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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

52 Pages Posted: 19 Apr 2006  

Daniel Goldberg

East Carolina University - School of Medicine

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

Suggested Citation

Goldberg, Daniel, 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. Cleveland State Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=896106

Daniel Goldberg (Contact Author)

East Carolina University - School of Medicine ( email )

600 Moye Boulevard
Greenville, NC 27858
United States

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