## 1. General Jurisprudence


### 1.1 The Conditions of Legal Validity




The main insight of legal positivism, that the conditions of legal
validity are determined by social facts, involves two separate claims
which have been labeled The Social Thesis and The Separation Thesis.
The Social Thesis asserts that law is, profoundly, a social
phenomenon, and that the conditions of legal validity consist of
social--that is, non-normative--facts. Early legal
positivists followed Hobbes' insight that the law is,
essentially, an instrument of political sovereignty, and they
maintained that the basic source of legal validity resides in the
facts constituting political sovereignty. Law, they thought, is
basically the command of the sovereign. Later legal positivists have
modified this view, maintaining that social rules, and not the facts
about sovereignty, constitute the grounds of law. Most contemporary
legal positivists share the view that there are rules of recognition,
namely, social rules or conventions which determine certain facts or
events that provide the ways for the creation, modification, and
annulment of legal standards. These facts, such as an act of
legislation or a judicial decision, are the
*sources of law* conventionally identified as such in each and
every modern legal system. One way of understanding the legal
positivist position here is to see it as a form of reduction: legal
positivism maintains, essentially, that legal validity is reducible to
facts of a non-normative type, that is, facts about people's conduct,
beliefs and attitudes.




Natural lawyers deny this insight, insisting that a putative norm
cannot become legally valid unless it passes a certain threshold of
morality. Positive law must conform in its content to some basic
precepts of natural law, that is, universal morality, in order to
become law in the first place. In other words, natural lawyers maintain
that the moral content or merit of norms, and not just their social
origins, also form part of the conditions of legal validity. And again,
it is possible to view this position as a non-reductive conception of
law, maintaining that legal validity cannot be reduced to non-normative
facts. See the entry on
 natural law theories.




The Separation Thesis is an important negative implication of the
Social Thesis, maintaining that there is a conceptual separation
between law and morality, that is, between what the law is, and what
the law ought to be. The Separation Thesis, however, has often been
overstated. It is sometimes thought that natural law asserts, and legal
positivism denies, that the law is, by necessity, morally good or that
the law must have some minimal moral content. The Social Thesis
certainly does not entail the falsehood of the assumption that there is
something necessarily good in the law. Legal positivism can accept the
claim that law is, by its very nature or its essential functions in
society, something good that deserves our moral appreciation. Nor is
legal positivism forced to deny the plausible claim that wherever law
exists, it would have to have a great many prescriptions which coincide
with morality. There is probably a considerable overlap, and perhaps
necessarily so, between the actual content of law and morality. Once
again, the Separation Thesis, properly understood, pertains only to the
conditions of legal validity. It asserts that the conditions of legal
validity do not depend on the moral merits of the norms in question.
What the law is cannot depend on what it ought to be in the relevant
circumstances.




Many contemporary legal positivists would not subscribe to this
formulation of the Separation Thesis. A contemporary school of thought,
called *inclusive legal positivism*, endorses the Social Thesis,
namely, that the basic conditions of legal validity derive from social
facts, such as social rules or conventions which happen to prevail in a
given community. But, inclusive legal positivists maintain, legal
validity is sometimes a matter of the moral content of the norms,
depending on the particular conventions that happen to prevail in any
given community. The social conventions on the basis of which we
identify the law may, but need not, contain reference to moral content
as a condition of legality (see, for example, Waluchow 1994).




The natural law tradition has undergone a considerable refinement in
the 20th century, mainly because its classical, popular version faced
an obvious objection about its core insight: it is just difficult to
maintain that morally bad law is not law. The idea that law must pass,
as it were, a kind of moral filter in order to count as law strikes
most jurists as incompatible with the legal world as we know it.
Therefore, contemporary natural lawyers have suggested different and
more subtle interpretations of the main tenets of natural law. For
example, John Finnis (1980) views natural law (in its Thomist version) not as
a constraint on the legal validity of positive laws, but mainly as an
elucidation of an ideal of law in its fullest, or highest sense,
concentrating on the ways in which law necessarily promotes the common
good. As we have noted earlier, however, it is not clear that such a
view about the necessary moral content of law is at odds with the main
tenets of legal positivism. To the extent that there is a debate here,
it is a metaphysical one about what is essential or necessary to law,
and about whether the essential features of law must be elucidated in
teleological terms or not. Legal positivists do not tend to seek deep
teleological accounts of law, along the lines articulated by Finnis,
but whether they need to deny such metaphysical projects is far from
clear.




The idea that the conditions of legal validity are at least partly a
matter of the moral content or merits of norms is articulated in a
sophisticated manner by Ronald Dworkin's legal theory. Dworkin is not a
classical natural lawyer, however, and he does not maintain that
morally acceptable content is a precondition of a norm's legality. His
core idea is that the very distinction between facts and values in the
legal domain, between what the law is and what it ought to be, is much
more blurred than legal positivism would have it: Determining what the
law is in particular cases inevitably depends on moral-political
considerations about what it ought to be. Evaluative judgments, about
the content law ought to have or what it ought to prescribe, partly
determine what the law actually is.




Dworkin's legal theory is not based on a general repudiation of the
classical fact-value distinction, as much as it is based on a certain
conception of legal reasoning. This conception went through two main
stages. In the 1970s Dworkin (1977) argued that the falsehood of legal
positivism resides in the fact that it is incapable of accounting for
the important role that legal principles play in the law. Legal
positivism envisaged, Dworkin claimed, that the law consists of rules
only. However, this is a serious mistake, since in addition to rules,
law is partly determined by legal principles. The distinction between
rules and principles is a logical one. Rules, Dworkin maintained, apply
in an "all or nothing fashion." If the rule applies to the
circumstances, it determines a particular legal outcome. If it does not
apply, it is simply irrelevant to the outcome. On the other hand,
principles do not determine an outcome even if they clearly apply to
the pertinent circumstances. Principles provide judges with a legal
reason to decide the case one way or the other, and hence they only
have a dimension of weight. That is, the reasons provided by the
principle may be relatively strong, or weak, but they are never
"absolute." Such reasons, by themselves, cannot determine
an outcome, as rules do.




The most interesting, and from a positivist perspective, most
problematic, aspect of legal principles, however, consists in their
moral dimension. According to Dworkin's theory, unlike legal
rules, which may or may not have something to do with morality,
principles are essentially moral in their content. It is, in fact,
partly a moral consideration that determines whether a legal principle
exists or not. Why is that? Because a legal principle exists,
according to Dworkin, if the principle follows from the best moral and
political interpretation of past judicial and legislative decisions in
the relevant domain. In other words, legal principles occupy an
intermediary space between legal rules and moral principles. Legal
rules are posited by recognized institutions and their validity
derives from their enacted source. Moral principles are what they are
due to their content, and their validity is purely content
dependent. Legal principles, on the other hand, gain their validity
from *a combination* of source-based and content-based
considerations. As Dworkin put it in the most general terms:
"According to law as integrity, propositions of law are true if
they figure in or follow from the principles of justice, fairness, and
procedural due process that provide the best constructive
interpretation of the community's legal practice" (Dworkin
1986, 225). The validity of a legal principle then, derives, from a
combination of facts and moral considerations. The facts concern the
past legal decisions which have taken place in the relevant domain,
and the considerations of morals and politics concern the ways in
which those past decisions can best be accounted for by the correct
moral principles.




Needless to say, if such an account of legal principles is correct,
the Separation Thesis can no longer be maintained. But many legal
philosophers doubt that there are legal principles of the kind Dworkin
envisaged. There is an alternative, more natural way to account for the
distinction between rules and principles in the law: the relevant
difference concerns the level of generality, or vagueness, of the
norm-act prescribed by the pertinent legal norm. Legal norms can be
more or less general, or vague, in their definition of the norm-act
prescribed by the rule, and the more general or vague they are, the
more they tend to have those quasi-logical features Dworkin attributes
to principles. More importantly, notice that if you make the legal
validity of norms, such as legal principles, depend on moral argument,
you allow for the possibility that an entire legal community may get
its laws wrong. Any moral mistake in the reasoning leading to a legal
principle might render the conclusion about the principle unsound, and
the principle itself thus not legally valid. Since there is nothing to
prevent judges and other legal actors from making moral mistakes, there
is nothing to prevent a result whereby an entire legal community, and
for a long time, gets its laws wrong (Marmor 2011, chapter 4). Perhaps
Dworkin would have not found this problematic, but others might; the
idea that an entire legal community can be systematically mistaken
about its own laws might strike legal theorists as deeply
problematic.




In the 1980s Dworkin radicalized his views about these issues,
striving to ground his anti-positivist legal theory on a general theory
of interpretation, and emphasizing law's profound interpretative
nature. Despite the fact that Dworkin's interpretative theory of law is
extremely sophisticated and complex, the essence of his argument from
interpretation can be summarized in a rather simple way. The main
argument consists of two main premises. The first thesis maintains that
determining what the law requires in each and every particular case
necessarily involves interpretative reasoning. Any statement of the
form "According to the law in \(S\), \(x\) has a right/duty
etc., to \(y\)" is a *conclusion* of some
interpretation or other. Now, according to the second premise,
interpretation always involves evaluative considerations. More
precisely, perhaps, interpretation is neither purely a matter of
determining facts, nor is it a matter of evaluative judgment *per
se*, but an inseparable mixture of both. Clearly enough, one who
accepts both these theses must conclude that the Separation Thesis is
fundamentally flawed. If Dworkin is correct about both theses, it
surely follows that determining what the law requires *always*
involves evaluative considerations.




Notably, the first premise of Dworkin's general argument is highly
contestable. Some legal philosophers have argued that legal reasoning
is not as thoroughly interpretative as Dworkin assumes. Interpretation,
according to this view, long maintained by H.L.A. Hart (1961, chapter
7), is an exception to the standard understanding of language and
communication, rendered necessary only when the law is, for some
reason, unclear. However, in most standard instances, the law can
simply be understood, and applied, without the mediation of
interpretation (Marmor 2011, chapter 6).




Dworkin's legal theory shares certain insights with the inclusive
version of legal positivism. Note, however, that although both Dworkin
and inclusive legal positivists share the view that morality and legal
validity are closely related, they differ on the grounds of this
relationship. Dworkin maintains that the dependence of legal validity
on moral considerations is an *essential* feature of law that
derives from law's profoundly interpretative nature. Inclusive
positivism, on the other hand, maintains that such a dependence of
legal validity on moral considerations is a contingent matter; it does
not derive from the nature of law or of legal reasoning as such.
Inclusive positivists accept the Social Thesis; they claim that moral
considerations affect legal validity only in those cases where this is
dictated by the social rules or conventions which happen to prevail in a
given legal system. The relevance of morality is determined in any
given legal system by the contingent content of that society's
conventions. As opposed to both these views, traditional, or as it is
now called, *exclusive legal positivism* maintains that a norm's
legal validity is never dependent on its moral content. Legal validity,
according to this view, is entirely dependent on the conventionally
recognized factual sources of law.




It may be worth noting that those legal theories maintaining that
legal validity partly depends on moral considerations must also share a
certain view about the nature of morality. Namely, they must hold an
objective stance with respect to the nature of moral values. Otherwise,
if moral values are not objective and legality depends on morality,
legality would also be rendered subjective, posing serious problems for
the question of how to identify what the law is. Some legal theories,
however, do insist on the subjectivity of moral judgements, thus
embracing the skeptical conclusions that follow about the nature of
law. According to these skeptical theories, law is, indeed, profoundly
dependent on morality, but, as these theorists assume that morality is
entirely subjective, it only demonstrates how the law is also
profoundly subjective, always up for grabs, so to speak. This skeptical
approach, fashionable in so-called post-modernist literature, crucially
depends on a subjectivist theory of values, which is rarely articulated
in this literature in any sophisticated way.


### 1.2 The Normativity of Law




Throughout human history the law has been known as a coercive
institution, enforcing its practical demands on its subjects by means
of threats and violence. This conspicuous feature of law made it very
tempting for some philosophers to assume that the normativity of law
resides in its coercive aspect. Even within the legal positivist
tradition, however, the coercive aspect of the law has given rise to
fierce controversies. Early legal positivists, such as Bentham and
Austin, maintained that coercion is an *essential* feature of
law, distinguishing it from other normative domains. Legal positivists
in the 20th century have tended to deny this, claiming that coercion is
neither essential to law, nor, actually, pivotal to the fulfillment of
its functions in society. Before we unpack the various issues involved
in this controversy, it might be worth noting that the debate about
law's coercive aspect is one good example of debates in jurisprudence
that focus on what might be an essential or a necessary feature of law,
regardless of its particular manifestations in this or that legal
system. How to understand these claims about the essence of law, and
the question of whether these claims are about metaphysics or something
else, perhaps about morality, will be discussed in section 2.1.




Returning to law's coercive aspect, there are several issues
entangled here, and we should carefully separate them. John Austin
famously maintained that each and every legal norm, as such, must
comprise a threat backed by sanction. This involves at least two
separate claims: In one sense, it can be understood as a thesis about
the concept of law, maintaining that what we call "law" can
only be those norms which are backed by sanctions of the political
sovereign. In a second, though not less problematic sense, the intimate
connection between the law and the threat of sanctions is a thesis
about the normativity of law. It is a reductionist thesis about law's
normative character, maintaining that the normativity of law consists
in the subjects' ability to predict the chances of incurring punishment
or evil and their presumed desire to avoid it.




In addition to this particular controversy, there is the further
question, concerning the relative importance of sanctions for the
ability of law to fulfill its social functions. Hans Kelsen,
for instance, maintained that the monopolization of violence in
society, and the law's ability to impose its demands by violent means,
is the most important of law's functions in society. Twentieth century
legal positivists, like H.L.A. Hart and Joseph Raz, deny this,
maintaining that the coercive aspect of law is much more marginal than
their predecessors assumed. Once again, the controversy here is
actually twofold: is coercion *essential* to what the law does?
And even if it is not deemed essential, how important it is, compared
with the other functions law fulfills in our lives?




Austin's reductionist account of the normativity of law,
maintaining that the normative aspect of law simply consists in the
subjects' desire to avoid sanctions, was discussed extensively,
and fiercely criticized, by H.L.A. Hart. Hart's fundamental
objection to Austin's reductionist account of law's
normativity is, on his own account, "that the predictive
interpretation obscures the fact that, where rules exist, deviations
from them are not merely grounds for prediction that hostile reactions
will follow.... but are also deemed to be a reason or
justification for such reaction and for applying the sanctions"
(Hart 1961, 82). This emphasis on the reason-giving function of rules
is surely correct, but perhaps not enough. Supporters of the
predictive account could claim that it only begs the further question
of *why* people should regard the rules of law as reasons or
justifications for actions. If it is, for example, *only*
because the law happens to be an efficient sanction-provider, then the
predictive model of the normativity of law may turn out to be correct
after all. In other words, Hart's fundamental objection to the
predictive model is actually a result of his vision about the main
functions of law in society, holding, contra Austin and Kelsen, that
those functions are not exclusively related to the ability of the law
to impose sanctions.




It is arguable, however, that law's functions in our culture are
more closely related to its coercive aspect than Hart seems to have
assumed. Contemporary use of "game theory" in the law tends
to show that the rationale of a great variety of legal arrangements can
be best explained by the function of law in solving problems of
opportunism, like the so called Prisoner's Dilemma situations. In these
cases, the law's main role is, indeed, one of providing coercive
incentives for the mutual benefit of all parties concerned. Be this as
it may, we should probably refrain from endorsing Austin's or Kelsen's
position that law's only function in society is essentially tied to its
coercive aspects. Solving recurrent and multiple coordination problems,
setting standards for desirable behavior, proclaiming symbolic
expressions of communal values, resolving disputes about facts, and
such, are important functions which the law serves in our society, and
those have very little to do with law's coercive aspect and its
sanction-imposing functions.




The extent to which law can actually guide behavior by providing its
subjects with reasons for action has been questioned by a very
influential group of legal scholars in the first half of the
20th century, called the Legal Realism school. American
Legal Realists claimed that our ability to predict the outcomes of
legal cases on the basis of the rules of law is rather limited. In the
more difficult cases which tend to be adjudicated in the appellate
courts, legal rules, by themselves, are radically indeterminate as to
the outcome of the cases. The Legal Realists thought that lawyers who
are interested in the predictive question of what the courts will
actually decide in difficult cases need to engage in sociological and
psychological research, striving to develop theoretical tools that
would enable us to predict legal outcomes. Thus Legal Realism was
mainly an attempt to introduce the social sciences into the domain of
jurisprudence for predictive purposes. To what extent this scientific
project succeeded is a matter of controversy. Be this as it may, Legal
Realism paid very little attention to the question of the normativity
of law, that is, to the question of how the law does guide behavior in
those cases in which it seems to be determinate enough.




A much more promising approach to the normativity of law is found in
Joseph Raz's theory of authority, which also shows how such a theory
about the normativity of law entails important conclusions with respect
to the conditions of legal validity (Raz 1994). The basic insight of
Raz's argument is that the law is an authoritative social institution.
The law, Raz claims, is a *de facto* authority. However, it is
also essential to law that it must be held to claim legitimate
authority. Any particular legal system may fail, of course, in its
fulfillment of this claim. But law is the kind of institution which
necessarily claims to be a legitimate authority.




According to Raz, the essential role of authorities in our practical
reasoning is to mediate between the putative subjects of the authority
and *the right reasons* which apply to them in the relevant
circumstances. An authority is legitimate if and only if it helps its
putative subjects to comply better with the right reasons relevant to
their actions--i.e., if they are more likely to act in compliance
with these reasons by following the authoritative resolution than they
would be if they tried to figure out and act on the reasons directly
(without the mediating resolution). For example, there may be many
reasons that bear on the question of how fast to drive on a particular
road--the amount of pedestrian traffic, impending turns in the
road, etc.--but drivers may comply better with the balance of
those reasons by following the legal speed limit than if they tried to
figure out all the trade-offs in the moment. The legitimacy of the
legal speed limit would thus be derived from the way in which it aids
people in acting in better compliance with the balance of the right
reasons.




Now, it follows that for something to be able to claim legitimate
authority, it must be of *the kind of thing* capable of claiming
it, namely, capable of fulfilling such a mediating role. What kinds of
things can claim legitimate authority? There are at least two such
features necessary for authority-capacity: First, for something to be
able to claim legitimate authority, it must be the case that its
directives are *identifiable* as authoritative directives,
without the necessity of relying on those same reasons which the
authoritative directive replaces. If this condition is not met, namely,
if it is impossible to identify the authoritative directive as such
without relying on those same reasons the authority was meant to rely
on, then the authority could not fulfill its essential, mediating role.
In short, it could not make the practical difference it is there to
make. Note that this argument does not concern the efficacy of
authorities. The point is not that unless authoritative directives can
be recognized as such, authorities could not function effectively. The
argument is based on the rationale of authorities within our practical
reasoning. Authorities are there to make a practical difference, and
they could not make such a difference unless the authority's directive
can be recognized as such without recourse to the reasons it is there
to decide upon. In other words, it is pointless to have an
authoritative directive if, in order to discover what the directive is,
you have to engage in the same reasoning that reliance on the directive
is supposed to replace. Secondly, for something to be able to claim
legitimate authority, it must be capable of forming an opinion on how
its subjects ought to behave, distinct from the subjects' own reasoning
about their reasons for action; authority requires some authorship.




Raz's conception of legal authority provides very strong support for
exclusive legal positivism because it requires that the law,
*qua* an authoritative resolution, be identifiable on its own
terms, that is, without having to rely on those same considerations
that the law is there to resolve. Therefore a norm is legally valid
(i.e., authoritative) only if its validity does not derive from moral or
other evaluative considerations that the law is intended to replace.
Notably, Raz's theory challenges both Dworkin's anti-positivist legal
theory, and the inclusive version of legal positivism. This challenge,
and the controversies it gave rise to, form one of the main topics
discussed in contemporary general jurisprudence.




Explaining the rationale of legal authority, however, is not the only
component of a theory about the normativity of law. If we hold the
legal positivist thesis that law is essentially founded on social
conventions, another important question arises here: how can a
conventional practice give rise to reasons for action and, in
particular, to obligations? Some legal philosophers claimed that
conventional rules cannot, by themselves, give rise to obligations. As
Leslie Green observed, Hart's "view that the fundamental
rules [of recognition] are 'mere conventions' continues to
sit uneasily with any notion of obligation," and this Green
finds troubling, because the rules of recognition point to the
"sources that judges are *legally* bound to apply"
(Green 1996, 1697). The debate here is partly about the conventional
nature of the rules of recognition, and partly about the ways in which
conventions can figure in our reasons for action. According to one
influential theory, inspired by David Lewis (1969) conventional rules
emerge as solutions to large-scale and recurrent coordination
problems. If the rules of recognition are, indeed, of such a
coordination kind, it is relatively easy to explain how they may give
rise to obligations. Coordination conventions would be obligatory if
the norm subjects have an obligation to solve the coordination problem
which initially gave rise to the emergence of the relevant
convention. It is doubtful, however, that the conventions at the
foundations of law are of a coordinative kind. In certain respects the
law may be more like a structured game, or an artistic genre, which
are actually constituted by social conventions. Such constitutive
conventions are not explicable as solutions to some pre-existing
recurrent coordination problem. The conventional rules constituting
the game of chess, for example, are not there to solve a coordination
problem between potential players. Antecedent to the game of chess,
there was no particular coordination problem to solve. The
conventional rules of chess constitute the game itself as a kind of
social activity people would find worthwhile engaging in. The
constitutive conventions partly constitute the values inherent in the
emergent social practice. Such values, however, are only there for
those who care to see them. Constitutive conventions, by themselves,
cannot ground an obligation to engage in the practice they
constitute.




From a moral point of view, the rules of recognition, by themselves,
cannot be regarded as sources of obligation to follow the law. Whether
judges, or anybody else, should or should not respect the rules of
recognition of a legal system, is ultimately a moral issue, that can
only be resolved by moral arguments (concerning the age old issue of
political obligation). And this is more generally so: the existence of
a social practice, in itself, does not provide anyone with an
obligation to engage in the practice. The rules of recognition only
define what the practice is, and they can say nothing on the question
of whether one should or should not engage in it. But of course, once
one does engage in the practice, playing the role of judge or some
other legal official, as it were, there are *legal* obligations
defined by the rules of the game. In other words, there is nothing
special in the idea of a *legal* obligation to follow the rules
of recognition. The referee in a soccer game is equally obliged to
follow the rules of his game, and the fact that the game is
conventional poses no difficulty from this, let us say,
"internal-player's" perspective. But again, the
constitutive rules of soccer cannot settle for anyone the question of
whether they should play soccer or not. Similarly, the rules of
recognition cannot settle for the judge, or anyone else for that
matter, whether they should play by the rules of law, or not. They only
tell us what the law *is*. Unlike chess or soccer, however, the
law may well be a kind of game that people have an obligation to play,
as it were. But if there is such an obligation, it must emerge from
external, moral, considerations, that is, from a general moral
obligation to obey the law. The complex question of whether there is
such a general obligation to obey the law, and whether it depends on
certain features of the relevant legal system, is extensively discussed
in the literature on political obligation. A complete theory about the
normativity of law must encompass these moral issues as well. (See the
 entries on
 political obligation
 and
 legal obligation.)



More recently, however, a number of philosophers have started to
question the idea that there is something unique to the normativity of
law, inviting us to see how laws might affect our reasons for action
in ways that are not closely tied to the nature of law (Greenberg
2014, Enoch 2011, Marmor 2016 [2018]). Some of these views (e.g., Enoch,
Marmor) purport to show that there are different ways in which the
existence of various norms bear on people's reasons for action,
present in law as elsewhere, without denying that the law often makes
a difference; these views only deny that there is something unique to
the way law changes its subjects' reasons for action, compared with
other types normative demands. Others challenge law's normativity from
an opposite angle (Greenberg 2014, Hershovitz 2015), arguing that the
only aspect of law that is of normative significance is the moral
difference that it makes to people's reasons for action.




In the last two decades of the 20th century, new challenges to general
jurisprudence, and particularly to legal positivism, have taken an
interesting methodological turn. This methodological turn gained
momentum with the publication of Dworkin's
*Law's Empire* (1986), arguing that not only the law, as a
social practice, is a profoundly interpretative (and thus partly, but
necessarily, evaluative in nature), but that any theory about the
nature of law is also interpretative in a similar way, and thus,
equally evaluative. Many of those who do not necessarily share
Dworkin's views about the interpretative nature of legal practice, or
the specifics of his theory of interpretation, have joined him in this
methodological skepticism about the traditional aims of general
jurisprudence, that is, about the possibility of developing a theory
about that nature of law that would have general application and remain
morally neutral. These, and other resultant methodological challenges
to traditional general jurisprudence are taken up in the next
section.



It would be fair to say, however, that in the last few years, many
legal philosophers have expressed a growing frustration with these
traditional debates about the nature of law, calling for legal
philosophy to move beyond the Hart-Dworkin debates and explore new
avenues of research. Some of these new critics are content to abandon
the project altogether, declaring the death of general jurisprudence
(Hershovitz 2015). Others, however, are engaged in exploring new
challenges. One emerging area of research concerns the artifact nature
of law, aiming to learn something about the nature of law from the
fact that law seems to be an artifact, created and sustained by humans
for particular purposes. (See, for example, Burazin et al. eds., 2018.)
Others explore connections between law's features as artifact and
fictionalism, suggesting that their underlying logic and metaphysics
share a great deal in common (Marmor 2018). Another new and
potentially fruitful area of research focuses on applications of
philosophy of language to law, brining new developments in philosophy
of language, particularly in pragmatics, to bear on questions of legal
interpretation and understanding of legal content (Asgeirsson
forthcoming, Asgeirsson 2015, Marmor 2014). This linguistic direction
is not uncontroversial, however; some legal philosophers express
skepticism about the idea that legal content is determined by
linguistic factors (Greenberg 2011) and there is an ongoing debate
about these issues. Finally, there also seems to be a growing interest
in recent developments in metaphysics that might bear on a theory
about the nature of law, and even debates about meta-metaphysics are
beginning to emerge in the context of general jurisprudence,
purporting to show that ways in which we think about the tasks of
metaphysical inquiry may bear on ways we think about the law (Rosen
2010). For example, if the main task of metaphysics is to determine
what really exists in the world, irrespective of what we think about
it or ways in which we represent the world, metaphysics may not have
much to say about the nature of law or, perhaps, it may indicate that
only a scientific approach to jurisprudence can yield metaphysically
respectable results. If, however, the task of metaphysical inquiry is
also to figure out what is more foundational than something else,
giving us a hierarchical structure of the world, where some things
ground others, then metaphysics might be a very fruitful framework to
work with in trying to elucidate the foundations of legality and legal
phenomena more generally. This potential metaphysical interest in
jurisprudence is at its infancy presently, and time will tell if this
new approach gets us interesting results.


## 2. The Methodology of Jurisprudence




When it comes to the methodology of jurisprudence, we find two main
issues. While one is not directly concerned with normativity, the
second is. The first asks about the aims and success criteria for
philosophical theories about the nature of law:




What is the target that first-order theories of
law aim to capture, and when do they succeed in doing so?




The second asks about the role of evaluation in jurisprudential
methodology:




Are first-order legal theories inherently or
necessarily evaluative or can they be purely descriptive?




Each of these questions will be discussed in turn.


### 2.1 The Target of a Theory of Law




The first important class of methodological questions in
jurisprudence concerns the target of first-order theories of
law--that is, what phenomenon such theories aim to provide an
account of. In taking a stand on what the proper target of a
first-order legal theory is, one incurs a number of other
methodological commitments. These include adopting a view about when
such theories are successful, taking a stand on what sort of data such
theories aim to systematize and explain, and determining what sorts of
arguments are legitimately used in deciding between one of these
theories and its competitors.




There are five main families of views on this question. One view takes
jurisprudence to be a form of conceptual analysis, which is to say
that theories of law aim to provide an account of some concept of
law. This approach is often associated with Hart's influential
work, *The Concept of Law* (1994). A second sort of view adopts
a more skeptical stance towards the methodology of conceptual analysis
and takes theories of law to be in the business of offering a
reductive explanation of law itself, not some concept of it. Another
recent view sees general jurisprudence as just another branch of
metanormative inquiry, which renders it continuous with other
philosophical fields like metaethics. Fourth, the prescriptive view
takes it that the aim of a theory of law is to specify the notion of
law that it would be most desirable for us to adopt. A fifth kind of
view, associated with Dworkin's work, takes it that legal
theories are in the business of offering a constructive interpretation
of legal practice. In what follows, each of these five views, as well
as some of the main issues they face, will be discussed in more
depth.


#### 2.1.1 Conceptual Analysis Views




On conceptual analysis views, theories of law aim to capture the
concept of law and they succeed to the extent that they provide a
coherent account of the relevant data about that concept and related
concepts. In particular, the data to be systematized are taken to be
people's intuitions involving some shared concept of law (or
cognate concepts like legal validity or legal obligation). In their
simplest form, such intuitions can be thought of as judgments about
whether the relevant concept does or does not apply to particular
cases. Accordingly, on this sort of view, a theory of law aims to
provide an account of the conditions under which the target concept of
law (or one of its cognates) applies.


 

What's more, such a theory can be arrived at by employing
the method of conceptual analysis, undertaken from the proverbial
armchair. The idea is that the theorist starts with a putative set of
criteria for the correct application of the target concept, and then
she tests this account against her intuitions about that concept. If
the account entails that the concept applies to particular cases that
it intuitively does not apply to, then this provides reason to reject
or revise the account in question. By contrast, if the account entails
that the target concept applies to certain cases and this is the
intuitively correct result, this tends to provide affirmative support
for the account. The account successfully captures the target concept
to the extent that it yields intuitively correct results about
particular cases, and does so in an explanatorily satisfying way (as
opposed to an ad hoc manner). (For a more in depth discussion of the
methodology of conceptual analysis as applied to the concept of law,
see Shapiro 2011, 16-22.)




Jurisprudence has been influenced by two main ways of understanding
the relevant intuitions (or data) that theories of law aim to
systematize. This, in turn, is due to the fact that one might
understand concepts themselves, and our intuitions about them, in two
different ways. Accordingly, we find two main varieties of the
conceptual analysis view of methodology.




The first understanding of concepts takes concept possession to be
mainly a matter of linguistic competence. That is, to possess the
concept of law is to know when the word "law" as used in
its juridical sense (not the scientific sense) applies. Thus,
intuitions about the concept of law are to be understood as linguistic
intuitions about how to use the word "law." On the present
view, then, conceptual analysis is a mode of linguistic analysis. This
sort of view was famously discussed in chapters 1 and 2 of
Dworkin's *Law's Empire* (Dworkin 1986, 32,
43-46). It arguably traces back to the kind of ordinary language
philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013,
210-212).




However, this understanding of concept possession has
drawbacks. Perhaps the biggest source of concern in the present
context is that this sort of view fuels a version of Dworkin's
"semantic sting" argument (Dworkin 1986, 43-46). The
argument may be summarized as follows. Suppose legal theories aim to
capture the concept of law and that concept possession just is a
matter of knowing when the word "law" applies. If so, the
argument runs, legal theories cannot explain disagreement about the
grounds of law, that is, about the conditions of legal validity. After
all, if legal theories are in this way semantic in nature, then
disagreement about what the grounds of law are must boil down to
disagreement about when the word "law" applies--at
least assuming the parties to the disagreement are not merely talking
past one another. But now a dilemma arises. Either legal practitioners
possess the same concept of law or they do not. If they do possess the
same concept, then it seems they *cannot fail to agree* about
what it takes for a norm to count as law. After all, they all know
when the word expressing their shared concept of law applies. But this
is implausible, since legal practice in fact is rife with disagreement
about what the grounds of law are (and thus, what counts as law or as
legal). On the other hand, if legal practitioners do *not*
share the same concept of law, then their disagreement about what the
grounds of law are must just be due to the fact that they are talking
past one another. But that, too, is implausible. Legal practice, as
Dworkin puts it, is not "a grotesque joke" (Dworkin 1986,
44). Accordingly, there must be something wrong with construing legal
theories as mere semantic accounts of when the word "law"
applies.




If, in light of this argument, we are to abandon the idea that
first-order legal theories are semantic theories, there are two obvious
ways to proceed. First, one might simply abandon the idea that legal
theories are exercises in conceptual analysis. This was Dworkin's
preferred response, though, as we'll see, one can reject
conceptual analysis without adopting Dworkin's own favored
methodology. (More on that in sub-section 2.1.2.) Second, if one wants to
still say that legal theories are in the business of analyzing the
concept of law, then the obvious response to the semantic sting
argument is to deny that concept possession just is a matter of knowing
how the word "law" in its juridical sense is to be applied.
This suggests a second, richer form of conceptual analysis that legal
theorists might be engaged in.




The basic idea behind the richer view is to take it that concept
possession, rather than merely being a matter of knowing when words
apply, involves something meatier: namely, the possession of a wide
range of substantive beliefs or intuitions about the concept, its
essential features and its proper application. The assumption is that
the intuitions one is disposed to have in virtue of possessing the
concept of law will be fertile enough to constitute a particular
substantive conception of what the law is and how it functions. The aim
of a theory of law, then, would be to systematize these pre-theoretic
judgments about the concept of law in order to provide an account of
some substantive conception of law. (This sort of richer view of
concept possession is discussed, e.g., in Raz 2004, 4-7;
Stravopoulos 2012, 78-79; Shapiro 2011, 16-22. It is perhaps also the
sort of view presupposed by Hart.) On this view, legal disagreement
remains possible because while practitioners might all be using the
same concept of law, the richness of the concept allows that they
nonetheless might not possess the concept determinately enough, or
understand its application conditions thoroughly enough, to guarantee
consensus on theoretical questions about what the grounds of law
actually are.




However, also this richer understanding of concept possession, and the
meatier picture of conceptual analysis it gives rise to, has been
widely criticized (Marmor 2013, 215-217; Raz 2004, 10; Leiter
2007, 177-79). One question that immediately arises is
*which* concept of law, exactly, constitutes the proper target
of a theory of law. Is it the concept of law that is possessed by the
legal practitioners in a particular jurisdiction? Or is it some
universally shared concept of law? Worries loom either way. If a legal
theory only aims to capture the concept of law employed in a
particular jurisdiction, then that would render the theory parochial
and it might lose its interest for those who are not concerned with
that particular jurisdiction. On the other hand, one might doubt that
there really is a universally shared concept of law that is employed
by practitioners in all jurisdictions--or if there is one, it is
doubtful that it is anything more than the sort of thin concept that
one possesses in virtue of knowing what the word "law" in
its juridical sense means.




A deeper worry about all forms of conceptual analysis is the
question of why we should care about anybody's *concept*
of law in the first place (Marmor 2013, 216-217; Leiter 2007, 177-79).
After all, as philosophers, it seems that it is the *nature of law
itself* that we care about understanding (Raz 2004, 7, 10).
Granted, there are interesting sociological questions to be asked about
what various groups of people believe to be the case about how law
functions. But it is not obvious that there is anything distinctively
philosophical about such questions. Insofar as philosophers (qua
philosophers) are interested in what people believe about a given
concept, this would be because understanding people's beliefs
about the concept is a route to understanding that which it is a
concept *of* (Raz 2004, 4, 10). Accordingly, one might think
that what theories of law aim to capture is not anybody's concept
of law in particular, but rather the nature of law itself. (See also
the entry
 on
 concepts, section 5.2.)



 

A possible response to this objection is to assert that since law
is a social phenomenon and is in part constituted by
practitioners' own understanding of the practice they are
engaged in, collecting evidence about the concept of law possessed by
legal practitioners is an especially useful way to investigate law
itself (Stravopoulos 2012, 79). Still, one might wonder whether this
route to investigating the nature of law itself would be the most
effective strategy to employ, given its indirectness. Why limit
ourselves to asking questions about concepts if law can be studied
directly?




A very different response would be to adopt a Platonist account of
concepts, according to which they are not mental representations at
all, but rather abstract objects akin to the objects of mathematical
inquiry. The concept of law, then, would be the abstract object one
must grasp in order to think about law. Accordingly, it is this
abstract object--*the* concept of law--that
philosophers care about and aim to investigate using the method of
conceptual analysis (cf. Bealer 1998). Nonetheless, this view
of concepts faces familiar objections. For one, an account is needed of
how we can have access to the concept of law, conceived of as an
independently existing abstract object. Moreover, even if we can access
it, a puzzle arises about how different people who all determinately
grasp *the* concept of law could possibly end up disagreeing
about its nature (Sarch 2010, 468-73). Finally, while it might be
plausible that *a priori* disciplines like mathematics and logic
 aim to investigate abstract objects (see the entry on
 platonism in the philosophy of mathematics),
 it is not
clear that the investigation of a social phenomenon like the law, which
is heavily dependent on human beliefs, attitudes and behavior, can be
understood analogously. While mathematicians might be investigating the
nature of abstract objects like numbers or sets, it seems more doubtful
that legal philosophers are investigating the abstract object
*law*.


#### 2.1.2 Investigating Law Itself




Given the above doubts about conceptual analysis, several views have
been suggested according to which first-order legal theories are
primarily in the business of describing and explaining the nature of
law *itself*, not any concept of it. Reductionist and
naturalistic views fall into this category. (As noted below, such views
need not completely eschew the armchair methods just sketched, but to
the extent these methods remain viable, a very different explanation of
their defensibility would have to be given.)




In particular, reductionist views take it that illuminating the
nature of law is a matter of explaining what the law is, and how it
operates, in terms of more foundational facts. As a result, first-order
theories of law succeed to the extent that they accomplish this in an
explanatorily powerful way (Marmor 2013). The goal of a first-order
theory, on this sort of view, is to offer a *metaphysical
reduction* of law: that is, to show that the phenomenon of law is
actually constituted by, and fully reducible to, some other more
foundational type of phenomenon (in the way that chemistry could in
principle be reduced to particle physics). Thus construed, positivism,
for example, would seek to explain the nature of law by reducing facts
about what the law is, how it functions and what it requires, to more
foundational *social* facts--e.g., about
people's behavior, beliefs and dispositions. By providing a
reduction of this kind, a theory like positivism purports to illuminate
the phenomenon of law itself by breaking it down into its constituents
and explaining how they together make up the complex social practice
that is the law. (For more on metaphysical reduction in general, see
 Schroeder 2007, 61-83; see also the entry on
 scientific reduction.)



 

One well-known type of reductionist view is naturalized
jurisprudence. Brian Leiter has been the most prominent defender of
this position (Leiter 2007). Like other reductionist views,
naturalized jurisprudence takes the aim of legal theories to be to
explain the nature of law itself (not anybody's concept of
it). But what is characteristic of naturalized jurisprudence is that
it also insists that a purely empirical methodology should be used in
 doing so (Leiter 2007, 180-81, 183-99). (See also the entry
 on
 naturalism in legal philosophy.)





Naturalists might part company with adherents of other reductionist
views over whether or not the armchair methods of philosophers, and
related appeals to intuitions, thought experiments and the like, are
misguided. The naturalist is likely to reject this mode of inquiry,
while other reductionists may be more amenable to using it. A
reductionist could in principle defend this sort of inquiry, for
instance, by claiming that our particular-case intuitions involve a
concept that we have acquired from experience with legal practice, and
so such intuitions can be one useful source of information about the
nature of law itself. Moreover, if legal practice (as a social
phenomenon) is partially constituted by practitioners' own
beliefs and attitudes towards the practice they are engaged in, then
evidence about legal practitioners' concept of law might prove
especially relevant as evidence about the law itself (Stravopoulos
2012, 79).


 

By contrast, naturalists tend not to endorse the armchair method
of testing theories of law against intuition, given their aim of
making "philosophical theorizing continuous with and dependent
upon scientific theorizing" (Leiter 2007, 35). Leiter argues
that our intuitions about law are too unreliable to be afforded much
epistemic weight (as others have argued with respect to intuitions in
other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins
1998). On Leiter's view, philosophers generally should aim to
unpack the "concepts that have been vindicated by their role in
successful explanation and prediction of empirical phenomena"
(Leiter 2007, 184). Thus, he suggests a methodology that "tak[es]
seriously the...social scientific literature on law...to see
what concept of law figures in the most powerful explanatory and
predictive models of legal phenomena such as judicial behavior"
(Leiter 2007, 184). This methodological view, however, raises
questions about why the legal philosopher should study only judicial
behavior and not something else. More generally, the naturalist owes
an account of what features of law are most in need of explication and
why.




A different sort of concern that arises for reductionist views (and
perhaps naturalistic views as well) is that it may pose particular
problems for positivism. Specifically, if law is a normative phenomenon
that gives rise to legal obligations, one might worry that it is not
possible to reduce legal facts (i.e., facts about what our
legal obligations are) to a set of purely non-normative facts,
e.g., social ones. One might think that this would
impermissibly transgress the familiar (though not uncontroversial)
is-ought gap. (For a discussion of this sort of worry about positivism,
see Shapiro 2011, 47-49.)




In response, one route that positivists who want to be reductionists
could take is to maintain that legal facts really are descriptive in
nature, not genuinely normative. In particular, such positivists might
claim that facts about what legal obligations we have simply are
descriptive facts about what the law *holds* that we ought to
do--not normative facts about what we really ought to do (Shapiro
2011, 188; see also Hart 1994, 110).


#### 2.1.3 The Metanormative Inquiry View



Another recent methodological view developed by Plunkett and Shapiro
(2017) takes general jurisprudence to be just another branch of
metanormative inquiry. The latter kind of inquiry as a general matter
aims to explain how normative thought, talk, and entities (if any) fit
into reality. Metaethics is another branch of metanormative inquiry,
which focuses on how ethical thought, talk and entities fit into
reality. Thus, on the present view the subject of inquiry in general
jurisprudence would be *legal* thought, talk and entities (if
any), and the aim of the field would be to explain how such thought
and talk about law--as well as legal structures and legal
properties (if any)--are best accounted for in one's general
philosophical view of reality. On this view, jurisprudential inquiry
would be continuous with--and methodologically quite
similar--to the work done in other areas of normative inquiry,
especially ethics and aesthetics.



 
One question that arises for this position, however, concerns the
extent to which this is a distinct methodology from those discussed
above. If the focus of one's metanormative inquiry is legal thought
and talk, we seem to get rather close to the conceptual analysis
picture of how jurisprudence should proceed. On the other hand, if the
focus of inquiry emphasizes how legal entities or properties fit into
reality in general, then the view ends up seeming rather close to the
naturalist position that the topic of jurisprudential inquiry is
phenomenon of law itself. Nonetheless, perhaps a particular attraction
of the metanormative view is that it can show how both the conceptual
analysis picture and the naturalist picture capture distinct pieces of
the bigger enterprise of the task that jurisprudence is engaged
in. Thus, rather than purporting to replace the other methodologies
discussed above, the metanormative view, if sound, would do away with
there being a privileged starting point for jurisprudential inquiry
(such as metaphysics of legal content, the semantic analysis of legal
statements, or the nature of legal obligations).


#### 2.1.4 The Prescriptive View




A different sort of approach to methodology in jurisprudence takes
it that the proper aim of a legal theory is to specify a substantive
conception of law that it would be especially *desirable* for
people to adopt. Moreover, even if the conception of law that this
inquiry ends up supporting departs radically from our pre-theoretical
understanding of law, then the resulting theory would recommend
abandoning that prior understanding of law. Accordingly, if
jurisprudence is chiefly a prescriptive endeavor, then theories of law
might end up being radically revisionist in nature (though, of course,
not necessarily).




As explained in the next sub-section, Dworkin's methodological
view incorporates some prescriptive elements. But one prominent
advocate of an exclusively prescriptive project is Neil MacCormick
(MacCormick 1985; see also Campbell 1996; Murphy 2001; Postema 1989;
Schauer 1996; Waldron 2001). MacCormick argues that there are
compelling normative arguments in favor of adopting a positivist
conception of law. In particular, he suggests that values like
autonomy and freedom of conscience demand that the law not regulate
with a heavy hand "the sphere of aspirational values, of duties
of self-respect and of duties of love," a sphere that concerns
"questing for the good beyond duty, or for the right lines of
development of a self, or for the proper regard to bestow upon
one's family, friends or neighbors" (MacCormick 1985,
35-36). Values like autonomy and freedom of conscience,
McCormack thinks, support the claim that at least within this sphere
of conduct, it is desirable to keep the question of what the law
requires entirely separate from the question of what morality
requires. (However, MacCormick also allows that the law properly can
regulate the sphere of "duties of justice," as these
duties are in some sense weightier (MacCormick 1985, 35).)
Accordingly, at least in some spheres of conduct, the question of what
the law *is* ought to be held distinct from the question of
what morality requires. Thus, MacCormick seems to be offering a
normative argument for a claim that has often been associated with
positivism, namely a version of the Separation Thesis. (Though, as
seen earlier, it is not clear that all positivists must be committed
to a strong version of this thesis.)




While the question of what conception of law it is most desirable
that people adopt is surely a significant one, it is important to note
that the prescriptive view of methodology in jurisprudence is not
genuinely in competition with either the conceptual analysis view or
the reductionist approach. After all, it might turn out, for
example, that positivism provides the best account of our concept of
law, or perhaps is the best reductive account of the phenomenon of law
itself, even though there are compelling normative arguments for
changing the practice or adopting a new concept of it that, say,
comports with natural law theory. Accordingly, accounts of the concept
of law, or reductive theories of law, are not necessarily inconsistent
with prescriptive accounts of what legal theory it would be most
desirable from the moral point of view to adopt.


#### 2.1.5 Constructive Interpretation of Legal Practice




A final methodological view, which deserves separate treatment both
because of its influence and sophistication, is Dworkin's
(Dworkin 1986). This view takes it that (i) the target of a first-order
theory of law is *existing legal practice* and (ii) these
theories *succeed* to the extent that they offer a defensible
constructive interpretation (in Dworkin's sense) of that
practice. According to the constructive interpretation view, the aim
of a first-order theory of law is not to analyze any concept or to
reduce legal facts to other more foundational facts. Rather, the aim
of a legal theory is to *reconstruct* the behavior and
self-understandings of participants in legal practice and, moreover,
to do so in a way that casts this practice in its best moral light. As
a result, a theory of law is more successful the better it both fits
with the data about how legal practitioners understand the practice
they are engaged in, while also normatively justifying that
practice (Dworkin 1986; Perry 1995, 129-31; see also the entry
 on
 legal interpretivism).





One concern about the constructive interpretation view of
methodology in jurisprudence is that it may not be in genuine
competition with either the conceptual analysis or reductive views of
methodology. After all, one sort of project is to explain what law
actually is and how it operates (perhaps according to our concept of
it). But it is a very different sort of project to explain how we
*should* conceive of the law in order for legal practice to be
normatively justified. It seems possible that our account of what law
actually is tells us one thing (e.g., that certain features of
it are essential and others not), while our account of what law should
be like in order for the practice to be as justified as possible tells
us to think of law in a rather different way (e.g., as having
different essential features). Accordingly, some have argued that the
constructive interpretation view engages with the other methodological
views mentioned above only if it denies what they assert: viz.,
that legal theories attempt to provide an explanation (perhaps of some
particular kind--e.g., reductive) of the actual nature of
law (or perhaps our concept of it).




One way that adherents of the constructive interpretation view might
deny what certain other methodological views assert is by denying that
it is even *possible* to give a reductive explanation of law.
(For discussion, see Marmor 2013, 218.) The thought would be to claim that law is a
normative practice, and normative facts cannot be reduced to purely
non-normative facts without losing something essential. In response,
the reductionist might either deny that legal facts are genuinely
normative (in which case the sought-after reduction would be
unproblematic), or she might assert that any successful reduction will
have to reduce legal facts to a set of facts that *includes*
normative facts (in which case a version of natural law theory might
appear attractive).


### 2.2 Is Legal Theory Inherently Evaluative?




A second widely-discussed question about jurisprudential methodology
is whether first-order legal theories are inherently evaluative. The
above views about the proper target of first-order theories of law have
different implications about this second question. But before
explaining that, we must first get the relevant question more clearly
in view.


#### 2.2.1 Preliminaries




To begin with, one might wonder where the interest in the question
of whether legal theory is inherently evaluative comes from. Some of
this interest likely traces to the skeptical worry that legal theories
purporting to be purely descriptive in fact are pushing some hidden
ideological or political agenda. (For more on this, see, e.g.,
John Gardner's introduction to Dickson 2004.) A second source of
the interest in this question may be the suspicion (or hope) that if
legal theory proves to be inherently evaluative, that would be an
independent reason to adopt some version of natural law theory. Whether
this is so remains doubtful, however, since meta-questions about the
methodology of legal theory *prima facie* seem to be independent
of questions in first-order legal theory like what the determinants of
the content of law are. What is more, legal scholars might be drawn to
the present issue through consideration of Dworkin's argument
that there is a very tight connection between the evaluative nature of
theorizing about the law and the evaluative nature of law itself,
rendering the content of law inevitably dependent, at least in part, on
moral-political considerations. Regardless of the motivations for
engaging in the debate about whether legal theory is inherently
evaluative, however, this debate has taken on independent significance
and has been a fruitful source of insight in its own right.




To avoid confusion, the question we are concerned with here must be
clarified in several ways. For there are a number of
*uncontroversial* ways in which legal theory plausibly is or
might be evaluative, and these do not go to the heart of the
methodological debates in jurisprudence.




First, there are several trivial ways in which legal theory, like
theories about *any topic*, plausibly cannot be entirely
value-free. In particular, it seems that one cannot engage in the
business of theorizing about law without evaluating the extent to which
various theories are coherent, simple, clear, elegant, comprehensive,
and so on (Dickson 2004, 32-33). Granted this means that legal
theorists must engage in a form of evaluation. But there is nothing
special about legal theory in this regard. After all, these
meta-theoretical virtues are criteria for the success of theories about
any subject matter.


 

A second seemingly uncontroversial way in which legal theory is
evaluative is that one cannot begin to develop a theory of law without
determining which of its central features are to be accounted for
(Dickson 2001, 38-45). John Finnis, for example, argues that one
cannot do first-order legal theory without taking a stand on what the
important features of law are that adequate theories must explain
(e.g., the law's claim to authority). However, this seems to
require evaluation (Finnis 1980, 9-15).




Nonetheless, it is not likely to be especially controversial that
legal theory is evaluative in this way. To see why, distinguish
between (a) *thick evaluative claims*, which predicate some
kind of moral goodness, or perhaps all-things-considered value, of an
item and (b) *thin evaluative claims*, which do not. (This
distinction roughly tracks Julie Dickson's distinction between
directly evaluative propositions and indirectly evaluative
propositions. See Dickson 2001, 51-55.) Thus, the simplest thick
evaluative claims have the form: \(X\) *is morally
[all-things-considered] good [bad]*. Such claims might also be
comparative in nature, such that they have the form: \(X\) *is
morally [all-things-considered] better [worse] than* \(Y\). By
contrast, thin evaluative claims judge how well some item fares
relative to a standard that is neither moral nor all-things-considered
normative. Such claims do not entail any thick evaluative claims
either. Examples of thin evaluative claims thus would include
"\(X\) is important" and "\(X\) is
interesting". Accordingly, even if legal theorists must make
thin evaluative claims in order to be able to begin the project of
developing a first-order legal theory, this does not mean that they
must make thick evaluative claims in order to do so. After all, one
might construct a theory that captures a range of legal phenomena that
are deemed central or important, while still remaining agnostic about
whether these phenomena are themselves valuable.




A third way in which legal theory could in principle be evaluative,
though uncontroversially so, is suggested by the prescriptive view
discussed in section 2.1.3. If the job of a first-order theory of law is
to identify the concept of law it would be most desirable for us to
employ, then there is a sense in which the resulting theory of law
would of course be evaluative. Nonetheless, as seen above, prescriptive
theories aim to answer a different question from theories in the
conceptual analysis, reductive or interpretive categories. Thus, what
matters to the debate about whether legal theory is evaluative is not
whether legal theory in principle could be evaluative, but whether it
is inevitably or necessarily so.




Now we are in a position to fully appreciate the question of primary
interest here. In particular, it is whether theories about the nature
of existing legal practice (or perhaps our concept of it) necessarily
involve or entail *thick evaluative claims* about the law. That
is, does offering a first-order theory of law of either the conceptual
analysis, reductive or constructive interpretation varieties require
one to accept claims about how valuable the law, or some feature of it,
is? This is the question to be discussed in the remainder of this
entry.


#### 2.2.2 Is Legal Theory Evaluative in the Relevant Sense?




Some answers to the question that was discussed in section 2.1 suggest that
theories of law are inherently evaluative in the sense of committing
advocates of these theories to thick evaluative claims about the law.
As we will see, this is most plausibly the case on the constructive
interpretation view of methodology. By contrast, other answers to the
question discussed in section 2.1 do not obviously entail that
first-order legal theories commit their proponents to thick evaluative
claims. In particular, this is the case for the conceptual analysis and
reductive views of jurisprudential methodology. At least on their face,
both these views seem to allow that there can be purely descriptive
accounts of law--i.e., accounts that capture the central
features of law without being committed to any moral or
all-things-considered evaluation of the law. After all, one might think
that a particular account does a good job of capturing some widely
shared concept of law, but this does not obviously commit one to saying
that law, on this concept of it, is *good*. Likewise, one might
endorse a reduction of legal facts to some more foundational set of
facts (e.g., certain social facts) without this committing one
to thinking that the law is valuable or morally justified.




As a result, at least on their face, both the conceptual analysis
and reductive views seem to allow that there can be first-order
theories of law that are purely descriptive. Some argument would be
needed if one is to endorse the opposite conclusion. Accordingly, let
us consider some prominent arguments for thinking that legal theory
must be inherently evaluative in nature. (For an overview, see Marmor
2011, 122-35.)


##### The argument from legal functions




One central argument to the effect that legal theory must be
evaluative in the relevant sense begins from the idea that
understanding what the law *is* requires taking a view about
what functions it serves (Finnis 1980, 12-17; Perry 1995,
114-20). Moreover, one might think that functions are
evaluative in the sense that attributing a function to something is to
endorse a standard by which that thing may be judged as successful or
unsuccessful. In this way, one might think that legal theory, too, is
inherently evaluative.




While this line of thinking plausibly shows that legal theory requires
accepting some evaluative claims, it does not obviously show that
legal theory necessarily involves *thick* evaluative claims
(Dickson 2001, 114-125). Claims of the form "the function
of \(X\) is \(F\)" are naturally classified together with
"\(X\) is important" (or more precisely, "\(X\) is
important for some purpose \(Y\)") as thin evaluative
claims. Accordingly, asserting that the function of law is \(F\) does
not obviously entail any thick evaluative claims about law. After all,
it is not obvious why attributing a function to something requires
believing that performing that function is either
all-things-considered or morally *good*. Thus, attributing a
function to law need not entail any thick evaluative claims.


##### The argument from the internal point of view




A second natural argument in favor of seeing legal theory as
inherently evaluative in the relevant sense relies on the idea that any
adequate theory of law must take account of the internal point of view
that legal practitioners tend to adopt towards the law. More
specifically, taking the internal point of view towards the law is a
matter of adopting some kind of attitude of endorsement towards it,
seeing it as in some sense justified or as providing reasons for
action (Shapiro 2011, 96-97; Perry 1995, 99-100;
 see also the entry on 
 legal positivism).
 Moreover, it is common to think that a critical mass of the
participants in legal practice must adopt the internal point of view
towards the practice in order for the practice to genuinely count as
law. This is a fact that any adequate theory of law must account for,
one might think. Accordingly, since the internal point of view involves
a positive evaluation of the law, and since any adequate legal theory
must account for this point of view, one might infer that any adequate
theory of law must itself be inherently evaluative. (One finds versions
of such an argument, e.g., in Perry 1995, 121-25; Waldron
2001, 423-28.)




It is unclear whether this argument succeeds, however. After all, it
seems in principle possible to explain what kinds of considerations
legal practitioners endorse, and why, without *oneself*
endorsing those considerations. Similarly, a first-order legal theory
might be able to plausibly explain the truism that legal practitioners
tend to take the internal point of view towards (i.e., endorse)
the law in their respective jurisdictions without the theory thereby
being committed to the claim that the law in any particular
jurisdiction (or the law in general) is valuable or justified.
Accordingly, it is not obvious why a theory of law cannot in principle
capture the internal point of view taken by legal practitioners towards
the law without itself being committed to any thick evaluative claims
about the law.


##### The argument from interpretation




Probably the most influential argument for thinking that legal theory
is inherently evaluative proceeds from the idea that legal theory is
an interpretive endeavor in Dworkin's sense (Dworkin 1986; for
criticism, see Dickson 2001, 105; Marmor 2011, 126-30). To say
that legal theory is an interpretive project is to claim that fully
understanding what the law *is* requires construing it as the
best instance it can be of the type of thing that it is. Moreover, one
might think that in order to construe legal practice as the best
instance of the kind of thing that it is requires making thick
evaluative claims about the law. (See the entry
 on
 legal interpretivism.)





One might attempt to respond to this argument in two ways. A
natural, though ultimately unsuccessful, reply is that construing
something as the best instance of its kind that it can be does not
require taking that kind to be *good*. Saying that Bernie Madoff
was (for a time) the best fraudster in history does not entail that one
approves of fraud. As a result, saying that the law must be thus-and-so
in order to be a good instance of its kind does not commit one to any
thick evaluative claims. Nonetheless, there is a deeper or more
interesting sense in which Dworkin's view renders legal theory
inherently evaluative. For Dworkin, legal theory is an interpretive
enterprise, and offering a constructive interpretation of legal
practice requires construing it *in its best moral light*. Thus,
offering an interpretation of legal practice would require taking a
stand on which of the available ways of construing that practice is
morally better than the others. Of course, this does not necessarily
require asserting that the law, on any particular construal, is
*good*--full stop. But it does seem to require at least
saying that some construals of legal practice are morally
*better* than other construals would be. This looks to be a
thick evaluative claim, albeit a comparative one. Moreover, one cannot
make such comparative judgments without having a view about what would
make one construal of legal practice morally better than another. Thus,
in at least this sense, taking legal theory to be an endeavor that is
interpretive in Dworkin's sense would make legal theory count as
inherently evaluative in the sense we are concerned with here.




Accordingly, if one wants to maintain the possibility of purely
descriptive first-order legal theories, a more promising strategy for
responding to the argument from interpretation would be to question its
key premise--viz., that legal theory necessarily is an
interpretive endeavor in Dworkin's sense. In order for a
proponent of the argument from interpretation to assert this premise,
some rationale would have to be given for it. That is, some argument
would be needed to explain why we should think that
*understanding* law requires giving a constructive
interpretation of it. A critic of the argument from interpretation,
then, might claim that the argument's proponents have not carried
their burden of providing a rationale for this premise, on which the
argument crucially depends.




One possible rationale that might be offered here is that since
social practices essentially involve communication, and understanding
any form of communication necessarily involves interpreting
speakers' claims, understanding the social practice of law
necessarily involves interpreting it. However, this rationale is too
quick. Even if it is true that understanding any social practice
requires interpretation *of some kind or other*, it does not
follow that doing so requires a *constructive interpretation in
Dworkin's sense*--i.e., identifying a construal
of the practice that casts it in its best moral light (Marmor 2011,
127-28). But the latter claim, of course, is what proponents of the
argument from interpretation need to establish in order to reach their
desired conclusion that legal theory is inherently evaluative.




Accordingly, we seem to be left in the following dialectical
situation. Whether or not legal theory is inherently evaluative in the
relevant sense depends on whether the argument from interpretation
succeeds. Whether that argument succeeds, in turn, depends on its key
premise, i.e., the claim that understanding the law necessarily
requires giving a *constructive interpretation* of it. If a
non-question begging argument can be given for this claim, then there
would be reason to think that legal theory necessarily is evaluative in
nature. By contrast, if no non-question begging argument can be given
for thinking that understanding law *requires* a constructive
interpretation, then one would be free to maintain that there can be
purely descriptive first-order legal theories.




Of course, even if the argument from interpretation fails and purely
descriptive legal theories remain *possible*, it could still be
a worthwhile project to attempt to give a constructive interpretation
of legal practice, and the output of this project would indeed be a
partially evaluative theory. Nonetheless, these two types of theory
would not genuinely be in conflict, as they would be addressed to
answering different questions. In the end, therefore,
"methodological pluralism" may be the most apt
characterization of the state of play in jurisprudence.