1. Bix, Brian, Conceptual Questions and Jurisprudence, 1 Legal Theory 465 (1995).CrossRefGoogle Scholar 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).Google Scholar Page references prefixed by B are to Bix's book.

2. Id. at 467.

3. Id. at 466–67, 478.

4. Id. at 465–66.

5. Id. at 470–71.

6. Id. at 471–74, 479.

7. I have developed the approach expounded here principally in relation to the analysis of rights in Rights and Law-Analysis and Theory (1997).Google Scholar Much of what follows is adapted from material taken from that work, and the examples relating to rights used here are discussed further within the book. In general, I have endeavored here to use examples from well-known areas of the law or literature, and avoided references to further treatment of the subject matter of the examples. The subject matter of all examples taken from the English criminal law can be pursued further with the aid of any of the standard texts. My own treatment of dishonesty (The Test for Dishonesty, Crim. L. Rev. 283 [1996]Google Scholar) is informed by the approach suggested here, although the approach is not articulated within that article.

8. Bix, , supra note 1, at 471–72.Google Scholar

9. Id. at 469 n.14.

10. I use “term” in a broader sense than “label,” so that all labels are terms but not all terms are labels. The need to make the distinction should become apparent shortly, but for the moment the distinction is immaterial. It is also worth mentioning that “term” used in this way bears its looser meaning of a word dial is used to express something, rather than its more technical meaning of a word used in a definite or precise sense (see OED, IV.13.b and IV.13.a).

11. Bix, , supra note 1, at 465–66Google Scholar, where Bix states inter alia, “Conceptual claims… are assertions… about labels… that often also serve as categories.” The move from concept to a category of material instantiations of that concept is also evident in the slight divergence in his exposition of the different purposes for conceptual analysis: purpose (2) is first related to the significance of a concept (at 471, B24) and then to the importance of some matter (at 479) or something (at B32).

12. That this is a common occurrence for legal terms is discussed further shortly. See text following principle (C) below.

13. So the term “appropriation” can be used as a label for the concept of a consensual transfer of property, or as a label for the concept of a usurpation of proprietary interests. In the former case, the term is found relating to contracts for the sale of goods in the Sale of Goods Act 1979, s.18 Rule 5(1). Notwithstanding his familiarity with this usage of the term as an author of a leading text on the law of contract, J.C. Smith has consistently argued that in the Theft Act 1968, s.1 (from the perspective of a Contibutor to the proposals of the Criminal Law Revision Committee on which the legislation was based), the term should be taken as an instance of the latter use. See, e.g., Smith, J.C., Commentary, Crim. L. Rev 273274 (1990)Google Scholar; The Law of Theft para. 2·04 (7th ed. 1993).Google Scholar

14. Bix, , supra note 1, at 472–73.Google Scholar 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.

15. Id. at B7 n.1.

16. This makes the requirement for specifying a field of enquiry tighter than simply identifying the rough subject matter of the investigation, but not so formal as identifying a set with members. This greater degree of formality may not be reached owing to the exploratory and dynamic nature of conceptual analysis, considered further in the amplification of principle (A) below, and also to the fact that the requirement for specifying the field of enquiry is made at the outset of undertaking conceptual analysis-by the conclusion of the process a more formal identification of the field of enquiry may be possible. The key point to stress is that, given the understanding of the theorist at the point of identifying the field of enquiry, any known area of ambiguity or dispute needs to be resolved by a sufficiently clear specification of the field of enquiry. That this may not be satisfied by simply referring to the rough subject matter of the enquiry by a term, such as “law” is apparent when considering the great diversity of subject matter that such a term is capable of conveying (on which, see further, infra text following note 32).

17. For example, we commence with municipal, institutional law as our field of enquiry, but the concept of law that our conceptual analysis provides leads us to broaden our field of enquiry to include public international law. Or similarly, human beings and gorillas. Contraction rather than expansion of the field of enquiry may also result from this dynamic interplay; consider commencing with justice as the field of enquiry, and then, consequent upon the conceptual analysis undertaken, restricting the field of enquiry to justice in modern Western democratic societies.

18. 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.”

19. If the confusion that presently dims our understanding is solely along the lines of whether a is an X with properties p₁ or a Ywith properties p₂, and all that can be understood about X or Y is conveyed by p₁ or p₂, then conceptual analysis within the field of X or Y has no part to play. We simply need better empirical information about a.

20. Compare the suggestion that John Stuart Mill in On Liberty was actually dealing with two concepts of liberty.

21. This solecism is also evident in a manner of describing conceptual theory that has been made popular by Rawls, John, A Theory of Justice 5–6 (1972)Google Scholar and Dworkin, Ronald, Taking Rights Seriously 134–35, 226 (1977)Google Scholar and Empire, Laws70–71, 74 (1986)Google Scholar 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.

22. We should not ignore the possibility that all conceptual analysts capable of assisting our understanding has already been undertaken, in which case the following is redundant, because we have already properly matched the field of interest with the appropriate concept(s) and term(s) and hence it does not matter if we approach the subject matter through the term or the concept.

23. The same function is performed by the judge who is faced by a legal provision containing such a term. This is a point that has implications for our understanding of the judicial interpretation of the law.

24. Raz, Joseph, The Morality of Freedom 198 (1986).Google Scholar

25. Id. at 165f.

26. Neil MacCormick notes this contrast in Rights, Claims and Remedies. 1 Law & Phil 335, 347f n. 17 (1982).Google Scholar

27. 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)Google Scholar, and I consider it more fully in relation to recklessness in Definitions and Directions: Recklessness Unheeded (in preparation).

28. But see also features (iii)-(v), which may indicate stipulation is called for not because of the inconsistency or incoherence found within current usage but owing to its impoverished state.

29. Notice that the accommodation of phenomena within the analysis may be satisfied as much by indicating why a particular phenomenon is not to be given a particular status as by indicating why it is. So, for example, this aspect of virtue would be found in a stipulation that informed us why animals were not to be regarded as possessing rights, but would be absent from a stipulation that prevented the question of animals' rights arising by restricting the investigation ab initio to the rights of man. As to the further impact upon the virtue of our stipulation raised by the question whether issues of animal welfare are being denied a hearing by failing to treat them as rights of the animals, see feature (vii).

30. Accommodation may be possible in the case of an impoverished current usage (see (iii) & (iv)), which can be improved on by stipulation. But where current usage is unworkable as inconsistent and/or incoherent (or, at least, so confusing as likely to be so) (see (i) & (ii)), then rejection will be appropriate.

31. So, for example, we could maintain the virtue of a stipulation that denied the possibility of talking of the rights of works of art if we could show that any intelligible issue on the conservation of works of art could be discussed in terms of the rights of people to enjoy them. The possibility of doing this explains how we can draw the line between attributing rights to individuals but not to works of art, or trees (pace Tur, Richard, The Leaves on the Trees, Jurid. Rev. 139, 150 [1976])Google Scholar; and I would suggest that this feature of virtuous stipulation is the key to clarifying the discussion on animal/fetus/children's rights.

32. See previous section, text between nn. 11 and 16.

33. [1981] 1 All ER 961, at 965–67 overruling Stephenson [1979] 2 All ER 1198.Google Scholar

34. Exactly which offences became a troubling question; see, e.g., Parmenter [1991] 4 All ER 698.Google Scholar 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 793Google Scholar, Adomako [1914] 3 All ER 79.Google Scholar

35. Fundamental Legal Conceptions (Cook, W.W. ed., 1919).Google Scholar

36. Finnis, John, Comment [on Positivism and the Foundations of Legal Authority], in Issues in Contemporary Legal Philosophy 62, 69f.Google Scholar (Gavison, Ruth ed., 1987Google Scholar). See also Finnis's Natural Law and Natural Rights 16–19 (1980)Google Scholar; see also Finnis's The Truth in Legal Positivism, in The Autonomy of Law (George, Robert ed., 1996Google Scholar). Raz, G. Joseph, The Authority of Law 157–59 (1979).Google Scholar

37. For a portrayal of conflicting concepts, see Reynolds, Barney, Natural Law versus Positivism: The Fundamental Conflict, 13 Oxford J. Legal Stud. 441 (1993).CrossRefGoogle Scholar

38. Bix makes a similar point (supra 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.

39. See e.g., Williams, Glanville, The Concept of Legal Liberty, 56 Colum. L. Rev. 1129 (1956).CrossRefGoogle Scholar

40. Walter Wheeler Cook in his Introduction to supra note 35, at 11—“mere question of phraseology.”

41. I have argued this in relation to Hohfeld's privilege in Hohfeld's Conceptions: From Eight to Two, 44 Cambridge L.J. 435 (1985).Google Scholar

42. Williams, , supra note 39Google Scholar, prefers a different label but does not challenge Hohfeld's concept of a privilege.

43. 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.

44. Thus, Sumner, L.W., The Moral Foundation of Rights 19–20 (1987)Google Scholar 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.”

45. Bix, , supra note 1, at 469Google Scholar; 472–73; 477. At 471, Bix suggests that there may not be a hard and fast distinction between these two purposes.

46. Gallie, W.B., Essentially Contested Concepts, 56 Proc. Aristotelian Socy 167 (1955–1956).CrossRefGoogle Scholar

47. Bix, , supra note 1, at 469 n.14.Google Scholar Bix states that the relevance of Gallie's notion is “far from clear.”

48. See principle (E): (iii), (iv) & (vii).

49. See principle (F) and surrounding text It is submitted that it is when this latter role is taken on that any distinction between Bix's purposes (2) and (3) does dissolve, but not when purpose (2) is being used in a nonexclusive way.

50. See principle (D) and preceding text.

51. Though the descent to vice is an easy one, by not acknowledging the objective selected. Such vice is perhaps most prevalent in the judicial pretext of simply declaring the ordinary meaning of the term.

52. See principle (D), and text at supra note 50.

53. There are allusions to this in the conclusion of Gallie, , supra note 46. At 197Google Scholar, he links “clarification… of an appraisive concept” to fulfilling “recognized standards,” and he distinguishes this from other processes of conceptual clarification.

54. Or aesthetic, etc.

55. 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 supra note 7.

56. Gallie, , supra note 46, at 183f.Google Scholar

57. Artistotle, Nichomachean Ethics V.v.7.

58. That this should be limited to adult male Athenian citizens was evidently contestable even at the time of Aristotle. See Politics I.ii.3 regarding the position of slaves; and Aristophanes' Lysistrata is some indication of the position of women not being beyond question. Taking a historical continuum as the moral environment can sharpen the contestability, but such contestability can also be found within more contemporary societies. In the UK, residence rather than property holding did not become the basis for enfranchisement until the Representation of the People Act 1918, which also enfranchised women over the age of thirty.

59. I recognize that theory may involve elements outside of the realm of conceptual analysis, such that, e.g., two theories may develop from a common concept of, say, the market, yet differ owing to other factors that go into the construction of the theory, such as beliefs as to how people behave when confronted by a shortage or surfeit of goods. Although these other elements may be responsible for developing the theoretical links among different concepts in the theory, it is impossible to conceive of a theory beyond the lowest level of sophistication that does not rely in part on establishing concepts, and hence for which conceptual analysis (in both its creative and critical roles) has a major part to play.

60. See text at supra note 14.

61. See text following principle (A).