Skip to navigation – Site map

HomeNuméros54Prototype theory of concepts and ...

Prototype theory of concepts and analytical account of law

Methodological crossroads
Miodrag Jovanović

Abstracts

This paper addresses three sets of issues. Considering the universal importance of categorization in the human world, it first highlights differences between the processes of concept-formation of items belonging to the natural and human-made world. Second, proceeding from experiments in cognitive psychology, which have persistently demonstrated the relevance of typicality judgments, it tries to elucidate their scope and significance for an underlying theory of concepts. In the final step, the paper shows in what sense the ensuing prototype theory of concepts is germane for an attempt to conceptualize law in the tradition of analytic philosophy. Namely, if nothing else, cognitive science experiments demonstrated that the metaphysical inclination of analytical jurisprudence is grounded in scientifically unfounded psychological assumptions about the nature of our cognitive system and categorization.

Top of page

Full text

1 Introduction

  • 1 Reuters 2019.
  • 2 “In one remarkable experiment published in Science, researchers in Japan found that a slime mold ma (...)

1In October 2019 several media outlets reported a story from the Paris Zoo, which showcased a new small yellowish unicellular living being. It was named the ‘blob’ after a 1958 science-fiction horror B-movie, in which an alien life form of that name consumes everything in a small Pennsylvania town. The director of the Paris Museum of Natural History, of which the Zoological Park is a part, was reported as saying, “The blob is a living being, which belongs to one of nature’s mysteries.” It is mystical because the being in question escapes a smooth scientific classification. The blob is surely not a plant; it looks like a fungus, and yet it acts like an animal. It can learn, but it has no brain. It has no mouth, stomach, or eyes, and yet it can detect food and digest it. Moreover, the blob has almost 720 sexes, is capable of moving without legs or wings, and heals itself in two minutes if cut in half.1 Physarum polycephalum, Latin for “many-headed slime,” is informally labeled as a type of slime mould that, although lacking a nervous system, is capable of advanced decision-making, learning, and long-term memory storage.2

  • 3 In fact, Mboma won the silver medal in the 200m Olympic race!
  • 4 Illegibility is stipulated in Article 2.2.1: “A ‘Relevant Athlete’ is an athlete who meets each of (...)
  • 5 The decision is available from the Court of Arbitration for Sport (2019) at https://www.tas-cas.org (...)
  • 6 The decision in French is available from the Swiss Federal Tribunal (2020) at https://www.bger.ch/e (...)
  • 7 The Court found that some procedural entitlements of this broader cluster right were violated, and (...)
  • 8 Equally interesting is the question about the alleged scientificity of the “testosterone rules”, wh (...)
  • 9 Jovanović 2020.

2On the eve of the beginning of the 2020 Olympic games in Tokyo, the sports news reported that Namibian sprinters Christine Mboma and Beatrice Masilingi had been ruled ineligible to compete in the women’s 400m race due to naturally high testosterone levels. These sprinters were in the top five in their discipline that year. Though excluded from the 400m, they were still able to compete in 100m and 200m events3 since those disciplines were not covered by World Athletics’ 2019 Eligibility Regulations for the Female Classification [Athletes with Differences of Sex Development] (DSD). The athletics global governing body requires a female athlete’s blood testosterone level to be less than 5 nmol/L (nanomoles per liter).4 Therefore, for athletes like Christine and Beatrice to be eligible to compete as females, they would have to reduce their blood testosterone below that level for a continuous period of at least six months, typically by use of hormonal contraceptives. In 2019, the Court of Arbitration for Sport upheld World Athletics’ DSD rules when they were challenged by South African runner Caster Semenya.5 After she lost a subsequent appeal before the Swiss Federal Supreme Court,6 Semenya took her case to the European Court of Human Rights, arguing, inter alia, that her right to non-discrimination was violated.7 This story raises a range of similarly interesting questions of categorization. First, how should we classify World Athletics’ ‘testosterone rules’?8 Are they legal rules at all? If they are, do they belong to the class of municipal (e.g., Swiss) or international legal rules? Or, as some scholars would argue — to the novel category of global (administrative) law?9 If the latter is indeed the case, what may serve as the criterion for such classification?

  • 10 Rosch 1999.

3These two recent events, from two very different spheres of life, testify to the words of the famous cognitive psychologist Eleanor Rosch: “One of the most basic functions of living creatures is to categorize, that is to treat distinguishable objects and events as equivalent. Humans live in a categorized world.”10 Apart from this universal message about the relevance of categorization and concepts in the human world, the first question raised by these stories is whether there are any differences in the concept formation and categorization of items belonging to the natural (‘blob’) and human-made world (World Athletics’ rules). Second, many experiments in cognitive psychology, some of which were Rosch’s, have demonstrated the importance of participants’ typicality judgments in various studies, even if there is an ongoing discussion about the precise meaning and effects of these judgments for an underlying theory of concepts. Finally, for anyone interested in the problem of the conceptualization of law in the tradition of analytic philosophy, the question is whether the findings from cognitive psychology have any bearing on the respective jurisprudential methodology. In this paper, I will briefly tackle all three issues.

2 Concept formation in different spheres of life

  • 11 Raz 2005.
  • 12 A further complexity stems from the fact that different disciplines approach concepts differently: (...)

4The story from the Paris Zoo ideally illustrates the complexity of the process of concept formation, that is, the intricate relation between an item of the natural or social world — in this case, a living being —, a word that is supposed to denote this item in our linguistic practice, and a corresponding concept. Raz explains this relation in the following way: “Concepts are placed between the world, aspects of which they are concepts of, and words or phrases, which express them (the concepts) and are used to talk about those aspects of the world.”11 The complex dynamics between the three elements are different, primarily due to the overall characteristics of the item in question.12

  • 13 “During one of their growth stages, they are protozoa-like because they lack cell walls, have amoeb (...)
  • 14 GrrlScientist 2019.

5As a part of the natural world, a yellowish unicellular creature first emerged on the radar of relevant scientific experts. It is thus no wonder that they were the ones to name it, both in Latin and by its less formal ‘blob’ which is, nonetheless, more likely to be used in linguistic practice. The naming, however, did not affect a neat biological taxonomy. Slime molds, in general, “are a biological and taxonomic enigma because they are neither typical fungi nor typical protozoa.”13 Despite the fact that the ‘blob” shares some traits with the three major kingdoms of life, namely, “it eats like an animal, breeds like a mushroom, and is colored like a plant”, on some other important characteristics it can be also classified into the kingdom of protists (protozoa).14

  • 15 On the relevance of similarity in natural sciences, see Hampton 2001.
  • 16 Bajčić 2017: 19.
  • 17 Bajčić 2017: 20.
  • 18 Himma 2015: 68.
  • 19 This is the firm ground for a further claim that conceptual analysis is not necessarily exhausted i (...)

6Before giving the creature its name, scientists started the process of concept formation, by detecting the relevant features of this living being based on similarities with already existing categories and taxonomies.15 This aptly demonstrates that while concepts may logically exist without corresponding terms, the opposite is not the case.16 Concept formation is “the process of understanding a concept within its conceptual structure,” and as such “is inseparable from the category of meaning.” Accordingly, “conceptualization is what promotes a term to meaning.”17 This is where the processes of concept formation and linguistic formulation meet. Himma, thus, rightly observes that “the contents of our concepts are highly responsive to the linguistic practices involving the associated words because we cannot share an understanding of how to use a word without sharing a grasp of the core content of a concept.”18 Put differently, a competent speaker will use a word properly only if she knows its meaning, which at the same time implies that she has at least a basic comprehension of the concept expressed by the corresponding word. Nevertheless, the lexical meaning and the content of the concept need not fully overlap.19 Everything hinges upon the complexity of the conceptualized item that is denoted by a specific word. Hence, the dictionary meaning of ‘blob’, or the competent usage of the word in daily communication, will most certainly be less elaborate than the content of the respective biological category and taxonomy.

  • 20 I will here leave aside Ruth Millikan’s contestable thesis that the concept of “proper function” is (...)
  • 21 Baker 2004: 102.

7With most simpler items of the social world, we will not encounter this situation. For instance, being acquainted with the meaning of the word ‘chair’ shall suffice for grasping the content of the corresponding concept. An important novelty, however, is that artefactual items of the social world, unlike their counterparts in the natural world, have some specific function.20 In the words of Lynne Rudder Baker, “artifacts have proper functions that they are (intentionally) designed and produced to perform (whether they perform their proper functions or not).”21 Therefore, knowing what a chair is necessarily involves knowing what a chair is for.

  • 22 Shea (n.d.).
  • 23 There was resistance to this linguistic practice, on a somewhat silly ground that “[t]he name is a (...)

8Processes of linguistic formulation and concept formation do not always go hand in hand, though. Take, for example, the concept of ‘hoverboard’. The word is nowadays globally used, even outside the English-speaking world, to denote a self-balancing board/scooter, the massive production of which started in 2015. The word itself, much alike ‘blob’, was first used in the sci-fi genre, namely, in Michael Kennedy Joseph’s 1967 novel The Hole in the Zero – A Story of the Future. Despite not providing details of the exploited phrase “hoverboard skating”,22 Joseph instigated a reasonable expectation that the item with such a name needed to hover. Such understanding of the concept was readily accepted by the creators of the 1989 film Back to Future (Part II), which has a well-known chase scene with skateboards magically floating above the ground. However, when Chinese-American inventor Shane Chen launched a two-wheel, self-balancing vehicle with independently movable foot placement sections, the term ‘hoverboard’ was quickly appropriated despite the fact that the board does not actually hover. Thus, an earlier formulated term, which once had expressed a sci-fi concept, was subsequently adopted by the linguistic community to denote a real, human-made artifact,23 the main features of which enabled the formation of different content for the respective concept as well as its differentiation from similar concepts (e.g., the segway).

  • 24 Collins’ dictionary definition of ‘smirting’ is: “the activity of flirting between smokers who are (...)

9Highlighted differences between processes of linguistic formulation and concept formation, that is, between the lexical meaning of the designated word and the content of the concept, become even more obvious when the items in question are social practices. For sure, social practices vary in terms of complexity, abstractness, and (in)formality, and all this affects their putative conceptualization. Take, for example, the highly informal and uncomplicated social practice of smoking outside restaurants, bars, and clubs, which was born out of indoor smoking bans. The legislative prohibition created new social dynamics, which apart from the acts of mere consumption of cigarettes also included the acts of social interaction and flirting. This quickly prompted – at least in English-speaking countries – the birth of the term ‘smirting’ (a blend of smoking + flirting), to describe the aforementioned practice. Although in this case the lexical meaning of the word and the content of the corresponding concept largely overlap, the analysis of the concept will, as a rule, go beyond a mere dictionary definition of the coined term.24

  • 25 Take, for example, the following dictionary definition of ‘law’: “a binding custom or practice of a (...)
  • 26 An additionally perplexing question concerns the implications of the artefactual nature of law. See (...)
  • 27 Berlin says that “[t]he perennial task of philosophers is to examine whatever seems insusceptible t (...)

10It goes without saying that things are less simple when it comes to the conceptualization of a complex, formal, and highly abstract social practice called ‘law’. While most competent language speakers have a fairly elaborate idea of what the word ‘law’ denotes in their everyday lives, and dictionary definitions of the term are even more comprehensive,25 it is clear that an analysis of the content of the corresponding concept is always much richer, digging into commonly used definientia, such as ‘rules’, ‘bindingness’, ‘enforceability’, ‘authority’, etc.26 Who, then, is responsible for completing the task of concept formation in the case of the item called ‘law’? For terms such as ‘hoverboard’ or ‘smirting’, in which the process of conceptualization is not that complex, this task is not assigned in advance to some designated circle of experts. This is different in the case of the ‘blob’, wherein the general expectation is that the tasks of concept formation and taxonomy shall be performed by natural scientists. In the case of ‘law’, an intuitive answer would be that the task in question is upon lawyers themselves. However, the history of this professional community testifies to the fact that practicing lawyers are hardly ever interested in addressing the question of what ‘law’ is. This eventually leaves us with the usual suspects — philosophers — and more precisely, philosophers of law.27

11Keeping similarity in mind in terms of the ‘who’ question between the cases of ‘blob’ and ‘law’, the final question is whether natural scientists and legal philosophers are in the same position when performing the task of concept formation. A short answer to this question is ‘no’. Raz provides a more detailed response as to why this is so:

  • 28 Raz 2007 (in Spanish). English version at josephnraz.googlepages.com/TheoryandConcepts-finalversion (...)

We have reason to think that the various natural sciences are our best source of knowledge. In our practices we often give scientists a privileged position in forging our concepts. We take the concept to be whatever it is in the hands of the scientific community working in the area concerned. Things are different with social concepts such as gifts, ownership, marriage, law, rights, duties, which are used by all to understand themselves and others, and their position in the world. These concepts are not merely tools of understanding, they are part of what shapes the social world we are trying to understand. They, the concepts themselves, are what we are trying to understand, and not tools of explanation. If we could change them at will we would be changing the social reality we were trying to understand.28

  • 29 Marmor 2013: 212.
  • 30 Priel also advises analytical jurisprudence that, if it wants to work with a more reliable set of e (...)

12If indeed the concept of law cannot be fully “revisionist”,29 that is, if in the process of concept formation legal philosophers need to take into account how it is used in our everyday world, then it seems prudent to turn to disciplines occupied with processes of categorization and conceptualization. Cognitive psychology is one such discipline.30

3 Categorization, typicality ratings, and theory of concepts

  • 31 In his review of Lakoff’s book, well-known cognitivist linguist Ronald W. Langacker nicely summariz (...)

13 At the beginning of one of the classics in cognitive psychology and linguistics, Woman, Fire, and Dangerous Things, George Lakoff says that ever since the time of Aristotle, categories and concepts were considered highly unproblematic. They were regularly taken to be “abstract containers, with things either inside or outside the category.” Things were assumed to be inside the given category “if and only if they had certain properties in common.” And vice versa, the common properties were deemed as defining the concept. Most importantly, this classical theory, or “Objectivist Paradigm”,31

  • 32 Lakoff 1987: 6.

was not the result of empirical study. It was not even a subject of major debate. It was a philosophical position arrived at on the basis of a priori speculation. Over the centuries it simply became part of the background assumptions taken for granted in most scholarly disciplines. In fact, until very recently, the classical theory of categories was not even thought of as a theory. It was taught in most disciplines not as an empirical hypothesis but as an unquestionable, definitional truth.32

  • 33 This is by no means the only theory of concepts, apart from the classical one. However, from the po (...)
  • 34 They were chosen because they “do not have any obviously analyzable criterial attributes, formal st (...)
  • 35 Wittgenstein 1958[1953]: par. 66-67.
  • 36 See, e.g., Rosch & Carolyn 1975: 573-605.
  • 37 Rosch 1978: 36.
  • 38 Under this theory, “categorization is to be understood as a similarity comparison process, where si (...)
  • 39 Rosch emphasizes that “these are not probability judgments but judgments of degree of membership.” (...)
  • 40 Rosch 1999: 67.
  • 41 Osherson & Smith 1981: 35.

14In launching a comprehensive attack on this paradigm, Lakoff grounded his position on empirical studies in cognitive psychology, in particular, on the rigorous experiments on the nature of human categorization, which subsequently became known as “the prototype theory”.33 The experimental studies started with colour categories34 but quickly moved on to other kinds of concepts, including artifacts and social practices. Taken within Wittgenstein’s heuristic framework of “family resemblances”,35 those works36 have demonstrated that “subjects overwhelmingly agree in their judgments of how good an example or clear a case members are of a category, even for categories about whose boundaries they disagree.”37 That is, contrary to the premises of the standard picture, which implies that informants perceive all instances as equally good category members or non-members, these studies have shown that people treat some instances as more or less typical of the category membership.38 The detected typicality judgments/ratings39 are premised on the existence of “prototypes”, i.e. “the judged best examples of conceptual categories”.40 The “best” here stands for some “measure of central tendency”.41

  • 42 Rosch 1978: 38.
  • 43 More precisely, “[a]ccording to the Effects = Structure interpretation, scalar goodness-of-example (...)
  • 44 Consequently, “[d]egrees of category membership for other entities are determined by their degree o (...)
  • 45 Winter 2001: 133.
  • 46 “Cognitive models structure thought and are used in forming categories and in reasoning. Concepts c (...)
  • 47 Each ICM uses four kinds of structuring principles: propositional structure, image-schematic struct (...)

15Rosch was very cautious about the full scope of the aforementioned findings from the beginning. In particular, she stressed that “[t]he fact that prototypicality is reliably rated and is correlated with category structure does not have clear implications for particular processing models nor for a theory of cognitive representations of categories.”42 Lakoff went a step further and argued more boldly that interpretations of prototype effects that equal them with the structure of concept/category, as in the formula “Goodness-of-example ratings are a direct reflection of degree of category membership”, are simply not warranted.43 Equally unsustainable, according to him, is the inference according to which prototype effects are to be taken as indicators that “[c]ategories are represented in the mind in terms of prototypes (that is, best examples)”,44 which comes in two forms: “one in which the prototype is an abstraction, say a schema or a feature bundle, and another in which the prototype is an exemplar, that is, a particular example.”45 Lakoff, instead, argues that prototype effects result from the fact that knowledge is organized in terms of different “idealized cognitive models” (ICMs),46 which are complex structured wholes.47

  • 48 Langacker, for instance, argues that “generally, though L[akoff] does provide examples of ICM’s giv (...)
  • 49 Katz & Fodor 1963: 170–210.

16Lakoff’s alternative treatment of the prototype effects was by no means met with universal assent,48 but this is neither the place, nor am I qualified enough, to try to settle all the open issues in categorization studies. For the purposes of this paper, it will be sufficient to turn to the discussion of the concept of ‘bachelor’, because this example is often used by some prominent supporters of the classical theory of categories among analytic legal philosophers. ‘Bachelor’ was first discussed in linguistics, in the well-known componential analysis by Katz and Fodor, which rests on the idea that the meaning of words can be analysed as construed from more basic semantic primitives, i.e., features or markers. Hence, the concept of ‘bachelor’ can be broken down into a set of abstract semantic features: human, male, adult, and non-married.49 A decade later, Fillmore challenged this “checklist theory of meaning”, by showing that the boundary problem, which is supposedly set by the classical theory, is in fact still very much open. He asked:

  • 50 Fillmore 1975: 128.

How old does an unmarried man have to be before you can call him a bachelor? Is somebody who is professionally committed to the single life properly considered a bachelor? (Is it correct to say of Pope John XXIII that died a bachelor?) If so, is bachelorhood a state one can enter? That is, if a man leaves the priesthood in middle life, can we say that he became a bachelor at age 47? When we say of a divorced man or a widower that he is a bachelor, are we speaking literally or metaphorically?50

  • 51 Lakoff 1987: 70.
  • 52 Lakoff 1987: 71.

17Fillmore concluded that there is a “frame”, that is, a structured conceptual complex relative to which a certain notion is categorized. In this case, grasping the concept of ‘bachelor’ presupposes the conception of a society in which a male is expected to marry soon after reaching a certain age. Lakoff changed the terminology (ICM substituted “frame”), but the conclusion was the same. Prototype effects arise because “[t]he idealized model says nothing about the existence of priests, ‘long-term unmarried couplings,’ homosexuality, Moslems who are permitted four wives and only have three, etc.” Since the idealized model, as a rule, does not fit the world perfectly, unmarried adult males, such as the Pope or Tarzan, are certainly not representative members of the category of bachelors.51 However, if the ICM fits a situation perfectly, then categorization runs smoothly. This led Lakoff to conclude that “bachelor is not a graded category. It is an all-or-none concept relative to the appropriate ICM.”52

  • 53 Wierzbicka 1990: 349.
  • 54 Wierzbicka 1990: 349.
  • 55 Himma 2015: 71.
  • 56 Himma 2020: 47.

18Defenders of the classical view of categorization objected to this by pointing out that the problem arises because the search for ‘necessary and sufficient features’ normally focuses “on physical features, and ignores mental ones.”53 Wierzbicka, thus, proposed amending the standard formula with the additional feature — thought to be marriageable. A revised definition would go as follows: “bachelor - an unmarried man thought of as someone who could marry.”54 Funny enough, Himma, a staunch proponent of the classical view of concepts in legal philosophy, has recently come to a similar conclusion. While starting from a tidy set of properties — “unmarried adult male” — that are reported in dictionaries and can be detected in ordinary linguistic practices, when faced with the cases of the Pope or a gay man who lives in jurisdictions not recognizing marriage equality,55 Himma was forced to modify the list of necessary and sufficient features, by adding “that something must be institutionally or psychologically eligible to marry to count as a bachelor.”56

  • 57 However, Pope Francis has recently instigated a debate regarding whether the Catholic Church should (...)
  • 58 History teaches us that male members of some other professions or services were also forbidden from (...)
  • 59 This linguistic practice is captured in dictionary definitions: “a man who has been a bachelor for (...)

19It seems, however, that simply adding some mental qualification as a further necessary feature neither solves the problem of neat categorization nor vindicates the claim that ‘bachelor’ is an all-or-nothing concept. Consider the ‘eligibility’ criterion. A man who performs the function of the Pope within a specific institution called the Catholic Church is otherwise fully eligible to marry. So, one may argue that he is ‘ineligible’ only in virtue of willingly shutting himself off the possibility of marrying a woman, by being a member of the Christian denomination, which forbids its ministers to marry. Hence, the Pope, or any other member of the Catholic Church clergy for that matter, is in this important respect similar to any other man who willingly rejects entering into marital status. Their reasons for doing so are nonetheless obviously different. While priesthood is deemed a ministry conformed to the life and work of Jesus Christ, and as such incompatible with matrimony,57 bachelorhood is usually a matter of a certain Weltanschauung.58 Furthermore, what can we say about a heterosexual adult man who is willing to marry, but is unable to do so for whatever reason? Despite satisfying all the criteria of even Wierzbicka’s extended definition of ‘bachelor’, he is intuitively not to be judged as equally representative as the one who deliberately avoids transforming into a marital status. In fact, in a number of societies, including Anglo-American, the linguistic practice acknowledges this difference, and thus depicts the latter category as ‘confirmed bachelors’.59

  • 60 For instance, “[a] man who is either divorced or widowed (or both!) can certainly be defined as ‘an (...)
  • 61 Cole 1999.
  • 62 “Until the mid to late twentieth century, the state (as well as the church) regulated relationships (...)
  • 63 Schlegel & Barry III 1991: Ch. 6.
  • 64 Fox 2011: 151-159.

20One can go on like this, showing that even in the case of a simple social practice, such as ‘bachelorhood’, borderline instances cannot be easily eliminated.60 It transpires that the categorization is relative to a particular socio-historical “frame”, which implies that the meaning/content of the defining features — ‘unmarried’, ‘adult’, ‘male’, ‘institutionally and psychologically eligible’ — is also contingent and changing. Cole provide the following example: “a man who is a member of a society that does not recognize marriage, but who flies to New York in search of a marriage partner, arrives at the airport, it seems to me, a bachelor.”61 Similarly, in the shifting socio-historical circumstances, in which the legal status of a non-marital union is largely equated to that of marriage,62 an adult heterosexual man living in cohabitation will hardly be considered a ‘bachelor’. Furthermore, if in certain cultures, as claimed by anthropologists, marriage is the definitive marker of adulthood,63 is the concept ‘bachelor’ in these societies contradictio in adjecto, since being unmarried and being an adult are conceptually inconceivable? Finally, as our introductory story of athletes with DSD aptly demonstrates, even the categorization of ‘males’ and ‘females’ according to the standard picture is nowadays contestable, insofar as biological sex, social gender, and legal status need not overlap.64

  • 65 Rosch 1999: 67.
  • 66 Interestingly, Winter takes ‘bachelor’ to be a non-graded concept that produces prototype effects, (...)
  • 67 Geerearts 2016: 5-6.

21 One of the main alleged virtues of the traditional philosophical approach based on conceptual analysis “had been that the hypothesized criterial attributes were just what didn’t change with context.” In contrast, “[a] very important finding about prototypes and graded structure is how sensitive they are to context.”65 Everything said so far indicates that Lakoff’s ICM has never completely fit background empirical conditions, which in turn implies that prototype effects, i.e., central and borderline instances, are after all consequences of the fact that ‘bachelor’ is more adequately represented as a graded, rather than as an all-or-nothing category.66 In contrast, the former — prototypical — concept cannot be defined by using a single set of criterial (necessary and sufficient) features. Instead: 1. a prototypical concept’s structure takes the form of a radial set of clustered and overlapping senses; 2. prototypical concepts exhibit degrees of category membership also known as the typicality effect or goodness-of-example rating; and 3. prototypical concepts are blurred at the edges, which means that they do not have rigid boundaries.67

4 Prototype theory of concepts and concept of law

  • 68 Zeifert makes an even more general claim, “The prototype approach … has barely been noticed in lega (...)
  • 69 Rosch 1999: 64.
  • 70 While this obviously holds for the philosophical tradition called “analytical jurisprudence”, it is (...)
  • 71 Marmor says that analysis “must be based on observation of linguistic practices and prevailing ling (...)
  • 72 Alexy stresses that “while the analysis of the actual use of language is, as J. L. Austin aptly rem (...)
  • 73 Himma says that canons of ordinary language usage “are roughly but accurately expressed by any repu (...)
  • 74 After opening his last book with a remark about the employed methodology, Himma adds in a footnote, (...)
  • 75 Raz says that a theory of law “consists of necessary truths, for only necessary truths about the la (...)
  • 76 According to Shapiro, “[t]he key to conceptual analysis … is the gathering of truisms about a given (...)
  • 77 Green says that “the features necessary to law are those found not only in all existing and histori (...)

22Despite being in the business of an everlasting search for an adequate concept formation of a complex social practice called ‘law’ and its distinction from similar phenomena, the most influential authors of contemporary jurisprudence have almost completely neglected developments in categorization studies.68 They largely stick to the aforementioned classical view, according to which categories and concepts are seen as logical sets, with 1) clearly defined boundaries; 2) common attributes that are necessary and sufficient conditions for membership in the category; and 3) all category instances treated as equally good concerning membership, that is, “either they have the necessary common features or they don’t.”69 Further commonalities between otherwise different jurisprudential approaches are that they largely, if not exclusively, rely on the method of philosophical analysis,70 while at the same time bearing in mind that the concept of law cannot be “revisionist” and, hence, needs to reflect and be grounded in some empirical data (e.g., ordinary intuitions,71 linguistic usage,72 dictionary definitions73) about the relevant social practice. The employed methodology, which Himma quite adequately labels as “metaphysically driven conceptual analysis” (hereinafter, MDCA),74 should result in a set of conceptual claims about the object of inquiry, which are understood as “necessary truths”,75 i.e., “truisms”76 that are valid in all possible worlds.77

23Himma again uses the example of ‘bachelor’ to explicate this intricate relation between the empirical and analytical steps of MDCA:

  • 78 Himma 2020: 44.

The truth-value of the claim that the concept-term bachelor means ‘unmarried adult male’ depends on competent speakers converging on practicing an empirically contingent linguistic convention dictating that the concept-term bachelor is properly applied only to unmarried adult males.78

  • 79 Elsewhere, I have labelled the main ingredients of the MDCA as – essentialism, necessarianism, apri (...)
  • 80 For a comprehensive socio-legal critique of MDCA, see, e.g., Tamanaha 2017: Ch. 3.
  • 81 Bix adds that “[t]he matter would be different if we were positing some new concept or category, an (...)
  • 82 Marmor 2013: 225.
  • 83 Schauer 2015: x-xi.
  • 84 Schauer 2015: 4. In vindicating Schauer’s approach, Chiassoni says that “[e]ssentialist jurispruden (...)

24All the ingredients of this methodology79 have been recently challenged not only by scholars working in socio-legal studies,80 but also by prominent proponents of analytical jurisprudence. Bix, for instance, emphasizes the tension between the empirical and analytical parts of the project. While he says that “[t]here is … a sense in which conceptual work must be prior to empirical work”, he immediately acknowledges that there “is also a sense in which the theorist doing conceptual analysis must defer to the way the world is, at least in those cases where the theorist is investigating the nature of an already-existing concept”, and such is exactly the concept of ‘law’.81 Marmor challenges some main tenets of MDCA, arguing, among other things, that “essential features are neither a priori nor necessary”, which consequently means that the concept of law may not be all-or-nothing, but one admitting of “some borderline cases.”82 Finally, in his last book, The Force of Law, Schauer acknowledges not only that he departs from the dominant methodological search for “properties that define law in all possible legal systems in all possible worlds”, but also that this “jurisprudential enterprise rests on what is at least a highly contested and quite possibly a mistaken view of the nature of our concepts and categories, and of the nature of many of the phenomena – including law – to which those concepts and categories are connected.”83 Schauer eventually proposes focusing on “typical” rather than “necessary” features of law because just as we “can understand important aspects of the history and chemistry of wine by focusing on the fact that wine is typically but not necessarily made from grapes, so too might we learn a great deal about law in general … from law’s typical but not necessary features.”84

  • 85 The latest attack can be found in Leiter’s review of Shapiro’s Legality. Leiter 2020. In a short co (...)
  • 86 Leiter 2007: 176. Analysis is bankrupt after Quine’s demonstration that the distinction between ana (...)
  • 87 Ramsey 1992: 61.
  • 88 Ramsey 1992: 62.
  • 89 Ramsey 1992: 63.

25The harshest criticism of metaphysical inclinations of contemporary jurisprudence comes, however, from Leiter.85 He says that the dominant jurisprudential methodology “relies on two central argumentative devices – analyses of concepts and appeals to intuition”, but both “are epistemologically bankrupt.”86 The aforementioned experimental studies in cognitive psychology seem to support his conclusion, at least when it comes to the version of philosophical analysis propounded by MDCA. Ramsey convincingly shows that lurking behind the MDCA project two important psychological assumptions about the nature of our cognitive system and categorization. The first is that “there is considerable overlap in the sorts of intuitive categorization judgments that different people make.” The second assumption is that “our intuitions will nicely converge upon a set whose members are all and only those things which possess some particular collection of features.”87 Ramsey is aware of the fact that every philosophical project must start with some assumptions, and hence the strategy MDCA undertakes is not unreasonable per se, provided that “there is no compelling motivation for doubting these assumptions.”88 However, categorization studies proved the MDCA psychological assumptions wrong, by detecting a “very robust cognitive phenomenon”, namely, that “our categorization intuitions appear to reflect a taxonomic system in which most categories have graded membership.”89

26What are the implications of the major findings of the prototype theory of concepts for jurisprudential concept formation?

  • 90 Ramsey 1992: 68.
  • 91 Ramsey 1992: 68.
  • 92 Ramsey 1992: 68.

27First, insofar as MDCA claims to rely on intuitive categorization judgments as its initial empirical data, it is per definitionem far more constrained by our ordinary representation of concepts than, say, natural scientists that must categorize ‘blob’. Consequently, “since, ex hypothesi, it is a prototype representation that governs everyday categorization judgments, then it will be such a representation that guides and constrains any search for definitions performed through conceptual analysis.”90 According to Ramsey, there are two exit options for legal philosophers pursuing the MDCA project. One would be to challenge the findings of the prototype theory, in which case they should be “prepared to do serious and careful empirical research, comparable to that which motivated psychologists to abandon the classical view in the first place.”91 The other alternative would be “to revise their basic assumptions and expectations about definitions of abstract concepts.” Although the second strategy sounds more promising, Ramsey rightly notes that everything hinges upon “the sort of work we want our analyses to do for us.”92

  • 93 Jackson 1998: 46.
  • 94 Gardner 2012: 279.
  • 95 Bix 2013: 34.
  • 96 Raz 2002: 149.

28This brings me to the second point. MDCA has always been clear about its main goal. Take Frank Jackson’s statement: “Our account sees conceptual analysis of K-hood as the business of saying when something counts as a K.”93 This is precisely how legal philosophers understand this methodology as well. Gardner says it is “the project of getting the classification right.”94 It is about “identification and boundary lines”. By endorsing MDCA, “we determine what is inside this category (‘law’) and what is outside.”95 Phrased this way, this method of disciplinary approach clearly sets the criteria for its own success. Hence, if for whatever reason it fails to produce a clear-cut demarcation line between instances of law and non-law, its success can be reasonably questioned. The earlier discussion about the prototype effects of the concept ‘bachelor’, which demonstrated the limits of MDCA, clearly signifies that this approach can hardly live up to its expectations in the case of a far more complex social practice like ‘law’. This is, after all, evident from the fact that staunch proponents of MDCA do not shy away from using the vocabulary of ‘typicality judgments’ and ‘graded membership’. For example, in his discussion of legal systems, Raz argues that they are “typical examples” of the “institutionalized systems”.96 Here is the elaboration of this claim:

  • 97 Raz 2002: 150.

The general traits which mark a system as a legal one are several and each of them admits, in principle, of various degrees. In typical instances of legal systems all these traits are manifested to a very high degree. But it is possible to find systems in which all or some are present only to a lesser degree or in which one or two are absent altogether. It would be arbitrary and pointless to try and fix a precise borderline between normative systems which are legal systems and those which are not. When faced with borderline cases it is best to admit their problematic credentials, to enumerate their similarities and dissimilarities to the typical cases, and leave it at that.97

  • 98 Raz 2002: fn. at 150.

29One of the “borderline cases”, according to Raz, is international law, insofar as “there are doubts whether it can be regarded as an institutionalized system.”98 However, the language of borderline cases is logically incompatible with an ‘all-or-nothing’ view of categories favoured by MDCA.

  • 99 Ramsey 2007: 10.
  • 100 I assume that relying on such results would be very much in line with Leiter’s “Naturalist Method”, (...)
  • 101 The most well-known experimental study in this area was conducted by Raff Donelson and Ivar Hannika (...)

30Finally, does everything said so far warrant the conclusion that the concept of law is best theoretically conceived of as “an array of features clustered around some sort of prototype”?99 There is no simple and straightforward answer to this question. Things would be far easier if we could operate with the results of some credible categorization study whose object is ‘law’/’legal rule’, as contrasted to the rules of other normative orders.100 In its absence,101 the second best option — especially when you work with first-year law students, as I do — is to evoke some personal experiences from law classes. Here are some of my generalized findings: when, at the beginning, they are asked to provide an example of a legal rule, freshmen almost invariably refer to some criminal offense backed up by a coercive sanction; when contrasted with examples of legal duties that are not sanctioned (e.g., constitutional duties of the parliament or government), they are doubtful about their enforceability and even ‘legality’; when faced with cases of quite important unwritten legal rules (e.g., some UK constitutional conventions), they hesitate to qualify them as legally binding; when making comparisons with moral or religious rules, they take legal rules to be somehow more binding; although aware of the fact that law grants rights and powers, just as well as it installs duties, first-year students rarely invoke the former when providing illustrative examples, and when they do so, they most commonly refer to constitutional freedoms, i.e., human rights; when international law is mentioned, they often raise suspicion about its ‘legality’; when discussing possible indications that something has the quality of a legal rule, they readily recognize the importance of some institutions, both those in charge of rule-making and rule-application; when debating expectations that people normally have from law, freshmen easily recognize certain values, such as justice, stability, predictability, that are supposed to be delivered by the proper functioning of law; when requested to act in the capacity of a quasi-adjudicative body in some imaginary controversial case, they increasingly realize that law can yield different outcomes in virtue of distinctive interpretative means.

  • 102 A student just enrolled in the law undergraduate program is very much alike any layperson.
  • 103 It is important to emphasize that the task of classifying something as an instance of ‘law’ tends t (...)

31I am quite sure that my findings from first-year law classes are by no means unique. While they certainly do not satisfy the criteria of scientific rigor, they nonetheless indicate the relevance of typicality judgments in the ordinary102 representation of law. That is, first-year law classes reveal stable patterns of students’ categorization — they proceed from the ‘best’ examples of legal rules, i.e., those with some measure of central tendency, and use them as prototypes against which other instances shall be judged on the basis of relevant similarities. With their gradual accrual of knowledge, students certainly get to refine some of their positions and categorization judgments, but I presume that even graduation and entry into the profession do not change much in the way they represent the concept. That is, to the extent that professional lawyers are at all interested in the problem of grasping the content of the concept of law, it may be reasonably expected that they continue to employ categorization judgments that reflect the graded structure of the concept. For instance, I dare to presume that, if faced with the question of whether World Athletics’ “testosterone rules” fall under the category ‘law’, professional lawyers’ judgments would split, with a number of ‘yes’ answers that would treat those rules as ‘borderline case’, at best.103

  • 104 Green 2016: 165.
  • 105 Cummins 1998: 119.
  • 106 Hart 2012: 2.
  • 107 Ramsey 1992: 64.

32Leslie Green may have a final rebuttal from the MDCA camp: “Before we can know what is typical we need to count. Before we can count we need to know what counts as what. Counting-as is a matter of identifying necessary and sufficient conditions.”104 Indeed, one may sensibly ask: what do my first-year law students use as identifying markers for knowing that something serves as a typical case of ‘law’ against which other instances are to be judged? Green suggests that they need to operate with the full-fledged all-or-nothing concept of ‘law’ before they can make categorization judgments. This seems to me a plainly wrong assumption, which can be easily empirically verified. For example, people regularly judge certain political regimes as more or less democratic on the basis of (dis)similarities with some central case that is presumably mentally represented as a cluster of certain important features, such as free elections, a multiparty system, periodical changes of government, etc. A number of these categorization judgments quite often overlap with the informed expert opinions, even though those who express them are not political theorists and do not possess in-depth knowledge about political regimes. Those judgments are grounded in ordinary beliefs, which “[w]e all collect ... as we go through life being socialized and educated, conversing with friends and strangers, reading books and articles, watching TV, and so on.” If we were lucky enough to get a good and proper education, most of those beliefs would be true and good enough to make competent categorization judgments.105 The same holds for my first-year students. As Hart aptly reminds us, “[t]o this unending theoretical debate” about the nature and concept of law, “we find a strange contrast in the ability of most men to cite, with ease and confidence, examples of law if they are asked to do so.”106 By the time they get enrolled in the law program, most students develop quite accurate beliefs about the complex social practice called ‘law’ and tend to identify it by earlier indicated features — that it is a set of rules (norms), that rules are enacted and applied by some authorities (institutions); that rules are backed up by coercion, that law and justice are intricately connected, as witnessed by the shared etymological root of the two words in the Serbian language, and so on. Generally speaking, the features “that are included in the summary representation are the more salient ones that have substantial probability of occurring in conjunction with other properties.”107

  • 108 Chiassoni 2016: 64 (emphasis in the original).
  • 109 Beaney 2016.
  • 110 As I have indicated elsewhere, there is no preclusion to treat more salient conceptual features of (...)

33The ability to “count” and assert typicality judgments, thus, neither requires nor is identical to concept formation. This more difficult and sophisticated task is left to jurisprudence. Since the concept of law is not “revisionist”, a legal philosopher, relying on constraints dictated by the categorization experiments of cognitive psychology, and working in the analytical tradition, needs to provide a further “‘explanatory elucidation’ of the structure of legal phenomena”.108 This methodology is primarily “decompositional” in nature, as it amounts to “breaking something down into its components”.109 More precisely, a highly abstract concept of law has to be broken down into a cluster of less abstract, yet typical features constituting law as a social practice. This is exactly where I see the methodological intersection between prototype theory of concepts and analytical account of law. Standing on that crossroad, the legal philosopher proceeds, within the pursued theoretical project, by focusing on features considered more salient,110 more common, and possibly unique for the investigated social practice.

5 A concluding note

  • 111 Himma 2015: 73 (emphasis in the original). Despite sometimes leaving the impression that they are r (...)
  • 112 Jackson explains the point of disagreement between his and Himma’s position, in Jackson 2021. For H (...)
  • 113 Jackson 1998: 33 (emphasis mine).
  • 114 Jackson 1998: 36.
  • 115 In her recent book, Dickson is “not advocating a wholesale rejection of, for example, ‘vox-pop’ or (...)

34Analytical legal philosophy is the most dominant jurisprudential school of thought, and its currently most prominent methodology is MDCA. None of its proponents profess the immodest version, which “would give us insight into the essential nature of law as it really is independent of our linguistic practices and conceptual frameworks.”111 What they argue in favour of is what Jackson calls the “modest conceptual analysis,”112 that is, “[t]he business of consulting intuitions about possible cases ... [which is about] determining how subjects classify possibilities.”113 In that respect, Jackson did not dismiss the option of conducting “serious opinion polls on people’s responses to various cases.”114 Until recently, legal philosophers in the analytic tradition have not taken this method seriously,115 but cognitive psychologists have.

  • 116 Barsalou 2021: 44-45. “The mechanisms that produce prototype effects must be integral to cognition (...)
  • 117 Winter 2001: 83.
  • 118 Winter 2001: 83.
  • 119 Priel 2011: 83 (emphasis in the original).

35One of the most important findings of the experiments in categorization studies is “prototype effects”. In the words of Barsalou, “[f]or both taxonomic and ad hoc categories, people construct prototypes to represent them … Once the prototype for a category is established, the typicality of the category’s members varies as a function of how similar they are to the prototype.”116 It is thus safe to assume that “[t]he evidence of the psychological reality of prototype effects is overwhelming”.117 Researchers were, nonetheless, immediately aware that this effect was consistent with several models of category structure. At the same time, “[t]he only model that does not fit the known facts about prototype effects is the traditional one that defines categories in terms of necessary and sufficient conditions.”118 Thus, Priel seems justified in concluding that “[i]f psychologists’ findings are true, it is hard to see how philosophical-style conceptual analysis can be vindicated, and this, ironically, is especially true of conceptual analysis in its modest guise.”119

  • 120 Schauer 2015: 4.
  • 121 Tobia 2023: 2505.
  • 122 Himma 2023a: 368.
  • 123 This set refers to the following questions: “1) whether a categorization or identification experime (...)
  • 124 Himma inspects problems in three earlier-mentioned experimental studies. Regarding Miotto, Almeida, (...)

36In his last book, Schauer boldly rejects the pretension of MDCA as being the true carrier of the label “analytic jurisprudence”. He says that “the various analytic and argumentative tools of philosophy might well be deployed with profit to forms of understanding other than the largely nonempirical (emphasis mine) search for necessary (or, occasionally, necessary and sufficient) conditions that characterizes contemporary conceptual analysis.”120 One such analytic tool focuses on the typical features of the complex normative order and social practice called ‘law’. This paper tried to show that such an analytic approach toward elucidating law is experimentally justified. Proponents of experimental jurisprudence believe it “is not only complementary to the project of elucidating law; it is precisely the sort of innovation in philosophical method that will help modern philosophers continue to elucidate law.”121 It is important, however, to bear in mind that “there are limits on how much a study of convergent intuitions can tell us about the nature of a kind”.122 Generally speaking, “there is a fairly substantial, yet arcane set of knowledge necessary to design and run a successful categorization experiment.”123 Some of those intricacies can be detected in the available experimental studies tackling ‘law’.124 Nevertheless, it would be wrong to take this fact alone as a sign that cognitive psychology and categorization experiments are useless in the pertinent jurisprudential debates. If nothing else, they showed us that the metaphysical inclination of analytical jurisprudence is grounded in scientifically unfounded psychological assumptions about the nature of our cognitive system and categorization.

Acknowledgment.— This paper results from research conducted within an EU funded Horizon Twinning project ‘Advancing Cooperation on The Foundations of Law – ALF’ (project No. 101079177).

Top of page

Bibliography

Alexy, R. (2008). On the Concept and the Nature of Law. Ratio Juris, 21(3), 281–299.

Almeida, G. da F. C. F., Struchiner, N., & Hannikainen, I. R. (2023). Rule Is a Dual Character Concept. Cognition, 230, 105259. DOI: 10.1016/j.cognition.2022.105259

Ashby, F. G., & Valentin, V. V. (2018). The Categorization Experiment: Experimental Design and Data Analysis. In E.-J. Wagenmakers, J. T. Wixted (Eds.), Stevens’ Handbook of Experimental Psychology and Cognitive Neuroscience (4th ed., vol. 5, pp. 307-334). Wiley. DOI: 10.1002/9781119170174.epcn508

Bajčić, M. (2017). New Insights into the Semantics of Legal Concepts and the Legal Dictionary. John Benjamins Publishing Company.

Baker, L. R. (2004). The Ontology of Artifacts. Philosophical Explorations, 7(2), 99-111. DOI: 10.1080/13869790410001694462

Barsalou, L. W. (2021). Categories at the Interface of Cognition and Action. In C. Mauri, I. Fiorentini, & E. Goria (Eds.), Building Categories in Interaction: Linguistic Resources at Work (pp. 35-72). John Benjamins Publishing Company. DOI: 10.1075/slcs.220.03bar

Beaney, M. (2016). Analysis. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (Summer 2016 ed.). URL: https://plato.stanford.edu/archives/sum2016/entries/analysis/

Berlin, I. (1999). Concepts and Categories – Philosophical Essays. Pimlico.

Bix, B. (2003). Raz on Necessity. Law and Philosophy, 22(6), 537-559.

Bix, B. H. (2013). Ideals, Practices, and Concepts in Legal Theory. In J. Ferrer Beltrán, J. J. Moreso & D. M. Papayannis (Eds.), Neutrality and Theory of Law (pp. 33-47). Springer.

Bix, B. (2021, August 2). Against Jurisprudence’s New Metaphysical Focus. JOTWELL. URL: https://juris.jotwell.com/against-jurisprudences-new-metaphysical-focus/

Burazin, L., Himma, K. E., & Roversi, C. (Eds.). (2018). Law as an Artifact. Oxford University Press.

Campbell, B. (1978). The Marriage of Soldiers under the Empire. The Journal of Roman Studies, 68, 153-168. DOI: 10.2307/299633

Chiassoni, P. (2016). Supporting The Force of Law: A Few Complementary Arguments Against Essentialist Jurisprudence. In C. Bezemek & N. Ladavac (Eds.), The Force of Law Reaffirmed – Frederick Schauer Meets the Critics (pp. 61-71). Springer.

Cole, D. (1999, February 1). Note on Analyticity and the Definability of “Bachelor”. Philosophy Department of the University of Minnesota Duluth. 1 February 1999.

Collins. (n.d.). Smirting. In Collinsdictionary.com. Retrieved February 26, 2025, from https://www.collinsdictionary.com/dictionary/english/smirting.

Contrera, J. (2015, August 31). Your fancy scooter is cool, but it’s not a “hoverboard.” Why don’t we have hoverboards yet? The Washington Post. URL: https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/08/31/a-dad-in-a-garage-wiz-khalifa-and-tony-hawk-all-want-the-hoverboard-to-be-born/

Cummins, R. (1998). Reflection on Reflective Equilibrium. In M. R. DePaul & W. M. Ramsey (Eds.), Rethinking Intuition: The Psychology of Intuition and Its Role in Philosophical Inquiry (pp. 113-128). Rowman & Littlefield.

Dickson, J. (2022). Elucidating Law. Oxford University Press.

Donelson, R., & Hannikainen, I. R. (2020). Fuller and the Folk: The Inner Morality of Law Revisited. In T. Lombrozo, J. Knobe & S. Nichols (Eds.), Oxford Studies in Experimental Philosophy, Volume 3 (pp. 6-28). Oxford University Press.

Fillmore, C. J. (1975). An Alternative to Checklist Theories of Meaning. Proceedings of the First Annual Meeting of the Berkeley Linguistics Society, 123-131. DOI: 10.3765/bls.v1i0.2315

Finnis, J. (2011). Natural Law and Natural Rights. Oxford University Press.

Flanagan, B., & Almeida, G. de. (2024). Lawful, But Not Really: The Dual Character of the Concept of Law. Law and Philosophy, 43(5), 507–548.

Flanagan, B., & Hannikainen, I. R. (2020). The Folk Concept of Law: Law Is Intrinsically Moral. Australasian Journal of Philosophy, 100(1), 165-179.

Fox, M. J. (2011). Prototype Theory: An Alternative Concept Theory for Categorizing Sex and Gender? Proceedings from North American Symposium on Knowledge Organization, 3, 151-159.

Gardner, J. (2012). Law as a Leap of Faith. Oxford University Press.

Geerearts, D. (2016). Prospects and Problems of Prototype Theory. Diacronia, 3, 1-16. DOI: 10.17684/i4A53en

Green, L. (2013). The Morality in Law. In L. D. d’Almeida, J. Edwards, & A. Dolcetti (Eds.), Reading HLA Hart’s ‘The Concept of Law’ (pp. 198-224). Hart Publishing.

Green, L. (2016). The Forces of Law: Duty, Coercion and Power. Ratio Juris, 29(2), 164-181. DOI: 10.1111/raju.12122

GrrlScientist. (2019, October 17). Meet The Blob, A Creature That Has Almost 720 Sexes – But No Brain. Forbes. URL: https://www.forbes.com/sites/grrlscientist/2019/10/17/meet-the-blob-a-creature-that-has-almost-720-sexes--but-no-brain/?sh=7f95f8787542

Hage, J. (2021). Are the Cognitive Sciences Relevant for Law? In B. Brożek, J. Hage, & N. A. Vincent (Eds.), Law and Mind: A Survey of Law and the Cognitive Sciences (pp. 17-49). Cambridge University Press.

Hampton, J. A. (1989). Women, Fire, and Dangerous Things: What Categories Reveal about the Mind by George Lakoff – Review. Mind & Language, 4(1-2), 130-137.

Hampton, J. A. (2001). The Role of Similarity in Natural Categorization. In U. Hahn & M. Ramscar (Eds.), Similarity and Categorization (pp. 13-28). Oxford University Press.

Hannikainen, I. R. et al. (2021). Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law. Cognitive Science, 45(8), e13024. DOI: 10.1111/cogs.13024

Hart, H. (2012). The Concept of Law (3rd ed.). Clarendon Press.

Hilferty, J. (1997). Mothers, Lies, and Bachelors: A Brief Reply to Wierzbicka (1990). Word, 48(1), 51-59. DOI: 10.1080/00437956.1997.11432462

Himma, K. E. (2015). Conceptual Jurisprudence: An Introduction to Conceptual Analysis and Methodology in Legal Theory. Revus – Journal for Constitutional Theory and Philosophy of Law, 26, 65-92. DOI: 10.4000/revus.3351

Himma, K. E. (2020). Coercion and the Nature of Law. Oxford University Press.

Himma, K. E. (2023a). Replacement Naturalism and the Limits of Experimental Jurisprudence. Jurisprudence, 14(3), 348-373. DOI: 10.1080/20403313.2023.2208002

Himma, K. E. (2023b). In defence of the Coercion Thesis and modest conceptual methodology. A reply to critics. Revus – Journal for Constitutional Theory and Philosophy of Law, 51. DOI: https://doi.org/10.4000/revus.9984

Holzer, L. (2020). What Does it Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport. Human Rights Law Review, 20(3), 387–411.
Jackson, F. (1998). From Metaphysics to Ethics – A Defence of Conceptual Analysis. Clarendon Press.

Jackson, F. (2021). Conceptual Analysis and the Coercion Thesis. Revus – Journal for Constitutional Theory and Philosophy of Law, 45. DOI: 10.4000/revus.7594

Jovanović, M. (2019). The Nature of International Law. Cambridge University Press.

Jovanović, M. (2020). Global/Transnational Law Challenges to Theorizing about Law. In J. L. Fabra-Zamora (Ed.), Jurisprudence in a Globalized World (pp. 54-83). Edward Elgar.

Jovanović, M. (2021a). On Law and Coercion – Once Again. Jurisprudence, 12(3), 417-425.

Jovanović, M. (2021b). On The Nature of International Law: Rejoinder. Revus – Journal for Constitutional Theory and Philosophy of Law, 43. DOI: 10.4000/revus.7283

Katz, J. J. & Fodor, J. A. (1963). The Structure of a Semantic Theory. Language, 39(2), 170–210.

Lakoff, G. (1987). Women, Fire, and Dangerous Things: What Categories Reveal about the Mind. The University of Chicago Press.

Lakoff, G. (2007). Cognitive Models and Prototype Theory. In V. Evans, B. K. Bergen & J. Zinken (Eds.), The Cognitive Linguistics Reader (pp. 132-168). Equinox.

Langacker, R. W. (1988). Women, Fire, and Dangerous Things: What Categories Reveal about the Mind by George Lakoff– Review. Language, 64(2), 384-395.

Leiter, B. (2007). Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford University Press.

Leiter, B. (2020, October 15). Critical Remarks on Shapiro’s Legality and the “Grounding Turn” in Recent Jurisprudence. SSRN. URL: https://ssrn.com/abstract=3700513.

Margolis, E., & Laurence, S. (2023). Concepts. In E. N. Zalta & U. Nodelman (Eds.), The Stanford Encyclopedia of Philosophy (Fall 2023 ed.). URL: https://plato.stanford.edu/archives/fall2023/entries/concepts/

Marmor, A. (2013). Farewell to Conceptual Analysis (in Jurisprudence). In W. Waluchow & S. Sciaraffa (Eds.), Philosophical Foundations to the Nature of Law (pp. 209-229). Oxford University Press.

Martin, E. A. (1997). A Dictionary of Law (4th ed.). Oxford University Press.

Merriam-Webster. (n.d.). Confirmed bachelor. In Merriam-Webster.com dictionary. Retrieved February 26, 2025, from https://www.merriam-webster.com/dictionary/confirmed%20bachelor

Merriam-Webster. (n.d.). Law. In Merriam-Webster.com dictionary. Retrieved February 26, 2025, from https://www.merriam-webster.com/dictionary/law

Millikan, R. G. (1984). Language, Thought and Other Biological Categories: New Foundations for Realism. MIT Press.

Millikan, R. G. (1989). In Defense of Proper Functions. Philosophy of Science, 56(2), 288-302.
Miotto, L., Almeida, G. FCF., & Struchiner, N. (2023). Law, Coercion and Folk Intuitions. Oxford Journal of Legal Studies, 43(1), 97–123.

Murphy, M. C. (2015). Two Unhappy Dilemmas for Natural Law Jurisprudence. The American Journal of Jurisprudence, 60(2), 121–141.

Osherson, D. N., & Smith, E. E. (1981). On the Adequacy of Prototype Theory as the Theory of Concepts. Cognition, 9(1), 35-58. DOI: 10.1016/0010-0277(81)90013-5

Pelczar, R. M. & Pelczar M. J. (2025, February 4). Protozoa. Britannica. URL: https://www.britannica.com/science/microbiology/Protozoa

Perelli-Harris, B., & Gassen, N. S. (2012). How Similar Are Cohabitation and Marriage? Legal Approaches to Cohabitation across Western Europe. Population and Development Review, 38(3), 435-467. URL: http://www.jstor.org/stable/41857400

Priel, D. (2011). Jurisprudence and Psychology. In M. Del Mar (Ed.), New Waves in Philosophy of Law (pp. 77-99). Palgrave Macmillan.

Priel, D. (2015). The Misguided Search for the Nature of Law. Osgoode Legal Studies Research Paper No. 34, 11(07), 1-52.

Ramsey, W. M. (1992). Prototypes and Conceptual Analysis. Topoi, 11(1), 59-70.

Ramsey, W. M. (2007). Representation Reconsidered. Cambridge University Press.

Raz, J. (2002). Practical Reason and Norms (2nd ed.). Oxford University Press.

Raz, J. (2005). Can There Be a Theory of Law? In M. P. Golding & W. A. Edmundson (Eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (pp. 324-342). Blackwell Publishing.

Raz, J. (2007). Theory and Concepts: Responding to Alexy and Bulygin. In Una Discusion Sobre la Teoria del Derecho. Marcial Pons.

Reuters. (2019, October 16). Paris zoo unveils the ‘blob’, an organism with no brain but 720 sexes. Reuters. URL: https://www.reuters.com/article/us-france-zoo-blob-idUSKBN1WV2AD

Rocca, F. X. (2019, October 6). Pope Opens Debate on Celibacy Requirement for Catholic Priests: Ordination of married men is the most controversial proposal at a three-week meeting on the church’s challenges in South America’s Amazon region. The Wall Street Journal. URL: https://www.wsj.com/articles/pope-opens-debate-on-celibacy-requirement-for-catholic-priests-11570352167

Rosch, E. (1978). Principles of Categorization. In E. Rosch & B. B. Lloyd (Eds.), Cognition and Categorization (pp. 27-48). Lawrence Erlbaum Associates.

Rosch, E. (1999). Reclaiming Concepts. The Journal of Consciousness Studies, 6(11-12), 61-77.
Rosch, E., & Mervis, C. B. (1975). Family Resemblances: Studies in the Internal Structure of Categories. Cognitive Psychology, 7, 573-605.

Schauer, F. (2015). The Force of Law. Harvard University Press.

Schauer, F. (2017). Law’s Boundaries. Harvard Law Review, 130(9), 2434-2462.

Schlegel, A., & Barry III, H. (1991). Adolescence – An Anthropological Inquiry. The Free Press.

Shapiro, S. J. (2011). Legality. The Belknap Press of Harvard University Press.

Shea, A. (n.d.). Hoverboard: Floating skateboards existed (sort of) before Back to the Future II. Merriam Webster. Retrieved February 26, 2025, from https://www.merriam-webster.com/words-at-play/when-did-we-start-talking-about-hoverboards

Simon, S. & Bowman, E. (2019, October 20). ‘The Blob,’ A Smart Yet Brainless Organism Fit For Sci-Fi, Gets Its Own Exhibit. NPR. URL: https://www.npr.org/2019/10/20/771285312/the-blob-a-smart-yet-brainless-organism-fit-for-sci-fi-gets-its-own-exhibit

Slocum, B. (2015). Ordinary Meaning – A Theory of the Most Fundamental Principle of Legal Interpretation. University of Chicago Press.

Solan, L. M. (2010). The Language of Statutes Laws and Their Interpretation. University of Chicago Press.

Statt, N. (2016, January 8). They’re called hoverboards now, and there’s nothing we can do about it – Just let it go. The Verge. URL: https://www.theverge.com/2016/1/8/10737210/hoverboard-vs-scooter-vs-segway-name-battle-is-lost

Tamanaha, B. Z. (2017). A Realistic Theory of Law. Cambridge University Press.

Taylor, D. (2011). “Smirting” in the Designated Area: The Smoking Shelter and the English Public House. Interiors: Design, Architecture and Culture, 2(2), 239-254.

Tobia, K. (2022). Experimental Jurisprudence. The University of Chicago Law Review, 89(3), 735-802.

Tobia, K. (2023). Methodology and Innovation in Jurisprudence. Columbia Law Review, 123(8), 2483-2515.

Vervaeke, J., & Green, C. D. (1997). Women, Fire, and Dangerous Theories: A Critique of Lakoff's Theory of CategorizationMetaphor and Symbol, 12(1), 59-80.

Wierzbicka, A. (1990). “Prototypes Save”: On the Uses and Abuses of the Notion of ‘Prototype’ in Linguistics and Related Fields. In S. L. Tsohatzidis (Ed.), Meanings and Prototypes – Studies in Linguistic Categorization (pp. 347-367). Routledge.

Winter, S. L. (2001). A Clearing in the Forest: Law, Life, and Mind. Chicago University Press.

Wittgenstein, L. (1958[1953]). Philosophical Investigations. Basil Blackwell.

Zeifert, M. (2025). Law and Cognitive Linguistics: A Prototype Theory Approach to Legal Categorisation. Routledge.

Top of page

Notes

1 Reuters 2019.

2 “In one remarkable experiment published in Science, researchers in Japan found that a slime mold managed to configure itself into a near-replica of the meticulously designed Tokyo rail system when introduced with an oat-flake model of Tokyo and its surrounding metropolis.” Simon & Bowman 2019.

3 In fact, Mboma won the silver medal in the 200m Olympic race!

4 Illegibility is stipulated in Article 2.2.1: “A ‘Relevant Athlete’ is an athlete who meets each of the following three criteria: a) she has one of the following DSDs (i. 5α-reductase type 2 deficiency; ii. partial androgen insensitivity syndrome (PAIS); iii. 17β-hydroxysteroid dehydrogenase type 3 (17β- HSD3) deficiency; iv. ovotesticular DSD; or v. any other genetic disorder involving disordered gonadal steroidogenesis); and b) as a result, she has circulating testosterone levels in blood of five (5) nmol/L or above; and c) she has sufficient androgen sensitivity for those levels of testosterone to have a material androgenising effect.”

5 The decision is available from the Court of Arbitration for Sport (2019) at https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

6 The decision in French is available from the Swiss Federal Tribunal (2020) at https://www.bger.ch/ext/eurospider/live/fr/php/aza/http/index.php?highlight_docid=aza%3A%2F%2Faza://25-08-2020-4A_248-2019&lang=de&zoom=&type=show_document.

7 The Court found that some procedural entitlements of this broader cluster right were violated, and the case is now before the Grand Chamber. See, Semenya v. Switzerland (application no. 10934/21).

8 Equally interesting is the question about the alleged scientificity of the “testosterone rules”, which serve to declassify certain females from the category of “sportswomen”. Holzer 2020.

9 Jovanović 2020.

10 Rosch 1999.

11 Raz 2005.

12 A further complexity stems from the fact that different disciplines approach concepts differently: “Philosophers speculate about what concepts are, psychologists investigate how they work, and linguists study the way they are communicated.” At the same time, “[t]he level of agreement, both across disciplines as well as within a given discipline, is rather low.” Zeifert 2025: 4.

13 “During one of their growth stages, they are protozoa-like because they lack cell walls, have amoeboid movement, and ingest particulate nutrients. During their propagative stage they form fruiting bodies and sporangia, which bear walled spores like typical fungi”. Pelczar & Pelczar 2025.

14 GrrlScientist 2019.

15 On the relevance of similarity in natural sciences, see Hampton 2001.

16 Bajčić 2017: 19.

17 Bajčić 2017: 20.

18 Himma 2015: 68.

19 This is the firm ground for a further claim that conceptual analysis is not necessarily exhausted in linguistic analysis. I will return to this point.

20 I will here leave aside Ruth Millikan’s contestable thesis that the concept of “proper function” is assignable to both natural and artificial kinds. In her words, “having a proper function is a matter of having been ‘designed to’ or of being ‘supposed to’ (impersonal) perform a certain function.” (Millikan 1984: 17). Whether an entity “has a proper function depends on whether it has the right sort of history.” Millikan 1989: 292.

21 Baker 2004: 102.

22 Shea (n.d.).

23 There was resistance to this linguistic practice, on a somewhat silly ground that “[t]he name is a lie.” (Contrera 2015). As one commentator reluctantly observed already in 2016, it was time for linguistic purists to “give up the fight.” Simply speaking, “The two-wheeled self-balancing scooter is called a hoverboard. It’s called a hoverboard because that’s what people call them.” Statt 2016.

24 Collins’ dictionary definition of ‘smirting’ is: “the activity of flirting between smokers who are smoking cigarettes outside a no-smoking office, pub, etc.” (Collins n.d.). For a more in-depth analysis of ‘smirting’ in relation to the concept “social space” of traditional English pubs, see Taylor 2011: 239-254.

25 Take, for example, the following dictionary definition of ‘law’: “a binding custom or practice of a community: a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.” (Merriam-Webster n.d. Law) This is an even more comprehensive definition than one found in a specialized legal dictionary – “the enforceable body of rules that govern any society.” Martin 1997.

26 An additionally perplexing question concerns the implications of the artefactual nature of law. See Burazin, Himma, & Roversi 2018.

27 Berlin says that “[t]he perennial task of philosophers is to examine whatever seems insusceptible to the methods of the sciences or everyday observation, e.g. categories, concepts, models, ways of thinking or acting”. At the same time, he notices that this is “socially dangerous, intellectually difficult, often agonizing and thankless, but always important activity”. Berlin 1999: 11. I find this description largely applicable to the job of legal philosophers.

28 Raz 2007 (in Spanish). English version at josephnraz.googlepages.com/TheoryandConcepts-finalversion.pdf.

29 Marmor 2013: 212.

30 Priel also advises analytical jurisprudence that, if it wants to work with a more reliable set of empirical data, it needs to “look into the literature in cognitive and social psychology in order to get a sense of what goes on in people’s heads”. Priel 2015: 42.

31 In his review of Lakoff’s book, well-known cognitivist linguist Ronald W. Langacker nicely summarizes the book’s ultimate targets and how enduring and entrenched they were in our understanding of the world: “For three decades, our conception of language has been shaped and constrained by the theory, descriptions, and underlying assumptions of generative grammar. For a century, our notion of meaning has been largely determined by philosophers’ concerns for truth, reference, and valid inference; linguistic semantics has often been regarded as nothing more than a special adaptation of formal logic. For two millennia, the Western intellectual tradition has entertained a particular view of thought, reason, and rational inquiry that effectively divorces them from bodily experience.” While focusing on categorization, Lakoff challenged all these background assumptions and accompanying theoretical standpoints. Langacker 1988: 384.

32 Lakoff 1987: 6.

33 This is by no means the only theory of concepts, apart from the classical one. However, from the point of view of cognitive psychologists, the main problem with the classical theory lies in its inability to explain a robust set of empirical findings. In that sense, the prototype theory emerged in the second half of the twentieth century as “a non-classical alternative”. All other theories of concepts either aspire to supplement the discussion by focusing on a specific set of cases (e.g., the theory theory of concepts focuses on reflective categorization judgments), or by highlighting different explanatory functions (e.g., a prominent version of conceptual pluralism holds that different types of structure that are components of a given concept play different explanatory roles), or they present radical philosophical alternatives (e.g., conceptual atomism argues that lexical concepts, i.e., concepts that tend to be associated with individual words in natural language, have no semantic structure). For more on the relations between the theories, see, Margolis & Laurence 2023.

34 They were chosen because they “do not have any obviously analyzable criterial attributes, formal structure, or definite boundaries and they [are] … cross-culturally agreed upon”. Rosch 1999: 65.

35 Wittgenstein 1958[1953]: par. 66-67.

36 See, e.g., Rosch & Carolyn 1975: 573-605.

37 Rosch 1978: 36.

38 Under this theory, “categorization is to be understood as a similarity comparison process, where similarity is computed as a function of the number of constituents that two concepts hold in common.” Margolis & Laurence 2023.

39 Rosch emphasizes that “these are not probability judgments but judgments of degree of membership.” Rosch 1999: 66.

40 Rosch 1999: 67.

41 Osherson & Smith 1981: 35.

42 Rosch 1978: 38.

43 More precisely, “[a]ccording to the Effects = Structure interpretation, scalar goodness-of-example ratings occur if and only if category membership is not all-or-none, but a matter of degree.” Lakoff 2007: 132. Similarly, Winter argues that “[p]rototype effects cannot actually characterize category structure because there are many categories that are not graded but that, nevertheless, produce prototype effects.” Winter 2001: 84.

44 Consequently, “[d]egrees of category membership for other entities are determined by their degree of similarity to the prototype.” Winter 2001: 84.

45 Winter 2001: 133.

46 “Cognitive models structure thought and are used in forming categories and in reasoning. Concepts characterized by cognitive models are understood via the embodiment of the models.” Lakoff 1987: 13.

47 Each ICM uses four kinds of structuring principles: propositional structure, image-schematic structure, metaphoric mappings, and metonymic mappings. Lakoff 1987: 68.

48 Langacker, for instance, argues that “generally, though L[akoff] does provide examples of ICM’s giving rise to judgments of prototypicality, he does not pursue the matter carefully or systematically enough to establish convincingly that prototype effects are simply a by-product of ICM’s.” (Langacker 1988: 386) Hampton, on the other hand, says that “[w]hile many of Lakoff’s arguments concerning the problems of objectivism are persuasive, it is hard to follow the connection he draws between the evidence of prototype effects and the failure of objectivism.” (Hampton 1989: 133). Vervaeke and Green noticed that “[b]y removing prototypes from the explanation of prototype effects, Lakoff left open a wide range of plausible alternative explanations of such effects, many of which derive from the very objectivist paradigm he criticized.” Vervaeke & Green 1997: 60.

49 Katz & Fodor 1963: 170–210.

50 Fillmore 1975: 128.

51 Lakoff 1987: 70.

52 Lakoff 1987: 71.

53 Wierzbicka 1990: 349.

54 Wierzbicka 1990: 349.

55 Himma 2015: 71.

56 Himma 2020: 47.

57 However, Pope Francis has recently instigated a debate regarding whether the Catholic Church should loosen its requirement of celibacy for priests. See Rocca 2019.

58 History teaches us that male members of some other professions or services were also forbidden from marrying without such a clear ratio legis as in the case of clergy. In such cases, the willing moment was largely questionable. Take the Roman Empire’s ban for soldiers, which was in force until at least the time of Septimius Severus. According to one view, “[t]his restriction seems anomalous, especially in the context of the legal privileges conferred on soldiers, in the making of a will, in the relative freedom from some of the restraints of patria potestas, and in court. Some of these privileges were in part an attempt to protect soldiers against and compensate for the rigours of military life with its enforced lengthy absences from home, often in remote areas of the empire. And so it is strange that a soldier was prevented from obtaining the solace of normal family life through wedlock, by a law that was virtually unenforceable and which caused the authorities trouble from the start.” Campbell 1978: 153.

59 This linguistic practice is captured in dictionary definitions: “a man who has been a bachelor for a long time and who shows no interest in marrying.” At Merriam-Webster n.d. Confirmed bachelor

60 For instance, “[a] man who is either divorced or widowed (or both!) can certainly be defined as ‘an unmarried man thought of as someone who could marry,’ but the bachelorhood of such a person is debatable.” Hilferty 1997: 57.

61 Cole 1999.

62 “Until the mid to late twentieth century, the state (as well as the church) regulated relationships between couples through official marriage, and unmarried couples were outside of legal jurisdiction. Although some couples did live together outside of marriage, usually because of social or financial barriers to matrimony … such behavior was considered criminal in some countries.” Perelli-Harris & Gassen 2012: 437.

63 Schlegel & Barry III 1991: Ch. 6.

64 Fox 2011: 151-159.

65 Rosch 1999: 67.

66 Interestingly, Winter takes ‘bachelor’ to be a non-graded concept that produces prototype effects, even though he starts the criticism of the traditional view (which he labels “rationalist”) by indicating that “not every unmarried man is an equally good example of a bachelor.” However, if ‘bachelor’ cannot fit the rationalist’s “logic of P or not-P”, as claimed by Winter, it is difficult to see how it is a non-graded concept. Winter 2001: 86, 88.

67 Geerearts 2016: 5-6.

68 Zeifert makes an even more general claim, “The prototype approach … has barely been noticed in legal academia.” Zeifert 2025: 2. This is not quite true though because some legal scholars used the prototype theory as a tool for semantic analysis in statutory interpretation. Slocum says that the judicial inclination to treat word categories as formed by necessary and sufficient conditions for membership is consistent with the classical theory of concept meaning. This approach is, however, “inconsistent with research from linguists and psychologists on the prototypical structure of categories. Instead of a simple set of criterial features, categories do not have sharply delimited borders with clear demarcations.” Slocum 2015, especially Ch. 5. Cf. Bajčić 2017, Solan 2010.

69 Rosch 1999: 64.

70 While this obviously holds for the philosophical tradition called “analytical jurisprudence”, it is true even of non-positivist legal theories, which are often dubbed as “normative jurisprudence”. See, e.g., Murphy 2015: 121–141., Alexy 2008: 281–299., Finnis 2011: 19.

71 Marmor says that analysis “must be based on observation of linguistic practices and prevailing linguistic intuitions.” Marmor 2013: 212.

72 Alexy stresses that “while the analysis of the actual use of language is, as J. L. Austin aptly remarks, ‘not the last word,’ it provides a starting point for analysis, as a ‘first word’.” Alexy 2008: 292.

73 Himma says that canons of ordinary language usage “are roughly but accurately expressed by any reputable dictionary definitions.” Himma 2020: 46.

74 After opening his last book with a remark about the employed methodology, Himma adds in a footnote, “Sigh. As if there is some other kind.” Himma 2020: 1. For a critical review of Himma’s employment of MDCI, see, Jovanović 2021a: 417-425.

75 Raz says that a theory of law “consists of necessary truths, for only necessary truths about the law reveal the nature of law.” Raz 2005: 328. In a similar fashion, Alexy states that “[t]he debate over the concept and the nature of law is a debate over necessary truths about the law.” Alexy 2008: 284.

76 According to Shapiro, “[t]he key to conceptual analysis … is the gathering of truisms about a given entity.” Shapiro 2011: 13.

77 Green says that “the features necessary to law are those found not only in all existing and historical legal systems, but in all possible ones – or all humanly possible ones – and those are numberless and unobservable.” Green 2013: 199.

78 Himma 2020: 44.

79 Elsewhere, I have labelled the main ingredients of the MDCA as – essentialism, necessarianism, apriorism, and universalism. See Jovanović 2019: Ch. 2.

80 For a comprehensive socio-legal critique of MDCA, see, e.g., Tamanaha 2017: Ch. 3.

81 Bix adds that “[t]he matter would be different if we were positing some new concept or category, and then considering what empirical claims could be made about that concept.” Bix 2003: 543, fn. 24.

82 Marmor 2013: 225.

83 Schauer 2015: x-xi.

84 Schauer 2015: 4. In vindicating Schauer’s approach, Chiassoni says that “[e]ssentialist jurisprudence … constitutes a very serious threat to philosophical progress in jurisprudence.” Chiassoni 2016: 69.

85 The latest attack can be found in Leiter’s review of Shapiro’s Legality. Leiter 2020. In a short comment on this critical review, Bix seems to side with Leiter, arguing that “legal philosophers should remove metaphysical language which serves only to distort or distract from the true underlying issues.” Bix 2021.

86 Leiter 2007: 176. Analysis is bankrupt after Quine’s demonstration that the distinction between analytical and synthetical, a priori and a posteriori truths is not sustainable. (Leiter 2007: 177). As for intuitions against which we are supposed to test purported analysis of a concept, Leiter endorses Robert Cummins’ criticism about the selectiveness and arbitrariness of such a process: “Those who do not share the intuitions are simply not invited to the games. This kind of selection allows things to move forward, but it has its price. Since most nonphilosophers do not share the intuition, the resulting theories of content have little weight with them, and this is surely a drawback for a theory that is supposed to form an essential part of the foundations of cognitive psychology.” Cummins 1998: 116.

87 Ramsey 1992: 61.

88 Ramsey 1992: 62.

89 Ramsey 1992: 63.

90 Ramsey 1992: 68.

91 Ramsey 1992: 68.

92 Ramsey 1992: 68.

93 Jackson 1998: 46.

94 Gardner 2012: 279.

95 Bix 2013: 34.

96 Raz 2002: 149.

97 Raz 2002: 150.

98 Raz 2002: fn. at 150.

99 Ramsey 2007: 10.

100 I assume that relying on such results would be very much in line with Leiter’s “Naturalist Method”, whose one of two subsidiary theses – the “Methodological Thesis” – states: “Insofar as philosophy is concerned with what there is and what we can know, it must operate as the abstract branch of successful scientific theory.” Leiter 2007: 181. This is, in essence, what proponents of experimental jurisprudence argue in favour of. See, e.g., Tobia 2022: 735-802. For a broader, threefold argument in favour of the relevance of cognitive sciences for law, see, Hage 2021: 17-49.

101 The most well-known experimental study in this area was conducted by Raff Donelson and Ivar Hannikainen, who examined whether ordinary people and legal practitioners endorsed Fuller’s conditions of the inner morality of law. As a general conclusion to their three empirical studies, they state: “at the outset, in the best case for Fuller, we would see widespread and reliable folk endorsement for his principles. This is not what we see.” Interestingly, legal professionals were also divided with regard to the truth of Fuller principles. Donelson & Hannikainen 2020: 6-28. The same experimental model was subsequently used for an intercultural study. Hannikainen et al. 2021. An important study investigates ordinary intuitions regarding the relationship between law and coercion, by testing Raz’ modified case of the society of angels. Miotto, Almeida & Struchiner 2023: 97–123. Further experimental studies focus on folk intuitions concerning not law’s distinction, but its relation to morality. Flanagan & Hannikainen 2020: 165-179. Flanagan & Almeida 2024: 507–548. According to the authors, “these results suggest that perhaps even the most radical natural law theory can no longer be rejected as contrary to our folk concept.” Flanagan & Almeida 2024: 544. Cf. Almeida, Struchiner & Hannikainen 2023.

102 A student just enrolled in the law undergraduate program is very much alike any layperson.

103 It is important to emphasize that the task of classifying something as an instance of ‘law’ tends to be confused by professional lawyers with the question of whether something counts as a ‘valid law’. Hence, when Schauer discusses “law’s boundaries”, he is not telling a story about categorization judgments, but about the problem of sources of law. See, Schauer 2017: 2434-2462. I suspect that this might be a serious obstacle in preparing an adequate experimental survey on this topic among professional lawyers.

104 Green 2016: 165.

105 Cummins 1998: 119.

106 Hart 2012: 2.

107 Ramsey 1992: 64.

108 Chiassoni 2016: 64 (emphasis in the original).

109 Beaney 2016.

110 As I have indicated elsewhere, there is no preclusion to treat more salient conceptual features of law as ‘necessary’, provided that one is aware, first, that this label, with the accompanying vocabulary of “a priori truths in all possible worlds”, has been effectively hijacked by MDCA; and second, that such labeling within the prototype theory of concepts would largely be misleading and would deprive it of its obvious advantages over the rival methodology. Jovanović 2021b.

111 Himma 2015: 73 (emphasis in the original). Despite sometimes leaving the impression that they are ready to move in this direction, none of the mainstream conceptual analysts has openly endorsed this approach.

112 Jackson explains the point of disagreement between his and Himma’s position, in Jackson 2021. For Himma’s reply, see Himma 2023b.

113 Jackson 1998: 33 (emphasis mine).

114 Jackson 1998: 36.

115 In her recent book, Dickson is “not advocating a wholesale rejection of, for example, ‘vox-pop’ or survey data or experimental philosophy techniques in legal philosophy.” Rather, “such data could at best be a starting point, and something for the legal philosopher to work with, interpret, and extrapolate from.” Dickson 2022: 114. In his review article, Tobia argues that Dickson’s stance “is a middle-ground approach to experimental jurisprudence.” Building on Dickson’s call for innovation, he develops a stronger thesis: “Jurisprudence that asserts how or what ‘we’ understand would be made more rigorous by examining empirical data that bear on the truth of these claims.” Tobia 2023: 2499. Himma has recently acknowledged that “experimental jurisprudence can play an important role in resolving conceptual issues”. However, he added that “it cannot replace philosophical theorizing.” Himma 2023a: 372.

116 Barsalou 2021: 44-45. “The mechanisms that produce prototype effects must be integral to cognition and categorization, or they would not be reflected in the speed and efficiency of mental processing. Moreover, the fact that prototype effects encompass both ‘best examples’ and reliable relative goodness-of-example ratings for other category members indicates that these mechanisms are internal aspects of category structure rather than supplementary judgments of frequency, familiarity, or ‘representativeness’. In addition, the category structure that produces prototypes must be constitutive of concepts, or the resulting prototypes would not enter into reasoning.” Winter 2001: 85.

117 Winter 2001: 83.

118 Winter 2001: 83.

119 Priel 2011: 83 (emphasis in the original).

120 Schauer 2015: 4.

121 Tobia 2023: 2505.

122 Himma 2023a: 368.

123 This set refers to the following questions: “1) whether a categorization or identification experiment is more appropriate, 2) what type of category structure to use, 3) how to choose the stimuli … 4) how to construct the categories so they have optimal statistical properties, 5) how to present feedback following each response … and 6) design choices that make it easy to assess participant performance.” Ashby & Valentin 2018: 307.

124 Himma inspects problems in three earlier-mentioned experimental studies. Regarding Miotto, Almeida, and Struchiner’s experiment, he challenges the scenario put before the participants because “the Razian angels are not morally perfect.” (Himma 2023a: 354) Hence, “the question did not provide enough information to elicit responses that express the considered views of the respondents.” (Himma 2023a: 359) Concerning Flanagan and Hannikainen’s experiment on the viability of ‘The Separation Thesis’, Himma finds it “problematic because it does not inform subjects of all the implications they would, and should, find salient in giving a response that expresses their considered views.” Put differently, they were denied some important background philosophical information. (Himma 2023a: 362-363) Finally, when it comes to Donelson and Hannikainen’s study on folk intuitions regarding ‘inner morality’, Himma notes that the “poll question is problematic” insofar as “Fuller’s principles purport to express necessary conditions for a normative system to count as one of law– and not necessary conditions for a norm to count as one of law.” Himma 2023a: 363.

Top of page

References

Electronic reference

Miodrag Jovanović, Prototype theory of concepts and analytical account of lawRevus [Online], 54 | 2024, Online since 03 March 2025, connection on 16 March 2025. URL: http://journals.openedition.org/revus/10821; DOI: https://doi.org/10.4000/13ew1

Top of page

About the author

Miodrag Jovanović

Full Professor, Faculty of Law, University of Belgrade (Serbia). E-mail: miodrag@ius.bg.ac.rs.

By this author

Top of page

Copyright

CC-BY-SA-4.0

The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

Top of page
Search OpenEdition Search

You will be redirected to OpenEdition Search