the general words we use—like ‘vehicle’ […]—must have some standard instance in which no doubts are felt about its application. There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out. (Hart 1958, p. 607)
For Fuller, Hart’s distinction was connected to the central claim of legal positivism, namely that there is a conceptual separation between the law “as it is” and the law “as it ought to be”. Fuller stressed that—in Hart’s account—when “applying the word to its ‘standard instance’, no creative role is taken by the judge. He is supposed to simply apply the law ‘as it is’” (Fuller 1958, p. 662). At their core, in standard instances of their application, legal rules thus seem to vindicate the claim that the law can be applied “as it is”, without recourse to how it “ought to be”, which Fuller attributes to positivism.
Things look different, though, in the penumbra.
When the object in question … falls within this penumbral area, the judge is forced to assume a more creative role. He must now undertake, for the first time, an interpretation of the rule in the light of its purpose or aim. … When questions of this sort are decided there is at least an ‘intersection’ of ‘is’ and ‘ought,’ since the judge, in deciding what the rule ‘is,’ does so in the light of his notions of what ‘it ought to be’ in order to carry out its purpose. (Fuller 1958, p. 662)
In Fuller’s reconstruction of Hart’s argument, the need for interpretation of a legal rule threatens the core positivist distinction between the law “as it is” and the law “as it ought to be”. If positivism is to live up to its central claim, there have to be—according to Fuller—core cases of application, where “no doubts are felt”, where the law can be applied without interpretation. Penumbral cases are contaminated by interpretation, which is creative and dependent on ideas about the law “as it ought to be”.
Fuller, though, rejects Hart’s core and penumbra distinction and the idea of cases in which a legal rule could be applied without recourse to its purpose and thus without interpretation. “If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, ‘without thinking’, that a noisy automobile must be excluded” (Fuller 1958, p. 663).1 Fuller does not reject the idea that there are easy cases, but he rejects the idea that there can be easy cases which do not need purposive interpretation, even if we know the purpose and right interpretation “without thinking”.
21.3 Taking the Bait
There are a number of ways supporters of the positivist core separation thesis can react to Fuller’s challenge. The direct one is to dismiss the whole idea that the creativity involved in the application of the law—be it in easy or hard cases—does in any way affect the separation of law and morality that is central to legal positivism. At its core positivism merely holds that the validity of the law does not necessarily depend on its conformity with the right moral standards. Positivism is not concerned with the reasons out of which a specific legal rule is set into force—be it by the legislator or a court. Just as the separation thesis is not challenged by the fact that the legislator can turn to certain moral standards to design its legislation—e.g. “thou shalt not steal.”—, it is not challenged by the fact that courts in their function of doctrinally developing the law can turn to—inter alia—moral considerations. Positivism does not deny that the creation of law—be it by a legislator or a court—can be influenced by moral considerations. Positivism just denies that the validity of the law created by a legislator or a judge depends necessarily on its conformity with some moral standard. This claim is not challenged by the fact that courts are sometimes motivated inter alia by moral standards when they create law in the process of adjudication. That courts might rely on moral standards in the creation of law, does not entail that the validity of the law created by courts depends on its morality. Just as legislators, judges can rely on moral standards and just as legislators they can rely on immoral ones. Positivism only holds that the validity of the law created out of whatever reason does not rely on its conformity to morality. Fuller’s attack on positivism is a red herring. The separation thesis cannot be challenged by hinting at the creative function of adjudication—be it in hard or easy cases.
Some positivists, however, took the bait. They granted Fuller the premise that a throughout creative role of adjudication would challenge central positivist tenets. Andrei Marmor accepts Fuller’s premise that “positivism cannot accept the view that law is always subject to interpretation” (Marmor 2005, p. 124). He also accepts it for the same reason—namely that “interpretation adds something new, previously unrecognized, to that which is being interpreted” (Marmor 2005, p. 125). Accordingly, there have to be easy cases that do not require interpretation if positivism is to be upheld. For Marmor, too, “the distinction between easy and hard cases is entailed, or rather required, by the distinction between the law as it is and the law as it ought to be” (Marmor 2005, p. 125). Easy cases thus take center stage. If Fuller’s premise is accepted, the whole positivist agenda seems to hinge on easy cases not requiring interpretation. Only if it can be proven that there are easy cases that allow for the application of the law without interpretation, positivism seems to be saved from Fuller’s challenge.
To defend the thesis that easy cases do not require interpretation Marmor makes recourse to an idea developed by Ludwig Wittgenstein in the context of his considerations on rule following. Wittgenstein was concerned with the gap between a rule and its application.
‘But how can a rule show me what I have to do at this point? Whatever I do is, on some interpretation, in accord 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. (Wittgenstein 1953, § 198)
Wittgenstein had in mind rules like “add 2” which can be interpreted to accommodate whatever series of numbers is given. For any series of numbers like 1000, 1004, 1008, 1012 there is a mathematical function that can be associated with “add 2” (Cf. Wittgenstein 1953, § 185). Saul Kripke later turned Wittgenstein’s observation into a skeptical argument against rule following (Kripke 1982). For Wittgenstein, however, his thoughts on rules and their interpretation were not meant to support skepticism, but to suggest that there must be something wrong in how we understand interpreting and applying a rule. “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. … It can be seen that there is a misunderstanding here” (Wittgenstein 1953, § 201). For Wittgenstein the possibility of bringing any course of action into agreement with some interpretation of a rule testifies to the fact that there must be another explanation as to how we judge whether an application is in accord with a rule. Wittgenstein continues: “What this shows is that here 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” (Wittgenstein 1953, § 201).
That there is a way of grasping a rule which is not an interpretation is the idea that Marmor picks up to support his claim that in easy cases there is no need for interpretation, but only for understanding (Marmor 2005, p. 149).2 In accord with a Wittgenstein interpretation along the lines of Baker and Hacker, Marmor regards the understanding of a rule as a practical ability to exhibit behavior that is in accord with the rule. What counts as “obeying a rule” is not vindicated by an interpretation, but by our ability to judge which acts are in accord with it and which would run against it (Marmor 2005, pp. 347–355). So it seems that there is a way of applying a rule that is not dependent on interpretation. Wittgenstein’s rule-following seems to show that there must be a way of applying the law in easy cases that does not require interpretation. Legal positivism seems to be saved from Fuller’s challenge.