2. The notion of an essentially contested concept

I begin by examining some of the relevant literature on essential contestation, to get a clear picture of what I reject for application to the concept of law. W. B. Gallie noted that there are concepts about which groups of people disagree, even when these groups are employing the concepts to serve different functions (1964/1968, p. 157). The surprising thing, he observed, is that when it becomes apparent that different groups are using the concept to serve different functions, the various groups do not simply say that the concept has multiple meanings. Rather, each group insists that its interpretation of the concept is “proper” or “the only important” use to which the concept can be put. These disputes, he notes “are perfectly genuine … not resolvable by argument of any kind, [and] are nevertheless sustained by perfectly respectable arguments and evidence” (p. 158).

There are a variety of possible ways in which contestation might be associated with a concept. Initially, we need to distinguish among concepts: those that are candidates for essential contestation, those that just happen to be in dispute (but about which consensus is possible), and those about which we are simply hopelessly confused. Essentially contested concepts must be those concepts for which contestation among all different possible uses is heavy, but nevertheless the concepts are still of high value in ordering and explaining the world.Footnote ⁵ If the contestation is not deeply associated with all uses of the concept then it would seem that the contestation is simply a matter of contingent fact and it would not be appropriate to call the contestation “essential” to the concept.Footnote ⁶

Christine Swanton explains Gallie's point by breaking it into two claims. The first, which we can call the contestability claim, itself has two parts: “(a) that [the] concept admits of a variety of ‘interpretations’ or ‘uses’ and (b) is such that its proper use is disputable and conceptions are deployable both ‘aggressively and defensively’ against rival conceptions” (Swanton, Reference Swanton1985, p. 813, whom I follow in seeing “conception” and “interpretation” to be synonymous). The second we can call the essentiality claim: “that contests about proper use are ‘inevitable’ and ‘endless’” (p. 813).Footnote ⁷ Notice that all of these elements are themselves descriptive. Hence calling a concept essentially contested is to explain something about it, although it might still involve normative judgments and predictions about which contests are relevant for consideration in forming the explanation.

Consider the concept of a building. Disputes might erupt as to whether a given structure (such as the CN Tower in Toronto) is a building. But in most cases its use is unproblematic. Furthermore, if the criteria for its application were made explicit, that would likely settle most disputes over its application. If we did find a dispute once those criteria were made explicit, we would not expect it to be deep or widespread since we do not expect people to be very attached to the criteria by which they use the concept of a building. Hence the concept of a building might meet the contestability claim, but not the essentiality claim.

On the other hand, if the contestation is endemic to the use of the concept but can be traced to the fact that users are talking about entirely different things, without any robust family resemblances among uses, then the use of the concept is likely hopelessly confused. Generally, this is a result of a single term being used for very different referents.Footnote ⁸ Usually in such cases, more sense can be made of the discussion by jettisoning the confused concept-word in favour of more subtle distinctions in other existing concepts. Once those distinctions are made and agreed upon, we might be able to reintroduce the original term as a way of picking out only the agreed-upon references, dissolving the confusion.

Gallie originally introduced the notion of essentially contested concepts as a way of explaining why some concepts only seemed usable in the midst of an ongoing argument. In Gallie's original understanding: (1) the concept must be “appraisive”, signifying a valued achievement; (2) it must be “internally complex”; (3) that complexity must be reflected in an estimation of the comparative worth of each of its parts, where different conceptions of the concept will rank the worth of those parts differently; (4) the concept must be ‘open’ in that it can be modified to fit changing circumstances; and (5) each user must recognise that his or her use of the concept is contested by other users and be able to appreciate that the other users are employing different criteria for the use of the concept (Gallie, Reference Gallie1964/1968, p. 161). Any concept that displays these five conditions might just be “radically confused”, so Gallie adds two more conditions: (6) all the current users of the concept in their various purposes must acknowledge that the concept derived from “an original exemplar whose authority is acknowledged”; and (7) that the continuing competition over usage among the current users somehow sustains or develops the original exemplar's usage (p. 168).

Beyond simply distinguishing between essentially contested concepts and radically confused concepts, these last two conditions will help us see the characterisation of essential contestation as one best understood in terms of its usefulness rather than simply as an empirical fact. To see a current debate over a concept as linked to its own intellectual history and to see it as developing an evolving understanding helps us to evaluate the debate itself. Whether that debate represents a healthy contribution to the understanding of the concept or idle semantic jousting will be crucial to any use of the concept in a larger theoretical enterprise.

I do not mean to suggest that the notion of essential contestation is unproblematically as Gallie originally proposed with these seven criteria. Most subsequent uses of essential contestation have jettisoned at least some of them. (For a helpful canvass of subsequent uses and the impact of their rejection of selected conditions, see Collier et al., Reference Collier, Hidalgo, Maciuceanu and Olivia2006, pp. 216–22; but see Green, Reference Green1987, p. 17, arguing any change to Gallie's criteria no longer describes essential contestation.) Indeed, we will see that the fact that subsequent theorists often reject one or more of Gallie's conditions in arguing for the application of essential contestation to a given concept is further evidence that essential contestation itself is simply a “framework” for the better understanding of certain concepts and their intellectual histories, rather than an empirical fact about those concepts (Collier et al., Reference Collier, Hidalgo, Maciuceanu and Olivia2006, p. 215, discounting Gallie's own occasional misprision that he was offering an “hypothesis”, in favour of his acknowledgement that it instead represents a “schematization”; Gallie, Reference Gallie1955–56, pp. 168, 170). If Gallie's criteria were supposed to be seen as dispositive of whether a concept is essentially contested, as a property of the concept, then we would expect that a failure of the concept to meet one or more of his criteria would show that the concept is not essentially contested. Instead, theorists routinely discount one or more criteria when discussing certain concepts, arguing all the while that they are best understood as essentially contested (and even endorsing Gallie's understanding of the notion notwithstanding that rejection).Footnote ⁹ Hence, if it is ever a useful way of explaining a concept, its usefulness can at least sometimes be supported without the subject concept meeting all of Gallie's criteria. Nevertheless, failing to meet many or all of his criteria is a prima facie reason for rejecting the essentially contested appellation as unhelpful, since we can understand those criteria as guidelines for determining when the essential contestation appellation would be helpful.

Jeremy Waldron notes that if a concept is essentially contested, the issue is not merely an argument about hard or penumbral cases; rather it is a dispute that goes to the very core of the concept itself (1994, p. 529). Waldron suggests three characteristics of essential contestation: the dispute is at the concept core or “central meaning” of the concept; the contestation itself is a part of the meaning of the concept; and the contestation is what makes the term useful to its users (1994, pp. 529–30; 2002, pp. 149–50).

An example used by both Gallie and Waldron is democracy (Gallie, Reference Gallie1964/1968, pp. 178–81; Waldron, Reference Waldron2002, p. 149; it is also used as an example by Connolly, Reference Connolly1974, p. 10 and Collier et al., Reference Collier, Hidalgo, Maciuceanu and Olivia2006, pp. 222–28). It is a concept with a rich and highly value-laden history. It is also a concept in which putative component values are tested, modified and understood through a process of debate over the meaning of the concept itself. It is in the various competing conceptions of democracy that the important value debate takes place and by which we gain greater insight into our culture and our commitments. For example, some might say that direct popular participation in government is necessary for an application of the concept, while others will say that it precludes an application of the concept (Waldron, Reference Waldron1994, p. 529). Notice that we can wade into these debates, for example by making claims about the undemocratic character of judicial review, or we can attempt to canvass the debate as a way of understanding our culture's intellectual history. Of course, we can also combine these two methods, as most theorists of democracy do.

If one is advocating a particular conception of an essentially contested concept, hoping to win adherents to one's conception, one way to do so is to canvass the historical usage, pointing out strengths and weaknesses and showing how one's own conception is derived from early historical exemplars (Gallie, Reference Gallie1964/1968, p. 187, distinguishing the “higher-order” recognition that one is deploying an essentially contested concept from the “lower-order” recognition that one is using a conception both aggressively and defensively). But to characterise the concept as essentially contested is to step outside of one's own conception for at least a brief moment; it is a claim about the concept itself (in that it is a claim about all possible uses of the concept – all conceptions), and not any particular conception. To call something an essentially contested concept is to characterise the concept as a whole and not to engage or deploy it within a particular conception. This will be important when we assess Dworkin's arguments and the application of essential contestation to the concept of law. First, however, we will see that essential contestation can admit of degrees, another reason we should only deploy it when it is useful for characterising the debate over a concept's usage.

3. Degrees of essential contestation and internal complexity

William Connolly notes that the internal complexity of essentially contested concepts usually is a result of their character as what he calls “cluster concepts” (Reference Connolly1974, p. 14; see also Collier et al., Reference Collier, Hidalgo, Maciuceanu and Olivia2006, p. 217; Green, Reference Green1987, p. 18). “To make [an essentially contested concept] intelligible we must display its complex connections with a host of other concepts to which it is related; clarification of the concept … thereby involves the elaboration of the broader conceptual system within which it is implicated” (Connolly, Reference Connolly1974, p. 14).

This suggests something important to note about the nature of essential contestation: some concepts may be best seen as essentially contested as a result of the competing emphases of a variety of otherwise clear and uncontested values. It may be that a concept is understood to involve other value concepts about which there is strong agreement regarding their meanings but not regarding their relative weights within the concept that is essentially contested. Other concepts may be considered essentially contested because the underlying concepts upon which they rely are themselves essentially contested.Footnote ¹⁰ Of course, many concepts may combine elements of both of these facets. Democracy might be essentially contested partly because of the disparate emphases we place on direct participation (where direct participation is itself clearly understood) and partly because of the variety of meanings (and importance) we assign to the concept of equality, another good candidate for being understood as essentially contested.

These complexities also show that essential contestation is something that admits of degrees,Footnote ¹¹ further buttressing the claim that it is a framework to be judged by its utility, rather than a hypothesis that is either true or false of concepts. Some concepts are better considered essentially contested than others. Consider the spectrum of possible essential contestation in the concepts of justice, democracy and government. If we think it useful to consider all three as essentially contested (a claim about which I have serious doubts), the list does exhibit a decreasing amount of essential contestation. To highlight another facet of essential contestation, consider how this list provides concepts the value of which is increasingly easy to doubt. Almost no one would doubt the value of justice, few the value of democracy, but quite a few will have misgivings about the value of government overall. Furthermore, as a result of the fact that essential contestation is a matter of degree, there are likely to be concepts that are themselves penumbral cases of essential contestation (Gallie, Reference Gallie1964/1968, p. 190), borderline cases for the utility of the appellation.

Moreover, some concepts not themselves essentially contested may include or depend upon other concepts that are best considered essentially contested.Footnote ¹² Clearly the concept of government involves the concept of power, which Steven Lukes claims is essentially contested (1974a, p. 26), and the concept of politics, which Connolly tells us is essentially contested (1974, p. 12). However, it is not illuminating of the concept of government to call it essentially contested. We do not usually see the important debate over the concept of government as consisting in what a government is, or what counts as a government. We do see it with respect to what counts as a just government, but that is clearly a debate about the meaning of justice (a good candidate for essential contestation if there ever was one), not the meaning of government. To characterise the concept of government itself as essentially contested does not respect the kinds of disputes that actually arise around it, and it does not appear to clarify the disputes that do take place.

As mentioned above, Connolly's claim that essentially contested concepts tend to be cluster concepts can be seen as a more precise characterisation of what Gallie had called the internal complexity of the uses of these concepts. In conjunction with this, David Collier and his colleagues point out that sometimes this internal complexity is a result of a concept being “over-aggregated”, running together elements better understood as distinguished from one another (2006, p. 217). This point suggests that when a concept can be disaggregated into separate components, that should be tried first and then any remaining debate on the component concepts can be considered for an application of essential contestation. If disaggregation is impossible because the concept is not the kind of cluster that can be separated into its components, then that would be an additional point in favour of seeing the debate as essential contestation. We will return to this point when we disaggregate the concept of law.

If every conception of an essentially contested concept relies heavily upon other concepts, some of which are themselves essentially contested, it might appear that any attempt to articulate a descriptive understanding of the concept cannot get outside particular conceptions of at least some essentially contested concepts. If every conception of democracy involves the idea of equality to some greater or lesser extent, then it might appear impossible to offer a descriptive account of democracy (as in an intellectual history) without taking up a controversial conception of equality.

Connolly discusses this in attacking an operational approach to understanding the concept of politics (1974, p. 15). An operational approach would fix the meaning of a concept like politics for the sake of social scientific study by defining each concept upon which politics depends in a way that is testable and uncontroversial (at least for purposes of the study) (pp. 15–16). The problem with this approach is that either it is impossible, or it necessarily smuggles in norms that are tied to the social scientist's project. That is, either the cluster concept is too dependent upon concepts that cannot themselves be operationally defined, or the operational definitions of those other concepts are too pregnant with the point or use to which the concepts will be put in the study (in which case the study is in danger of becoming self-verifying) (p. 16). Connolly's solution is to relax the operational requirement to fix the other concepts upon which the studied concepts depend. It is then sufficient to characterise the empirical data upon which one is generating one's theory employing concepts that may themselves be considered essentially contested (1974).

This solution suggests a similar answer for attempts to use a descriptive methodology to understand social practices like law.Footnote ¹³ If I am attempting to offer a descriptive theory of a concept that is usefully considered essentially contested (such as in the context of giving an intellectual history of the concept) I can articulate the ways in which the constituent essentially contested concepts function in the analysed concept without offering robust conceptions for each and every one of them. This appears problematic only if we confuse concept and conception. If I am attempting to generate a descriptive intellectual history of democracy, cataloguing various conceptions of democracy through time,Footnote ¹⁴ it is likely that I will need to refer to the concept of equality repeatedly. However, in so doing I am not thereby forced to take up a particular conception of equality. Depending on the nature of the project, it might be sufficient to characterise equality as do the theories I canvass (to the extent that they do offer their own conceptions); it might also be sufficient to admit its essential contestation and leave it as an unexplored cluster of value, using the concept of equality itself somewhat vaguely rather than offering a robust conception. This is an important point in order to combat any impression that a concept must be understood as essentially contested if it contains others that are usefully considered as such. The fact that the concept of law arguably contains the concept of justice does not thereby make it as useful to consider law essentially contested as may be the case with justice.

Clearly there is something incomplete in this kind of canvass of a concept. But incompleteness will be a hallmark of any exploration of a concept that is understood as essentially contested or has elements that are usefully considered as such. To call a concept essentially contested is, in a sense, to offer an explanation (or justification) for the incompleteness of one's theory, yet another indication that the appellation is to be deployed only when useful for a better understanding of the concept. Either the theory will be incomplete in that it is somewhat one-sided in advocating a specific conception, or the theory will be incomplete in offering a comprehensive description that does not plumb the depths of every subordinate concept. To wish that incompleteness away is to wish for a grand unified theory of all social concepts. Notwithstanding such a necessary incompleteness, this understanding of the role of the essentially contested appellation also leaves a descriptive analysis intact.

4. The descriptive perspective

Connolly does attack the possibility of a descriptive analysis, noting that descriptions are always characterisations from specific points of view (1974, p. 23). Here, I wish to explore his arguments about the normative commitments inherent in adopting apparently descriptive perspectives. (I use the term “normative” in a broad sense, in which it is not limited to moral value.) The key point comes when a supposedly descriptive analysis employs normatively laden concepts such as ‘mistake’, ‘crime’ and perhaps even ‘rule-governed’ or ‘reason-giving’. For Connolly, to employ such concepts is not necessarily to deploy any specific normative judgment they suggest (except the one that is inherent in the concept itself); but it is to adopt the point of view from which such judgments are made (p. 24). Hence the normative/descriptive dichotomy is useless to understand different ways of examining concepts that bundle elements of both. When we describe a move as ‘a mistake’, we are describing it by deploying the normative judgments dependent upon the criteria internal to the system in which the mistake was made, even if we do not necessarily take the extra step and say that the mistake was somehow wrongful in a wider sense (p. 24, “mistake” is Connolly's example).

From this he concludes that there is no “descriptive point of view” from which to perform a normatively neutral description (Connolly, Reference Connolly1974, pp. 24–25). This is because the choice of terms and concepts deployed in the description are not only pregnant with the judgments they express (even if the user is not herself making those judgments), but also are themselves the result of other normative judgments on the part of the describer: “If we subtracted the [normative] point from any of these concepts [used in our description], we would subtract as well the rationale for grouping the ingredients of each together within the rubric of one concept” (pp. 27–28, this passage is emphasised in the text).Footnote ¹⁵ In Connolly's terminology, there is an unavoidable interdependence between the criteria governing the application of the concept and its function or the point for which it is used (pp. 26, 29–30).

As mentioned above, the ‘descriptive theorist’ may engage and use robust norms. However, they are norms that are internal to the point of the study or analysis being done, not the norms internal to the subject being studied (see Dickson, Reference Dickson2001, p. 10, calling this "indirectly evaluative legal theory"). When it comes to analyses of key social practices like law, these are not just the epistemic norms of theory construction, but include elements that explain how users of the concept see themselves when they use it (p. 40, citing Raz, Reference Raz1994, p. 237). This is an additional meta-theoretical criterion for theories about concepts that are used by people to understand themselves (Dickson, Reference Dickson2001, pp. 42–43, 48).Footnote ¹⁶ That is, because it is a concept that we use to understand ourselves, our society and culture, and our role in them, an adequate theory of that concept must highlight the way in which it is a facet of our collective (and individual) self-understanding.Footnote ¹⁷

The ‘descriptive theorist’ can offer an account that is neutral among normative judgments internal to the concept being studied while making normative judgments at other levels of abstraction, such as those that govern the creation and elaboration of the theories themselves.Footnote ¹⁸ While I certainly would not consider him such a descriptive theorist, consider Steven Lukes's discussion of the essential contestation of power in support of maintaining this distinction among different levels of abstraction (e.g. participating in a practice as opposed to theorising about a practice). He notes that the ability of one person to affect another is a “primitive” (we might use Dworkin's term “preinterpretive” (1986, pp. 65–66)) aspect of the concept of power (Lukes, Reference Lukes1974a, p. 26). A particular conception of power can only be useful if it tells us what the significant ways are in which one person can affect another. That is, “What makes A's affecting B significant?” (p. 26). The answer to this question yields a theory of power that pushes a particular conception of it. But consider the different conceptual levels at which a question of importance or significance can be answered. We can say that A's particular effect on B is significant because those who use the concept of power ‘on the ground’ consider it to be significant. That is, we would be making the judgment that a given aspect of the concept is significant because it informs the self-understanding of those who are using it. On the other hand, we can say that it is significant because it is important for the sake of the theory being constructed. We might distinguish between ‘important to those who use the concept’ and ‘important to those who study the concept’. This is not to say that these two are not intimately related. Of course they are. But the reasons for which and ways that they are important may be different at the two levels of abstraction. In the case of concepts regarded as highly essentially contested like that of justice, or perhaps power, the theorist might not be able to make a judgment about what is important in studying the concept without also taking a position as a user.Footnote ¹⁹ But in other cases, the theorist may only need to take account of what users think is important without placing that importance on it herself.

To sum up the discussion thus far, we have learned that to call a concept essentially contested, we would expect the competition among multiple conceptions of it to be “endemic”, and for the concept to exhibit a high degree of internal complexity that cannot be easily or usefully disaggregated. In explaining this, I have given reasons along the way to support the claim that the essential contestation characterisation itself is only valuable, if ever, as a tool for coming to a better understanding of value concepts and social practices. We have also seen that even when essential contestation is usefully applied to a concept, it need not threaten the possibility of a ‘descriptive analysis’ that is neutral among conceptions, even though such an analysis cannot be devoid of normative judgments. Now we turn to an application of these ideas to the concept of law and a fuller development of the claim that essential contestation be applied to a concept only when it is useful for a better understanding of it.

5. Conceptual contestation and law

Christine Swanton noted that there are at least two different ways to claim that a concept is essentially contested: a “relativist” (or metaphysical) version that no interpretation or conception of the concept is the best one, and a “skeptical” (or epistemological) version that for any interpretation or conception, there is never any “warrant for the belief that [it] is the best conception of” the concept (1985, p. 814). This distinction is not so useful once we admit that essential contestation is just a pragmatic tool for understanding the nature of debates over certain social practices (and hence about the concept of those practices). Whether that characterisation is made in a metaphysical mode or an epistemic mode is not illuminating anything useful about the concept it explains because the distinction cannot have an impact that is empirically available.

This distinction is important, however, for understanding how Ronald Dworkin thinks law is an essentially contested concept. My purpose here is not an exegesis of Dworkin, but seeing how he can be understood to be making that claim will help provide a target for my refutation of it. We will see that, taking Dworkin's own claims at face value, it might make more sense to say that his idea of what it is to be an essentially contested concept differs from some of those mentioned above. The question will then be whether there is any form of essential contestation that is still useful for law.

Dworkin has claimed that law is an interpretive concept for quite some time, and this perspective is central to his methodology (2006, pp. 223ff.). Early in his writings Dworkin noted that social conventions are not sufficient to describe the decision of difficult legal cases precisely because they are “abstract, so that their full force can be captured in a concept that admits of different conceptions; that is, in a contested concept” (1978b, p. 103, emphasis in original, citing Gallie, 1955–56). But he does not there distinguish between essentially contested concepts and those that are just contingently contested. More recently he has written: “Lawyers share the concept of law as what I call an interpretive (or essentially contested) concept” (Dworkin, Reference Dworkin2002, p. 1686, claiming that Coleman shares this view).Footnote ²⁰ This raises the possibility that the concept is essentially contested for lawyers and not for non-lawyers (see Dworkin, Reference Dworkin2006, p. 225). In making this claim Dworkin means (among other things) to say of the concept of law that there is no ‘right’ way to use the concept as agreed upon by those most adept at its use, although those who are using the concept will take themselves to be doing so correctly.Footnote ²¹ This can be seen as the primary reason that Dworkin is at pains to deny that he is analysing the general concept of law at all, saying that there is nothing of interest left in a general concept denuded of all cultural or sociological specifics (p. 224).

Dworkin might be said to depart from other notions of essential contestation in holding that there is a single best conception or interpretation, at least for law (Reference Dworkin1978b, pp. 81ff.; 1986, pp. 66–67). This might appear to be a view inconsistent with any claim of essential contestation. Essential contestation, if it means anything, implies that debates are necessary and ‘irresolvable’ regarding the use of the concept that is essentially contested (at least as long as it remains understood as essentially contested). Hence Dworkin's claim that there is always a best interpretation in the application of law, or conception of the practice as a whole (he does not believe there to be a distinction in kind between these two levels of abstraction) would seem at odds with the claim that it is essentially contested.

However, that conclusion is too quick. Dworkin's view is still consistent with Swanton's epistemological version of essential contestation if we understand Dworkin to see the kind of warrant demanded by Swanton as unavailable due to the lack of an external position from which to access it. Given Dworkin's distaste for any analysis from a supposedly external viewpoint (see 1986, p. 82; Reference Dworkin1996 passim; 2006, chapter 6), it is easy to see that he would have no problem with this explanation. Basically, Dworkin is trying to offer a kind of essential contestation that does not require (or even allow for) the external, descriptive viewpoint contemplated by Gallie's original criteria. To allow that there is no best conception is to step outside the advocacy for our own conception in order to describe the debate as a whole; that is something Dworkin does not believe is possible. From within our own conception, there has to be one that is best (and we will usually think it is the one for which we are advocating, or at least towards which we are moving). Otherwise there would not be any point in continuing the debate. Precisely because we cannot step outside our conception, there can never be any objective or externally verifiable warrant for our belief that it is the best conception; but because we cannot step outside it, any demand for such a warrant is inherently unreasonable (let alone unavailable). While there are ample reasons to believe that Dworkin's arguments in support of this claim are misguided (see, for example, Ehrenberg, Reference Ehrenberg2008; Bloomfield, Reference Bloomfield and Shafer-Landau2009), the key point here is that Dworkin's claim that different theories of law are really different and competing interpretations, is offered as evidence that the concept of law is essentially contested. Once we see essential contestation as a framework to be used (if ever) only when helpful to characterise the debate surrounding the use of a concept, then if the debate over the concept of law is not illuminated by that characterisation, we have a reason to reject at least this element of Dworkin's theory. However, a more complete rejection requires a deeper examination of the concept of law, specifically to see how useful essential contestation might be once we disaggregate the concept of law into its components.

6. A multiplicity of legal concepts

Gallie himself was in doubt about whether the concept of law qualifies as essentially contested (1968, p. 190, citing law as a “possible candidate”; Green, Reference Green1987, p. 18). Earlier, in discussing the idea of internally complex concepts as cluster concepts, I mentioned Collier's suggestion that some such concepts are actually “over aggregated” (2006, p. 217), and noted that disaggregation should therefore be tried before saddling the entire concept with essential contestation. Once the components are separated out, we may find that one or more are no longer concepts about which the dispute is helpfully characterised as essentially contested.

Turning to law, let us start by disambiguating among at least three admittedly related concepts, different in their levels of specificity: (a) We sometimes speak of “the law” as in the locutions: “That is against the law” and “What does the law say about this subject?” (b) We also sometimes speak of a “legal system”, referring to the body of law within a specific jurisdiction. It is clear that both of these concepts, dealing with specifics of one kind or another, are at a lower level of generality or abstraction than (c) law conceived as a general practice or institution that is present in a wide variety of societies (Gardner, Reference Gardner2004, p. 169).Footnote ²²

In attempting to determine which of these three different concepts is at play, we cannot rely upon the presence or absence (in the language used) of an article, whether definite or indefinite. Consider: “the law says not to do that” as opposed to “the law of the land” as opposed to “I am interested in understanding the law”. Similarly: “Parliament passed a law today” as opposed to “this country has a developed body of law” as opposed to “What does it mean to be a law?”

It is tempting to see these three as one concept, the first as referring to an element of the set of all legal norms, the second as referring to a jurisdictional subset of those norms, and the last as referring to the set as a whole, represented by a mass noun. This, however, would be too hasty. Our wide variety of theoretical interests and manipulations of these notions is good evidence for seeing them as separate, although closely interrelated, concepts. Consider, for example, the differences in the way we approach the validity and normativity of law. When dealing with the first concept, that of a particular law, we investigate the particular actions prescribed or proscribed, or powers created, by that law. If questions about its validity arise, we perform an investigation into its validity by applying whatever validity standards we have (whether they are rules or principles, specific to the legal system or general values). When dealing with the second concept, that of a legal system, we look at the validity standards it contains, perhaps comparing the norms within that system to those of other systems, looking at the interplay between political structures and the resultant system-specific typology of legal norms. When dealing with the last concept we ask about the relation between law and morality, under what conditions (if any) legitimate legal authority is possible, the necessity of coercion to law, how legal norms come to be understood as providing reasons for action, etc. I am not claiming that these are unrelated projects or that one theorist cannot work on more than one at the same time. Rather, the distinction among the kinds of questions we ask about the different conceptual elements of legality is simply good reason for separating out those elements for theoretical purposes. But those theoretical purposes are the same ones we are trying to serve in deciding whether to see the debate about law as essential contestation. Hence, there is good reason to disaggregate the concept of law.

The last, most general, concept is capable of a wide variety of applications, in some of which it appears as a part of another, distinct, concept. We might consider the notion of legality itself, that which gives certain acts or rules this character. We might consider law as an element of culture or as a consideration in social interactions. We might consider the legal mode of governance, calling it the “rule of law”. We might consider it as a psychological constraint or element of self-understanding, as in the phrase “law-abiding”. Each of these uses of the general and abstract concept employs a different set of the concept's theoretical elements in a different way. As shown above, it is also possible for it to appear as an uncontested element of a concept that would be usefully considered essentially contested (as may be the case with the rule of law, to be discussed below).

A complete understanding of the concept of law requires an understanding of all three of these different concepts. However, when assessing whether law is an essentially contested concept, we are mainly interested in the most general and abstract of these three concepts: the law understood as a general practice or institution.Footnote ²³

The reason for this is clear from a closer examination of the three concepts of law just enumerated with an eye to finding Swanton's essentiality claim (“that contests about proper use are ‘inevitable’ and ‘endless’”, 1985, p. 813), mentioned above. While it is certainly true and useful to note that many applications of the most specific concept are contested and contestable, there is no way to support a claim that those contests are inevitable or endless. There are simply too many applications that do not exhibit contestation for us to say that contestation is inevitable. For example, look at the disputes that might erupt over the claim that it is proper to say it is illegal to drive over 65 mph in the state of New York, or that a police officer has a legal (not moral) right to stop you if you do, neither of which admits any serious doubt. Disputes are possible about whether the law that provides for the truth of these claims is valid, which then calls into question the propriety of these claims. But that is not a dispute over the meaning of the narrowest concept of law. Rather it is a question of whether a given putative law has met its system's validity conditions. Doubts could also be raised about the propriety or value of that law. Again, that is not a contest about the proper use or interpretation of the concept, but a contest over the value or utility of that particular law. The essentiality claim requires that all possible claims about proper use are contestable. Similarly, while the membership of a given law within a legal system might be in doubt, this is not true of all laws of that system. Hence the application of the concept of a legal system is not usefully considered essentially contested. We might have debates about whether a given system counts as a legal system, but this is not enough to say that the concept of a legal system is essentially contested as that debate is more likely to be about the application of the most general concept of law to a given example of governance or system. So the only real candidate for essential contestation is the most general and abstract concept of law, since any debates about these other concepts are really debates about the application of that general concept, what it means to be a law or a system of law.

Dworkin also countenances a multiplicity among concepts of law. He claims there are at least four: (1) doctrinal (what the law of a specific jurisdiction requires); (2) sociological (as “a particular form of political organization”); (3) taxonomic (allowing us to classify some norms as ‘legal’); and (4) “the aspirational concept we use to describe a distinct political virtue” (2006, p. 223). It is significant to note that Dworkin does not discuss their interdependence, or which of these four are more abstract and which are less. From his analysis, it appears that the taxonomic and sociological are more general than the doctrinal. The generality of the aspirational concept will depend on how much specificity is placed upon the criteria with which it is applied. (For an example of this point, see Fuller, Reference Fuller1964/1969.)

It is clear that his divisions cut across the ones I draw above. Furthermore, his distinctions among concepts are somewhat ad hoc and seem tailor-made for his own arguments, rather than reflective of common usage. One might ask, for example, why the aspirational concept is conceptually independent from the sociological. It is precisely “a particular form of political organization” to which those who place a high value on law aspire. Similarly, there is such a close conceptual connection between the taxonomic and sociological that it is difficult to see them as separate concepts. We classify certain norms as legal when they issue from “a particular form of political organization”. While still interrelated, the threefold disaggregation I borrow from Gardner better reflects the distinctions in common usage, without obscuring key interdependencies as Dworkin's do. Nevertheless, the realisation that law is itself a cluster of at least three concepts leaves open the possibility that at least one of them is usefully considered essentially contested, while also reducing the number of a certain kind of disagreement that might otherwise be cited to support applying the appellation.

Dworkin himself claims that he meant to attack legal positivism for its account of the “doctrinal” rather than “taxonomic” concept of law (2006, p. 234). He claims that a failure to distinguish between these two may be at the root of much confusion in legal theory (p. 235). However, his failure to appreciate the interrelation and interdependence of these “concepts” (ignoring for the moment doubts about whether they are distinct concepts at all) appears to be at the root of his overemphasis of law's interpretive character. If we see that questions of validity (which underlie the “doctrinal” concept) make use of some elements of the “taxonomic” concept, we can relegate essential contestation to the more value-laden “aspirational” concept (since debates over the validity of given laws would not then be seen as evidence of essential contestation as we would be removing much of their value-laden character). Similarly, it will not be useful to consider the sociological concept to be essentially contested since the concept (once isolated as Dworkin proposes) is not deployed appraisively or aggressively. Without these two facets, it is difficult to see what use could be gained by characterising a concept as essentially contested.

As I noted above, it is possible for a concept that is usefully considered essentially contested to contain, rely upon or refer to other concepts that are not. Continuing with Dworkin's distinctions for the moment, the “aspirational” political virtue of legality (or the rule of law; Reference Dworkin2004, p. 24) may be usefully considered essentially contested without having to claim that any of the other concepts are essentially contested. We will see shortly that this concept refers to some (debatable) particular form of governance, involving some relation to law. It is the concept of that particular form of governance and its relation to law that is then usefully seen as essentially contested, not the general concept of law included within. But first let us return to the question of the appropriateness of applying essential contestation to the now disaggregated general concept of law as such.

7. Applying Gallie's criteria

The reason to disambiguate among different legal concepts becomes clear when we attempt to apply Gallie's criteria for the essential contestation of a concept.Footnote ²⁴ We have already seen that Gallie's criteria are not the final word on whether a concept is essentially contested, but they serve as a useful point of comparison, especially where the other theorists agree with a given criterion.

8. The framework and assessing its utility for law

In explaining essential contestation, I have highlighted reasons to see it as a framework to be judged for its usefulness in understanding the use of certain concepts, rather than as a hypothesis to be accepted or rejected as highlighting a quality that is true or false of those uses (as noted before, in this I follow Collier et al., Reference Collier, Hidalgo, Maciuceanu and Olivia2006, p. 215). Now it is time to collect those reasons detailed above, and show how they can be developed into criteria that suggest when the essentially contested appellation might be useful.

To call a concept essentially contested is to help explain its usage. It is a claim about the use to which the concept is put (Gallie, Reference Gallie1964/1968, p. 161). Since we are trying to understand something about those uses, the question is whether to call the concept essentially contested helps to clarify those uses and the conflicts among them. Additionally, Gallie's last two criteria, that there be an agreed-upon historical exemplar and that the competing uses claim to sustain or develop that historical exemplar (pp. 166–68), are questions about the debate and the intellectual history of the concept and hence also are about the usage of the concept. While some theorists may disagree with some aspects of these criteria, the criteria still help to show that to call a concept essentially contested is to characterise that historical debate (possibly from outside it). Hence, the applicability of these criteria amounts to a claim that it is useful to understand the concept in the light of that historical debate over usage and the characteristics one highlights.

In further support of this point consider Connolly's claim that essential contestation itself waxes and wanes (1974, pp. 31–32). He gives the example of democracy, showing how a change in circumstance (such as a differentiation of the species into groups with very different abilities, reminiscent of H. G. Wells, Reference Wells1895) might alter the normative content of democracy, either by changing the criteria by which the concept of democracy is generally deployed, thereby changing the point of its deployment, or by leading us to cast it aside as outmoded. This is best understood as a claim that essential contestation is simply a theoretical tool ascribed for its usefulness in a wider theoretical endeavour. As society and its values change, the usefulness of the ‘essentially contested’ ascription to a given concept may also wax and wane. If we were to understand Connolly's point in some way other than to imply that essential contestation is simply a framework for understanding the use of concepts, we would be saddling him with unelaborated and unsupported controversial views about the metaphysics of concepts.

We have also seen that subsequent theorists jettison one or more of Gallie's criteria in arguing for seeing one or another concept as essentially contested. Nevertheless, they do this while still claiming that they are using the notion of essential contestation. The potential viability of the appellation in the midst of rejecting some criteria points to an assessment based on its utility, which cannot be captured with an exhaustive checklist. That is, the theorists who are using the appellation while rejecting some of Gallie's criteria are thereby implying that they don't see Gallie's criteria as necessary and jointly sufficient for the application of the ‘essentially contested’ appellation. Yet they still find the idea expressed by the appellation useful for their own theoretical purposes, even as they reject some elements of it deemed necessary by its creator. This supports the contention that Gallie's “criteria” are not really criteria for assessing the truth of a hypothesis that a given concept is essentially contested (see also Collier et al., Reference Collier, Hidalgo, Maciuceanu and Olivia2006, p. 215). Instead, they are considerations to be weighed in assessing the usefulness of the appellation. Theorists who reject one or more of the “criteria” are asserting that the appellation is useful in their particular contexts even without their usage showing any element of the rejected criterion.

Another reason in support of seeing it as a framework to be assessed for its usefulness is seen from an examination of the use to which it is put by theorists: to call a concept essentially contested is to offer a rationale for the incompleteness of one's theory of the concept, or one's inability to overcome likely disagreements. Granted, it may also be used to justify the normative character of one's theory, but all these uses are offering essential contestation as a help in assessing one's theory of the concept, rather than as a quality independently possessed by the concept and cited as just another datum. Since it is generally seen as a reflexive comment on one's own theory, rather than one among many facets of the concept under discussion, it is more aptly understood as a framework for assessing that theory and hence to be deployed only when useful for making that assessment.

Once we admit that essential contestation is a framework to be used when it is a useful way of understanding the usage of a concept, the question turns to exactly when doing so would be useful. While by its nature, this question cannot be answered with the precision of mathematics, we can offer several considerations that aid in making a determination. First we turn back to Gallie's “criteria”, which the usefulness condition can be understood as a way of applying. The more the criteria are met by the uses to which the concept is put, the more likely it will be that seeing the concept as essentially contested will give us a better understanding of the debate amongst those uses.

Building upon this insight, as well as some of the considerations mentioned above, we can ask several questions in making an assessment of whether it is useful to consider a concept essentially contested: Do we understand more about the use of the concept over time (does the essential contestation framework make the concept's use more intelligible)? Does it serve to obviate the apparent problem of any lacuna in a theory of the concept? Does it justify the lopsidedness of competing theories? Can we make better sense of the concept by disaggregating it rather than seeing all the debates as about the same thing? (If the answer to this is ‘no’ then that might be a good indication that it would be useful to see the concept as essentially contested.) Can a theorist make a judgment about what is important to study in the concept, without evaluating those elements in the same way that a user of the concept does? (A negative answer similarly argues in favour of seeing the concept as essentially contested.)

For the most general concept of law, the answers to these questions point away from applying the essential contestation framework. It would not be of significant aid in understanding the debate, e.g. between natural lawyers and legal positivists to say they were pushing competing conceptions of an essentially contested concept. While one side in that debate links law to morality in a very basic conceptual way, both are advocating explanatory theories. Furthermore, there is not the kind of disparity among referents for the term ‘law’ that the essential contestation framework would help to explain. While we do see some debate over referents (e.g. Did Nazi Germany have law?), most theorists (excluding Dworkin, Reference Dworkin1986, pp. 102–103) see this as peripheral and not a debate over the core of the concept (see, for example, Finnis, Reference Finnis1980, pp. 351–52). Furthermore, holes in theories of the concept of law are problems for any of them and are not explained away by the essential normativity or complexity of the concept. If we can find instances of law that are difficult for a theory to accommodate (e.g. customary or international law for legal positivism (Hart, 1961/1994, pp. 44–48, 213–37), the potential bindingness of wicked law for natural law theory (Finnis, Reference Finnis1980, pp. 354–62)), each theorist sees this as demanding a theoretical apparatus to fill the gap and not as an occasion to deny the applicability of the concept outright. Finally, essential contestation would not help to excuse any bias within theories of law, the concept can be disaggregated as shown above, and we can see what is important to explain about the law without having to adopt the same attitude towards those elements as do those engaged in the practice of law.

9. Essential contestation and descriptive methodology

Even if we could ignore problems with the application of essential contestation to the general concept of law, characterising the concept as essentially contested does not help Dworkin's attack on a descriptive methodology for understanding law. That the use of a concept shows some empirical characteristics that fit with Gallie's criteria is necessary, but not sufficient for saying that it is useful to consider the concept as essentially contested. In order to tell whether the use of a concept displays these characteristics, we are supposed to examine the uses of the concept by various parties and determine whether they are appraisive, aggressive and defensive, etc. These determinations are not determinations of value but descriptions of fact.Footnote ³² It does not require a value judgment to tell that someone else is making a value judgment (at least, not one of the same kind). Hence empirical investigations of usage are important and useful for understanding the ways these concepts are used.

Indeed, there is an irony in my insistence that we determine whether it is useful to think of law as an essentially contested concept rather than simply whether it displays the characteristics of one. When they call a concept essentially contested, theorists such as Gallie, Lukes, Connolly and even Dworkin appear to be making factual claims about the concepts themselves and not about any particular conception. They make these claims based upon descriptions about the way in which various conceptions of the concept are presented and debated. On the other hand, I am asking whether it is useful to interpret (or conceive of) the concept as essentially contested. What theoretical purpose does it serve? Does it help our understanding or hinder it? Only Connolly appears to appreciate the role of purposive judgments in such a characterisation (1974, pp. 22–24).

Understanding the history of the concept's uses in order to understand the concept itself would be a matter of describing how the concept has been used over time (and perhaps the significance of the concept to those who used it). Dworkin himself notes that the positivist social fact thesis is historical: the criteria that make a proposition of law true “turn on whether certain specified social and psychological events have actually occurred” (1987, p. 10). This sounds very much like the kind of descriptive analysis Gallie suggested was necessary in order to understand an essentially contested concept. Positivists do not deny that the specific concept of law is appraisive to those who use it in discharging legal duties. They deny that one must make robust evaluations of the concept itself in order to understand it. Again, such a descriptive analysis therefore contributes to an understanding of the sense in which the concept is used. Levels of essential contestation may have to do with how intimately the concept is tied to other values by those who use it most. Hence, even if it were useful to consider some concepts of law to be essentially contested, this does nothing to undermine the descriptive project of understanding the most general concept.

10. Levels of conceptual generality and the locus of conception

What would happen if we denied that there was any real conceptual difference among the various levels of generality in law, i.e. between particular legal requirements, particular legal systems and legality itself? Dworkin might have seemed to deny a conceptual distinction between the levels of generality when he wrote that “Jurisprudence is the general part of adjudication” and “Legal philosophers debate about the general part, the interpretive foundation any legal argument must have … [W]hen rival foundations compete, a legal argument assumes one and rejects others” (1986, p. 90). If this were so, then it would be much easier to claim that the concept of law is an essentially contested concept and that every use of the concept (including a theoretical description of it) is an evaluative interpretation of it.Footnote ³³ If there were no conceptual differences among the levels of generality, then the normativity and aggressive/defensive uses that are so common among non-philosophical uses make a descriptive philosophical explanation look like a confused pretence. But if (as I claim) the levels of conceptual generality can be seen as representing distinct concepts, then we can admit that some concepts or uses could be usefully seen as essentially contested, while others are not.Footnote ³⁴

Return for a moment to the distinction between concept and conception. If the different levels of generality of law did not represent distinct concepts, then a conception of the concept would have to incorporate all three (or four) levels.Footnote ³⁵ If, on the other hand, these different levels of generality represent distinct but related concepts, then we also have distinct conceptions available for each level of generality. Hence, the availability of distinct conceptions for each level of generality – of individual laws, of legal systems and of law as such – (which can be maintained simultaneously and consistently) is also further evidence that the levels of generality represent distinct concepts. I can conceive of a law at the most specific level as a piece of legislation, official determination by a court, and perhaps administrative interpretation of a codified rule (perhaps appended to some criteria for validity). This conception requires my use of the concept of law in the most general sense, but I do not need to provide (or even have) a conception of that most general sense in order to maintain my conception of law at the most specific level.

An understanding of the distinctions among the conceptual levels of law as distinctions among concepts helps to explain why it sometimes might seem useful to characterise law as essentially contested and sometimes might not. Such an understanding also leads to the conclusion that it is not useful to see the most abstract concept of law as essentially contested.

If we decide that law is best understood as only marginally essentially contested, or a non-essentially contested concept that involves other concepts that are themselves essentially contested, then good jurisprudence will expose the places essentially contested concepts come up within the concept of law and perhaps at least offer some ‘pre-interpretive data’ about those concepts. This would require judgments about the relative importance people place upon those other concepts, but the theory itself would be in the midst of describing those evaluations, not advocating for a particular conception.