29 Pages Posted: 15 Nov 2011
Date Written: November 14, 2011
Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus’s analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus’s analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions.
Keywords: Hart, Sacks, Legal Process, Pragmatism, Fuller, Jurisprudence, James
Suggested Citation: Suggested Citation
Barzun, Charles L., Legal Rights and the Limits of Conceptual Analysis: A Case Study (November 14, 2011). Virginia Public Law and Legal Theory Research Paper No. 2011-43. Available at SSRN: https://ssrn.com/abstract=1959403 or http://dx.doi.org/10.2139/ssrn.1959403