I Do Not Think it Means What You Think it Means: How Kripke and Wittgenstein's Analysis on Rule Following Undermines Justice Scalia's Textualism and Originalism

Abstract

In this article, I attempt a phenomenological analysis of Justice Antonin Scalia's hermeneutics of textualism and originalism. The prism for the analysis is the later philosophy of Wittgenstein, as interpreted by Saul Kripke. I argue first that the objective of textualism and originalism is to constrain the parameters of interpretation. However, I argue that this is simply impossible, for several reasons. First, I argue that Kripke's 'skeptical paradox' establishes rule indeterminacy, and second, even if I am wrong, Wittgenstein's later philosophy simply rejects the notion of rule-following that is central to Justice Scalia's hermeneutics. I conclude by sketching a pragmatic conception of what judges actually do in deciding cases, drawing on Dewey, James, and Posner.

Keywords: textualism, originalism, Scalia, Wittgenstein, Kripke, pragmatism