A central argument that legal theory must be evaluative in the relevant sense is based on the idea that in order to understand what law is, one must have a view of the functions it performs (Finnis 1980, 12-17; Perry, 1995, pp. 114-20). Furthermore, one might think that functions are evaluative in the sense that assigning a function to something means supporting a standard by which that thing can be judged successful or unsuccessful. In this way, one might think that legal theory is also inherently evaluative. The separation thesis is an important negative implication of the social thesis, which claims that there is a conceptual separation between law and morality, that is, between what the law is and what the law should be. However, the separation thesis was often exaggerated. It is sometimes assumed that natural law affirms and that legal positivism denies that the law is necessarily morally good or that the law must have minimal moral content. The social thesis certainly does not imply the falsity of the assumption that there is necessarily something good in the law. Legal positivism can accept the assertion that law, by its nature or its essential functions in society, is something good that deserves our moral esteem.
Nor is legal positivism obliged to deny the plausible assertion that, where there is law, there must be a large number of rules compatible with morality. There is probably a considerable, and perhaps necessarily, overlap between the very content of the law and morality. Again, the separation thesis, properly understood, refers only to the conditions of legal validity. It submits that the conditions of validity do not depend on the moral merits of the legislation at issue. What the law is cannot depend on what it should look like in the circumstances. In the 1980s, Dworkin radicalized his views on these issues by attempting to base his antipositivist legal theory on a general theory of interpretation and emphasizing the profound interpretive character of the law. Despite the fact that Dworkin`s interpretive legal theory is extremely sophisticated and complex, the essence of his reasoning from interpretation can be summarized in a fairly simple way. The main argument consists of two main premises. The first thesis is that determining what the law requires in each individual case necessarily requires interpretative considerations. Any statement of the form “According to the law in (S)(x) has a right/duty, etc., of (y)” is a conclusion of one interpretation or another. Now, according to the second premise, interpretation always involves evaluative considerations.
More specifically, interpretation may not be a mere finding of fact or a matter of evaluative judgment per se, but an inseparable mixture of both. It is clear that someone who accepts these two theses must conclude that the separation thesis is fundamentally flawed. If Dworkin is correct in both theses, it certainly follows that determining what the law requires always involves evaluative considerations. There are many other normative approaches to legal philosophy, including critical legal studies and libertarian legal theories. Legal philosophy, or philosophy of law, studies and analyzes law in general, as well as legal institutions, systems, and principles. In particular, it examines the relationship of law with other philosophical systems and fields such as politics and political philosophy, economics and ethics. In the last two decades of the 20th century, new challenges to general jurisprudence and legal positivism in particular took an interesting methodological turn. This methodological change accelerated with the publication of Dworkin`s Law`s Empire (1986), which argued that not only is law as a social practice profoundly interpretive (and therefore partial, but necessarily evaluative) in nature, but that any theory of the nature of law is also interpretative and therefore also evaluative. Many who do not necessarily share Dworkin`s views on the interpretive character of legal practice or the specifics of his theory of interpretation have joined him in this methodological skepticism of the traditional goals of general jurisprudence, that is, the possibility of developing a theory about this nature of law that would have universal validity and remain morally neutral.
These methodological challenges and others arising from them for traditional general jurisprudence are discussed in the following section. In terms of conceptual analysis, legal theories aim to grasp the concept of law, and they succeed in providing a coherent presentation of relevant data on this term and related concepts. In particular, the data to be systematized are understood as intuitions of people who include a common legal concept (or related concepts such as legal validity or legal obligation). In their simplest form, these intuitions can be considered as judgments about the applicability or otherwise of the concept in question to certain cases. Thus, from this point of view, a legal theory aims to describe the conditions under which the target concept of law (or one of its related elements) applies. In response, one path that positivists who want to be reductionists might take might be to claim that legal facts are really descriptive in nature, not really normative. In particular, these positivists might argue that the facts about legal obligations we have are merely descriptive facts about what the law says we should do – not normative facts about what we should really do (Shapiro 2011, 188; see also Hart 1994, 110). The idea that conditions of legal validity are, at least in part, a matter of the moral content or merits of norms is articulated in a sophisticated way in Ronald Dworkin`s theory of law. However, Dworkin is not a classic natural lawyer, and he does not claim that morally acceptable content is a prerequisite for the legality of a standard. Its central idea is that the distinction between facts and values in the legal field, between what the law is and what it should be, is much more blurred than legal positivism intends: the determination of what the law is in some cases inevitably depends on moral and political considerations about what it should be. Evaluative judgments about what the law should have or what it should prescribe determine in part what the law really is.
In recent years, debates on the nature of the law have become increasingly fine-grained. An important debate exists within legal positivism about the separability of law and morality. Exclusive legal positivists claim that the legal validity of a norm never depends on its moral rectitude. Inclusive legal positivists claim that moral considerations can determine the validity of a norm, but that they don`t have to. Positivism began as a inclusivist theory; but influential right-wing positivists, including Joseph Raz, John Gardner, and Leslie Green, later rejected the idea. There are also many philosophical questions that connect law to the philosophical study of just governments and social orders. These include questions about the nature of freedom and how best to conceptualize legal rights in relation to other types of rights. Nevertheless, it should not be particularly controversial that legal theory is evaluative in this way. To understand why, distinguish between (a) thick judgment claims that presuppose some kind of moral goodness, or perhaps a value of an object considered as all, and (b) thin evaluative claims that don`t. (This distinction roughly follows Julie Dickson`s distinction between directly evaluative sentences and indirect evaluative statements. See Dickson 2001, pp.
51–55.) Thus, the simplest thick evaluative claims have the form: (X) is morally [all considered] good [bad]. Such claims can also be comparative in nature, so they have the form: (X) is morally better [worse] than (Y). In contrast, allegations of thin judgment judge the extent to which an element compares to a standard that is considered neither moral nor prescriptive. Such claims also do not contain thick evaluative claims. Examples of thin evaluative claims would therefore be “(X) is important” and “(X) is interesting”. Even if legal theorists must make thin claims of judgment in order to begin the project of developing a first-rate legal theory, this does not mean that they must make thick judgment claims. Finally, one could construct a theory that captures a range of legal phenomena considered central or important, while remaining agnostic about the value of these phenomena themselves. Probably the most influential argument for the assumption that legal theory is inherently evaluative is based on the idea that legal theory is an interpretive enterprise in Dworkin`s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor, 2011, pp.
126-30). To say that legal theory is an interpretive project is to claim that a complete understanding of what law is requires interpreting it as the best example of the kind of things it is.