Concepts, terms, and fields of enquiry

Legal Theory

Volumn 4, Issue 2, 1998, Pages 187-205

  Halpin, Andrew ^a  

^a UNIVERSITY OF SOUTHAMPTON   (United Kingdom)

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[No Author keywords available]

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EID: 84994208234     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000975     Document Type: Article

References (36)

1. Brian Bix, Conceptual Questions and Jurisprudence, 1 LEGAL THEORY 465 (1995). Bare page references hereafter are to Bix's article. A slightly different version of Bix's article appears in the introductory section to his book, JURISPRUDENCE: THEORY AND CONTEXT (1996). Page references prefixed by B are to Bix's book.
2. Id. at 467.
3. Id. at 465-66.
4. Id. at 470-71.
5. Id, at 471-74, 479.
6. Bix, Conceptual Questions and Jurisprudence note 1, at 471-72.
7. Id. at 469 n.14.
8. Bix, Id. at 469 n.14 note 1, at 472-73. In Bix's illustration at n.22, the contrast is between a feature of guiding human behavior preferred by Hart, and a feature of justifying state coercion selected by Dworkin. The “unresolvable” nature of the disagreement needs to be explored further. I return to this in the concluding section.
9. Id. at B7 n.l.
10. Expanding the final illustration in the previous footnote, it would appear that something like this has occurred between the positions of John Rawls and Brian Barry on justice-the falling out is emotively described by Barry in Good for us, but not for them, THE GUARDIAN Aug. 14,1993, as “the distressing case of the great political thinker demolishing his own views.”
11. This solecism is also evident in a manner of describing conceptual theory that has been made popular by John Rawls, A THEORY OF JUSTICE 5-6 (1972) and Ronald Dworkin, TAKING RIGHTS SERIOUSLY 134-35,226 (1977) and LAWS EMPIRE 70-71,74 (1986) in talking of conceptions of a concept Again the singular concept is used to refer to the field of enquiry (the concept of justice) and the conceptions to refer to different viewpoints or different theorists’ attempts at conceptual analysis within that field. The phrase is for that reason unhelpful. There simply does not exist within (say) Western thought a single concept of justice. There is thinking about justice, which encompasses a number of ideas, some varying slightly, some widely diverging; some transparently coherent, others muddled or inconsistent. To say that we wish to examine Western thinking on justice as our field of enquiry, and to be able to identify what falls within that field of enquiry, as, e.g., thinking on the principles that govern fair relations or conduct between people (Cf. Rawls: “principles for assigning basic rights and duties and for determining… the proper distribution of the benefits and burdens of social cooperation,” id. at 5), is far from identifying a concept of justice.
12. Joseph Raz, THE MORALITY OF FREEDOM 198 (1986).
13. Id at l65f.
14. Neil MacCormick notes this contrast in Rights, Claims and Remedies, 1 LAW & PHIL. 335 347f n.17 (1982).
15. The possibility of inconsistency and/or incoherence within ordinary usage should not be underestimated, and it would be presumptuous to assume that learned discourse is immune from them. Their recognition within ordinary usage places a fundamental reservation upon any “ordinary language” analysis. I have touched upon this in relation to the analysis of intention in the English criminal law in Good Intentions, 137 NEW L.J. 696, 698 (1987), and I consider it more fully in relation to recklessness in Definitions and Directions: Recklessness Unheeded (in preparation).
16. See previous section, text between nn. 11 and 16.
17. [1981] 1 All ER 961, at 965-67 overruling Stephenson [1979] 2 All ER 1198.
18. Exactly which offences became a troubling question; see, e.g., Parmenter [1991] 4 All ER 698. The picture became even more confused when Caldwell was deposed from holding exclusive sway over even those offences to which it did apply. See Reid [1992] 1 All ER 793, Adomako [1994] 3 All ER 79.
19. FUNDAMENTAL LEGAL CONCEPTIONS (W.W. Cook ed., 1919).
20. John Finnis, Comment [on Positivism and the Foundations of Legal Authority], in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 62, 69f. (Ruth Gavison ed., 1987). See also Finnis's NATURAL LAW AND NATURAL RIGHTS 16-19 (1980); see also Finnis's The Truth in Legal Positivism, in THE AUTONOMY OF LAW (Robert George ed., 1996). Cf. Joseph Raz, THE AUTHORITY OF LAW 157-59 (1979).
21. For a portrayal of conflicting concepts, see Barney Reynolds, Natural Law versus Positivism: The Fundamental Conflict, 13 OXFORD J. LEGAL STUD. 441 (1993).
22. Bix makes a similar point (For a portrayal of conflicting concepts note 1, at 474-75) in suggesting that both Fuller's and Hart's concepts of law are “Valuable and useful.” However, by suggesting the two concepts can be regarded as “incompatible” yet “not inconsistent,” Bix is eliding the crucial point about exclusivity within a field of enquiry. Within the common field of enquiry of municipal institutional law, if both concepts purport to identify exclusively what is law, then they are incompatible and the analyses they provide are inconsistent.
23. See e.g., Glanville Williams, The Concept of Legal Liberty, 56 COLUM. L. REV. 1129 (1956).
24. Walter Wheeler Cook in his Introduction to The Concept of Legal Liberty note 35, at 11-“mere question of phraseology.”
25. I have argued this in relation to Hohfeld's privilege in Hohfeld's Conceptions: From Eight to Two, 44 CAMBRIDGE L.J. 435(1985).
26. Of course, it would also be possible for the critic to be suggesting both; and in the case where poor labelling confuses the stipulator himself, the one is likely to lead to the other.
27. Thus, L.W. Sumner, THE MORAL FOUNDATION OF RIGHTS 19-20 (1987) insists on relabelling Hohfeld's subconcept (1) as a “claim” rather than a “right” so as to avoid what he considers would otherwise be an unvirtuous stipulation that “arbitrarily closed some important questions about the univocity and complexity of rights.”
28. Bix, insists on relabelling Hohfeld's subconcept (1) as a “claim” rather than a “right” so as to avoid what he considers would otherwise be an unvirtuous stipulation that “arbitrarily closed some important questions about the univocity and complexity of rights.” note 1, at 469; 472-73; 477. At 471, Bix suggests that there may not be a hard and fast distinction between these two purposes.
29. W.B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOCY 167 (1955-56).
30. Bix, Essentially Contested Concepts note 1, at 469 n.14. Bix states that the relevance of Gallie's notion is “far from clear.”
31. There are allusions to this in the conclusion of Gallie, Essentially Contested Concepts note 1 note 46. At 197, he links “clarification… of an appraisive concept” to fulfilling “recognized standards,” and he distinguishes this from other processes of conceptual clarification.
32. It is arguable that the Criminal Law Revision Committee in making proposals for the definition of theft enacted in the Theft Act 1968 made exactly the mistake of assuming a uniform standard of dishonesty in society where in fact a plurality existed, and so unwittingly provided a contestable concept of dishonesty in the definition of theft. See There are allusions to this in the conclusion of Gallie note 7.
33. Gallie, It is arguable that the Criminal Law Revision Committee in making proposals for the definition of theft enacted in the Theft Act 1968 made exactly the mistake of assuming a uniform standard of dishonesty in society where in fact a plurality existed, and so unwittingly provided a contestable concept of dishonesty in the definition of theft note 46, at 183f.
34. Artistotle, NICHOMACHEAN ETHICS V.V.7.
35. See text at Artistotle note 14.
36. See text following principle (A).