10 2307@764715

Linguistic Indeterminacy
Author(s): Timothy A. O. Endicott

Source: Oxford Journal of Legal Studies, Vol. 16, No. 4 (Winter, 1996), pp. 667-697
Published by: Oxford University Press
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Indeterminacy
Linguistic
TIMOTHY A. O. ENDICOTT*
No personshalltakeorpossess,intheCountyofLanarkortheRegionalMunicipality
ofOttawa-Carleton,anybullfrog is fivecentimetres
unlessthetibiathereof ormorein
length.'
We can thinkofcases in whichliabilityforcatchingbullfrogs underthisregulation
is indeterminate--cases in whichwe knowwhat factsa courtwill find,and do
not know how the court will decide a case. What if a bullfroghas one tibia
longerthan 5 cm and one shorter?What if the lengthof a tibia is pushed over
5 cm by a raregrowth?What of a bullfrogwitha curvedtibia thatis 4 cm long
when laid beside a ruler,but measures6 cm witha tape?
Countless indeterminaciesappear in linguisticformulationsof legal rules:
lexical ambiguities(does 'person' include a company?),syntacticalambiguities
(does the person have to be in Ottawa? does the bullfrog?),uncertaintyas to
whetherthe seeminglyredundant'take' adds anythingto 'possess', and so on.
Bullfroghuntersand theirlawyersmightface furtherlegal indeterminacies
that do not arise fromthe language of the regulation:if thereis an unresolved
conflictbetween the bullfrogregulationand anotherrule, or if the power to
make the regulationor the proceduresby whichit was promulgatedor enforced
are suspect,or ifit is unclearwhetherproofof some mentalstateis requiredfor
conviction,orwhetherprincipalsare liablewhenagentstakebullfrogs, orwhether
theregulationmaybe inapplicableon equitablegrounds(suppose someone took
a bullfrogfroma busy road to keep it safe). And the lawyersand the bullfrog
huntersmay face further uncertaintiesthatare neitherlinguisticnor legal, such
as whetherthe authoritieswill exercisetheirdiscretionto prosecute,whethera
witnesswill make it to court,and so on.
Those non-linguistic indeterminaciesand uncertaintiesarisebecause lifeand
legal systemsare complicated.But people can choose theirwords,and it would
be reassuringto thinkthatlinguisticindeterminacy, at least,could be eradicated
by carefuluse of language. Perhaps.the draftersof the bullfrogregulationset
out to do thisby avoidingvague termslike 'maturebullfrog'or 'largebullfrog'.
What does theirfailureto eliminatelinguisticindeterminacyshow about law
and language?Indeterminacyseems pervasiveand obdurate.
" St Catherine's
College,Oxford.
1RegulationundertheOntarioGameandFishAct,O Reg694/81.
C Oxford Press1996 Oxford ofLegal StudiesVol 16,No 4
University Journal

668 fournal ofLegal Studies
Oxford VOL. 16
This articleaddressesthe claim thatlanguage (and therefore law) is radically

indeterminate:that no question of the meaning or applicationof a linguistic
expressionhas a singlerightanswer.I conclude not onlythattheclaim is wrong,
but that,in spiteofappearances,no one actuallymakesit.Those twoconclusions
raise the more importantquestion of what to make of the allegationsthatlegal
scepticsof varioustypesdo make about linguisticindeterminacy. To get to that
question, we need to start what
by identifying legal are
theorists talkingabout
when theytalk about indeterminacy.
The twilight
zone
A metaphorpopular in twentieth-century legal theorypictureslinguisticin-
determinacyas a penumbra,a shadowypurlieubetweenthe clear applicability
of an expressionand its clear inapplicability.The metaphoris traditionally
creditedto H. L. A. Hart.2But Benjamin Cardozo had writtenin 1921 of 'the
borderland,the penumbra,where controversy begins',3and GlanvilleWilliams
used the metaphorin an encyclopaedicreview of legal problems about the
meaning of words, writtenin 1945-6: 'Since the law has to be expressedin
words,and wordshave a penumbraofuncertainty, marginalcases are bound to
occur.'4 Cardozo implicitlyand Williamsexpresslypresaged Hart's claim that
the judge has a law-makingrole in penumbralcases.5
Since Hart popularized the metaphorof core and penumbra,6many legal
theoristshave insistedthat the notionfalselyattributesto words some kind of
certainty,or absoluteness,or independenceof context,or immunityto change,
and thatindeterminacy is more than a fringeor margin.They have questioned
not the notionof a penumbra,but the notionof a core.
Is meaninglikea partialeclipse ofthe sun-all penumbra?What can be made
of claims that the meaning or applicationof words is entirelyindeterminate?
One responsewouldbe to rejectthoseclaimsas obviouslywrong:everyoneknows
2 Eg byKenKress,'LegalIndeterminacy'
(1989)77 Cal LR 283,287,andbyMargaret JaneRadin(at285-6),
DavidLyons(at 221), Frederick Schauer,ed, Law andLanguage
Schauer(at 434), all in Frederick (Aldershot:
Dartmouth1993). Law and Languageis a veryusefulcollection of legaljournalarticlesin whichlinguistic
is a predominant
indeterminacy I
concern; willrefer of
to several the articles
reproduced in Law andLanguage,
usingLL pluspagenumber, withtheauthor'snamewherenecessary.
N. The
3 Benjamin Cardozo, Nature the
of Judicial Pmcess (New Haven: Yale UP, 1921) 130.
4 LL 139. Hart acknowledgedWilliams' use of the notion: The ConceptofLaw, 2nd ed (Oxford: Clarendon
Press 1994) 278. Also in the 1940s, Karl Llewellyntaughthis studentsas followsin a versifiedtheoryof statutory
interpretation:
A textlays out, the textyou see,
unyielding,all perimeters;
though slightpenumbra theremustbe
you'llfindin forceandquantity
sharp,givenverballimiters.
Quoted in WilliamTwining,Karl Lkwellynand theRealistMovement(Norman: Universityof Oklahoma Press
1973) 240. How much of thisis tongue-in-cheek is one of the puzzles in understanding
Llewellyn.
5 LL 140.
6 'We maycall theproblemswhichariseoutsidethehardcore ofstandardinstancesor settledmeaning"problems
of the penumbra" ...', 'Positivismand the Separation of Law and Morals' (1958) 71 Harv LR 593 at 607. Cf
the discussionin The ConceptofLaw of 'a core of certaintyand a penumbraof doubt' in the applicationof the
generaltermsused in formulating legal rules (above n 4 at 123).

WINTER 1996 LinguisticIndeterminacy 669
thatthereare cases in whichwordsapplywithoutanydoubtor disagreement, just
as thereare situationsin whichitis unclearwhethertheyapply.Anotherresponse
would be to reject such claims as nonsensical-they declare themselvesto be
not exactlyaltogethertrue.
But one of the firstlessons of jurisprudenceis not to dismissobviouslywrong
or nonsensicalclaims (eg 'what the officialsdo is the law' said by a legal realist,
or 'an unjust law is not a law' said by a naturallawyer).Instead, it is worth
askingwhat new emphasis or neglectedinsighta theoristis embellishingwith
absurdity.Nonsense in legal theorydeservesthe same tolerancethatwe apply
when we ask ifit's rainingand someone says,'yes and no'.
Tolerancerecommendsinterpreting radicalindeterminacy thesesas hyperbolic
objectionsto immodestclaims (or to inarticulateassumptions)of determinacy.
And indeed, intriguing and crazyclaims of indeterminacy tend to crumbleinto
sensible and less intriguingpositions. In fact, the sensible positionstypically
accompanythe crazyclaims,as expressconcessions.I will arguethat,when the
concessionsto determinacy are accountedfor,everyclaim about indeterminacy
thatwe will see is consistentwithwhat Hart said about language: '[t]herewill
indeed be plain cases ... to whichgeneralexpressionsare clearlyapplicable ...
but therewill also be cases where it is not clear whethertheyapply or not'.
Then the debate is over whetherdeterminacyis vast and typical (as Hart
occasionallysuggested),'or scarce,and likelyto delude unimaginativetheorists.
Whatis indeterminacy?
Legal theoriststalkof 'legal indeterminacy' when a legal questionhas no single
right answer.' I will use 'linguisticindeterminacy'to referto unclarityin the
meaning linguisticexpressionsthat could lead to legal indeterminacy.
of Con-
cerning the application of the language in which laws are formulated,legal
theoristsmake claims of practicalindeterminacyand claims of theoretical in-
determinacy. Practical indeterminacy arisesin language when competence in the
language is not enough to know whetheran expressionapplies in a situation,
and in law whenlegal competenceis not enoughto knowthelegal consequences
ofa situation.A radicalindeterminacy claimwould allegethatcompetentspeakers
of a languagecan neverknowwhetheran expressionapplies,and thatcompetent
lawyerscan neverknow what to tell a client.Theoreticalindeterminacy claims
do not outragenaivenotionsin thatway.They allegethatthemeaningor correct
applicationofwordsis notdeterminedin thewaythatpeople mighthave thought,
butin somemannerso different thatitis misleadingevento callthemdeterminate.
Some theoristsargue that the currentdebate about indeterminacy is entirely
7 The ConceptofLaw, above n 4 at 126.

8
134, 154.
124,
9 Ibid,
See, eg,Kress,aboven 2 at 283; BrianBix,Law,LanguageandLegalDetemnninacy Clarendon
Press
(Oxford:
1993) 1. See alsoLaurenceSolum,'On theIndeterminacyCrisis'(1987) 54 UChicLR 462.

670 OxfordJournal of Legal Studies VOL. 16
about whatI call theoreticalindeterminacy.10 Such theoristswillnot necessarily
findany more practicalindeterminacy in a legal systemthan,eg H. L. A. Hart
did; thissortoftheoreticalindeterminacy thesisdoes notrepresenta claim about
the extentof legal uncertainty, but the pursuitof a philosophicalagenda." I do
not mean to assess theoreticalindeterminacy claims. That job would requirea
fully-fledgedtheoryof meaning,and no one has ever come up with enough
feathersto fledgea theoryof meaning.
There is a further limitationon the scope of thissurvey:because the topic is
indeterminacy in the applicationto particularcases of thelanguagein whichthe
law is formulated,some recentdiscussionsof indeterminacy are not addressed.
An exampleis Charles Yablon's deconstructionof legal forms:
A summons is a routinelegalform.It is also an instrument
ofpowerand pain.That
is theindeterminacy thatgivesitmeaning.12
Here, 'indeterminacy' seemsto mean capacityforsymbolicforce,or significance,
or potentialforuse as a metaphor-which raise no question as to whethera
particulardocumentis, eg, a summons,or as to the legal effectof anyform.
I cannot over-emphasizethatthe purpose of the surveyis not to analysethe
sophisticatedtheoriesof language thatback the indeterminacy theses thatwill
be encountered.There is no room here to do them sufficient justice to rebut
them.It willbe obviousthatI basicallyagreewithHart'sviewthattheapplication
oflinguisticexpressionsis sometimesdeterminateand sometimesindeterminate.
But myaim is not to arguethatHart is rightand radicalindeterminacy theorists
are wrong;it is to argue thatthereare no radical indeterminacy theorists,and
thateveryonebasicallyagreeswithHart's view. So the purpose of the surveyis
to point out featuresof some prominentindeterminacy theorieswhichsupport
the interestingclaim that,in spite of appearances,no one actuallymaintainsa
radicalindeterminacy thesis.The factthatsuch a thesiswould refuteitselfdoes
not in itselfexplainthisfact,as the legal deconstructionist
David Gray Carlson
has shown: 'That deconstructionis self-refuting-afact it fullygrasps, em-
phasizes,and even exploits-by no means provesthatdeconstructionis wrong
about meaning."' Carlson is rightthat self-refutation does not show that de-
constructionis wrongabout meaning;instead,it showsthatdeconstruction says
nothing about meaning,so thatit calls forthe toleranceI proposed above.
The surveywill startby discussingthreevariouslyrelatedschools of doctrine:
(1) the currentconsensus on the nature of interpretation, (2) deconstruction,
and (3) semiotics.The discussionswill show thatradical indeterminacy theses
10
See, eg, RobertJustinLipkin, 'Indeterminacy, Justificationand Truth in ConstitutionalTheory' (1992) 60
FordhamLR 595, 611: 'But the indeterminacy issue, as I understandit,challengesthe source,not the fact,of one
rightanswerexistingin any givencase. To be a propohentof determinacy, you mustbelievethata constitutional
questionhas one rightanswer,and thatthe answerderivessolelyfromthe meaningof thelaw, independentof our
purposes,needs, aspirations,and context'.
In Lipkin'scase, to 'rid ourselvesof the notionof truth'.Ibid, 609 n 56.
12 'Forms' in D. Cornell, M. Rosenfeld,D. G. Carlson (eds), Deconstruction and thePossibilityofJustice(New
York: Routledge 1992) [hereafter, 'Deconstruction']258 at 262.
13 David GrayCarlson,'Liberal Philosophy'sTroubled Relationto theRule ofLaw' (1993) 43 UTLJ 257, 278.

WINTER 1996 Linguistic
Indeterminacy 671
thatissue fromthosetheoreticalperspectivestendto degenerateintoconcessions
of determinacy.What is leftafterradical indeterminacy claims are discounted
by the concessions? Often,a claim that meaning depends on context,or that
meaningis changeable.So sections(4) and (5) will discuss contextand change.
Section (6) will reviewthe case of Ludwig Wittgenstein, whose work on rules
has been used to generatesome extraordinary indeterminacy claims.A popular
non-scepticalinterpretationof Wittgenstein'sremarksseeks to pour cold water
on thoseclaims.If thatnon-scepticalviewis right,it devastatesboth radicaland
theoreticalindeterminacy claims.
1. TheNew Interpretive and theCritical

Orthodoxy
Predicament
A new consensus has emergedabout interpretation about its
and, specifically,
role in law: that understandingis interpretationand, specifically, that every
application of the law is an interpretationof the law. This notion, which
Dennis Pattersonhas called 'the currentinterpretive
orthodoxy',"4is particularly
associatedwithStanleyFish. He thinksthateverything thatpeople do withother
people's utterancesis interpretation:
... in myargument, is conventional
interpretation understanding.'5
ofevery
... communications kindarecharacterized thesameconditions-the
byexactly
ofinterpretive
necessity work,theunavoidability
ofperspective,
and theconstruction
ofthatwhichsupposedly
byactsofinterpretation groundsinterpretation,
intentions,
and piecesoftheworld.'6
characteristics
Some people disagreewithFish about most of the latterclaim,but agree on
'the necessityof interpretivework' to understandingand applyinglinguistic
expressionsand the law. The strikingrangeof theoristswho hold similarviews
establishesan interpretivist
partyline:
Owen Fiss: 'Adjudication
is interpretation: is theprocessby whicha
Adjudication
judgecomesto understand and expressthemeaningof an authoritative
legaltext
and thevaluesembodiedin thattext.'17
FrederickSchauer:'... ordinary
talkappearsto reserve
theword"interpretation"
for
those cases in whichthereseems to be a problem.In thisrespect,common
Universalism:
ofInterpretive
"4 'The Poverty TowardtheReconstruction ofLegalTheory'(1993) 72 TexasLR
1. Patterson usesWittgenstein's
remarkson rulesto attackthenotion'smanifestations
in RonaldDworkinand
Stanley thegeneral
Fish,anddiscusses context
philosophical ofthenotion.MartinStonediscusses'thecontemporary
recourse tointerpretation',
andhetoousesWittgensteintoopposeit:'FocusingtheLaw:WhatLegalInterpretation
is Not' in AndreiMarmor(ed), Law andInterpretation
(Oxford:Clarendon Press1995) 31 at 36. Marmorhas
mountedthe same Wittgensteinian attackon the notionthatunderstanding presupposes in
interpretation,
andLegalTheory(Oxford:ClarendonPress1992) 146-54.
'1 'How ComeYou Do Me LikeYou Do? A Replyto DennisPatterson'
Instepretation (1993) 72 TexasLR 57, 62.
16DoingWhatComesNaturally (Durham:DukeUniversity Press1989)43-4.
andInterpretation'
17 OwenFiss,'Objectivity (1982) 34 StanfordLR 739,739.

672 JournalofLegal Studies
Oxford VOL.16
usageis potentially
linguistic forevery
misleading, of a ruleis also an
application
interpretation."8
ofthem[rules]is a reinterpretation.'"9
JaneRadin:'... everyapplication
Margaret
AllanHutchinson
andDerekMorgan:'Meaningis theproductofinterpretation...
..20
RonaldDworkin:'So I am drawnto theinterpretive answerto the question:what
makesa propositionof law true?Even in easycases,thatis, evenwhenit goes
withoutsayingwhatthelaw is, ... we do betterto explainthatphenomenon by
speakingofa convergenceon a singleinterpretation...
.'21
MichaelMoore:'I do notintendbytheword["interpretation"]
todistinguish
between
findingthemeaningofa law,and applying thatlaw to thefactsofsomecase....
Whatever I mustdo to connectthelaw to thefactsin themannerearliersketched
is whatI meanby"interpretation".'22
Drucilla Cornell: '... the rule itselfis alwaysin the process of reinterpretation
as it is
thatgivesus therule,nottheotherwayaround.'
applied.It is interpretation
JacquesDerrida:'Each case ... requiresan absolutely

uniqueinterpretation.'23
This is a bizarre consensus among people who agree on nothingelse. It is a
consensusthatsurvivestheirdifferent viewson how to interpret, on whetheran
interpretationcan intelligiblybe called rightor wrong,on the natureof truth
and meaning,and so on. They all thinkthatno legal questioncan be answered
exceptby an interpretation.
The consensusitselfshowsthatthenew interpretive orthodoxy,and fascination
with interpretationin general, do not compel any particularview on in-
determinacy.Ronald Dworkin,forinstance,seems to view law as more deter-
minate than anyone else does.24And we should even hesitateto attributeany
sortofindeterminacy thesisto StanleyFish. In a replyto Pattersoncalled 'How
Come You Do Me Like You Do?' he seems hurtby the imputation.
In theworldI describe, readersaresituated(notbychoice,butbyhistoriesthathave
befallenthem)in communities whosetraditions in thestrongest
are constraints way;
... theystructure the individualconsciousness,providingit witha limitedset of
1s PlayingbytheRules (Oxford:ClarendonPress 1991) 207.

'9 LL 311.
20 LL 478.
21 'On Gaps in the
Law', in Neil MacCormick and Paul Amselek (eds), Connmversies
about Law't Ontology
(Edinburgh:EdinburghUniversityPress 1991) 84 at 88. And see Law's Empire(Cambridge:HarvardUniversity
Press 1986) 87: 'Law is an interpretive concept ...'. Dworkinarguesthata judge mustuse the same interpretive
methodto decide any case (Law's Empire265-6, 353-4). Cf also A MauterofPrnciple(Oxford:Clarendon Press
1986) PartII: 'Law as Interpretation'.
JohnFinnishas arguedcogentlyagainstDworkin'sinterpretive universalism
in 'On Reason and Authority in Lawt Empire'(1987) 6 Law and Philosophy 357 at 358-63.
22 'A Natural Law Theory of Interpretation' (1985) 58 S Cal LR 277, 284-5. But Moore's interpretivism is
'modest'-see Moore, 'Interpreting Interpretation', (above, n 14) 1.
in Marmor (ed), Law and Interpretation
23 'Force of Law: The "MysticalFoundation of Authority"',in Deconstruction,
24
above n 12, 3 at 23.
See, eg, Dworkin,'On Gaps in the Law', above n 21.

WINTER1996 Indeterminacy
Linguistic 673
meanings androutes ofinterpretive action.... Thisis aboutas faras onecouldget
(shortof an out-and-out determinism) froma condition in which'everything is
permitted ...25
The interpretive consensusis logically neutralas to indeterminacy, becauseit
claimsthatinterpretation is neededwhenthe applicationof languageseems
quitedeterminate-in situations where,ifwe areinterpreting, thereis onlyone
correctinterpretation. It claimsthatwhenyou driveup to a stop sign,you
cannotrespondto thesignwithout interpreting.
The consensusseemsto stretch thenotionofinterpretation overinstancesof
understanding thatarenotinterpretive at all. 'Interpretation'seemsuseful(and
is generallyused)as a termformaking choicesas tothemeaningofan expression
or a text.Andwhilethereare choicesto be madewhenyoudriveup to a stop
sign(eg, whether to stop),thereare none to be made aboutitsmeaning.On
thisuse of theterm'interpretation', we interpret whenwe can reformulate a
rulein a waythatclarifies itsmeaning.We do notinterpret stopsigns.26
But no one wantsto argueaboutlabels:we couldsaythatthereis onlyone
admissibleinterpretation in some cases, and that determinacy is the in-
admissibility of all otherinterpretations. Or we coulddescribesucha case in
termsofunderstanding, and keeptheword'interpretation' forcasesin which
something can ormustbe made ofthe object question.Peoplearefreeto use
in
as a for
'interpretation' synonym 'understanding', or fora creativeprocessof
But
makingchoices. interesting things happen when theyuse itforbothat once.
It is preciselybecausetheuse oftheword'interpretation' to describea creative
process is common and attractive,that the interpretive consensus lendsitselfto
indeterminacy theses. If you think that everyapplication of the law is an
and
interpretation, you if can simultaneously hold in your head the idea that
interpretation is a matter of making choices amongopenalternatives, resultthe
is indeterminacy. Thus, Sanford Levinson constructs an indeterminacy thesisby
invoking Richard Rorty's pragmatist philosophy. Rorty thinks that an interpreter
'simplybeatsthetextintoa shapewhichwillservehis ownpurpose',27and he
insiststhatthereis no distinction betweenthatactivity and understanding a
text.28
Levinsonjoinsa bandofcritical theorists who'rejecttheverysearchforfinality
ofinterpretation',29 and concludesthatone can neversaythata constitutional
case 'was "wrongly" decided,forthatuse oflanguagepresupposes beliefin the
knowability of constitutional And
essence'."3 although he would liketo criticize
25 (1993) 72 TexasLR 57, 61-2.
26 Forfurther A. O. Endicott,
oftheseclaimsseeTimothy
discussion initsPlace'(1994)
Interpretation
'Putting
13 LawuandPhilosophy
451.
27
RortyquotedbyLevinsonat LL 355.
28 CfRorty,'ThePragmatist's
Progress',inStefanCollini(ed),Umberto andOverinterptration
Eco,Interpretation
(Cambridge: Cambridge Press1992) 89: 'On ourview,all anybody
University everdoeswithanything is use it.
knowing
something,
Interpreting it,penetratingto itsessence,and so on areall justvariouswaysofdescribing
someprocessofputtingitto work.'(at 93).
29 LL 354.
3o LL 356.

Oxford VOL.16
some of JohnMarshall's work as dishonest,he considerssuch criticisms'ir-
relevant',because theyassume 'the existenceofa privilegeddiscoursethatallows
me to dismissMarshallas "untruthful" ratherthanmerelydifferent'.3'Levinson
stops shortof askingwhatprivilegeddiscourseenables him to say thatMarshall
is 'different',or to say anythingat all.
To be unable to say that a case was wronglydecided (or, of course,rightly)
is an appallingpredicamentfora lawyerto land in, and Levinson occasionally
voices despairabout it.32Ironically,it is a characteristic
predicamentof theories
thatset out to be critical.By toutingindeterminacy, legal theoristssquanderthe
possibilityof sayinganything.
There are varioustechniquesforcopingwiththiscriticalpredicament,besides
Levinson'sdespair.A standardresponseis to cleave to thebeliefthatchallenging
the statusquo is good in itself,even ifthe formof the challengemakes it absurd
toproposea change.33 This approachrelieson therhetorical potentialofnonsense.
Pragmatists like Rorty make a more subtle response: theytryto distinguish
'between knowingwhat you want to get out of a person or thingor text in
advanceand hopingthatthepersonor thingor textwillhelpyouwantsomething
different-thathe or she or it will help you to changeyourpurposes,and thus
to changeyourlife'.34But a stop sign,forexample,cannothelp you to change
yourpurposes,ifall you everdo witha stop signis to beat it into shapeforyour
purpose.35The resolutionof thistensionin Rorty'sworkhas to be some sortof
interplaybetweentextand purpose,which is onlypossible if some textsresist
being beaten into some shapes. That resolutionwould be a concession of
determinacy.
The criticalpredicamentis more agonizingin legal theorythan in literary
theory,because the urge to say that an interpretation of a constitutionis right
or wrongis generallymore pressingthan the urge to say thatan interpretation
of a poem is rightor wrong.And in spite of Levinson's intermittent despair,
even he takes to the most common recourseof legal indeterminacy theorists:
concessionsof determinacy.
thatI sometimes
... I cannotbe thearch-indeterminist appeartobe.... I willquickly
concedethatcourtsand otherconstitutional operatewithinconstraints.36
interpreters
is
To be sure,noneof theradicalcriticsdefendthepositionthatanyinterpretation
justas goodas anyother.37
The second of these two concessionscontradictsLevinson's denial thathe can
3" LL 359.
32 LL 371-3.
33 For an argumentagainst using indeterminacy argumentstacticallyto freeup people's thinkingsee Kress,
above n 2, at 336.
'4 Above n 28 at 106.
35 StefanCollinipointsoutthis'tantalizing'aspectofRorty'sphilosophy:'Introduction:Interpretation
Terminable
and Interminable'in Interpretation above n 28, 1 at 12.
and Overinterpretation,
36 LL 352, n33.
37 LL 354.

WINTER1996 LinguisticIndeterminacy 675
criticizeJohnMarshall:to do so he would onlyhaveto givereasonswhyMarshall's
interpretationsarenotas good as thealternatives.Levinson'sindeterminacy thesis
turnsout not to be as radical as it seems.
We can say the same of interpretivist indeterminacytheoristsgenerally.A
radicalinterpretivist
indeterminacy thesiswould have to say thatall applications
of linguisticexpressionsare interpretations, and that no interpretation is ever
betteror worsethan any otherinterpretation. No doubt it would be possible to
make both claims,but it is hard to findanyonewho does. If examplesare to be
found at all, we might seek them in the exotic reaches of interpretivism:
deconstructionand semiotics.
2. Deconstruction
Deconstructioninvertswhateveranythingseems to mean, by reversingthe
'privileging'of one interpretation over another.That is the technique of the
guru,JacquesDerrida; 'deconstruction'is also occasionallyused in a widersense
as more or less equivalentto what is sometimescalled 'poststructuralism', or
'criticaltheory',or evenjust 'theory'.38
Perhapsdeconstructionis a sophisticated
intellectualapparatusfordisclosingironiesthatpervade thoughtand language
and experience.Perhaps it is bravura. Deconstructioniststhemselvesdo not
differentiate:
of deconstruction
... explanations involvea modification
necessarily of it. (J.M.
Balkin)39
No conceptionof deconstructioncan be advancedwithconfidence,

as everysuch
is subjectto further
conception deconstruction.
(MichelRosenfeld)40
All sentencesofthetype'deconstruction
is X' or 'deconstructionis notX', a priori,
missthepoint,whichis to saythattheyareat leastfalse.(JacquesDerrida)"
Derrida's own reflections on justiceallege radicalindeterminacy-atleast in the
application of the word 'just'. The resultis newspeak:
onecannot... say'thisis just'andevenless'I amjust',without
immediatelybetraying
justice...42
ifsucha thingexists,outsideor beyondlaw,is notdeconstructible.

in itself,
Justice
No morethandeconstruction ifsucha thingexists.Deconstruction
itself, is justice.43
38 For a thoughtful
critiqueofindeterminacy
claimsin theworkofDerridaand DrucillaCornel see Stone,
aboven 14,esp'Appendix:A Noteon Deconstruction'.
39 LL 402, n 54, Balkin.
40 MichelRosenfeld, and LegalInterpretation:
'Deconstruction Conflict, and theTemptations
Indeterminacy
oftheNewLegalFormalism' in Deconsmction,
aboven 12, 152 at 199,n 22.
41 JacquesDerrida,commenting on howtheword'deconstruction'
might be translated
intoJapanese,
in'Letter
to a JapaneseFriend',in DavidWoodand RobertBernasconi(eds),Derrida.and Parousia
Diffence(Coventry:
Press1985)at 7.
42 Derrida,aboven 23 at 10.
43 Ibid,14-15.

676 fournalofLegal Studies
Oxford VOL. 16
Derrida's insistenceon the impossibility of callinganything'just' arisesfrom
a paradox he creates:to be just, a decision must be responsible,and also free.
So it must 'be both regulatedand withoutregulation:it must conservethe law
and also destroyit or suspend it ...'." The attractiveway to take Derrida's
paradox is as a recommendationof modestyin makingclaims of justice,and as
a warningagainsthypocrisy and moralblindness.But thesame deconstructionist
principle that applies to 'just' also applies to 'unjust', either(i) by parityof
or
deconstruction, (ii) in virtueof the fact that if no decision can be just, no
decision can be distinguishedas unjust. 'Unjust' becomes eitherapplicable to
no decision,or meaninglessly applicableto everydecision (it could not be used,
eg, to distinguish the conviction of a prisonerwho has been framedfromthe
acquittalof a prisonerwho has been framed).There.is no attractive way to take
thepropositionthatno one can evershy'thisis unjust'withoutbetraying justice.
Warningsagainstmoral blindnessshould not be ignored.In some cases no
just decision may be possible: suppose that an accused is manifestly guiltyon
admissibleevidence of serious criminalchargesproperlybrought,and suppose
that the penal systemis abusive. It mightbe unjust to acquit, and unjust to
convict,and a juror cannot make thingsbetterby assumingthat the less bad
option (ifthereis one) is just. But Derrida'sparadox claimsto provemore than
thattheremaybe no just decisionon offer:it claimsto provethatit is a betrayal
of justiceto say thatany decision is just.
Curiously,Derrida's argumentcoincideswitha concessionof determinacy in
law:
case,to a correctly
... everytimethatwe placidlyapplya good ruleto a particular
subsumedexample,accordingto a determinant judgment, we can be surethatlaw
mayfinditselfaccountedfor,butcertainly
(dmrit) notjustice.45
If examples can be subsumed correctly, if rules can be applied to particular
cases, linguisticdeterminacy is conceded. If law findsitselfaccounted foras a
result,legal determinacy is conceded. If legal determinacy is conceded,itis more
straightforward to say that justice lies in rightly deciding whetherto apply the
law, than to say thatjustice must both conservethe law and destroythe law.
But is rightlydecidingwhetherto obey the law thesame thingas destroying the
law? Of course not. You do not destroythe law by makingthe rightdecision
whetherto obey it, any more than you will destroyyourpromise or a friend's
request or your mother'sdemand if you make the rightdecision whetherto
followthem. This account of justice is not only more straightforward, it also
explainsthe sound, undeconstructible of
burden Derrida's argument,which'is
thatit is not necessarilyjust to followa rule-that 'Law (droit)is not justice'.46
44Ibid,23.
a decision'in no uncertain
45 Ibid,16. He evenallowsthata rulemayguarantee so thatthejudgeis a
terms,
calculatingmachine .. .' (Ibid, 23).
46 Ibid, 16.

WINTER1996 Linguistic
Indeterminacy 677
But perhaps the concessions of determinacyare, in deconstructionistargot,
erasable. Perhaps Derrida was only sayingthat his claim about justice would
hold evenifanylegaljudgmentwerecertain.Iftalkofsubsumptionand correctness
is erasable,we shouldbe able to findconcession-free
assertionsofindeterminacy
in deconstructionif anywhere.And deconstructionists do make verygratifying
claims of radical indeterminacy:
. . a textis alwaysthreateningto overflow
intoan indefinite
numberof different
(. M. Balkin)47
significations.
... all meaningdependson a futurerewriting of past writings

as rewritten
in the
present which
writing confronts
the ...
interpreter. themeaning ofa textcouldpossibly
be anything appearsto be. (MichelRosenfeld)48
exceptthatwhichitpresently
IfI maywriteundererasure, thesisisclearly

theso-calledradicalindeterminacy correct.
(David GrayCarlson)49
flinch:
Yet even deconstructionists
Deconstruction orpromiscuity
is notlicentiousness at all ... Nordoesdeconstruction
denythe phenomenon of successfulcommunication. Withoutquestion,everyday
providesexamplesofspokensentences understood
bylisteners in thewaythespeaker
wouldhavethemunderstood. Butthereis no guarantyofthesuccessful arrival
ofthe
message,becauselanguagehas a lifein contextthatis beyondthe controlof the
speaker.(David GrayCarlson)so
The purposeofthedeconstruction is notto establishthatanyinterpretation

ofa text
is acceptable,but thattheyearning fororiginary meaningin the simpletheoryof
[eg,thetheory
interpretation thatinterpretationis theidentification
ofwhattheauthor
intendedto be donein sucha case] is incomplete and cannotserveas a foundation
(J.M. Balkin)s5
forinterpretation.
It seemsthatnobodywillsaythatanything goes. Deconstructionists
takepains
to escape.the criticalpredicament:along withthe concessionsof determinacy,
theyrelyon the value of an open mind.
Deconstruction awakesus fromourdogmatic slumber, andreminds us thatour'truth'
is onlyan interpretation....
Deconstructionis nota denialofthelegitimacyofrules
andprinciples;itis an affirmation
ofhumanpossibilities thathavebeenoverlooked or
forgottenin the of legal
privileging particular ideas. (J.M. Balkin)52
ofhierarchical
... inversions exposetodebatetheinstitutional
oppositions arrangements
thatrelyonthehierarchies
andthusopenpossibilities
ofchange... (Jonathan
Culler)"s
47LL 423.
48 Aboven40 at 157-8.
49 Aboven 13 at 282. ButnotethatCarlsonseemsto use 'radicalindeterminacy
thesis'as I use 'theoretical
indeterminacy 278 n 51.
thesis'--ibid,
5 Ibid,282-3.
s' LL 426.
52 LL 405.
13QuotedbyBalkin, LL 418.

Oxford VOL. 16
Deconstructionexposes law to debate, but not to argument.It suggestsnew
possibilitiesof change, but allows no claim that the reasons in favourof a
particularchangearebetterthanthereasonsagainstit.It pointsouttheprivileging
of ideas, but it cannot say what ideas, if any,shouldbe privileged.In favourof
this approach,it can be said thatit givesunderprivileged ideas (and therefore,
presumably,the people whose ideas they are) a kind of equality with the
privileged.But the way in which it makes ideas equal is indiscriminate:its
inversionslead onlyto further inversions.
Balkin respondswithpanache to thisversionof the criticalpredicament:he
compares deconstructionto psychotherapy. When does psychotherapyend?
When patient and therapistdecide that 'the patienthas been sufficiently en-
lightenedand emancipatedfrom the burdens repressedmaterial'."s the
of At
analogouspointin deconstruction, 'when theinsightsprovidedbydeconstruction
have produced sufficientenlightenment', the theoristmakes 'a political and
moral choice'.55In doing so, the theoristis 'strictlyspeaking,no longer a
deconstructionist'.56 Deconstructionitselfhas nothingto say about whatchoices
people should make.
Derrida sharesthe concernforthe criticalpredicament,and the open-mind
response. He insists that deconstructionis not 'a quasi-nihilisticabdication
beforethe ethico-politico-juridical questionof justiceand beforethe opposition
between just and unjust ...',57 and claims that 'constantlyto maintain an
interrogation of the origin,groundsand limitsof our conceptual,theoreticalor
normativeapparatus surroundingjustice is on deconstruction'spart anything
but a neutralizationof interestin justice, an insensitivity towards
How does deconstruction'sinterestin justice and sensitivity injustice'.58-
towards injustice
express In
itself? the denial thatany decisionis just. Here Derrida sees a solution
to the criticalpredicamentthat is more positiveand more radical than mere
concessionsof determinacy: he thinksthatthereis 'nothingmorejust thanwhat
I today call deconstruction'.59 His claim seems to be that deconstructionhas
such paradoxicallyhigh standards that it rates nothing as just. But if de-
constructioncannotsay thatany decisionis unjust,it also has paradoxicallylow
standards.As a techniquefordecidingwhatto do, it would be likea mad Robin
Hood who givesthe bootyto the poor, and returnsin the nightto steal it back
again.
3. Semiotics
In various versions,semioticshas melded the ideas of philosophers,linguists,
anthropologists,and literarycriticsinto a collage of doctrinesthat share the
54 LL 408.
Ss Ibid.
56 Ibid.
s7 Derrida, above n 23 at 19.
58 Ibid at 20.
59 Ibid at 21.

W NTER 1996 LinguisticIndeterminacy 679
attitudethat the sign is the fundamentalcategoryfor explanationof human

culture (or of everything).Like the new interpretive orthodoxy,the study of
signs and of
systems signs is not tied to any particularindeterminacythesis.
Bernard Jackson'slegal semiotics,for example, does not view semantic in-
determinacyas a necessarypart of 'the idea of meaning as a functioriof
relationships'amongsigns."6He adoptsa notionofa 'semiccore' and a penumbra
of doubt, which seems to translateHart's view of indeterminacyinto the
vocabularyof semiotics.But the traditionsof semioticsmake radical and theor-
eticalindeterminacy thesesnaturallyattractiveto semioticians.
From the nineteenth-century Swiss linguistFerdinand de Saussure, semio-
ideas that meaningis a relationbetween signifier
ticianstake the structuralist
thatthemeaningrelationis arbitrary,
and signified, and thatthemeaningrelation
byrelationswithina systemofsigns.From theAmericanpragmatist
is constituted
philosopherCharles Peirce, theytake the idea that an 'interpretant' mediates
betweensign and object, and thatthe interpretant is itselfa sign."'
The generalview emergesthatwords are signsthat are relatedto what they
stand forby signs.And what do theystand for?Signs. That is whatWilliamof
Baskerville,the hero of UmbertoEco's novel, The Name oftheRose,taughthis
prot6g6,Adso: 'A book is made up of signsthatspeak of othersigns,whichin
theirturnspeak of things.'62In William'steaching,thingsare also signs:
omnismundicreatura
quasiliberetpictura
nobisestin speculum.63
Everythingis a sign,and everysignstandsforanothersign.Things are books,
books are made up of signs,signs speak of othersignswhich speak of things,
thingsare books, ... This is a view that assimilateslanguage to everything (or
else vice versa). Everythingis code.The restlt is the apotheosisof semiosis: a
sign is thatwhichstandsfora sign,and the relationof standing-for is a matter
of mediationby a sign.
The legal semioticianwho makes the strongestclaim of indeterminacyis
Robert Benson. He includes Wittgenstein, along with Eco, Peirce, Fish, and
Derrida, among his influences."But his centralsemioticclaim is at odds with
the core of Wittgenstein's laterphilosophy.Benson says,
The something thathas meaning--... anythingthatstandsforsomething else-can
be calleda sign.6s
6oBernardS. Jackson, Semiotics
and LegalTheory(London:Routledge and KeganPaul 1985) 43. And see
Jackson, 'On Scholarly
Developments inLegalSemiotics'(1990) 3 RatioJuris
415.
61See, in particular, The TheoryofSigns',ch7 inJustus
'Logicas Semiotic: Buchler(ed), ThePhilosophy
of
Peirce:Selected (London:KeganPaul,Trench,Trubner& Co 1940). Andcf:'The threetermsofthe
Wri'tings
relationarethesignitself,theobjectofthesign,andtheinterpretant, a signandthusstandsin the
whichis itself
sametriadic to a further
relation interpretant!'
ChristopherHookway, Peirce(London:Routledge andKeganPaul
1985) 121.
62 Umberto Eco, TheNameoftheRose,transWilliam Weaver(London:Secker& Warburg 1983)396.
6
Ibidat 23, quotingthephilosopherAlanusde Insulis.
64 LL 496-8.
65 LL 498.

680 OxfordJournal of Legal Studies VOL.16
Wittgenstein'sPhilosophical were directedagainstthe idea that
Investigations
'Everyword has a meaning.This meaningis correlatedwiththe word. It is the
object for which the word stands.'66Benson's semiotic doctrineis a posts-
tructuralistvariantof thatidea, in whichthe object forwhicha word standsis
another sign.67Benson's poststructuralism reinterpretsSaussure's basic op-
position signifier-signifiedby countingthe signifiedas itselfa sign, so that
meaningbecomes a relationbetweensigns,and not just a relationthatderives
its contentfromrelationsamong signs.This doctrineleads Benson to diagram
a 'web of signs',68in which 'the reader produces the meaning of a sign by
travellingthe connectionsoftheweb, linkinga seriesofsignsuntillosinginterest
in the process'.69He applies the web to the 1987 disputebetweenthe Reagan
Administration and Congressover the US-USSR Anti-BallisticMissile Treaty,
and concludesthat'textsdon't possess meaning',70thatreadersmake meaning,7'
and that 'the traditionalmythof the "rule of law"'72helped to hide US state
terrorism.
Even Benson makes a tacit concession of linguisticdeterminacy, when he
concludesthatreadershavepower'to makemeaning,evenbyopenlydisregarding
a text'.7 Disregardinga text would not be an option available to a reader,if
textsdid not possess meanings.The implicationthatthereis somethingthatcan
be disregardedis a concession of determinacy.But at least Benson makes no
expressconcessionsto determinacy.He does not even acknowledgethe critical
predicament.The processoftravelling aroundthesemioticweb 'ends onlywhen
the reader loses interest'.74
As a result,.the purityof Benson's theorypurely
undermineshis criticalpurpose.By sayingthatmeaningis whatreadersproduce
when theyget tiredof movingaround a semioticweb, he disqualifieshimself
fromsayingthattheABM Treaty(or anytext-thatis, anything)meansanything.
Benson seems to view his theoreticalclaims as a particularlycuttingway of
underminingthe Administration'% arguments,and to relyon the sympathyof
his audienceto supportthefeelingthattheAdministration's actionswereterrorist
actions. But he has no argumentthat the Administration was wrong.He can
give no reason why anyone shouldstop at the node in the semioticweb from
whichthe US government'sactionslook like terrorism.
The US Government'sattemptsto evade its treatyexemplifythe fact that
when people don't want to do what they should, they have an interestin
66Philosophical transG. E. M. Anscombe

Investigarions, BasilBlackwell
(Oxford: 1958)section1.
67One ofseveralintersections between semioticsand deconstruction
is thattheysharethisprinciple:
cf'Every
is
signifiedactually a signifier
in disguise... a signcanonlyrepresentstillanothersign'.(Balkin,LL 402); '... in
thecontext ofdeconstruction,
alltexts(whether oralorwritten)
arewritings toother
thatrefer Rosenfeld,
writings.'
aboven 40 at 153.
68 LL 498.
69 Ibid.
70
LL 505.
71 LL 512.Atthispoint
Benson
parts withEco,whothinks
company that'inthecourse
ofthelastdecades,
oftheinterpreters
therights havebeenoverstressed'. andHistory',
'Interpretation in Eco, aboven28 at 23.
72 LL 513.
~3 LL 512.
74 LL 498.

presentingwhat theywant to do as an interpretation of theirduty.Benson's

doctrinehas the consequence thattheyare right.Whatevertheywant to say is
On thisdoctrine,no one can break a treaty,or a promise,or
an interpretation.
denya constitutionalright.The lies of the powerfulbecome interpretations.
4. Context
When indeterminacytheoristsmake concessions to determinacy,they often
retreatto assertionsthatthe indeterminacy
claimwas actuallya reminderof the
of
context-dependence meaning:7s
Thereare stillrules.But thereare no rulesthatcan be understood
apartfromthe
context... (MargaretJaneRadin)76
... ifthemeaningofa signifier

is contextbound,context is boundless-that
is, there
arealwaysnewcontexts thatwillservetoincreasethedifferent
meaningsofa signifier.
(I. M. Balkin)"7
Deconstruction ... stressesthatmeaningis contextbound-a function of relations

withinorbetweentexts-butthatcontext itself
is boundless:therewillalwaysbe new
contextual thatcan be adduced,so thattheone thingwe cannotdo is to
possibilities
setlimits.(Jonathan Culler)s
To some extent,the boundlessnessof contextis irrelevantto questionsof the
applicationofrules.That boundlessnesshas a rolein interpreting Dante's Divine
Comedy,for instance,that it does not have in decidingwhethergoods are of
satisfactoryqualityforthe purposesofthe Sale of Goods Act. We mightcall the
firstsortofinterpretation 'generalizinginterpretation'.It means givinga general
account of the Divine Comedy,thoughit can be more general (if it claims to
interpret thewhole) or less (ifit accountsfora partofthe poem or an aspect of
the poem). The complexityof that textand of the restof the world make for
endless possible interpretive statementsabout the Divine Comedy.79Of course,
therecould be generalizinginterpretations oflegal texts,as ifsomeone asked for
an interpretation of the Sale of Goods Act withoutgivinga case to which the
Act is to be applied.
The second sort of interpretation(which we might call 'applicative' in-
terpretation)is different. It needs to meet some of the same standards (of
75 The use ofcontext inthisconnection hasa distinguished

pedigree: inhisargument againstHart'sclaimthat
a rulelike'no vehiclesin thepark'hasstandard cases,Lon Fullerfirst
embroidered Hart'sclaimbyaddingas one
ofthe'tacitassumptions' he ascribed toHart,therider'whatever thecontext inwhichthewordmayappear,and
thenattacked it.L. L. Fuller,
'Positivism andFidelity toLaw:A ReplytoProfessor Hart'(1958) 71 HarvLR 630,
662; cfalso 'regardlessofcontext', 'in all ordinary and 'in all contexts'
contexts', in Fuller'sotherformulations
ofHart'sclaim,at 662-3.
76 LL 309.
n LL 423.
78
JonathanCuller,'In DefenceofOverinterpretation',
inEco, aboven28, 109 at 121.See alsothequotation
fromDavidGrayCarlson,in thetextat n 50, above.
9 You can agreeto thisevenifyouthinkthatone interpretation
of TheDivineComedy can be betterthan
another.

682 fournalofLegal Studies
Oxford VOL.16
plausibility,explanatorypower, ...) as generalizinginterpretation, but it faces
theadditionalstandardofrelevanceto theapplicationofthelinguisticexpression
in question to the situationin question. If an account of the textneeds to be
given in orderto reach the applicativedecision,the possibilitiesare restricted
by theparticularizing purpose of the interpretation: nothingabout the statuteor
theworldis relevant to thedecisionthatis not required forthedecision.Of course,
therecould be applicativeinterpretations in literary contexts,as ifsomeoneasked
whetherThe Divine Comedybelongs to a particulargenre.
It mightbe thoughtthe boundlessnessof contexthas similarimplicationsin
both generalizinginterpretation and applicativeinterpretation: in the former
thereis an unlimitedrange of aspects of the world and of the Divine Comedy
whichan interpretation mightaddress;in the latterthereis an unlimitedvariety
of cases to which,eg, the Sale of Goods Act mightbe applied. Thissimilarity is
misleading,because applicativeinterpretation addressesa case--and willynilly
theboundlessnessofthevarietyofpossible cases evaporates.But thentheworld
thatcame up withthe statuteremainsa complicatedplace, withcomplexneeds
and purposes and presuppositionsand intentionswhich affectdecisions about
how to apply its words to a case. The need to give an account of the Act that
puts it in its legal and commercialand culturalcontextis restricted, but is not
eliminated.Moreover,whileno applicativeinterpretation needs to cope withthe
boundlessnessof contextin the way that generalizinginterpretation does, an
applicativeinterpretation mayhave to deal withany oneof a boundlessrangeof
possible cases.
So the relativelimitability of contextin applicativeinterpretation does not
answerclaims thatcontext-dependence is a formof indeterminacy. Legal ques-
tionstendto be less subtleand ramifiedthanliterary questions,but theyare not
necessarilyso; a questionof applicationof the Sale of Goods Act mightrequire
a sensitive (and controversial)understanding both of the contextof the case,
and of the contextof the Act.
A generalresponseto claims that the meaningof language is indeterminate
because it depends on contextwould need to show, (1) that meaningis not
radicallydependenton context,or (2) thatcontext-dependence does nottypically
lead to indeterminacy. I propose thatwe should reject(1), and accept (2).
4.1 Is meaningacontextual?
FrederickSchauerhas developedthisresponseto indeterminacy claims.Schauer
writesthat'ruleness' (a rule's capacityto demand differentbehaviourfromthe
behaviourrequiredby the rule's justification)80 requires'the possibilitythat a
formof decision-makingcould conceivablybe guided by the meaningof the
formulatedgeneralizationratherthan by the optimalparticularizedapplication
of the justificationbehind that formulation'.81 He argues that this possibility
80 FrederickSchauer,PlayingbytheRules,above n 18, at 102.

81 Ibid, 61-2.

dependson 'semanticautonomy',whichis the possessionof 'acontextual'
meaning.So Schauer'saccountofrulesincludesa claimthattheycanbe applied
without knowledge ofcontext.
It seemsobviousthatthemeaningofan utterance is notmerelya function of
the singleeventin whichit occurs.Yet the variouswaysin whichSchauer
elaborateson theidea seemto runintotrouble.Perhapsthedifficulty is thatit
is impossibleto describewhatis relevantand important aboutan event(what
could givemeaningto an utterance) withoutdescribing,amongotherthings,
the conventions of a community in whichthe eventtakesplace. But thenin
describing an eventwe woulddescribetherulesoflanguage,and whatever itis
thatSchaueris describing as 'autonomous'becomespartofthedescription of
a singleevent.In otherwords,oneproblem withthenotionofsemantic autonomy
is thatthemeaningof wordsis a feature of contextsin whichtheyare used.
Then,perhapsthequestionSchaueris addressing is howmeaningdiffers from
otherfeatures ofcontexts.
He callssemanticautonomy
of symbols-words,
theability phrases,sentences,
paragraphs-tocarrymeaning
independent goalsonparticular
ofthecommunicative occasions
oftheusersofthose
symbols.82
Whatis an abilityto carrymeaning? Anycombination ofletters,
or eventhe
positionof a coat on a chair,is ableto carrymeaning,and Schauerwantsto
claimsomething moreforthesymbolsof a language.He mustmeanthatthe
signsused in a languagecarrymeaning,notsimplythattheyare ableto carry
meaning. Thatis verycloseto sayingthattheymeansomething. Theydo mean
something, ofcourse--but do theydo so autonomously?
No one can use symbolsto carrymeaningindependently ofparticular
goals
and occasions.But Schauersaysthatthewavesoftheoceancoulddo so:
SupposeI go totheoceanandwhiletherenoticea groupofshellswashedup onthe
beachina pattern likeC-A-T.I willthink
thatlookssomething thenofsmallfurry
housepetsandnotofzeppelinsorzebras,
despitethefactthatinthiscasethere
isno
useroflanguagewhatsoever. tothink
Myability catwhenI see'C-A-T',andthefact
thatallspeakers
ofEnglishwouldhavea rather
closelygrouped arrayofreactions
to
thatsameshellpattern, thephenomenon
demonstrates I callsemanticautonomy,the
wayinwhich languagecarries
something
byitself,
independentofthosewhouseiton
particular
occasions.83
In factthereis a useroflanguageon thebeach.Schauerhasnotdemonstrated
semanticautonomyof language,because he is one of 'thosewho use it on
particularoccasions'.And notethatSchauerdoes not saythathe understands
theshells.He saysthathe thinksofcatswhenhe sees theshells.Meaningand
82 Ibid,55.
83Ibid,56.

684 OxfordJournal of Legal Studies VOL.16
understandingare not equivalentto any mental experiencesor processes."84 A

multitudeof experiencescould be associatedwithseeingor hearingwords,but
none ofthemis 'the experienceofunderstanding'. When someoneuses theword
'cat' and we understandwhattheysay,we maythinkof smallfurryanimals.But
thatexperienceis notunderstanding. We could understandtheword'cat' without
thinkingof small furry animals,and the thoughtof smallfurry animalscould go
throughour mindswithoutour understanding the word 'cat'.
But thereis obviouslya truthin Schauer's discussionof cats: the word 'cat'
does referto cats,and no one can understandthe word withoutknowingthatit
does. While you do not need to thinkabout cats to understandthe word 'cat',
you do need to be able to do variousthingssuch as distinguisha cat froma dog,
explainthe word's meaningby pointingto a cat or by describinga cat.... But
formeaningto be autonomousfromcontext,it seems thatit would have to be
autonomousfromfactsabout cats and dogs, so thatwe could knowthemeaning
of thewordwithoutknowinganythingabout cats. Thus, in anotherformulation
of the idea of semanticautonomy,Schauer says that
thereis at leastsomething,callitwhatyouwill,sharedbyall speakersofa language
thatenablesonespeakerofthatlanguagetobe understood byanother speakerofthat
language even in circumstances
in whichthe and
speaker understandersharenothing
in commonbuttheirmutuallanguage.8s
In fact,thereis no such something,call it whatyou will,because thereare no
such circumstances.The circumstancesSchauer picturesare contradictory: a
speaker and an 'understander'cannot share a language, and share nothing
else--just as no one can know the English language, and know nothingelse.
The people Schauer imagineswould not share any knowledgeabout cats, or
about rain,or sleep, or food, ..., and yettheywould knowthe meaningof the
words 'cat', 'rain', 'sleep', 'food'... . In fact,people who share a knowledgeof
themeaningofthosewordsalso sharea lot ofknowledgeabout cats,rain,sleep,
food ....
But Schauer concedes that fact,when he says that communicationis based
on 'numerous contextualunderstandings',of which a sufficient number 'are
similarly understood by both speaker and listenerjust because they inhabitthe
same planet and speak the same language'."8Anotherconcessionis a guarded
descriptionof the idea of acontextualmeaning:
In referringto thisaspectof languageas its acontextuality, I emphasizethewayin
whichmeaningis largerthanthecontextofa particular The description
utterance. of
thischaracteristicas 'acontextual', however, To identify
cannotbe takentoo literally.
thephenomenon of acontextual meaningis not to denythatcontextual factorsare
84 Wittgensteinharped on thispoint:'The meaningof a wordis not theexperienceone has in hearingor saying

it, and the sense of a sentenceis not a complex of such experiences.'Philosophical above n 66 at
Investigations,
181. Cf also Philosophical sections 159-61.
Investigations
85asPlayingby theRules,above n 18 at 55-6.
86 Ibid, 57.

in attributing
presupposed eventhebarestamountofmeaningto an utterance.87
It seemsinconsistentto saythatmeaningis partlyacontextual,but an utterance
cannot have any meaningwithouta context.This tensionis only resolvedby
the unclear metaphoricalclaim that meaning is 'larger' than context. The
concessionsagainstthe idea of acontextualmeaningmultiply:
The identification
ofacontextual
meaninginvolvesnotthedenialofthenecessity of
context,buttherecognitionthata largenumberofcontextualunderstandingswillbe
assumedbyall speakersofa language."8
That is a sensibleconcession,and it makes 'acontextual'into a misnomer.
4.2 Is context-dependence
indeterminacy?
We have to tryto reconcile the plausibilityof Schauer's reminderthat the
meaningof a word on an occasion of its use is not particularto thatoccasion,
with the problems that arise in attemptsto express the notions of semantic
autonomyand acontextualmeaning.It is worthremembering thatchildrenlearn
the meaningof a word fromits use in particularsituations,and learn to use it
in similarsituations.Then the meaning of a word may be thoughtof as its
potentialforuse in particularsituations.That potentialcould be called contextual
(because words can onlybe used in a context), or acontextual(because theycan
be used in variouscontextsthat are different as well as similar);but it can be
misleadingto call it either.Childrenoftenuse wordsin surprising contextsthat
they see as similar to
enough justifyusing the word. But context-dependence
cannotbe a formofradicalindeterminacy: even childrencan graspsome relevant
similaritiesamong contexts,and learninga languageinvolveslearningto do so
more effectively.
But thesereflections on thenatureofmeaningare unsatisfying in a discussion
of context.It seems paradoxicalto talkin generaltermsabout 'context',which
is just whatevercould help us to understandan utterance.The fact thatthere
is a word 'context'forall thatshould not mislead us into thinkingthatwe can
generalizein a helpfulway about it. Nevertheless,thereis a generalresponseto
claims that context-dependencemeans indeterminacy:the context can and
characteristically does answer questions of (ie determine)the application of
words. The applicationof the word 'large' is radicallycontext-dependent: ifwe
are given the dimensionsof an object, we are in no position to say whether
'large' applies to the object unless we know what sort of object it is. And we
cannot say whether,eg, a house of a particularsize is largeunless we know a
lot of factsabout, eg, its location,the way of life of people in its community,
thehousesitmightbe comparedwith,and so on. But radicalcontext-dependence
does not make the meaningof 'large' radicallyindeterminate. In contextwe can
say whethera particularhouse is largeor not, exceptin borderlinecases thatfit
U
Ibid,56.
88Ibid,57.

686 Oxford
JournalofLegal Studies VOL. 16
Hart's model. The word 'tomorrow'is radicallycontext-dependent: it has a
differentreferenceevery.day!But its meaningis not radicallyindeterminate.89
This is an argumentthat the resortto context is a retreatfrom radical
indeterminacy, and itneeds to be weighedagainsttheinsistenceofindeterminacy
theoriststhat,ifmeaningvarieswithcontext,it can't be trusted:
Because'meaningis context-bound, butcontextis boundless',naturallaw'sfacticity
is invadedbysubjective andliberalism
interpretation, losesitsstatusas a philosophy.90
Context-dependencedoes not necessarilylead to 'subjectiveinterpretation',
because the contextmay give objectivereasonsforapplyingor not applyingan
expressionto something.Suppose thata boat ownerasks you to recommend'a
good painter'.9' On the one hand, just knowingthe meaning of 'good' and
'painter' will not allow you to help them out. On the otherhand, the context
will typicallydeterminewhethertheyneed an artist,or a decorator,or a rope
fora boat. It may be perfectlyclear thatthe boat does not need painting,that
it does need a rope, and thatthe owneris not interestedin art.Then thereare
objectivereasonsfortakingthe boat ownerto be askingabout a rope.
Far fromamountingto a source of indeterminacy, it can be temptingto think
that the context always determineswhether anythingis 'a good painter',
since it can determineboth (i) what sort of painter is in question, and
(ii) what is needed, in the case in question,fromthat sortof painter(ie, what
is a 'good' painter).In fact,contextmay not be as determinative as that.It may
make various incommensurablestandardsrelevant(a rope's strengthand its
weight.. .). Indeed, the contextmay not even make it clear whethersomeone
wants a decoratoror a rope. Then you are faced with a genuine uncertainty
arisingfromlinguisticindeterminacy. But context-dependence would make the
applicationof linguisticexpressionsradicallyindeterminateonly (1) if people
were typicallyignorantof the relevantand importantfeaturesof the contextin
whichan expressionwas used, or (2) ifthosefeaturestypicallyleftfactssuch as
whethersomeone needs an artist,a decorator,or a rope, unclear.Since neither
(1) nor (2) is the case, indeterminacy thesesthatmerelypoint out the context-
dependenceofmeaningare notradical.Two contextsdo nothave to be identical
before an expressioncan apply in the same way in each; theyneed only be
similarenoughto presentthe same reasonsforapplyingit. It does not matterif
an indefiniterange of different contextscould be imaginedfora particularuse
of a word,as long as thereare reasonsforchoosingwhat contextualfactorsare
relevantto applyingthe expression.
So, eventhoughitis riskyto generalizeabout contexts,we shouldnotunderrate
the extentto whichtheymake meaningclear---just thinkhow, ifsomeone asks
the meaningof an odd word, we instinctively ask forthe sentencein whichit
89 Andthisis nottomakeanyradicaldermninacy claimabouttheapplication
of'tomorrow'-anindeterminacy
it maynotbe clearwhether
use. Ifyoutellme,'she saidshewoulddo it tomorrow',
couldarisein a particular
'tomorrow'means theday after shespoke,ortheday after
today.
90 Carlson,aboven 13 at 282.
9' An exampleusedbyMarkSainsbury BasilBlackwell
in LogicalForms(Oxford: 1991)35.

WINTER1996 Linguistic
Indeterminacy 687
was used. A contextcan evendeterminewhensomebodymeans somethingother
than what theysaid. Here is an example, ironically,fromthe papers of C. S.
Peirce, one of the foundersof the philosophyof indeterminacy:
... no signcan be absolutely
and completely
indeterminate
...*
is unmistakable
*Thoughthewriting thisshouldbe 'determinate'.
[Editors'notel]9
Peirce's editorswere right:the contextin which the sentenceappears makes
it determinatethathe meant thatno sign can be 'determinate'.
5. Change
Some concessions of determinacyretreatto assertionsthat the meaning of
language changes:
... meaning neverpermanently
although fixeddoesnotthereby
becomepurely
arbitrary.
(MichelRosenfeld)93
... norarethererulesthatcanbe understood

as fixedintime.(Margaret
JaneRadin)94
I willquicklyconcedethatcourtsand otherconstitutional operatewithin

interpreters
constraints... butthepointis thatwhatever existare not constantover
constraints
time.(SanfordLevinson)95
The meaningof words does change, sometimessurprisingly. Levinson gives
the example of the word 'sentimental',whichused to be a termof praise and
became a termofreproach.96 There are manysuch examples:'knave' once meant
'boy'; 'villain' comes from a word for 'serf'; 'nice' meant 'ignorant',then
'particular,hard-to-please',then'pleasant', and now it hardlymeans anything.
But it should be obvious just how non-radicalthe indeterminaciesare that
arise fromchanges of that kind."97First,change in linguisticmeaningis slow.
Schauer puts it that arguing from change of meaning to indeterminacyis
'comparable to takingthe ponderous progressof a glacieras indicatingthatit
will move ifwe put our shouldersagainstit and push'.98The metaphoris apt,
except that it suggestsuniformmotion. In fact,not only is linguisticchange
slow, it is episodic and unorganized.What makes 'nice' and 'sentimental'
interesting is the way theyhave changed in meaningduringperiods in which
much of the vocabularyof English has not. And the meaningof some words
can be constantover vast ages. The n- in no, never,neither,etc appears in
92 Collected
PapersofCharlesS. Peirce,CharlesHartshorneand Paul Weiss (eds) (Cambridge:HarvardUniversity
Press1934)section5.506.
93 MichelRosenfeld,aboven 40 at 159.
9
LL 309.
9s LL 352 n 33.
96 LL 346.
97 As Levinson
seemstopointout:LL 347.
98 LL 444.

688 OxfordJournal of Legal Studies VOL. 16
Russian, Irish, French, German and Sanskrit,always with the same meaning
that it had in their ancestor language, 'Proto Indo-European'. Linguistsre-
constructing thatlanguage,whichwas spokenmorethan3000 yearsago, conclude
thatthe word 'three'was *trey-,the word 'two' was *dwo, the word 'cow' was
*gwo-,the word 'mother'was *miter-... So some words change slowly,and
some changevery,veryslowly.
Secondly,when meaningsof words change,no indeterminacy resultsunless
it is unclearwhichoftwo or moremeaningsis to be used. When thatis unclear,
therewillbe indeterminacy. This is not radicalindeterminacy: not onlyis it rare,
it is contingenton somethingthatcan be described,as Levinson describesthe
change in the meaningof 'sentimental'.
Most claims about change in meaningare more radical: theyare allegations
thatmeaningis unstable--thatit could changeat anytime,so thatanyparticular
judicial decision could apply a new meaning.These claims are verysimilarto
indeterminacy claims based on context-dependence: theyinsistthateverytime
an expressionis used, itis used in a new contextthatgivesit a changedmeaning.
Allan Hutchinsonand Derek Morganwrite,'A sentencewillnevermean exactly
the same thingto anytwo different people or even the same thingto onieperson
on different occasions.'99 In one sense thisis true:everytimeyou say,'pass the
pickles',you are askingfordifferent picklesto be movedfroma different location
to a differentdestination,at a different time..... But itis falsein theonlyrelevant
sense, whichhas to do withwhat countsas pickles,and what countsas passing
them.
The notionthatthe meaningof expressionschangeseverytimetheyare used
is part of poststructuralisttheory,"00 but in legal theoryit is considerablyolder.
Edward Levi introducedhis Introduction to Legal Reasoningby saying,
In an important
senselegalrulesareneverclear.... The ruleschangeas therulesare
applied.''1
Perhaps Levi was makinga remarkabout judicial behaviour:that judges are

alwayschangingthe rules. That would be an empiricalclaim. It mightbe true
orfalse,butitwouldmakesenseonlyifitis possibleforthingstobe otherwise-for
rules to be applied, at least in some cases, withoutbeing changed. If Levi was
makinga remarkon thenatureofrules,itwouldamountto a radicalindeterminacy
claim which refutesitselfin a new way. The concept of change presupposes
an original: something transformedinto something else. If there were radical
indeterminacy, therewould be no change.
St Catherine'sCollege, Oxford.
99 LL 481. Cf Levinson: '... contemporarytheory[makes] an attack on the stabilityof meaning ... at any
LL 347.
givenmoment'.
'00 See ColUini,above n 35 at 7, concerningthe 'instability
of all meaningin writing'.
o01Levi, to Legal Reasoning(Chicago: Universityof Chicago Press 1949) 1-3.
Inatduction

WINTER 1996 Linguistic
Indeterminacy 689
6. Wittgenstein
A spate of work on Wittgensteinand law has followedthe recent debate in
philosophyof language between Saul Kripke, who interpretedWittgenstein's
remarkson followingrulesas posinga scepticalparadox,and variousantisceptical
objectors. Proponents of legal indeterminacyhave adopted the sceptical in-
terpretation;l02theiropponentsargue that theyhave been confusedby a mis-
leading philosophicalquestion,and thatWittgenstein, farfromansweringthat
questionsceptically,wantedto stop askingit."'3FrederickSchauer,meanwhile,
gives an idiosyncraticargumentto the effectthatWittgenstein's remarksshow
that formulatedrules are not radicallyindeterminate, but unformulatedrules
are.104
The scenario thatleads to all thisperplexityis simple: suppose thatyou are
teachinga pupil who has learned to count, and is now learningto recitethe
even numbers.Everythinggoes smoothlyas faras 1000, afterwhich the pupil
says '1004, 1008, 1012'. You findyourselfat a loss, because all the examplesof
adding 2 whichyou had given(and whichthe pupil had mastered)seem unable
by themselvesto determinethat 1002 comes after1000. You meant themto be
examples of 'add 2', but theycould just as well have been examples of 'add 2
as far as 1000, and then add 4'. It seems that somethingextrais needed to
connect a rule like 'add 2' with instances of its application.What can that
somethingextrabe?
This philosophicalquestion-what connectsa rule withits applications?-has
consequences for the indeterminacydebate. On the sceptical interpretation,
Wittgenstein is pointingout that,because thereis no extrasomething,thereis
an unbridgeablegap betweena ruleand itsapplications.That is to saythatthere
is no such thingas rules:
Therecan be no suchthingas meaninganythingbyanyword.Each newapplication
we makeis a leap in thedark;anypresentintention
could be interpreted
so as to
accordwithanything we maychooseto do.s05
The scepticsdeal withthisparadoxicalsituationby sayingthatthe consensus
102See
CharlesM. Yablon,'Law and Metaphysics' (1987) 96 YaleLJ 613, SanfordLevinson,'WhatDo
Lawyers Know(AndWhatDo TheyDo withtheirKnowledge)? Comments on SchauerandMoore'(1985) 58
S Cal LR 441 at 447-8,Margaret JaneRadin,'Reconsidering theRuleofLaw' (1989) in LL, Christopher L.
Kutz,'JustDisagreement: and
Indeterminacy Rationality in theRule ofLaw' (1994) 103 YaleLJ997.
103 See BrianLangille,'RevolutionWithout Foundation: The Grammar of Scepticismand Law' (1988) 33
McGi LJ451,ScottLanders,'Wittgenstein, RealismandCLS: Undermining RuleScepticism' (1990) 9 Lawand
Philosophy177,Brian Bix,Lar4 and
Language LegalDeterminacy (Oxford: Clarendon Press1993) 38-41,Andrei
at
Marmor, aboven 14 at 146-54;ChristianZapfandEbenMoglen,'Linguistic Indeterminacy andtheRuleofLaw:
On thePerilsofMisunderstanding (1996) 84 Georgetown
Wittgenstein' LJ485. Theselegaltheorists drawon the
non-scepticalresponsetoKripkedeveloped byG. P. BakerandP. M. S. Hackerin Scepticism,RulesandLanguage
(Oxford:BasilBlackwell1984) and Wiigenstein: Rules,Grammar andNecessity (Oxford:BasilBlackwell1985).
For discussionofMarmor'sversionofthenon-sceptical argument see Endicott,aboven 26 at 460-6. Martin
Stonemakesan original argumentin favourof thenon-sceptical view,in a critiqueof DrucillaCornell'sThe
PhilosophyoftheLimit(NewYork:Routledge andKeganPaul 1992):above,n 14.
104
PlayingbytheRules,aboven 18 at 64-8.
'05 Saul Kripke,WIitgenstein
onRulesandPrivate Language: An Elementary (Oxford:BasilBlackwell
1982)55. _Exposition

Oxford VOL. 16
ofa communitylicensesus to talkas ifa ruleexisted:'followinga rule' is another
way of saying'doing what othermembersof the communitysay is followinga
rule'.
The non-scepticalinterpretationclaimsthatWittgenstein was trying
to dissolve
a philosophicalmuddle ratherthan to generateone. On thisview,he was not
arguingthatnothingbridgesa gap betweenrule and application,but thatthere
is no gap to be bridged.In philosophers'jargon,knowingthat1002 follows1000
is internally relatedto understanding the rule 'add 2'. o' They are not identical,
since you could understand'add 2' and yet not be able to count to 1000, or
know that '1000, 1002' is an applicationof the rule (because the teacherhas
told you so) withoutunderstandingthe rule. But theyare necessarilyrelated,
and theyneed nothingto connectthem:you cannotknowhow to countto 1002,
and understandtherule 'add 2', withoutknowingthat'1000, 1002' is a correct
applicationof the rule. So learninga rule is neitherfindingsomethingto bridge
thegap, normerelyhappeningto do thesame thingas otherpeople,but grasping
a way of using the examplesthe teachergives.
Understandingthisdebate is basic to understandingthe problemsof law and
language,because the philosophicalquestion about what connectsa rule with
its applications amounts to the question of what connects a word with its
applications,as both Kripke and the non-scepticalWittgensteinians recognize.
We have a ruleof callingbullfrogs'bullfrogs'--ageneralnorm. It is not just a
habit: we tell childrenthatthatis the rightthingto call them.If a child calls a
hamstera 'bullfrog',we do not just think'that'sunusual', we correct the child.
The debate overWittgenstein's remarkson rulesis a debate about what makes
it wrongto call a hamstera 'bullfrog',just as it is a debate about what makes
'1000, 1004' wrongwhen you are countingby twos.
If the non-scepticalview is correct,Wittgensteincleared away the mis-
conceptionthat somethingotherthan the rule determineswhat counts as an
application,but he did not suppose thatifnothingotherthantheruledetermines
its applications,its applicationsare indeterminate.He cleared away the mis-
conceptionthatphilosophershave the job of lookingforsomethingto mediate
betweenthe word 'bullfrog'and bullfrogs.This has consequences forsome of
the viewsthatwe have surveyed:
1. The new interpretiveorthodoxy,for all the consensus, is mistaken:as
Wittgensteinput it, 'there is a way of graspinga rule which is not an
That remarkis an obstacle,whichno one has clearedaway,
interpretation'."17
to the use of Wittgenstein's
remarksto supportscepticismabout rules.
2. Sceptical claimsthatnothingguarantees thata decisionhas followeda rule
106 Cf Bakerand
Hacker:.'... we definethe series"+ 2", forexample,in termsof the sequence "...998, 1000,
1002, 1004". The rule and its applicationare internallyrelated,forwe definethe concept "followingthisrule"
by referenceto thisresult.'Wittgenstein,Rules,Grammarand Necessity, above n 103 at 148.
o7 Philosophical above n 66 at section201.
Investigations,

WINTER 1996 Indeterminacy
Linguistic 691
are simplyput to rest."'8They are claimsthatthereis no bridge,wherein
factthereis no gap.
3. The criticalpredicamentevaporates.In some circumstances,particular
actionscan and should be criticizedforfailingto followa rule (if the rule
oughtto have been followed)--or,equally,forfollowinga rule (ifthe rule
oughtnot to have been followed).
It seems that the non-scepticalview, if it is right,defeatsnot just radical
indeterminacytheses, but also theoreticalindeterminacytheses. But if the
sceptical view is right,Wittgenstein's argumentis a theoreticalindeterminacy
thesis:he has shownthattherecould onlybe rulesifthereweresome unimagined
connection.There is none, but we are licensed to talk as if therewere rules
when thereis somethinglikea connection-the consensusof a community. Rule
is
following essentially social.
It is easy to see the attractionof the social view forpeople interestedin law
and language. Languages are social practices,and law is a social practice,and
so theirrulesmustbe social practices.A rule is not a legal rule if it has no role
in thepracticesof a society.The onlymistakeis to jump fromthosepropositions
to a view about the connectionbetween a rule and its applications.That is, it
is temptingto jump fromquestionssuch as whetherthereis a rule,what it is,
who made it, who followsit, and so on (which are questions of social fact) to
thequestionofwhatconnectsa rulewithitsapplications(whichis a philosophical
question),and to conclude thatthephilosophicalquestionis a questionofsocial
fact.Note thatWittgenstein's discussionis not about whetherthe rule thatthe
pupil was supposed to applywas 'add 2', nor is it about whether1002 comes
after1000 whenthatruleis applied.Wittgenstein's discussiontakesitforgranted
that the answer to both those questions is 'yes'. The question is more basic:
what connects'1000, 1002' with the rule 'add 2'? Wittgenstein's technique in
such a situationwas to rejectthe philosophicalquestion.'09The scepticalview is
thatthe philosophicalquestionhas no answer,and needs to be changedinto a
questionof social fact;the non-scepticalviewis thatthe questionshould not be
asked.
MargaretJane Radin makes the jump from the social nature of law and
language to the social view of rule following.She characterizesWittgenstein
as a rule sceptic1o who thoughtthat rule followingis 'an essentiallysocial
phenomenon'."' She does not mean simplythatsocial rules (such as the rules
of law and of language) are social practices,but thatthereis no such thingas a
rule unless people agree that there is a rule: 'Rule-followingcan only be
understoodto occur wherethereis reiteratedhuman actionboth in responding
to directivesand in observingothersrespond.'""2 This seemsto saythatno action
o08Eg Carlson,in textaboveat n 50.

'19Philosophical aboven 66 at section47.
Investigations,
no LL 290.
"' LL 291.
112Ibid.

Oxford VOL. 16
can followa ruleunlessthereis a community thatsaysthatit does. That sceptical
view of the social nature of rules cannot be right:if you live alone witha cat
and call her 'Grimalkin',you are followinga rule even ifno one else everfinds
out. There is no communityconsensus. Even if you and Grimalkinforma
community,you don't need Grimalkin'sagreementto followa rule of calling
herthat.What ifwe saythatyou forma communityofone, or thata hypothetical
communityof people like you would (counterfactually) agree on what is an
applicationof the rule?Then we dissolvethenotionof a community, and admit
thatan action can followa rule,or failto do so, withoutany consensus.
In your practice of callingyour cat 'Grimalkin',it is true that thereare all
sorts of manifestations of what you have learned fromyour community-the
notionofnames,thenotionthatcats can be givennames,thename itself(though
notthe factthatit is yourcat's name), and so on. We learn what rules are and
how to followthemfrombeingpartof a real community;but thatdoesn'tmean
thatfollowinga ruleis doingwhatthe communitysays. Perhapssome who take
thesocialviewofrulessimplymean to pointout thatwe learnthegeneralpractice
of followingrules from a community-thatwe acquire the concept from a
community.Or theymightargue,more strongly, thatthatis the onlyway it is
possible to learnhow to followrules. To reduce the social view to eitherclaim
would changeit significantly fromthescepticalWittgensteinian view.Ifthesocial
view of rules were simplypointingout that you learned to followrules from
your community, or even ifit were arguingthatthatis the onlyway to learnto
followrules,it would no longerbe a distinctview about whatrulesare. It would
become consistentwiththenon-scepticalviewthatthequestionofwhatconnects
a rule withits applicationsis not unanswerable,but misconceived.
Radin herself,it seems, does not need to adopt the scepticalview on rules.
Her position on Wittgensteincan be seen as much weakerthan the sceptical
view,because she only uses the discussion to refute'traditionalformalism'"3
about rules.The formalismthatRadin opposes claimsthatrulescan be applied
by deduction, at least in core cases."4 No one appears to hold thatview,which
would be absurd. If I ask you foran apple, and you pick out an apple fromthe
fruitbowl, you followa rule. But you do not make a deduction.Deductions
nded premises,and here you onlyhave an apple. 'This is an apple' could itself
state a premisein a deduction,but it is not a deduction. Could a traditional
formalist,iftherewereone, say that'thisis an apple' is necessarilytheconclusion
of a deduction,in whichthepremisesare propositionssuch as 'everyobjectthat
has such and such characteristics is an apple', and 'thisobjecthas such and such
characteristics'?No, because an absurd regresswould result:thejudgmentsthat
this.is an object, and that it has any particularcharacteristic, would become
conclusions of other deductions premised on the conclusions of other
"3 LL 284.
"4 LL 285.

WINTER 1996 Indeterminacy
Linguistic 693
deductions.... As Hart wrote,'Logic is silenton how to classifyparticulars'.its

If formalismis the view that classifying particularsis a process of deduction,
Radin does not need Wittgenstein to attackit.
Though Radin embracesthescepticalviewon rules,her concernsare different
fromthe concernsthat debate addresses: she talks about what connectsa rule
withits applicationsonlybecause she wantsto make a pointabout whatjudges
should do. So the social view ofrulesthatshe calls 'Wittgensteinian'ends up as
theviewthatjudgesshouldbe 'conscious oftheirobligationto act as independent
moral choosersforthe good of a society'."'6That claim is consistentwiththe
non-scepticalview of rules. If thereare rules,thenjudges should be conscious
thattheirobligationsto society(and not just to society!)concernthe exerciseof
what powers theyhave to deal with the rules (powers to apply them, change
them,ignorethem,interpret themin one way or another,restrict themor extend
them, invalidate them .. .). Judges do not need to believe that there is no such
thingas rulesbeforetheycan be conscious of theirobligations.Sometimesthey
blind themselvesto theirobligationsby takingit forgrantedthatthereis only
one thingto do witha rule. When theydo that,theydo not need someone to
persuadethemthat'followinga rule' is a paraphrasefor'doing whatpeople say
is followinga rule'.They need someoneto persuadethemthattheyareresponsible
forwhat theydo withrules.
Since Radin is concernedwiththe rule of law, perhaps the best explanation
forher approach is thatshe is concernednot withthe conceptualpossibilityof
followinga rule (whichWittgenstein's discussionis about), but withthepractical
of
possibility government by rules that clearto citizensto provide
are sufficiently
guidance, and sufficientlyclear to officialsthat they can constrainthe use of
power, and with the practicalpossibility that officials
mightactuallyabide by
the rules,and withthe practicaldangerthatrules can be followedunthinkingly.
Perhaps she is tryingto say that,when judges applythe words of a formulation
of the law, theycannot act as calculatingmachinesand should not pretendthat
theycan. They act forreasons in which the communityis interestedand for
whichtheyshould be responsibleto the community.None of thatrequiresrule
scepticism.
The social view of rule followingis not a radical indeterminacy thesis,but a
theoreticalindeterminacy thesis."7 In the social view,a communitycould have
a firmconsensus.Like StanleyFish, a scepticalinterpreter ofWittgenstein could
thinkthat communityconsensusgovernswhat can be called 'followinga rule'
"' EssaysinJurisprudence andPhilosophy (Oxford:ClarendonPress1983) 67. In thesameessay,Hartwrote

thatin thepenumbra of a legalrule,'mencannotlivebydeduction
of application alone' (at 64), seemingto
suggestthatmencan 'liveby deduction alone'in thecoreof application
of a rule.That suggestion is simply
misleading, as therestofHart'sessayshows.
116 LL 309.
17 ThusRadin theWittgensteinianviewthuscertainly
admitsthattherecanbe actiondetermined
says:'Although
bya rule,itis notthekindofdetermined-ness requiredby... thetraditionalformalist
conception ofthenature
ofrules.'Ibid,292.JulesColemanandBrianLeiterpresent viewas a harmless
thesceptical theoretical
indeterminacy
thesis:'Determinacy,ObjectivityandAuthority' inMarmor(ed),Interpreation andLegalTheory, aboven 14,203
at 219-23.

Oxford VOL. 16
verystrongly. The factthatthetheoretically scepticalsocialviewofrulefollowing

can lead to justas muchpracticaldeterminacy as thenon-scepticalviewbecomes
importantin FrederickSchauer's approachto the debate. His conclusionis that
somethingis needed to bridgethe gap betweenrule and application,but since
everyoneagrees that thereare actions in accord with a rule, it mustbe there.
And it does not matterwhatit is. This approachhas a sensiblering:it relieson
the difference between practicalindeterminacyand theoreticalindeterminacy,
and postulatesthatthe latterdoesn't matter.But Schauer's approachrunsinto
some bewilderingproblems.
Schauer emphasizes,and attributes to Wittgenstein,the claim thatthereis no
unique correctanswerto the question 'What numbercomes next in the series
1000, 1002, 1004, 1006, ?'", The answer could be 1008, or 1019, or
anything.Schauer says that the point is that 'somethingotherthan the prior
numbersin the seriesmakes 1008 correctand 1019 incorrect','9and thatthe
debate over rule followingis about what that'somethingother'is. So, like the
sceptics,he thinksthatsomethingmusttie a rule to its applications,ifthereare
to be rules.
But Schauer is not a sceptic.He says thatifthe seriesis accompaniedby the
'verballyformulatedinstruction, "alwaysadd 2"', then'1008 becomes theright
answer,and 1019 is simplywrong'.'12 He admitsthatthisgambitseems to miss
Wittgenstein's point,and thatwe mightask why'always' could not mean,'...
but ifn > 1004, add 13'. His responseis thatany reason will do:
The reasonitcouldn't,ofcourse,is againthetopicofthedebateaboutwhatitis that
suppliesthebenchmark forfollowingor breakinga ruleoflanguage,wherethevery
characterizationof thatbedrockquestionmakesit circularand question-beggingto
answerthequestionin termsoftheexistence ofrulesoflanguage.'21
This responseis actuallya cryptictautology:The topic of a debate about X
is X. So Schauer is only sayingthat thereasonwhya particularapplicationis in
accordwitha ruleis 'whatit is thatsuppliesthebenchmark or breaking
forfollowing
a rule...'. This is a significanttautology,because it is importantto Schauer's
approachthathe does notneed to specifya reason.The reasoncan be 'community
practicesor agreement,to refer(withoutendorsement)to just one possible
answer'.'"2But theremustbe somethingthatmakes 'always' mean always,and
once it has done so, rules of language can be the foundationforlegal rules.
There are threeinterconnecteddifficulties withSchauer's argument:
(1) 'Alwaysadd 2' is exactlyas vulnerableto a scepticas is 'givethenextnumber
in the series 0, 2, 4, 6, ..., 1000, 1002, 1004, 1006, ...'. The point of
Wittgenstein'sdiscussionis thatwe could not explain the meaningof 'always
118
Schauer uses as an example a pupil who has got a littlefurther
than Wittgenstein's
pupil, and knowsthe
steps '1002, 1004, 1006'. Playingby theRules,above n 18 at 65.
'9 Ibid, 65.
120
Ibid, 66.
121Ibid.
122Ibid.

add 2' any betterthan by givingexamples and saying'and so on'. So 'always
add 2' cannot 'entrench'the rule if 'give the nextnumberin the series0, 2, 4,
6, ..., 1000, 1002, 1004, 1006, ...' did not. This is the factthatSchauer was
alludingto when he admittedthathis argumentseemed to miss Wittgenstein's
point. His responseis just to implythatit does not matter.
(2) Schauer sees the 'verballyformulatedinstruction'(or 'linguisticallyfor-
mulated direction',or 'specificinstructionin language')'23'always add 2' as
entrenchingtherulethatis expressedby 'somethingotherthanthepriornumbers'.
But 'give the nextnumberin the series0, 2, 4, 6, ... 1000, 1002, 1004, 1006,
...' is verballyformulated,is linguistically
formulated,is in language, is an
is a
instruction, direction, and is specific.
(3) A contradictionemerges:'there is no uniquely correctanswer' to 'what
comes next in the series 1000, 1002, 1004, 1006, ...?', so 'somethingother
thanthe priornumbersin the seriesmakes 1008 correctand 1019 incorrect'.'24
If somethingmakes 1008 correct,it is not the case that thereis no uniquely
correctanswer. Of course, the rightchoice is to say that 1008 is (uniquely)
correct-and thisseemsto be thealternativeSchauerwould choose. In a footnote
he says thatin '1000, 1002, 1004, ?' 'thereis a rule--... "add 2"', though
the rule does not 'emergeuniquelyfromthe seriesitself'.
Evidently,applicationsofa rulemaybe correctin theabsenceofan entrenching
formulation.Schauer says that 'The divergencebetweenrule and justification,
a divergenceI take to be crucialto understandingthe idea of a rule,is possible
only if formulatedgeneralizationscan have meaningsdiffering fromthe result
that a directapplicationof the justificationbehind a rule would generateon a
particularoccasion.'"25That seems to be true-but it would be a different
matter
to show that onlya formulatedrule can have a different resultthan the direct
application of its underlyingjustification.And Schauer does not do so; by
characterizingWittgenstein's discussion as havingto do withformulations, he
concludes thatunformulatedrules are leftunexplained.In Schauer's view,the
message of Wittgenstein's discussionis that
The abilityto explainthe constraints
ofan unformulated
or unformulatable
ruleis a
difficult
task,andonequitedifferent
fromthetaskofexplaining
thepotential
constraint
ofa formulated rule.'""
Schauer himselfgoes on to show that thereis nothingparticularlydifficult
about explainingconstraintby unformulatedrules.'27 He says, eg, that an
unformulated customaryrulereflectedin thenormativepracticesofa community
can exist 'in the same way forthatcommunityas does a rule that actuallyhas
123
Ibid, 67.
124
Ibid.
125
Ibid, 61.
126 Ibid, 67. (I do
not knowwhatan unformulatable
rule is; I will onlytalkabout unformulated
rules.)
127
Ibid,68-71.

696 Oxfordfournal of Legal Studies VOL. 16
a canonicalinscription'.128And he developsa theoryofprecedentthatdemystifies
theconstraint ofunformulated rules.129AfterrepeatingtheclaimthatWittgenstein
showed thatconstraintby non-formulated rulesis mysterious,"sSchauer shows
that,even if the generalizingcharacterizations (ie, purportedrule-formulations)
oftheprecedent-setting courthave no effect.on thelaw,precedentscan constrain:
some generalizations, are 'more possible than others'.'3' A precedentcan be
characterizedas an instance of an indefinitevarietyof differentrules, but
subsequentdecision-makers may have compellingreasonsfortakingit to be an
instanceof one rule ratherthan another.Schauer uses the exampleof Donoghue
v Stevenson, whichimposed liabilityon a manufacturer of gingerbeer forharm
to a consumer.It would be wrongfora subsequentcourtto take thatdecision
as an instanceof a rule that imposes liabilityonly on manufacturers of ginger
beer, and it would be wrongto take it as an instanceof a rule that imposes
liabilityon everyonewho causes harmto another.Schauerconcludesthat'nothing
about precedent-basedconstraintuniquely differentiates it from rule-based
constraint'.'32 a
This gives quietusto theclaimthattheconstraint ofunformulated
rulesis difficult
to explainand different fromthe constraintofformulatedrules.
In fact,it seems thatthereis no basis even forsayingthat common law rules
are necessarilymoreindeterminate thanruleswitha canonicalformulation: with
all its indeterminacies,the rule thatthe defendantshall be liable when the facts
are similarto thosein Donoghuev Stevenson is as determinateas manyprovisions
in writtenconstitutions.
7. Conclusion
There are no radical indeterminacy theses. Not onlydo radical indeterminacy
claims implicitlycontradictthemselves;people who make them regularlycon-
tradictthem expressly,and turn them into theoreticalindeterminacyclaims.
Theoretical'indeterminacy claims are consistentwiththe sortof thoroughgoing
practical determinacythat, eg, Stanley Fish asserts. And conversely,Hart's
distinctionbetweencore and penumbrais consistentwithwidespreadlinguistic
indeterminacy and legal indeterminacy.
All this makes it hard to grasp the real debate about indeterminacy: if the
debate is about how muchindeterminacy thereis, it concernsa quantitythat
cannot be quantified.If the debate is about how important indeterminacyis, it
turnson criteriaof importancewhichwould presumablybe controversial, but
whichno one has ever articulated.
In favourof emphasizingdeterminacy is thefactthatlawyersand law teachers
can easilythinkofcases whichillustratetheapplicationoflinguistically
formulated
128
Ibid,71.
129Ibid,181-7.
130'... theability
to identify
therule-based in a serieswithout
constraint a formulated is deeply
generalization
problematic'.Ibid,185.
13' Ibid,186.
132 Ibid,187. CfKen Kress'sdiscussion
ofKarlLlewellyn's aboven 2 at 297-301.
ofprecedent,
theory

rules forclientsand students-and veryoftenclientsand studentsdon't need

examples.Anyonewho has read thebullfrogregulationand knowshow to catch
bullfrogscan come up with an example of a bullfrogthatis protectedby the
regulation.Moreover,if it is complied with, the bullfrogregulationmay ac-
complishits aim completely, in spite of its linguisticindeterminacies.
In favourof emphasizingindeterminacy is thepracticeofsensiblelawyerswho
nevergive unqualifiedopinions,exceptforconsumptionof the otherside, even
on a question of bullfroghuntingin Ottawa.
In favourof over-emphasizing neitherdeterminacynor indeterminacy is the
difference betweenincometaxlaw and thelaw ofspousal maintenance.Ifincome
tax statutesused the same sort of language as familylaw statutes,and made
income tax depend on 'financialneeds, obligationsand responsibilities', there
would be dramaticindeterminacies in income tax law thatdo not actuallyexist.
Much of the law could be much more indeterminate thanit is. But a regimeof
spousal maintenance law expressed in such words reallydoes have dramatic
indeterminacies, unless courts have imposed specificrequirementsfor its ap-
plication.
Can we draw any more generalconclusionsfroma surveyof indeterminacy
claims?All we have establishedis thateveryonemore or less agrees,sometimes
in spite of themselves,withH. L. A. Hart's platitudethatthereare clear cases
and unclear cases of the applicationof linguisticexpressions.The verygreat
theoreticaldifferences over the natureof clarityhave not been resolved,and it
is unclearhow much is clear.
We can stilllearn some importantlessons. First,judges and theoristsshould
be modestin makingclaimsof determinacy. Judgesin particularshould not take
refuge in claims thatthe plain meaning of words compels a decision.But by the
same token,iftheydo not wantto do what,eg, a statutesaysto do, theyshould
say so, and theyshould not take refugein claims of indeterminacy (claims that
they are interpreting the words of the statute).
Theoristsshould face the factsof linguisticdeterminacyand indeterminacy,
whatevertheysay about theirnature. They should also be precise about the
importance of linguisticdeterminacy.It is possible to know that the linguistic
formulationof a legal rule applies to the factsof some cases, but thatmundane
knowledgedoes not tell a judge what to do. Knowingwhetherthe case fitsthe
formulationof a rule does not even tell the judge what the law requires:the
judge also needs to knowwhetherthe law requiresthattherulebe applied. And
knowingthat,in turn,does not tell the judge whetherthe word 'just' applies to
the result.Linguisticdeterminacyshould not mislead judges into thinkingthat
it will even be possible to make a just decisionin everycase. Though 'just' and
'unjust', too, have some clear cases.


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Linguistic Indeterminacy

Author(s): Timothy A. O. Endicott

This content downloaded from 188.72.127.85 on Tue, 10 Jun 2014 00:08:26 AM

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This articleaddressesthe claim thatlanguage (and therefore law) is radically

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7 The ConceptofLaw, above n 4 at 126.

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1. TheNew Interpretive and theCritical

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JacquesDerrida:'Each case ... requiresan absolutely

1s PlayingbytheRules (Oxford:ClarendonPress 1991) 207.

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No conceptionof deconstructioncan be advancedwithconfidence,

ifsucha thingexists,outsideor beyondlaw,is notdeconstructible.

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... all meaningdependson a futurerewriting of past writings

IfI maywriteundererasure, thesisisclearly

The purposeofthedeconstruction is notto establishthatanyinterpretation

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attitudethat the sign is the fundamentalcategoryfor explanationof human

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66Philosophical transG. E. M. Anscombe

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presentingwhat theywant to do as an interpretation of theirduty.Benson's

... ifthemeaningofa signifier

Deconstruction ... stressesthatmeaningis contextbound-a function of relations

75 The use ofcontext inthisconnection hasa distinguished

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80 FrederickSchauer,PlayingbytheRules,above n 18, at 102.

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understandingare not equivalentto any mental experiencesor processes."84 A

84 Wittgensteinharped on thispoint:'The meaningof a wordis not theexperienceone has in hearingor saying

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This content downloaded from 188.72.127.85 on Tue, 10 Jun 2014 00:08:26 AM

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... norarethererulesthatcanbe understood

I willquicklyconcedethatcourtsand otherconstitutional operatewithin

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Perhaps Levi was makinga remarkabout judicial behaviour:that judges are

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o08Eg Carlson,in textaboveat n 50.

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deductions.... As Hart wrote,'Logic is silenton how to classifyparticulars'.its

"' EssaysinJurisprudence andPhilosophy (Oxford:ClarendonPress1983) 67. In thesameessay,Hartwrote

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verystrongly. The factthatthetheoretically scepticalsocialviewofrulefollowing

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rules forclientsand students-and veryoftenclientsand studentsdon't need

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