Abstract:
Lon L. Fuller challenged the positivist distinction between the law “as it is” and the law “as it ought to be” by insisting on the need for interpretation even in easy cases of adjudication. Fuller argued that interpretation is always creative in the light of the purpose of the rule to be applied and thus always draws on the law “as it ought to be”. Andrei Marmor tried to defend positivism against this challenge by advancing the thesis that there is no need for interpretation in easy cases. He drew on Ludwig Wittgenstein’s remarks on rule following to suggest that in easy cases the law is just in need of understanding, not of interpretation. Although I also think that positivism can be saved from Fuller’s challenge, I do not think that it can be done with the help of Wittgenstein’s distinction between interpretation and understanding. Fuller’s challenge and Wittgenstein’s remarks on the relation between a rule and its application address different aspects of the process of adjudication in easy cases, which build upon, but which cannot be played out against each other. We have to distinguish between two different elements of our practice of adjudication in easy cases: On the one side the communicative interpretation of utterances – in the case of the law legal texts – in the sense Paul Grice was concerned with; on the other side the application of a rule thus identified as the content of a communicative intention that Wittgenstein’s remarks on rule following are concerned with. Fuller can be understood to have insisted rightly on the ubiquity of the former, which cannot be refuted by any account of the latter. The upshot, though, is not that Fuller’s challenge is successful. Its flaw, however, does not lie in the insistence on the ubiquity of communicative interpretation, but in its exploitation of an ambiguity of the creative element in two different kinds of interpretation. We have to distinguish between the epistemic creativity that can be involved in communicative interpretation and the creativity involved in amending the law via legal construction. Only the latter concerns the distinction between the law “as it is” and the law “as it ought to be”.
