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1. Introduction
In order to assess whether general jurisprudence is “interesting”, at least in the sense David Enoch thinks important (Enoch forthcoming), one must first determine whether it is a credible enterprise. To that end, this article surveys certain methodological matters that shape, drive, and plague the discipline. It also makes some modest claims of its own along the way. While legal philosophers have been more attentive to such issues lately, the task of even elucidating key ones remains incomplete.1 This article also hopes to move to the forefront certain (interrelated) meta-philosophical concerns that have gained far less coverage -especially their role within problems that have already been addressed by legal philosophers.
Section 2 explicates certain methods and views, such as conceptual analysis, analytic definitions, and family resemblance concepts. Those sufficiently familiar with these can skip to section 2.4, where, in addressing the central case method, I argue that central cases are used in more than one way. Section 3 then presents some (welland lesser-known) criticisms of the above-mentioned philosophical methods and the data on which they rely. The goal is to make more perspicuous the problems of relying on intuitions and examples in various contexts. I also suggest that some of these difficulties are due to the lack of a shared paradigm governing the impact of a counterexample.
Section 4 then briefly explains “meta-theoretical” desiderata: norms by which to help construct, evaluate, and compare concepts and theories. Analytic legal philosophers have invoked these a lot recently in regards to (i) concept and theory formation and (ii) grounds for comparing rival legal theories. Some legal positivists also appeal to these desiderata in order to rebut a certain methodological critique levied against them by their “normativist” rivals (e.g., natural lawyers and interpretivists). I nevertheless argue that, to date, legal philosophical appeals to such norms have not been as helpful as might appear.
Finally, section 5 returns to the matter of concept selection by addressing one of the dominant methodological issues in analytic legal philosophy: whether legal theorising is an invariably “normative” (in the sense of morally or politically evaluative) enterprise. I present some reasons for thinking that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary.
2. Concepts and Analysis
2.1. Concepts, Conceptions, Words, and Things
To begin, it will prove helpful to outline popular philosophical distinctions amongst a thing, a concept, and a term, phrase, and word.
A thing (or, what some philosophers, for better or ill, treat as a synonym, a phenomenon) is a person, place, object, or state of affairs. The concept (of) A CONCEPT is contested.2 A popular philosophical view construes it to be a mental representation (of a thing, say), which involves beliefs and propositional attitudes, and which has an internal structure containing more basic representational elements.3 This view additionally holds that a concept can be a cluster of beliefs constituting something. For example, there are concepts of things that do not exist, such as unicorns and witches.4Words, terms, and phrases are symbols used in a language, which can be used to express a concept.5 There can, however, be more than one word available by which to express a given concept. For example, “You can’t do that, it’s against the law” and “You can’t do that, the legislature has prohibited it” appear to express or utilise the same concept (Leiter 2007, p. 123).6
A few philosophers also carve a concept-conception distinction. A concept concerns a sort of category (or an entire field of enquiry), while a conception refers to particular viewpoints about that concept.7 For example, there are various conceptions of the kind of a legal right that correlates with a duty. Hohfeld’s “claim”, for example, differs in certain respects from H.L.A. Hart’s “right-correlative-toan-obligation” and Joseph Raz’s account of a right as the grounds of duties and other normative positions.8 The concept-conception distinction’s soundness is nevertheless disputed. Some philosophers deny that there are different conceptions of a concept; instead, people merely have different beliefs about a concept. Other philosophers believe the distinction is misleading because there need not even be “a” concept to which the various “conceptions” refer.9
2.2. Conceptual Analysis and Analytic Definitions
Amongst other things, philosophy aims to help us better understand concepts and the things/phenomena our concepts are concepts of (if anything). However, there is no agreed-upon, established set of universally endorsed or preferred philosophical procedures.10 One (set of) method(s), traceable back to at least the Platonic dialogues,11 is called conceptual analysis. It is worthwhile to focus on this form, as it continues to be a dominant one in analytic legal philosophy.12
On the assumption that concepts bear internal structures, a conceptual analysis explains a given concept in terms of its more basic components; you decompose it into its constituent parts until you are left with more (if not irreducibly) basic concepts.13 In the words of its most famous contemporary apologist, “conceptual analysis is the very business of addressing when and whether a story told in one vocabulary is made true by one told in some allegedly more fundamental vocabulary” (Jackson 2000, p. 28).
Conceptual analyses are said to admit of immodest and modest versions. “Immodest” ones purport to be able to tell us something about the very things our concepts are concepts of. By contrast, a “modest” conceptual analysis merely aims to elucidate a concept qua concept; it does not pretend to be able to describe “the world” itself (Jackson 2000, p. 42).14
Such analyses are also said to offer “conceptual clarifications”. As words and/or concepts admit of ambiguity, vagueness, etc., many philosophers believe they can tidy up this messiness by either (A) rendering a concept’s features more perspicuous (so that the concept might be better understood),15 or (B) by replacing the concept with a more precise one.16 Others can then employ the refurbished concept in their philosophical, scientific, or social scientific work.17
Conceptual analysis often proceeds by trying to distinguish what is necessary to a concept from that which is merely contingently associated with it. Being “necessary” means that a given feature (a) is constitutive of the concept and (b) is exemplified in every token of the type.18 In other words, a necessary feature’s failure to obtain in a given instance of the thing the concept represents is deemed to be inconceivable. Two caveats are warranted here, though. First, this is not to say that conceptual analysts assume that a target concept, in contrast to one or more of its features, is itself indispensable.19 Second, it is not true that all philosophical analysis aims to focus on, let alone capture, a concept’s necessary features. Sometimes, and particularly in legal philosophy, there is great value in examining the important yet conceptually contingent.20
Whether for the sake of rendering a concept more perspicuous, or as part of an effort to advocate for its replacement with a more precise one, conceptual analyses often levy definitions. Not only are there different kinds of definition, but philosophers also claim to be able to define words, concepts, and things (Gupta 2015).21 A philosophical or “analytic” definition aims to provide a set of necessary and sufficient conditions for a concept. These specify the concept’s (as opposed to a word’s) extension.22
This approach actually makes several assumptions: (I) that we can “capture precise, informative, tractably specifiable, noncircular necessary and sufficient conditions for the application of [concepts]”; (II) that “statements expressing these analyses are analytic truths”; and (III) that these analyses can be produced via a priori reflection.23
Do analytic definitions suffice for identificatory purposes, i.e., for locating instances of things/phenomena that the concept represents? Some philosophers seem to suggest as much.
Although sufficient conditions, necessary conditions, etc., are sometimes called “criteria” [. . . ] the sense of “criterion” in which an analytic definition provides a criterion for something’s being the sort of thing to which a term applies is a very strong one: (a) the “criteria” I am speaking of are necessary and sufficient conditions of something’s being an A; and (b) by means of them people can and do determine that something is an A. (Putnam 1979, p. 67)
Philosophers test an analytic definition by subjecting it to actual or hypothetical cases to see if the definition can cover them.24 If it fails to do so, then any such case (qua counterexample) is treated as being sufficient grounds for revising or falsifying the definition. (The mark of a successful analytic definition, then, is that is impervious to counterexamples). However, some believe that not every counterexample, or set thereof, suffice for this task. Instead, one can propose an error theory to explain why the intuition is itself mistaken.25
Two or three kinds of cases are employed to do the falsifying. First, imagine that a candidate analytic definition of (the concept of) X construes feature φ to be necessary to X. To test this, just present or imagine a plausible case of X that lacks φ. The counterexample’s existence is taken to show that, pace the definition, feature φ is not necessary to X after all. Alternatively, present a case that is not thought to be an example of X, but which nevertheless satisfies the analytic definition’s conditions. This kind of counterexample is taken to show that the definition’s features are insufficient for X.
There is a lot to unpack here. For one thing, how do we know that the first case is actually a genuine instance of X lacking feature φ, or that the second case is not really an instance of X despite meeting the analytic definition’s conditions? Philosophers commonly claim to rely on their intuitions in order to make these categorisation judgements.26 However, they do not agree about what they mean by “intuition”,27 while the various philosophical accounts of INTUITION “range from little more than hunches to at most expert opinions on disputed issues” (Gutting 1998, pp. 6-7).28
Additionally, quite a few philosophers treat “ordinary” or “folk” linguistic usages, patterns, or understandings as the data to be used in such analyses.29 Sometimes, though, the data set is restricted to technical discourses, e.g., lawyers’ talk for the purposes of a legal theory.30 Philosophers then “test” their intuitions about cases using this linguistic data. Indeed, it is sometimes said that they judge what would be appropriate or valid to say vis-à-vis their “linguistic intuitions”.
Here is a legal philosophical example of the method of hypothetical cases. Arguing against a long-standing belief amongst legal philosophers and others that law is necessarily coercive, Joseph Raz provides a purported counterexample: the law of a community of angels. Angels, he suggests, would need laws to coordinate and structure their social order. Being highly virtuous, though, their legal system would not require (the utilisation of) coercive measures in order to establish conformity with given laws or for the system as a whole to be effective (Raz 1999, pp. 156-161). This seems to be a case of law without coercion. Coercion, Raz concludes, is therefore not a necessary feature of “our” concept of LAW; conceptually, it is only contingently related to law, albeit present in most or all human legal systems.
2.3. Family Resemblance Concepts
Analyses do not always necessitate the levying of “analytic” definitions, which try to capture a concept’s essence in terms of necessary and sufficient conditions. In fact, quite a few legal philosophers follow Wittgenstein in rejecting the idea that all concepts must possess necessary conditions. That is to say, they reject the notion that the various things falling under a concept must exhibit some common feature, or group of features, which invariably obtain in every token of the type.
Instead, the various things falling under a given concept relate to each other in diverse, overlapping ways. A concept presents “a complicated network of similarities overlapping and criss-crossing” (Wittgenstein 2009, § 66), where there is “no one thing in common in virtue of which we use the same word for all -but there are many different kinds of affinity [. . . ]” (§ 65). This is called a family resemblance concept. For just as members of a biological family can exhibit shared physical characteristics (e.g., certain members having the same nose shape, some the same shaped eyebrows) without there being one that is common to the whole family (e.g., everyone having the same eye colour), so too the things falling under a given concept may exhibit overlapping features without there being features that are common to all of them (§ 67).31
Wittgenstein’s famous example of a family resemblance concept is that of GAME (and thus the multifarious things we call games) (2009, §§ 69-71), but here is a legal philosophical example. Wesley Hohfeld (1913) claimed to have identified four conceptually basic types of rights: claims, privileges, powers, and immunities.32 Many have since asked, what makes these all types or examples of “the” concept, A RIGHT?33 Is it that they are all entitlements? That they are all normative advantages? Do they all protect the right-holder’s will or interests? If A RIGHT is a family resemblance concept, then there is no common necessary feature that all rights exhibit. Instead, they are just related to one another in distinct, overlapping ways.
2.4. Central Cases
Analytic definition (bearing necessary and sufficient conditions) and family resemblance are not the only ways by which to understand or explain a concept. An alternative, or supplementary, basis is the central case method (aka the paradigm case or focal case method).34 The method is of ancient provenance.35 As Alex Langlinais and Brian Leiter explain: “A central case analysis of some phenomenon identifies some subset of possible or actual instances of that phenomenon as explanatorily privileged. The members of this subset are the paradigm or central cases of the phenomenon [. . . ]” (2016, p. 682).
Like a family resemblance concept, a central case is not, or at least it need not be, “essentialist”, i.e., it need not be said to be composed of immutable, necessary properties.36 A central case of X contains important features, but not every such property need obtain in every instance of X.37 For example, Tony Honoré presents “the” central case of ownership in a modern “liberal” legal system. The case includes eleven standard instances or features, e.g., the right to possess, the right to sue, the right to manage, etc. Still, he does not insist that every feature must obtain in every case within a liberal legal order (Honoré 1961).
While philosophers may be becoming more aware of the extent to which the selection and employment of such cases is reliant upon “intuition pumping”, what nevertheless seems to have escaped their notice is whether such cases are always employed for the same purposes. I wish to suggest that there are actually two different philosophical uses of “central” cases. Usage type A is well known.
[Central cases] are privileged in two respects. First, the central cases are privileged insofar as a theory of the phenomenon is primarily concerned with explaining the important features of these cases. Second, the central cases are explanatorily prior to those instances of the phenomenon that are not members of the set of central cases. (Langlinais and Leiter 2016, p. 682)
This requires supplementation. For one thing, central cases are also used to help explain “peripheral” cases. A philosopher adjudges φ to be a central case of X. He or she then compares φ with ψ, a contested case of X. Using φ’s features as a benchmark, the philosopher can look at the features ψ does or does not possess in order to note the overlap, similarities, or differences in the two cases’ features.38Second, philosophers additionally use φ here as a basis for identifying or disqualifying other candidate cases from counting as X, i.e., to help determine whether ψ really is a token of the type X.
For example, much of H.L.A. Hart’s exposition of LAW in The Concept of Law concerns the “modern municipal” legal system. He then uses the municipal system qua central case to compare with -what he deemed to be- peripheral cases, such as international law.39 (Hart also claimed to present some necessary conditions of LAW or a legal system.40 So, whether or not one believes that the central case method must stand in contrast to analytic definitions or family resemblance approaches to concepts, it should be noted that legal philosophers sometimes take a syncretist, or methodologically pluralist approach.)
Philosophers, I wish to suggest, also use central cases in yet another way. Usage type B: some (supposedly) uncontroversial cases, understood “pre-theoretically”, are used as benchmarks for evaluating a philosophical account. Such cases are treated as part of an adequacy condition: a philosophical theory’s inability to account for them is treated as a reason for adjudging it to be a failure. Just like those who levy a counterexample to an analytic definition, philosophers who present such cases would not accept that they, unlike perhaps other counterexamples, merely count as exceptions to the theory; for the presenters rather believe that these sorts of cases suffice to falsify the theory.
The difference between the two types of central case employment can be summed up thus. Usage type A treats case φ as a tool for: explaining both other cases and certain things/phenomena of which they are cases; for determining whether those other “peripheral” cases really are genuine tokens of type X; and for delimiting the focus of a theory about X. Usage type B determines (or assumes) that case φ is not only an incontestably genuine token of type X, but one of such importance that -perhaps unlike other cases that might serve as counterexamples- its inclusion is deemed to be indispensible to a successful account of X while its exclusion marks the account’s failure.
Here, to my mind, are some examples of usage type B. In response to Raz’s thesis that law claims supremacy over all other normative systems governing or affected by those subject to it, Brian Tamanaha presents the medieval European legal situation as a (set of) counterexample(s):
Raz’s strictures would force the conclusion that there were no legal systems throughout much of Europe during the medieval period. During this period several recognized bodies of law coexisted -including ecclesiastical, feudal, merchant, manorial, royal, and municipal- which did not typically claim to regulate all types of behaviour, and did not claim supremacy over all other normative systems. (Tamanaha 2001, p. 139)41
Regardless of whether Tamanaha’s claims are correct, his cases are not presented as mere exceptions to Raz’s thesis; they purport to falsify it. In other words, Tamahana would not accept, as a potential reply, the claim that these cases are either mere aberrations, or just insignificant outliers that Raz’s account can comfortably ignore.
As a second example, pace the will theory of rights, Neil MacCormick raises the cases of children’s and mentally incompetent persons’ legal rights (MacCormick 1977, 1982). The will theory is not merely deemed to be under-inclusive for (supposedly) excluding such cases, but to be false for that very reason. MacCormick’s argument is not simply a morally or politically evaluative judgement of the consequences of the will theory’s excluding certain sorts of agents from rights-bearing status. He is also claiming that it is an analytic or explanatory failing to be unable to account for such cases. (Whether or not the will theory can actually account for them is irrelevant for our purposes. Again, what matters are rather how and to what ends MacCormick presents these cases.)
One might of course challenge the idea that this second type of case usage is really a matter of the central case method. What makes it so, rather than, say, a category fitting in between central cases and other sorts of cases that (ought to) count as exceptions to an account but which do not suffice to falsify them? Why, moreover do these instances not simply represent the method(s) of actual and hypothetical cases discussed in section 2.2?
One reason for deeming these to be instances of central cases is their being presented as being indispensable to an account -regardless of whether there is (e.g., scholarly) concurrence about their status as such. A philosopher could, after all, treat one case as being indispensable to a theory and a second as being genuine-but-nonethelessignorable for theoretical purposes.42 Regardless of what you think the most apt label is for Usage type B, it is important to note the very existence and practice of using cases for such purposes.
3. Some Methodological Conundra
3.1 Do Legal Concepts Bear Necessary Features?
The issues concerning central cases only scratch the surface, as a great many methodological problem points in analytic (legal) philosophy revolve around the use of examples and intuitions. This section addresses several of them. For one thing, many theoretical/doctrinal disputes in philosophy reflect the fact that there is no agreement about what a concept is, what kinds of features it can admit of, or how to determine what those features are. For example, despite the legion of objections to the practice, quite a few analytic legal philosophers continue to make claims about concepts’ “necessary” features -without having definitively established that concepts actually bear any. Anti-essentialists, of course, bemoan the practice.43 Even so, one might think it odd to perpetuate dogged disputes about what features concepts (can) possess given the lack of clarity about what a concept even is.
Now, some philosophers nevertheless provide the beginnings of a plausible argument that, even if concepts are culturally, linguistically, or temporally (e.g., epochally) delimited, it does not follow that they lack essential properties. Quite a few legal philosophers, for example, hold that the concepts in their area of inquiry (LAW, A COURT, A RIGHT, etc.) are historically or culturally contingent and can evolve over time. Hence, a certain feature can be deemed to be “necessary” to a concept, as opposed to being merely contingently related to it, even though the concept itself may be inessential.44
This has a prima facie appeal. That is, until these philosophers go on to claim to have presented analyses of “our” concept of X, the “Western” concept of X, the concept of X of the early modern period, etc., as if those delimiting terms necessarily reflect singular notions. But who counts as the “our”? Is the concept jurisdictionally delimited, regionally so, civilizational, or just individualistic? How can it be established that it is either a concept with a given linguistic-temporal boundary, or instead one that has obtained across different eras (centuries? millennia?), peoples, and/or cultures, even if modified slightly?45 In other words, even if one buys the idea of contingent-concepts-bearing-necessary-features, it remains unclear how to delimit their “spatial” or temporal extensions.46 Without this information, it seems impossible to identify what a conceptual clarification or analysis actually applies to.
3.2. Intuitions and their Clashes
Philosophers claim to use their intuitions about cases to determine a concept’s extension, to sieve the conceptually necessary from the contingent. This sometimes involves using actual and hypothetical cases, the latter exemplified by Raz’s angels case above. Even assuming arguendo that some concepts bear necessary features, however, both the technique and tools used to sieve them from the conceptu ally contingent are suspect. If philosophers really must employ their intuitions, then their analyses may be completely flawed for utilising unreliable sources.
We can, to be sure, test our intuitions about possible cases to fix the concept of “space” or the concept of “representational content,” but since such intuitions are hostage to parochial bias, lack of empirical knowledge, and all variety of selection effects, there is no reason to think such intuitions and their deliverances deserve epistemic weight. (Leiter 2007, p. 184; internal citations omitted.)47
There also seems to be a significant difference between what conceptual analysts purport to do and what they actually do. Particularly, determining that a candidate case of X fails to actually constitute a genuine instance of X for lacking feature ψ seems to be a matter of judgement -but not a deductive one. There being no “pretheoretical” agreement about what counts as a genuine token of a type, how philosophers go about their analyses -in part by employing tokens as tools- is the opposite of what they claim to be doing.
On the classical theory of concepts, we decide whether to apply a concept to an object by comparing the object’s properties with the properties listed in the concept’s definition. But philosophical practice suggests the reverse: we intuitively judge whether a concept applies to an object, independent of any definition, and we evaluate a definition by how well it fits with the correct usage of the concept. (Huemer 2015, p. 53)48
For example, Raz’s argument that the society of angels has “law” reflects his judgement that the example really constitutes a hypothetical case of law, and not of something else. Others disagree, and therefore deny that the Angels case constitutes a bona fide counterexample to the view the law is necessarily coercive.49 Conceptual analysis alone probably cannot resolve such disputes (aka “clashes of intuitions”).
It might be suggested that the method of reflective equilibrium can alleviate philosophical worries about intuitions.50 Here is how the “narrow” version of reflective equilibrium is supposed to work.51 First, identify a set of intuitions/beliefs about a given matter, e.g., the concept of LAW.52 Second, try to generate a set of principles and/or theories that systematize and account for those intuitions/beliefs. This process will likely expose conflicts: (I) amongst one’s initial intuitions; (II) amongst one’s initial set of theories/principles; and (III) between those initial intuitions and theories/principles. Therefore, reflect upon those intuitions and principles in order to eliminate, add, or revise some of them until you are left with a coherent set (i.e., consistent based on their contents). On the “wide” version of the method, by contrast, one seeks to place into equilibrium one’s initial beliefs about a matter, theories or principles about that matter, and some third consideration: whether that be intuitions about some other matter, theories of some other sort, or something else.53 “Reflective equilibrium” is actually the end-point of this deliberative process (Daniels 2016). While that might turn out to be an unachievable ideal state (Cath 2016, p. 215), proponents nevertheless deem the method to be valuable, if not indispensible.
There are reasons to doubt reflective equilibrium’s merits. The critiques are well known, but here are some important ones. For one thing, on a coherentist understanding, the method can incorporate beliefs that are known to be dubious or false (Stitch 1998, p. 100).
For another, it is questionable whether you can compel yourself to believe all sorts of things, such as whether an intuition is inaccurate (Cummins 1998, p. 125). Third, privileging one’s own, or one’s culture’s intuitions over others for the sake of reflection has been accused of evincing a form of bias, be it ego- or ethnocentricity, or some other form (Cath 2016, p. 222).54 Fourth, it is wholly unclear how one could establish that one’s beliefs are actually in a state of wide reflective equilibrium (Stitch 1998, p. 101).
There are, I think, further worries of tasking reflective equilibrium to resolve issues surrounding the reliability of intuitions as data. First, since a given counterexample may be insufficient to falsify a theory or principle under the method (Cath 2016, p. 228), on what grounds are we to determine which intuitions and which theories/principles to retain, discard, or amend? Second, if intuitions are unreliable qua data (let alone as evidence), why not deem them to be defective tools for the purpose of trying to achieve a reflective equilibrium? Why think that a given intuition can be remedied by employing other instances (i.e., intuitions about cases, the weight of a case, the explanatory power of a theory, one theory’s simplicity relative to another) in order to decide upon what to keep, discard, or amend? If these charges are sound, and since the method calls for mutual adjustment of intuitions and theories/principles, it would seem that a coherentist account of reflective equilibrium for its own sake is no real virtue, and that undertaking the method on a truthoriented approach would be a fool’s errand.
3.3. What Does a Counterexample Do?
As already seen above in the contexts of assessing analytic definitions and using central cases, what does a counterexample do and entail? Does it show that an account or definition of X: is wholly mistaken; is under-inclusive but salvageable; or that it faces a prima facie challenge but is otherwise unaffected by the counterexample’s existence? In relation to rules, propositions, and theories, when does a counterexample: (A) constitute an exception to them; (B) delimit them; (C) falsify them; or (D) have no impact upon them? Further, if more than one counterexample is required for falsification, how many are needed? What is the threshold? What are the criteria?
Like everyone else, philosophers seem to lack a shared paradigm governing a counterexample’s impact. Some believe that counterexamples can be used to examine a concept’s extension and can serve as (at least prima facie) reasons for disbelieving claims of certain features being “necessary” to a concept. They take either a single counterexample, or some unspecified number of them, as sufficient grounds to falsify a theory, an analytic definition, an account of a concept (e.g., by presenting a purported central case as a counterexample), or a proposition. Other philosophers do not, proposing error theories instead. Still others think counterexamples merely circumscribe or delimit a theory, or mark exceptions. Others still are not bothered by counterexamples at all.55
Determining how to account for the seeming hierarchy (or hierarchies) of cases, and the differently tiered cases’ employment and respective effects appears to be under-discussed in legal philosophy, and in meta-philosophy more generally. Philosophers seem to intuit their way to a hierarchy of cases based on how important the instances are to a concept, theory, practice, etc., and how weighty a role they can serve qua counterexamples, i.e., as exception-carvers, circumscribers or delimiters, or falsifiers. The use of cases also gives rise to another methodological puzzle: why think that a given counterexample evidences an account’s bearing exceptions, or being false, rather than the counterexample itself being a “degenerate”, “imperfect” case? Both legal positivists and normativists (i.e., interpretivists, natural lawyers, etc.) employ the central case method(s). With the notable exception of John Finnis (i.e., his account of the central case of the internal point of view), however, many philosophers do so without fully explaining or justifying their selection, i.e., what makes theirs a bona fide “central” case, let alone try to establish the technique’s validity.56
3.4. Why Re-Craft Concepts?
As mentioned above, some philosophers believe they are adept at re-crafting concepts. Is it worth undertaking such projects, though -especially if the reformed product does not track the usual ways people actually employ the (unreconstructed) concept? “Conceptual clarification”, in this sense, may deleteriously affect what researchers get out of their queries (Leiter 2011, p. 516). For example, some Hohfeldians favour restricting the concept of A RIGHT to a Hohfeldian claim.57 As they admit that Hohfeld’s conception is itself a “clarification” or “correction” of ordinary and lawyerly discourse, however, why believe we can get to the truth of the matter about rights by restricting our focus to it?
Bald faith in empirical work is no escape from the difficulties regarding how best to determine what a concept really is, let alone how it should be clarified. Additionally, if (at least some) counterexamples do not suffice to distinguish what is conceptually necessary from what is conceptually contingent, yet legal philosophers continue to present concepts/conceptions, of LAW, say, containing only those purportedly necessary features -ascertained via conceptual analyses- might these not also be distorted pictures? Might this not be, for example, what Raz’s critics could say about his philosophical conception of LAW, i.e., it being in part the product of the Angels case upon his viewpoint?
4. Meta-Theoretical Desiderata
Meta-theoretical desiderata are norms that can be used to help construct, evaluate, and compare rival “conceptions” and theories. Though usually found in the philosophy of science, analytic legal philosophers have invoked such desiderata a lot recently. Some legal positivists particularly appeal to them in order to rebut a certain methodological critique levied against them by their “normativist” rivals (e.g., natural lawyers and interpretivists),58 which will be addressed in the next section. Examples of meta-theoretical desiderata for theories include:
Simplicity: We prefer simpler explanations to more complex ones, all else being equal (i.e., without cost to other theoretical desiderata).
Consilience: We prefer more comprehensive explanations -explanations that make sense of more different kinds of things- to explanations that seem too narrowly tailored to one kind of datum.
Conservatism: We prefer explanations that leave more of our other well confirmed beliefs and theories intact to those that do not, all else being equal (i.e., without cost to other theoretical desiderata). (Leiter 2009, p. 1239)59
Wayne Sumner provides the following norms for assessing philosophically constructed conceptions:
Extensional adequacy: a conception of a concept is extensionally adequate when it includes every item which seems preanalytically to be an instance of the concept and excludes every item which does not.
Theoretical adequacy: comparing the merits of two conceptions [. . . ]. If one of these maps (of the theoretical terrain) identifies more significant theoretical boundaries than the other, and if it seems advisable to use the concept [. . . ] to mark these boundaries, then we will have good reason for preferring the conception which yields that map. (Sumner 1987, pp. 49-50, 96-97)
As mentioned in Section 2, many legal philosophers take the ordinary understandings of concepts, or of linguistic practices, as an indispensable starting point for theorisation. However, they also sometimes employ them as a metric by which to evaluate an account’s soundness, e.g., asking how intelligible the theory is to those who use such concepts, and how widely it diverges from their beliefs (Barber 2015, p. 806). Raz and Dickson additionally believe that people use the concept LAW to help them understand themselves. Hence, for them, a criterion of explanatory adequacy for legal theories is whether they pick out a concept’s important features, which are required for capturing (and advancing) the way in which people understand themselves.60
Sean Coyle posits that a philosophical account must demonstrate conformity with “received” understandings of our concepts, but nevertheless claims that:
We are, of course, permitted to abandon that received understanding in favour of a modification of our concepts, but any such modification would have a profound impact upon our ordinary discourse about [e.g.,] rights. Whether such a departure is justified therefore depends upon two things: (a) whether such talk is coherent; and (b) whether the departure significantly enriches our talk of [e.g.,] rights, or enhances our existing understandings [. . . ]. (Coyle 2002, p. 33; cf. pp. 21, 27)
4.1. Difficulties in Application
These all seem like helpful and sound guidelines or metrics. Unfortunately, determining what counts as the successful application or utilisation of any such desideratum, or combination thereof, is unclear. How a legal theory can meet any of them is left unexplained. It is uncertain: how to apply the desiderata; how to quantify them; how to show when a theory meets them; how to prove that theory A better meets them than theory B; or what weight to affix to them in order to show which matters are of greater philosophical concern when comparing two or more theories. This is not simply a matter of being unable to show whether theory A or B better meets desideratum φ. Even if it could be shown that theory A better meets Dφ than does theory B, if B better meets Dψ than A does, which of the two desiderata is weightier for the overall comparative evaluation, Dφ or Dφ?
This is not to claim the impossibility of the tasks, i.e., hold that shared metrics and paradigms for establishing how to convincingly meet these candidate criteria and desiderata could never, even in principle, obtain. It is merely to note that they have not yet even been attempted. Just like the issues surrounding counterexamples and central cases, the reasonable employment of such desiderata seems -inescapably- to be a matter of having to make (scholarly) judgements (or “intuition pumping”). Indeed, the whole process of theorisation involves a great many more judgement calls than could easily be enumerated here. As Andrew Halpin puts it:
[I]n too many ways the judgement of the theorist rather than the imperative of methodology will be a determining factor, in shaping what feature of the subject matter is regarded as worthy of theoretical inquiry, or in shaping the theoretical construct that is regarded as offering greatest illumination on the subject matter as the theorist perceives it. Even at the low level methodology of metatheoretical precepts there remains room for the theorist’s judgement to influence the impact those precepts will have upon the construction of theory. And in recognizing technical semantic or philosophically sophisticated analytical approaches, the pervasive influence of the theorist’s judgement is still to be found: in selecting a particular type of semantics; or in discerning an essential property and elaborating its quality in the tension between its recognition and the basis for its selection. Even where the apparent strictures of methodology are the strongest, in directing the theorist to one side or another of the normative/descriptive divide, we have seen that the particular position adopted here is influenced by the choice of the theorist over how to focus on the subject matter of the theory. (Halpin 2008, p. 617)
5. Concept Formation and Selection: A Wholly Normative Affair?
Let us return to the concept CONCEPT, the features concepts bear, and the means of their discernment. A staple methodological dispute amongst legal philosophers is whether they must make normative -“normative” in the sense of being morally or politically evaluative- judgements when (re-)forming or selecting concepts. Is it possible to describe or interpret the concept X without engaging in normative judgements about (i) what X is, or (ii) its value, worth, or goodness?
No legal philosopher thinks data can just be identified and described “as is”. Philosophers must judge what count as such and how to interpret them. Those who come closest to the “as is” view, legal positivists -or, at least contemporary ones- claim only to defend the following proposition: the law61 is determinable simply by looking at its social sources, without needing to assess its merits (Raz 2009b, pp. 47-48; Gardner 2012). This is false to the extent that positivists are also (generally? necessarily?) committed to the idea that one can come to know, analyse, and present an account of X without adjudging X to be morally good or bad, valuable or valueless. They additionally seem to assume that the “folk” concept or “common understanding” of X (e.g., H.L.A. Hart’s explication of the educated man’s understanding of what LAW is) is discernible and analysable without (first) morally evaluating it.62
Pace positivists, “normativist” legal philosophers (i.e., interpretivists and natural lawyers) think it is impossible to know what X is without making “normative” -again, in the sense of being morally or politically evaluative- judgements about what it is. These include assessments of X’s point or purpose. To their minds, there are no “anormative” concepts in legal philosophy: every concept that is germane to legal theory is inseparably entwined with, and shaped by, evaluative features and judgements about its nature. Hence, the process of determining a concept’s content and contours is an inherently moral/political enterprise.63
Normativists nevertheless disagree amongst themselves about why this must be so. Ronald Dworkin offers a normativist method called constructive interpretation: provide an account of X that fits most of the facts of a practice and that shows it in its best light vis-à-vis its point or purpose.64 There are three stages to constructive interpretation. The first involves information collection, which Dworkin calls the “pre-interpretive” data. However, even (some of) the preinterpretive data must be interpreted, as it were.65 Rather than merely presenting a mere propaedeutic to undertake research in this fashion, Dworkin seems to suggest that constructive interpretation is what all social (including legal) philosophers are really doing, regardless of how they otherwise conceive of, or characterise, their work.
John Finnis presents an alternative normativist methodology, one grounded in the natural law tradition. Unlike Dworkin, he does not think legal theorists must present their subject matter in its best light. However, only the right sort of person, one with the appropriate sort of mindset, can properly undertake social theorising. Finnis endorses -to some extent- (legal positivist) H.L.A. Hart’s claim that a legal theorist must utilise a given community’s or system members’ “internal point of view” in order to better understand its norms.66 Without it, a theorist cannot understand or explain either how the people use rules to praise and blame each other, or critical features of how such norms shape such people’s lives. (Without such information, in other words, a theory would be underinclusive and explanatorily inadequate). Finnis goes farther, though. He believes there is an indispensable central case of the internal point of view: that of the practically wise person, the spoudaios (Finnis 2011, pp. 14-19). Only such a character can (A) see law’s point (which is to solve coordination problems and create institutional structures that allow for certain basic goods to come about that otherwise would not) (2011, pp. 85-90, 245-250, 351-352); and (B) only he or she can see how all other, less practically-oriented agents internalise (or fail to, or reject) the relevant norms and utilise them. (By contrast, other kinds of agents cannot fully grasp the practically wise person’s viewpoint (2011, p. 15, n. 37)). What is often missed in discussions of Finnis’ work is that, not only does the spoudaios select data and shape a theory based on that central case point of view, but he or she also shapes the very concepts employed in the account based on that privileged point of view.67
The challenge normativists raise to legal positivists is whether (legal philosophical) concepts/conceptions can either be formed or selected without making morally or politically charged evaluations. Their debate with positivists about concept selection, and about whether the law is determinable without making those sorts of value judgements -be it in terms of a constructively interpreted account, or via the purported central case of the internal point of view- has dominated analytic legal philosophy for the last forty years. Again, equally important, yet seemingly neglected by scholars, is the issue of what role such morally or politically evaluative judgements play in the very formation of theorists’ (re-)conceptions (that is, if and when philosophers do offer replacement concepts/ions).
This article is not the place to offer a full-blown rebuttal to normativists about the concept (re-)formation or selection processes, or about which viewpoint to adopt qua social theorist. Still, there are a few points worth mentioning. First, while normativists go too far, both Dworkin and Finnis offer convincing reasons why some sort of interpretation is involved in both the selection and very formation of concepts for philosophical accounts.68 Their critiques of legal positivism’s problems establishing the moral-political neutrality of concept formation, selection, and understanding have, in the least, not been completely rebutted.
Legal positivists offer the following rejoinder. It is true that some modicum of evaluation is needed to determine what count as the data, to determine how concepts are to be clarified, etc. Still, this can be done without assessing the moral or political worth or goodness of those features. Philosophers’ evaluations here are “normative” -just not in the sense of being morally or politically evaluative: their evaluations simply concern “meta-theoretical” desiderata. Thus, it seems possible to be able to interpret a concept without making moral judgements about its worth, goodness, or point.69
As the argument in Section 5 suggests, however, baldly appealing to meta-theoretical desiderata as a counter to normativists about the kind of normativity that must play a role in concept formation and selection for the purposes of legal theory is inadequate. Positivists must do more work to make the case that judgements concerning meta-theoretical desiderata alone suffice to undertake legal theorising.
Although underdeveloped, there nevertheless is merit in the positivists’ rebuttal. They must (and, I think, can) show that the selection and employment of such desiderata are neither the function of morally or politically evaluative judgments, nor predicated upon them. For even if philosophers are biased about how they shape or select their conceptions or definitions, there is no good reason to think that such biases must either be formed by, or reflect, moral or political convictions. For example, defending the idea that a duty is a weighty reason rather than an exclusionary one need not be for moral or political reasons. In doing so, you may be correct or mistaken, but you might have decided thusly simply because you believe (rightly or wrongly) that there is no such thing as exclusionary reasons.
Furthermore, there is no need to employ constructive interpretation or a central case of the internal point of view. Pace Dworkin, legal philosophers need not look at anything in its best light, let alone present it as such -especially if they deny it has one.70 How, moreover, could that approach even work with regard to the selection and interpretation of “pre-theoretical” data unless one had already undertaken the other interpretive stages? Dworkin himself notes that the data of the pre-interpretive stage itself requires interpretation (and therefore does not really view his three stages as actually being “stages” that follow a fixed sequence). Even so, his method for doing so seems to preclude constructing that data in its best light if the work product’s concepts are to be recognisable and salient to a given community.
I enclose “preinterpretive” in quotes because some kind of interpretation is necessary even at this stage. Social rules do not carry identifying labels. But a very great degree of consensus is needed -perhaps an interpretive community is usefully defined as requiring consensus at this stage- if the interpretive attitude is to be fruitful, and we may therefore abstract from this stage in our analysis by presupposing that the classifications it yields are treated as given in day-to-day reflection and argument. (Dworkin 1986, p. 66)
The method is also unnecessary. For example, fully understanding
WEIGHTINESS as a feature of A DUTY does not require that either be presented in their best lights.
Pace Finnis, there is no need to employ the (purported) central case of the internal point of view. One reason is because law may not be the exclusive, let alone the best, means for providing the relevant coordination schemes for generating the basic goods. An anarchocapitalist would deny this, at any rate. To hold otherwise (i.e., that law in its best cases does so) is therefore to beg the question, methodologically. In response, Finnis might say that even if there are alternative (and sounder) means for generating such schemes or procuring such goods, if we want a philosophical account of law, then this is how we must approach the subject. This is false because it presumes a core teleological function that law may not have. For example, understanding whether A DUTY includes the feature of weightiness requires neither that it be seen from the perspective of, nor delineated by, the practically wise person (spoudaios). Do we really need the spoudaois’ perspective of why a given duty, or set of duties, may (or may not) be weighty to understand WEIGHTINESS? (Note the difference between that question and asking whether we need the central case of A DUTY to understand WEIGHTINESS).
Furthermore, in attempting to defend Finnis’ view, George Duke has instead undermined it somewhat (Duke 2003, p. 189). Duke notes that it is the sophos who reasons from first principles, not the practically minded spoudaios (or phronemos). If this is correct, then how could the spoudaios be the appropriate person to do the work of concept (re-)formation and selection, rather than the sophos?
6. Conclusion
This article addressed some basic methodological problems and questions affecting analytic legal philosophy. Justifying the practice and moving the discipline forward requires addressing them head-on. First, what effects do or should counterexamples have upon a rule, proposition (e.g., about what is “necessary” or merely contingently related to a concept), or theory? When do counterexamples carve exceptions, when do they delimit, and when (if ever) do they falsify a theory, proposition, etc.? Is the central case method (or methods: I identify two types of usages), which also relies on the use of examples, of any merit? If so, what are the grounds for identifying a genuine instance? Does “the” method also rely upon the use of counterexamples?
The article then shows why that set of questions applies equally to matters surrounding the (i) selection and (ii) (re-)formation (“clarification”) of concepts for philosophical accounts. Are philosophers really doing what they claim to be doing when undertaking conceptual analyses? (I nevertheless argue that “normative” -in the sense of morally or politically evaluative- modes of concept formation, selection, and theory construction are unnecessary). Additionally, how can one establish: that a legal philosophical account satisfies a particular meta-theoretical desideratum, that it does so better than a rival account, or how various desiderata are to be weighed relative to each other?
While the article’s main aim concerns the mere elucidation of these problems, and does not pretend to have any grand solutions, it nevertheless suggests that all of these issues -of cases and counterexamples, their employment in analysis and clarification, and the employment and weighing meta-theoretical desiderata, all rely on making scholarly judgements. The pervasive nature of these judgements warrants far greater attention than has heretofore been afforded.71
