, Volume 29, Issue 6, pp 633-667
Date: 07 May 2010

Description and Evaluation in Jurisprudence

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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.