Legal theory and value judgments

Law and Philosophy 16 (4):447-477 (1997)
Authors
Abstract
The aim of the paper is that of putting into question the dichotomy between fact-judgments and value judgments in the legal domain, with its epistemological presuppositions (descriptivist image of knowledge) and its methodological implications for legal knowledge (value freedom principle and neutrality thesis). The basic question that I will try to answer is whether and on what conditions strong ethical value-judgments belong within legal knowledge. I criticize the traditional positivist positions that have fully accepted the value-freedom principle and value-neutrality thesis, but I also submit to critical scrutiny the new post-positivist views, that, even if they show interesting conceptual developments on the matter, end up, nevertheless, by presupposing the same epistemological image, while I call descriptivism. I stress that only by giving up descriptivism and accepting constructivism as a general image of knowledge is it possible to see the problem of value-ladenness of legal knowledge in a new light. On the basis of the constructivist image, I present two theses: firstly, at a much broader epistemological level, I advance the minimalist thesis on value-judgments, which simply removes the general ban on treating values as present within knowledge; secondly, I advance the strong thesis on legal value-judgments, which consists in arguing for the necessary presence of ethical value-judgments in legal knowledge. I draw, in the end, some important implications from acceptance of the strong thesis. One of these implications is a new distinction that replaces the traditional distinction between fact-judgments and value judgments, namely, the distinction between value-judgments exhibiting a cognitive function and value-judgments exhibiting a creative function.
Keywords value-judgments  legal knowledge  descriptivism value freedom principle  constructivism
Categories (categorize this paper)
DOI 10.2307/3504984
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 34,373
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

An Axiomatic Theory of Law.Paolo Sandro - 2011 - Res Publica 17 (4):343-354.

Add more citations

Similar books and articles

Contextualism, Relativism and Ordinary Speakers' Judgments.Martin Montminy - 2009 - Philosophical Studies 143 (3):341 - 356.
Causation Outside the Law.Peter Lipton - 1992 - In Hyman Gross & Ross Harrison (eds.), Jurisprudence: Cambridge Essays. Oxford University Press. pp. 127--148.
Polishing Up the Pinto.John R. Danley - 2005 - Business Ethics Quarterly 15 (2):205-236.
Value-Judgements and Values.Abdullah Kaygi - 2006 - The Proceedings of the Twenty-First World Congress of Philosophy 9:97-102.

Analytics

Added to PP index
2009-01-28

Total downloads
29 ( #209,674 of 2,266,852 )

Recent downloads (6 months)
5 ( #82,814 of 2,266,852 )

How can I increase my downloads?

Monthly downloads

My notes

Sign in to use this feature