“Kripkenstein” in Legal Interpretation

Abstract

Saul Kripke, commenting on Wittgenstein’s Philosophical Investigations (his idiosyncratic understanding of Wittgenstein’s work came to be known as Kripkenstein), relates the following thought experiment: let us suppose that one has never added numbers greater than 50 before. A “bizarre sceptic” could argue that there is no hard evidence against the hypothesis that it has only ever been meant for instance, that:

• if x, y < 57, x “plus” y = x + y

• if x, y ≥ 57, x “plus” y = 5

What can be retorted to that man? This problem appears in some extreme cases of problematic legal interpretation. One particularly telling example is that of space law. In a sense, the very existence of space law reflects the attitude of Kripkenstein’s sceptic, in the sense that, above a certain altitude, the traditional held rules cease to apply. We propose however that any understanding of changes of legal interpretation must take the paradox into account, and that instances of breaking precedent, in particular, can be fruitfully construed in light of Kripkenstein’s hypotheses. Additionally, and as noted by Jean-Michel Salanskis, if we were to justify that by “plus”, it has always been meant “addition”, we would therefore need to infer another rule (a rule of interpretation). This rule needs, in its turn to be justified by another rule etc., hence the necessity for legal practitioners to define these rules and generally establish a closed, functional and coherent system of hermeneutics. Religious law offers strikingly extreme thoughts experiments in the same matter.