1. See, e.g., Julie Dickson, Evaluation and Legal Theory (Hart, 2001) [Dickson, Evaluation]; Brian Leiter, “Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence” (2003) 48:1 Am J Juris 17 at 30ff [Leiter, “Beyond Hart/Dworkin”]; Veronica Rodriguez Blanco, “The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited” (2006) 19:1 Ratio Juris 26.

2. Julie Dickson, “Methodology in Jurisprudence: A Critical Survey” (2004) 10:3 Legal Theory 117 at 125, 135 [Dickson, “Methodology”]; Leiter, supra note 1 at 34-35.

3. Joseph Raz, Ethics in the Public Domain (Oxford University Press, 1995) at 237 [Raz, Public Domain]. See Dickson, “Methodology”, supra note 2 at 119-20, 122-23, 125-29, 132-33, 140; Leiter, supra note 1 at 40-43; Nicola Lacey, “Analytical Jurisprudence versus Descriptive Sociology Revisited” (2006) 84:4 Texas L Rev 945 at 955.

4. See, e.g., Dickson, Evaluation, supra note 1; Joseph Raz, “Two Views on the Nature of Law: A Partial Comparison” in Jules L Coleman, ed, Hart’s Postscript: Essays on the Postscript to ‘The Concept of Law’ (Oxford University Press, 2001) 21 [Raz, “Two Views”]; Jules L Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford University Press, 2003) at 175-207 [Coleman, The Practice].

5. See, e.g., Ronald Dworkin, “Hart’s Postscript and the Character of Political Philosophy” (2004) 24:1 Oxford J Legal Stud 1; John Finnis, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011) at 3-18 [Finnis, Natural Law]; Stephen R Perry, “Hart’s Methodological Positivism” in Coleman, Hart’s Postscript, supra note 4 at 311; TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, 2013); Stuart Lakin, “Defending and Contesting the Sovereignty of Law: The Public Lawyer as Interpretivist” (2015) 78:3 Mod L Rev 549.

6. Suffice to say that, if methodological anti-positivism is sound, I think it must be for reasons such as those adduced by Finnis rather than Dworkin, which I incline to reject on grounds best stated in Raz, “Two Views”, supra note 4 at 11-37, as well as David Plunkett & Timothy Sundell, “Dworkin’s Interpretivism and the Pragmatics of Legal Disputes” (2013) 19:3 Legal Theory 242.

7. Brian Bix, “Conceptual Questions and Jurisprudence” (1995) 1:4 Legal Theory 465; Brian Leiter, “Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis” in Coleman, Hart’s Postscript, supra note 4 at 357 [Leiter, “Legal Realism”].

8. Finnis, Natural Law, supra note 5 at 11-18.

9. For a further discussion see text accompanying note 36, below.

10. Finnis, Natural Law, supra note 5 at 9-18.

11. See the text accompanying notes 70-71 and 95-96, below. (Drawing attention to Raz’s remarks to the effect that conceptual accounts are always incomplete and context-dependent.)

12. See the text accompanying note 91, below.

13. Timothy AO Endicott, “Herbert Hart and the Semantic Sting” in Coleman, Hart’s Postscript, supra note 4 at 44.

14. Hart, HLA, The Concept of Law (Clarendon Press, 1961) at vii.Google Scholar

15. Alfred Jules Ayer, Language, Truth and Logic (Penguin, 1971) at ch 1, ch 6.

16. Russell, Bertrand, A History of Western Philosophy (Allen & Unwin, 1946) 862–64.Google Scholar

17. Ibid at 757, 761.

18. Ayer, supra note 15 at 33.

19. Ibid at 36-37.

20. Nicos Stravropoulos, “Hart’s Semantics” in Coleman, Hart’s Postscript, supra note 4 at 60. Analytic jurisprudence has particular affinities with ordinary language philosophy. Brian Leiter & Alex Langlinais, “The Methodology of Legal Philosophy” (University of Chicago Public Law & Legal Theory Working Paper No. 407, 2012) at 5; Brian Leiter, “On the Demarcation Problem in Jurisprudence: New Case for Skepticism” (2011) 31:4 Oxford J Legal Stud 663 at 666 [Leiter, “Demarcation Problem”].

21. Kornblith, Hilary, “Is there Room for Armchair theorising in Epistemology?” in Haug, Matthew C, ed, Philosophical Methodology: The Armchair or the Laboratory (Routledge, 2014) 195 at 203.Google Scholar

22. Marmor, Andrei, “Farewell to Conceptual Analysis (in Jurisprudence)” in Waluchow, Wil & Sciaraffa, Stefan, eds, Philosophical Foundations of the Nature of Law (Oxford University Press, 2013) 209 at 211.CrossRefGoogle Scholar

23. Ayer, supra note 15 at 44.

24. The distinction originates with Kant and was refined by Ayer, according to whom ‘we say that a proposition is analytic when its validity depends solely on the definitions of the symbols it contains, and synthetic when its validity is determined by the facts of experience.’ Ibid at 73.

25. Ibid at 80.

26. Ibid.

27. Soames, Scott, Philosophy of Language (Princeton University Press, 2010) at 77.CrossRefGoogle Scholar

28. Ayer, supra note 15 at 96.

29. Ibid at 95-96. ‘[I]f experience leads us to entertain a very strong belief that everything of the kind A has the property of being a B, we tend to make the possession of this property a defining characteristic of the kind. Ultimately we may refuse to call anything A unless it is also a B. And in that case the sentence ‘All A’s are B’s’ which originally expressed a synthetic generalization, would come to express a plain [analytic truth]’ (95).

30. Ibid at 74.

31. Ayer later qualified his view that philosophy is exclusively a matter of providing definitions. Ibid at 196.

32. Ibid at 62.

33. Ibid at 196.

34. Ibid at 49.

35. See Joseph Raz, “On the Nature of Rights” (1984) 93:370 Mind 194.

36. See Coleman, The Practice of Principle, supra note 4 at 179 (“On the classic understanding of it, the aim of conceptual analysis is to identify an interesting set of analytic truths about the concept that are discernible a priori”); Natalie Stoljar, “What Do We Want Law to Be? Philosophical Analysis and the Concept of Law” in Wil Waluchow & Stefan Sciaraffa, eds, Philosophical Foundations of the Nature of Law (Oxford University Press, 2013) 230 at 233-34 (asserting that ‘the traditional project of conceptual analysis’ relies on a priori methods).

37. Soames, supra note 27 at 77.

38. Kornblith, supra note 21 at 204.

39. Endicott, supra note 13 at 42-43. Stravropoulos, supra note 20 at 64-65.

40. Some critiques of conceptual analysis fail precisely because they seem oblivious to the fact that conceptual analysis in jurisprudence often, and perhaps invariably, is not a matter of specifying sufficient and necessary conditions. Leiter, for example, has critiqued analytic philosophers’ attempt at demarcating the concept of law from the concept of morality on the ground that law is a human artefact but ‘human artefacts never admit of successful analysis in terms of their essential characteristics.’ Leiter, “Demarcation Problem”, supra note 20 at 677. This is an indictment of conceptual analysis itself, as it is conceptual analysis that for Leiter is in the business of specifying the necessary conditions for something to qualify as law rather than morality. Ibid at 665. It seems an indictment built on false premises.

41. Stoljar, supra note 36, 231.

42. Stravropoulos, supra note 20 at 65. Cf Coleman, The Practice of Principle, supra note 4 at 179. See also NW Barber, “The Significance of the Common Understanding in Legal Theory” (2015) 35:4 Oxford J Legal Stud 799 at 802.

43. See Stravropoulos, supra note 20. According to Coleman, Hart himself understood his legal philosophical method as one of conceptual analysis. Coleman, The Practice of Principle, supra note 4 at 176. Dworkin famously stated that Hart was seeking to identify the criteria for the correct application of legal terms. Ronald Dworkin, Law’s Empire (Belknap Press, 1986) at 32. Lacey, in discussing Hart’s work on causation, argues that Hart’s ‘method … represents a thoroughgoing application of the linguistic philosophical analysis to law … seek[ing] to unearth the principles underlying judges’ use of causal language … and to explore the relationship between judicial usage and more general, common sense understandings of causation embedded in linguistic usage in particular contexts.’ Lacey, supra note 3 at 964. But see Marmor, supra note 22; and Barber, supra note 42 at 805 (arguing that Hart ‘shows little or no interest in the concept of law, and instead focuses on the nature of law as a social institution’).

44. See Leiter, “Demarcation Problem”, supra note 20 at 666, arguing that Hart was influenced by ‘post-World War II Oxford-style non-cognitivism’.

45. Leiter, “Beyond Hart/Dworkin”, supra note 7 at 357.

46. Ian P Farrell, “HLA Hart and the Methodology of Jurisprudence” (2006) 84:4 Texas L Rev 983 at 1006-07.

47. Leiter, Brian, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007) 196–97 [Leiter, Naturalizing].CrossRefGoogle Scholar

48. Dickson, Evaluation, supra note 1 at 17; Barber, supra note 42 at 805, 816.

49. Ayer, supra note 15 at 51.

50. Veronica Rodriguez Blanco, “A Defence of Hart’s Semantics as Non-Ambitious Conceptual Analysis” (2006) 9:2 Legal Theory 99 at 104 (paraphrasing Frank Jackson).

51. Ayer, supra note 15 at 46-47.

52. Ibid at 83.

53. Leiter & Langlinais, supra note 20 at 5.

54. Perry, supra note 5 at 314. See also Rodriguez Blanco, supra note 50 at 108.

55. For an introductory discussion to these ideas see Gary Kemp, What Is This Thing Called Philosophy of Language? (Routledge, 2013).

56. Ibid at 59.

57. Ibid at 83.

58. Cf ibid at 64-65.

59. Ludwig, Kirk, “Methods in Analytic Epistemology” in Haug, Matthew C, ed, Philosophical Methodology: The Armchair or the Laboratory (Routledge, 2014) 217 at 230–31.Google ScholarPubMed

60. Even natural kinds are actually partially conventional (Hilary Putnam, Renewing Philosophy (Harvard University Press, 1992) at 112-15), but I can ignore these complexities for the purposes of my discussion in the text.

61. Soames, supra note 27 at 90.

62. Stravropoulos has made a suggestion to the effect that ‘law’ might indeed function like a natural kind term. Stravropoulos, supra note 20 at 81-84. But, as he points out, this suggestion is subject to ‘serious objections’ and his aim in making it was only to show that (his rendition of) Hart’s methodology ‘faces strong competition in the philosophy of language and mind by a number of approaches.’ Ibid at 84.

63. Leiter, “Beyond Hart/Dworkin”, supra note 7 at 358; Leiter, “Demarcation Problem”, supra note 20 at 666.

64. For some similar points see Farrell, supra note 46 at 1002-03; Brian Leiter, “Naturalized Jurisprudence and American Legal Realism Revisited” (2011) 30:4 L & Phil 499 at 512-14 [Leiter, “Naturalized Jurisprudence”]; Dworkin, supra note 5 at 10-11; Barber, supra note 42 at 809-10. But see Marmor, supra note 22 at 217.

65. Cf Stravropoulos, supra note 20 at 70 (arguing that conceptual analysis ‘is supposed to define the subject of inquiry’).

66. Farrell, supra note 46 at 999.

67. Leiter, Naturalizing, supra note 47 at 186, 189-90. But see Marmor, who, unlike Farrell, does not maintain that (Hart’s) conceptual analysis in law has been of the modest (defensible) variety (aiming to describe the concept and not the world); rather he argues that jurisprudence is reductionist—that is, that it has aimed to explain the world and, appropriately, has not actually employed conceptual analysis in order to do so. Marmor, like Leiter, concedes that conceptual analysis matters, but not quite as much as knowledge about the real world, which it cannot deliver. Marmor, supra note 22 at 213.

68. Julie Dickson, “On Naturalizing Jurisprudence: Some Comments on Brian Leiter’s View of What Jurisprudence Should Become” (2011) 30:4 Law & Phil 477 at 489.

69. Leiter’s most recent work seems to accept something like this point where it states that ‘the metaphysics of a social construct like law precludes deference to the empirical sciences for the purposes of general jurisprudence, since the way people use and understand the concept just constitutes the fact in question’. Nonetheless, he still holds on to his naturalist objections (‘Yet this kind of argument does not wholly deflect the naturalist’s challenge’), without really resolving the tension. Leiter & Langlinais, supra note 20 at 13.

70. Kemp, supra note 55 at 20.

71. Raz, “Two Views”, supra note 4 at 8, 19.

72. Stravropoulos, supra note 20 at 69.

73. Leiter, “Naturalized Jurisprudence”, supra note 64 at 511; Dickson, “On Naturalizing Jurisprudence”, supra note 68 at 485-86.

74. Leiter, Naturalizing, supra note 47 at 31-33; Leiter, “Naturalized Jurisprudence”, supra note 64 at 510-11. While Leiter has now become less optimistic about the ability of the social sciences to explain and predict legal phenomena, he still thinks it is possible that social science will mature to the point of ‘warrant[ing] epistemic confidence’. Leiter, “Naturalized Jurisprudence”, supra note 64 at 511. It is important to show, therefore, that conceptual analysis in jurisprudence is not a second-best method whose validity is somehow contingent on the social sciences acquiring the ability to provide us with reliable knowledge about legal phenomena.

75. Leiter, Naturalizing, supra note 47 at 34.

76. Ibid at 184.

77. Ibid at 192.

78. For hard positivism whether a legal rule is legally valid never depends on whether it is morally sound.

79. Leiter, Naturalizing, supra note 47 at 189.

80. Ibid at 185.

81. Perry, supra note 5 at 311-54.

82. Ibid at 348.

83. Ibid at 313-14.

84. Ibid.

85. Ibid at 314.

86. Ibid.

87. See Barber, supra note 42 at 808-09.

88. Leiter appears aware of the force of this argument, or something like it; curiously, however, he seems reluctant to accept its implications for his argument about the subordination of analytic jurisprudence to social science. Leiter, Naturalizing, supra note 47 at 186-96.

89. Coleman, The Practice of Principle, supra note 4 at 176-77; Stoljar, supra note 36 at 232; Leiter & Langlinais, supra note 20 at 10; Dickson, “Methodology”, supra note 2 at 132, 138; Stravropoulos, supra note 20 at 74-75; Lacey, supra note 3 at 962; Rodriguez Blanco, supra note 50 at 111-16.

90. Barber, supra note 42 at 798 (arguing that we can understand, as Raz and Hart understand, conceptual analysis ‘as the examination and refinement of the common understanding of phenomena’ [emphasis added]).

91. Ayer, supra note 15 at 61.

92. Marmor, supra note 22 at 212.

93. Stravropoulos, supra note 20 at 81. But see Rodriguez Blanco, supra note 50 at 108-16, disputing that this is an accurate characterisation of Hart’s approach.

94. Barber, supra note 42 at 814-16.

95. Raz, “Two Views”, supra note 4 at 10.

96. Ibid at 25-26.

97. Ibid at 26. See also Raz, Public Domain, supra note 3 at 237.

98. Raz, “Two Views”, supra note 4 at 26. This is why I think that, if Marmor includes too little into the category of conceptual analysis (by excluding all revisionist projects), Stoljar and Haslanger perhaps include a little too much where they take it to cover ‘ameliorative inquiry that theorizes about our “legitimate purposes” in using a concept and yields a target concept’ (Stoljar, supra note 36 at 232), at least if they allow (as they seem to: Stoljar, supra note 36 at 237-39) for the possibility that the target concept could be a wholesale revision of the folk concept. Including ameliorative inquiry of this kind into the category of conceptual analysis dispenses with the conceptual distinctiveness of conceptual analysis.

99. Leiter & Langlinais, supra note 20 at 11-12.

100. Barber, supra note 42 at 811-12, 819-22.

101. See also Rodriguez Blanco, supra note 50 at 116: ‘The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions.’ In constructing his case against his understanding of Hart’s methodology, Stravropoulos makes a similar point, though he overstates it by implying that legal concepts may be just like natural kinds. Stravropoulos, supra note 20 at 82-83.

102. But see Stoljar, supra note 36 at 236, who has recently argued that there are cases of ‘social externalism’—namely, situations in which social kinds work just like natural kinds, so that the meaning of the corresponding terms is a function of ‘the nature of the kind to which the [term] refers’ rather than ‘conventional usage’.

103. Cf Barber, supra note 42 at 809-10.

104. From this perspective, it is an overstatement to claim that ‘there is no true law beyond our understanding and usage’ (Farrell, supra note 46 at 1007) and that ‘legal phenomena … are wholly constituted by the beliefs and attitudes … linguistic practices reveal’ (Leiter & Langlinais, supra note 20 at 8).

105. Lacey, supra note 3 at 949.

106. Ibid at 950.

107. Ibid at 992.

108. Stoljar similarly argues that ‘conceptual analysis … often transcends what we have in mind and what could be articulated through an examination of common understanding’. Stoljar, supra note 36 at 236. Stoljar makes the point in relation to cases of ‘social externalism’ (see above note 102), but the point can be generalized.

109. Raz, Public Domain, supra note 3 at 198; Leiter, “Legal Realism”, supra note 7 at 358. Farrell usefully suggests that one of the sense in which conceptual analysis is not lexicography is that lexicography, unlike conceptual analysis, simply lists or identifies ‘disparate usages of a word’ but it ‘does not … purport to provide an underlying theory that ties [them] together’. Farrell, supra note 46 at 1001. Because conceptual analysis, on the other hand, develops such a theory, Farrell argues, ‘we are then able to apply this theory to attain answers in cases which were previously uncertain’ (997).

110. Raz, Public Domain, supra note 3 at 204.

111. Ibid at 237.

112. Ibid at 196-98.

113. But see notes 115-17 and accompanying text, below.

114. Whether or not law is one of these concepts is of course much more controversial.

115. Raz, “Two Views”, supra note 4 at 7-8.

116. Leiter, “Legal Realism”, supra note 7 at 358.

117. Consider, for example, the Japanese term ‘mono no aware’, pointing to something like (the aesthetic value of) the bitter-sweet feeling of melancholy engendered by the awareness of the transience of things. Starting from this information, it may be plausible not only for social scientists to carry out a posteriori research into that feeling as experienced by English-speaking people, but also for philosophers to engage in a priori reflection about the sort of things (if any) that we may say about such a feeling. Or they could look to relevant non-linguistic (for example pictorial) representations and use them to clarify the cognitive significance (if any) of that feeling for us. This may reveal that we have a concept of mono no aware even if we lack a direct English equivalent of the term itself.

118. Leiter, Naturalizing, supra note 47 at 34.

119. Ibid at 192-93. Presumably this recommendation is meant to apply only to those legal concepts that Leiter thinks matter, namely those that figure in scientific models that have strong predictive or explanatory power.

120. Stoljar, supra note 36 at 230-53.

121. Dickson, “On Naturalized Jurisprudence”, supra note 68 at 491-94.

122. Leiter, Naturalizing, supra note 47 at 187; Leiter, “Naturalized Jurisprudence”, supra note 64 at 514-15.

123. As Coleman clarifies, ‘[w]hile the meaning of a term or of the concept it expresses is of course intimately bound up with its use, that subtle relationship could never be captured by a simple reporting project aimed at tabulating commonalities of shared usage.’ Coleman, The Practice of Principle, supra note 4 at 178.

124. In so doing, conceptual analysis by-passes the controversy about whether it is epistemologically tenable to combine quantitative and qualitative methods. On this controversy see Alan Bryman, “The Debate about Quantitative and Qualitative Research: A Question of Method or Epistemology?” (1984) 35:1 British J of Sociology 75; Joanna EM Sale, “Revisiting the Quantitative Qualitative Debate: Implications for mixed-Methods Research” (2002) 36:1 Quality and Quantity 43.

125. Leiter, “Naturalized Jurisprudence”, supra note 64 at 516.

126. Note that Haslanger describes the method of the most basic kind of conceptual analysis as follows: ‘Taking into account intuitions about cases and principles, one hopes eventually to reach a reflective equilibrium.’ Sally Anne Haslanger, “What Are We Talking About? The Semantics and Politics of Social Kinds” (2005) 20:4 Hypatia 10 at 12, quoted in Stoljar, supra note 36 at 234.

127. Nelson Goodman, Fact, Fiction, and Forecast (Harvard University Press, 1955) at 67, quoted in Donals Borchert, ed, Encyclopedia of Philosophy, 2nd ed (MacMillan, 2006) vol 8 at 290. To the extent that ‘reflective equilibrium’ resists methodological essentialism, that is, ‘the view that we can determine the general shape of our methods in advance’ (Kenneth Walden, “In Defense of Reflective Equilibrium” (2013) 166:2 Phil Studies 243 at 255) the third answer is (like the second) connected to the first.

128. Raz, “Two Views”, supra note 4 at 8.

129. Ibid.