The University of New Hampshire Law Review
The authority of government—and that of its politicians, judges, regulators, and other specific authorities—continues to grow more imperialistic. This is partly due to the imperialism of legal concepts as facilitated by Wittgenstein’s famously non-essentialist treatment of concepts through family resemblance theory. Although non-essentialism or anti-essentialism can be highly valuable in forming religious and literary concepts, and in describing the sometimes incoherent everyday usage of concepts and terms, all legal concepts should be scientific-style essentialist concepts. Such essentialism combats the broad discretion granted and obscured by non-essentialist approaches that allow concepts to absorb contradictory elements and harmfully hold them together, thus allowing legal authorities to choose from among only those elements that suit their purposes in any given case. Instead of arguing for the total exclusion of family resemblance and similar theories from use in legal concepts, I argue for translating non-essentialist concepts into essentialist ones while still using the former’s theory forms. Precise essentialist concepts, with core and non-contradictory properties clearly delineated, are necessary for maximizing the rational and moral legitimacy of law, which coercively regulates the behavior of ordinary citizens at the command of political and legal authorities. Legal rules and commands must be as clear and consistent as reasonably possible not only for optimal rationality and morality, but also for legitimacy in the eyes of those subject to law. This is especially important in an increasingly diverse society of incompatible perspectives and decreasing conscious and unconscious adherence to the Anglo-American legal tradition.
Joseph D'Agostino, Against Imperialism in Legal Concepts, 17 U.N.H. L. Rev. 67 (2018).