Reevaluating Legal Theory
abstract. Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology as well as a response to the long-standing objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the nature of law that identifies law’s essential features, takes the views of its participants seriously, and prescinds from moral judgment. Twenty years on, the debate on this question persists and, despite increasing insight and sophistication, some wonder whether we have reached a dead end.
To understand this dispute, and general jurisprudence’s methodological cul-de-sac, we need to broaden the range of questions and tools we bring to those arguments. To this end, this Review offers a mixture of the old and the new—demonstrating the usefulness of its approach by exploring the promise and limits of Dickson’s work. In terms of the old, it argues that moralized approaches to general jurisprudence, especially the classical natural-law tradition of legal theorizing, can better deliver on positivism’s promise to offer theories of law that are both general and take seriously the point of view of participants. In terms of the new, it seeks to ground this approach in a broader philosophy of social science that avoids both reductive naturalism and relativistic particularity in its explanations. Law is intertwined with morality, but it is also a social fact: a practice and institution. Any general theory of jurisprudence, like any general theory of human practices and institutions, must reckon with the relationship between law’s moral life and its factual existence. This Review begins the work of developing and rendering explicit such a social theory for a jurisprudence that takes both dimensions seriously.
author. Professor of Law, Notre Dame Law School. For comments, criticisms, questions, and guidance, I am grateful to Brian Bix, Bruce Huber, Margaret Martin, Paul Miller, Sarah Pojanowski, Dan Priel, Christian Smith, and Grégoire Webber. The usual caveats apply.
Must a successful theory about what law “is” also make value judgments about what it “ought” to be? This question about the relationship between value judgments and the nature of law has long been a central point of contention in legal philosophy. In Anglo-American jurisprudence, Thomas Hobbes1 and David Hume2 planted the seeds for the contemporary debate, which began to flower in earnest with Jeremy Bentham’s rejection of the classical natural-law tradition. Bentham distinguished between “expositorial jurisprudence,” which explains what a legal system is, and “censorial jurisprudence,” which seeks to reform any particular system the theorist has identified.3 His intellectual disciple John Austin pithily summarized this position when he intoned that the “existence of law is one thing; its merit or demerit is another.”4
From the mid-twentieth century onward, a coterie of Oxford scholars took up the torch. H.L.A. Hart, while departing from Austin in crucial ways, also insisted that the key to understanding a legal system—the so-called “rule of recognition”—can be identified without undertaking any kind of moral assessment.5 Hart’s students would carry on this debate as they became his colleagues at Oxford. Joseph Raz, in developing his theory of legal positivism, contended that the governing set of legal norms is “fully determined by social sources,” not by their moral content.6 If identifying a legal system and its norms is a matter of finding social facts about the world and excludes appeals to moral worth or purposes, the line between describing and evaluating law appears sharp indeed.7
Oxonian critics of positivism challenged this theoretical separation. John Finnis, another former student of Hart, dedicated the first chapter of his seminal book on natural law to challenging his mentor’s methodological neutrality.8 A theorist, according to Finnis, must have some “principle of selection” to make sense of the welter of phenomena out in the world that go by the appellation “law.”9 For theorizing about purposive human institutions like law, the principle must focus on how a practically reasonable person understands law’s point.10 And because identifying that person’s point of view is a task of moral and political philosophy, the line between jurisprudence and more general normative inquiry cannot run all the way up the theoretical ladder. Ronald Dworkin, one of Finnis’s colleagues at Oxford, also contended that legal positivism was wrong to draw a sharp line between description and evaluation in legal theory. Such a move fails, he argued, because legal actors have deep disagreements about what counts as the “grounds of law” in legal disputes—disputes we cannot resolve just by pointing at brute facts about practice.11 Identifying “the law,” in Dworkin’s view, requires an interpretive argument that reads the preexisting legal materials in their best moral light.12
This was roughly the state of play when Julie Dickson’s book Evaluation and Legal Theory came on the scene in 2001.13 Dickson, herself a former student of Raz, sought to defend legal positivism’s separation of law and morality against Finnis’s slings and Dworkin’s arrows. In objecting to purportedly morally neutral descriptions of legal systems, scholars like Finnis contended that “jurisprudence, like other social sciences, aspires to be more than a conjunction of lexicography with local history, or even . . . a juxtaposition of all lexicographies conjoined with all local histories.”14 Moral evaluation of the purpose was therefore necessary to transcend descriptive reportage. To avoid the implication that positivism is vulnerable to that objection, Dickson sought to offer an account that incorporates evaluations about significance and importance without placing moral judgment at the cornerstone of the edifice.
Like a good positivist, she rejected directly evaluative legal theories, namely approaches that (i) include moral evaluations of legal institutions and norms; (ii) view law as a morally justified enterprise; or (iii) consider the moral consequences of any given legal theory.15 Developing hints of argument in Hart’s and Raz’s work, however, Dickson introduced an alternative framework she labels “indirectly evaluative legal theory.”16 Under this approach, a theorist identifies what is “significant” and “important” to the participants in the legal system. Doing so requires evaluation—sorting out the trivial and the marginal from the participants’ point of view—but not moral assessment. What is important and significant about law could in principle be morally bad and still be constitutive of our concept of law, and we can identify such importance and significance before attaching such a label. Or so Dickson argued.
By elaborating her theory of indirect evaluation, she sought to redraw the dividing line between positivism and its critics: it was not the difference between description and evaluation, but rather what kind of evaluation is proper to legal theory. Such arguments about theory construction, moreover, emphasized the connections between jurisprudence and more general social philosophy. With Hart describing The Concept of Law as an “essay in descriptive sociology”17 and critics of the Oxford positivist consensus drawing on the likes of Eric Voegelin, Max Weber, and Peter Winch18 in reply, the need for legal philosophers to delve deeper into general social theory became clear.19Dickson’s book, and her elaboration of indirectly evaluative legal theory in subsequent work, sought to offer a more sophisticated defense of the kind of morally neutral social explanation that her school of legal positivism requires.20
Evaluation and Legal Theory attracted significant critical notice at its publication.21 Further, jurisprudents interested in the philosophy of social science have joined the debate, though often to criticize positions like Dickson’s and Hart’s.22 Dickson’s work is a worthy starting point because she has articulated and defended the methodological premises of regnant legal positivism with great clarity, energy, and insight. This Review takes stock of the current state of argument and hopes to enrich it by bringing in new perspectives in social theory.
Jurisprudence students and scholars may wonder why it matters where we draw the line between legal philosophy, on the one hand, and moral and political philosophy on the other. At first glance, it seems a trivial labeling dispute: legal positivists like Dickson plainly care about the moral and political dimensions of human affairs and their relationship to law. Why care whether those normative considerations are included in our theorization about the nature of law?23 One might wonder if this is at all an interesting endeavor.24 Little surprise, then, that some argue we are not even asking the right questions in general jurisprudence, and that legal systems and norms are, in fact, not interestingly distinctive from other normative systems that have moral and prudential “upshots.”25 This Review’s conclusion will suggest that many philosophers still care—and get so heated about these questions—because those competing views of the dividing line between jurisprudence and normative philosophy intertwine with competing visions of what is good for persons, which themselves intertwine with competing ways of thinking about society. The lines we draw here suggest a broader picture of our moral and even metaphysical commitments.
To understand this dispute, and the methodological cul-de-sac we have spent the past few decades circling around, we need to broaden the range of questions and tools we bring to those arguments. To this end, this Review offers a mixture of the old and the new—demonstrating the usefulness of its approach by exploring the promise and limits of Dickson’s work. In terms of the old, it argues that moralized approaches to general jurisprudence, especially the classical natural-law tradition of legal theorizing, can better deliver on positivism’s promise to offer theories of law that are both general and take seriously the point of view of participants. In terms of the new, it seeks to ground this approach in a broader philosophy of social science that avoids both reductive naturalism and relativistic particularity in its explanations. Law is intertwined with morality, but it is also a social fact: a practice and institution. Any general theory of jurisprudence, like any general theory of human practices and institutions, must reckon with the relationship between law’s moral life and its factual existence. This Review begins the work of developing and rendering explicit such a social theory for a jurisprudence that takes both dimensions seriously.
Part I of this Review describes Dickson’s indirectly evaluative legal theory and her argument about what general jurisprudential method should look like. Part II criticizes this framework. It amplifies the work of other jurisprudence scholars and draws on more general philosophy of social science to argue that a legal theory about the nature of law cannot at the same time (a) pick out essential features, (b) based on the understanding of the participants, (c) while remaining morally neutral about the practice. Approaches like Dickson’s seek to do all three, combining interpretive and naturalistic understandings of social theory that do not cohere.
Part III argues for a teleological approach to general jurisprudence that picks out essential features, draws on the understandings of the participants, but eschews moral neutrality. Such theories are old hat, of course, but this Review seeks to place a few new feathers in the band. It seeks to ground this approach by looking to social-science theories that reject both reductive forms of naturalism and particularistic and relativistic forms of hermeneutical explanation. Theories like Dickson’s wisely seek to avoid both vices, but this Review argues that reckoning plainly with the evaluation inherent in jurisprudential method offers the most promising way to escape those twin snares.