General and Descriptive Jurisprudence versus Evaluative and Justificatory Jurisprudence

In the first section of the “Postscript,” Hart attempts to characterize in general terms the difference between his own brand of legal theory in The Concept of Law and the view of legal theory adopted by Ronald Dworkin. In so doing, Hart introduces a distinction that has given rise to much debate and no little confusion in contemporary debates on jurisprudential methodology, namely the distinction between (Hartian) general and descriptive jurisprudence and (Dworkinian) evaluative and justificatory jurisprudence.⁴

For example, in a review written shortly after the publication of Law's Empire, Philip Soper appears to assume that Dworkin has universalist aspirations for his theory and accordingly criticizes those aspects of Dworkin's views that (wrongly, in Soper's view) assume universal commitment to individual rights.⁷

The other aspect of Hart's “Postscript” characterization of his approach to legal theory has likewise given rise to much debate, and discussion of this issue—namely whether it is possible to explain law adequately by means of “descriptive” legal theory that is “morally neutral, and has no justificatory aims”¹⁰

As I will discuss further in Section II, in interpreting Hart's remarks on this issue in the “Postscript,” it is important to remember that the part of the “Postscript” that was published is a response to criticisms leveled at Hart by Ronald Dworkin. It is hence polemical in style, and its style affects its substance, especially as regards Hart's characterization of the difference between his own methodological commitments and those of Dworkin. Hart largely characterizes his own position by contrasting it with Dworkin's, and his terminology is hence to be read not in the abstract but in the concrete context of the debate between them and in terms of the methodological commitments that Hart ascribed to Dworkin. In this context, it is arguable that the kind of legal theory Hart wishes to distance himself from is not “evaluative” jurisprudence per se but, rather, jurisprudence that is evaluative in the sense in which Dworkin's legal theory is evaluative, that is, in offering a moral and political evaluation of law that puts it in its best light as justifying exercises of state coercion. The polemical nature of the “Postscript” and Hart's goal of seeking to distance his own position from Dworkin's should be borne in mind in interpreting both Hart's remarks themselves and those debates in legal theory that have emerged in response to them.

The Importance and Consequences of Adopting an Internal Point of View in Jurisprudence

Having drawn his distinction between general and descriptive jurisprudence on the one hand and evaluative and justificatory jurisprudence on the other, Hart then goes on briefly to consider the reasons behind Dworkin's rejection of descriptive legal theory as being capable of adequately explaining law.¹²

In Hart's understanding of the internal point of view, the descriptive legal theorist must take account of and understand law from the internal point of view, that is to say, from the point of view of those who create, administer, and are subject to law, but in so doing, he need not share, endorse, or make claims that compete with claims made from that point of view in order to construct an explanatorily adequate legal theory. For Hart, then, even if, as Dworkin claims, participants in legal practice are attempting to offer moral and political evaluations of law that put it in its best light as an example of justified governmental coercion, this is merely something to be understood and taken account of; the theorist need not take a stance of his own on whether and under what circumstances such evaluations and attempted justifications are or would be true. Indeed, Hart even goes so far as to say that even if the participants' perspective on law necessarily included beliefs that there were moral reasons to follow the law and that law's use of coercion was justified, this too would be something for the legal theorist to understand and take account of, and that such understanding need not require him to abandon his descriptive task: “Description may still be description, even when what is described is an evaluation.”¹³

Legal Theory, Legal Practice, and the Justification of State Coercion

Hart's wish to distance himself from a view of legal theory that takes as its task explaining how law can justify state coercion has already been mentioned in discussing the first two points above. However, Hart also specifically rejects Dworkin's connection between legal theory and the justification of state coercion in section 2 (ii) of the “Postscript,” in which he criticizes Dworkin's reinterpretation of legal positivism as an interpretive theory of law termed “conventionalism.” In this guise, legal positivism puts law in its best light as being capable of justifying coercion by emphasizing the way in which having “plain fact” criteria for the identification of law puts those subject to the law on clear and fair advance notice of the occasions upon which such coercion will be employed against them.¹⁴

Hart rejects this reinterpretation on the ground that Dworkin's approach to legal theory falsely presupposes: (i) that the purpose of law is the justification of state coercion; and (ii) that hence any adequate theory of law must attempt to explain how and under what circumstances law can achieve this aim. Hart makes it clear in the “Postscript” that he does not regard the point of law as being to justify coercion and indeed states that he is wary of characterizing law in terms of its having one main point or function at all.¹⁵

Positivism and the Semantic Sting

As well as rejecting Dworkin's interpretation of legal positivism as an interpretive theory of law in the “Postscript,” Hart also rejects his interpretation of it as a semantic theory of law and attempts to parry the “semantic sting” argument outlined by Dworkin in the opening chapters of Law's Empire.¹⁶

According to Dworkin, as the legal-positivist view is that these criteria are shared and have only to be uncovered by skillful lawyers, judges, and legal philosophers, any apparent disagreement about whether something is law or not either must be disagreement at the borderlines of application of these shared criteria or else is not true disagreement at all but only people talking past one another, as they do not really share any such criteria in common. Dworkin then contends that these legal positivist commitments yield a grossly inaccurate picture of what legal argument and disagreement is like. Hart responds to the semantic-sting argument by simply claiming that his theory of law is not stung by it: he denies that any aspect of his account is an attempt to uncover the shared linguistic criteria determining the meaning of the word “law.”¹⁸

In What Sense Is Legal Theory Evaluative?

One of the most instructive contributors to this debate is John Finnis. In the opening chapter of Natural Law and Natural Rights, Finnis points out that legal theorists—like any other theorists—must make evaluations of significance and importance in order to construct explanatorily adequate theories rather than merely offer miscellaneous lists of information.²⁴

He does so via the claim that because law is a social phenomenon that people are aware of, have views about, and use in their practical reasoning about what to do and how to live, legal theorists making judgments of importance and significance about their subject matter must be guided by what is considered important and significant by those who create, administer, and are subject to the law and whose views and activities constitute the subject matter of jurisprudential inquiry.²⁵

Moreover, it should also be uncontroversial among legal theorists that at least some of those who create, administer, and are subject to the law may have moral attitudes toward it and moral beliefs about it—some judges, for example, may accept and apply the law of their legal system because they believe that they are morally obligated to do so. The next step in Finnis's argument, however, depends on his stance on the relative importance of different attitudes or points of view toward law in understanding it adequately. As I just mentioned, some of those subject to or administering the law may have moral beliefs and attitudes toward it. Some, however, may not—some of those subject to the law of certain jurisdictions may feel quite alienated from it and, as a result, may disobey the law or may obey only for prudential reasons while decrying it and working toward its reform.

As Hart points out, officials administering the law may also exhibit a variety of attitudes toward it: judges may uphold and apply the law of their jurisdiction for reasons of career advancement or simply out of a desire to adhere to tradition or preserve the status quo as well as because of a belief in its moral value.²⁷

In Evaluation and Legal Theory, I articulate my understanding of the “evaluative-but-not-morally-evaluative” view of legal theory, which stands in opposition to Finnis's views on this topic and which I term indirectly evaluative legal theory.²⁹

In the book, I attempt to explain the commitments and tenability of indirectly evaluative legal theory partly via an analysis of the argument by Finnis just discussed. I begin by arguing that Finnis's claim that theorists must make evaluations of significance and importance in order for their theories to be more than miscellaneous lists of facts is true but somewhat banal. The need for what I term “purely metatheoretical” value judgments³¹

For legal theorists, I argue, there is another reason why they must engage in evaluative judgments concerning not merely the metatheoretical virtues of theories in general but which are judgments about the subject matter or data of legal theory itself. This point arises because the concept of law is one that is very familiar to those in societies that are governed by law, and those who create, administer, and are subject to the law are aware of law and have views about it and about how they ought to act in light of it. Legal theory tries to help us understand ourselves and our social world in terms of law, and so a successful legal theorist must make evaluative judgments of importance and significance about his or her subject matter and must do so in a way that is sufficiently sensitive to those already existing self-understandings in terms of law held by those who create, administer, and are subject to law. Some of these self-understandings will include moral beliefs about and attitudes toward law—for example, the belief that may be held by some that law creates a moral obligation to obey it—and the nature and existence of such beliefs and attitudes about law are important aspects of law to explain.

In short, I support all the steps in Finnis's argument except the final one, that is, the claim that in order to be able to make these judgments of importance and significance in legal theory—including judgments of importance and significance concerning moral beliefs and attitudes about law—the legal theorist must make morally evaluative (or “directly evaluative,” as I term them in the book) judgments about the law. I claim, rather, that although it is indeed important to explain features of law such as its claim to moral legitimacy and the acceptance of that claim by some of those who create, administer, and are subject to the law, it is possible for the legal theorist to do this—to know that such features of law are important and to explain them—without himself taking a stance on whether and under what conditions such beliefs or claims are true and hence without making morally or directly evaluative judgments about them.

Judgments of which features of the law it is important and significant to explain are what I term indirectly evaluative judgments that neither entail nor require support from directly evaluative judgments such as whether and under what conditions law is morally justified or creates moral obligations to obey it. This view naturally invites the question: If we need not make moral value judgments in order to know that a particular feature of the law is important to explain, then on what alternative basis can we be justified in making such judgments? My view in Evaluation and Legal Theory is that indirectly evaluative judgments that some feature of the law, X, is important to explain may be supported by the fact that X is a feature that law invariably exhibits and that hence reveals the distinctive mode of law's operation; by the prevalence and consequences of certain beliefs on the part of those subject to law concerning that X, indicating its centrality to our self-understandings; by the fact that the X in question bears upon matters of practical concern to us; and/or by the way in which that X is relevant to or has a bearing upon various directly evaluative questions concerning whether it and the social institution that exhibits it are good or bad things.³²

It is important to reiterate the point that in many cases, certain features of law are judged important to explain because of the role those features already play in the self-understandings of those who administer and are subject to the law. In other words, I fully support the insight—shared by Hart and Finnis—that in legal theory we must understand law by taking into account how those who create, administer, and are subject to the law understand themselves and their own behavior in terms of law. However, contra Finnis, I reject the claim that the legal theorist must take a stance on the moral worth of those self-understandings in order to know that they are important to explain.

That law claims moral authority and that some people regard law as creating moral obligations to obey it is a very important feature of law to explain, but my view is that one can know that and can explain the structural features of that claim and of those purported obligations without taking a stance on whether and under what circumstances the claim is true. In fact, in Evaluation and Legal Theory, I make the further claim that we can go on to answer such questions as whether the law has moral value and whether it creates reasons for action such that we have a moral obligation to obey it only once we have an analytical account of law's important features:

This point begins to reveal my view of the links between indirectly evaluative legal theory and legal theory that takes a stance of the moral value and moral justifiability of the law, namely that the latter should proceed only when the former has done its task of picking out and explaining law's important and significant essential properties.³⁴

To recap: I stated above that sometimes the reason why a given feature of law is important to explain is because that feature bears upon matters of practical concern to us or is relevant to or has a bearing upon answering various directly evaluative questions concerning whether that feature and the social institution that exhibits it are good or bad things. For example, law's claim to moral authority is (arguably) an important feature of law to explain because the existence and nature of that claim means that law will hold us to certain standards whether we agree with them or not and will coercively enforce its edicts against us, perhaps radically curtailing our freedom in certain circumstances if we disobey. This is important because it bears upon what matters to us—for example, being able to live a fulfilling autonomous life—and because law's compulsory and potentially coercive nature is relevant to answering to questions such as: Is law morally valuable or justified? and When ought we to obey it?

Their relevance to answering those latter sorts of questions, then, can make certain features of law important to explain; if you want to know whether you ought to obey something, you will be able to consider the matter better if you first of all know something about its nature and about the character of the demands being made upon you. This aspect of indirectly evaluative legal theory is also noted by Wil Waluchow in discussing correct jurisprudential methodology in Inclusive Legal Positivism.³⁵

Although Waluchow retains the term “descriptive” in characterizing the kind of legal theory he has in mind, all this emphasis on the ways in which evaluative judgments must enter into any explanatorily adequate legal theory seems to take us quite far from the “descriptive jurisprudence” referred to by Hart in the “Postscript.” In my view, however, it is merely the term “descriptive” that is a misnomer, and it is so only insofar as it is taken to imply that legal theorists merely record the passing scene of legal phenomena and need not make any evaluative judgments about it in constructing their theories.

As I noted above, my view is that Hart is a proponent of what I refer to as indirectly evaluative legal theory³⁸

I want to conclude the present discussion about the possibility and nature of descriptive jurisprudence by examining two alternative views—one fairly recent and one very recent—of the correct interpretation of Hart's commitment to descriptive jurisprudence in the “Postscript.” The first of these views is propounded by Stephen Perry, who claims that Hart does not stand by his own declared descriptivism and, moreover, that he cannot do so if he is to offer an adequate answer to what Perry takes as jurisprudence's most important questions. The second alternative interpretation of Hart comes from Brian Leiter, who counsels the abandonment of conceptual analysis of the concept of law and urges us to take a naturalist turn and think of philosophy of law as being continuous with empirical inquiry in the social sciences. In the remainder of this section, I will outline these alternative views and then briefly indicate what I regard as the correct response to them. My aim here is to present a clearer picture of some contemporary views on methodology in jurisprudence by bringing into better focus the points of disagreement between them.

Perry's View of Descriptivism

Stephen Perry's valuable contribution to the debate about the role of evaluative judgments in legal theory comes in the form of several interesting articles discussing aspects of Hart's views on this topic.³⁹

Descriptive-explanatory theory, for Perry, is characterized as a scientific, morally neutral enterprise in which “there is no necessary reason why the theory's categories should track the concepts of the participants in the social practices under study.”⁴¹

Perry claims that—in terms of this terminology—Hart wishes to engage in conceptual analysis, and he is surely correct to do so, given Hart's persistent emphasis in his work on the importance of the internal point of view in understanding law adequately. But according to Perry, Hart's brand of conceptual analysis—which Perry terms “external conceptual analysis”⁴³

Perry contends that external conceptual analysis is not an adequate methodology for answering what he regards as the most important questions of legal theory, such as how law provides reasons for action that we would not otherwise have and under what conditions law possesses the authority over us that it claims.⁴⁵

One strand in Perry's argument in Hart's Methodological Positivism is to show that Hart's position is frequently threatening to and often does overstep what Perry refers to as its external or descriptivist leanings, and that once it does so, in order to answer those questions that Perry takes as central to jurisprudential inquiry, the legal theorist must engage in Dworkinian interpretivism and attempt to put legal practice in its best moral light in terms of the value or point it is taken to serve. Perry's argumentative strategy is hence to create a dichotomy and then force Hart's methodological position into one or other arm of it.

Two strategies may be used in combination to try to resist this reinterpretation of Hart as having to engage in moral value judgments about law in order to understand it adequately. The first is to demonstrate the implausibility of Perry's alternative to Dworkinian interpretivism in order to show that the dichotomy he sets up is false and reveals an impoverished view of the spectrum of possible methodological positions. If an implausible interpretation of descriptive legal theory is adopted, then it will be easy to show that Hart fails to stay within the confines of that methodological approach. The second strategy is to stake out a viable alternative position that demonstrates how legal theorists can offer explanatorily adequate evaluative legal theories that are interpretations of the concept of law and of people's self-understandings in terms of that concept but that do not require the theorist to make moral evaluations of law or attempt to put it in its best moral light in order to understand it. This second strategy—sometimes in combination with the first—is what I take Coleman, Green, Marmor, Waluchow, and myself to be trying to do in those works referred to in notes 20 to 23.

Some brief remarks on the first strategy, that of demonstrating that Perry sets up a false dichotomy by presenting an implausible view of the commitments of descriptive legal theory, are in order here. As was noted above, Perry claims that Hart engages in external conceptual analysis, a methodological approach that attempts to clarify and explain our self-understanding in terms of the concept of law but that in doing so, retains “descriptive” or “external” leanings. Perry tends to characterize such descriptive leanings in a distinctive way, suggesting that this kind of methodological approach places legal theorists in a kind of passive recording role in relation to the phenomena they seek to explain. At several points in Hart's Methodological Positivism, descriptive legal theory is presented as a kind of dictation exercise in which legal theorists take into account the internal point of view by merely absorbing and reproducing in their theories the beliefs and attitudes held by those who create, administer, and are subject to law:

The first arm of the dichotomy is decidedly suspect, and it is so because it does not take into account the type of evaluative judgments that feature in any explanatorily adequate legal theory. As I have noted in this section, it is my view that legal theorists must make evaluations of significance and importance about their data, and those evaluations must be sensitive to existing evaluations of significance and importance on the part of those who create, administer, and are subject to law. The type of jurisprudence that Hart is engaged upon does much more than merely passively record and report on views about the law held by those subject to it, attempting as it does to systematize, clarify, evaluate for importance and relevance, and incorporate them into a cogent and persuasive account of the nature of law.

That Hart himself was well aware of the need for such evaluative judgments is evident from the quotation at the beginning of Section II⁵¹

The upshot of all this is that explanatorily adequate legal theory requires theorists to make a whole host of evaluative judgments concerning the subject matter that their theories address and bears little resemblance to Perry's characterization of the descriptivist aspects of Hart's methodology. In characterizing those descriptivist facets of Hart's work in the terms he does, Perry makes it all too easy to demonstrate that Hart does not employ this implausible methodology and hence to begin his task of reinterpreting Hart as having to adopt a Dworkinian methodology in order to construct an adequate account of law. However, as neither Hart nor any other legal theorist of whom I am aware has ever employed the methodology that Perry terms “descriptive-explanatory,” he is attacking a straw man and setting up a false dichotomy that obscures the possibility of there being other methodological positions besides an implausible version of descriptive legal theory on the one hand and Dworkinian interpretivism on the other.⁵²

Leiter's Interpretation of Indirectly Evaluative Legal Theory

Another challenge to my view of Hart's methodology as being a form of indirectly evaluative legal theory emerges in the course of recent work by Brian Leiter. In a series of articles, Leiter has articulated a highly original and challenging approach to jurisprudential methodology. He argues that traditional attempts to understand some aspects of law—notably the adjudication process—using the methodology of conceptual analysis should be abandoned and replaced instead with a “naturalist” methodology committed to the view that “a satisfactory theory of adjudication must be continuous with empirical inquiry in the social sciences.”⁵³

Leiter views his thesis as extending the naturalistic turn taken by late-twentieth-century philosophy to legal philosophy. He characterizes that turn in terms of a growing awareness of the fruitlessness of conceptual analysis and what he refers to as “the a priori, armchair methods of the philosopher”⁵⁴

When we turn from general philosophy to legal philosophy, Leiter argues in support of his view via an interpretation of the American Legal Realist movement as offering theories of adjudication that are naturalist in tenor. Just as Quine wished to naturalize epistemology by replacing traditional epistemological questions with questions from the empirical sciences such as psychology, Leiter claims that the Legal Realists wished to naturalize adjudication, in that they argued against a traditional view of adjudication in which legal reasons are presented as generating uniquely correct outcomes in cases and instead counseled in favor of empirical studies concerning the psychology and sociology of the judiciary in order to improve our understanding of which inputs produce which outputs in adjudication situations.⁵⁵

This approach to jurisprudential methodology throws down the gauntlet to the many approaches to theorizing about law that rely heavily on conceptual analysis. This being so, Leiter's views are likely to provide fruitful debating ground for the future, especially as his most recent work involves investigating whether different forms of naturalism and attendant doubts about the fruitfulness of certain forms of conceptual analysis have wider application in legal theory than in the arena of adjudication, where Leiter's inquiries began.⁵⁶

For present purposes, however, I want to focus on those aspects of Leiter's views that are relevant to the issue of the correct way to interpret Hart's remarks in the “Postscript” and to my claim that Hart's commitment to descriptive jurisprudence should be read as a commitment to the indirectly evaluative approach to legal theory. In a recent paper, Leiter claims that legal theorists have been engaging in the wrong debate in arguing about the kind of issues surveyed in this section; in particular, the issue of whether and in what sense jurisprudence can be descriptive. According to Leiter, jurisprudence is descriptive, but the real question is whether there has been overreliance on conceptual analysis and on analyzing our intuitions about law in contemporary legal theory. Leiter believes that the more fruitful debate is to be had in investigating those latter questions and in considering whether certain naturalist doctrines might be of assistance in supplementing or replacing conceptual analysis if it is found wanting when applied to law. In reaching this conclusion, however, Leiter does engage with the debate concerning whether and in what sense jurisprudence is descriptive and considers the character of the indirectly evaluative approach to legal theory examined in Evaluation and Legal Theory.⁵⁷

According to Leiter, indirectly evaluative legal theory as I explain it is not a tenable position. He characterizes indirectly evaluative legal theory as an attempt to find a position “intermediate between descriptive jurisprudence and the view of Dworkin and Finnis that jurisprudence requires moral evaluation of the law.”⁵⁸

The argument is brought into better focus by examining Leiter's characterization of a descriptive theory of a Hermeneutic Concept. Leiter and I share the view that all theorists, no matter the subject matter of their theories, must make value judgments of a certain kind and that these value judgments are required simply in virtue of the nature of theoretical accounts; namely, that they attempt to construct cogent and structured explanations that can assist others in understanding as fully as possible the phenomena under consideration. In Evaluation and Legal Theory, I term these kinds of value judgments “purely metatheoretical” value judgments and include simplicity, clarity, elegance, comprehensiveness, and coherence among the virtues that any successful theory attempts to live up to.⁶⁰

Leiter's contention, then, is that the position that I term indirectly evaluative legal theory in fact only requires legal theorists to engage in epistemic or purely metatheoretical value judgments. It is just that, as law is a hermeneutic concept, in order to present any explanatorily adequate account of it, those epistemic or purely metatheoretical values require us to describe how those using the concept understand their own behavior and attitudes in terms of it. However, although hermeneutic concepts such as law demand that theorists describe how those using the concept make sense of themselves in terms of it, in offering those descriptions, the theorist need not himself make evaluative judgments about the beliefs and attitudes held by participants trying to make sense of themselves in terms of the concept.

The only value judgments that the legal theorist must engage in are hence purely metatheoretical or epistemic value judgments concerning the simplicity, comprehensiveness, consilience, and so on, of his or her theory. In the case of a hermeneutic concept, however, in order that his theory exhibit these virtues and adequately explains what the concept is, it is necessary also to describe the beliefs and attitudes of those making sense of themselves in terms of that concept:

The important point in this for Leiter appears to be his claim that the legal theorist is not required to make value judgments about the self-understandings of participants or about their practices of making evaluative judgments about law. Rather, the legal theorist must make evaluative judgments in order that his theory exhibit those epistemic virtues that it ought to in order to be successful, and in the case of a hermeneutic concept, this requires the theorist to describe how those employing the concept understand themselves in terms of it and the evaluative judgments that they make in the course of so doing.

One thing that Leiter considers in making his case is whether this is merely a terminological disagreement—indirectly evaluative legal theory and a descriptive theory of a Hermeneutic Concept being attempts to characterize the same methodological stance under different names. In denying that this is so, Leiter claims that:

Of course, when Hart's descriptivism is mischaracterized—in the way that I regard some of Stephen Perry's remarks as mischaracterizing it—then indirectly evaluative legal theory might appear to be an intermediate position between an implausible interpretation of the descriptive aspirations of jurisprudence and Finnis's and Dworkin's position. However, in my view, Hart's descriptivism, properly understood, is simply an instance of indirectly evaluative legal theory. As my remarks in this section should make clear, I regard this type of legal theory as involving legal theorists in significant evaluative work in constructing and defending their accounts of law. Because “descriptive” has “value-free” connotations for some,⁶⁷

For all this, however, I think that Leiter may perhaps be right to insist that more than terminology is at stake here. This issue turns on whether Leiter's understanding of what is required for an explanatorily adequate descriptive account of the hermeneutic concept of law and what I understand to be required for explanatorily adequate indirectly evaluative legal theory differ. In Evaluation and Legal Theory, I do make a claim that seems directly to contradict Leiter's view, namely that purely metatheoretical evaluative judgments that all theorists must make and that concern the simplicity, coherence, and comprehensiveness, and so on, of their theoretical accounts are not sufficient for explanatorily adequate legal theory.⁶⁹

This in turn means that legal theorists in constructing explanatorily adequate legal theories must do more than attempt to have their theories live up to the purely metatheoretical virtues that all good theories should live up to, because they are further constrained in constructing theoretical accounts of law by the need to do adequate justice to the fact that those who create, administer, and are subject to the law already have views on it and make evaluative judgments about it in conducting their lives. As I put the matter in Evaluation and Legal Theory, in making those judgments about which features of the law are most important or significant to explain, therefore, indirectly evaluative legal theory must “be sufficiently sensitive to, or take adequate account of, what is regarded as important or significant, good or bad about the law, by those whose beliefs, attitudes, behaviour, etc. are under consideration.”⁷⁰

But doesn't all of this just amount to Leiter's point that in the case of a Hermeneutic Concept such as law, epistemic or purely metatheoretical values direct the theorist to attend to how those living under law understand it, and that hence indirectly evaluative legal theory does indeed collapse into what Leiter calls a descriptive account of a hermeneutic concept?

The answer to this turns on the right way to understand Leiter's claim that in constructing a descriptive theory of a hermeneutic concept, the legal theorist need not himself make evaluative judgments about the beliefs, attitudes, and evaluative practices of those he is studying, but need only “attend (descriptively)”⁷¹

As the previous discussion of Stephen Perry's views indicates, indirectly evaluative legal theory is not a kind of market research or dictation exercise wherein the legal theorist passively records wholesale the self-understandings and evaluative judgments of those living under law and then orders and presents them, taking into account epistemic virtues of simplicity, comprehensiveness, and so on. Rather, in making indirectly evaluative judgments of importance and significance and in explaining legal phenomena, the legal theorist himself has to be able to discriminate between and make evaluative judgments about participants' self-understandings in order to pick out which are most relevant in understanding law's important and significant features.

In doing, so, as I state above, he or she is constrained by the hermeneutic aspects of the enterprise to “be sufficiently sensitive to, or take adequate account of”⁷³

As is explained in Evaluation and Legal Theory, the bearing of features of law on questions concerning its moral worth and whether we ought to obey it (or what Waluchow calls their “value-relevance”) is often precisely what makes them important features to be explained. My contention, of course, is that one can know that features of law are relevant to answering morally evaluative questions without yet knowing the answer to those morally evaluative questions. We can thus analyze those important features of the law that are relevant to its moral evaluation before going on to undertake such evaluations.⁷⁴

All this, however, may yet not mark a difference with Leiter's descriptive theory of a hermeneutic concept. Leiter does not speak of the legal theorist passively reproducing participants' self-understandings but rather claims that he or she must “attend to”⁷⁶

If this were the case, however, it would be difficult to see why Leiter would reject the point that the judgments that a legal theorist must make require him or her to evaluate—although not morally evaluate—the practices he or she is studying and the beliefs, attitudes, and evaluations of those subject to law that constitute those practices. Leiter's explicit rejection of this point (“it does not … require that we attend to how the theorist …evaluates those practices”⁷⁸

This section has considered several commentators' views on Hart's remarks in the first section of the “Postscript” concerning descriptive jurisprudence. As I have mentioned at several points, I believe that Hart's methodology is an instance of what I term indirectly evaluative legal theory. As has been also been discussed in this section, however, some theorists appear to characterize Hart's emphasis on the internal point of view in overly passive terms and view the factoring in of the participants' viewpoint in his theory as a mirroring or reproductive exercise. This may be due in part to Hart's own remarks on this issue in the first section of the “Postscript,” briefly outlined in thesis B of Section I above (“The importance and consequences of adopting an internal point of view in jurisprudence”) and in particular may be influenced by the formulation of his position in which he states that: “Description may still be description, even when what is described is an evaluation.”⁷⁹

In interpreting these remarks of Hart's, however, I think it is important once again to bear in mind the polemical nature of the “Postscript” and its aim of distancing Hart's position from that of Ronald Dworkin. Hart wanted to emphasize that it is possible to offer an understanding of law taking into account the internal point of view of those subject to and administering the law without sharing those views or, where those views have a moral content, without taking a stance on their moral correctness. In his desire to distance himself from the position that claims that legal theorists must make morally evaluative judgments that are competitive with those of participants in legal practice (concerning, for example, the moral obligatoriness of law and the conditions under which its claimed authority is justified) Hart may lean too far in the other direction, and as a result some of the formulations he uses may suggest to some that his own legal theory factors in participants' understandings by merely recording them.

As has already been mentioned, however, other of Hart's writings clearly show that he was fully aware that the legal theorist must make evaluative judgments in order to judge which participants' beliefs and attitudes are important and hence cannot merely passively record all such beliefs and attitudes wholesale:

Hart did not change his view on this point in the “Postscript” but merely shifted his emphasis because of his task in that work of distancing his own position from that of Ronald Dworkin. The best evidence of this is to be found in the substantive arguments about the character of law featuring The Concept of Law itself. In arguing in favor of his view of law in that work, Hart does not engage in a mere “lifting” or reproduction of participants' views about the law but rather attempts to evaluate and identify what is significant and important in those self-understandings and evaluative practices of those subject to and administering law.⁸²