How Do Conceptual Analysis and Normative Evaluation Relate to Each Other in Private Law? – Eric Claeys

Post by Eric Claeys

Over the last month, Patrick Goold and Andrew Gold have both posted fine remarks about the role of analytic and conceptual philosophy in private law. Patrick suggested that the new private law project relies considerably on analytical methods associated with English analytical philosophy, and he anticipated several objections commonly made against analytical methods. Andrew provides helpful examples of recent scholarship applying analytical and/or conceptual methods to study private law.

I am not a producer of analytic methods, but I do consider myself a consumer of them. I am primarily interested in natural law- and rights-based normative theories of property, but I have written some on the analytical meaning of “property,” and the conceptual interplay between “property,” “infringement” and remedies in IP. In this entry, I’d like to warn other potential consumers of analytical method away from a few confusions I’ve encountered in trying to educate myself about analytical methods.

I hope to make three points. First: There’s an important tension between Patrick’s portrait of analytical jurisprudence and Andrew’s portrait of contemporary conceptual scholarship. Although Patrick and Andrew can speak for themselves, it seems to me that their portraits differ because of their vantage points. Patrick’s account focuses on beginnings. He relates analytic jurisprudence back to seminal early twentieth-century work in analytic philosophy to Bertrand Russell and G.E. Moore in philosophy, and he stresses the (deserved) position of H.L.A. Hart, who resuscitated the jurisprudential study of law in the English-speaking world. Andrew’s portrait focuses more on the present. Andrew cites some of the best in-roads into conceptual private law scholarship in recent work.

Even so, if one juxtaposes the two posts, it is striking how few of the scholars Andrew lists would describe themselves in the terms Patrick describes. I would agree that some recent works by Benjamin Zipursky and Jules Coleman fit Patrick’s English-analytic portrait; such work clarifies legal concepts using recent philosophical methods developed in the study of linguistics and semantics. But Andrew also cites to works by scholars (Henry Smith) who use economic arguments to illuminate private law concepts and how they interrelate. Although such works are exceedingly respectful of private law concepts, at bottom they’re not Hartian but economic. Andrew also cites Ernest Weinrib’s The Idea of Private Law, but Weinrib doesn’t fit in a Hartian pigeonhole, either. Instead of working bottom-up from private law concepts to their meanings, Weinrib proceeds top-down. He starts from a normative theory, a Kantian theory of equal agency and respect, and deduces from that theory the concepts necessary to implement it in private law.

Second: Two other contemporary analytical/conceptual approaches differ enough from the ones Andrew and Patrick have already introduced that they deserve separate mention. On is an approach following Ronald Dworkin’s method for “interpreting” concepts using criteria of “fit” and “value.” The other is an approach laid out by John Finnis (in chapter 1 of Natural Law and Natural Rights), where conceptual analysis is a limited prolegomenon to explicitly-normative theorizing about law and other legal concepts.

These two approaches differ considerably from each other. (And some doubt, with good reason, whether Dworkin’s approach even counts as an “analytical” or “conceptual” method). But both deserve serious consideration because they take an intermediate position between, on one hand, the English analytical tradition described by Patrick and, on the other hand, the more explicitly-normative approaches to conceptual analysis cited by Andrew.

Which takes me to my third point. As Patrick suggested in his post, scholars who aren’t interested in analytical methods often suspect that such methods purport to be positive on the surface but are normative beneath the surface. In different ways, Dworkin and Finnis both keep some separation between analytical work and normative argument. To that extent, both present conceptual methods in a light different from explicitly-normative theorizing by economists or political philosophers.

But Dworkin and Finnis both doubt—in opposition to Hart and the English analytical-philosophy tradition—that “conceptual” or “analytical” study can remain entirely positive when dealing with a normatively-charged concept like law. (Stephen Perry deserves a lot of credit for elaborating this criticism, in contact with Hart’s work and then again with Jules Coleman’s.) If a trial judge finds three precedents holding that any aerial overflight is a trespass and one holding that an overflight might not be a trespass, he must use some combination of common law method and independent normative judgment to figure out what the controlling “law” is. So too with concepts.

For a lot of technical concepts, an analyst can ascertain meaning using descriptive, semantic methods without making normative choices. (I expect it’s not too hard to hone in on the meaning of a “lien” using semantic methods.) For other, broader concepts, though, their usages generate what Finnis colorfully called a “vast rubbish heap of miscellaneous facts,” many of which conflict with one another. In my own work, I’ve run into this problem while trying to analyze whether a trade secret counts analytically as “property.” No, if one necessary element of property is a right to exclude as sweeping as the rights of exclusive control associated with land and trespass. Yes, if “property” encompasses a broad family of different rights of control, use, and disposition, among which belong profits, riparian rights, and other usufructs. Also yes if (as I believe), property refers to a right of exclusive use, conceptual method proceeds by reasoning from focal cases, and the focal cases for property include traditional rights in land, rights over chattels, and usufructs. And the choice between those three possible definitions of property raises not only analytical but also normative issues.  Anyone seeking to impose conceptual clarity on questions like these must identify criteria of “salience,” or (Finnis’s terms) “significance” and “importance.” According to Dworkin and Finnis, such criteria are inescapably normative.

Readers may wonder: Why bother with all these differences? I agree with one of Patrick’s responses: It’s important to get concepts right simply because “understanding the legal system is an end in itself.” But I’m going on at length to suggest another response: Consumers of analytical methods need to mind which method they’re consuming. Different methods deal differently with the relationship between analysis and normative implication.

Patrick suggested one possible relationship between the analytical and the normative: Analytical work doesn’t itself make normative prescriptions; it’s better understood as clarifying the concepts being argued about normatively. All well and good, if one follows Moore, Russell, and Hart. But not if one is an economist using conceptual arguments to identify important functional elements of the law, or a Kantian deducing conceptual implications from basic principles of Kantian morality. For these scholars, normative argument precedes the concepts.

For my part, I am most persuaded by Finnis and Perry’s observations about conceptual analysis. And, at least in my more recent forays into conceptual analysis, I’ve tried to resolve the tension between the analytical and normative to recognize the limits both observe in the analytical. Most social concepts have a normative dimension. Sound analysis can clarify the meanings of concepts that have clear meanings. (“Lien” again.) It can circumscribe the range of meanings of contested concepts. (Trade secrets in relation to property again.) To choose among one of a range of legitimate but contested meanings, however, an analyst will probably need to appeal to relevant normative principles.

Furthermore, analytical conclusions may be understood to have prescriptive force, but only contingent prescriptive force.   If some usages of “property” encompass usufructs, someone learning that fact might decide to defer to those usages for the same reasons that a Burkean respects tradition, or a judge follows stare decisis. Alternatively, the normative justifications that justify property’s covering usufructs might be impressive enough to convince the analyst of their independent merits.

In any case, the analysis of terms like “trade secrecy” and “property” remains separate from normative choices to respect an existing practice or the reasons behind it. And whether one prefers the English analytical tradition, economic theorizing, political-philosophy theorizing, Dworkin, or Finnis, analytical methods do have a place along with normative work. Even if different analysts or conceptualists have friendly disagreements about what that place is.