Pojanowski Bn3yyo6c

JEFF POJANOWSKI
Reevaluating Legal Theory
Evaluation and Legal Theory

BY JULIE DICKSON
HA RT P UB LISH ING, 2001
abstract. Must a good general theory of law incorporate what is good for persons in gen-
eral? This question has been at the center of methodological debates in general jurisprudence for
decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear
and concise conspectus of positivist methodology as well as a response to the long-standing ob-
jection that such an approach has to evaluate the data it studies rather than simply describe facts
about legal systems. She agreed that legal positivism must evaluate. At the same time, she ar-
gued, it is possible to offer an evaluative theory of the nature of law that identifies law’s essential
features, takes the views of its participants seriously, and prescinds from moral judgment. Twen-
ty years on, the debate on this question persists and, despite increasing insight and sophistica-
tion, some wonder whether we have reached a dead end.
To understand this dispute, and general jurisprudence’s methodological cul-de-sac, we need
to broaden the range of questions and tools we bring to those arguments. To this end, this Re-
view offers a mixture of the old and the new—demonstrating the usefulness of its approach by
exploring the promise and limits of Dickson’s work. In terms of the old, it argues that moralized
approaches to general jurisprudence, especially the classical natural-law tradition of legal theoriz-
ing, can better deliver on positivism’s promise to offer theories of law that are both general and
take seriously the point of view of participants. In terms of the new, it seeks to ground this ap-
proach in a broader philosophy of social science that avoids both reductive naturalism and rela-
tivistic particularity in its explanations. Law is intertwined with morality, but it is also a social
fact: a practice and institution. Any general theory of jurisprudence, like any general theory of
human practices and institutions, must reckon with the relationship between law’s moral life and
its factual existence. This Review begins the work of developing and rendering explicit such a
social theory for a jurisprudence that takes both dimensions seriously.
author. Professor of Law, Notre Dame Law School. For comments, criticisms, questions,
and guidance, I am grateful to Brian Bix, Bruce Huber, Margaret Martin, Paul Miller, Sarah
Pojanowski, Dan Priel, Christian Smith, and Grégoire Webber. The usual caveats apply.
1458
reevaluating legal theory
book review contents
introduction 1460
i. evaluation and method in general jurisprudence 1465
ii. general jurisprudence and social theory 1470

A. Jurisprudence Modeled on the Natural Sciences 1472
B. Hermeneutical Jurisprudence 1476
iii. evaluative jurisprudence revisited 1479

A. The Trouble with Deep Hermeneutics 1479
B. Transcending the Hermeneutic Circle 1482
conclusion 1487
1459
the yale law journal 130:1458 2021
introduction
Must a successful theory about what law “is” also make value judgments
about what it “ought” to be? This question about the relationship between val-
ue judgments and the nature of law has long been a central point of contention
in legal philosophy. In Anglo-American jurisprudence, Thomas Hobbes 1 and
David Hume 2 planted the seeds for the contemporary debate, which began to
flower in earnest with Jeremy Bentham’s rejection of the classical natural-law
tradition. Bentham distinguished between “expositorial jurisprudence,” which
explains what a legal system is, and “censorial jurisprudence,” which seeks to
reform any particular system the theorist has identified. 3 His intellectual disci-
ple John Austin pithily summarized this position when he intoned that the “ex-
istence of law is one thing; its merit or demerit is another.” 4
From the mid-twentieth century onward, a coterie of Oxford scholars took
up the torch. H.L.A. Hart, while departing from Austin in crucial ways, also in-
sisted that the key to understanding a legal system—the so-called “rule of
recognition”—can be identified without undertaking any kind of moral assess-
ment. 5 Hart’s students would carry on this debate as they became his col-
leagues at Oxford. Joseph Raz, in developing his theory of legal positivism,
contended that the governing set of legal norms is “fully determined by social
sources,” not by their moral content. 6 If identifying a legal system and its
norms is a matter of finding social facts about the world and excludes appeals
1. Thomas Hobbes argued that it “is not Wisdom, but Authority that makes a Law,” and for
that reason, law consists of the sovereign’s commands and prohibitions, not reason. THOMAS
HOBBES, A DIALOGUE BETWEEN A PHILOSOPHER AND A STUDENT OF THE COMMON LAWS OF
ENGLAND 55 (Joseph Cropsey ed., 1971) (1681); id. at 69 (identifying law with commands
and prohibitions).
2. David Hume famously distinguished between “is” and “ought” and argued that one cannot
derive the latter from the former. See 1 DAVID HUME, A TREATISE OF HUMAN NATURE bk. 3,
at 302 (David Fate Norton & Mary J. Norton eds., 2007) (1740).
3. On Jeremy Bentham’s distinction, see JULIE DICKSON, EVALUATION AND LEGAL THEORY 4-5
(2001).
4. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 157 (Wilfrid E. Rumble ed.,
1995) (1832).
5. H.L.A. HART, THE CONCEPT OF LAW 107 (3d ed. 2012); see id. at 107-10.
6. JOSEPH RAZ, Legal Positivism and the Sources of Law, in THE AUTHORITY OF LAW: ESSAYS ON
LAW AND MORALITY 37, 46 (1979).
1460
to moral worth or purposes, the line between describing and evaluating law
appears sharp indeed. 7
Oxonian critics of positivism challenged this theoretical separation. John
Finnis, another former student of Hart, dedicated the first chapter of his semi-
nal book on natural law to challenging his mentor’s methodological neutrality. 8
A theorist, according to Finnis, must have some “principle of selection” to make
sense of the welter of phenomena out in the world that go by the appellation
“law.” 9 For theorizing about purposive human institutions like law, the princi-
ple must focus on how a practically reasonable person understands law’s
point. 10 And because identifying that person’s point of view is a task of moral
and political philosophy, the line between jurisprudence and more general
normative inquiry cannot run all the way up the theoretical ladder. Ronald
Dworkin, one of Finnis’s colleagues at Oxford, also contended that legal posi-
tivism was wrong to draw a sharp line between description and evaluation in
legal theory. Such a move fails, he argued, because legal actors have deep disa-
greements about what counts as the “grounds of law” in legal disputes—
disputes we cannot resolve just by pointing at brute facts about practice. 11
Identifying “the law,” in Dworkin’s view, requires an interpretive argument that
reads the preexisting legal materials in their best moral light. 12
This was roughly the state of play when Julie Dickson’s book Evaluation and
Legal Theory came on the scene in 2001. 13 Dickson, herself a former student of
Raz, sought to defend legal positivism’s separation of law and morality against
Finnis’s slings and Dworkin’s arrows. In objecting to purportedly morally neu-
tral descriptions of legal systems, scholars like Finnis contended that “jurispru-
dence, like other social sciences, aspires to be more than a conjunction of lexi-
cography with local history, or even . . . a juxtaposition of all lexicographies
conjoined with all local histories.” 14 Moral evaluation of the purpose was there-
7. In this respect, Joseph Raz draws a sharper conceptual distinction between law and morality
than H.L.A. Hart. See HART, supra note 5, at 250 (noting that the rule of recognition “may
incorporate as criteria of validity conformity with moral principles”).
8. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 3 (2d ed. 2011) (“[N]o theorist can
give a theoretical description and analysis of social facts without also participating in the
work of evaluation, of understanding what is really good for human persons, and what is re-
ally required by practical reasonableness.”).
9. Id. at 4.
10. Id. at 15.
11. RONALD DWORKIN, LAW’S EMPIRE 3-6 (1986).
12. See id. at 52-53.
13. See Dickson, supra note 3.
14. FINNIS, supra note 8, at 4.
1461
fore necessary to transcend descriptive reportage. To avoid the implication that

positivism is vulnerable to that objection, Dickson sought to offer an account
that incorporates evaluations about significance and importance without plac-
ing moral judgment at the cornerstone of the edifice.
Like a good positivist, she rejected directly evaluative legal theories, namely
approaches that (i) include moral evaluations of legal institutions and norms;
(ii) view law as a morally justified enterprise; or (iii) consider the moral conse-
quences of any given legal theory. 15 Developing hints of argument in Hart’s
and Raz’s work, however, Dickson introduced an alternative framework she la-
bels “indirectly evaluative legal theory.” 16 Under this approach, a theorist iden-
tifies what is “significant” and “important” to the participants in the legal sys-
tem. Doing so requires evaluation—sorting out the trivial and the marginal
from the participants’ point of view—but not moral assessment. What is im-
portant and significant about law could in principle be morally bad and still be
constitutive of our concept of law, and we can identify such importance and
significance before attaching such a label. Or so Dickson argued.
By elaborating her theory of indirect evaluation, she sought to redraw the
dividing line between positivism and its critics: it was not the difference be-
tween description and evaluation, but rather what kind of evaluation is proper to
legal theory. Such arguments about theory construction, moreover, emphasized
the connections between jurisprudence and more general social philosophy.
With Hart describing The Concept of Law as an “essay in descriptive sociolo-
gy” 17 and critics of the Oxford positivist consensus drawing on the likes of Eric
Voegelin, Max Weber, and Peter Winch 18 in reply, the need for legal philoso-
phers to delve deeper into general social theory became clear. 19 Dickson’s book,
and her elaboration of indirectly evaluative legal theory in subsequent work,
sought to offer a more sophisticated defense of the kind of morally neutral so-
cial explanation that her school of legal positivism requires. 20
15. DICKSON, supra note 3, at 9-10.

16. Id. at 10.
17. HART, supra note 5, at vi.
18. FINNIS, supra note 8, at 19 (citing Weber and Voegelin); H. Hamner Hill, H.L.A. Hart’s
Hermeneutic Positivism: On Some Methodological Difficulties in The Concept of Law, 3 CAN.
J.L. & JURIS. 113, 114 (1990) (invoking Winch).
19. Cf. Brian Bix, H.L.A. Hart and the Hermeneutic Turn in Legal Theory, 52 SMU L. REV. 167,
199 (1999) (“Legal theorists would do well to pay attention to what is going on elsewhere in
social theorists—and other social theorists, likewise, would do well to see what is being pro-
posed and debated in the jurisprudence literature.”).
20. Julie Dickson, Methodology in Jurisprudence: A Critical Survey, 10 LEGAL THEORY 117, 125-29
(2004) [hereina�er Dickson, Methodology in Jurisprudence]; Julie Dickson, Ours Is a Broad
1462
Evaluation and Legal Theory attracted significant critical notice at its publica-
tion. 21 Further, jurisprudents interested in the philosophy of social science have
joined the debate, though o�en to criticize positions like Dickson’s and
Hart’s. 22 Dickson’s work is a worthy starting point because she has articulated
and defended the methodological premises of regnant legal positivism with
great clarity, energy, and insight. This Review takes stock of the current state of
argument and hopes to enrich it by bringing in new perspectives in social theo-
ry.
Jurisprudence students and scholars may wonder why it matters where we
draw the line between legal philosophy, on the one hand, and moral and politi-
cal philosophy on the other. At first glance, it seems a trivial labeling dispute:
legal positivists like Dickson plainly care about the moral and political dimen-
sions of human affairs and their relationship to law. Why care whether those
normative considerations are included in our theorization about the nature of
law? 23 One might wonder if this is at all an interesting endeavor. 24 Little sur-
Church: Indirectly Evaluative Legal Philosophy as a Facet of Jurisprudential Inquiry, 6 JURIS. 207,
220-30 (2015) [hereina�er Dickson, Ours Is a Broad Church]. Dickson will further elaborate
on her theory in a forthcoming monograph, tentatively entitled Elucidating Law, which she
hopes to release in 2021. See Julie Dickson: Professor of Legal Philosophy, U. OXFORD FAC. L.,
https://www.law.ox.ac.uk/people/julie-dickson [https://perma.cc/98UA-G4BX].
21. See, e.g., Brian H. Bix, Book Review, 28 AUSTL. J. LEGAL PHIL. 231, 231 (2003); Matthew H.
Kramer, Book Review, 62 CAMBRIDGE L.J. 210, 210 (2003); Mark McBride, Book Review, 66
MOD. L. REV. 661, 661 (2003); Dan Priel, Description and Evaluation in Jurisprudence, 29 LAW
& PHIL. 633, 635-36 (2010); Frederick Schauer, The Social Construction of the Concept of Law:
A Reply to Julie Dickson, 25 OXFORD J. LEGAL STUD. 493, 493 (2005).
22. See, e.g., Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurispru-
dence, 48 AM. J. JURIS. 17, 40-43 (2003) (arguing that Dickson’s indirectly evaluative theory is
not evaluative at all, but rather reflects more descriptive epistemic values); Stephen R. Perry,
Hart’s Methodological Positivism, in HART’S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE
CONCEPT OF LAW 311, 312-13 (Jules Coleman ed., 2001) (arguing that conceptual analysis,
which is distinct from science, is inconsistent with methodological positivism). For an excel-
lent exploration of the relationship between jurisprudence and the sciences, see Dan Priel,
Jurisprudence Between Science and the Humanities, 4 WASH. U. JURIS. REV. 269 passim (2012).
23. For present purposes, this Review does not draw a sharp terminological distinction between
a theory of the “nature of law” and a “concept of law.” Joseph Raz, by contrast, distinguishes
between our concepts about something and that thing’s nature. See JOSEPH RAZ, Can There
Be a Theory of Law?, in BETWEEN AUTHORITY AND INTERPRETATION 17, 19 (2009) (“Concepts
are how we conceive aspects of the world, and lie between words and their meanings . . . on
the one side, and the nature of the things to which they apply, on the other.”). I am using
“concept” in the broader sense as referring to our understanding of the thing’s nature.
24. See David Enoch, Is General Jurisprudence Interesting?, in DIMENSIONS OF NORMATIVITY: NEW
ESSAYS ON METAETHICS AND JURISPRUDENCE 65, 65 (David Plunkett, Scott J. Shapiro & Kev-
in Toh eds., 2019) (“[W]hen it comes to general jurisprudence—questions about the nature
of law, the necessary and sufficient conditions of legal validity in general . . . obviously the
1463
prise, then, that some argue we are not even asking the right questions in gen-
eral jurisprudence, and that legal systems and norms are, in fact, not interest-
ingly distinctive from other normative systems that have moral and prudential
“upshots.” 25 This Review’s conclusion will suggest that many philosophers still
care—and get so heated about these questions—because those competing views
of the dividing line between jurisprudence and normative philosophy inter-
twine with competing visions of what is good for persons, which themselves
intertwine with competing ways of thinking about society. The lines we draw
here suggest a broader picture of our moral and even metaphysical commit-
ments.
To understand this dispute, and the methodological cul-de-sac we have
spent the past few decades circling around, we need to broaden the range of
questions and tools we bring to those arguments. To this end, this Review
offers a mixture of the old and the new—demonstrating the usefulness of its
approach by exploring the promise and limits of Dickson’s work. In terms of
the old, it argues that moralized approaches to general jurisprudence, especially
the classical natural-law tradition of legal theorizing, can better deliver on posi-
tivism’s promise to offer theories of law that are both general and take seriously
the point of view of participants. In terms of the new, it seeks to ground this
approach in a broader philosophy of social science that avoids both reductive
naturalism and relativistic particularity in its explanations. Law is intertwined
with morality, but it is also a social fact: a practice and institution. Any general
theory of jurisprudence, like any general theory of human practices and institu-
tions, must reckon with the relationship between law’s moral life and its factual
existence. This Review begins the work of developing and rendering explicit
such a social theory for a jurisprudence that takes both dimensions seriously.
Part I of this Review describes Dickson’s indirectly evaluative legal theory
and her argument about what general jurisprudential method should look like.
Part II criticizes this framework. It amplifies the work of other jurisprudence
scholars and draws on more general philosophy of social science to argue that a
legal theory about the nature of law cannot at the same time (a) pick out essen-
tial features, (b) based on the understanding of the participants, (c) while re-
maining morally neutral about the practice. Approaches like Dickson’s seek to
wars over legal positivism, and so on—I always get the feeling that if there is a point, I’m
missing it.”).
25. See, e.g., Scott Hershovitz, The End of Jurisprudence, 124 YALE L.J. 1160, 1173 (2015) (“There is
a way out of the debate, and indeed, the way out is as simple as the way in: to escape the de-
bate, we could simply abandon the thought that starts it up. That is, we could abandon the
thought that, in addition to their moral and prudential upshots, legal practices have distinc-
tively legal upshots.”).
1464
do all three, combining interpretive and naturalistic understandings of social

theory that do not cohere.
Part III argues for a teleological approach to general jurisprudence that
picks out essential features, draws on the understandings of the participants,
but eschews moral neutrality. Such theories are old hat, of course, but this Re-
view seeks to place a few new feathers in the band. It seeks to ground this ap-
proach by looking to social-science theories that reject both reductive forms of
naturalism and particularistic and relativistic forms of hermeneutical explana-
tion. Theories like Dickson’s wisely seek to avoid both vices, but this Review
argues that reckoning plainly with the evaluation inherent in jurisprudential
method offers the most promising way to escape those twin snares.
i. evaluation and method in general jurisprudence
Dickson’s book and her subsequent work elaborating upon its arguments
focus on what she calls “the philosophy of legal philosophy.” 26 These questions
concern not only the right way to do legal philosophy (o�en labeled arguments
about “methodology” 27), but what the discipline is: “its aims, criteria of suc-
cess, evidence base, constraints and prospects for progress, and indeed how we
should determine and understand its very domain and subject matter.” 28 We
can add to that questions about legal philosophy’s relationship to, and place
among, cognate fields like moral and political philosophy, the social sciences,
and good old-fashioned doctrinal analysis. 29 Dickson perceived, correctly, that
if you scratch the surface of an argument about the “right way” to do legal phi-
losophy, you will very quickly find yourself mining these more foundational
questions. Dickson made her stance on jurisprudence’s character and domain
clear and, in doing so, offered a crystalline explication of the approach that has
been predominant in Anglo-American legal philosophy. 30 This Part will sketch
Dickson’s argument, which draws deeply on the thought of jurisprudential
doyens H.L.A. Hart and Joseph Raz.
26. Dickson, Ours Is a Broad Church, supra note 20, at 208.

27. See, e.g., Dickson, Methodology in Jurisprudence, supra note 20, at 117-18 (surveying the de-
bates).
29. See id.
30. Like Dickson, I will use the terms “jurisprudence” and “legal philosophy” interchangeably.
See Dickson, Ours Is a Broad Church, supra note 20, at 210 (“I am not using ‘legal philosophy’
in contradistinction to ‘legal theory,’ or to ‘jurisprudence.’”).
1465
In Evaluation and Legal Theory, Dickson contended that general jurispru-

dence’s task is to “explain[] the nature of law by attempting to isolate and ex-
plain those features which make law into what it is.” 31 To do so, a good theory
must (1) identify propositions that “are necessarily true” and (2) “adequately
explain the nature of law.” 32 In short, the theorist must identify law’s “essential
properties.” 33 Nor should the theorist be content with identifying the essential
properties of a particular legal system. She must find the properties “which law,
at any time, and in any place, must exhibit.” 34 Or, as her methodological ally
Scott Shapiro put it, just as discovering that H 2 O is what “makes water water,”
the legal theorist should seek to discover “what makes all and only instances of
law instances of law and not something else.” 35
To illustrate this approach, consider Joseph Raz’s argument about the na-
ture of law. To oversimplify, Raz famously contended that law’s distinguishing
feature is its claim of authority over its subjects. 36 Authority, in this sense,
preempts or overrides the practical reasoning of people subject to its jurisdic-
tion on the matter in question. 37 To do so, “the existence and content of every
law [must be] fully determined by social sources” as opposed to, say, open-
ended moral principles. 38 We might have our own opinions about when we
should keep promises, what is a reasonable risk, or whether a particular killing
is justified. However, when we deliberate about how to act on those matters,
law insists that it can override our reasons and tell us what to do, even if we
think law is dead wrong. And to do its job, law cannot invoke its authority just
to point to abstract moral principles, but rather it must issue an instruction
crystallized in an identifiable, posited social source. This theory, Raz contends,
picks out (at least some subset of) the “features which all legal systems neces-
sarily possess.” 39
31. DICKSON, supra note 3, at 17.

32. Id.
33. Id.
34. Id. at 18. Dickson does not assume that law necessarily has such essential properties, but ra-
ther that a successful theory of law would focus on them if they in fact exist. Id. Nor does
she claim that the legal systems a successful concept would theorize are necessary compo-
nents of every society. Id. at 19.
35. SCOTT J. SHAPIRO, LEGALITY 9 (2011).
36. See JOSEPH RAZ, THE MORALITY OF FREEDOM 55-56 (1986).
37. See id. at 57-59.
38. RAZ, supra note 6, at 46.
39. JOSEPH RAZ, The Institutional Nature of Law, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND
MORALITY, supra note 6, at 104-05. For approaches to conceptualization that also focus on
necessary and timeless features, see, for example, JOHN GARDNER, Law in General, in LAW AS
1466
Through what kind of lens should a theorist search for those essential, fun-
damental properties? Following Hart and Raz, Dickson argued that any suc-
cessful theory must flow from the self-understandings of the persons partici-
pating in the practice. It is not enough to observe the behavior of people in a
society to understand their (the?) concept of law. Legal theory must “advance
our understanding of society by helping us to understand how people under-
stand themselves.” 40 Thus, a sound theory must “account accurately for and
explain adequately beliefs about and attitudes towards the law on the part of
those who are subject to it, and who understand their social world partly in
terms of it.” 41 So, for example, while Raz distinguishes legal philosophy from
sociological reportage, 42 his theorization builds from, and seeks to clarify or il-
luminate, the concepts immanent in people’s beliefs about law. 43 Similarly,
Hart’s concept of law focuses on the internal point of view of participants in so-
cial practice, not merely external actions or a priori theorizing. 44
Although this approach takes account of people’s beliefs about law, such
theorizing, Dickson insisted, should not take a moral stance on those beliefs.
Law, adequately conceptualized, could be a morally valuable social practice, but
we need not make moral worth a criterion for theoretical success. 45 Indeed, she
dedicated the bulk of her book to critiquing such “directly evaluative” ap-
proaches. 46 In this respect, legal theorists are like sociologists or anthropolo-
gists who study a group’s practices from its point of view while withholding
A LEAP OF FAITH: ESSAYS ON LAW IN GENERAL 270, 296-97, 296 n.75 (2012); ANDREI MAR-
MOR, INTERPRETATION AND LEGAL THEORY 27 (2d ed. 2005); SHAPIRO, supra note 35, at 13-22;
and Leslie Green, The Forces of Law: Duty, Coercion, and Power, 29 RATIO JURIS. 164, 175-79
(2006). Raz has, in later work, retreated from insisting that a theory of law identifies a sin-
gle set of features. Brian H. Bix, Joseph Raz and Conceptual Analysis, APA NEWSL. ON PHIL. &
L., Spring 2007, at 3 (“While much of Raz’s recent work could be seen as assuming our soci-
ety has a single concept of law, in recent comments Raz has denied making that assumption
or conclusion.”).
40. DICKSON, supra note 3, at 40 (quoting JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAN: ESSAYS IN
THE MORALITY OF LAW AND POLITICS 237 (1994)).
41. Id. at 41.
42. JOSEPH RAZ, The Institutional Nature of Law, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND
MORALITY, supra note 6, at 103-05.
43. See JOSEPH RAZ, The Inner Logic of the Law, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE
MORALITY OF LAW AND POLITICS, supra note 40, at 236-37.
44. See HART, supra note 5, at 88-91.
45. See DICKSON, supra note 3, at 21.
46. See id. at 51-82 (challenging John Finnis’s natural-law theorizing); id. at 84-93 (challenging
Frederick Schauer’s consequentialist positivism); id. at 103-32 (challenging Ronald
Dworkin’s interpretive argument for law as integrity).
1467
moral judgment about what they find. Dickson agreed that moral evaluation is
worthwhile. Still, we must first identify what law is before we decide whether it
is a good thing. A�er that important work, “it is then possible and appropriate
to go on” to evaluate law as a matter of moral or political theory. 47
To illustrate this approach, consider again Raz’s contention that law, as a
matter of conceptual necessity, claims authority to override our relevant rea-
sons. That, per Raz, is part of what law is and what it does. He does not further
claim that it follows that law is, as an abstract matter, a morally good thing. In
fact, Raz provides a detailed argument about when it is morally justified to
submit to authority, and he rejects a general presumption that one ought to
obey legal authority. 48 Similarly, for Hart, the internal point of view toward law
is not moralized: one can have an attitude of legal obligation for nonmoral rea-
sons. 49 Putting moral obligation at the center of law, in Hart’s view, is an “un-
balanced perspective” no more plausible than Marxist theories of legality based
on class conflict. 50
Dickson emphasized—and this is the major contribution of the book—that
such approaches to jurisprudence are not and should not be merely “descrip-
tive.” A�er all, a theory of a complex social practice like law cannot simply re-
state the jumble of facts it seeks to conceptualize. Rather, it must abstract from
the data, filter out irrelevant features, and highlight others. Critics of the posi-
tivist tradition in which Dickson works have long argued that such necessary
selection makes morally neutral legal theorizing a nonstarter. 51 Dickson agrees
that all theorizing must be evaluative; she just contends that not all evaluation
is moral. Proper theorizing about the nature of law eschews moral judgment
about the practice while relying on what she calls indirectly evaluative judg-
ments.
47. Id. at 63-64; see also id. at 137 (arguing that nonmoral theorizing helps us “identify and ana-
lyse those features of the law which are relevant to its eventual direct evaluation, or to sub-
jecting the law to moral scrutiny”).
48. RAZ, supra note 36, at 142-59 (providing the moral criteria for justified authority); id. at 112-
14 (denying a “prima facie [moral] obligation to obey” the law).
49. HART, supra note 5, at 203 (“[A]llegiance to the [legal] system may be based on many differ-
ent considerations: calculations of long-term interest; disinterested interest in others; an
unreflecting inherited or traditional attitude; or the mere wish to do as others do.”).
50. H.L.A. HART, Introduction, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 12, 12 (1983).
51. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 3-4 (2d ed. 2011) (denying that a
“value-free description” of law is possible); see also Grégoire Webber, Asking Why in the
Study of Human Affairs, 60 AM. J. JURIS. 51, 54 (2015) (“The study of . . . human con-
duct . . . is the study of the action’s point, purpose, goal, value, objective, rationale, reason
for acting, as conceived and understood by the person whose action it is.”).
1468
To show how theorizing about law can be more than descriptive, but still
less than moral, Dickson pointed to two kinds of conceptual criteria for con-
structing theories. First, there are “banal,” “purely meta-theoretical values” like
“simplicity, clarity, elegance, comprehensiveness, and coherence.” 52 Any theo-
ries, including those in the natural sciences, aspire to those values. More inter-
esting are those evaluations which are thicker than these banal criteria, but
thinner than judgments of moral and political theory. These are judgments
about which features, in the view of the participants in the practice, are “im-
portant,” “significant,” or “illuminating” about it. 53 Dickson analogized to an
agnostic who wants to understand the Catholic mass. 54 The observing theorist
will make judgments about which features the practitioners find important or
significant (say, kneeling gestures and the Eucharist) compared to the irrele-
vant (say, the inevitable shuffling of feet or squirming of children, or people
responding “God bless you” to sneezes). To explain what is central to a mass,
or what makes a mass excellent in the eyes of the practitioners, one does not
have to be Catholic; increased familiarity can even breed contempt.
By the same token, for the indirectly evaluative theorist, it may be im-
portant and significant that law claims authority to override our moral judg-
ments, that there are officials who resolve disputes about law’s content, or that
departure from legal norms requires an explanation. By contrast, the particular
order of Titles in the United States Code is trivial 55 and the fact that we even
codify law in text is contingent. 56 In articulating and defending indirectly eval-
uative theorizing, Dickson sought to rebut the accusation that analytical-
positivist theorizing is too thin to be useful or coherent. At the same time, she
sought to maintain the position that moral theorizing about law is a distinct
area of inquiry that, while important, must wait until we settle on more neutral
grounds what law exactly is.
52. DICKSON, supra note 3, at 32.

53. Dickson, Ours Is a Broad Church, supra note 20, at 221; see also DICKSON, supra note 3, at 52.
54. DICKSON, supra note 3, at 68-69.
55. Cf. Tobias A. Dorsey, Some Reflections on Not Reading the Statutes, 10 GREEN BAG 2D 283, 284
(2007) (“The Code is made by taking the session laws, hacking them to pieces, rearranging
them, and stitching them back together in a way that gives them false life.”).
56. Cf. Stephen E. Sachs, Originalism Without Text, 127 YALE L.J. 156, 157 (2017) (“A society can
be recognizably originalist without having a written constitution, written law, or any writing
at all.”).
1469
ii. general jurisprudence and social theory
Dickson, in line with many other legal positivists, argued that identifying
what counts as law or legal is a prolegomenon to, or a separate question from,
evaluating law in general or specific provisions of law. This contention is as fa-
miliar as it is controversial. Leading foils in Dickson’s book such as natural law-
yers like John Finnis 57 and interpretivists like Ronald Dworkin (in his later
work) 58 argue that law and moral/political philosophy fuse at the horizon, such
that one cannot understand as a general matter what law is without under-
standing what it is good for and how it can realize those good(s) in practice.
Whatever the differences between the classical natural-law tradition and
Dworkin’s particular theory—and they are important—both understand legal
philosophy as a subset of practical reasoning or moral and political theory, not
as an autonomous practice that harvests and processes social facts for norma-
tive philosophers to test down the line.
To get a better view on this longstanding debate, it is worth widening the
lens to view broader arguments about how to form theories about social prac-
tices and institutions. In important respects, general jurisprudence resembles
anthropology, political science, and sociology in that its practitioners seek to
theorize and understand how we order important parts of our lives. According-
ly, Hart said his Concept of Law was “an essay in descriptive sociology;” Finnis’s
natural-law critique of Hart’s concept of law draws on Max Weber’s arguments
about the necessity of theorists making evaluative judgments; Dworkinian Ste-
phen Perry criticizes Hartian methodology via hermeneutical social theory; and
Brian Leiter seeks to theorize general jurisprudence in terms of social scientific
naturalism. 59
Although Dickson did not lay her cards on the table about the nature of so-
cial scientific explanation, we can understand her argument as at least ground-
57. See, e.g., John Finnis, Law and What I Truly Should Decide, 48 AM. J. JURIS. 107, 108 (2003)
(arguing that jurisprudential inquiry is “about whether and if so why I, the reflecting person
doing the inquiring, should want there to be [law], and be willing to do what I can and
should to support and comply with it (if I should)”).
58. See, e.g., RONALD DWORKIN, JUSTICE IN ROBES 34-35 (2006) (“We might do better with a
different intellectual topography: we might treat law not as separate from but as a depart-
ment of morality. . . . We might treat legal theory as a special part of political morality dis-
tinguished by a further refinement of institutional structures.”).
59. FINNIS, supra note 8, at 9; HART, supra note 5, at vi; see Brian Leiter, Postscript to Part II: Sci-
ence and Methodology in Legal Theory, in NATURALIZING JURISPRUDENCE 183, 183 (2007); Per-
ry, supra note 22, at 312-13 (arguing that conceptual analysis, which is distinct from science,
is inconsistent with methodological positivism). For an excellent extended exploration on
the relationship between jurisprudence and the sciences, see Priel, supra note 22.
1470
ing her theory in a model of social theorizing. She, like Hart and Raz, is inter-
ested in understanding, illuminating, and clarifying a living social practice
based on the understanding of its participants. Dickson may not have recog-
nized herself as undertaking such work. She endorsed Raz’s statement that
it would be wrong to conclude . . . that one judges the success of an

analysis of the concept of law by its theoretical sociological fruitfulness.
To do so is to miss the point that unlike concepts like “mass” or “elec-
tron,” “the law” is a concept used by people to understand themselves.
We are not free to pick on any fruitful concepts. It is a major task of le-
gal theory to advance our understanding of society by helping us un-
derstand how people understand themselves. 60
But, as Leiter observes, this does not take projects like Dickson’s out of the do-
main of social scientific theorizing; it simply draws a plausible line between
theorizing about natural entities and social practices, with the latter focusing at
least in part on “how humans make themselves and their practices intelligible
to themselves.” 61 As Priel puts it, Hart did not abandon his professed aims of
“descriptive sociology” by focusing his analysis on a selected point of view of
law’s participants. His approach, which Raz and later Dickson would build off
of, simply constituted what Hart thought good sociology looks like—a method,
that we shall see, has affinities with established approaches to theorizing about
social phenomena. 62
To summarize Dickson’s argument, she contended that a concept of law
should seek features of law that are (a) necessary or essential to all legal sys-
tems, based on (b) what those subject to the legal system find important and
significant about law (c) without imposing a morally evaluative filter on those
important and significant theoretical necessities. Is there a tenable framework
for theorizing about the social sciences that can accommodate these features?
Perry and Priel have argued, persuasively, that frameworks like Dickson’s offer
an untenable hodgepodge that combines features of theorizing about the natu-
ral sciences with more humanistic approaches to interpreting social practices. 63
This Part builds off, and modifies, this line of argument to emphasize how
different features of theories like Dickson’s draw on competing understandings
of theorizing about the human sciences.
60. DICKSON, supra note 3, at 40 (quoting JOSEPH RAZ, Authority, Law, and Morality, in ETHICS IN
THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS, supra note 40, at 221).
61. Leiter, supra note 22, at 40.
62. See Priel, supra note 22, at 304.
63. See Perry, supra note 22, at 313-14; Priel, supra note 22, at 271-72.
1471
A. Jurisprudence Modeled on the Natural Sciences
Concepts of law like Dickson’s identify features of that practice that are nec-
essary or essential without undertaking moral evaluation. What kind of theo-
rizing about human practices could produce such features? There are models of
social science in which concepts pick out essential, universal features of human
practices like law without undertaking moral evaluation. Building on the work
of sociologist Auguste Comte, some positivist, empirical models of social sci-
ence (which unfortunately for clarity purposes is not the same thing as “legal
positivism” 64) theorize human affairs in terms of the natural sciences. 65
Here, social scientists pursue what is known as the “covering-law model”
approach associated with philosopher Carl Hempel. 66 To explain something is
to “show[] that the outcome was ‘to be expected under the circumstances,’ by
subsuming it beneath one or several laws.” 67 If you know the scientific law, and
you know the facts at play, you will be able to predict and explain the result be-
cause of the general law. Although the covering-law model has a natural home
in the hard sciences, “Hempel suggests that good explanations in the social and
historical sciences always refer to general laws, at least tacitly.” 68
Drawing on Hempel, behavioralist political scientists in the middle of the
twentieth century hoped their theorizing “would yield predictive laws” to make
sense of the welter of data their studies generated. 69 As Priel has argued, some
early legal positivists also sought to understand legal systems in this fashion.
Hobbes understood his concept of law as the will of the sovereign based on the
human “need for law,” given stable features of human psychology and biology—
not a priori reasoning or a desire to understand the point of view of the partici-
pants. 70 In this respect, a scientific-positivist approach to law resembles behav-
64. See Priel, supra note 22, at 276 (“[B]oth [scientific] ‘positivism’ and ‘legal positivism’ have
meant different things to different people at different times.”).
65. See TED BENTON & IAN CRAIB, THE PHILOSOPHY OF SOCIAL SCIENCE: THE PHILOSOPHICAL
FOUNDATIONS OF SOCIAL THOUGHT 22-23 (2d ed. 2011).
66. Philip S. Gorski, The Poverty of Deductivism: A Constructive Realist Model of Sociological Expla-
nation, 34 SOC. METHODOLOGY 1, 2 (2004); id. at 5 (citing CARL G. HEMPEL, ASPECTS OF SCI-
ENTIFIC EXPLANATION AND OTHER ESSAYS IN THE PHILOSOPHY OF SCIENCE (1965)).
67. Id. at 5.
68. Id. at 6.
69. JASON BLAKELY, ALASDAIR MACINTYRE, CHARLES TAYLOR, AND THE DEMISE OF NATURALISM:
REUNIFYING POLITICAL THEORY AND SOCIAL SCIENCE 17 (2016).
70. Priel, supra note 22, at 288; see also id. at 289-94 (describing Bentham’s jurisprudence, which
had materialist premises, as based on the scientific method, and eschewing attempts to un-
derstand law from within in favor of external observation).
1472
iorism or rational-choice theory, which presume “a natural-science, cause-effect

model” of social science. 71
Such a covering-law approach can identify concepts of law with necessary
features and without moral evaluation: humans being what they are—based on
external observation—will with lawlike regularity satisfy needs they have in
complex societies by generating this practice called “law,” in which a person
with power to rule has his commands habitually obeyed because of threat of
sanctions. 72 One problem with this approach, however, is that such behaviorist
approaches are “rarely espoused nowadays,” even by scientific naturalists. 73
That said, there are approaches to social scientific concept formation that
follow the covering-law approach and, like Dickson, consider how human ac-
tions are meaningful “for those who perform them.” 74 Mark Bevir and Asaf
Kedar’s exploration of concept formation in political science is illuminating.
They distinguish between what they call “naturalist” and “anti-naturalist” ap-
proaches to concept formation. Both methods consider participants’ beliefs,
but only the former seeks to explain social phenomena in terms of general
laws. 75
These theorists, Bevir and Kadar contend, adopt an essentialism that forms
concepts “in ways that ignore the historical specificity of the various objects to
which they refer” and “neglect[] historical contingency in order to postulate
cross-temporal and cross-cultural regularities.” 76 In its strong form, this essen-
tialism seeks “core attributes” that “characterize all cases to which we might ap-
ply [the] concept,” a quest for commonality in which concepts are “defined by a
set of fixed attributes to be found in all relevant cases.” 77 Identifying essential
features out of the welter of facts is “a precondition of the validity of social sci-
71. BENTON & CRAIB, supra note 65, at 87.

72. Cf. Priel, supra note 22, at 293 (identifying how Austin’s sovereign/sanction concept of law
was “an account of law grounded in observable fact”).
73. Mark Bevir & Asaf Kedar, Concept Formation in Political Science: An Anti-Naturalist Critique of
Qualitative Methodology, 6 PERSP. ON POL. 503, 505 (2008); cf. Brian Leiter, The Demarcation
Problem in Jurisprudence: A New Case for Scepticism, 31 OXFORD J. LEGAL STUD. 663, 672 n.46
(2011) (rejecting Quine’s version of naturalism due to its “unprincipled commitment to psy-
chological behaviourism”).
74. Bevir & Kedar, supra note 73, at 505.
75. Id. at 504-07. This naturalist approach to concept formation in the social sciences suggests
that Perry’s sharp dichotomy between theorizing in terms of natural science on the one
hand, and conceptual analysis in a hermeneutical fashion on the other, is overdrawn. Perry,
supra note 22, at 312-13. There are nonhermeneutic approaches to concept formation.
77. Id. at 508.
1473
ence concepts.” 78 Thus, for example, a political scientist defines a concept of

political power (“X has power over Y with regard to Z only if there is a relation
of causality between X and Y with regard to Z”) that seeks the highest level
possible on the ladder of abstraction. 79
There is a strong resemblance here to essentialist general jurisprudence that
builds on participants’ views but seeks general features of the concept, or na-
ture, of law across time and geography. 80 (“X is law if it claims moral authority
to override Y’s judgment and is identifiable in social sources” or “X is law if it is
a union of primary and secondary rules toward which legal officials Y have an
internal attitude of obligation and if there is a general level of compliance
among non-officials Z 1 to Z n .”)
So far, so good, but problems remain. First, such an approach to social sci-
ences is controversial even among naturalists who would make inquiry into
human practices continuous in method with those of the natural sciences. Lei-
ter, for example, has argued that, unlike natural kinds, human artifacts like law
lack essential features. Law, unlike water or gold, is not a natural kind, but a
product of human choice and action and therefore “hostage to changing human
ends and purposes.” 81 Theorizing about social practices, the argument goes,
cannot lead to the kind of concepts Dickson, Hart, Raz, Shapiro, and others
seek.
Nor is it at all clear that this is the kind of game Dickson and others are try-
ing to play. Consider other features of naturalist concept formation that Bevir
and Kadar identify and criticize. Such approaches, they argue, “reif[y]” con-
cepts, defining them “either in ways that neglect relevant meanings entirely or
78. Id.
79. Id. at 510 (quoting Jan-Erik Lane & Hans Stenlund, Power, in SOCIAL SCIENCE CONCEPTS: A
SYSTEMATIC ANALYSIS 315, 327 (Giovanni Sartori ed., 1984), and noting how, under an essen-
tialist approach to concept formation such as this one, “the greater the number of attributes
that comprise a concept’s intension, the smaller the number of empirical cases that comprise
its extension, and vice versa”).
80. See JOSEPH RAZ, Can There Be a Theory of Law?, in BETWEEN AUTHORITY AND INTERPRETA-
TION (2009) 17, 25 (“Naturally, the essential properties of the law are universal characteris-
tics of law. They are to be found in law wherever and whenever it exists.”). Raz, to be sure,
also recognizes “in legal theory there is a tension between the parochial and the universal.”
Id. at 38. He explains that legal theory “aims to explain an institution designated by a con-
cept that is a local concept, a product of Western civilization. On the other hand it is univer-
sal theory for it applies to law whenever and wherever it can conceivably be.” Id.
81. Leiter, supra note 73, at 666; accord FREDERICK SCHAUER, THE FORCE OF LAW 35-41 (2015)
(challenging “essentialism” such as Dickson’s); see also Bevir & Kedar, supra note 73, at 506
(noting the prominent view “that the human sciences deploy languages that presuppose
ideas of choice and contingency that are quite at odds with the forms of explanation found
in the natural sciences”).
1474
in ways that neglect the holistic character of meanings,” treating a concept as a

thing free floating above intentional actors. 82 Thus, such social scientists con-
ceptualize, for example, “social class” in terms of objective criteria independent
of the subjects understanding of class. 83 Although such social scientists will
form concepts that take account of human meanings, they will treat them as
“epiphenomena” or “independent variables” in mechanical causal explana-
tions. 84
Furthermore, this “naturalist” approach to concept formation understands
the social scientist as separate from the human objects of study. The social sci-
entist wields “sterilized linguistic instruments that are shielded from their own
ordinary language” and views the “social world as a neutral object on which the
concept is set to work as an instrument of discovery, description, classification,
and explanation, without recognizing that the actors within this world form
concepts with which to understand it and to act within it.” 85
These other features in addition to essentialism are harder to square with
Dickson’s project. Like Hart, Dickson does not treat concepts as variables to
predict lawlike patterns of activity. And, while the concept of law the theorist
will identify will be a refinement or elucidation of a group’s concept, it will very
much still be rooted to their understanding of what the concept is. 86 Unlike
such naturalist concept formation, indirectly evaluative legal theory does not
identify meanings with the hope that they will ultimately “drop out” of more
lawlike explanations. 87 It does not seek to predict human behavior under cover-
ing laws and it views the perspective of the participants as central to identifying
what counts as significant or important about the practice. 88 In short, while a

83. Id.
84. Id.
85. Id. at 508.
86. That said, there remains some ambiguity about the extent to which Dickson views the theo-
rist as inside or outside the group she is studying. Consider her discussion of essential prop-
erties. She says an essential feature “X” is one “law invariably exhibits and that hence reveals
the distinctive mode of law’s operation; by the prevalence and consequences of certain be-
liefs on the part of those subject to law concerning that X, indicating its centrality to our
self-understandings.” Dickson, Methodology in Jurisprudence, supra note 20, at 126. Studying
the beliefs of “those subject to law” could suggest the kind of outsider approach Bevir and
Kedar identify, while the claim that such inquiry enriches “our self-understanding” suggests
otherwise.
88. Dickson, Ours Is a Broad Church, supra note 20, at 226 (stating her approach “seek[s] to elu-
cidate law in a way which does adequate justice to how it is already understood, and is un-
derstood to feature in, the lives of those who create, administer, and are subject to it”).
1475
naturalistic approach to concept formation might be able to offer a concept of

law that is essentialist and value-neutral, it is not the kind of concept that theo-
rists like Dickson have in mind when they seek to understand law from the
perspective of the participants. 89
B. Hermeneutical Jurisprudence
Nor should this tension be surprising. For Hart, in whose tradition Dick-
son works, “the methodology of the empirical sciences is useless,” for jurispru-
dence demands a “‘hermeneutic’ method which involves portraying rule-
governed behaviour as it appears to its participants.” 90 As Perry notes, Hart
goes far enough to invoke Peter Winch, whose hermeneutical philosophy of so-
cial science rejects the naturalist approach discussed above. 91 The next question
is whether hermeneutical approaches to social science—exemplified by theo-
rists like Winch, Max Weber, and Clifford Geertz—can provide Dickson with
the kind of concept of law she sought.
The difference between such interpretive and naturalist social theorizing is
the importance the former gives “to meanings in the explanation of actions and
so in the explanation of practices and institutions arising out of actions.” 92
Thus, there is an obvious fit in the way such humanistic, non-naturalist ap-
proaches to social science center social theories on the meanings and under-
standings of participants in the practice. 93 For Winch, a good social theorist
has “learned all that the ideal native informant could tell him; sociological
89. See Priel, supra note 22, at 304 (describing how Hart thought good sociology “did not at-
tempt to emulate the methods of the natural sciences (external investigation), their language
(explanation by means of general laws that govern human behavior), or their goals (making
testable predictions)”).
90. H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 13 (1983).
91. See H.L.A. HART, THE CONCEPT OF LAW 289 (2d. ed. 1994) (citing PETER WINCH, THE IDEA
OF A SOCIAL SCIENCE AND ITS RELATION TO PHILOSOPHY (Routledge Classics 2008) (1958) as
presenting a “similar view” to his on the “internal aspect of rules”). Hart, of course, “does
not want to go as far as those hermeneuts who, like Peter Winch, think that the theorist has
no choice but to ‘join the practice’ and theorize about it from the participants’ point of view.”
Perry, supra note 22, at 326. As Perry notes, this “hybrid methodology,” id., creates a serious
tension in Hart’s work, id. at 312-13.
93. See BENTON & CRAIB, supra note 65, at 96 (stating that, under hermeneutic approaches, “the
task of the social sciences is to understand the meanings that people give to their social
world”); Bevir & Kedar, supra note 73, at 505 (noting that hermeneutical approaches under-
stand that “constitutive features of human life set it apart from the rest of nature to such an
extent that the social or human sciences cannot take the natural sciences as a model”).
1476
knowledge is the kind of knowledge possessed in implicit and partial form by

the members of a society rendered explicit and complete.” 94
Whether this school of social philosophy can be nonevaluative or essential-
ist is more doubtful. First, take the question of whether hermeneutic social
theorizing can be normatively neutral. This ground is well-covered, but worth
noting. 95 Theorists like Hart and Dickson do not think general legal theory
should be directly evaluative, so they resist the idea that “the theorist has no
choice but to ‘join the practice’ and theorize about it from the participants’
point of view.” 96 Scholars like H. Hamner Hill and Stephen Perry, however,
have argued that the interpretive turn in jurisprudential method requires evalu-
ative engagement, either by endorsing the practice one theorizes or by choosing
among alternative viewpoints to make sense of the practice. 97
A glance at Winch’s Idea of a Social Science and its Relation to Philosophy sug-
gests why. He contends that the “concepts we have settle for us the form of the
experience we have of the world.” 98 Put another way, in Winch’s view each cul-
ture constitutes its own reality, a language game with its own rules that are not
readily translatable to other cultures. 99 Motives, reasons, and decisions—and
therea�er actions—by groups and individuals are “intelligible by reference to
the rules governing the form of social life in which the agent participates” 100
and, while those immersed in the practice can understand “the social rules that
are implicit in meaningful behavior,” 101 they can do so only as insiders within
that social practice. To do anything less than enter this lifeworld is to introduce
a distorting redescription of the culture’s views in light of one’s own, and
thereby fall short of full understanding. Thus, the argument goes, it is incon-
sistent with a hermeneutic approach to be morally agnostic about a group’s
94. ALASDAIR MACINTYRE, The Idea of Social Science, in AGAINST THE SELF-IMAGES OF THE AGE:
ESSAYS ON IDEOLOGY AND PHILOSOPHY 211, 212 (1971) (characterizing Winch’s project).
95. For an excellent overview this debate, see Brian Bix, H.L.A. Hart and the Hermeneutic Turn in
Legal Theory, 52 SMU L. REV. 167 (1999).
96. Perry, supra note 22, at 326.
97. See Hill, supra note 18, at 114 (contending that Hart’s theory requires the adoption of “a
strong version of [Winch’s] verstehen thesis—one in which understanding a legal system re-
quires endorsing or accepting it”); Perry, supra note 22, at 348-49 (arguing that internalist
theories of law inexorably lead to Dworkinian interpretive evaluation).
98. WINCH, supra note 91, at 14.
99. See BENTON & CRAIB, supra note 65, at 95-98.
100. MACINTYRE, supra note 94, at 214.
1477
concept of law—to introduce the moral distance of detachment is to introduce

distortion by separating oneself from the lifeworld of its practitioners. 102
Another, less appreciated, way in which hermeneutic social science is incon-
sistent with Dickson’s approach to legal theory concerns essential, trans-
historic features. Hermeneutic theorists argue the contingency of human affairs
precludes the patterns we find in studying natural phenomena. 103 Winch, a�er
all, understood his approach to social science as a rebuttal to John Stuart Mill’s
belief that human affairs could be analyzed in terms of scientific regularities. 104
If Winch is right, it is hard to say that certain stable, enduring features are es-
sential to law in the way “H 2 ” and “O” are necessary features of water. This is a
problem for Dickson, who contrasted her approach with those that investigate
“contingent” features of law, which “vary between times and places, without
such variations determining whether or not something is law.” 105 Here we have
theorists using a method that emphasizes contingency to identify essential or
necessary features of the phenomenon.
As Perry notes, approaches like Dickson’s adopt the hermeneutic stance
while still seeking to maintain a critical distance short of moral evaluation or
endorsement. 106 At the same time, such methods seek general, necessary fea-
tures akin to the natural sciences while embracing humanistic methods that
emphasize contingency. It is far from clear that this “hybrid” 107 of naturalism
and anti-naturalist interpretivism offers two great tastes that taste great togeth-
er.
102. See Hill, supra note 18, at 117 (“The very real difficulty that Winch’s hypothesis poses for the
social scientist is that before the social scientist can give an explanation of behavior in terms
accessible to the person whose behavior is being explained, the social scientist must be able
to see the world as does the person whose behavior is the explanandum.”).
103. Bevir & Kedar, supra note 73, at 505 (citing Max Weber’s verstehen theory as an example of
this tendency); see also id. at 506 (explaining that hermeneutic anti-naturalists reject expla-
nations “in terms of trans-historical generalities because they conceive of human action as
being inherently contingent and particular”).
104. See MACINTYRE, supra note 94, at 213 (stating that Winch was responding to Mill’s belief
that we could “formulate empirical generalizations about regularities in human behavior,
generalizations which are causal and explanatory in precisely the same sense that generaliza-
tions in the natural sciences are”).
105. Dickson, Ours Is a Broad Church, supra note 20, at 221 (emphasis omitted).
106. Perry, supra note 22, at 326 (“But Hart does not want to go as far as those hermeneuts who,
like Peter Winch, think the theorist has no choice but to ‘join the practice.’”).
107. Id. (“This can, perhaps, be viewed as a hybrid methodology.”).
1478
iii. evaluative jurisprudence revisited
This Part draws on the philosophy of social science to sketch a vision of ju-
risprudential methodology that takes the views of participants seriously, iden-
tifies necessary features in a concept of law, and situates it in a broader frame-
work for theorizing about human practices. It embraces what seems true and
valuable about Dickson’s resistance to both the naturalist’s externalist approach
to law and the hermeneut’s radical particularity. To maintain these salutary fea-
tures, however, one will have to jettison the notion that normative evaluation of
law is something we must postpone until we neutrally identify the social phe-
nomenon.
A. The Trouble with Deep Hermeneutics
As noted above, a full-bore embrace of an interpretive—or hermeneutic—

approach to theorizing about human practices risks radical particularity and a
kind of debilitating relativism. Take for example Winch’s strong form of ver-
stehen theory, to which Hill insists scholars like Hart (and, by extension, Dick-
son) commit themselves when they theorize about law from the internal point
of view of the practitioners. 108
First, a strongly hermeneutic concept of law may have very little explanato-
ry power beyond a group of people it studies. It certainly cannot be “the” con-
cept of law, and even if it is “our” concept of law, it is unclear how far the “we”
beneath “our” extends. A careful anthropologist would not conflate the life-
worlds of cultures that originated in the same tradition but diverged one or two
hundred years prior. By the same token, one would not assume that the legal
consciousness of an Indiana Hoosier is the same as a London barrister. There
will be similarities and connections, of course, but it would be surprising to
find the webs of meaning mirroring each other. 109 For example, constitutional
law without an entrenched constitution would baffle an American, at least at
first glance, just as the more general American jurisprudential fixation on the
judicial process struck Hart a�er greater reflection. 110
108. See Hill, supra note 18, at 123-25.

109. Hart himself was struck by the differences in the legal cultures when he visited the United
States. See, e.g., H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare
and the Noble Dream, 11 GA. L. REV. 969 (1977).
110. See id. at 970 (explaining that the U.S. focus on the judicial process “is one salient feature of
American jurisprudence contrasting strongly with our own”). For an illuminating contrast
between the American and English orientation on public- and private-law theory, see Chaim
Saiman, The Law Wants to Be Formal, 96 NOTRE DAME L. REV. 1067 (2021).
1479
This epistemology permits only a narrow gauge of generalization across the

map. Moreover, it does not guarantee stability over time. Winch insists that
“[w]here someone is following a rule, we cannot predict how he will interpret
what is involved in following that rule in radically new circumstances.” 111 A
careful interpretivist might be able to communicate the concept of law of a
group at time X, but that monument of scholarship would start to erode at
time Y. Perhaps a legal philosopher should be resigned to clarifying concepts
with a limited shelf life, but Anglo-American jurisprudence appears to be seek-
ing more enduring discoveries. 112
Furthermore, strong interpretivism can lead to an uncomfortably radical
relativism when applied to the study of law and legal cultures. Winch famously
argued that it is not sensible to say whether belief in tribal witch doctors is
more or less rational than Western medical science because “concepts of ration-
ality and truth . . . were themselves completely relative to particular cul-
tures.”113 Critics have long linked legal positivism with moral relativism, 114 but
this is a charge positivists like Dickson reject even as they insist moral evalua-
tion is improper for giving a theory about what law is. 115
It is possible that a positivist will bite that bullet and concede that different,
radically incommensurable concepts of law exist and that there is nothing more
to say about them as law. Positivists like Dickson, however, seek to transcend
both the immersive particularity and the moral skepticism of deep hermeneu-
tics.
Consider the first worry about internal particularity. In responding to the
argument that Hartian jurisprudence simply records the practices of the group
under study, Dickson emphasizes how indirectly evaluative legal theory does
more. It elucidates, organizes, and clarifies that data in light of what partici-
pants in the practice view to be important. 116 Of course, one could respond that

112. Cf. Leiter, supra note 22, at 46 (“Glorified lexicography is important . . . but its results are
strictly ethnographical and local: one thing such a method can not deliver are timeless or
necessary truths about how things are. But this is exactly what legal philosophers [like Raz
and Dickson] appear to be a�er . . . .”).
113. BLAKELY, supra note 69, at 89 (discussing Peter Winch, Understanding a Primitive Society, 1
AM. PHIL. Q. 307, 308-12 (1964)).
114. E.g., LON L. FULLER, THE LAW IN QUEST OF ITSELF 5 (Beacon Press 1966) (1940) (“General-
ly—though not invariably—the positivistic attitude is associated with a degree of ethical
skepticism.”).
115. Dickson, Ours Is a Broad Church, supra note 20, at 220 & n.36 (identifying other works of
methodological positivists that take questions of moral and political philosophy seriously).
116. Dickson, Methodology in Jurisprudence, supra note 20, at 132.
1480
such a theorist is simply recording what the participants identify as im-

portant—and that to understand the texture of importance and resolve conflicts
about competing important ends one must internalize the value scale of the
participants. But Dickson went beyond immersive meta-reportage about what
people think to be important:
Some self-understandings of the participants will be confused, insuffi-

ciently focused, or vague. Moreover, some self-understandings will be
more important and significant than others in explaining the concept of
law. It seems likely, for example, that understandings of features of law
that are relevant to ultimately answering questions about law’s moral
value and ability to create moral obligations to obey will be among the
most important self-understandings of participants. 117
Confused, unfocused, or vague according to whom? Perhaps we are seeking to
find (or become) the ideally clear conceptualist in the community operating
pursuant to its distinctive form of rationality, ineffable to those not playing the
language game. Her argument, however, seems to appeal to more general
standards of rationality. This appeal better fits the scope of her inquiry, which
seeks to understand a concept of law that transcends the views of a klatch of
philosophers in an Oxford common room.
Second, indirectly evaluative legal philosophy presumes a more enduring
concept of law than deep hermeneutics’ moving cultural target, which can
change over time due to the vagaries of human choice and cultural changes.
Although she agrees that the focus of legal philosophy changes over time based
on the questions that capture theorists’ passions, that does not “undermine the
view that legal philosophy seeks to identify and explain truths about aspects of
the nature of law.” 118 The nature of law being, for her, that which “law invaria-
bly exhibits and that hence reveals the distinctive mode of law’s operation.” 119
Third, there is Winch’s deep relativism. Positivists like Dickson appear to
reject such a presumption. This is evident in her later surmise that questions
surrounding law’s “moral value” will “be among the most important” features
in the eyes of the participants. 120 She could be using “moral” as a term of art
for “morality, relative within the system,” but this does not seem so. To think it
is likely that questions about law’s normativity will tend to be important as-
sumes cross-cultural regularities in societies’ thinking about law’s nature, pur-
117. Id. at 138-39.

119. Dickson, Methodology in Jurisprudence, supra note 20, at 126.
120. Id. at 138-39.
1481
poses, and relationship with morality. At a deeper level, it assumes a more gen-
eral pattern across cultures in which law and morality are meaningfully sepa-
rate concepts—that the notion of separating the two at the level of theory is one
that is cogent everywhere with a proper legal system. But if, in a Winchian
framework, “different cultures are different realities,” such regularity in the
normative landscape seems highly unlikely. 121 What universal, non-normative
framework allows Dickson to transcend this particularity is a question unasked
and therefore unanswered in the work.
More broadly, Dickson’s embrace of a staged inquiry for moral evaluation
of law precludes such deep relativism. Although Dickson insists that moral
evaluation is separable from theorizing about law, she agrees it is important
and valuable to undertake moral assessment of law once we identify it through
more neutral means. 122 In fact, she argues, it is morally valuable to strive for a
nonmoral account of law as a social practice lest we veer into unwitting venera-
tion of law. 123 Her elaboration of the “Benthamite insight”—that it is morally
valuable to first undertake a “cool-headed and un-romanticised” account of law
before morally assessing it—is hardly the project of a relativist. 124 If Winch
were right that different cultural practices comprise separate, incommensurable
moral universes, and that the “concepts we have settle for us the form of the
experience we have of the world,” 125 the moral stage of Dickson’s evaluation
would require a view from nowhere that could not exist.
If theorists like Dickson are unsatisfied with the implications of a full-bore
interpretive approach, as they are and should be, the question remains how
they can center their legal theory on participants’ point of view while escaping
a vicious hermeneutic circle. Nonrelativist approaches to social theory that
build upon, but also transcend, the meanings participants ascribe to practices
could show a way forward.
B. Transcending the Hermeneutic Circle
We can approach this alternative indirectly by first examining philosopher

Alasdair MacIntyre’s critique of Winch. MacIntyre first challenges Winch’s ar-
gument that a person’s internal sense of rule-following is the only way to un-
derstand reasons as causes of human behavior. MacIntyre charges that we

122. Dickson, Ours Is a Broad Church, supra note 20, at 215, 227-30.
123. Id. at 227-28.
124. Id. at 227.
125. WINCH, supra note 91, at 14.
1482
sometimes act in ways irreducible to reasons, for reasons we cannot explain, or

in ways that are simply not rule-governed. 126 Anthropologists like Bronisław
Malinowski were therefore correct, MacIntyre argues, to insist that people’s
bare understanding of their own activity will be insufficient and that the ob-
server’s more complete “account of institutions” will be “a construction not
available to the untutored awareness of the native informant.” 127
The social theorist could take this insight in a number of directions. One
could simply treat the practitioners’ beliefs as psychological data for a reductive
naturalist explanation of behavior, even without taking those beliefs at face val-
ue. In fact, Malinowski’s “distinction between the rules acknowledged in a giv-
en society and the actual behavior of individuals in that society,” and his argu-
ment that relying on the native informant gives the theorist a “lifeless body of
laws, regulations, morals and conventionalities” recalls the American Legal Re-
alists’ distinction between the real rules judges actually apply on the ground
and the “paper rules” in the hornbook. 128 It makes sense, therefore, that Brian
Leiter claims the scientific branch of legal realism in his work to naturalize ju-
risprudence. 129 In a similar vein, Leiter seeks to rescue Hart from deep herme-
neutics by understanding the internal point of view in such naturalized
terms. 130
This is not the direction MacIntyre goes, however. He contends that, while
Winch is right to start with the meanings and self-understanding of the partic-
ipants, Winch is wrong to stop there. Rejecting Winch’s relativism and vision
of social theory as “little more than a construction of lists” of different features,
MacIntyre argues that “typologies and classificatory schemes become[] empty
and purposeless unless we have a theory which gives point and criteria to our
classificatory activities.” 131 MacIntyre agrees it is impossible to offer lawlike
generalizations about human practices in the manner of the natural sciences,
but concludes “not that we ought not to generalize, but that such generaliza-
tion must move at another level.” 132 Even if the participants’ self-
understandings are not always a sure guide for social explanation, inquiring

127. Id. at 212 (emphasis added).
128. KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 22-25 (1962).
129. See Leiter, supra note 59, at 286-302.
130. Leiter, supra note 73, at 672.
132. Id.
1483
what “needs and purposes” a social institution serves can illuminate those prac-
tices. 133
This argument follows from the insight that human actions sometimes, but
not always, are mirrored by their reasons. If I say I drove my car to the store to
get milk, you will likely credit my explanation if I, in fact, go to the grocery
store. If I pull up to an automotive store and pour motor oil in my Cheerios,
you might seek a different explanation for my action. To explain human behav-
ior, then, the observer has to make threshold judgments about what is in fact
rational. 134 Even Winch, for all his apparent relativism, makes such judgments:
by insisting that human actions are not reducible to causal laws, Winch has to
think historical materialists like the Bolsheviks are at some level “deluded,”
even as he tries to describe their beliefs. 135
Charles Taylor’s argument about “value-slope” in explanations of social be-
havior is also illuminating here. 136 A conceptual framework to explain human
practices builds in an understanding of human nature and purposes and there-
fore what needs to be explained and how. For example, orthodox Marxists
could not explain McCarthyism “in terms of early upbringing and the resultant
personality structure,” because doing so ignores broader forces they understand
to structure the world. 137 He argues that any framework of explanation “se-
cretes a notion of good” because “in the light of the framework certain goods
can be accepted as such without further argument, whereas other rival ones
cannot be adopted without adducing overriding considerations.” 138
Although such a demonstration requires a separate work, one might
glimpse a similar phenomenon at play in general jurisprudence. For example,
Raz’s exclusive positivism—which insists, as a conceptual matter, that law is
identified only in social sources—chimes with his normative claim elsewhere
that authority is justified (only) when it helps individuals make better deci-
133. Id.
134. See BLAKELY, supra note 69, at 88 (“[I]n cases of rational beliefs, the self-understandings of
the subject of study should be charitably reconstructed in order to form explanations, while
in cases of irrational beliefs the language of self-understanding needed to be challenged and
perhaps even supplanted.”).
135. Id. at 91; see also id. at 90 (“Winch’s own conceptual language (that of the reconstruction of
beliefs held by agents) is fundamentally at odds with some of the conceptual languages that
guide people in the world.”).
136. 2 CHARLES TAYLOR, Neutrality in Political Science, in PHILOSOPHY AND THE HUMAN SCIENCES:
PHILOSOPHICAL PAPERS 58, 73 (1985).
137. Id. at 63.
138. Id. at 90.
1484
sions than they would on their own. 139 If, like inclusive positivists, we held that
a system could incorporate moral principles as legal norms, 140 law would fail to
do its job, given the exclusive positivist’s understanding of human nature and
needs. A�er all, what’s the benefit of law telling us to “do the right thing” when
we do not know what that is? If one takes it as a factual given that autonomous
individuals sometimes need authoritative guidance to achieve their chosen
moral ends, any concept of law that does not provide that kind of guidance is
defective, or at least in need of an overriding explanation justifying an excep-
tion within the terms of the framework.
The upshot, from this perspective, is that social practices are only compre-
hensible in light of an overarching framework of rationality and human needs,
one that the observers “impose” or, less skeptically, cannot help but presume to
share with the participants whose actions they seek to understand. Social prac-
tices are constituted by the meanings and beliefs of their practitioners. While
such contingent practices can evince some general regularity, we can pick out
those patterns only in the context of a narrative structure whose coherence
flows from an overarching judgment about the point of the practice. 141 Rather
than a naturalist reduction of human behavior, the social theorist should look
higher and broader, drawing on philosophically contested—but richer—
understandings of human nature and purposes.
Readers familiar with the jurisprudential literature will see a resemblance
between this teleological approach to social theorizing and the “central case”
method in general jurisprudence popularized in recent years by John Finnis
and embraced by Dworkinians like Stephen Perry. 142 To make sense of the wel-
ter of human practices that march under the banner of law, the framework
holds, one has to identify how human law should truly serve the common
good—and therefore the underlying human goods that provide the basis for
any sound conception of the common good. Whether the ideal be solving co-
ordination problems, justifying the use of force, ensuring equal concern and
139. See RAZ, supra note 6, at 53.

140. See W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994).
141. See ALASDAIR MACINTYRE, Is a Science of Comparative Politics Possible?, in AGAINST THE SELF-
IMAGES OF THE AGE 260, 273 (1971) (“[T]he patterns which we discern in comparative histo-
ry will always be de facto guides yielding Machiavellian maxims, rather than Hobbesian
laws.”); see also BLAKELY, supra note 69, at 65 (interpreting MacIntyre to hold that “humans
are best understood as creatures that orient their actions through narrative sequences” and
that “human actions were only ultimately intelligible when placed in the context of an
agent’s further goals and aims (in other words, teleological forms)”).
142. See FINNIS, supra note 8, at 9-18; Perry, supra note 22, at 313 n.5 (acknowledging his debt to
Finnis’s method); cf. Leiter, supra note 22, at 51 (recognizing Finnis’s teleological approach as
the remaining rival to legal naturalism).
1485
respect, or some combination thereof, the ideal(s) against which various in-
stantiations of law are judged to be successful or defective in varying degrees
explain the human practice we call law. And because this approach presumes
rationality and human agency shared by the observer and the observed, cen-
tral-case theorists do not understand themselves to be imposing an alien con-
ceptual grid on the lives and practices of others any more than a person evalu-
ating my misguided use of motor oil on Cheerios. 143 Rather, they are seeking
to understand and orient a social practice that promotes the common good by
addressing the practical reasoning of its participants.
Dickson’s failure to reckon with this teleological approach helps explain
why her criticisms of normative theorists such as Finnis miss the mark. Dick-
son charged that evaluative approaches like Finnis’s lead to a presumption of
moral obligation that unhealthily valorizes law and might leave unjust systems
in place. But, as Matthew Kramer argues in his review of Dickson, this criticism
trades on an equivocation between “law” as a general measuring ideal and “the
law” of a particular jurisdiction. 144 Directly evaluative concepts of law do not
bless and pledge allegiance to any old institution bearing that label, but rather
seek to “discern the goods that are realised by law even in its less worthy in-
stantiations.” 145 Furthermore, as Dan Priel argues in his review of Dickson’s
work, there will be disagreements among those in the practice about what fea-
tures of law are important or significant, such that the indirectly evaluative le-
gal theorist may be at a loss to neutrally elucidate the concept of law. 146 To the
central-case theorist, this will come as no surprise, since there may be reasona-
ble moral argument about law’s point, which goes directly toward arguing
about what features are important about the practice. 147
143. Indeed, as Grégoire Webber has argued, it is difficult to read Hart’s discussion of the defects
of systems of law containing only primary rules as anything but his and his readers’ views, in-
sofar as he offers reasons for agreeing that any reasonable person would see the defect and
assent to the remedies of secondary rules of recognition, change, and adjudication. See Gré-
goire Webber, Asking Why in the Study of Human Affairs, 60 AM. J. JURIS. 51, 68-69 (2015).
144. Matthew H. Kramer, Book Review, 62 CAMBRIDGE L.J. 210, 211 (2003).
145. Id. at 212.
146. Dan Priel, supra note 21, at 653-56; cf. Margaret Martin, Postema on Hart: The Illusion of Val-
ue-Neutrality, in PHILOSOPHY OF LAW AS AN INTEGRAL PART OF PHILOSOPHY: ESSAYS ON THE
JURISPRUDENCE OF GERALD J POSTEMA 193, 199 (Thomas Bustamante & Thiago Lopes Decat
eds., 2020) (“Insofar as [Hart] is committed to observer theory, he must decide whether to
defer to participants and their judgments of importance, or, alternatively, whether he should
make an independent judgment.”).
147. Cf. BLAKELY, supra note 69, at 92 (“This self-reflective dimension of human agency means
that the adoption of a particular theory is never fully separable from moral and political
questions about what counts or does not count as a defensible form of human agency.”);
1486
conclusion
Dickson and many of her fellow analytical positivists seek to frame a con-
cept of law that (a) captures law’s essential nature, (b) is based on participants’
beliefs and self-understandings about what is important about the practice, and
(c) avoids direct moral or political evaluation of the concept’s content. This Re-
view argues that you cannot have all three at the same time. The essentialism is
inconsistent with the humanistic, hermeneutic understanding of human prac-
tices, for it is rooted in a model of social science that seeks to mirror the natural
sciences (and might be bad naturalism to boot). The resistance to moral evalu-
ation leads to a particularism that belies any claim to general jurisprudence and,
by presuming its own overarching understanding of rationality, is incoherent
on its own terms.
A directly normative methodology, however, can offer a concept of law that
identifies essential features of the central case of law and takes the point of view
of participants seriously—theoretical desiderata that Dickson’s conceptual anal-
ysis struggled to simultaneously achieve. If the concept of law is an enduring
moral ideal that judges and makes sense of varying, contingent social practices,
such a concept picks out and highlights essential properties amid the flux of
human affairs. By starting its theorizing with the beliefs and meanings of par-
ticipants in the practice—with whom the theorists share a moral and social
universe—this concept of law also avoids the pure externalism that treats men-
tal states about practices as epiphenomenal or mere data. Its critical rationality,
however, transcends the immersive relativism of Winch or the reportage of the
opinion pollster.
This latter vision, of course, is grounded in a broader vision of moral phi-
losophy and social science that is controversial. One would have to make the
case for a fixed, enduring understanding of human nature and flourishing.
This requires at the same time a metaphysics and ontology that is richer than
reductive naturalism and more realistic and hardheaded than the subjectivity of
social constructionism. Along those lines, one such framework on offer in the
philosophy of social sciences is known as critical realism, a method which theo-
rists have deployed in fields as diverse as sociology, political science, history,
and even theology. 148 Evaluative legal theorists seeking to shore up their meth-
Priel, supra note 21, at 656-57 (arguing that disagreements over importance likely turn on
“disagreement on what counts as a good explanation of human behavior. And views about
this tend to be . . . correlated with moral and political views”).
148. See, e.g., CHRISTIAN SMITH, TO FLOURISH OR DESTRUCT: A PERSONALIST THEORY OF HUMAN
GOODS, MOTIVATIONS, FAILURE, AND EVIL 9 (2015) (proposing his theory of “critical realist
personalism” in sociology); see also CRITICAL REALISM, HISTORY, AND PHILOSOPHY IN THE
1487
odological arguments in broader theory should consider exploring such ave-

nues. 149
A teleological understanding of human nature, goods, and practices will
have a “value slope,” so to speak, at the methodological level. Such a theorist
will recognize it is possible, and sometimes useful, to distinguish between the
organizing, normative concept of law and the factual, historical laws that hu-
mans posit. 150 But to always stop there would be incomplete or, more accurate-
ly, inconsistent with the broader understanding of thinking about human
goods and practices. By contrast, in later works developing her theory, Dickson
invokes the very different Benthamite tradition of suspicion of tradition as a rea-
son to separate moral evaluation from general theories of law—going so far as
to cite Bentham as the Martin Luther of legal theory who stripped the “cloak of
moral veneration” from the jurisprudential altars. 151 Her argument that such a
“cool headed and un-romanticised” vision of law is necessary for “moral and
social progress” echoes Hart, who argued that positivism promotes moral clari-
ty in criticizing unjust regimes. 152
This differing value slope may shed light on why it matters where we draw
the line between legal philosophy, on the one hand, and moral and political
philosophy on the other. At first glance, it seems a trivial labeling dispute: legal
positivists like Dickson plainly care about the normative dimensions of human
affairs and their relationship to law. Why care whether those moral considera-
tions be included in the concept of law? Perhaps philosophers care—and get so
SOCIAL SCIENCES (Timothy Rutzou & George Steinmetz eds., 2018) (history); N.T.
WRIGHT, THE NEW TESTAMENT AND THE PEOPLE OF GOD (1992) (theology); Michiel van In-
gen, Conflict Studies and Causality: Critical Realism and the Nomothetic/Idiographic Divide in
the Study of Civil War, 18 CIVIL WARS 387 (2017) (political science). For an accessible intro-
duction to this methodological approach, see Philip S. Gorski, What Is Critical Realism? And
Why Should You Care?, 42 CONTEMP. SOC. 658 (2013).
149. I have begun to take a rough stab at a more systematic application of the theory in jurispru-
dence. See Jeffrey A. Pojanowski, Critical Realism and Methodology in Jurisprudence (July
30, 2015) (unpublished manuscript) (on file with author). Finnis, who invoked Weber’s ar-
gument that social theorizing is necessarily evaluative, found it insufficient on its own due to
its generality. See Finnis, supra note 57, at 117 n.21.
150. See 4 JOHN FINNIS, Adjudication and Legal Change, in PHILOSOPHY OF LAW: COLLECTED ES-
SAYS 397, 397 (2011) (describing law’s “double life” as norm and fact).
151. See Dickson, Ours Is a Broad Church, supra note 20, at 227.
152. Id. at 227; H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593,
620-21 (1958) (“If with the Utilitarians we speak plainly, we say that laws may be law but
too evil to be obeyed. This is a moral condemnation which everyone can understand and it
makes an immediate and obvious claim to moral attention. . . . [W]hen we have the ample
resources of plain speech we must not present the moral criticism of institutions as proposi-
tions of a disputable [natural law] philosophy.”).
1488
heated about these questions—because those competing ways of viewing the

dividing line between general jurisprudence and normative philosophy inter-
twine with competing visions of human goods, which intertwine with compet-
ing ways of theorizing about society. For a Benthamite utilitarian confronting a
benighted, superstitious order, or a moral noncognitivist like Hart confronting
a legal regime that reifies moralized terms, the notion of building objective tel-
eological truths about human flourishing into the nature of law is not particu-
larly palatable. 153 The lines we draw suggest a broader picture of our moral and
even metaphysical commitments.
153. Again, a value slope goes toward tendencies, not logical entailment. Cf. TAYLOR, supra note
136, at 90 (“[A] given explanatory framework secretes a notion of good, and a set of valua-
tions, which cannot be done away with—though they can be overridden—unless we do away
with the framework. . . . The framework can be said to distribute the onus of argument in a
certain way. It is thus not neutral.”).
1489

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JEFF POJANOWSKI

Reevaluating Legal Theory

Evaluation and Legal Theory

book review contents

i. evaluation and method in general jurisprudence 1465

ii. general jurisprudence and social theory 1470

iii. evaluative jurisprudence revisited 1479

fore necessary to transcend descriptive reportage. To avoid the implication that

15. DICKSON, supra note 3, at 9-10.

do all three, combining interpretive and naturalistic understandings of social

i. evaluation and method in general jurisprudence

26. Dickson, Ours Is a Broad Church, supra note 20, at 208.

In Evaluation and Legal Theory, Dickson contended that general jurispru-

31. DICKSON, supra note 3, at 17.

52. DICKSON, supra note 3, at 32.

ii. general jurisprudence and social theory

it would be wrong to conclude . . . that one judges the success of an

A. Jurisprudence Modeled on the Natural Sciences

iorism or rational-choice theory, which presume “a natural-science, cause-eﬀect

71. BENTON & CRAIB, supra note 65, at 87.

ence concepts.” 78 Thus, for example, a political scientist deﬁnes a concept of

in ways that neglect the holistic character of meanings,” treating a concept as a

82. Bevir & Kedar, supra note 73, at 507.

naturalistic approach to concept formation might be able to oﬀer a concept of

knowledge is the kind of knowledge possessed in implicit and partial form by

concept of law—to introduce the moral distance of detachment is to introduce

iii. evaluative jurisprudence revisited

A. The Trouble with Deep Hermeneutics

As noted above, a full-bore embrace of an interpretive—or hermeneutic—

108. See Hill, supra note 18, at 123-25.

This epistemology permits only a narrow gauge of generalization across the

111. MACINTYRE, supra note 94, at 214.

such a theorist is simply recording what the participants identify as im-

Some self-understandings of the participants will be confused, insuﬃ-

117. Id. at 138-39.

B. Transcending the Hermeneutic Circle

We can approach this alternative indirectly by ﬁrst examining philosopher

121. BENTON & CRAIB, supra note 65, at 95.

sometimes act in ways irreducible to reasons, for reasons we cannot explain, or

126. MACINTYRE, supra note 94, at 221.

139. See RAZ, supra note 6, at 53.

odological arguments in broader theory should consider exploring such ave-

heated about these questions—because those competing ways of viewing the

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