I would like to thank Jody Kraus, Gerald Postema, Frederick Schauer, A. John Simmons, Christopher Sprigman, and Zahr Said for comments on this and earlier drafts.
Legal Rights and the Limits of Conceptual Analysis: A Case Study
Article first published online: 9 MAY 2013
© 2013 The Author. Ratio Juris © 2013 John Wiley & Sons Ltd
Volume 26, Issue 2, pages 215–234, June 2013
How to Cite
Barzun, C. L. (2013), Legal Rights and the Limits of Conceptual Analysis: A Case Study. Ratio Juris, 26: 215–234. doi: 10.1111/raju.12011
- Issue published online: 9 MAY 2013
- Article first published online: 9 MAY 2013
Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions.