On the Conceptual Confusions of Jurisprudence
7 Wash. U. Jur. Rev. 77 (2014)
30 Pages Posted: 30 Aug 2013 Last revised: 18 Jun 2015
Date Written: November 1, 2014
For more than half a century, legal theorists have tried to identify and describe the concept of law, employing a method called “conceptual analysis” to pursue this goal. Yet the details of that methodology remain obscure, its merits largely accepted without careful analysis. A reassessment is long past due.
This paper offers the first comprehensive survey of the way conceptual analysis has been used in legal theory. The paper identifies four different forms of conceptual analysis – the empirical, intuitive, categorical and contingent methods of analysis. After clarifying the core assumptions of each approach, the paper evaluates whether any of the four methods represent an appealing way of doing legal philosophy. The assessment, though preliminary, yields a sharply negative conclusion. Properly understood, the methods of conceptual analysis offer little appeal. Dramatic claims made by leading practitioners turn out to be, on closer inspection, either banal or wildly implausible.
This conclusion, if accurate, raises deep concerns about the state of legal theory today. It means that theorists face a critical challenge – to identify a new methodology that can replace conceptual analysis as the dominant approach to jurisprudence. The paper concludes with a few thoughts on what that methodology might be, and how it might generate a more fruitful, more interesting, form of legal philosophy.
Keywords: concept of law, jurisprudence, legal theory, cognitive science
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