Hermeneutic Concepts and Immodest Conceptual Analysis of the Law

Abstract

Brian Leiter holds that traditional intuition-guided conceptual analysis (CAL) of the law either modestly but relatively uninterestingly make claims about our shared understanding of the law, or it immodestly but unwarrantedly make claims about the law itself. Here, I defend and explore the implications of a third possibility. Namely, CAL is simultaneously an analysis of our shared understanding of the law and of the law itself, for our concept of law constitutes the reality of law. Hence, law immodestly and warrantedly makes claims about the nature of law. The inspiration for this thesis is Locke’s notions of an archetype idea and maker’s knowledge. Thus, I refer to the thesis I defend here as the Lockean approach.