Canberra‐Style Analysis and Law: A Critique of Andrei Marmor's Farewell to Conceptual Analysis

• DOI: http://doi.org/10.1111/raju.12170
• Published date: 01 December 2017
• Date: 01 December 2017
• Author: Paweł Banaś,Filip Gołba

Canberra-Style Analysis and Law:

A Critique of Andrei Marmor’s

Farewell to Conceptual Analysis

PAWEŁ BANA

S and FILIP GOŁBA

*

1. Introduction

It is hardly surprising that the methodological debate concerning the role played by

conceptual analysis in general philosophy has been brought to the attention of legal

philosophers. At least since the time of H. L. A. Hart, the founder of modern legal

positivism, conceptual analysis has been considered one of the primary tools legal

philosophers use to elucidate the nature of law. The results of this debate are thus of

great importance for both legal positivism and analytic legal philosophy as a whole.

In this paper we examine a recent contribution to the jurisprudential methodo-

logical debate: Andrei Marmor’s Farewell to Conceptual Analysis (in Jurisprudence)

(Marmor 2013). Marmor questions the widespread view that conceptual analysis is

one of the principal methods (or at least a significant method) of modern analytical

legal philosophy in general, and Hartian work in particular. He contends that, con-

trary to common opinion, the main thrust of Hart’s jurisprudence is a metaphysical

reduction rather than an analysis of the concept of law. In Marmor’s view, Hart

aims to reduce law to more foundational phenomena following positivist theorists

such as John Austin. The conclusion is that conceptual analysis is of minor impor-

tance: it cannot provide us with any knowledge beyond the ordinary meaning of a

word, which is known to every competent speaker of a given language.

We submitthat Marmor’s argument is inadequate insofaras it is focused on onepar-

ticular model of conceptual analysis, namely the model peculiar to Oxford linguistic

philosophy. However,conceptual analysismay come in differentshades and versions,

some of them directly opposing those aspects of the classical, Oxford-style model that

Marmor so dislikes. A classical Oxford-style conceptual analysis aims to provide nec-

essary and sufficient conditions for the correct application of a term associated with

* We wish to thank Tomasz Gizbert-Studnicki, Krzysztof Posłajko, Wojciech Załuski aswell as

the anonymous reviewers for many useful remarks and comments on the first draft of this arti-

cle. This paper is partof a project funded by the National ScienceCentre of Poland (UMO-2012/

07/N/HS5/00999).

V

C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 4 December 2017 (549–559)