An early version of this paper was prepared for the Seminar in Legal Philosophy, held at the University of Western Ontario in August 1989. I wish to thank the participants, and especially Jules Coleman, Dennis Patterson, and Donald Regan, for their helpful comments.

1. Wittgenstein, L., Philosophical Investigations, Anscombe, G. trans., (New York: Macmillan, 1968), Google Scholar3d ed., cf. Part I, section 115: “A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.” and Part I, section 193: “The machine as symbolizing its action: the action of a machine—I might say at first—seems to be there in it from the start. What does that mean?—If we know the machine, everything else, that is its movement, seems to be already completely determined.”

2. Wittgenstein’s own examples of abused metaphors are much richer and more layered. Consider his observation about the metaphor of expression: “Misleading parallel: the expression of pain is a cry—the expression of thought, a proposition.

As if the purpose of the proposition were to convey to one person how it is with another; only, so to speak, in his thinking part and not in his stomach.” (Philosophical Investigations, supra n. 1, Part I, section 317.)

Consider also the following: “One might also say: Surely the owner of the visual room would have to be the same kind of thing as it is; but he is not to be found in it, and there is no outside.” (Philosophical Investigations, supra n. 1, Part I, section 399.)

3. Hart, H.L.A., remarks on this preoccupation and seeks to explain it in “American Jurisprudence through English Eyes” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983).CrossRefGoogle Scholar

4. The work of Ronald Dworkin best illustrates this central preoccupation with the question of how judges find law as the key to the understanding of the concept of law. This position was first sketched in “The Model of Rules I and II” in Taking Rights Seriously (Cambridge: Harvard Univ. Press, 1978), and remains the methodological basis of Dworkin's work in Law's Empire (Cambridge: Harvard Univ. Press, 1986).Google Scholar

5. In recent jurisprudence, the task of analyzing law is treated as the task of analyzing legal reasoning, and the main “official” reservoir of legal reasoning is judicial opinions. This was not the case for such earlier jurisprudential theorists as John Austin and Hans Kelsen, for whom the analysis of law was more or less the analysis of statutes. Thus, such British theorists as Neil MacCormick give as much centrality to judicial reasoning as does any American theorist. On the other hand, Joseph Raz continues in the older tradition that does not give precedence to judicial opinions over statutes as the main resource for speculation about the nature of law. See MacCormick, N., Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978),Google Scholar and Raz, J., The Concept of a Legal System (Oxford: Clarendon Press, 1970).Google Scholar

6. Throughout this article, my references to judicial reasoning are intended to characterize appellate decisions. Even more restrictively, I am concerned largely with constitutional interpretation at the appellate level. I am prepared to generalize my description of “deliberate practices” to judicial decision-making on a broader scale, but do not do so in this article.

7. Any attempt to list the main contributors to this movement risks offending by omission—and any adequate list would be formidably long. Even a partial and inadequate list would have to include Paul Brest, Ronald Dworkin, John Hart Ely, Owen Fiss, Stanley Fish, Thomas Grey, Richard Kay, Sanford Levinson, Michael Perry, Jefferson Powell, Lawrence Tribe, and Mark Tushnet.

8. The main argument of Mark Tushnet’s recent Red While and Blue (Cambridge, Mass: Harvard Univ. Press, 1988)Google Scholar is that all attempts to formulate a standard for constitutional interpretation on the basis of “grand theory” have self-destructed and they have done so because they are grounded on the untenable assumptions of liberalism. The recent work of Michael Perry (Morality Politics and Law (New York: Oxford Univ. Press, 1988))Google Scholar and Sanford Levinson (Constitutional Faith Princeton, N.J.: Princeton Univ. Press, 1988)) is not so much a frontal attempt to develop criteria for constitutional interpretation as an oblique investigation of the nuances and implications of the idea of constitutionalism.Google Scholar

9. The term “game” does double duty in Wittgenstein’s Philosophical Investigations and in his other works. The use of the word "game" (Spiel) is itself an example of a “language-game” (Sprachspiel). Wittgenstein uses it to demonstrate that using language (participating in the “language-game”) is not a matter of following rules, in particular not a matter of following rules that specify the necessary or sufficient conditions for using particular words correctly, not in other words a matter of understanding the “essence” of, e.g., a game. Compare Philosophical Investigations, supra n. 1, part 1, section 65: “For someone might object against me: ‘You take the easy way out! You talk about all sorts of language-games, but have nowhere said what the essence of a language-game, and hence of language, is: what is common to all these activities, and what makes them into language or parts of language....’

And this is true.—Instead of producing something common to all that we call language, I am say-ing that these phenomena have no thing in common which makes us use the same word for all,—but that they are related to one another in many different ways.”

10. Wittgenstein himself uses the term (Sprachspiel) frequently in Philosophical Investigations and elsewhere but, as I argue below (text at n. 48), his own examples and questions (a) invite generalization to non-linguistic practices and (b) reject unequivocally the paradigmatic use of any particular conception of a game.

11. It cannot be emphasized too strongly that I am not referring to Wittgenstein’s own use of the word “game” (Spiel) but to its use by those who see the essence of a game as a matter of acting in conformity with shared and mutually identifiable rules and sharing a conception of the point or goal to be achieved through participation. Wittgenstein argues persuasively against such essentialism; supra n. 9 and n. 48 below. Much post-Wittgensteinian philosophy, including contemporary jurisprudence, rests heavily on such essentialist assumptions.

12. The trajectory of this phenomenon seems to have a twenty-five year or so cycle. Legal realism in the late 1920’s and early 1930’s revolutionized thinking about judicial decision-making. See Kalman, L., Legal Realism at Yale, 1927–1960 (Chapel Hill: Univ. of North Carolina Press, 1986). In the late 1950’s, the writings of Alexander Bickel and Herbert Wechsler, among others, marked another significant revival of interest.Google Scholar

13. The most influential critique of formalism in recent jurisprudence has been that of Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961), chapter vii.Google Scholar An interesting recent example of the revival of formalism is Weinrib, E., “Legal Formality: On the Immanent Rationality of Law” (1988), 97 Yale L.J. 949.Google Scholar

14. The first half, chapters 1 through 5, of Tushnet, Red White and Blue, supra, n. 8, is a critique of formalist and anti-formalist theories of judicial decision-making. (Tushnet uses the term “formalism” more broadly than I do here or than Weinrib does, see n. 13. Formalism, for Hart and Weinrib, characterizes decision-making by recourse to the “internal logic” of legal propositions. Formalism, for Tushnet, refers to any theoretical attempt to prescribe standards for decision-making.)

15. For a discussion of the claim that this is, as a general matter, the task of philosophy, see Danto, A., What Philosophy Is: A Guide to the Elements (London: Cambridge Univ. Press, 1968;Google Scholar Rorty, R., The Linguistic Turn (Chicago: Univ. of Chicago Press, ed. 1967), introduction.Google Scholar

16. There is an important distinction here between the factors that affect judicial decisions and the reasons that are used by judges to justify opinions. Legal realism was concerned as much with the former as with the latter. The contemporary debate is primarily about the latter, about what counts as justification in “official” judicial reasoning. The term “reasoning” is, of course, ambiguous, referring both to the process of discovery (or of arriving at an opinion) and the process of justification.

17. To say that a standard determines a result is not to say that a particular result follows deductively from the standard or that application of the standard dictates one particular result in a particular case. Analogously, the rules of a game like chess determine the course of play but allow for many possible different moves. They constrain and order the results but allow for a range of alternatives.

With regard to judicial reasoning, the adoption of a standard has two consequences. First, it mandates the kinds of reasons that can be given in justification of particular results. Second, in doing the former, it limits the range of results that may be reached.

18. As indicated above, this is largely the argument of the first part of Tushnet, Red White and Blue. See also other writers in the Critical Legal Studies movement, especially Unger, R., The Critical Legal Studies Movement (Cambridge, Mass.: Harvard Univ. Press, 1986),Google Scholar and Kennedy, D., “The Structure of Blackstone’s Commentaries” (1979), 28 Buffalo L. R. 205.Google Scholar Owen Fiss labels the practitioners of critical legal studies “nihilists” and defends the label in “The Death of Law?” (1986), 72 Cornell L.R.I. Google Scholar

19. The rules of many activities are both descriptive and normative. The rules of driving or swimming characterize the activity and are implicated in any description. At the same time, they also characterize a standard of performance. One can carry out the rules in a marginal or an exemplary way, without or with skill and expertise.

Two qualifications. (a) To say there are rules for driving or swimming is not to prejudge whether there is a single way to carry out the activity or many alternative ways. Indeed the meaningfulness of that question may depend on the level of generality at which the rules are posed.

The rules of games such as chess and baseball are in part purely descriptive. The rule that a team in baseball retires after three players are “out” is hard to construe as normative, i.e. as a basis for evaluating better or worse games.

20. Philosophers who have discussed Wittgenstein’s use of the concept most illuminatingly are Hacker, P., Insight and Illusion (Oxford: Clarendon Press, 1972),Google Scholar Kripke, S., Wittgenstein on Rules and Private Language (Oxford: Basil Blackwell, 1982),Google Scholar Hilmy, S., The Later Wittgenstein (Oxford: Basil Blackwell, 1987),Google Scholar and Rorty, R., Philosophy and the Mirror of Nature (Princeton, N.J.: Princeton Univ. Press, 1979).Google Scholar The implications of the notion of a practice, and of the concomitant distinction between being inside and outside a practice, go far beyond the realm of Wittgenstein studies and are explored in contemporary philosophical movements from hermeneutics to neo-Kantianism and neo-Hegelianism. See for example, Gadamer, H-G., Truth and Method, Baden, G. and Cumming, J. trans., (New York: Continuum, 1975)Google Scholar and Hegel’s Dialectic (New Haven: Yale Univ. Press, 1976),Google Scholar Hoy, , The Critical Circle (Berkeley: Univ. of California Press, 1978),Google Scholar Shapiro, G. and Sica, A., Hermeneutics: Questions and Prospects (Amherst: Univ. of Mass Press, 1984),Google Scholar and Geuss, R., The Idea of a Critical Theory (Cambridge: Cambridge Univ. Press, 1981).Google Scholar

21. The need to do so will arise if one is instructing someone else or if one has to relearn the activity after, for example, an injury.

22. This means merely that one can anticipate the range of variation in criteria for driving—and one can anticipate the kinds of criteria that simply make no sense (unless an exceptional context is created). One person may tend to favor careful drivers who obey speed limits, while another may favor accident avoidance even at excessive speed. But it would be hard to understand “crashing into as many red cars as possible” as a standard for good driving (unless the act is part of a contest, etc.).

23. Non-linguistic ones are waving and pointing. See Wittgenstein, Philosophical Investigations, supra, n. 1, part I, section 454.

24. In Philosophical Investigations, supra n. 1, Wittgenstein discusses color in Part I, sections 273 through 278. Consider, for example, section 275:

Look at the blue of the sky and say to yourself “How blue the sky is!”—When you do it sponta-neously—without philosophical intentions—the idea never crosses your mind that this impression of colour belongs only to you....

See also Wittgenstein, , Remarks on Colour, McAlister, L.L. trans. (Oxford: Basil Blackwell, 1977). Wittgenstein’s extensive discussion of pain in Philosophical Investigations is to be found in Part I at sections 283 to 304, 310 to 317, 350 to 351, 384, and 391 through 398. Consider section 384: “You learned the concept ‘pain’ when you learned language.”Google Scholar

25. In the history of British empiricism, John Locke held a distinctive theory along these lines. See An Essay on Human Understanding (Oxford: Clarendon Press, 1894). In the twentieth century, Bertrand Russell and A.J. Ayer clung to many of the traditional tenets of British empiricism.Google Scholar

26. Philosophical Investigations, supra n. I, Part I, section 381: How do I know that this colour is red?— It would be an answer to say, “I have learnt English.”

Two qualifications are relevant. (a) An individual may experience colors that have no simple name. One may say that one wants “a slightly pinkish shade of pale ochre” on one’s wall. But the color one envisions is a color that one imagines others capable of envisioning. (b) The communal color language may change over time. Words like “indigo” and “cerise” may fall in and out of ordinary use.

27. It is important that the question which of the three of us is corret in his use of color terms may be a meaningless question. All three ways of speaking may be appropriate in different contexts and there may be no general criteria, relevant to all contexts, for distinguishing scarlet from crimson. When and where they are needed, new conventions will be invented.

28. This point is true whether one is speaking of individuals, and saying that these subjects have concerned persons in all cultures and been richly debated over the course of history, or speaking of so-called schools of thought, and saying that distinctive points of view about these issues (objectivism vs. subjectivism, realism vs. idealism, relativism vs. absolutism) have recurred insistently over the history of human speculation.

29. For an extended discussion of this point see Morawetz, T., Wittgenstein and Knowledge: The Importance of On Certainty (Amherst: Univ. of Mass. Press, 1978).Google Scholar

30. That is to say, one can anticipate a range of intelligible moves and responses. If a response is wholly unexpected and seems unintelligible or nonsensical, one can construct the kinds of conversational bridges that would make it intelligible. Of course, conversations sometimes take surprising turns within the bounds of these constraints.

31. An anthology of historical approaches is Hofstadter, A. and Kuhns, R., Philosophies of Art and Beauty (New York: Modern Library, 1964).Google Scholar A collection of recent diverse writings is Harrison, C. and Orton, F., Modernism, Criticism, Realism (San Francisco: Harper and Row, 1984).Google Scholar

32. By using the word “strategy” for what others may call (and for what I call elsewhere) a “way of proceeding” and “way of reasoning”, I do not imply that these strategies serve ulterior aims or that they involve strategic planning.

33. Compare Philosophical Investigations, supra, n. 1, Part I, section 241: ‘“So you are saying that human agreement decides what is true and what is false?’—It is what human beings say that is true and false; and they agree in the language they use. That is not agreement in opinions but in form of life.”

34. Reductionism was more widely discussed in the philosophy of science and of social science a generation ago that it is today. Compare Nagel, E., The Structure of Science (New York: Harcourt and Bruce, 1961)Google Scholar with Brown, H., Perception, Theory and Commitment (New York: Columbia Univ. Press, 1979).Google Scholar

35. This fact, I would argue, is what fuels debate within deliberative practices. Participants manifest and seek to validate their ways of thinking through participation. (This is a truism rather than a claim for empirical psychology.)

36. Wittgenstein is sometimes falsely charged with conservatism. The suggestion is that innovation and change are ruled out by a practice-based account of experience because individuals can only learn and do what others have done before them. This shows a misunderstanding of Wittgenstein and of practices. Part of what one learns in acquiring a practice is the constraints within which creativity and innovation are possible. See relevant discussion in Pole, D., The Later Philosophy of Wittgenstein (London: Athlone Press, 1958)Google Scholar and Bloor, D., Wittgenstein: A Social Theory of Knowledge (New York: Columbia Univ. Press, 1983), at pp. 160–173.CrossRefGoogle Scholar

37. Hegel’s familiar reference to the owl of Minerva implies that shifts in collective ways of thinking can only be appreciated and understood retrospectively. See Hegel, G., The Philosophy of Right, Knox trans. (Oxford: Clarendon Press, 1942), preface: “The owl of Minerva spreads its wings only with the falling of the Dusk.” Thomas Kuhn’s innovative work on scientific revolutions has the same implication. The nature and significance of a scientific revolution can only be appreciated after it has occurred and after a new way of thinking has came to inhabit “normal science”. See below at n. 67.Google Scholar

Arguably, certain political and esthetic manifestoes are self-conscious attempts to alter prevailing practices. They are Janus-faced. Their contemporaneous intelligibility depends on their relationship to existing practices but they are prospective attempts to transform those very practices. Consider for example the esthetic manifestoes of Kandinsky, Apollinaire, Mondrian, and the futurists.

38. Examples in politics are the hierarchic presuppositions of feudalism and of Renaissance statecraft.

39. These ways of looking at history are attributable, respectively, to Max Weber, Friedrich Engels, and Thomas Carlisle (and their followers).

40. The philosophers most closely identified with these positions are, respectively, John Stuart Mill, Thomas Hobbes, and Immanuel Kant. Each has influenced ethical theorists through subsequent generations. In my references to ethical theory I am assuming that the positions of various theories bridge questions of metaethics and questions of normative ethics. In other words, theorists reach what John Rawls calls “reflective equilibrium” with regard to reconciling metaethical commitments and substantive ethical judgments. See Rawls, , A Theory of Justice (Cambridge: Harvard Univ. Press, 1971, at 20.Google Scholar

41. Supra, nn. 26 and 27.

42. Philosophical Investigations,supra n. 1, Part I, section 124. “Philosophy may in no way interfere with the actual use of language; it can in the end only describe it.

For it cannot give it any foundation either.

It leaves everything as it is.”

43. see Hacking, I., Why Does Language Matter to Philosophy? (Cambridge: Cambridge Univ. Press, 1975), chapters 11–13.CrossRefGoogle Scholar

44. See articles in Holtzman, S. and Leich, C., Wittgenstein: To Follow a Rule (London: Routledge and Kegan Paul, 1981).Google Scholar

45. See Wittgenstein, , On Certainty (Oxford: Basil Blackwell, 1969), section 614.Google Scholar

46. Rawls, J., “Two Concepts of Rules,” (1955) 64 Philosophical Review 3.Google Scholar

47. The distinction between constitutive and regulative rules (and between constitutive and descriptive concepts) has unclear borders. Consider, for example, the economist’s use of the term “preference satisfaction.” The term has technical significance in economic theory but also refers to a phenomenon that lives outside the domain of economic theory. The same can be said of the sociologist’s use of the term “charisma.” The same, however, cannot be said of “run” or “strike” in baseball.

48. Wittgenstein, as noted above at n. 9, admonishes us to remember that if we “look and see whether there is anything common to all” games, we “will not see something that is common to all, but similarities, relationships, and a whole series of them at that.” He goes on, “I can think of no better expression to characterize these similarities than ‘family resemblances’; for the various resemblances between members of a family: build, features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the same way.—And I shall say: ‘games’ form a family.” Philosophical Investigations,supra n. I, Part 1, sections 66 and 67.

My critique is of the use of a paradigm of games whereby all participants follow the same rules and have in mind the same point or purpose for engaging in the joint activity. Rawls and Kuhn use the paradigm to illuminate political and scientific activity.

49. In actual games and in the game-paradigm, the distinction is maintained between rules, by which all players must abide, and strategies, which players may devise on their own and which are likely to differ from player to player. It is relatively easy to sort out the activities of baseball players or chess players along these lines.

The use of the game-paradigm forjudges presupposes that in judging as well one can distinguish the rules from strategies. One of my main criticisms of the use of the metaphor of games for deliberative practices is that this distinction cannot be made in the case of judging. In other words, the quest for shared rules of relevance for justificatory reasons must yield to the recognition of a plurality of competing strategies of justification.

50. This is not to say that Robinson Crusoe, alone on a desert island, cannot notice a particular color of fruit and then reidentify the color elsewhere on the island. But terms that he invents and uses are in principle terms that he can share with any subsequent visitors to the island; in principle his language can be a public language. The “private language” question is much debated in writings on Wittgenstein. See, for example, Kripke, supra n. 20.

51. Compare Philosophical Investigations, supra n. 1, Part I, section 250: “Why can’t a dog simulate pain? Is he too honest? Could one teach a dog to simulate pain? Perhaps it is possible to teach him to howl on particular occasions as if he were in pain, even when he is not. But the surroundings which are necessary for this behaviour to be real simulation are missing.”

52. In On Certainly. Wittgenstein says, in confronting those who reason differently, “we use our lan-guage-game to combat theirs,” section 609. According to this assumption, reasoning and persuasion and justification are possible only among those who reason in the same way; otherwise, there is only competition and combat.

53. True games can be seen as mimicking the ordered or practice-like character of all conduct but in a form in which the goal is arbitrarily posited (and therefore bears no inherent relationship to human needs and desires) and in which moves and rules are simplified into relatively simple and rigid patterns.

54. See supra n. 49, for discussion of the distinction between rules and strategy in the context of a game—and for an argument that the distinction evaporates in a deliberative practice.

55. One of the most widely discussed aspects of Hart's jurisprudential writings is his distinction between an internal and an external point of view. This distinction has also occupied moral philosophy over the last forty years. See Hart, n. 13 supra, at 55–60; Soper, P., A Theory of Law (Cambridge, Mass: Harvard Univ. Press, 1984);CrossRefGoogle Scholar Baier, K., The Moral Point of View (Ithaca: Cornell Univ. Press, 1958); mixed-citation id="ref004" publication-type="journal">Williams, B., Ethics and the Limits of Philosophy (Cambridge Mass: Harvard Univ. Press, 1985);Google Scholar and Nagel, T., The View from Nowhere (New York: Oxford Univ. Press, 1986).Google Scholar

56. Whether one is concerned with practitioners such as the justices of the U. S. Supreme Court or with theorists such as Tushnet, Ely, Bork, Fiss, and Dworkin, each propounds a controversial account of the point of the enterprise of judicial decision-making (and specifically constitutional interpretation). Although the position of pure outsider can, in principle, be adopted, it leaves the theorist with little to say. The reason philosophers are occupied with theories of law or morality or history but not with theories of baseball or chess is precisely because a theory of baseball would be uninteresting insofar as it would not pose controversial alternatives with regard to the point of the practice. A theorist of baseball would be a pure outsider, a pure describer, whereas a theorist of law or morality or history exists self-consciously in tension between commitment to a controversial justification of the practice and transcendence of that commitment.

57. Supra n. 6. The analysis need not be limited to constitutional decision-making or to appellate decisionmaking, but I do not try to generalize the argument here.

58. During the reign of logical positivism in the 1930’s through the 1950’s, moral, political, and legal philosophy were in eclipse. Such then-popular theories as emotivism and prescriptivism implied that moral and political discourse was not to be treated as a form of reasoning so much as a form of pure expression or attempted coercion. See, for example, Urmson, J., The Emotive Theory of Ethics (London: Hutchinson Press, 1968)Google Scholar and Weldon, T., The Vocabulary of Politics (Baltimore: Penguin, 1953). Hart’s Concept of Law, supra n. 13, and Rawls’ A Theory of Justice, supra n. 40, are the most influential masterworks in the renaissance of political and legal philosophy under the rubric of linguistic analysis.Google Scholar

59. Supra n. 46.

60. The distinction sketched by Rawls in “Two Concepts of Rules” was elaborated and used both by Hart in The Concept of Law and by Dworkin in the essays in Taking Rights Seriously, supra n. 4, 13, and 46.

61. Dworkin, Taking Rights Seriously,supra n. 4, pp. 31–39. Here Dworkin distinguishes among several senses of discretion.

62. E.g. actions such as whether player x tagged up when he rounded second base, and events such as whether the ball was in the strike zone as it crossed home plate.

63. That is to say, they must abide by the rules of baseball as recorded and agreed-upon rules specifying what constitutes a strike, when a player must touch base, etc. The rules leave no effective room for ambiguity or interpretation.

64. Just as one can imagine a single judge sitting in judgment, one can also imagine a person alone in the desert identifying colors. But in both cases, the event is imaginable because it is also imaginable as a collective enterprise, whereby several persons carry out judgments, argue among themselves, etc. Compare Wittgenstein’s observations on this, supra n. 26 and accompanying text.

65. Supra n. 27.

66. Most of the theorists of the late 1970’s and early 1980’s speak eloquently about a sense of crisis and an impasse with regard to theorizing about judging. See, for example, Ely, J., Democracy and Distrust (Cambridge, Mass: Harvard Univ. Press, 1980), at 73–75;Google Scholar Tribe, L., Constitutional Choices (Cambridge, Mass: Harvard Univ. Press, 1985), at 3–21;Google Scholar and Perry, M., The Constitution, The Courts, and Human Rights (New Haven: Yale Univ. Press, 1982), at 9–36.Google Scholar

67. Kuhn’s account of scientific discovery and change is explained in Kuhn, T., The Structure of Scientific Revolutions (Chicago: Univ. of Chicago Press, 1962).Google Scholar See also Lakatos, I. and Musgrave, A., Criticism and the Growth of Knowledge (Cambridge: Cambridge University Press, 1970)CrossRefGoogle Scholar and Hacking, I., Scientific Revolutions (Oxford: Oxford Univ. Press, 1981).Google Scholar

68. This notion of judicial objectivity is put forward by Owen Fiss in “Objectivity and Interpretation” (1982), 34 Stanford L.R. 739.Google Scholar

69. See sources listed, supra n. 66.

70. Ely follows many other writers in adhering to the term “interpretivism.” Tushnet and Brest, in their influential and persuasive critiques, prefer the term “originalism.” See Tushnet, supra n. 8, and Brest, P., “The Misconceived Quest for the Original Understanding” (1980), 60 Boston University L.R. 204.Google Scholar See also Kay, R., “Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses” (1988), 82 Northwestern University L.R. 226.Google Scholar

71. Dworkin and Fiss are examples. Supra nn. 4 and 68.

72. Tushnet, among others, offers a compelling argument of this kind. Supra n. 8.

73. This point illustrates the way in which the example of game-like activity, on the Kuhnian model, is midway between a real game and a deliberative practice. On the one hand is the requirement that participants must play by the same rules and must agree about the shared point or aim of their activity. In this sense, the mode! is a variant of a game. On the other hand the moves themselves are justificatory arguments, reasons for judgment. In this sense, the activity is like a deliberative practice. The distinction between insiders and outsiders (participants and theorists) is clearer in Kuhn’s model than it is in a deliberative practice.

74. Critics of Kuhn question whether a theorist can indeed be an outsider in this sense or whether the reconstruction of scientific paradigms involves an implicit notion of rationality that transcends paradigms, a notion that allows us to speak meaningfully of progress in science. See, for related issues, I. Lakatos, “History of Science and Its Rational Reconstructions”, and K. Popper, “The Rationality of Scientific Revolutions”, in Hacking, supra n. 67.

75. See general discussion of conceptual frameworks in Davidson, D., “On the Very Idea of a Conceptual Scheme,” in Inquiries into Truth and Interpretation (Oxford: Oxford Univ. Press, 1984);Google Scholar Rorty, R., Contingency Irony and Solidarity (Cambridge: Cambridge Univ. Press, 1989);CrossRefGoogle Scholar and Putnam, H., Realism and Reason, Philosophical Papers, volume 3 Cambridge: Cambridge Univ. Press, 1983).CrossRefGoogle Scholar

76. One of the main ideas in Wittgenstein’s On Certainty, supra n. 45, is that recognition that knowledge claims and claims about what is true can only occur within practices (or language-games) does not license skepticism or disenfranchise persons from using terms like “know” and “true.” This recognition merely describes the conditions under which such terms are appropriately used. See Morawetz, supra n. 29, chapters 4 and 5.

77. No doubt some theorists would assimilate scientific investigation, Kuhn’s main area of concern, with a deliberative practice and would contest the existence of shared paradigms. Perhaps the best account of the matter would suggest that the two models are not mutually exclusive, and that some areas of investigation and deliberation come closer to one model while others approximate the other.

78. Supra text at n. 49 and passim.

79. These categories are explained above at text accompanying nn. 12–14, 70–71, and 81–83.

80. The relationship between rules and results is a complex one (not unlike the relationship between theories of metaethics and theories of substantive ethics). Practitioners who follow the same rules will not necessarily get the same results. The rules do not function as a decision procedure, nor do they put in place a deductive method. Rather, they are a criterion of relevance and importance for reasons. Historians who stress economic factors are more likely to attend to similar kinds of facts, but will not offer identical explanations. Judges who consult original intent will be disposed, one. imagines, to entertain certain arguments about federalism but will not apply these arguments in the same way, nor will they necessarily come up with the same results in hard cases. The constraining effects of the rules of a game like baseball or of an experimental process in, say, biochemical research also allow for differing ways of carrying out the activity—but one must not draw the analogy too closely.

81. Such assumptions seem to underpin the work of writers as diverse as Robert Bork, Richard Kay, and John Hart Ely. See, for example, Bork, R., “Neutral Principles and Some First Amendment Problems,” (1971), 47 Indiana L.J. 1.Google Scholar and “The Impossibility of Finding Welfare Rights in the Constitution,” (1979) Washington University L.Q. 695; R. Kay, supra n. 70; and J. Ely, supra n. 66.Google Scholar

82. Supra n. 80.

83. This contrast is reflected, respectively, in the work of Richard Kay on the one hand and Robert Bork (and Edwin Meese) on the other.

84. In this instance, the former view is held by Bork (and perhaps by Ely) while the latter is held by Kay.

85. Arguably these views are held respectively by Thomas Grey, Owen Fiss, and Ronald Dworkin. See, for example, Grey, T., “Do We Have an Unwritten Constitution?,” (1975), 27 Stanford L.R. 703; O. Fiss, supra n. 68; and R. Dworkin, supra n. 4.Google Scholar

86. The tension between liberty and equality remains one of the principal conceptual ways in which alternative political theories are cast. It is possible to argue that (his opposition is epiphenomenal and rests, in most cases, on deeper commitments to psychological, sociological, and methodological assumptions made by the theorists who deploy various views about the relationship between liberty and equality. See, for example, Ryan, A., The Idea of Freedom: Essays in Honour of Isaiah Berlin (Oxford: Oxford University Press, 1979);Google Scholar Gutmann, A., Liberal Equality (Cambridge: Cambridge University Press, 1980;Google Scholar and McMurrin, S.M., Liberty, Equality, and the Law: Selected Tanner Lectures on Moral Philosophy (Salt Lake City: Univ. of Utah Press, 1987).Google Scholar

87. To be sure, the interpretivist rejects the distinction between the second and third of these stances, while the noninterpretivist defends it.

88. See Hoy, D., “Interpreting the Law: Hermeneutical and Poststructuralist Perspectives,” (1985) 58 Southern California L.R. 135;Google Scholar Grey, T., “The Hermeneutics File” (1985), 58 Southern California L.R. 221; H-G. Gadamer, supra n. 20.Google Scholar

89. The last few paragraphs are to be taken as phenomenological and hermeneutical description. It is not clear to me how, other than through appeal to intuition, any theorist would “prove” these observations.

90. Supra n. 77.

91. Supra n. 42.