The internal participant within the legal system, in this case a judge, will engage in the process of running through the attributes to see if they are met. The closer one gets to the ideal type, the more likely one is to get an award. None of the five elements is absolutely necessary, but if all five are plainly met, the ideal type will be achieved. The implicit concept here is an ideal type of what might be called appropriate fee-shifting. (1) the degree of culpability or bad faith attributable to the losing party (2) the depth of the losing party’s pocket, i.e., his or her capacity to pay an award (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally and (5) the relative merit of the parties’ positions. In deciding if an attorney in a prevailing ERISA claim is to be awarded fees, for example, courts apply a five-factor test: But some legal concepts are formulated as multipart tests in which factors are added and weighed, with an eye toward seeing if the ideal is met. If one has a duty to behave in a particular way, has breached this duty, and has caused damage to another, then one has, by definition, committed a tort.

Many legal tests are formulated as having necessary and sufficient attributes. This is known as the “theory theory” of concepts. Finally, and most relevant to our project here, some believe that concepts are always embedded in a broader theory, so that their essential features may not be observable at all, but instead are defined as part of the background theory. 16īearing live young, possessing fur, and secreting milk are common or typical attributes of mammals, even though the platypus, a mammal, does not have all of these features. 15Ī third approach relies on the “family resemblance” of phenomena, so that even if no single attribute is necessary or sufficient, the presence of enough attributes will suffice to mark the presence of the concept. This is sometimes called a maximal strategy of conceptualization and is exemplified at the extreme by Max Weber’s concept of an ideal type, which may never be met in practice. Another way of approaching attributes is to list all the desirable ones, and perhaps to treat them additively, so that more of them will get one closer to the ideal of the particular concept. It is necessary that a mammal be an animal it is necessary and sufficient that it be an animal that secretes milk to feed its young. Some concepts are developed through necessary, or necessary and sufficient, attributes. This simple example demonstrates that law is built of concepts and subconcepts, structured together in particular ways. The rule provides the criteria for decision, but relies on abstract ideas-concepts-with more or less intuitive appeal. Each of these concepts might have subconcepts: murder, for example, is killing with malice aforethought or intent. A legal rule is composed of multiple concepts put together in a particular kind of relationship: if someone engages in murder, she shall be subject to a penalty of imprisonment. Rules provide decision procedures to categorize behavior as, for example, legal or illegal. 14Ĭonversely, a similar concept can be represented by different words.Ĭoncepts are also distinct from rules. Even within the law, the concept of a right is different when thinking about an individual’s freedom from torture than when talking about Mother Nature’s right to remediation. To see why, consider that a single label can refer to multiple concepts: a right means one thing when giving directions, but quite another when discussing the legal system. Law is composed of words or labels, but these are different from the concepts that are the building blocks of law. For our purposes, concepts can be distinguished from other phenomena of interest to law such as words or rules. Others see concepts as ontological claims or “theories about the fundamental constitutive elements of a phenomenon.” 13 Some see concepts as marking mental representations of phenomena.

Some regard concepts as essentially nominal in character, meaning that they are about definitions of phenomena rather than the phenomena themselves. 10Ī large debate in the philosophy of cognitive science grapples with different views of concepts. Conceptualization involves the process of formulating a mental construct at a particular level of abstraction. A Primer on Conceptualization and MeasurementĬoncepts provide the mental architecture by which we understand the world and are ubiquitous in social science as well as law.

Legal notion definition