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Description and Evaluation in Jurisprudence

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Abstract

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.

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Correspondence to Dan Priel.

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Assistant Professor, University of Warwick School of Law. I would like to thank Chad Flanders and an anonymous referee for their comments on earlier drafts of this essay.

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Priel, D. Description and Evaluation in Jurisprudence. Law and Philos 29, 633–667 (2010). https://doi.org/10.1007/s10982-010-9081-y

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  • DOI: https://doi.org/10.1007/s10982-010-9081-y

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