Wittgenstein seeks to inoculate us against the lure of metaphors. The conundrums of philosophy are, he implies, often the misbegotten offspring of abused metaphors. How many rooms are needed to house the “furniture of our mind”? With what key do others gain access to my “private” thoughts and feelings?
Jurisprudence has its own syllabus of philosophical puzzles. One of the hardiest is the issue of judicial license and judicial standards. This issue has special fascination for American legal theorists because of the pivotal role played by the Supreme Court in exercising the power of judicial review by interpreting the Constitution. American theorists have taken for granted, and other theorists have seemed to acquiesce in this assumption, that to understand the nature of law is to understand how appellate judges find and/or make law.