Conceptual Analysis in Jurisprudence: an Essay in Methodology

Abstract

Conceptual analysis has been central to philosophy, at least in the analytic tradition. The nature of this method, its possibilities and limits, however, are not well understood. Furthermore, conceptual analysis as a methodology for philosophy has been criticized in multiple ways in recent years, especially under the influence of the so-called “Naturalistic Turn” in philosophy. All of these raise questions about the nature and grounding of a philosophical inquiry. In this dissertation, I respond to those criticisms of conceptual analysis and defend it as a legitimate methodology in the context of jurisprudence. In the first half of the thesis, I analyze some prominent arguments about the nature of law and examine their methodological commitments. I argue that those criticisms of conceptual analysis in jurisprudence relying on W. V. O. Quine’s attack on the analytic-synthetic distinction and on empirical/psychological discoveries about the use of intuitions are misguided. Accepting them would miss the opportunity to reflect on the methodology of philosophy, and blind us to the insights of the past generations of philosophers. A case study of how the method of conceptual analysis is actually at work in a theory of criminalization shows that this method is much richer and subtler than its critics have assumed. In the second half of the thesis, as a way of preparing for a positive view of conceptual analysis, I propose a new way of understanding necessary truths in a changing human institution such as law, and offer a series of reflections on the nature of concepts as related to the meta-discussions of legal theorizing. Drawing on materials from the recent history of analytic philosophy, I go on to show that the term “conceptual analysis” has been used in different ways. I argue that the contemporary dominant conception of conceptual analysis is a hangover from logical positivism. Finally, borrowing a term from P. F. Strawson, I characterize conceptual analysis as “connective analysis.” I then clarify its features in relations to necessity, analyticity, meaning, a prioricity, ordinary usage, and historical understanding.