Abstract
Jurisprudents often conceive their task as requiring investigating “the concept of law.” What is, however, the concept of “(the) concept of law”? What do legal philosophers do when they investigate the concept of law? What do legal philosophers mean when they set for the concept of law? Is conceptual analysis—apparently, the primary tool for any search about the concept of law—a useful instrument for jurisprudential enquiries? The chapter purports to cast some light on these issues by way of a meta-philosophical investigation.
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Notes
- 1.
In the words of Uberto Scarpelli (1955), p. 35: “the definition of law, and the analysis of the relationships between the concept of law and the concepts of justice, morality, economics, politics, etc., are the matter of an ancient and always renewed dispute. ” (my translation from the original text in Italian, ndr). Likewise, according to Robert Alexy (2006), p. 281: “The debate over the concept and the nature of law is both venerable and lively. Reaching back more than two millennia, it has acquired in our day a degree of sophistication hitherto unknown.”
- 2.
Throughout this paper, I will deal with the concept or concepts of law conceiving them as linguistic entities: as the meaning(s) or communicative content(s) associated to the word “law” and corresponding expressions in other natural languages. In so doing, I do not wish to enter into the ontological dispute about the nature of concepts (whether, in particular, they are psychological entities or something else)—which, by the way, is often loaded with obscurity, baffling definitions, metaphors, and mental cramps. I will assume that, whatever conception we take, concepts always have a linguistic side: whatever they are, they are, and work as, the meaning(s) or communicative content(s) of “descriptive”, “predicative”, “categorical”, or “class” terms. On the ontologies of concepts, see e.g. Carnap (1932), pp. 60–81; Margolis and Laurence (2011), para 1; Lalumera (2009), pp. 29–95; Moreso (2017), pp. 63–99, drawing on Margolis and Laurence (2011), and referring to the conceptual pluralism about the law advocated by Carlos Santiago Nino (Nino (1994a), Nino (1994b)) and Ronald Dworkin (Dworkin (2006) and Dworkin (2011)). In passing, Gottlob Frege appears to dismiss the ontological issue in the turn of a few, crystal-clear, lines: “The word ‘concept’ is used in various ways; its sense is sometimes psychological, sometimes logical, and sometimes perhaps a confused mixture of both. Since license exists, it is natural to restrict it by requiring that when once a usage is adopted it shall be maintained.” Frege (1892), p. 42. In my enquiry I also considered Alexy and Bulygin (2001), Austin (1961), Bernal Pulido (2011), Burazin et al. (2018), Carnap (1956), Castignone et al. (1994), D’Almeida et al. (2013), Farrell (2006), Hart (1983), Jori and Pintore (2014b), Laslett (1956), Quine (1981), Raz (1983), Raz (1994), Raz (2007), Raz (2009a), Schilpp (1963).
- 3.
See e.g. Tarello (1993a), pp. 5–10.
- 4.
- 5.
See e.g. Williams (1945), pp. 134–156; Kantorowicz (1958), pp. 37–49; Hart (1961), pp. 209–212; Nino (1994a, b), pp. 17–42; Jori and Pintore (2014a), pp. 45–46, where they deal with the stipulative approach as “idiosyncratic conceptual manipulation”, leading to “idiosyncratic concepts of law”, as opposed to the “minimal”, “common sense” concept that can be identified by means of lexicographic enquiry. A stipulative approach, based on sound empirical knowledge about legal experience, is apparently endorsed also by Frederick Schauer in his crusade for considering coercion “not strictly necessary but so ubiquitous that a full understanding of the phenomenon [of law, ndr] requires that we consider it” (Schauer (2015), p. 40; see also Schauer (2018), para 1: “humans can remake or modify the very concept of law that exists within some community”).
- 6.
- 7.
In perhaps more precise terms, a lexicographic concept of law is true of the word “law” when the corresponding lexicographic sentence is true: namely, when a sentence of the form “According to the linguistic uses of ‘law’ in time ti and place pi, ‘law’ means li” is empirically true.
- 8.
Acting as legal lexicographer, and using the (Benthamite) technique of contextual definition or definition in use, Tarello (1993a, b), pp. 5–10 identifies four different meanings of “diritto” in contemporary Italian legal experience. When it occurs in sentences like “Il diritto è dalla mia” (“The law is on my side”), “diritto” (“law”) means law in an objective sense: i.e., it refers to a set of social norms having, as we shall see, a certain typical social function. When it occurs in sentences like “Ho diritto di fare ƒ” (“I have the legal right to do ƒ”), “diritto” refers, contrariwise, to a subjective, favourable, legal position. When it occurs in sentences like “Il diritto di proprietà è riconosciuto in Freedonia” (“The law of property is recognized in Freedonia”), “diritto” refers to a legal institute, i.e., to a certain sub-set of positive legal norms. Finally, when it occurs in sentences like “In caso di morte del Presidente il Vicepresidente subentra di diritto” (“In the event of the President’s death, the Vice-President steps in by law”), “diritto” (“law”) refers to some legal automatism. It must be emphasized that, according to Tarello, the identification of lexicographic concepts of law is to be considered as the first, sound step in a virtuous analytical enquiry. The second step, which already belongs to conceptual analysis in a reconstructive function, consists in bringing to the fore the conceptual connexions between the four actual meanings of “law” previously identified. These connexions allow for regarding the concept of law as a set of social norms (the law in an objective sense) as the basic concept, which the other three concepts presuppose. A legal right (“diritto in senso soggettivo”) is a right conferred by some norm of objective law. A legal institute, like property or contract, is nothing else but a sub-set of norms of an objective law. A legal automatism is necessarily established, again, by some set of norms of objective law. The third and last step of Tarello’s conceptual investigation belongs to a clarification or elucidation approach to the concept of law. Here, by way of clarification of the concept of law in use in actual Western legal culture, he sets forth a functional definition of “law” in the objective sense of the word. In his own terms: “the object or phenomenon to which the word law (and the corresponding words in other modern languages) refers” consists of “the set of rules that, in any society whatever, regulate (a) the repression of the behaviours considered as socially dangerous […]; (b) the allocation of goods and services to individuals and communities; (c) the institution and ascription of public powers” (italics in the text, ndr). Tarello also adopts the same approach, binding lexicographic research to clarification enquiry, in relation to the notion of “positive law” in the Italian legal culture of the 1950s and 1960s (see Tarello (1993b), pp. 109–119).
- 9.
One of the prominent torchbearers of the clarification approach to the concept of law has been, to be sure, Herbert Hart. As it is well known, Hart insists that the purpose of clarifying or elucidating the concept of law (“our” concept of law) should not be meant as requiring to provide a definition of law: i.e., a set of rigid rules about the correct use of “law”, to be adopted for regulating people’s linguistic behaviours. He thinks, indeed, that people do already know how to use “law” (and related legal words), but also that, as it often occurs, they do not (fully) understand the phenomenon it refers to (“In law as elsewhere, we can know and yet not understand”: Hart (1954), p. 21). That is the reason why, in The Concept of Law, he sets to “further the understanding of law, coercion, and morality as different but related social phenomena.” Hart (1961), p. vi. That is the reason why, always in The Concept of Law, while dealing with international law, he rejects the definitional approach and stands for an analysis that purports to bring to the fore (make “explicit”) “the principles that have in fact guided the existing usage” of “law” and “inspect” their “credentials.” Hart (1961), pp. 214–215. These ideas of Hart, as it is well known, were developed in a direction conceiving of legal philosophy as an enquiry not (solely) on the concept of law, but rather on the nature or essential or necessary properties of law. See e.g. Raz (2009b), pp. 17–46, 91–106; Shapiro (2011), pp. 9–32. The position of Raz, however, looks close to the idea of a rational reconstruction of the structure of legal thought as advocated by Hart. For instance, he insists that an enquiry upon the nature of law consists in “inquiring into the typology of social institutions, not into the semantics of terms. We build a typology of social institutions by reference to properties we regard, or come to regard, as essential to the type of institution in question.” Raz (2009b), p. 29, italics added, ndr. Furthermore, he makes clear that an enquiry upon the nature of law is an enquiry about “the nature of our self-understanding […] It is part of the self-consciousness of our society to see certain institutions as legal. And that consciousness is part of what we study when we inquiry into the nature of law.” Raz (2009b), p. 31. Raz leaves “the question of the kind of necessity involved unexplored” ((Raz (2009b), p. 91, italics added, ndr). Apparently, however, the “necessary truths” about the law that, in his view, legal theory should be looking for are the truths about the law that appear to be so upon an inquiry on societies’ legal self-consciousness (Raz (2009b), p. 98: “legal theory attempts to capture the essential features of law, as encapsulated in the self-understanding of a culture”). On the same footing, in view of getting to law’s “necessary and interesting properties”, Shapiro adopts a conceptual analysis approach, the starting point of which is provided by a set of legal “truisms.” Shapiro (2011), pp.13–22. On Hart’s and Raz’s approach to the concept of law, see also, in the present book, Etcheverry (2020) and Martin (2020).
- 10.
For instance, Hart’s proposal of conceiving the law of municipal legal systems as the union of primary rules of conduct and secondary rules of change, adjudication, and recognition (Hart (1961), chs. V and VI), can be counted among jurisprudential successes, at least so far as contemporary common law legal culture is considered.
- 11.
In his posthumous work The Definition of Law (Kantorowicz (1958), pp. 37–49), Hermann U. Kantorowicz advocates “conceptual pragmatism”, “conceptual relativism”, or Carnap’s “tolerance principle”, against “verbal realism.” The latter he sees as a mysterious quest for the essence of the things the concept of which is to be defined: “Nobody […] has [ever] been able to explain what the metaphysical term ‘Wesen’ or ‘essence’ means, and nobody has [ever] been able to point to a method for teaching the intuition necessary to grasp it” (Kantorowicz (1958), p. 41). Conceptual pragmatism, contrariwise, is to be regarded as the only approach compatible with truly rational enquiries. Following it, Kantorowicz comes to stipulating a concept of law suitable to identify the matter of “legal science”, from classical antiquity to modern times, from China and India to Europe (Kantorowicz (1958), pp. 64–66, 106–157). Hart considers a stipulative, pragmatic, approach to the concept of law as the only sensible approach, when he comes to analysing Gustav Radbruch’s critique to the positivist concept of law (see Hart (1961), pp. 209–212). Another instance of pragmatic conceptualism about the concept of law can be found in Carlos Santiago Nino’s Derecho, moral y política. Una revisión de la teoría general del derecho, where he advocates conceptual pluralism as the sole adequate answer to the variety of problems besetting legal theory. See Nino (1994b), pp. 17–42.
- 12.
- 13.
Essentialist legal philosophers reject dwelling in lexicographic enquiries. Nonetheless, they may consider such enquiries as a necessary, preliminary step to capturing the essence of law and formulating its proper concept. Starting from the statement that “Concepts, as always on the path to the nature of those things to which they refer, are in part parochial or conventional and in part universal”, i.e., “non-conventional”, or endowed with an “ideal dimension”, Robert Alexy concedes that “concepts as conventional rules of meaning” play an “indispensable” role in “philosophical analysis”, since they make possible the very “identification of the object of analysis. Without a concept of law qua conventional rule, we would not know what we are referring to when we undertake an analysis of the nature of law.”
- 14.
Unless, of course, the legal philosopher aims at bringing to the fore the properties of the phenomenon “law” which are in fact regarded as essential in a certain legal culture at a certain time. In which case the enquiry is a piece of cultural sociology, usually in view of ideologies’ critique and Weltanschauungen analysis.
- 15.
The pseudo-objective, or “material”, mode of speech consists in presenting verbal or conceptual issues (i.e., issues about the meaning or communicative content of words) in the form of objective issues (i.e., issues dealing with the properties of non-linguistic objects). The material mode of speech resorts to “pseudo-object-sentences”, while genuine objective speech (i.e., speech about non-linguistic objects) is made of “object-sentences.” Carnap (1959), pp. 284–292.
- 16.
As it is well known, according to Alexy the necessary or essential properties of law would allow discriminating the sole adequate concept of law—that happens to be his own inclusive non-positivist concept—from four inadequate concepts: namely, the inclusive positivist concept (proposed by inclusive legal positivism), the exclusive positivist concept (proposed by exclusive legal positivism), the exclusive non-positivist concept, and, finally, the super-inclusive non-positivist concept.
- 17.
Alexy “the single most essential feature of law is its dual nature. The thesis of the dual nature of law presupposes that there exist necessary properties of law belonging to its factual or real dimension, as well necessary properties belonging to its ideal or critical dimension. Coercion is an essential feature found on the factual side, whereas the claim to correctness is constitutive of the ideal dimension.”
- 18.
Alexy “It is scarcely possible to deny that this article is somewhat absurd.”
- 19.
- 20.
In a classical statement of the analytical theory of definition, Richard Robinson (Robinson (1954), pp. 149–192) identifies twelve different paths actually followed by philosophers in their search for the “real definition” of something: i.e., for definitions of the essence of the object to which a certain concept refers. Among them, the “betterment of existing concepts” and the “adoption and recommendation of ideals” represent useful activities actually consisting in proposing some stipulative or explanatory definition of some key-term. See also Scarpelli (1955), pp. 62–67, and, so far as the concept of law is concerned, pp. 71–86.
- 21.
- 22.
Leiter (2007), pp. 1–2: “the method of conceptual analysis via appeal to folk intuitions (as manifest, for example, in ordinary language), a method that was itself at risk of becoming an item of antiquarian interest in the context of the naturalistic revolution of late 20th century philosophy”; Leiter (2012), para 2: “The question that plagues conceptual analysis, post-Quine, is what kind of knowledge such a procedure actually yields? Why should ordinary intuitions about the extension of a concept be deemed reliable or informative? Why think the “folk” are right?.”
- 23.
Leiter (2007), pp. 177–178, 196–197, where, discussing Ian P. Farrell’s defence of the Hartian search for “the concept of law” as a worthwhile piece of “modest conceptual analysis”, retorts: “But on Farrell’s (more plausible) rendering of conceptual analysis, we do not illuminate the reality, i.e., the nature of law, we illuminate, rather, the nature of our “talk” about law […] Modest conceptual analysis illuminates our concepts – our talk, as it were – not the referent we might have intended to understand” (italics in the text, ndr). See also Leiter (2012), para 2. Leiter’s criticism is acceptable when, by “modest conceptual analysis”, necessary truths about aspects of reality are looked for. It is disputable, contrariwise, when, following J. L. Austin’s suggestion (Austin (1956–1957), pp. 129–130), such an ambitious, mysterious, and (as I have argued in the previous section of this essay) misleading, task is put down, and a “sharpened awareness of words” is looked for in order to “sharpen our perception of the phenomena”, though “not as the final arbiter of” (italics added; the passage, without this last, quite relevant, qualification, is quoted by Hart in the opening page of the “Preface” to The Concept of Law: Hart (1961), p. vii). For a defence of “traditional conceptual analysis” in jurisprudence, like the one performed by Hart (1961), against Leiter’s naturalistic attack, see Himma (2007), pp. 1–23; Himma (2015), pp. 65–92. Himma’s defence, however, looks troublesome. It sets forth an apparently inconsistent view of “traditional conceptual analysis.” On the one hand, it would be just about “our” concept of law, and hence would be tied, and limited, to a contingent, changeable, local, experience. On the other hand, it would lead, mysteriously, to making metaphysical claims about the nature or essence of law in general, telling us metaphysical, necessary, truths “about not just all existing legal systems, but all conceptually possible legal systems. Thus conceived, a conceptual analysis of law consists in a set of conceptually (or metaphysically) necessary truths and thus constitutes a piece of metaphysical theorizing—just as an analysis of the concept of free will is a piece of metaphysics” (Himma (2015), para 5). In the same passage, Himma also presents Hart as a torchbearer of such a metaphysical conceptual analysis. This view, nowadays common among jurisprudents, is disputable. See, for instance, Marmor (2012), who advocates that the basic thrust of Hart’s jurisprudence was not conceptual analysis, but theoretical reductionism. I have argued against the essentialist reading of Hart’s conception of conceptual analysis in Chiassoni (2013), para 2.2, and Chiassoni (2016), pp. 61–71.
- 24.
- 25.
Leaving aside the essentialist variety, I take the folk and empiricist varieties as instances of external or detached conceptual analysis: i.e., of a conceptual analysis calling for an external observer’s attitude, and aiming at furthering the understanding of extant conceptual frameworks (“conceptual structures”) and the phenomena they are about. Therefore, I take them not to be samples of internal or committed conceptual analysis: i.e., of a conceptual analysis calling for an internal participant’s attitude, and aiming at some justificatory practical purpose. On the distinction between external and internal conceptual analysis, see e.g. Perry (2001), pp. 331–353.
- 26.
These words, by which I characterize essentialist conceptual analysis, are from Smith Churchland (2013), pp. xi–xii.
- 27.
- 28.
According to Jackson, (folk) “conceptual analysis” is needed, if we want to “have much of an audience”, and do not want turning “interesting philosophical debates into easy exercises in deduction from stipulative definitions together with accepted facts.” If, for instance, our problem is about free action and determinism, the only fruitful way to proceed is by asking “whether free action according to our ordinary conception, or something suitably close to our ordinary conception, exists and is compatible with determinism” (Jackson (1998), pp. 30–31, italics in the text). The ascertainment of our (or folks’) conception of free action, in turn, requires appealing to ordinary, shared, intuitions, which reveal “our shared theory” (Jackson (1998), pp. 31–32, 46 ff.). This can be carried out by means of introspection and, above all, socio-psychological enquiries. It is worthwhile stressing that, according to Jackson, “in practice”, “the role” he is “recommending for conceptual analysis will often be very like the role Quine gives to the [Benthamite] notion of paraphrase” (Jackson 1998, p. 46). In the light of such remark, the case against “conceptual analysis” à la Jackson from Quinean perspectives seems, at least partly, the fruit of an uncharitable exaggeration.
- 29.
Among the supporters of such a conception of “linguistic frameworks” there is, for instance, Rudolf Carnap. In his view, many questions which are presented as “theoretical questions” (like, e.g., the question ““are there natural numbers?”“), should be interpreted as “practical questions, i.e., as questions about the decision whether or not to accept a language containing expressions for the particular kind of entities” at stake (italics added, ndr). In his view, “whether or not” a “linguistic framework” should be introduced depends on the purposes one is aiming at, and “is a practical question of language engineering, to be decided on the basis of convenience, fruitfulness, simplicity, and the like” (Carnap (1963), p. 66; see also Carnap (1950), pp. 205–221).
- 30.
Smith Churchland (2013), pp. xi–xiv; “So what is a philosopher to do, if not troll his mind for conceptual truths? The Quinean answer is this: many things, including synthesizing across various subfields and theorizing while immersed in and constrained by available facts. Despite much hand-wringing by overwrought philosophers, Quine did not aim to put an end to philosophy, but to remind us of what the older philosophical tradition had always been: broad, encompassing, knowledgeable of everything relevant, and imaginative” (xiv, italics in the text). For a condensed account by Quine himself, see e.g. Quine (1960), pp. 275–276.
- 31.
On the notion of “linguistic phenomenology” I will come back in a moment.
- 32.
See Quine (1992), pp. 56–57.
- 33.
Leiter criticizes, apparently, both folk conceptual analysis and (what I regard as) the purely descriptive variety of empiricist conceptual analysis. At the same time, however, following Larry Laudan, he recognizes the usefulness of something like the reconstructive variety of empiricist conceptual analysis I stand for here (see Leiter (2007), p. 183 footnote 3; see also Leiter (2007), p. 133 footnote 45, and pp. 168 ff., 179–181, where, in line with a central tenet of Logical Positivism, he regards philosophy as “the abstract branch of successful scientific theory […] the abstract and reflective part of empirical science”; Leiter (2008). In a book of some years ago, Michael Giudice opposes “conceptual analysis” to “constructive conceptual explanation”. The former corresponds, roughly, to folk conceptual analysis. The latter presents itself as something like reconstructive empiricist conceptual analysis. “Conceptual analysis” is “a common philosophical technique of discerning necessary and sufficient conditions of some concept by a priori reflection on possible instances to see where our linguistic intuitions lie […] While conceptual analysis concerns itself with elucidating or making explicit what is already implicit in some particular culture’s self-understanding of law, constructive conceptual explanation attempts to correct, revise or improve on what might be mistaken, distorting or parochial in that self-understanding when tested against observable social reality” (Giudice (2015), pp. vi, 43–66, 75 ff.).
- 34.
- 35.
Austin (1956–1957), p. 130.
- 36.
A more encompassing view of reconstructive conceptual analysis is propounded, as it is well known, by P. F. Strawson. Strawson (1962), pp. 112–118, identifies five intertwining ways (“strands”) of philosophical analysis: (1) conceptual therapy, to be used for solving paradoxes and perplexities; (2) descriptive analysis, which is about the actual working of “our” conceptual and logical apparatus; (3) explanatory analysis, which puts to work philosophical imagination in order to bring to the fore the “natural foundations” of our conceptual and logical apparatus; (4) reformist metaphysics, which puts to work philosophical imagination in view of providing a new and different conceptual framework for “our” same old world; and, finally, (5) descriptive metaphysics, which purports to clarify the “general structure” of “our” conceptual apparatus. My view of conceptual analysis may look a piece of eclecticism, where suggestions from Bentham, Russell, Carnap, Quine and Strawson, among others, are put together in a sort of mental patchwork. It is indeed. In fact, I do not care for strict philosophical allegiance. I care for (hopefully) smoothly working tools for (hopefully) fruitful jurisprudential investigations.
- 37.
- 38.
- 39.
Quine (1975), p. 72, italics added.
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Chiassoni, P. (2021). On the Concept of the Concept of Law. In: Fabra-Zamora, J.L., Villa Rosas, G. (eds) Conceptual Jurisprudence. Law and Philosophy Library, vol 137. Springer, Cham. https://doi.org/10.1007/978-3-030-78803-2_2
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