Ratio Juris. Vol. 22 No.

2 June 2009 (17186)

Consequences of Pragmatic Conceptualism: On the Methodology Problem in Jurisprudence

DAMIANO CANALE
Abstract. The purpose of this paper is to address some of the main issues of contemporary jurisprudential methodology by considering the contribution of Jules Coleman to this subject. After a description of Colemans methodological approach and a clarication of its philosophical background, the paper focuses on some related problems, such as the relation between linguistic meaning and conceptual content, the nature of legal concepts, the different aspects of the normativity of content, and the revisability of conceptual truths.

In the past decade the debate on jurisprudential methodology has seen a notable revival of interest. On the one hand, the traditional terms of this debate have been enriched with new argumentative resources, which are meant to clarify whether jurisprudential claims can describe the social reality of law or necessarily aim at modifying it.1 On the other hand, a further philosophical challenge, namely that of naturalized jurisprudence, has attempted to reframe jurisprudential methodology by claiming that
1

To put it another way, in Anglo-American jurisprudence the methodology problem traditionally concerns the possibility of descriptive jurisprudence as opposed to the idea that an inquiry into the nature of law unavoidably accomplishes a normative task. The fundamental terms of this opposition have been established by the Hart-Dworkin debate. According to Hart, jurisprudence can offer a normatively neutral description of law, which does not necessarily contribute to justify legal contents (Hart 1994); according to Dworkin, a jurisprudential account of law cannot be anything but a normative inquiry into the conditions under which the use of collective force is justied (Dworkin 1986, 53, 67, 90). The Hart-Dworkin debate has triggered off a ourishing discussion on jurisprudential methodology, which aims either at specifying this leading picture or at revising it: cf. Perry 1995, 2001; Finnis 2000; Dickson 2001, 2004; Leiter 2003; Raz 2004a; Green 2005; Coleman 2001a, 2001b, 2001c, 2002, 2007. For a history of this debate see Oberdiek and Patterson 2007.

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jurisprudence is the abstract and general part of the empirical research about law and thus has no special method of investigating its subject matter.2 All this makes the debate on the nature of jurisprudence particularly lively at present and rebuts the widespread prejudice according to which jurisprudential methodology is either frivolous, since it simply reects the narcissism of legal theorists, or pointless, because the adequacy of a jurisprudential view does not depend on its methodological premises but on the account of law it is able to give. Actually the discussion of methodology issues has turned out to be relevant in contemporary jurisprudence both for testing the consistency of a theoretical conclusion with its premises and for evaluating alternative claims on the nature of law. In this paper I will discuss some of these issues by focusing on Jules Colemans contribution to jurisprudential methodology. In particular, I will argue that Colemans methodological stance gives an original answer to the challenge of normative jurisprudence to descriptive approaches in legal theory, as well as to the challenge of naturalized philosophy to conceptual analysis. At the same time, however, I think that Colemans methodology triggers off some philosophical problems that need to be delved into by legal theorists. The discussion of these problems will permit, among other things, to discuss some substantial theses of Colemans inclusive positivism, which run the risk of being misunderstood if considered out of the methodological context that makes them meaningful. 1. What is Pragmatic Conceptualism? In introducing his approach to legal theory Coleman claims to adhere to a certain kind of pragmatism (Coleman 2001c, xiii). This says little about jurisprudential methodology, for both in philosophy and in jurisprudence the term pragmatism is used in several different ways. Sometimes pragmatist is used simply to label a radical anti-theoretical approach to legal knowledge; sometimes it is used as a synonym of practical, anti-formalist, instrumental.3 Sometimes it is taken to refer to a deeply-considered theoretical framework, a framework congenial to a wide range of substantive ethical and legal positions (Kutz 2002, 1644).4 Coleman describes the kind of pragmatism he adheres to as a set of commitments about the semantic content of theories and about the criteria of theory justication (Coleman 2001c, xiii). This is a rst, important aspect of Colemans methodological approach, which has been properly labelled pragmatic conceptualism (Zipursky 2000). Colemans discourse
2 3 4

See Leiter 2007; Leiter forthcoming. See for instance Cross 2000; Luban 1996; Posner 1996. For an overview on contemporary legal pragmatism see Dickstein 1998. On the historical grounds of American legal pragmatism, and its evolution in the twentieth century, see Haack 2006.
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in legal theory is rst and foremost a second-order discourse. It does not aim at providing an original answer to the traditional issues of jurisprudence but at specifying under what conditions an answer to these issues, i.e., an explanation of the nature of law, is justied. How is this second-order analysis possible? According to Coleman, in order to clarify whether an explanation of a social fact such as law is sound we need, rstly, to look at the inferential relations between the claims such an explanation is composed of and, secondly, to specify under what conditions a theoretical conclusion follows on from some theoretical premises. Of course, Coleman takes the validity of an explanatory inference to depend not only on classical logic, but also on the language, on the conceptual scheme underlying linguistic and non-linguistic practices, on the propositional attitudes which locally frame this conceptual scheme in each explanatory item. In this sense, Colemans work is not an inquiry into the nature of law but an inquiry on how the nature of law can be conceived. This enables us to better clarify what sort of pragmatism Coleman adheres to. The pragmatic root of his methodological stance can be seen, on the one hand, in taking the content of a theoretical claim to be the set of consequences it produces within a theory or a set of theories. On the other hand, it can be seen in verifying the explanatory power of legal theory on the basis of its capacity to provide a better prevision and control of social conduct. To sum up, Colemans pragmatic conceptualism is a form of conceptual analysis, and like each form of conceptual analysis, it presupposes, at least, four theoretical commitments: (1) (2) (3) (4) a semantic commitment; a commitment to the nature of concepts; a commitment to the criteria of theory justication; an epistemic commitment.

First of all, any analysis of legal concepts like LAW, OBLIGATION, AUTHORITY, etc., starts from, and depends on, the linguistic expression of such concepts, i.e., on the use of the words law, obligation, authority, etc. To put it differently, our concepts are partially shaped by the linguistic practices involving the concept-words expressing them. This does not entail, however, that concepts are meanings, although they are often considered as such by legal theorists.5 For instance, the concept LAW might
5

According to the traditional view of conceptual analysis, concepts are meanings and conceptual analysis deals with the necessary and sufficient conditions for applying those concepts in linguistic communication (cf. Coleman 2007, 601).
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be considered as the mastery to distinguish entities that are law from entities that are not, even if this mastery is responsive to how lawyers, officials, legal theorists, or the man in the street use the term law (cf. Himma 2007, 3). Conceptual content does not identify with linguistic content, although the former is strictly related to the latter. This claim leads us to the second theoretical commitment of any form of conceptual analysis. The nature of the semantic dependence of conceptual content is a function of what concepts are taken to be. Are concepts platonic ideas, mental states, denitions, practical abilities, sets of inferences, something else? The answer to this question is strongly disputed at present and gives rise to quite different philosophical scenarios. If concepts are considered abstract objects living in an ideal space, for instance, the analysis of the concept LAW turns out to be an inquiry into the essential properties of law that the uses of the term law might or might not give access to. If concepts are considered practical abilities, instead, the same analysis assumes the shape of an inquiry into the practices, included linguistic practices, which are made possible by those abilities that grasping such a concept gives. If concepts are taken to be sets of inferences, in turn, the analysis of LAW is conceived as an inquiry into the inferences involving that concept in legal reasoning. These inferences are normally made explicit by using the term law but do not identify with such linguistic uses. Regardless of what concepts are taken to be, however, what is undisputed is that the nature of concepts, and thus of legal concepts too, is a function of the conditions under which an attribution of conceptual content is justied (the rationality problem) as well as conceptual content can be known (the epistemic problem). As to the rst issue (the rationality problem), conceptual analysis is asked to clarify what kind of reasons, theoretical or practical, are relevant for ascribing conceptual content to propositions, mental states, speech acts, practices, etc. For instance, what is it for the concept LAW to have a content? Being part of a consistent and reliable explanation of social behaviour or prescribing what the law ought to be? In answering these questions, jurisprudential methodology meets the opposition between descriptive and normative jurisprudence that still represents its core issue in contemporary debate. As to the second issue (the epistemic problem), the questions are: What is needed for a legal concept to be known? To be expressed by true propositions or to be used for guiding social conduct? Does conceptual knowledge depends on experience? Moreover, is the knowledge of legal concepts warranted by the system of our beliefs, by our cognitive devices, or by mind-independent features of the world? As to this aspect, in particular, conceptual analysis meets the challenge of naturalized epistemology mentioned above and has to deal with some related issues, such as the possibility of a priori knowledge of conceptual content.
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Such different issues concerning any methodological approach in conceptual analysis are often neglected or misconceived by legal theorists, who seem not to be aware of the presuppositions and implications of their theoretical claims. This is not the case of Coleman, who outlines his methodological stance as follows (see Coleman 2001c, 69). As to the semantic commitment, Coleman subscribes to semantic non-atomism: Semantic non-atomism denies that any single semantic element has a determinate meaning independent of at least some of the other elements of the semantic system (that is, the language, conceptual scheme, or belief set of which the element is part). As to the commitment to the nature of conceptual content, Coleman subscribes to an inferential explanation of content: The content of a concept can be analyzed in terms of the inferential role it plays in the variety of practices in which it gures. As far as the commitment to rationality criteria is concerned, Coleman holds what we might call The Embodiment Thesis, concerning how a certain principle is embodied in a practice: Sometimes a philosophical explanation of a practice takes the form of showing how certain principles are embodied in it. Finally, as to the epistemic commitment, Coleman vindicates both holism and the revisability of all theoretical claims. On the one hand, the way in which a concept gures in one practice inuences its proper application in all others; on the other hand, every jurisprudential claim is revisable in the light of recalcitrant experience and pragmatic concerns as coherence, simplicity, and consilience, together with considerations of practical usefulness. 2. The Dilemma of Analysis In order to discuss the theoretical commitments just considered, I think that it is useful to sketch the philosophical background of Colemans approach and what it implies for the contemporary debate on jurisprudential methodology. With regard to the rst point, pragmatic conceptualism is an answer to Quines challenge to conceptual analysis and (implicitly) to analytical jurisprudence. This challenge might be roughly summed up as follows: How is conceptual analysis possible if there is no clear distinction between conceptual truth and empirical truth, i.e., between statements that are true in virtue of their meaning and statements that are true in virtue of how the world is (Quine 1951)? Quines challenge seems to leave legal philosophers on the horn of a dilemma: Give up conceptual analysis, or proceed without a credible account of their methodology. In fact most legal theorists do not take into account this challenge and claim to do conceptual analysis as before, without worrying about what exactly they are doing, even if what they do might be better described as
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politics, sociology, psychology, literature, and so on. On the contrary, those who take Quines challenge seriously have two ways for overcoming the dilemma of analysis: Either they show that Quines attack against analicity is off target or reframe conceptual analysis in order to make it responsive to this challenge.6 Coleman embraces the second strategy.7 In particular, he opts neither for a kind of naturalized jurisprudence, as Brian Leiter does, nor for a kind of metaphysic essentialism, as Ronald Dworkin sometimes seems to do. In other words, Coleman does not dismiss the notion of necessary or conceptual truth, pairing legal theory with empirical sciences. Nor does he appeal to a kind of necessity that does not depend on linguistic or conceptual content, along the lines of Kripkes metaphysical account of modality or Putnams natural kinds semantics. In short, Coleman dismisses apriority without giving up necessity. He analyzes the conditions of possibility of legal theory, conditions that are necessary in the light of a set of theoretical claims, but, at the same time, are responsive to experience.8 In this sense, using a classical distinction in modal logic, the conditions of possibility of any theoretical claim are taken to express a de dicto necessity, not a de re necessity. They are necessary within a set of theoretical propositions that we have no reason to doubt; they are not universally necessary in social life.9
According to this view, Quines argument should be interpreted as putting out of business only that sort of conceptual analysis which rests on a robust distinction between analytic and synthetic truths, whereas weaker versions of this distinction lay down forms of conceptual analysis which are still compatible with Quines framework (see Coleman 2002, 344). In particular, Oberdiek and Patterson have recently distinguished four methods of conceptual analysis which they assume to be not challenged by Quines naturalism: 1) the reduction method, which tries to show whether a set of theoretical terms is reducible to a more fundamental one; 2) the therapeutic method, which aims at eliminating claims or assertions which lack sense; 3) the conceptual theorizing method, which theoretically frames the metaphysical commitment implied in our intuitions and linguistic conventions, or simply redescribe the presuppositions of a theoretical claim; and 4) the pragmatic method, which aims at picking up those features of a concept that make its content what we take it to be. Cf. Oberdiek and Patterson 2007. In the course of what follows I shall focus only on the fourth method of conceptual analysis, which has been rst and foremost developed by Coleman. 7 If we accept the main thrust of Quines objection, the question is not whether we have a right to do what we do [i.e., conceptual analysis], but how we are to conceptualize what it is we are doing. No one who pursues analytic projects in jurisprudence or elsewhere in philosophy must abandon them. We simply need to be careful in the way we express what we are doing (Coleman 2002, 345). 8 In a similar vein Kenn Himma has pointed out that conceptual claims [. . .] are conditionally necessary in the following sense. If core elements in our linguistic practices for using the word bachelor require that the word applies only to men, then it is a conceptually necessary truth that only men are bachelors. While it is true these elements of our practices might change, the existing practices commit us to a norm that entails the conceptual impossibility of a married bachelor as long as these conventions are accepted and practiced (Himma 2007, 21). 9 Although Coleman claims that his philosophical roots are not put down in the classical pragmatism of Peirce, James and Dewey, Colemans methodological approach seems to be sympathetic with the classical pragmatic conception of apriority: What is a priori is necessary truth not because it compels the minds acceptance, but precisely because it does not. It is
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What are the consequences of Colemans pragmatic conceptualism on the contemporary debate in jurisprudential methodology? They can be summarized in the following three steps. First, Colemans approach, if sound, shows that conceptual analysis does not need to be replaced by the empirical research of social sciences, as suggested by naturalized jurisprudence. The Quinean attack on analiticity can be better interpreted as imposing a revision of the traditional picture of conceptual analysis, i.e., of the idea that concepts are reied objects of thought that structure our experience and make the world rationally intelligible to us, [. . .] because they are shared and essential to our ability to communicate with one another (Coleman 2002, 344). If one abandons such an idea and conceptual analysis is given a modest role (Jackson 1998, 42) according to the pragmatic background considered above, this methodological approach is not pointless. On the contrary, it can be used to disclose and prove the conceptual premises of naturalized jurisprudence, which determine under what conditions this theoretical project can be successfully put forward.10 Secondly, Colemans approach vindicates descriptivism against the attacks from normative jurisprudence. According to Coleman, jurisprudence can give an adequate account of the nature of law without making reference to the content that law should have. This defence has two main argumentative targets. The rst is Dworkins claim that conceptual analysis is necessarily normative because legal concepts have an interpretive nature: The content of legal concepts depends on the way we determine it, and content determination is a matter of political morality in the legal domain. The second target is Perrys claim according to which descriptivism is awed since legal theorists cannot give a suitable account of the nature of law without invoking, or presupposing, substantive norms of political morality.11 In both cases Coleman develops notable arguments for rejecting the core premises of these theses, i.e., Dworkins semantic sting thesis and Perrys distinctive reading of Harts descriptive sociology.12
given experience, brute fact, the a posteriori element in knowledge which the mind must accept willy-nilly. The a priori represents an attitude in some sense freely taken, a stipulation of the mind itself, and a stipulation which might be made in some other way if it suited our bent or need. Such truth is necessary as opposed to contingent, not as opposed to voluntary (Lewis 1923, 169). 10 According to Coleman, in particular, there are [. . .] several powerful objections to the suggestion that analytic jurisprudence must give way to naturalized jurisprudence [. . .]. The rst is that a naturalized project can proceed only after a good deal of philosophical spadework has been done. The second is that there is no reason to suppose that social scientic theories will seek to explain the phenomena of special interest to jurisprudence; less reason for believing that they will succeed if they do. Still less reason, I fear, for thinking that social science will succeed at illuminating even those puzzles to which it address itself (Coleman 2002, 347). 11 Perry 1995, 2001. 12 See Coleman 2001c, lecture 11.
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Moreover, he tries to show that even if these premises were correct, they would not warrant all the conclusions normative jurisprudence draws from them.13 The core idea defended by pragmatic conceptualism is the following: Neither the nature of legal concepts nor the nature of the jurisprudential inquiry into them entails that substantive moral norms are part of every suitable explanation of the nature of law. This leads us to the third step of Colemans contribution to jurisprudential methodology. His approach aims at separating the traditional opposition between descriptive and normative jurisprudence, paradigmatically embodied by Dworkin and Perry, from the problem of the nature of jurisprudence. If the core idea formulated above is sound, there is no reason why someone pursuing a normative jurisprudence must make it part of his account to reject the very possibility of a descriptive jurisprudence (Coleman 2007, 599). Both descriptive and prescriptive jurisprudence are perfectly suitable approaches to legal philosophy. What Coleman tries to describe is their common conditions of possibility. All this being true, pragmatic conceptualism cannot be considered as a methodological approach in the usual sense. It aims to show under what conditions an inquiry into the nature of law can be held on, regardless of the fact that this inquiry accomplishes a descriptive or normative task.14 Obviously, what I have outlined so far is a very broad picture of Colemans jurisprudential methodology. From this, however, I would like to take into account some further challenges that this approach has to deal with. To do this, I will put the methodological commitments of pragmatic conceptualism to the test of some substantial thesis that Coleman holds. I do not think that any of these challenges provides a knockout argument against pragmatic conceptualism. But by examining them, we can gain a better understanding of Colemans approach in legal theory and a more perspicuous point of view on jurisprudential methodology.

13 The better argument is always to give the opposition the premises they need and show that even armed with all the machinery they claim to need, the conclusion they seek fails to materialize (Coleman 2007, 605). 14 This explains why descriptive jurisprudence is seen by Coleman as a possibility theorem (Coleman 2007, 598). The core premise of this theorem can be synthetically formulated as follows: Instead of claiming that our concept of law depends on what law ought to be, one could argue that our concept of law depends on a substantive view about why law is a good, valuable or otherwise desirable form of governance. Thus, to understand what law is, we need not have a view about what law ought to be, but we need to understand why governance by law is valuable (Coleman 2001b). See also Coleman 2001c, 191ff. The answer to this question can be either descriptive or prescriptive, but its descriptive or normative character does not affect the nature of law, which simply makes the question itself unavoidable.

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According to Coleman, the semantic content of every semantic element of a theory depends, at least, on some of the other elements of the semantic system they belong to. In other words, Coleman vindicates a form of semantic holism15: The property expressed by the word contract, for instance, seems to be constitutively connected at least to the properties expressed by the words agreement and obligation, so that for something to instantiate a contract it is to instantiate an agreement and an obligation too. This explanation of semantic content seems to be intuitively true. But consider the following example. A Razian typically claims that Incorporationismaccording to which the morality of a norm can be a criterion of its legalityis not consistent with legitimate authority, since legal norms wield legitimate authority only if their criteria of legality are social sources.16 On the contrary, a Colemanian typically says that Incorporationism is able to account for legitimate authority (cf. Coleman 1998). As a result, there is some relation between theoretical terms, such as Incorporationism and legitimate authority, that a Razian is prepared to accept and a Colemanian is not. But according to the semantic thesis we are considering, what legitimate authority means depends on what semantic links (or inferential properties) this term is taken to hold, including its link with the term Incorporationism. This leads us to two possible conclusions. The rst one is that Razians and Colemanians mean different things when they say legitimate authority and thus cannot agree, even though they say they do, when they maintain that law claims legitimate authority. According to this conclusion, Razians and Colemanians are actually speaking of different things. If we consider this conclusion implausible, since Razians and Colemanians seem to speak of the same thing when they refer to legitimate authority, then semantic holism does not give a satisfying explanation of how this happens. In a nutshell, Colemans semantic commitment runs the risk of leading to some puzzling conclusions, such as that theoretical statements are not inter-translatable and that legal philosophers cannot share the same belief in legal positivism, legitimate authority, or contracts. Unlike Dworkin, I think that a serious problem for legal philosophy is not to explain theoretical disagreement but, rst of all, to explain theoretical agreement. The simplest solution to this issue is to pick out the subset of semantic links (or inferential properties) that make up the meaning. In doing so, one can explain compositionality, theoretical agreement and linguistic communication without neglecting semantic holism.
15 It is a language as a whole that has meaning, and the components parts of a language get their meaning in the context of their place in a language (Coleman 2002, 345). 16 Cf. Raz 1979, 2004b. For a discussion of this thesis see Himma 2002a.

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For example, the link to unmarried seems to partially constitute the meaning of bachelor, so that whatever instantiates the latter property necessarily instantiates the former. On the contrary, the link to lucky guy does not seem to constitute the meaning of bachelor, although it might be the case that whatever instantiates the latter property does instantiate the former. Now the question is: How can we distinguish constitutive semantic properties from semantic properties that have explicative power but are not constitutive? That is to say: How should we distinguish conceptual truth from empirical truth in jurisprudence? On the one hand, semantic holism does not give an answer to this issue. On the other hand, this issue leads to a different level of analysis, concerning conceptual content. 4. Conceptual Role As I pointed out at the beginning of this essay, an inquiry into the concept is not merely an inquiry into the meaning of law. Conceptual analysis presupposes a theoretical commitment to the nature of concepts and to our epistemic access to content. Without an answer to these issues, no credible methodology for conceptual analysis is available at present. What is Colemans position in this respect? According to Coleman, the content of a concept consists in the role it plays within a variety of (linguistic or non-linguistic) practices. To put it another way, concepts are taken to consist of epistemic abilities, and conceptual content is explained as the set of epistemic abilities that grasping such a concept gives. If one assumes this perspective, it follows that the ability to grasp a concept comes logically before conceptual content, and that in order to grasp a concept, one needs to grasp many. To grasp the concepts EXCLUSIVE LEGAL POSITIVISM and INCLUSIVE LEGAL POSITIVISM, for instance, one needs to grasp at least the concepts LEGAL VALIDITY, SOCIAL SOURCE, and CONTENT OF A SOCIAL SOURCE. One needs moreover to know that if legal validity depends on social sources, but cannot depend on their content, then exclusive legal positivism holds and inclusive legal positivism does not. In this sense, for a concept to have content it is to occupy a position within reasoning, i.e., to serve both as premise and as conclusion of inferences. If this is the case, the subject of conceptual analysis is neither the meaning of a concept-word, nor the conventions it seems to rest on, nor the social facts it refers to. Legal theory is concerned with the moves of a practice: the practice consisting in applying concepts within reasoning. It seems to me, however, that this account of content does not provide a satisfying solution to the issues considered before. The standard version of conceptual role semantics that I have sketched so far does not explain which subset of inferential moves are constitutive of conceptual content
LAW
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and which are not, or which are the necessary and sufficient conditions for a subset of inferences to express a conceptual truth. Furthermore, if we are not able to identify the constitutive epistemic abilities conferred by a concept, or the practical mastery it consists of, how can we share the same concept? And in what sense are legal concepts responsive to nonconceptual reality? If we can nd no trace of such constitutive moves in legal reasoning, as Quines argument implicitly suggests, conceptual analysis seems meaningless. 5. The Normativity of Content There are two strategies that can be used to work out these issues without naturalizing legal theory or appealing to a priori truths: a factual strategy and a normative one. The rst line of argument leads us to search for a subset of basic inferences on which any conceptual analysis rests, i.e., the inferences that best explain the non-basic use of a concept-word. According to Paul Horwich, for instance, our disposition to accept there are nine planets does not constitute the basic use of the word planet, whereas our acceptance of planets orbit stars is a constituent of it, since the latter use gives the best explanation of the former.17 In this sense, the content expressed by a word or a sentence is reducible to a basic regularity of use. This factual regularity is explained by sentence-acceptance and is constitutive of both conceptual content and meaning (Horwich 1998, 44ff.). The second strategy considers constitutive inferential moves to have a normative function, not to be a matter of fact. In particular, the normativity of conceptual content can be looked at from two points of view: 1) Conceptual content determines certain rules; 2) Conceptual content is determined by certain rules. As to the rst aspect, a concept can be analyzed in terms of the reasons it provides for accepting an explanation involving that concept.18 Take for instance the concept SOCIAL FACT, which occurs in the Social Fact Thesis on the basis of contemporary legal positivism. This concept is not simply an element of a claim about the nature of law. It determines how an explanation of the nature of law ought to be articulated if it includes the Social Fact Thesis. In this sense, conceptual contents engender explanatory stan17 The way to pick out the particular use property of a word that comprises what we call the use is to nd the use property that provides the best explanation of all the others (Horwich 1998, 60). According to this view, however, the outcome of this procedure can be fatally indeterminate. There will be cases in which no objective matter of fact xes the boundaries between a pattern of usage that constitutes content and deployments of a word which is not content constitutive. See on this Horwich 2005, 26ff. 18 Cf. Greenberg 2005; Peacocke 2002; Brandom 2000; Boghossian 1989.

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dards within reasoning: They determine what inferential moves we are committed, entitled, or banned to do by applying such a concept.19 Regarding the second aspect, a concept can be analyzed in terms of the rules one ought to apply for thinking and expressing that concept. Obviously, legal theorists do not share the same beliefs about the nature of law, nor do they draw the same conclusion from the same theoretical premises. According to this view, however, they follow a common set of epistemic rules concerning concept formation: In order to give an intelligible explanation of the nature of law, legal theorists are bound to apply shared standards of reasoning. They apply concepts differently but follow the same rules of conceptual application, i.e., treat some inference involving that concept as correct and others as incorrect. To sum up, according to a normative explanation of content, conceptual analysis consists in identifying both the rules that a concept provides for the construction of a theoretical claim, and the rules one has to apply to express meaningful conceptual contents within jurisprudential discourse. I take a normative account of content to be more congenial to Colemans pragmatic conceptualism for two reasons at least. First, this explanation of content is fully consistent with Colemans account of social practices and thus with his interpretation of the Social Fact Thesis. In his view, the Social Fact Thesis does not require every legal norm to have a social source as a matter of fact. It requires the criteria of legality to be set out by social rules instituted by officials activity. If one generalizes this claim with reference to jurisprudential methodology, it turns out that the constitutive inferential properties expressed by a conceptual truth would be a result of legal theorists activity, i.e., of conceptual analysis considered as a comprehensive social practice. Secondly, the idea that conceptual content has a normative function in theoretical explanation claries Colemans Embodiment Thesis presented in the rst part of The Practice of Principle. According to this thesis, in what case does a practice P embody a basic (normative) principle C? P embodies C if and only if C is a necessary condition to explain P. In other words, a basic principle is embodied in a practice if it is not possible to explain this practice without applying that principle. This does not mean that that principle justies the practice from a moral point of view: It simply sets out the necessary conditions of its explanation. 6. Revisability of Conceptual Truths? To conclude, I will briey take into account the last methodological commitment undertaken by pragmatic conceptualism: the epistemic commitment.
19 On the structure of these inferential rules and their applications in legal reasoning, see Canale and Tuzet 2008.

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As mentioned above, Coleman upholds both holism and the revisability of all theoretical and empirical statements. On the one hand, the way in which a concept gures in one practice inuences its proper application in all others. On the other hand, every claim, even a claim expressing a conceptual truth, is subject to revision in the face of experience. This seems to be perfectly plausible in the light of the methodological framework considered so far. Since a conceptual truth is relative to a set of linguistic practices, and this body of practices changes over space and time, then also a conceptual truth is subject to change (Himma 2002b, 1123). A conceptual claim is contingently necessary within the burden of the social practice it explains. But in case of conceptual analysis, theoretical responsiveness to experience seems to be particularly restricted: Although conceptual truths are not immune from the tribunal of experience, they stand at a greater distance from it than other beliefs (Coleman 2002, 344). In order to give a satisfying account of the nature of jurisprudence, however, jurisprudential methodology is committed to specifying under what condition conceptual truths call for revision. By means of an original metaphor, Coleman argues that:
What distinguishes good philosophers from others is not that they invent new paradigms. [. . .] Good philosophy is like good blues. Great blues players rst make it clear to us that they are playing a bluesthe references to the familiar are all there, the chord progression is outlinedthan they go off, play around and through the familiar, connect the dots in unusual, sometimes awe-inspiring ways, then bring us back to the familiar again [. . .]. In this way, they expand the form while all the time working within it. (Coleman 2001c, x)

If all this is true, however, in what sense is conceptual analysis, like good blues, responsive to experience? According to a normative account of content, one move in the song we are playing can be internally wrong, and one is a good player only if she recognizes and corrects the mistakes she makes. But how can we draw a line between a wrong move within an old, annoying song and the right move of a new song, much better than the old one because it responds better to public beliefs, needs, and desires? Apart from our metaphor, is there any way of telling the difference between correcting an old practice in conceptual analysis from changing it to a new one in the light of experience? It is not easy to answer this question. First, a linguistic change is not enough to bring on a conceptual change: We can use new words to express old concepts and the other way round. Moreover, since statements face experience only as a corporate body (Quine 1951, 38), responsiveness to experience involves a theoretical paradigm (such as, for instance, legal
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positivism) as a whole, including its core premises.20 Colemans way out consists here in arguing that analytic statements are revisable also in the light of pragmatic concerns (Coleman 2001c, 9, note 11). In this sense, he seems to be particularly interested in the pragmatic revisability of evaluative claims (especially of the moral claims involved in legal reasoning), to the extent that he assumes the existence of objective criteria of revision for them (ibid.), which are not reducible to prediction and control, i.e., to the traditional standards of revisability of empirical claims. But what these criteria are, and how they differ from empirical ones, are questions that Coleman leaves open. I think that an answer to these questions would cast light on the nal aim of Colemans approach to jurisprudence, which seems to be connected more to the nature of morality than to the nature of law. Department of Legal Studies A. Sraffa Bocconi University Via Rntgen, 1 20136 Milan Italy E-mail: damiano.canale@unibocconi.it References
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