Abstract
This chapter is devoted to exploring and developing the notion of acceptance as ‘reflective observance’. The chapter contends that Hart’s arguments about the role of rules in social life are compelling, especially if observed through Wittgensteinian lenses. Rules are both guidelines allowing social subjects to plan their actions and standards for assessing and criticising deviant conducts. To achieve this end, the chapter explores many relevant notions in the field of legal theory: internal and external point of view, reasons for action, habits, standards. In this framework, a key passage is the examination of Ludwig Wittgenstein’s analysis of rule-following and his idea of rules as standards. Then the chapter addresses two basic conceptual components of the rule-based model of law, that is, criterion-rules and conditions of thinkability. The main goal of the chapter is to justify a notion of rule-governed practice as an interactional context in which the conduct of the agents is governed by a criterion-rule, which can govern them intuitively, epistemically, and/or motivationally.
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Notes
- 1.
- 2.
See supra, 2.2.
- 3.
To make an idea of the relevant effects of this question on legal epistemology, see van Hoecke (2004).
- 4.
It is worth mentioning what David Bloor (2001, 106) writes as to the practice of marriage: “Suppose someone were to go through the ceremony with deliberate, inner […] intention to deceive. Could such a person argue […] that they were not really married because, as they were getting married, they were thinking of themselves as engaged in a deceit, rather than a real marriage? Would that invalidate the marriage? Certainly not. […] The reason is that the oversubtle deceiver was well aware that it was a marriage he was going through. His being aware of what he was doing was part of what made up the deception” (emphasis added).
- 5.
In the last decades, the theoretical status of social rules has been highly debated and most interpreters have dwelt on Hart’s arguments to verify whether he provides a sound justification for them (see e.g. Brigido 2010, Chap 2; Hacker 1977; Lagerspetz 1985, 146–141; H. Ross 2001, 55–58; Schiavello 2010, 98–103). Nonetheless, I will argue that this justification can hardly be found in The Concept of Law. It is my argument that Hart’s most brilliant move is that of portraying social rules as interactional rules of social life, constituted by both behaviour and thought. Social rules are common standards that create obligations just because of their being common standards. But my argument will become clearer as we go along.
- 6.
See infra, 3.6.
- 7.
Obviously, I am not the first who asserts that “Wittgenstein’s influence [on Hart] was central”, as Fitzpatrick (1992, 184) points out. Nevertheless, my main goal is not to explore the relation between the two philosophers, but to uncover what Hart (awkwardly) takes for granted when he speaks of rules as standards.
- 8.
See Voltolini (2010). There is no precise term which captures the German terms ‘Muster’ and ‘Paradigma’ satisfactorily. While ‘instance’, ‘paradigm’, ‘exemplar’, and ‘specimen’ are possible translations, I use Voltolini’s terminology because it makes it explicit that, in order to be paradigmatic, the paradigm is to be applied.
- 9.
With regard to the legal literature, the private-language argument, as related to the issue of rule-following, is often associated to the question of rule-scepticism and legal indeterminacy (see for instance, Bix 1993, Chap. 2, and more in general Patterson 2004). Nonetheless I do not believe “Wittgenstein’s lesson” for law to be “a lesson of legal indeterminacy” (Schauer 2007, 26). The claim I will put forward in the following pages is that the proper interpretation of the private-language argument casts light on the essential public character of rule-following.
- 10.
My reading takes as equally defensible approaches both the ‘regularity view’ exposed by Baker and Hacker (2009, 98–168) and the moderate ‘communitarian view’ defended by Meredith Williams (2007). Owing to the aims of my analysis of Wittgenstein’s arguments, it is not for this book to establish which of them is sounder.
- 11.
Massimo La Torre does not agree on this point. Rather, he argues that “[t]he ‘use’ Wittgenstein speaks of can well be defined as an ‘institution’ in the sense of a complex of actions rendered possible by rules. This conception enables us to uphold a fundamental distinction for understanding the dynamics of normative phenomena, specifically legal ones: the distinction between the validity and the efficacy of the norm. The validity of a norm can not be reduced to its efficacy” (La Torre 2010, 93). Though I believe this view to be the right stance as to the issue of legal validity, I think that it cannot be justified with Wittgenstein’s conceptual tools.
- 12.
See infra, 8.2.
- 13.
See supra, 3.3.
- 14.
For a more complete definition of social practices, see infra, Chap. 8.
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Croce, M. (2012). Reflective Acceptance: Reasons for Action and Criterion-Rules. In: Self-sufficiency of Law. Law and Philosophy Library, vol 99. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4298-7_3
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