what kinds of reasons are involved.
The task of
The Nature of Law
First published Sun May 27, 2001; substantive
revision Fri Aug 7, 2015
Lawyers are typically interested in the question: What
is the law on a particular issue? This is always a local
question and answers to it are bound to differ according
to the specific jurisdiction in which they are asked. In
contrast, philosophy of law is interested in the general
question: What is Law? This general question about the
nature of law presupposes that law is a unique social-
political phenomenon, with more or less universal
characteristics that can be discerned through
philosophical analysis. General jurisprudence, as this
philosophical inquiry about the nature of law is called, is
meant to be universal. It assumes that law possesses
certain features, and it possesses them by its very nature,
or essence, as law, whenever and wherever it happens to
exist. However, even if there are such universal
characteristics of law—which is controversial, as we will
later discuss—the reasons for a philosophical interest in
elucidating them remain to be explained. First, there is
the sheer intellectual interest in understanding such a
complex social phenomenon which is, after all, one of
the most intricate aspects of human culture. Law,
however, is also a normative social practice: it purports
to guide human behavior, giving rise to reasons for
action. An attempt to explain this normative, reason-
giving aspect of law is one of the main challenges of
general jurisprudence. These two sources of interest in
the nature of law are closely linked. Law is not the only
normative domain in our culture; morality, religion,
social conventions, etiquette, and so on, also guide
human conduct in many ways which are similar to law.
Therefore, part of what is involved in the understanding
of the nature of law consists in an explanation of how
law differs from these similar normative domains, how it
interacts with them, and whether its intelligibility
depends on other normative orders, like morality or
social conventions.
Contemporary legal theories define these two main
interests in the nature of law in the following terms.
First, we need to understand the general conditions that
would render any putative norm legally valid. Is it, for
example, just a matter of the source of the norm, such as
its enactment by a particular political institution, or is it
also a matter of the norm’s content? This is the general
question about the conditions of legal validity. Second,
there is the interest in the normative aspect of law. This
philosophical interest is twofold: A complete
philosophical account of the normativity of law
comprises both an explanatory and a justificatory task.
The explanatory task consists of an attempt to explain
how legal norms can give rise to reasons for action, and
justification concerns the question of whether
peopleought to comply—morally speaking or all things
considered—with law’s demands. In other words, it is
the attempt to explain the moral legitimacy of law and
the subjects’ reasons for complying with it. A theory
about the nature of law, as opposed to critical theories of
law, concentrates on the first of these two questions. It
purports to explain what the normativity of law actually
consists in. Some contemporary legal philosophers,
however, doubt that these two aspects of the normativity
of law can be separated. (We will return to this later.)
Thus, elucidating the conditions of legal validity and
explaining the normativity of law form the two main
subjects of any general theory about the nature of law. In
section 1, we will explain some of the main debates
about these two issues. In section 2, we will discuss
some of the methodological debates about the nature of
general jurisprudence. In the course of the last few
centuries, two main rival philosophical traditions have
emerged about the nature of legality. The older one,
dating back to late mediaeval Christian scholarship, is
called the natural law tradition. Since the early 19th
century, natural law theories have been fiercely
challenged by the legal positivism tradition promulgated
by such scholars as Jeremy Bentham and John Austin.
The philosophical origins of legal positivism are much
earlier, though, probably in the political philosophy of
Thomas Hobbes. The main controversy between these
two traditions concerns the conditions of legal validity.
Basically, legal positivism asserts, and natural law
denies, that the conditions of legal validity are purely a
matter of social facts. In contrast to positivism, natural
law claims that the conditions of legal validity are not
exhausted by social facts; the moral content of the
putative norms also bears on their legal validity. As the
famous dictum, commonly attributed to Saint Augustine,
has it: lex iniusta non est lex (unjust law is not law).
(Augustine, De Libero Arbitrio, I, 5; see also Aquinas,
Summa Theologica, I-II, Q. 96, Art. 4
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 lawconventionally
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.
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.
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 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 SS, xx has a right/duty
etc., to yy” 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 essentialfeature 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 20thcentury, 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
factoauthority. 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.)
Recent 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.
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 four 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. Third, 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 fourth kind of view, associated with
Dworkin’s work, and takes it that legal theories are in
the business of offering a constructive interpretation of
legal practice. In what follows, each of these four 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 notshare 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 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.
2.1.4 Constructive Interpretation of Legal Practice
A fourth 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
thatincludes 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: XX is
morally [all-things-considered] good [bad]. Such claims
might also be comparative in nature, such that they have
the form: XX is morally [all-things-considered] better
[worse] than YY. 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 “XX is important” and “XX 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, isgood. 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 XX is FF” are
naturally classified together with “XX is important” (or
more precisely, “XX is important for some
purpose YY”) as thin evaluative claims. Accordingly,
asserting that the function of law is FF 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 oneselfendorsing 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, isgood
—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 aconstructive
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
interpretationof 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.