What is Conceptual Analysis?

An introductory philosophy course in the Anglophone world will typically begin with some version of the question “what is X?” At the first meeting of, say, an epistemology course, the professor will usually ask the students to consider “what is knowledge?” Something like “what is the good?” would be standard fare for an ethics course.

This mode of inquiry has a name in analytic philosophy: it is generally known as “conceptual analysis.” A more formal definition (which still probably wouldn’t satisfy analytic philosophers) of conceptual analysis could be something like the effort to arrive at an a priori definition of a concept, especially as distinguished from an investigation of how real-world speakers use the term. In our example of epistemology, when the professor asks his students what knowledge is, he doesn’t want to hear what the average English speaker appears to think the definition of knowledge is based on the phenomena that they use the term knowledge to describe. Instead, he wants a concept which could serve as a higher court above ordinary linguistics and potentially correct mistaken uses of the word.

Some philosophers in the analytic tradition have objected to the usual way that conceptual analysis is purused and have attempted to propose a more constuctive alternative. Summarizing a number of approaches at a high level, we could say the objection runs something like this:1

An Objection to Conceptual Analysis

A typical way of doing conceptual analysis is that after a defintion for a concept like knowledge has been proposed, the analysts will test the concept by applying it to hypothetical situations and seeing what results it generates. Concepts will be accepted if their results as applied to these hypothetical situations accord with the intutions of the analytic commmunity, and they will be rejected if they generate results at odds with those intutitions. For example, if someone proposes that a just allocation of goods is one in which the sum of everyone’s utility is maximized, an objector might reply by imagining a hypothetical situation in which a single person gets more utility from having all of a certain good than everyone else would get from having any of the good. This clearly intuitively strikes us as unjust, suggesting–according to the rules of this kind of conceptual analysis–that utility maximization cannot be the correct concept of a just allocation of resources.2

The objection to the above method of conceptual analysis concerns the legitimacy of using the analysts’ intutions to rule proposals in or out. Who is to say that our intutions can supply accurate information about whether a concept is right or not? And what do we mean by our intuitions? For example, monarchists might regard it as perfectly acceptable for justice to allow for one person in a society to have the entire share of certain goods like power or agency. Who is to say whose intuitions are right: the monarchists’ or the center-left liberals’ who tend to make up most analytic philosophy faculties? The fact that intutions differ across different communities makes it difficult to feel comfortable using any one particular community’s intutions about a concept as a reliable guide to what that concept actually is.

One reaction to the above dilemmna is to simply dissolve conceptual analysis into socio-linguistic empirical investigation. We could content ourselves with collecting definitions for concepts that are implicit in various communities’ differing intuitions and make no attempt to decide which one of them is “right.”

Some analytic philosophers have pursued another route: while they take seriously the problem raised by the fact that different communities have diffent intuitions, they do not think that we should totally give up on evaluating which intuitions (and the concepts they imply) are more attractive or worthy of adoption. But rather than unreflectively espousing one community’s intutions as the sovereign guide to right concepts, these analytic philosophers propose that we adopt usefulness in service of certain objectives as a guide for the formation of concepts. For example, in philosophy of science, rather than simply asking “what is evidence?” and then using one or another community’s intutions to form the concept, we might try to form a concept of evidence that would be most helpful to the goals of pursuing of scientific knowledge or educating future scientists. The point is that we aren’t totally giving up on having a normative sense of what a concept’s definition should be–we aren’t surrending to mere documentation of how different people use different words–but nor are we simply assuming that members of Anlgophone philosophy departments’ intutuitions should deign to correct everyone else’s uses of concepts.

A Familiar Skit from the Law School Classroom: “Dont Fight the Hypo”

The use of hypothetical situations–“hypos”–as a pedagogical method will, for anyone who has spent time in the legal academy, be reminscent of their own experiences. I’d like to describe a common way that hypos are used in the law school classroom, particularly in con law classes, and then pursue the thought that using hypos this way is vulnerable to a similar kind of objection as the one made above to conceptual analysis. My hypothetical dialogue, my hypo, will be devoid of all content and describe only the abstract intellectual moves that its participants make:

  1. Professor asks student to interpret a legal rule
  2. Student proposes an interpretation of the rule
  3. Professor creates a hypo in which the application of that interpretation is an outcome at odds with the moral or political preferences of the classroom
  4. Student shamefully withdraws their interpretation of the legal rule
  5. Professor proposes a refined interpretation of the rule in which the undesirable result is avoided
  6. Classroom is stunned by professor’s genuis, applauds

A specific instantiation of this skit often plays out between originalists and their antagonists. An originalist will assert that the 14th amendment’s broad guarantees of rights should be interpreted as protecting only the social practices that existed at the time of ratification. An originalist-antagonist will point out that schools were racially segregated in the very place (Washington DC) that the 14th amendment was ratified, making it impossible that the 14th amendment, if interpreted according to the originalist’s principle, would protect the right to attend a racially integrated school as held in Brown. Since the originalist is often not spineless enough not to play the role of the humiliated student in the dialogue above, he will instead take on the role of the professor and propose some casuistic and ornate theory about how some constitutional clause or existing federal law actually already protects the right to integrated schools, rendering the antagonist’s observation about segrated schools in 1868 DC less unpalatable.3

I hope the reader can already see that as in the case of conceptual analysis, we are dealing here with the same play of:

  • Empirical facts about current uses of something (a legal rule rather than a concept)
  • Intuitions in a classroom that is generally composed of a niche sociological caste
  • The use of these intuitions to search for a kind of higher normative authority that can stand above and guide real-world empirical behavior (in this case: intepretations of legal rules by courts).

My objection will run along the same lines as the above argument about conceptual analysis. In the skit I imagined, when the professor asks for an interpretation of a rule, they are not asking the student to report how courts currently interpret the rule. Such inquiries are almost always explicitly signalled by a professor asking for the “black letter” law on the subject. My scenario is instead triggered when professors ask the student what the student thinks should be the correct interpretation, implying there is a “right” version of the law in the same way conceptual analysis assumes there is a right version of concepts that stands above ordinary linguistic usages.

The problem comes in when we suppose that our intuitions in a law school classroom can play the role of pointing us towards this right version of the law. When the professor leverages the social pressure of the classroom to induce students to withdraw or modify interpretations that have unpopular results, he is implicitly assuming that the collective instincts of that classroom represent some defensible constraint on what the law might mean. This is a particularly troublesome assumption when one is in the realm of constitutitional law, where it is not only possible but even likely that legal rules derived from a document written by men with very different normative premises than a 2024 law school classroom might generate results which would be unattractive to the latter.

Roberto Unger aptly describes this constraint when he writes:

The mass of working people may be asleep. The educated and propertied classes are not They will not allow their fate to be determined by a closed cadre of priestly reformers lacking in self-restraint. They will put these reformers in their place, substituting for them successors who no longer need to be put in their place.4

What Unger is getting at here is that lawyers do need to be able to confront the fact that the preferences of average, property-owning and well-educated citizens represent a genuine constraint on the kinds of legal interpretations that can succeed in courts and other legal contexts. No judge or administrative agency can implement legal outcomes that excessively conflict with these preferences. And it is the case that the average law school classroom tends to be composed mostly of people who come from the property-owning and educated classes who have not yet undergone the sociological transformation of becoming lawyers.

The existence of institutional constraints on the doctrines that legal institutions will adopt does not entail the conclusion that these constraints should determine what doctrines are actually the right reading of the law–if such a thing even exists. We could conclude that it does not, and that all lawyers need to know how to do to serve their clients or objectives is to accurately model how courts currently employ doctrine to reach decisions. But law professors are already assuming that there is something more to the law than this view when they make a distinction between asking students to report black letter law and asking students what they think the right legal interpretations are. Like in conceptual analysis, to distinguish between current facts about how an idea is used and what the right use of this idea would look like implies a commmitment to the existence of a higher authority than empirical usage. But if there is such an authority–why should the instincts of the average law school classroom be equated to this authority?

Constructive Solutions

Law school taught me to be a moderate incrementalist institutional centrist, so I don’t want to leave us with the nihilistic thought that reporting and memorizing black letter law–inquiring merely about how a bad man would predict the results of legal proceedings so as to minimize enforcement of penalties on his conduct–is the only thing worth doing in the law school classroom.5 I do want to defend some role for the kind of inquiry implied by using hypos with unattractive consequences, but I think they should be employed in a clearer way to teach students specific lessons about how to practice and envision law.

I think professors should be more clear that when they ask students to defend their legal ideas against hypos that induce outcomes that are unpopular in the law school classroom, they are not necessarily denying the rightness of those ideas. Rather, they are training them to adjust the presentation of those ideas to succeed in an institututional context in which judges will wish to avoid appearing as a “closed cadre of priestly reformers” and will thus be reticent to tear down the entire social order in the name of some abstruse chain of legal reasoning. This is a valuable skill, which often is explicitly tested in appellate oral arguments, but learning this skill is not the same thing as actually deciding what the right interpretations of legal rules are.

Unger has a name for this practice: rationalizing legal analysis. For Unger, rationalizing legal analysis is the process of lawyers proposing principles–formalist or purposive–which justify the revision of current legal doctrines. Lawyers then adjust those principles so that they do not create extreme or revolutionary changes. When law professors use hypos to make students revise their legal proposals, they are implicitly teaching them to perform rationalizing legal analysis. The rationalizing legal analysis that takes place in the law school classroom, often in the context of hypos and con law, is in the same bind as conceptual analysis. If it wants to do anything more than report current doctrine, it must have recourse to some source of higher concepts which can guide the reform of actually-existing doctrine. But if it uncritically employs classroom intuitions as a source of such concepts, then it is guilty of parochically privileging a certain historical class’s implicit ideas, and it can make no claim to correct doctrine on behalf of other interests and principles.

Anyone who wants to be an important lawyer in the United States needs to know how to do rationalizing legal analysis, but it is dangerous to mistake rationalizing legal analysis for an exhaustive account of what the law can or should be. Professors should specifically spell out the institutional constraints that they are training students to address when they use hypos, and they should also explain that there have been moments in history when these institutional constraints have been completely overhauled. To do otherwise would give rise to the impression that legal discourse is merely a crude apology for existing social intuitions, a conclusion that a moderate centrist like me must strenously disavow.

I’ll be very explicit about my concern here: when law professors ask students to interpret a constititutional clause–and then bring up hypos in which that interpretation would allow for some moralistic policing of citizens’ behavior or an absurd economic regulation that the average center-right to center-left liberal capitalist law student wouldn’t like–and they then use this social pressure to induce the student to revise their interpretation, they are creating the impression that the preferences of such moderate liberal capitalists exhaust all of what we are allowed to say about constitutitional law. For someone who doesn’t belong to the family of views that I’m describing–or someone who just doesn’t find doctrinal maneuvering within that family very interesting–this impression would be demoralizing and likely to give rise to a complete rejection of constitutional law.

Although I would defend some place for it as a pedagogical tool, I think it’s kind of a cheap trick to use hypos that have consequences that a law school classroom wouldn’t like. If the professor had asked the student to come up with an idea that would be popular and attractive to the average law student, most students would be perfectly capable of doing so. But what the professor is instead asking for is the student’s personal intuitions about how to interpret a legal rule. It is only after the student has correctly performed this exercise that the professor covertly introduces–by raising the hypos–the additional constraint of subjecting these ideas to approval by the law school classroom.

Another proposal to help clarify the use of hypos would be to adopt an analogous conclusion to that of the analytic philosophers I discuss in the section before the last. These analytic philosophers propose that conceptual analysis can be sharpened by clarifying that the intention of revising concepts is to serve some real objective. Law professors could–instead of simply asking “what should the interpretation of this rule be?”–challenge students to propose different interpretations to serve different goals or ask students to specify the goals that they believe their interpretation would serve. To do so is not to mindlessly adopt a functional attitude to the law, as formalist logical integrity could easily be just such a goal.

I don’t mean to suggest that it isn’t a valuable skill to learn how to do rationalizing legal analysis. I just think professors should be more clear that this is what they are teaching when they confront students with nasty hypos. If professors don’t make this clear, students might think that legal discourse has always been and can only ever be just an expression of the interests of the sociological caste of which the legal profession is made up. My prior sarcasm aside, I’m still optimistic enough not to totally endorse this nihilistic view. There have been at least some moments in history in which legal institutions have been genuinely transformative. Unless one believes that history is finished and we need no further social innovation, it would be unfortunate to intellectually close off the route to such transformations in the future.

  1. A collection of papers which contribute ideas behind the argument I offer in the section below: ↩

  2. This is Robert Nozick’s utility monster, which is discussed in his famous book Anarchy, State, and Utopia. One of the joys of writing a blog is that I don’t have to write formal citations ;) ↩

  3. Jonathan Mitchell’s article Textualism and the 14th Amendment is an excellent example of the kind of casuistic and ornate theory that I am imagining. Another move originalists will often make is to “go up a level of abstraction” and claim that the 14th amendment protects whatever social practices are widely accepted as rights at the time a specific case comes before the court. Sherif Girgis politely refutes this approach in his article Living Traditionalism. ↩

  4. This is from Robert Unger’s book What Should Legal Analysis Become? (pages 31-32). ↩

  5. My reference is to Oliver Wendell Holmes’ “bad man” theory of law. One can read more here. ↩

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