Legal Theory Blog: Legal Theory Lexicon: Concepts and Conceptions

Introduction

Some ideas seem to be endlessly debated. We might all agree that "justice" is a good thing, but some of us think that justice boils down to counting the utility of each individual equally, while others think that justice is a matter of respecting basic human rights. Utilitarians might all agree that maximizing expected utility should be the aim of right action, but disagree about what "utility" is. Most torts theorists might agree that causation between an act of the defendant and harm to the plaintiff is an element most or all forms of tort liability, but disagree about what "causation" means. One of the niftiest tricks in legal theory is to handle cases like this with the concept/conception distinction. The "concept" of justice is the general idea, but different political theorists have different "conceptions" of justice. The concept of "utility" is shared by all utilitarians, but eudaimonistic utilitarianism maintains that the best conception of utility is happiness, while hedonistic utilitarianism holds that the best conception is pleasure.

This post provides an introduction to the concept/conception distinction for law students (especially first-year law students) with an interest in legal theory.

Essentially Contested Concepts

So far as I know, the concept/conception distinction originates with "Essentially Contested Concepts," a paper written by the philosopher Walter Bryce Gallie in 1956. Gallie was dealing with a problem in the philosophy of language. People don't seem to agree on the criteria for application of words like "justice," "right" or "good." We might think that disagreement reflects ambiguity (such words have different senses). In that case, disagreements about justice would be pseudo-disagreements. Gallie thought that explanation was incorrect, and came up with a theory that would preserve our intuition that when people disagree about the nature of justice, there disagreement is real and genuine--not merely linguistic confusion.

The core of Gallie's argument was the idea that certain moral concepts are "essentially contested." "Good," "right," and "just," for example, are each moral concepts which seem to have a common or shared meaning. That is, when I say, that the alleviation of unnecessary suffering is good, you understand what I mean. But it may be that you and I differ on the criteria for the application of the term "good." You may think that a state of affairs is good to the extent that it produces pleasure or the absence of pain, while I may think that the criteria for "good" make reference to the conception of a flourishing human life, lived in accord with the virtues.

Back to "good."

But in the case of "good," we seem to be using the same concept. I think that the good really ishuman flourishing and not pleasure; you have the opposite opinion. So we are contesting the meaning of the concept "good," and each of us has a different conception of that concept.

So when Gallie claimed that some concepts were essentially contested, his idea was that we might never reach agreement on the criteria for application of the concepts. If a concept is essentially contested, then it is in the nature of the concept that we disagree about the criteria for its application.

Two Uses of the Concept/Conception Distinction

Rawls on the Concept and Conceptions of Justice

Perhaps the most famous use of the concept/conception distinction is found in the political philosopher John Rawls's famous book, A Theory of Justice. Rawls appeals to the distinction between the concept of justice and particular conceptions of justice. His theory, justice as fairness, is defended as the best conception of justice. Notice that as used by Rawls, the concept/conception distinction does not imply that the concept of justice is essentially contested. It might be the case that we would eventually come to agreement on the criteria for a just society. In other words, not all contested concepts are essentially contested concepts.

Dworkin on Concepts and Conceptions in Legal Reasoning

Another well-known use of the concept/conception distinction is found in Ronald Dworkin's theory, law as integrity. You may know that Dworkin uses a hypothetical judge, Hercules, to illustrate his theory. Suppose that Hercules is interpreting the United States Constitution. He finds that the Equal Protection Clause of the Constitution makes reference to the concept of equality. In order to decide some case, about affirmative action say, Hercules must decide what equality means. To do this, Hercules will determine what conception of equality best fits and justifies our legal practices--narrowly, the equal protection clause cases but more broadly, the whole of American constitutional law. For Dworkin, "equality" is not an "essentially contested concept," because Dworkin does not take the position that there cannot be stable criteria for the meaning of concepts like equality. Rather, "equality" is an interpretive concept--a concept that is subject to interpretation. Interpretive concepts like equality are, in fact, contested, and may, in fact, always be contested, but this is not an "essential" (necessary) characteristic of interpretive concepts.

Conclusion

The law is full of contested concepts, and one of the jobs of legal theorists is to determine which conceptions of these concepts are the most defensible. Indeed, because contested concepts come up all the time, the concept/conception distinction is extremely useful as a tool for clarifying the nature of disagreements about what the law is and what it should be. When you next run into an idea like "justice," "equality," "utility," or "causation," ask yourself whether different conceptions of that concept are at work.

References

Ronald Dworkin, Law's Empire (Harvard University Press 1988).
W. B. Gallie, " Essentially Contested Concepts," 56 Proceedings of the Aristotelian Society167 (1956).
John Rawls, A Theory of Justice: Original Edition (Cambridge: Harvard University Press, 2001).
Jeremy Waldron, "Is the Rule of Law an Essentially Contested Concept (in Florida)?", Law and Philosophy, Vol.21, No.2, (March 2002), pp.137-164.
Maite Ezcurdia, The Concept-Conception Distinction, 9 Philosophical Issues 187-192 (1998).