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Advice > Philosophical jargon-buster

 

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Analysis, analytical
. Among philosophers, and lexicographers, analysis is contrasted with synthesis. Synthesis is bringing together, analysis is taking apart. One could explain something analytically by breaking it down into its own properties, and explain it synthetically by relating it to other things. Thus philosophers sometimes contrast an analytic proposition about something, which is true by the very nature of the something or conceptually true (e.g. sheep are animals) with a synthetic proposition, which links something with something else beyond its own nature and which is therefore vulnerable in principle to empirical falsification (e.g. sheep live in the hills). Never mind if you don't get this: you get the gist of breaking down (analysis) versus bringing together (synthesis). The problems really start when analysis or analytical is contrasted with something else. You may encounter three other contrasts: (a) analytical jurusprudence v evaluative jurisprudence; (b) analytical jursiprudence v critical jurisprudence and (c) analytical essay v descriptive essay. Contrast (a) is the contrast between understanding what law is (the very nature of law) and judging whether it (or some of it) is worthwhile, legitimate etc. Only some views of law make this distinction intelligible. Dworkin's, for example, breaks it down to a very large extent. Nevertheless it is a convenient way of dividing up your studies. Contrast (b) is harder to pin down. Arguably it is mainly a contrast between two different subject-matters, with 'analytical' jurisprudents taking legal thought and language seriously in its own terms and trying to understand it exactly before they judge it, and 'critical' jurisprudents regarding legal thought and language as something of a smokescreen which it is best to blow out of the way so that one may go straight to judging the underlying ('real') structures (of power, violence, exclusion, etc.). Finally, contrast (c) is the one you may find invoked by your tutor at the end of your essay ('too descriptive, not analytical enough'). You may be puzzled. After all you remembered contrast (a), the contrast between analysis and evaluation, and you identified that with a contrast between description and evaluation. So isn't analysis the same as description? No it isn't. What your tutor wants you to do is to start breaking down the views of the legal theorists you have studied (e.g. to separate various issues that were confused by Hart, to get under the skin of Dworkin's argument). What you did was to tell us what Hart and Dworkin said. Now ask yourself: Is that the same thing, or even close?

Argument. You would have thought that all law students would be interested in argument. But surprisingly many think that an argument is what their parents had at Christmas, i.e. a quarrel. An argument, however, is something you can enjoy on your own as well as with your partner. It is a process of using a combination of premises to arrive at conclusions. The conclusion must be a new proposition, different from each one of the premises. That you end your essay 'Thus it can be seen that ...' does not show that you have reached a conclusion. In fact very often this form of words simply precedes a reiteration of various unargued assertions. You know your essay contains an argument when at the end you have reason to assert something more than you asserted at the beginning. A good argument will also give your reader reasons to accept the assertions at the end if they accept (i.e. agree with or grant for the sake of argument) the assertions at the beginning.

Conceptual. Means, err, 'having to do with concepts'. Some law students say of jurisprudence that it is 'very conceptual'. But it is no more conceptual than, say, corporate finance law. Much legal study is the study of extremely troublesome legal concepts, such as contract, negligence, trust, and easement. Philosophical study, including jurisprudence, is often the study of concepts of similar difficulty and density to these, such as law, mind, knowledge, and duty. Of course there is one difference: lawyers, unlike philosophers, solve some of their conceptual problems by sheer judicial or legislative stipulation. Philosophers, by contrast, want to illuminate concepts without slipping into sheer stipulation. So what is a concept, this thing that can supposedly be illuminated without slipping into sheer stipulation? Put simply, the concept of something is just the IDEA of that thing. When somebody asks 'what is the concept of law?' they mean 'what is the idea of law?' They aren't (usually) interested in discovering the meaning of the word 'law'. The word 'law' has many meanings (look at the dictionary) and not all of them are equally relevant to the idea of law. Some are metaphorical, others are derivative, etc. To know which are metaphorical, which are derivative, etc. one must already have an idea of law to compare them with. And this idea is what 'conceptual analysis' of law is trying to unpack.

Empirical.  Something is empirical if in principle we could come to know it by observation. Not necessarily visual observation: it could be by hearing or touch or smell or taste. Many people use the word 'factual' to mean the same as empirical, but you should take care with this. Philosophically, it is an open question whether there are non-empirical facts, e.g. moral facts which we come to know not by observation but by thought and argument. In other words, don't move too quickly with the concept of a fact! Thinking that all facts are empirical may be a symptom of an acute infection of positivism, treatable only with the latest philosophical narcotics! Philosophy itself is non-empirical. No philosophical truth (and hence no philosophical facts, if facts they are) is known by observation (even the proposition that all other truths, or all other facts, are so known!) In this respect philosophy is akin to mathematics. Is it a fact, as well as a truth, that 2+2=4? If so, you believe in the existence of at least some non-empirical facts, so you are on your way to being cured of your infection.

Epistemology. The study of knowledge (from Greek). Problems about the nature and grounds of knowledge and belief are epistemological problems. The branch of epistemology that most often bothers law students studying jurisprudence is moral epistemology. Every time a moral problem comes up, a law student will ask: How are we to know? This is a boring and wasteful conversation stopper. It is in general the plague of our age to refuse to argue about things by being fist-thumpingly skeptical. It provides people with a blanket defence tactic (Why should I listen to you? Who are you to say?). Watch out: If you are uncompromisingly skeptical about morality, in particular, you will find it hard to participate in arguments about it, and hence in many related jurisprudential arguments. So the best thing to do is the philosophical thing, whish is to suspend your disbelief and grant some non-skeptical assumptions for the sake of argument. You are hereby authorised to ask 'How are we to know?' just once, to get it out of your system, but after that you would be well-advised to put moral epistemology on one side and get on with the rest of the subject (which is where it is all at).

Ethics.  May mean either (a) morality or (b) moral philosophy. The word is often used by people who think that the words 'moral' and 'morality' carry unpleasantly conservative overtones, or are otherwise distracting. Also preferred by people (e.g. lawyers, businesspeople) who like to pretend that they are not really implicated in moral problems at all (as in 'professional ethics', 'business ethics'). However the word 'ethics' carries its own pitfalls quite apart from this potential to license self-deception. In particular it is prone to create confusion between (a) morality and (b) moral philosophy, which are two different things.

Formalism. Apparently, this can mean what you want it to. Among US legal theorists 'legal formalism' is often used as a generic label for anything deeply despised (if we despise it, it must be formalism!). Some of these despisers seem to give it a loose association with legal positivism, so maybe legal positivism is what they really mean. But on other occasions anti-positivists are called formalists so this can't be the whole truth. (Then again, 'positivism' too is simply used in some quarters as a term of abuse.) Leaving aside the merely abusive use of 'formalism', there are two related but independent strands of thought that have historical claims to the name of 'formalism'. One is the view that the law can answer all imaginable cases from its own resources, that it need never step outside itself for extra arguments. The second is the view that law is a work of art that falls to be judged (first and foremost) on its aesthetic merits: its beauty, tidiness, wholeness, etc. Notice that most legal positivists are NOT formalists in either of these senses, although one could conjure up some wonderfully absurd formalist-positivist views of law if one badly needed somebody to despise.

Irreducible. Means 'cannot be reduced to something more basic'. Atoms were once thought to be irreducible but then we found out that they are reducible to combinations of neutrons, protons, and electrons. Metaphysics is the philosophical search for the irreducible. Good metaphysical questions: are minds reducible to brains (plus something)? are actions reducible to events (plus something)?

Jurisprudence. Literally: wisdom about the law (from Latin). Thus in a broad sense, the whole scholarly study of law (as in Oxford's 'Final Honour School of Jurisprudence'). But in a narrow sense, the philosophical study of law (as in the Jurisprudence paper, as in the coverage of this web site). Sometimes subdivided into general jurisprudence, which deals with philosophical puzzles that are thrown up by all legal systems (what is law? what is a legal system? what is legal reasoning? is there a general obligation to obey the law?), and particular jurisprudence, which deals with puzzles that afflict some legal systems or traditions but not necessarily all (what is common about the common law? in what sense is parliament sovereign? what is a tort?). The BA Jurisprudence paper emphasises general jurisprudence, as does the BCL/MJur option in Jurisprudence and Political Theory. The BCL Philosophical Foundations courses shift attention to particular jurisprudence.

Logic. The rules determining the validity of arguments, such as the rule against contradiction. Sometimes one reads judges saying such things as 'the common law lives by tradition as much as by logic'. Taken literally, this is drivel. If a certain rule is supported by tradition this is only because logic itself permits it, i.e because a valid argument can be framed in which the tradition provides a premise and the rule is a conclusion. Some people say that they want to escape logic to some rival mode of thought. But what rival mode? If the rival mode is valid then necessarily it is governed by logic. That is all logic is, so logic is inescapable. Sometimes a proposition is said to be logically true as another way of saying it is conceptually true. This is because, if it is part of the concept of law that a law is a rule, then one cannot say 'this is a law but it is not a rule' without contradicting oneself, and that violates one of the most well-known rules of logic. So one's statement could be called 'logically false' or 'conceptually false'.

Metaphysics. Literally: beyond or after physics (from Greek). In ordinary talk, 'metaphysical' is often a term of abuse: the problem of how many angels fit on a pinhead might be said to be 'metaphysical', meaning that it is an absurd thing to worry about. Some impatient people, and especially some impatient law students, regard all philosophy, and hence all jurisprudence, as metaphysical in this pejorative sense. But strictly speaking metaphysics (also sometimes known as ontology) is just one branch of philosophy. It is the branch concerned with what exists. If you find that description too mystical, you could think of it as the branch of philosophy dealing with the irreducible categories of thought. It covers such questions as: What is causation? Is an action a type of event? What is a person? In fact it covers all questions so basic that they bear on many other branches of philosophy and so don't fit within one in particular. Connected with this is an interesting controversy about the origins of the word. Some think that Aristotle first used it to indicate problems so deep that they went deeper than those covered in his Physics: hence meta (beyond) physics. Others think that he used the label merely to denote the strange miscellaneous and hence hard-to-describe work that he happened to write after writing his book on Physics, hence the book came literally meta (after) Physics.

Morality.  Broadly: the art of life, the way to conduct oneself. More narrowly: the proper way to treat others. It is a scare-word to many people and especially to many lawyers, and hence is sometimes put in scare-quote marks. On hearing the word some people think at once of conventional or popular views about morality. Since they regard many conventional or popular views about morality as misguided, they want to keep their distance from them. But doesn't this very reaction - that many conventional or popular views about morality are misguided - show that morality can't just be (assumed to be) what it is conventionally or popularly conceived to be? This challenge reveals that it is a philosophical question, the answer to which cannot simply be assumed, whether popular views about morality are in any way authoritative. In fact it is a philosophical question whether morality needs or has any authorities. The common but unargued assumption that it does reflects the view that morality is a law-like system of standards, where law itself is in turn regarded positivistically. By the way, when you put important words in scare-quotes (including 'good', 'right', 'true', 'beautiful' and so on as well as 'moral') be aware that you may be giving yourself away as an intellectual coward or lightweight by trying to distance yourself from the very problems you are supposed to be studying.

Moral philosophy. What it sounds like: the philosophy of morality. The main problem here is that many people think that any fireside chat about a moral problem (such as The Moral Maze on BBC Radio 4) is a philosophical discussion. Conversely, they think it is moral philosophy's main job to solve people's everyday moral problems. But ask yourself this. Would you go to a legal philosopher to get your conveyancing done? Then why assume that a moral philosopher will be well qualified to tell you whether it is better to let a sick child die? Moral philosophy aims to expose the hidden structure of sound moral thought. If a case really is difficult, decent moral philosophy should reveal exactly what it is that is so difficult about it. If it makes it seem less difficult than it is (e.g. by giving you a simple test to solve it) then something has gone wrong. Correspondingly, when you are discussing somebody's moral philosophy don't get too distracted by their mere moral views. Whether they end up defending (say) animal rights is often not of the essence, philosophically speaking. It is how they get there that is philosophically interesting. (But as with everything on this page, even this claim is philosophically controversial. It is itself a philosophical problem whether moral philosophy can be expected to make your moral life easier by giving you better solutions to moral problems!)

Natural law. Sometimes called legal naturalism, but better not, because natural law theorists need not strictly speaking be naturalists (let alone naturists, as at least one undergraduate memorably wrote). The common strand of natural law theory is the conviction that it is part of the idea or concept of human law that human law answers to some higher law (or body of doctrine) beyond itself. This higher law may be but need not be morality. People in the law and economics movement are often natural law theorists. They believe that the law of the market is the natural law and that it is built into the very idea of law that laws stand or fall according to their compliance with the higher law of the market. It would also be possible to be a natural law theorist who held laws to aesthetic standards: some versions of legal formalism are natural law theories of this type. However many well-known natural law theories regard human law as answerable to specifically moral standards. As it stands, this claim is compatible with legal positivism. One may, for example, hold that human laws have two features: (1) that they exist as human laws thanks only to their human sources (legal positivist view) and (2) that nevertheless it is part of the built-in aspiration of all such laws that they should live up to moral (or economic or aesthetic) standards (natural law view). However some natural lawyers have reinforced (2) to the point at which it carries them away from (1). So some but not all members of the natural law tradition are legal anti-positivists. You work out which.

Naturalism. Don't worry about it and don't mention it until you come to write your doctorate. (But if you insist, read all about it in the Stanford Encyclopaedia.)

Naturism. The same as nudism. Not a philosophical position. Except perhaps in the very loose sense in which The Guardian, Volkswagen, Chanel, and the Spice Girls can be said to have 'philosophies'.

Objective. People who are skeptics often worry about objectivity, and people who are moral skeptics worry especially about moral objectivity. But what exactly are they worrying about? Usually many different and only very loosely related things. Some are important and others are not. Unless you are very clear what exactly you are worrying about (and can spell it out sharply for the rest of us who aren't so sure) it is better not to invoke the term or its similarly slippery partner, subjective.

Ontology. See metaphyics.

Philosophy. Literally: the love of knowledge (from Greek). Colloquially having a 'philosophy' just means having a lot of loosely connected and usually very irritating opinions (see naturism). Meanwhile, and quite differently, being 'philosophical' means being of a placid temperament, able to see one's problems in the grand scheme of things and hence not inclined to get worked up about them. Thus overheard on a bus (as reported by Ronald Dworkin): 'Be philosophical, dear, don't give it another thought.' But of course to be philosophical in the scholarly sense one MUST give it another thought ... and another, and another. The task of a philosopher is to isolate (and occasionally solve!) the more abstract puzzles that underlie the more concrete puzzles that everyone else wants to solve. To some people this makes philosophy seem somewhat remote (cf metaphysics). Some law students are particularly unnerved by the fact that philosophy (and hence jurisprudence) is not an empirical discipline: they expect to talk about sociological problems rather than philosophical ones.

Positivism. A philosophical position which interprets something or other as empirical. Most extreme: 'logical positivism' (it would be more accurately labelled 'metaphysical positivism') which interprets EVERYTHING as empirical. You need not worry about this extreme positivism unless you are unfortunate enough to be suffering from it. In jurisprudence the most common positivism is a much narrower (and more plausible) positivism called legal positivism, according to which the existence or validity of a legal standard depends on empirical conditions (e.g. when was the law made? by whom? how?) Just because one is a legal positivist doesn't mean, thankfully, that one is a positivist about everything. It is tempting for lawyers also to be moral positivists, i.e. to think that the existence of validity of a moral standard depends on empirical considerations (e.g. who believes it? who follows it? how long have we known about it? did the Bible ever mention it?) But if you are a moral positivist it may be harder for you to appreciate what is so interesting and important about legal positivism. Legal positivism is interesting and important if there are some other conditions on which standards could exist or be valid APART FROM empirical conditions. If there are non-empirical conditions for the existence or validity of other standards, then the possibility that legal standards exist or are valid on merely empirical conditions becomes intriguing. Normally, after all, one might expect to defend a certain standard by showing what is so GOOD about it. How come as a lawyer you don't do this so much as defend your standards by showing that some old bloke in a wig once mentioned them? That is the puzzle of legal positivism. Be careful, by the way, not to set up a phoney war between legal positivism and 'natural law theory'.

Premises. Sometimes written as 'premisses'. The inputs to an argument. If you haven't got an argument you haven't got any premises and by the same token you haven't got any conclusions, which are the outputs of an argument. Having neither premises nor conclusions is a common form of deprivation suffered at some times by all undergraduates.

Skeptical (or sceptical). Loosely, in common parlance: of a doubting disposition (a good thing for a philosopher). More strictly, in philosophical discourse, sometimes with a capital S: denying the very possibility of knowledge (generally a bad thing for a philosopher, unless you want to spend your whole philosophical life confined in the darkest dungeons of epistemology). By all means be small-s skeptical, but be capital-S Skeptical at your own risk.

Sociology. The study of societies. Fundamentally an empirical subject, and in that respect the foil of philosophy. But since sociologists need classificatory schemes for social phenomena, and these schemes are not themselves observable, there is an overlap and interface between the two disciplines. On your jurisprudence course you may do some sociological jurisprudence, which is a kind of jurisprudence that tries to locate law among (other) specifically sociological classifications and to eliminate non-sociological ('metaphysical'?) classifications.

Subjective. See objective.
 

 

 


Baffled by the way philosophers talk? Here is an A-Z of commonly encountered terms ... not all of it entirely uncontroversial. The explanations are by John Gardner.

Analysis, analytical
Argument
Conceptual
Empirical
Epistemology
Ethics
Formalism
Irreducible
Jurisprudence
Logic
Metaphysics
Morality
Moral philosophy
Natural law
Naturalism
Naturism
Objective
Ontology
Philosophy
Positivism
Premises (or premisses)
Skeptical (or sceptical)
Sociology
Subjective

If you want to go deeper into philosophical vocabulary, or you need explanations not found here, or better explanations than those found here, we recommend A.W. Sparkes, Talking Philosophy: A Wordbook (Routledge 1991), which is unfortunately out of print but ought to be in print. Check out a Library copy and if you like it email the publisher to put pressure on for a reprint.

A good source of brief philosophical essays on core philosophical categories and debates is the Stanford Encycloaedia of Philosophy (freely accesible online)