Descriptive Legal Theory
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A tradition of thought in legal theory woven through the work of Jeremy Bentham and John Austin in the nineteenth century, and that of Hans Kelsen and H.L.A. Hart in the twentieth, contends that it is possible to construct successful theories of law which are - in a certain sense discussed more fully below - descriptive in character. According to this approach, it is an important task of legal theory to identify and explain what law is, and this project can be undertaken independently of, and prior to, attempting to morally evaluate or justify law. Bentham, Austin, Kelsen and Hart also share the methodological goal of attempting to explain the nature of law. That is to say, their theories attempt to identify and adequately explain law’s essential properties: those necessary features of law which make it into what it is. These theorists, then, are seeking a descriptive account of the nature of law, and believe that it is possible to answer questions such as: Is it in the nature of law that it can be identified purely by reference to social facts? Is coercion an essential feature of law?, and Do legal systems necessarily claim authority over their subjects?, independently of, and prior to, answering questions such as: Does that which we identify as law possess any moral qualities? Can the exercise of coercion via law be justified?, and Under what conditions do legal systems possess legitimate authority over their subjects?
Although this methodological position is a long-standing one, a renewal of interest in methodological questions in legal theory in recent years has seen some contemporary jurisprudential scholars attempt to cast doubt upon the possibility and/or usefulness of descriptive accounts of the nature of law. Those harbouring such doubts might claim any or all of the following: (i) that it is impossible to delineate those features of law a given theory will focus on without making evaluative judgements concerning which are the most important or significant aspects of law to explain; (ii) that it is impossible adequately to explain certain features of law without making moral value judgements regarding law’s moral worth or justifiability; (iii) that it is necessary to resort to moral or political argumentation concerning the consequences of espousing one view of law as opposed to another in order to adjudicate between rival legal theories. The following discussion attempts to throw more light on these doubts, and to consider possible responses to them, in the service of further illuminating the character and aims of descriptive legal theory.
II. Descriptive Legal Theory: Challenges and Responses
A simple - although ultimately misleading - account of descriptive legal theory might characterise it as the view that a legal theorist can accurately identify and adequately explain the nature of law without making any value judgements whatsoever, thus simply describing law as it is. This is sometimes taken to be the view of descriptive legal theory endorsed by H.L.A. Hart in the ‘Postscript’ to the second edition of The Concept of Lawwhere Hart contrasts his own, “general and descriptive” legal theory with Ronald Dworkin’s, “in part evaluative and justificatory” conception of jurisprudence (Hart 1994, 239-240). In different ways, the three challenges to this simple account discussed below claim that it is impossible for legal theory to be value-free. In considering these challenges, and surveying some contemporary responses to them, a revised and more nuanced account of the character and aims of descriptive legal theory begins to emerge.
1. The role of evaluations of importance and significance in constructing theories of law
One possible challenge to the simple account of descriptive legal theory stems from the claim that in order to construct a successful theory of law it is necessary to make value judgements regarding the importance and significance of certain features of law and understandings about law. There may be two aspects to this challenge. First of all, it may be claimed that constructing a theory of anything requires one to make evaluative judgements sifting the important from the unimportant, the significant from the banal, in order to present a theoretical account rather than a mere miscellany of information (see e.g. Finnis 1980, ch.1, 17). Secondly, it may further be claimed that in the case of theories of law, legal theorists making evaluations concerning the important and significant features of their subject matter must be guided by, and must be sufficiently sensitive to, what is already regarded as important and significant about law by those who create, administer, and are guided by it (see e.g. Finnis 1980, ch.1, 12; Perry 1998; Postema 1998, section I). This second claim is motivated by the idea that law is a concept which is used by people to understand themselves and their practices (on this point see Raz 1994, at 237; Dickson 2001, 39-44) and is hence what Leiter (2003, 40-43) refers to as a hermeneutic concept (this theme also runs throughout Hart 1961 & 1994).
Despite these points sometimes being presented as challenges to what I have referred to as the ‘simple account’ of descriptive legal theory, there may in fact be no one who would deny them. Contemporary legal theorists who contend that it is an important task of legal theory to identify and explain what law is, and maintain that this project can be undertaken independently of, and prior to, attempting to morally evaluate and justify law, have explicitly endorsed the points outlined above concerning the ways in which certain kinds of evaluative judgements must necessarily enter into an explanatorily adequate theory of law (see e.g. Raz 1994, 235-7, 300-301; Waluchow 1994, 19-30; Green 1996 section IV; Coleman 2001, chs. 11 & 12; Dickson 2001, chs. 2 & 3, and 2004, section II; Marmor, 2001, 153-9). Indeed Hart himself, although insisting upon the possibility and usefulness of a “general and descriptive” approach to legal theory (Hart 1994, 239-40), also recognises that a legal theorist’s analysis, “...will be guided by judgements, often controversial, of what is important and will therefore reflect such meta-theoretic values and not be neutral between all values.” (Hart 1987, 39). This, then, begins to reveal the inadequacy of the simple account: if no one is claiming that legal theory can be entirely value-free, then there is little point characterising descriptive legal theory in the way the simple account does.
2. The claim that moral evaluation is essential for explanatorily adequate legal theory
A second challenge to descriptive legal theory is the contention that in order to construct an explanatorily adequate account of law, it is necessary for a legal theorist to engage in moral evaluation of law, and to reach conclusions regarding its moral worth and the conditions under which it is morally justified. In different forms, this challenge features prominently in the work of both John Finnis (Finnis 1980, especially ch. 1) and Ronald Dworkin (Dworkin, 1986, passim; Dworkin 2004). As was outlined in section II.1 above, Finnis claims that in order to construct an explanatorily adequate theory of law, a legal theorist must evaluate which are the important and significant features of the subject-matter to be explained, and in so doing, must pay appropriate attention to beliefs about and attitudes towards law held by those living under and being guided by it. Finnis further contends that some of those attitudes towards law are more important and significant than others, and that it falls to legal theory to discriminate between them and to characterise law from the ‘central case’ viewpoint from which we can explain why law came into being, and why we strive to maintain its existence. According to Finnis, this point of view - which he also characterises as the point of view of the practically reasonable man - is the point of view of someone who appreciates the moral value of the law, and the way in which its unique properties facilitate the realisation of certain goods in our lives, hence creating a presumptive moral obligation to obey it. Legal theorists must thus take a stance on the moral value and purpose of law, and on when and under what conditions it creates a presumptive moral obligation to obey it, in order to characterise law adequately from what Finnis claims is the appropriate legal theoretical point of view.
Dworkin (1986, passim) contends that in order to understand law we must constructively interpret it, i.e. we must seek to put our community’s legal practices in their best light in terms of the value, point or purpose they are trying to serve. In Law’s Empire, Dworkin gives this point as being to police and justify the imposition of collective force (Dworkin 1986, 93. For Dworkin’s more recent views on methodology, and in particular his discussion of the role of the value of legality in understanding law, see Dworkin 2004. Cf. also Stavropoulos 2003, especially sections 3 & 7, who supports Dworkin’s overall methodology while maintaining that such an approach need not be committed to any one particular point or purpose for law and discusses the possibility that some interpretive practices may turn out to have no genuine justifying value or point). For Dworkin, then, legal theorists and indeed anyone seeking to know what law is must engage in an interpretive process which requires them to make moral and political value judgements in order to know which propositions of law are true: such propositions will be true when they flow from interpretive argument putting a given community’s legal practices in their best moral and political light in terms of their ability to justify the imposition of collective force.
As was noted in section II.1, several contemporary legal theorists who contend that it is an important task of legal theory to identify and explain what law is, and maintain that this project can be undertaken independently of, and prior to, attempts to morally evaluate and justify law, do not accompany this claim with the further and distinct contention that legal theory can be entirely value-free. However, some of those theorists do reject Finnis’ and Dworkin’s methodological standpoints outlined above.
Examples of this position - that understanding the nature of law requires us to make evaluative judgements, but not necessarily moral value judgements concerning the law’s moral worth or justifiability - underpin some of the most important works in contemporary legal positivism: see, for example, Raz (1985, 732-5; 1994, 235-7, 300-301); Coleman (2001, chs. 11 & 12); Marmor (2001, 153-9); Waluchow (1994, 19-30). In these works, the theorists concerned draw on an evaluative-but-not-morally-evaluative methodological position in order to support and defend their own first-order theories of the nature of law. For example, in laying the groundwork for arguments in favour of his own brand of inclusive legal positivism, Waluchow (1994, 19-30) points out that a legal theorist can make evaluative judgements in order to establish that a particular feature of law, such as its use of coercion, is important to explain, and is relevant to any eventual moral evaluation of law, without yet knowing, and without attempting to judge whether that feature of law is morally good or justified. Waluchow thus argues in favour of the tenability of a methodological position he refers to as “value-relevant, descriptive-explanatory” theory (Waluchow 1994, at 22).
In works discussing jurisprudential methodology as a topic in its own right, rather than drawing on a particular methodological position in order to support the author’s own account of the nature of law, Dickson (2001 & 2004) claims that in order to construct successful theories of law, legal theorists must make value judgements concerning which are the important and significant features of law to explain which are sufficiently sensitive to that which is already considered important and significant about law by those living under and guiding their conduct by it. Dickson terms these, ‘indirectly evaluative’ judgements, and contends that legal theorists can make them without taking a stance on the moral value or goodness of that which they are evaluating as important or significant (see Dickson, 2001, ch. 3; 2004, section II.A). On this view, a legal theorist’s ‘indirectly evaluative’ judgements that a given feature of law - such as law’s claim to possess moral authority - is important to explain can be supported by the fact that the feature of law in question plays a central role in the self-understandings and practical concerns of those living under law (e.g. law’s claim to possess moral authority may be important to explain because it will result in law applying itself to those living under it, and potentially subjecting them to coercive sanctions as a result, whether or not it is justified in so doing), rather than by a morally or ‘directly evaluative’ judgement such as that this feature of law is important to explain because it allows law to perform a morally valuable function. Dickson does not deny the importance of asking and attempting to answer morally or directly evaluative questions such as whether law is morally valuable or justified, and whether and under what conditions there is a moral obligation to obey it, but, she contends, these questions can and should be tackled once we have a non-morally evaluative account of the nature of law in respect of which we can address them (Dickson 2001, especially chs. 3 and 8). Dickson terms this position ‘indirectly evaluative legal theory’, and argues that both Hart and Raz should be understood as espousing this methodological stance in some form.
3. Practical-Political or Beneficial Moral Consequences Arguments
A third potential challenge to descriptive legal theory comes from those theorists who contend that in order to adjudicate between rival accounts of law, we should engage in what are variously referred to as ‘practical-political’ (Murphy 2001) or ‘beneficial moral consequences’ arguments (Dickson 2001 ch. 5 uses this latter term although she herself rejects the validity of such arguments). Legal theorists advocating this approach contend that practical consequences of a moral and/or political nature flow from adopting one view of law over another and that in arguing in favour of a given theory of law we should evaluate what those consequences might be, and should decide upon which view of law to espouse accordingly. For example, Murphy (2001) claims that unless we adopt a view of law which is committed to an exclusive legal positivist interpretation of the social thesis - the contention that the existence and content of the law of a given legal system depends exclusively on matters of social fact (see also the entry on Legal Positivism) - then we risk adverse moral and political consequences in the form of a lack of societal critical evaluation of the law, and an over-ready acceptance that because something is law it must be morally just. Variations on this kind of argument may also be found in MacCormick 1985 and Guest 1996.
Practical-political or beneficial moral consequences arguments appear to challenge descriptive legal theory’s claim that it is possible to identify and explain what law is without engaging in moral value judgements. Some legal theorists (see e.g. Raz 1979, at 41-2; Soper 1987; Waluchow 1994 at 86-98; Dickson 2001, ch. 5) have further objected to this kind of argument on the ground that it appears to involve an element of wishful thinking, because the central gist of such arguments seems to be that, as beneficial moral and/or political consequences would follow if law had certain properties, therefore we should understand law as having those properties. Murphy (2001, at 389) responds to this objection with the counter-claim that a legal theorist is not indulging in wishful thinking if there is - at least in respect of some features of law - no fact of the matter that the theorist is ignoring in deploying practical-political arguments. This type of argument thus also appears to run counter to the aims of descriptive legal theory in that it seems to deny, at least in respect of some of law’s properties, that law has a nature to be identified and explained, thus leaving room for us to choose which view of law to espouse based on the beneficial moral and/or political consequences which might ensue as a result.
In a recent article, Frederick Schauer (Schauer 2005) takes a slightly different view of the role of practical-political or beneficial moral consequences arguments in legal theory, claiming that they are important and perhaps essential for theorists engaging in prescriptive legal theory. Such theorists offer arguments regarding which concept of law ought to be espoused by a given society, and aim to change present understandings of law, based partly on the beneficial moral and political consequences which will ensue as a result. In Schauer’s view, this task of prescribing what our concept of law ought to be, is distinct from, but compatible with, descriptive legal theory’s aim of characterising the concept of law as it is presently understood in a given society.
III. ‘Descriptive’ Legal Theory Revised: Some Conclusions
An important tradition of thought in legal theory contends that it is possible and valuable to identify and explain the nature of law independently of, and prior to, attempting to morally evaluate or justify law. This methodological approach flows through the work of Bentham, Austin, Kelsen and Hart, and contemporary legal theorists such as Raz, Coleman, Marmor, Waluchow and Dickson are its present-day intellectual inheritors. However, care must be taken in using the term ‘descriptive’ in characterising this position, for these theorists recognise and indeed embrace the idea that certain kinds of evaluative judgements are indispensable in constructing successful accounts of the nature of law. This approach is better characterised as recognising that legal theory cannot and should not be value-free, but as denying that legal theorists need make judgements concerning the moral value and moral justifiability of law in order to understand its nature. According to this methodological standpoint, questions regarding law’s moral value and justifiability are vitally important, but they fall to be considered after we have constructed a non-morally evaluative account of the nature of law.
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