Description and Evaluation in Jurisprudence

35 Pages Posted: 19 Jan 2010 Last revised: 15 Nov 2010

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Date Written: January 18, 2010

Abstract

In the last two decades or so a view that has emerged among legal theorists is that while legal theory is evaluative because it requires making judgments of importance, it can remain morally neutral. This view, which I call the “orthodox view,” was first articulated by Joseph Raz, and has since then been supported also by many other prominent legal theorists, and was defended at length by Julie Dickson. In this essay I examine it, and argues that it is indefensible. I begin by examining the terms “description” and “evaluation,” and show that they are ambiguous in a way that most current discussion do not realize. I then rely on this to examine both the specific details of Dickson’s defense, in particular with regard to her discussion of the views of John Finnis and Ronald Dworkin, and argue that her criticism of their view misfire because she misrepresent their positions. I then turn to the more general question and show that defenses of orthodox view have not addressed at least four arguments against the orthodox view. Of those defenders of the orthodox view have considered only one, and even here, I contend, their arguments are unsuccessful.

Suggested Citation

Priel, Dan, Description and Evaluation in Jurisprudence (January 18, 2010). Law and Philosophy, Forthcoming; Warwick School of Law Research Paper No. 2010-01. Available at SSRN: https://ssrn.com/abstract=1538270

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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