Anthony Sebok, Brooklyn School of Law
This paper looks at the relationship between Wittgensteinian argument and a certain form of legal process argument. The paper takes as its departure Harry Wellington's extensive use of Cavell's "Must We Mean What We Say," in "Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication." The turn to Cavell, and Cavell's Wittgensteinian approach to the interpretation of social practice, is, I argue similar to H.L.A. Hart's invocation of Wittgenstein in The Concept of Law. Although Wellington was most concerned with explaining the role of normative commitment in adjudication, and Hart with explaining the relationship between normativity and validity, there is a connection between the two. Both rely on Wittgenstein's concept of rule-following as a critical and social practice. This conception of rule-following underwrites the legal process understanding that legal reasoning, although deeply normative, is not a form of moral reasoning. I argue that H.L.A. Hart's use of Wittgenstein indicates that in this respect he shared common ground with legal process scholars such as Wellington, Henry Hart, and Albert Sacks.