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Patrick Emerton
in favour of the conclusion that I must be unexpressed. If the legal rules of
inference are stated with sufficient flexibility and informality that they are
able to govern inferences in which they themselves figure (e.g., if they state
certain principles of analogical reasoning, or state certain principles for the
application of general terms to particular cases, etc.), then it seems that any
concrete application of them to validate L could not be a case of simply apply-
ing expressed rules of legal inference, but rather would require generation (by
application of principles of interpretation, principle for reconciling conflict-
ing considerations, etc.) of something unexpressed from the expressed rules
of legal inference.
I therefore conclude that there is good, though not definitive, reason to
think that – on the ‘thick’ picture of validation – the rules of legal inference,
or at least some of them, must be unexpressed.
5.3.3. The ‘Local’ Character of Rules of Legal Inference
If rules of inference are not premises in our arguments, then how are they
known to us so that we may apply them? The answer given within the con-
ventionalist tradition is that grasping the rules for the use of key logical and
mathematical concepts – e.g., such concepts as conjunction, negation, addi-
tion, etc. – includes, or even consists in, grasping the permissible inferences to
which they give rise. Coffa explains the idea this way:
Logic is radically different from every other type of knowledge because its
‘justification’ [ie the rules of inference that underpin logical argumentation]
lies not in how things stand but in the understanding of language. As I under-
stand the language in which A and B and not-A are formulated, I ipso facto
recognize that whatever A and B might be, if those two statements were true,
B would also be true . . .
The basic point is that . . . the focus is not the ‘seeing’ of a certain very
general and a prior truth but on the recognition of certain meanings, on
understanding . . .
These ‘truths’ emerge not from the acknowledgement of facts . . . but
through the recognition of meaning.
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A. J. Ayer, in Language Truth and Logic, puts forward the same idea as an
account of the necessary truth of propositions of mathematics and logic:
[W]e say that a proposition is analytic when its validity depends solely on the
definitions of the symbols it contains . . . If one knows what is the function
26
Coffa, Supra note 21, 165–7.
The Centrality and Diversity of the Invisible Constitution
157
of the words ‘either’, ‘or’, and ‘not’, then one can see that any proposition
of the form ‘Either p is true or p is not true’ is valid . . . Accordingly, all such
propositions are analytic . . .
[A]lthough [analytic propositions] give us no information about any
empirical situation, they do enlighten us by illustrating the way in which we
use certain symbols . . . [I]n saying that if all Bretons are Frenchmen, and all
Frenchmen Europeans, then all Bretons are Europeans, I am not describing
any matter of fact. But I am showing that in the statement that all Bretons are
Frenchmen, and all Frenchmen Europeans, the further statement that all
Bretons are Europeans is implicitly contained. And I am thereby indicating
the convention which governs our usage of the words ‘if’ and ‘all’.
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On the ‘thick’ Hartian picture of validation, it seems natural to suppose that
the rules of legal inference would similarly be implicit in the meanings of
key terms occurring in the rule of recognition: this would explain where they
come from, and how they come to be validated. Because these key terms
are likely to be different across different legal systems (at least in principle –
in practice, broader socio-historical processes may produce a degree of
homogenisation), that suggests that the relevant rules of legal inference may
themselves be different across legal systems, and hence ‘local’ or ‘parochial’.
Wittgenstein expresses this sort of idea very forcefully (and generalises it across
larger swathes of language than those with which this paper is concerned)
when he says that
to imagine a language is to imagine a form of life . . . [T]he speaking of a
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