Wittgenstinian Analysis of Legal Realism

Legal realism comes in many varieties. Some aspects of legal realism focus on the destruction of the idea that the law is objective or determinative. Other legal realists accept that the law is unpredictive but work towards identifying personal and social biases that lie at the root of these changeable interpretations.
While there are these different dimensions of legal realism and not all realists can agree on the views expressed by these different perspectives, it seems that most realists discount the importance of legal rules and principles in determining the outcomes of cases and explaining the phenomenon of law generally. An example of the viewpoint that legal realists espouse can be found in a trusts and estates case where the court rules in a way clearly contrary to the language of the law.

In Riggs v. Palmer, the Court considered whether a grandson who murdered his grandfather so as to receive his inheritance should still get the inheritance. As a matter of the Wills Act, the grandson should have received the inheritance because under the law, when his grandfather created the will, he expressed his intent to give such a gift to his grandson. It didn't matter that at the time of the murder the grandfather would never have intended to give his murderer an inheritance. Under the law, and as the dissent points out, "the matter does not lie within the domain of conscience. We are bound by the rigid rules of law." However, in spite of the clear language of the probate statutes that would have resulted in a judgment for the murderous grandson, the court found that:
The writers of laws do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is called rational interpretation...When we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes we extend or enlarge his meaning so as to take in more than his words express...

This language by the court well illustrates the realists' assertion that rules won't necessarily dictate an outcome and that judges will bend and alter the law in ways that fit a desired conclusion. Here, the court was faced with a situation where a person stood to benefit from a horrendous crime. Even though it explained its decision-making process as an intent analysis that is in line with the purpose of the statute, it is clear that the court specifically sought to deprive the defendant of his ill-gotten gains and applied its morality under the guise of rule and rationality. Indeterminacy exists even in the most "straight-forward" of cases.
10 + 5 = 5

While Wittgenstein's work was mostly on language, knowledge of his conceptual understanding of language can provide legal realists much support for their view that legal rules are essentially indeterminate. In a very general sense, Wittgenstein's understanding of language offered a theory where the components of language do not have inherent meaning. Rather, words gain definition by a process of implicit social agreement. For Wittgenstein, language is a tool and what is in question for Wittgenstein is how someone acts with the tool rather than what the relationship the tool has with the object that it is operating on. Whether someone ever uses a word "correctly" is based on the fact that more people use it in that way rather than some innate element in the word. Saul Kripke's reading of Wittgenstein illustrates these general points in his presentation of the skeptical argument that he finds in Wittgenstein's Philosophical Investigations.

He writes:
It is very natural to suppose that in learning to add I grasped the rule for addition in such a way that my intention to follow this rule in the future will determine a unique answer to subsequent addition problems in indefinitely many new cases. In particular, it is natural to suppose that when I respond 125 to the question 68 + 57 = ?, I am acting in conformity with my previous intention to use "+" in accordance with the rule for addition. My previous intention to use addition by "+" determines 125 as the correct answer even though I have never...before added any number greater than 56. The question that now arises is just what it is about my previous intention concerning the sign "+" that constitutes it as the intention to use this sign in accordance with the rule for addition. What...makes it the case that I meant addition by "+"? What is there about my previous intention that rules out the possibility that I actually intended to use "+" in a way that the correct answer to 68 +57 = ? is actually 5, so that in answering 125, I have actually changed what I mean by "+."

What this deconstructed and simple math example illustrates is that even though there is supposedly a hard and fast "rule" that dictates the computation of addition problems, there is no reason to believe that the rule provided and used is based on an unchanging formula that will reveal a correct answer when followed in every example (More on why this proposition may be wrong later). The fact that the person in the example has never added beyond 56 is important. While he is familiar with the "rule" that "+" means add from 0-56, there is no reason why the rule represented by the symbol would still mean the same thing after 56. Because "+" is ultimately a symbol that is un-testable, there is never a determinate as to what the right answer is apart from an assumption that we followed a rule to get there. There exists no unique, external fact that would make 125 the right answer to 68 +57 before following the rule that asked us to add the numbers. Neither is there a fact that would deny 5 as the right answer if we were to follow the rule to subtract. Hence, both rules give a "right" answer. A different way to state it would be that there isn't a fact that would confirm the rightness of the rule itself. The rule itself cannot be used to explain the action and the action cannot explain the rule.

This analysis of arithmetic lends itself to a similar understanding of words in language. Like their numeric counterparts, words are merely symbols. Words have no inherent meaning attached to them. Like plus which, as we saw above, may have different functions, words may have different functions depending on their context. We can imagine a situation the words Spider Man to mean different things. For a North American, the rule he follows will take him to an understanding of the Spider Man movie coming out May 8, 2007. For someone else who comes from an island where there are plagues of spiders, perhaps his understanding of the phrase Spider Man is governed by a rule that would make him think of someone who is often bitten by spiders. This example tries to establish the idea that there is a lack of fixity in language. Words don't necessarily attach to one object. They may attach to one object at a time within one cultural context.

We can bring this idea of uncertainty to the construction of laws and legal theory. Laws are built on this baseline of impreciseness, which result in indeterminate legal rules. In theory, judges never really know what the rules mean because legal rules are like "+." Judges may think they are applying fixed rules but distortion and ambiguity are already embedded into the language itself. From the point that the legislature writes a law/rule, there are assumptions about that law/rule that cannot be replicated by the applier. Like the person trying to compute a math problem, a judge applies a rule with the intention that it will yield a result consistent with his intention in the past. However, as the rightness of the addition rule is only verified by the choice to add and the resulting sum, the rule that the judge applies is also verified only by its own result. In either case, there is no indication that the correct rule was applied.

What is interesting about Wittgenstein's account of language and realism is that the Wittgenstinian model permits situations where there is a "right" answer and therefore provides room for prediction. The statement that there may be a right answer in what seems to be a fluid language model may be slightly misleading. For Wittgenstein, language is a tool. In the math example above, we are considering the rule-taking decisions of one individual. When he is by himself, either 5 or 125 or even 2359 could satisfy the "+" function depending on what self-proving rule he was opting to apply at the moment. However, for a moment, we can add another person to the math problem solver example. When individual A can verify with individual B that the correct answer is 125, his answer is in a way, verified by an outside fact even if individually, when both apply the unprovable self-proving rule. Because we live in a society, there are normative elements to our environment. Wittgenstein doesn't speak to right or wrong in terms of morality. What is important to Wittgenstein is that language is a tool and in order to use it correctly, one has to use it within the terms agreed upon by society. In other words, we can learn to know the correct usage of certain rules. With regard to the legal analysis of rules, this understanding that there are general norms of society that can be understood and that affect how we use language undermines slightly the view of the legal realist. Since this is not a moralistic account, large groups of people can share "right" rules and this could provide consistency in legal interpretation.

In conclusion, a Wittgenstinian analysis of legal realism offers an interesting critique of this area of jurisprudence. Because it is built on the idea that language cannot be essentialized but is instead a function of its particular use, it enriches the realists' view of rules and legal analysis by positing the idea that rules are difficult if not impossible to follow. On the other hand, because Wittgenstein's account is not a discussion of morality and emphasizes the use of language in a normative way, it does not eliminate the possibility that legal rules are interpreted consistently within the boundaries of social mores by judicial bodies.