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Rappaport on Conceptual Analysis in Science & Law

By Lawrence Solum

Aaron J. Rappaport (University of California, Hastings College of the Law) has posted Conceptual Analysis in Science and Law on SSRN. Here is the abstract:

Ever since H. L. A. Hart?s magisterial work, The Concept of Law, conceptual analysis has been viewed as the dominant method of doing jurisprudence. Far less appreciated is the fact that it is also a central tool in the field of cognitive science. That may be surprising to some, given the differences in these disciplines? mission: Legal theorists struggle with abstract questions about the ?nature? of Law and Justice; cognitive scientists explore the workings of the human mind. If cognitive scientists and legal philosophers are doing different things when they do conceptual analysis, how do they differ?

This paper offers the first full-scale comparison of the way conceptual analysis is used in these two fields. The paper?s conclusion is provocative and striking. It argues that cognitive scientists employ an appealing and coherent form of this key methodology, while legal theorists employ an approach that might be fairly characterized as a methodological muddle. The implication for legal theory is profound: If legal theory hopes to be a relevant and coherent discipline, it must re-imagine its methodological commitments and seek out a more appealing set of tools and methods. The concluding section of the paper grapples with that challenge, offering some thoughts on how jurisprudence can be placed on a more solid and appealing foundation.

Interesting paper. I've only taken a brief look, but I don't agree with the claim that conceptual analysis is "the dominant mode of doing jurisprudence," although it is certainly true the clarification of concepts remains an important technique in contemporary legal philosophy.  For example, much contemporary work on the nature of law explicitly disavows conceptual analysis as a methodology, and very little of the work done in normative legal theory could be characterized as "conceptual analysis."

Full post as published by Legal Theory Blog on August 25, 2010 (boomark / email).