Abstract
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.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
To be exact, Wróblewski gives as many as four different meanings of the term “interpretation”. It is the strict (in his own words, “pragmatic”) meaning of the term that he finds the most operative in the presentation of the claritas doctrine.
- 2.
Presently—of course—the EU law.
- 3.
The milestone judgment of the ECJ, foundational for the doctrine, was rendered on 6 October 1982 in 283/81 CILFIT vs Ministry of Health case, [1982] ECR 3430.
- 4.
The initial source of the doctrine is the ECJ judgment of 27 March 1963 in Joined Cases 28 to 30/62 Da Costa en Schaake [1963] ECR 38 ( acte éclairé sensu stricto). It was significantly widened and developed by further case-law.
- 5.
It is inconspicuous to the participants in the language-game; it is perspicuous “from outside” the practice.
- 6.
“PI” throughout this chapter means Wittgenstein’s “Philosophical Investigations” (Wittgenstein 1986), “OC”—“On Certainty”, and numbers given refer respectively, to paragraphs or notes of the works cited.
- 7.
- 8.
Even if we question the Kripkean position that social practice is all that accounts for the normativity of rules, it plays a role in it.
- 9.
A word of caution: let us not be misled by the formulation of the D1 thesis, making reference to “legal text”. Wróblewski does not embrace textual approach to the interpretation of law.
- 10.
Or rather: it is unfortunate, for it is exactly what typically happens a lot in the proceedings. Robert Alexy places the following among the “Rationality Rules” (within the “Rules and Forms of General Practical Discourse”): “Every speaker must give reasons for what he or she asserts when asked to do so, unless he or she can cite reasons which justify a refusal to provide a justification” (Alexy 1989, pp. 192–193). I contend that the mere declaring the clarity of the provision whose meaning has been called into doubt is insufficient as a reason.
- 11.
Nb. the distinction between easy and hard cases may be drawn according to many criteria—this is only one of them.
- 12.
Interpreting the rule is part of the practice establishing its meaning (competent language user should be able to explain the meaning of the term by which he interprets it—it is one of the ways to demonstrate proper understanding). It is however impotent as a method of establishing the meaning: it “does not mediate between a rule and what accords to it” (Baker and Hacker 2009) or “bridge the gap between rule and action” (Marmor 1992, p. 149).
- 13.
Cf. the difference between “groundless, logical, nonepistemic certainty” and subjective certainty, resting on individual intuition, not rooted in the social practice in Moyal-Sharrock (2005, p. 78; also OC 194).
- 14.
And it does not hold at all for the acte éclairé doctrine, which resembles rather the N2b thesis.
- 15.
CILFIT, para. 16–20.
- 16.
In the literature it is often claimed that this concept is detached from reality and the criteria proposed by the ECJ in order to establish such certainty—utterly impracticable. Cf. also the opinion of advocate-general Srix-Hackl delivered on 12 April 2005 in the case C-495/03 Intermodal Transports BV, para. 87: “the application of any provision, even one which seems ‘unambiguous’ or ‘clear,’ in principle requires prior interpretation,” true if assessed against the CILFIT criteria of clarity.
- 17.
Even if in the sphere of law doubts which “a reasonable man does not have” (OC 220) seem rather scarce—do we get here many assertions enjoying the certainty of “I know that here is my hand”? This is not to claim, however, that there are none at all.
- 18.
It is less engaging than it seems—it suffices (or even is only appropriate) to show the practice concerning the entire provision or even larger normative whole, crucial for the disputed case, without studying one-by-one the individual expressions it contains, isolated from the context.
References
Alexy, Robert. 1989. A theory of legal argumentation. Oxford: Clarendon.
Baker, Gordon P., and Peter M.S. Hacker. 2009. Wittgenstein. Rules, grammar and necessity. Oxford: Wiley-Blackwell.
Brożek, Bartosz, and Zyzik, Rarosław. 2010. Reguły prawne z perspektywy dociekań filozoficznych. Ruch Prawniczy, Ekonomiczny i Socjologiczny 2:113–132.
Hershovitz, Scott. 2002. Wittgenstein on rules: The phantom menace. Oxford Journal of Legal Studies 4:619–640.
MacCormick, Neil, and Robert S. Summers, eds. 1991. Interpreting statutes: A comparative study. Dartmouth: Dartmouth.
Marmor, Andrei. 1992. Interpretation and Legal Theory. Oxford: Clarendon.
Moyal-Sharrock, Danièle. 2005. Unravelling Certainty. In Readings of Wittgenstein’s On Certainty, ed. Danièle Moyal-Sharrock and Wiliam H. Brenner, 76–99. New York: Macmillan.
Wittgenstein, Ludwig. 1969. On certainty. Oxford: Blackwell.
Wittgenstein, Ludwig. 1986. Philosophical investigations. Oxford: Blackwell.
Wróblewski, Jerzy. 1988. Pragmatyczna jasność prawa. Państwo i Prawo 4:3–13.
Acknowledgements
The Author thanks Professor Zygmunt Tobor for suggesting the linkage between Wittgenstein and Wróblewski. The usual disclaimer applies.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Filipczyk, H. (2015). Blindly Following the Rules: Revisiting the Claritas Doctrine. In: Araszkiewicz, M., Banaś, P., Gizbert-Studnicki, T., Płeszka, K. (eds) Problems of Normativity, Rules and Rule-Following. Law and Philosophy Library, vol 111. Springer, Cham. https://doi.org/10.1007/978-3-319-09375-8_23
Download citation
DOI: https://doi.org/10.1007/978-3-319-09375-8_23
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-09374-1
Online ISBN: 978-3-319-09375-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)