1. For example, arguably the two most important and influential books in the area in the last half of this century have been Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press 1961)Google Scholar and Rawls, John, A Theory of Justice (Harvard University Press 1972)Google Scholar, both of which could be characterized as being primarily works in conceptual theory (though some differences follow from the fact that the focus of the former book was a social-institutional practice, whereas the focus of the latter was a moral-political concept).

2. This is by no means universal. Among the more articulate discussions of purpose are those in Hart, , supra note 1, chapter 1Google Scholar; Coleman, Jules, Negative and Positive Positivism, 11 Journal of Legal Studies 139 (1982)CrossRefGoogle Scholar; and Raz, Joseph, Ethics in the Public Domain 179–193 (Oxford: Clarendon Press 1994).Google Scholar

3. One should also distinguish philosophical explanations that try to respond to problems of the form “how is X possible, given Yand Z?” For example, “How is it possible that we know anything, given the facts the skeptic enumerates…? [and] How is it possible that motion occurs, given Zeno's arguments?” Nozick, Robert, Philosophical Explanations 8 (Cambridge, Mass.: Harvard University Press 1981).Google Scholar

4. See Weber, Max, The Protestant Ethic and the Spirit of Capitalism (Parsons, T., trans., New York: Scribner 1976).Google Scholar

5. As to the latter, see Limerick, Patricia Nelson, More than just Beads and Feathers, New York Times Book Review, 01 8, 1995Google Scholar (in the context of reviewing two books about Native American artifacts, discussing the argument that Native American culture, unlike “Western” culture, does not “quarantine” aesthetic experience).

6. Colin McGinn once argued that it did not make sense to speak of people disagreeing about concepts; they could only be characterized as talking about different concepts. McGinn, Colin, Wittgenstein on Meaning 146–147 (Oxford: Basil Blackwell 1984).Google Scholar

7. I recognize that, at least in the opinion of some historians and theorists who take a hermeneutic approach to social theory, the reference to falsifiability may seem blunt or perhaps naive. However, the term does work as a useful shorthand in summarizing the differing criteria of success for conceptual theories as contrasted with other types of theories in the social sciences.

8. See, e.g., Putnam, Hilary, The Meaning of “Meaning,” in Mind, Language and Reality 215–271 (New York: Cambridge University Press 1975).)CrossRefGoogle Scholar

9. See, e.g., Dupré, John, Natural Kinds and Biological Taxa, 90 Philosophical Review 66 (1981)CrossRefGoogle Scholar; Bix, Brian, Law, Languace, and Legal Determinacy 162–71 (Oxford: Clarendon Press 1993).Google Scholar

10. See, e.g., Wittgenstein, Ludwig, Philosophical Investigations §§ 143–242 (New York: Macmillan 1968)Google Scholar. There are some obvious connections between the problem of conceptual theories and the “skeptical dilemma” in language and rule-following discussed by Kripke, Saul in Wittgenstein on Rules and Private Language (Cambridge, Mass.: Harvard University Press 1982)Google Scholar, although I do not want to enter that labyrinth at this time.

11. This line of inquiry is also related to Wittgenstein, Ludwig's notion of “family resemblance” (Philosophical Investigations, supre note 10, at § 66)Google Scholar, the idea that for some categories, items can be thought to instantiate the category (Wittgenstein's example was the category “games”) even though they do not all share a common set of (“essential” or “necessary”) attributes. Rather, from some list of relevant attributes, each item in the category satisfies a sufficiently large number of them. See Waldron, Jeremy, Vagueness in Law and Language: Some Philosophical Issues, 82 California Law Review 509, 517–20 (1994) (discussing “family resemblance”).CrossRefGoogle Scholar

12. See, e.g., Hurley, Susan, Natural Reasons 30–32 (Oxford: Oxford University Press 1989).Google Scholar

13. The argument behind some versions of Platonism (metaphysical realism) about meanings is that the agreement underlying substantive disagreements must be an agreement about some thing—“thing” here understood as some physical or non-physical entity. As will be indicated below. I would argue that there can be subjects of agreement that are not endues of any kind.

14. Gallie, W. B. introduced the idea of “essentially contested concepts”Google Scholar as an alternative way of explaining the controversy over the use of terms like “democracy” and “work of art,” arguing that theorists are differently interpreting examples from which the terms derive their meaning. Gallie, W. B., Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society 167 (1955–1956)CrossRefGoogle Scholar; see Waldron, , supra note 11, at 526–534Google Scholar (discussing “essentially contested concepts”). Gallie's analysis has been very influential in legal and political theory, because it seems to explain, rather than explain away, complex substantive disagreements, while not demanding controversial ontological commitments.

However, the relevance of Gallie's work to the current inquiry is far from clear. Competing theorists in conceptual debates rarely state that they are both interpreting a common example or set of examples (of democracy, art, law, etc.), and so we are still left with the question of the (possibly varying) purposes of the theories presented.

15. As discussed earlier, even with “arbitrary” stipulations, it is open to theorists to say that one stipulation is “better” because it is more useful or more convenient for a particular purpose.

16. This is reminiscent of Lon Fuller's criticism of legal positivism prior to H.L.A. Hart:

…[W]e encounter a series of definitional fiats. A rule of law is—that is to say, it really and simply and always is—the command of a sovereign, a rule laid down by a judge, a prediction of the future incidence of state force, a pattern of official behavior, etc. When we ask what purpose these definitions serve, we receive the answer, “Why, no purpose, except to describe accurately the social reality that corresponds to the word law.” When we reply, “But it doesn't look like that to me,” the answer comes back, “Well, it does to me.” There the matter has to rest Fuller, Lon, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harvard Law Review 630, 631(1958).CrossRefGoogle Scholar

17. See Raz, , supra note 2, at 179–82Google Scholar (discussing linguistic approaches to the nature of law).

18. See, e.g., Dworkin, Ronald, Laws Empire 31–44 (Cambridge. Mass.: Harvard University Press 1986)Google Scholar (arguing against “semantic theories” of law).

19. Here, there is an interesting parallel with recent debates in metaphysics and the philosophy of language. Michael Dummett has argued that a theory of language and a theory of meaning are the appropriate starting points for (metaphysical) questions about physical reality. See Dummett, Michael, The Logical Basis of Metaphysics 12–15 (Cambridge, Mass.: Harvard University Press 1991).Google Scholar Similarly, in conceptual analysis, many assume, although the point could use further analytical support, that our beliefs about a concept reflect or allow insight to some more basic truth about the social reality or moral claims that underlie that concept.

20. See, e.g., Finnis, John, Natural Law and Natural Rights 5–11 (Oxford: Clarendon Press 1980)Google Scholar; Raz, , supra note 2, at 216–18.Google Scholar

21. See, Hart, H. L. A., Legal Rights, in Essays on Bentham 162–93 (Oxford: Clarendon Press 1982).Google Scholar

22. See, e.g. Hart, H. L. A., Postscript, in The Conceit of Law 248–49 (2nd ed., Oxford: Clarendon Press 1994)Google Scholar (contrasting his view that the primary purpose of law is to guide human behavior with Ronald Dworkin's view that the primary purpose of law is to offer a moral justification for state coercion).

23. See Hart, , The Concept of Law, supra note 1, at 203–07.Google Scholar There are ethical concepts, described in the literature as “thick concepts,” in which description and evaluation (or, to put the same point another way, description and reasons for action) are inextricably entwined (e.g., “rude,” “cowardly,” “brutal”). See, e.g., Williams, Bernard. Ethics and The Limits of Philosophy 140–152 (Cambridge, Mass.: Harvard University Press 1985)Google Scholar; Foot, Philippa, Moral Arguments, 67 Mind 502, 507–9 (1958).CrossRefGoogle Scholar However, how best to understand thick concepts, and what implications they have for moral theory, is beyond the scope of this article.

24. Kenneth Winston, in summarizing the ideas of Morris Cohen and Lon Fuller, described a comparable notion in different terms. As I understand Winston, 's summary, a (teleological) “ideal element”Google Scholar is required for the intelligibility of all social institutions, including law (the ideal being the “principle of order, a limiting conception,” which creates the conceptual structure within which actual subjects are perceived), and therefore any definition that does not incorporate such an element would be defective. Winston, Kenneth, The Ideal Element in a Definition of Law, 5 Law and Philosophy 89, 98, 105–6 (1986).CrossRefGoogle Scholar

25. Hart, , The Concept of Law, supra note 1.Google Scholar

26. Roberts, Simon, Order and Dispute 23–25 (Middlesex, England: Penguin 1979).Google Scholar

27. Hart, H. L. A., Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593 (1958)CrossRefGoogle Scholar; Fuller, Lon, Positivism and Fidelity to Law—A Repty to Professor Hart, 71 Harvard Law Review 630 (1958).CrossRefGoogle Scholar

28. In conversation, Frederick Schauer has offered the interesting suggestion that Hart and Fuller could be seen to have had a common purpose in that both were trying to put forward theories that would make it more likely that officials and citizens would resist unjust laws. However, analyzing theories in this way, in terms of intended but indirect effects on readers' practical reasoning, is beyond the scope of this article.

29. Aquinas, Thomas, Summa TheologiaeGoogle Scholar, question 95, article 2 (translation by Henle, R. J., in Aquinas, The Treatise on Law (Henle, R. J., ed., Notre Dame: University of Notre Dame Press 1993)).Google Scholar

30. Aquinas, , supra note 29Google Scholar, question 96, article 4, corpus. One can also find similar statements, asserting that unjust law are not really laws, by Plato (Laws IV, 715b), Cicero, (e.g., Republic, II, v, II)Google Scholar, and Augustine, (De Libero Arbitrio, I, v, II).Google Scholar

31. I discuss Aquinas's views and the contrast between his approach and that of modern legal theorists in greater detail in Natural Law Theory, in Patterson, Dennis, ed., A Companion to the Philosophy of Law and Legal Theory (forthcoming, Oxford: Basil Blackwell 1996).Google Scholar A few passages from that article have been reworked for inclusion in the present article.

32. As one modern commentator has stated, “St. Thomas was primarily a theologian. His magisterial work, the Summa Theologiae is a summary of theology intended for beginning students in that discipline. Therefore, if one wishes to develop a Thomistic philosophy of Natural Law (or of anything else) he must extricate the philosophical principles from the theological doctrine with which they are intertwined.” Henle, R. J., IntroductionGoogle Scholar, in Aquinas, , The Treatise on Law, supra note 29, at 8.Google Scholar

33. See Finnis, , Natural Law and Natural Rights, supra note 20, at 363–6.Google Scholar

34. See Kretzmann, Norman, Lex Iniusta Non Est Lex, 33 American Journal of Jurisprudence 99, 102–3 (1988).CrossRefGoogle Scholar

35. For Aquinas, there are three different kinds of reasons for concluding that a law is unjust: It does not serve the common good, the lawgiver was acting beyond its authority, or the burdens of the law are unequally distributed. Aquinas, , Summa Theologiae, supra note 29Google Scholar, question 96, article 4, corpus.

36. Id.

37. See, e.g., Finnis, supra note 20. at 354–62.Google Scholar

38. On this type of analysis, see Finnis, , supra note 20. at 9–11Google Scholar; Hart, . The Concept of Law, supra note 1, at 14–17.Google Scholar Finnis traces the notion to Aristotle, 's notion of “local meaning”Google Scholar and Weber, Max's concept of “ideal types.”Google ScholarSee Weber, Max, The Methodology of the Social Sciences 90–106 (Shils, E. & Finch, H., eds., New York: Free Press 1949)Google Scholar; Aristotle, Eudemian Ethics VII 2:1236a16-30; Nicomachean Ethics VIII 4:1157a30-115764; Politics III 1:1275a33-1276b4.

39. Leiter, Brian, Legal Realism, in Patterson, D., ed., A Companion to the Philosophy of Law and Legal Theory (forthcoming, Oxford: Basil Blackwell 1996) (manuscript at 4–7).Google Scholar

40. Id. at 6–10. Leiter does not claim that Naturalist methodology completely supplanted conceptual analysis for the Legal Realists. He argues that, in conceptual matters, the Legal Realists are best understood as having been “tacit legal positivists.” Id. at 7.

41. Id. at 7. For the consequences this approach has for a wide variety of different philosophical inquiries, see Papineau, David, Philosophical Naturalism (Oxford: Basil Blackwell 1993).Google Scholar

42. See, e.g., the papers collected in Kornblith, Hilary, Naturalizing Epistemolocy (2nd ed., Cambridge, Mass.: MIT Press 1994).Google Scholar

43. See, e.g., Putnam, , The Meaning of “Meaning”Google Scholar, supra note B.

44. Leiter, , Legal Realism, supra note 39, at 7.Google Scholar

45. Although one might argue that the scope of categories central to other disputes (e.g., the category of “warranted assertion” in epistemology) is also sometimes contested, I would argue that for such categories the disputes, if they exist at all, are very much at the margins, as contrasted with conceptual dispules in legal and political theory, where the disputes are pervasive and central.