Analytic Philosophy and the Interpretation of Constitutional Rights

Analytic Philosophy and the Interpretation of Constitutional Rights

Description

Analytic philosophy has been used in many areas of Anglo-American law to help clarify the content and the implications of the legal concepts central to these areas. As early as the 1950s, Herbert Hart and Tony Honoré argued that the type of philosophical analysis that was central to the school of philosophy known as ‘ordinary language philosophy’ could shed light on the concept of causation as it is used in tort law and criminal law. Hart and Honoré tried to show, in particular, that a clear and detailed examination of the uses to which we put the concept of causation in ordinary speech would reveal that causal questions are distinct both from questions of policy and from questions of responsibility. Since then, a more modest type of philosophical analysis that grew out of ordinary language philosophy and that many now term ‘analytic philosophy’ has influenced many areas of the law. The aim of analytic philosophy is still, in part, to clarify the content of our concepts and to make explicit the assumptions and implications of the doctrines that employ them. But unlike ordinary language philosophy, it does not treat certain ways of understanding these concepts as authoritative just because they reflect an allegedly ‘ordinary’ usage. Rather, it aims to separate out and discuss in some detail the different possible interpretations of a particular concept; to consider the logical implications of each of these interpretations; and, where the context is a legal one, to lay bare the consequences for legal doctrines of adopting one particular interpretation of a concept over another. In order to do this, analytic philosophy looks beyond facts about our language, to facts about what we believe and what we value. Its methods include attempting to separate out and delineate very precisely the different meanings that we might give to a particular legal term; exploring the assumptions or value judgments that might lead us to prefer one interpretation over another; and assessing the different logical implications, for particular doctrines, of adopting one meaning of a given term rather than another. It aims thereby to help us make a more informed choice about which meanings are most appropriate in a particular legal context. Many of the central concepts of tort law have been subjected to such analyses. Torts theorists have reflected, for instance, on different understandings of the objective standard of care in negligence law, and the ways in which these different understandings are supported by different views of interpersonal responsibility; and on what it is to own the consequences of one’s actions and whether strict liability offences can be adequately understood and justified simply by combining ideas about ownership of actions with ideas of causation.4 Likewise, discussions in the law of property and, most recently, the law of intellectual property have drawn on philosophical analyses of what it is to have property in an object and what valuable interests this can serve. Also, our understanding of basic components of the criminal law has been shaped by analyses of the nature of agency and the nature of punishment, as well as consideration of when and why we can justifiably be held responsible for, and justifiably be punished for, expressions of our agency. In the face of these many legal uses of analytic philosophy, it is striking that the interpretation of constitutional rights has proceeded largely in isolation from it. Courts and constitutional law scholars have certainly engaged in detailed reasoning about the interests and values that underlie constitutional rights. But it is rare to find them using the type of abstract conceptual analysis that is used within analytic philosophy, and rare to find analytic philosophers writing on constitutional law. Of course, many analytic philosophers have discussed the higher-order methodological question of what approach courts ought to follow when interpreting constitutional rights—of whether, for instance, the court’s task is to locate the intent of the framers, or to find the interpretation that will best safeguard the process that allows the contemporary public to have their voices heard, or to affirm the answer that best accords with the values that underlie our constitutions or the very ideal of a liberal democracy. But analytic philosophers and their methods have not, in the same way, influenced our interpretation of particular constitutional rights themselves. They have not played a significant role in shaping our understanding of the scope of these rights or the interests they protect.

Source Publication

Law, Mystery and the Humanities: Collected Essays

Source Editors/Authors

Logan Atkinson, Diana Majury

Publication Date

2008

Analytic Philosophy and the Interpretation of Constitutional Rights

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