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Legal Theory Today
Evaluation and Legal Theory
Legal Theory Today
General Editor of the Series
John Gardner, Professor of Jurisprudence, University of
Oxford
TITLES IN THIS SERIES
Law in its Own Right by Henrik Palmer Olsen and Stuart
Toddington
Law as a Social Institution by Hamish Ross
Forthcoming titles:
Law and Aesthetics by Adam Gearey
Law after Modernity by Sionaidh Douglas-Scott
Law and Ethics by John Tasioulas
Risks and Legal Theory by Jenny Steele
Law and Human Need by John Stanton-Ife
Evaluation and Legal
Theory
Julie Dickson

General Editor: Professor John Gardner

•HART-
PUBLISHING
OXFORD - PORTLAND OREGON
2001
 Hart Publishing
Oxford and Portland, Oregon

Published in North America (US and Canada) by

Hart Publishing c/o
International Specialized Book Services
5804 NE Hassalo Street
Portland, Oregon
97213-3644
USA

Distributed in the Netherlands, Belgium and

Luxembourg by
Intersentia, Churchillaan 108
B2900 Schoten
Antwerpen
Belgium

© Julie Dickson 2001

Julie Dickson has asserted her rights under the
Copyright, Designs and Patents Act 1988, to be
identified as the author of this work

Hart Publishing is a specialist legal publisher based in Oxford, England.

To order further copies of this book or to request a list of other
publications please write to:
Hart Publishing, Salter's Boatyard, Folly Bridge,
Abingdon Road, Oxford OX1 4LB
Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882
e-mail: [email protected]
WEBSITE: http//www.hartpub.co.uk

British Library Cataloguing in Publication Data

Data Available
ISBN 1-84113-184-9 (hardback)
1-84113-081-8 (paperback)

Typeset by Hope Services (Abingdon) Ltd.

Printed and bound in Great Britain on acid-free paper by
Biddies Ltd, www.biddles.co.uk
General Editor's Preface

Legal philosophers have lately become ever more preoccupied

with questions, not so much about law, as about legal philo-
sophy itself. To what extent is legal philosophy objective? To
what extent is it value free? To what extent is it descriptive?
And so on. If one always suspected that the philosophy of law
is a self-indulgent pursuit—and I have heard many lawyers and
law students express that view with great vigour—then this
recent growth industry (the philosophy of the philosophy of
law, or meta-jurisprudence, as one might call it) may strike one
as positively narcissistic. But in a way the anti-philosophical
stance of many lawyers and law students is the very thing that
explains the growth of this industry. When studying law one
learns to demand an authority for every proposition. This
demand tends to instill in the law student, and later in the
lawyer, a sceptical attitude to all questions that cannot in prin-
ciple be settled by authority. So the most far-fetched and inco-
herent forms of scepticism—forms that even the most sceptical
literary theorists would find embarrassing—often take particu-
larly deep root in the legal community. In some law schools
there is almost an arms race to see who can out-sceptic their
colleagues. It is perfectly understandable, against this backdrop,
that those with a genuinely philosophical interest in law should
gradually be drawn into ever more navel-gazing debate about
the status of their own work as philosophers.
In this third book in the Legal Theory Today series, Julie
Dickson avoids the navel-gazing and cuts through the existing
meta-jurisprudential debate. To do so, she focuses specifically
on the place of evaluation in legal philosophy. Many sceptics
have talked as if the presence of evaluative elements in philo-
sophical writings about law were somehow a dirty little secret.
Legal philosophers who purported only to explain the nature of
General Editor's Preface

law in fact imported their own ideological predilections and

inevitably ended up displaying the law in a favourable (or
unfavourable) light. Nothing in legal philosophy was ever value-
neutral, the allegation goes. Everything was either a secret
defence or a secret critique of law. This allegation was designed
to face legal philosophers with a dilemma. On the one hand,
they could agree that their work on the nature of law actually
constituted a defence (or critique) of law. On the other hand
they could insist that all they were doing was 'describing' law,
with their evaluative faculties switched off. The first option was
thought to be unpalatable to most philosophers of law, while the
second was thought to be incredible.
Many students have been taught to read the later phases of
the debate between Dworkin and Hart as representing the
struggle between the two horns of this dilemma. And many
have concluded—as well one might—that the palating of the
unpalatable has more going for it than the creding of the
incredible. Hence they awarded victory to Dworkin, who (it is
said) at least had the courage to admit that he was being ideo-
logical, as surely the sceptics were right to say that all writers
on law must be.
Julie Dickson beautifully destabilises this familiar student
conclusion not by seizing the opposite horn of the dilemma but
by showing that the dilemma was always an illusion. That legal
philosophers must approach law evaluatively in order to explain
its nature does not entail that every act of explaining the nature
of law is an act of defending (or criticising) law. As Dickson
puts it, there are 'indirect' as well as 'direct' roles for evaluation
in legal philosophy. Even 'describing' law in the way that Hart
wanted to do is an indirectly evaluative activity. But it does not
follow that it conceals a defence (or critique) of law and so has
a dirty little secret of the kind that the sceptics allege. Hart's
method picks out what is significant about law—and that itself is
an evaluation—but it leaves open whether what is significant
about law is significantly good (as Dworkin claims it must be)
or significantly bad (as an anarchist might claim in response).
Here we have a kind of evaluation that does not decide between
vi
 General Editor's Preface

defence and critique and is, in that limited dimension, value-

neutral. It leaves open whether one should be an anarchist or a
law-lover, or indeed (like most of us) someone in between. But
it does not involve switching off one's evaluative faculties and
looking at one's subject through totally undiscriminating eyes,
for that would indeed be incredible as a philosophical method
—or indeed as any kind of intellectual approach.
The book sets itself modest ambitions. It aims to make logi-
cal space for "indirectly evaluative" legal theory without
defending it as the right way to go. I tend to think that the book
exceeds this ambition and brings out much that is attractive
about the kind of legal theory that Dickson has in mind. More
importantly, however, I like to think that the book may help to
bring to an end the excessive polarisation on the subject of
methodology that has marked the period since the publication
of Dworkin's Law's Empire. Since Law's Empire appeared, the
question is often raised, in Dworkinian terms, of whether one is
an "interpretivist" concerning the nature of law. But everyone
is an interpretivist concerning the nature of law and always has
been. The works of Bentham, Kelsen and Hart were all of them
equally interpretations of law and legally related phenomena.
They all aimed to explain law and legally related phenomena in
a way that played up the important and played down the un-
important. So the real issue is not whether we philosophers of
law are necessarily interpreters; it is whether we are forced, as
Dworkin thinks we are, to be constructive interpreters, i.e. to
explain law in a way that shows it favourably, aligning the
important with the importantly good. If Dickson is right—and I
think she is—we need not be constructive interpreters. We can
approach the problem of the nature of law as an evaluative
problem, but still with a more open mind about law's value.

John Gardner
University College, Oxford . .
2 April 2001

VII
Contents

Acknowledgements xi

1. What's the Point of Jurisprudence? i

2. Introducing the Moral Evaluation Thesis 29
3. Indirectly Evaluative Legal Theory: Meeting Finnis'
Challenge 51
4. Finnis and the Moral Justification Thesis 71
5. The Beneficial Moral Consequences Thesis and an
Introduction to Dworkinian Methodology 83
6. What's the Point of Law? Dworkinian Methodology
and the Argument from Law's Function 103
7. Carrying on the Conversation 133

Index 145

IX
Acknowledgements

First of all, I would like to thank Richard Hart and John

Gardner for giving me the opportunity to write for the Legal
Theory Today Series. I share their hopes that the series will
both express and encourage a spirit of innovative inquiry with-
in a flourishing discipline. John Gardner was a source of unob-
trusive guidance and support at every stage of this project,
which helped enormously in its completion. I am also grateful
to all those at Hart Publishing for their careful attention in
preparing the book for publication.
I received a great deal of assistance while I was developing
the ideas expressed in this work. I am especially grateful to
Joseph Raz for all of his guidance and encouragement, and I
would particularly like to thank him for his advice in formulat-
ing the material which appears in Chapter 3 of the book. I also
presented some of the ideas in this work to various audiences
and discussion groups and would like to thank those who par-
ticipated in a seminar in the Jurisprudence and Social Policy
Program at the University of California at Berkeley in February
1998, in the Jurisprudence Discussion Group which met in
Oxford in Trinity Term 1998, and in a staff seminar held in
the Law Department of the University of Hull in November
1999 for their helpful comments and criticism. In addition to
this, for discussions regarding and/or comments upon earlier
versions of parts of the book, I am grateful to Elspeth Attwooll,
Therese Bjorkholm, Yuri Borgmann-Prebil, John Gardner,
Steve Gough, Aileen Kavanagh, Dori Kimel and Neil
MacCormick. All remaining errors and imprecisions of expres-
sion are of course all my own work.
I would like to thank the Law Departments of the University
of Leicester and of University College London for their support
while I was completing this project. Thanks are due to many of
xi
Acknowledgements

my colleagues at those institutions, and in the jurisprudential

community in general, for their interest in the book, and for
their collegiality, and I am particularly grateful to Malcolm Ross
and Stephen Guest for all their encouragement. Last and most
certainly not least, very special thanks are due to my friends and
family, and especially to my mother, Janet Dickson, for their
much appreciated support, patience and good humour.

Julie Dickson
University College London, November 2000

XII
1
What's the Point of
Jurisprudence?

Agathon: But it was you who proved that death doesn't exist.
Allen: Hey, listen—I've proved a lot of things. That's how I pay my
rent. Theories and little observations. A puckish remark now
and then. Occasional maxims. It beats picking olives, but
let's not get carried away.
Agathon: But you have proved many times that the soul is immortal.
Allen: And it is! On paper. See, that's the thing about philosophy—
it's not all that functional once you get out of class.1
Woody Allen.

A. Introduction: Outlining the Project

What's the point of jurisprudence? This question is, I suspect,
likely to be on a lot of law students' minds upon first encoun-
tering the philosophical study of law. Although cynical and
pejorative answers to it can easily be given, taken seriously, the
question is an important one, because it invites us to explore
some of the deepest and most fascinating issues which all those
engaged in studying, teaching or developing the subject should
be concerned with.
This work is a study of the meta-theory or methodology
of legal theory. As the theoretical wing of an intensely practical
discipline, legal philosophy sometimes appears to be undergoing

1
Woody Allen, "My Apology" in W. Allen, Side Effects (London, New
English Library Ltd, 1981), 40-1.
1
What's the Point of Jurisprudence?

a perpetual identity crisis, its self-conception and aspirations

unclear, even in jurisprudential writings of the highest calibre.2
As a result, what I regard as vital and deeply fascinating ques-
tions are frequently left unanswered. What are we trying to
achieve in constructing theories of law and by what criteria may
we account such theories as successful? On what basis do and/or
should we adjudicate between rival jurisprudential claims,
and/or the theories which make those claims? Are the aims of a
theory of law descriptive, or critical, or justificatory with regard
to its explanandum? Are any or all of these approaches mutu-
ally antagonistic, or could, for example, a descriptive approach
to legal theory be compatible with a justificatory account of the
nature of law? Is there a correct method via which law should
be understood in order to achieve one or more of the aims men-
tioned above?
All legal theorists take an implicit stance on meta-theoretical or
methodological questions such as these. Few, however, address
such matters directly, and to the extent to which this does occur,
the authors concerned often confine themselves to some relatively
brief remarks in the course of pursuing some other agenda.3 This
2
There are, of course, some exceptions to this state of affairs. For examples
of legal theorists adopting a more self-reflective stance as regards their task, see
e.g. H.L.A. Hart, "Definition and Theory in Jurisprudence" (1954), 70 Law
Quarterly Review 37, reprinted in H.L.A. Hart, Essays in Jurisprudence and
Philosophy (Oxford, Clarendon Press, 1983); J. Raz, "The Problem about the
Nature of Law", first published in (1983) 3 Contemporary Philosophy. A New
Survey, and (1983) 21 University of Western Ontario Law Review 203, and
reprinted in J. Raz, Ethics in the Public Domain (Oxford, Clarendon Press, 1994).
3
See e.g. W. Waluchow, Inclusive Legal Positivism (Oxford, Clarendon Press,
1994), ch. 2, which deals with the topic of methodology in legal theory in the
service of better elucidating certain aspects of Dworkin's position. I do not wish
to denigrate Waluchow's contribution to this topic which I regard as an inter-
esting one, nor more generally to criticise those who include discussions on
methodology within works dealing primarily with other matters. My point is
merely that there are few sustained treatments of methodology in legal theory,
and that, in my view, jurisprudence could benefit from the debate which would
be engendered by the existence of some more extended works on this topic.
Recent years have witnessed some positive developments in this area, with sev-
eral writers in the field taking a more sustained interest in questions concerning
 What's the Point of Jurisprudence?

failure to deal with matters meta-theoretical head-on and in a sys-

tematic way has resulted in some serious misunderstandings as
regards the aspirations and point of certain theories of law, both
amongst the general readership of such theories, and even as
between certain legal theorists themselves. This book, then, takes
the topic of methodology in legal theory as its chief concern, and
seeks to address that topic by raising to the surface and subject-
ing to critical discussion some presuppositions about the nature
of jurisprudence which often remain buried in various contem-
porary approaches to understanding law.
Proceeding in such a manner, however, still leaves a vast
amount of ground which could potentially be covered by the
present work, such that some kind of organising principle
remains necessary in order to determine where the focus of the
inquiry should lie. In the course of what follows, then, I
approach some of the presuppositions about jurisprudential
methodology which legal theorists implicitly endorse via an
examination of one particular meta-theoretical theme, namely
the role of evaluation in legal theory. The central question moti-
vating this examination is as follows: to what extent, and in what
sense, must a legal theorist make value judgements about the
phenomena which he seeks to characterise in order to construct
a successful theory of law? In the remainder of this section, I
attempt to flesh out further the nature of and reasons behind
asking this question.
Although various other discussions feature in the book, a sub-
stantial part of it is concerned with a comparative analysis of the
role of evaluation in the respective legal theories of John Finnis,

the criteria of success of theories of law. See e.g. S.R. Perry, "Interpretation and
Methodology in Legal Theory", in A. Marmor (ed.), Law and Interpretation
(Oxford, Clarendon Press, 1995); S.R. Perry, "Hart's Methodological
Positivism" (1998) 4 Legal Theory, 427); J.L. Coleman, "Incorporationism,
Conventionality, and the Practical Difference Thesis", in (1998) 4 Legal Theory
381 and J.L. Coleman, The Practice of Principle: In Defence of a Pragmatist
Approach to Legal Theory (Oxford, Oxford University Press, forthcoming, March
2001), part three; G.J. Postema, "Jurisprudence as Practical Philosophy" in
(1998) 4 Legal Theory 329.
3
What's the Point of Jurisprudence?

Ronald Dworkin, and Joseph Raz. The starting point for this
analysis is the idea that legal theory has traditionally been under-
stood as encompassing a distinction between those theorists who
assert or deny respectively that it is possible to have an adequate
account of law, "as it is" which is distinct from an account of
how it ought to be. Where it is necessary to do so, I shall refer
to this distinction as "the is/ought distinction".4 A little back-
ground may prove useful here, in introducing the particular
jurisprudential chestnut which many of the discussions in this
book seek to address.5
The is/ought distinction probably owes much of its contem-
porary fame to the writings of Jeremy Bentham, and to
Bentham's separation of expositorial from censorial jurispru-
dence in particular. Bentham famously objected to the confusion
between law "as it is" and law as it morally ought to be which he
discerned in Blackstone's Commentaries on the Law of England.6
In Bentham's view, this confusion resulted in Blackstone pre-
senting an account of law as being morally meritorious in the
course of offering an exposition of law as it actually was, and
hence being unwilling to offer criticism of existing law.7

4
The distinction is sometimes rendered as being between descriptive theories
of law on the one hand, and normative theories on the other. I shall say more
about this way of characterising the distinction, and about the problems which
it can engender, at the beginning of Chapter 2.
5
The interested reader may also wish to consider Hart's discussion of the his-
tory of the is/ought distinction in H.L.A. Hart, "Positivism and the Separation
of Law and Morals" (1958) 71 Harvard Law Review 593, and reprinted as essay
II in H.L.A. Hart, Essays in Jurisprudence and Philosophy (n. 2 supra).
6
See J. Bentham, Preface to the 1st edn. of A Fragment on Government, or a
Comment on the Commentaries, in The Works ofJeremy Bentham, Vol I, published
under the superintendence of John Bowring (Edinburgh, W. Tait, 1838-43),
especially at 227-30. For present purposes, I would also refer readers to H.L.A.
Hart's excellent commentaries on and discussions of Bentham's work in H.L.A.
Hart, Essays on Bentham (Oxford, Clarendon Press, 1982). On expositorial and
censorial jurisprudence, see in particular 1-2,41 and 137 of this latter work. The
essay by Hart mentioned in the preceding note is also relevant in this respect.
7
See H.L.A. Hart, "Positivism and the Separation of Law and Morals"
(n. 5 supra); H.L.A. Hart, "The Demystification of the Law", in Hart, Essays on
Bentham (n. 6 supra), essay I.
 What's the Point of Jurisprudence?

Bentham, on the other hand, firmly believed that one could

not assume from the simple fact that something was law that it
inevitably also possessed moral merit. For Bentham, one could
have good law and one could have bad law, but all such phe-
nomena shared some features in common which rendered them
law. These common features lay not in law's substantive merit
(or demerit), but rather in its structure or form: put very
crudely, that law is the posited will of a Sovereign law-giver.8
For Bentham, then, law as it is and law as it ought to be were to
be considered separately: expounding law as it is was the task of
expositorial jurisprudence; criticising the law in the name of its
future improvement and reform was the job of the censorial
jurist concerned with law as it ought to be.9
Interestingly, Bentham's views on this matter were driven by
a censorial or moral end: he believed that the critique and sub-
sequent reform of the law which formed the core of the censo-
rial jurist's task could only be achieved once he had an accurate
description or exposition of law "as it is" i.e. demystified and
stripped to its essentials.10 In this way, for Bentham, the moral
aims of censorial jurisprudence provided the motivation for
engaging in expositorial jurisprudence, and rendered this latter
an essential precursor to the vital task of law reform. This aspect
of Bentham's position was also adopted by his fellow nineteenth
century jurist, John Austin, although, as commentators have

8
See J. Bentham, Of Laws in General (H.L.A. Hart (ed.), London, Athlone
Press, 1970), chs I and II. NB. the crudeness refers to my necessarily brief char-
acterisation of nineteenth century "command" theories of law (and indeed of
commentaries thereon).
9
See also J. Bentham, Introduction to the Principles of Morals and Legislation
(J.H. Burns and H.L.A. Hart (ed.), London, Athlone Press, 1970), ch. XVII, ss
21-9. These brief introductory remarks gloss over many complex issues regard-
ing Bentham's distinction between expositorial and censorial jurisprudence, and
concerning his methodological position more generally. For further discussion
of these issues, see G.J. Postema, "The Expositor, the Censor, and the Common
Law" (1979) 9 Canadian Journal of Philosophy 643; G.J. Postema, Bentham and
the Common Law Tradition (Oxford, Clarendon Press, 1986), 304-36. •
10
Once again, see Hart, "The Demystification of the Law", in Hart, Essays
on Bentham (n. 6 supra), essay I.
What's the Point of Jurisprudence?

noted, Austin exhibited significantly less interest in the task of

the censorial jurist than did Bentham himself.11 Austin's posi-
tion on the question underlying the is/ought distinction—can
you have an adequate account of law, "as it is" which is distinct
from an account of how it ought to be—is captured in his oft-
quoted remark, "die existence of law is one thing; its merit or
demerit is another".12
Bentham and Austin thus both subscribed to a principle
which has an important bearing on how we ought to go about
constructing theories of law. The principle in question claims
that the study of law as it is can and should be kept separate
from the study of law as it ought to be. Moreover, especially in
Bentham's case, this principle was supplemented by the view
that the latter enterprise may be assisted by first undertaking the
former one in die proper manner.
Twentieth century jurisprudence began by holding good to
this central methodological insight of its nineteenth century fore-
runners. For Hans Kelsen, however, die view diat the study of
law as it is should be kept separate from the study of law as it
ought to be was combined with a belief diat the latter activity is
not within the remit of the discipline of jurisprudence at all, as:
"the task of the science of law is not to approve or disapprove
of its subject, but to know and describe it".13 This particular
aspect of Kelsen's views is, of course, in contrast with Bentham,
who regarded the jurist as being concerned both with knowing
and describing the law, and with approving or disapproving of
11
For an introductory discussion, see e.g. Cotterrell, The Politics of
Jurisprudence: a Critical Introduction to Legal Philosophy (London, Butterworths,
!989), 52-7. This point is somewhat controversial, however, and readers wish-
ing to examine it further might also consider E. Ruben, "John Austin's Political
Pamphlets 1824-1859" in E. Attwooll (ed.) Perspectives in Jurisprudence
(Glasgow, University of Glasgow Press, 1977), and cf. W.L. Morison, John
Austin (London, Edward Arnold, 1982), ch. 4.
12
John Austin, The Province of Jurisprudence Determined (London,
Weidenfeld and Nicholson, 1955 (1832)), 184.
13
H. Kelsen, The Pure Theory of Law, 2nd edn. trans. M. Knight (Berkeley,
Ca., University of California Press, 1967), 68. For Kelsen's views on methodol-
ogy more generally, see The Pure Theory of Law, 2nd edn., chs I—III.
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