Conceptual Analysis in Jurisprudence: an Essay in Methodology A Dissertation SUBMITTED TO THE FACULTY OF UNIVERSITY OF MINNESOTA BY Yi Tong IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY Adviser: Brian Bix December 2016 © Yi Tong 2016 Acknowledgements I would never have come abroad to pursue a degree in philosophy if it were not for three teachers at East China Normal University when I was an undergraduate there. My first exposure to philosophy was Prof. Yu Zhenhua’s elective course back in Spring 2005. Prof. Yu’s seriousness, rigor, and devotion to philosophizing have been a long-lasting influence on me. Encountering Prof. Liu Qing, a Minnesota alumnus, was the luckiest thing during those years when I struggled with discontent and questions about self-worth. Prof. Liu was refreshingly sharp, thoughtful, and caring. The numerous hours he spent with me, in the cultural desert of ECNU’s then newly built Minhang Campus, were most enlightening and formative. My turning to philosophy would not have been a real option if I had not sat in Prof. Chen Jiaying’s seminars. Over the years, Prof. Chen’s way of conducting philosophical investigations continues to be an inspiration. These three teachers showed me what education means (which then led me to realize that my own “education” in business school was quite empty), what is choice-worthy in life, and above all, how to think independently. This dissertation started its life as a puzzlement I had over conceptual analysis from the first reading assignment in Brian Bix’s jurisprudence class in Spring 2010 (which has been the highlight of my graduate course work). This dissertation would not ever have come to a completion if it were not for his quiet confidence in the project and sustained support of me in the past 5 years. I would never forget that Sunday morning when, a few minutes past 8 o’clock, I received from Brian comments and corrections on a research proposal sent to him just a few hours ago. In the course of my dissertation work, Joseph Owens frequently went out of his way to provide consolation and encouragement, especially during those years when I felt that my life was in darkness and stuck. To Joe, I have a sense of indebtedness that is beyond expression. In retrospect, I have been extremely fortunate in going abroad to pursue my education. As my formal education is coming to an end, I am grateful for those people from whom I have learned many things in many ways in the past 8 years’ of pursuit in Minnesota. It is because of Sandra Peterson that I love ancient philosophy and that classical Greek is on my list. Doug Lewis has been a most attentive listener. He carefully read the entire dissertation and helped me to understand my own work better. Sandra and Doug’s approach to teaching philosophy continues to be my model. I have always been nervous for being a doctoral student in philosophy without having studied much of anything. Peter Hanks, Valerie Tiberius, Sandra Peterson, Joseph Owens have all generously allowed me to sit in their courses. Antony Duff opened my eyes to many interesting philosophical problems in criminal law. My gratitude also goes to teachers and friends in Europe: conversations with Peter Hacker and Benjamin De Mesel provided crucial ideas to i conclude my dissertation. Meeting with Sebastian Greve in Leuven remains the most enjoyable and congenial in years to come. It has also been a joy to see that my friendship with Ana Velasco, started from our “philosophischer Spaziergang” in Berlin, continues and deepens. My good friend and former colleague Tom Doyle has helped me in so many ways. I deeply appreciate his generosity and kindness. And his buffoonery has made my life here so fun. Laughing with him is a large part of what I will remember of the collegial aspect of graduate school. It was saddening to see him graduate and leave the profession. But I know that he carries on with philosophy in his literary projects. If I ever become a philosopher, Tom, I promise I won’t be one of those. Luo Wang offered the best intellectual companionship I could ever hope for in these last years. Thank you, Luo, for those rich and stimulating conversations, and for your tireless encouragement, support, and company. Finally, friends and family from across the Pacific have been a source of support and comfort in the past 8 years. Thank you to Gao Yuan, for being such a loyal friend since middle school, and for the constant assurance that what I have been doing is important and worthwhile. Conversations with Fan Zheng can be a substitute for food and sleep. I know I can pick up the phone and call him anytime, even though (unbelievably) we have seen each other only twice. Zhang Rengong continues to be a friend who brings me memories of the best time of my college life, and of many years of striving and searching together. The reunion I had with Shen Cen in Summer 2015 was the most wonderful event that happened in my life in recent years. Above all, however, I must express my deep gratitude to my parents. They have been most patient during these years when I have been abroad, and they have never asked what I am going to do with a Ph.D. degree in philosophy. Their unconditional support and love, even in their most difficult situations, I know nothing will repay. ii Dedication This dissertation is dedicated to all my teachers who have taught me how to think. iii Begriffe leiten uns zu Untersuchungen. Sind der Ausdruck unseres Interesses, und lenken unser Interesse. (Concepts lead us to make investigations. They are the expression of our interest and direct our interest.) —Wittgenstein, Philosophical Investigations, §570 iv Abstract Conceptual analysis has been central to philosophy, at least in the analytic tradition. The nature of this method, its possibilities and limits, however, are not well understood. Furthermore, conceptual analysis as a methodology for philosophy has been criticized in multiple ways in recent years, especially under the influence of the so-called “Naturalistic Turn” in philosophy. All of these raise questions about the nature and grounding of a philosophical inquiry. In this dissertation, I respond to those criticisms of conceptual analysis and defend it as a legitimate methodology in the context of jurisprudence. In the first half of the thesis, I analyze some prominent arguments about the nature of law and examine their methodological commitments. I argue that those criticisms of conceptual analysis in jurisprudence relying on W. V. O. Quine’s attack on the analytic-synthetic distinction and on empirical/psychological discoveries about the use of intuitions are misguided. Accepting them would miss the opportunity to reflect on the methodology of philosophy, and blind us to the insights of the past generations of philosophers. A case study of how the method of conceptual analysis is actually at work in a theory of criminalization shows that this method is much richer and subtler than its critics have assumed. In the second half of the thesis, as a way of preparing for a positive view of conceptual analysis, I propose a new way of understanding necessary truths in a changing human institution such as law, and offer a series of reflections on the nature of concepts as related to the meta-discussions of legal theorizing. Drawing on materials from the recent history of analytic philosophy, I go on to show that the term “conceptual analysis” has been used in different ways. I argue that the contemporary dominant conception of conceptual analysis is a hangover from logical positivism. Finally, borrowing a term from P. F. Strawson, I characterize conceptual analysis as “connective analysis.” I then clarify its features in relations to necessity, analyticity, meaning, a prioricity, ordinary usage, and historical understanding. v TABLE OF CONTENTS CHAPTER 1 INTRODUCTION: CONCEPTUAL ANALYSIS AND THE PROBLEM(S) OF JURISPRUDENTIAL METHODOLOGY ................................................................................................ 1 I. THE BACKGROUND OF THE DISSERTATION ....................................................................................................... 1 II. CRITICISMS IN CONTEXT: HARD POSITIVISM AND THE HART/DWORKIN DEBATE ................................. 5 III. CRITICISM OF CONCEPTUAL ANALYSIS IN JURISPRUDENCE ........................................................................ 9 IV. SUMMARY OF CHAPTERS ................................................................................................................................. 13 CHAPTER 2 RAZ’S ARGUMENT FROM AUTHORITY AND QUINE’S “TWO DOGMAS”: A PRELIMINARY RESPONSE TO CRITICISMS OF CONCEPTUAL ANALYSIS IN JURISPRUDENCE .................................................................................................................................. 18 I. INTRODUCTION .................................................................................................................................................... 18 II. THE ARGUMENT FROM AUTHORITY: JOSEPH RAZ ON THE NATURE OF LAW ........................................ 19 III. MAKING SENSE OF QUINE’S “TWO DOGMAS OF EMPIRICISM” ................................................................ 23 IV. ON LEITER’S INTERPRETATION OF QUINE: SOME GENERAL REMARKS ................................................ 32 V. RAZ’S METHODOLOGY: A REPLY TO LEITER ................................................................................................ 35 VI. CONCLUSION AND THE WAY FORWARD ......................................................................................................