Description and Evaluation in Jurisprudence

Law and Philosophy 29 (6):633-667 (2010)
In the last three decades or so a prominent view among legal philosophers has been 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 been supported by many other prominent legal philosophers. In this essay I examine it, and argue 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 does not realize. I then rely on this analysis to develop several arguments against the orthodox view. I argue that defenders of the orthodox view have considered only one such argument, and that even with regard to this one their response is unsuccessful
Keywords Philosophy   Logic   Political Science   Social Sciences, general   Law Theory/Law Philosophy   Philosophy of Law
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DOI 10.1007/s10982-010-9081-y
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