ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 567-569.

EVALUATION AND LEGAL THEORY by Julie Dickson. Oxford: Hart Publishing, 2001. 148 pp. Cloth $51.00. ISBN: 1-84113-184-9. Paper $28.00. ISBN: 1-84113-081-8.

Reviewed by Kenneth Einar Himma, Department of Philosophy, University of Washington.

In the last five years, conceptual legal theorists have begun to focus considerable energy on the issue of what sort of methodology is appropriate to the inquiry that H. L. A. Hart undertook in THE CONCEPT OF LAW. For example, last summer saw the release of Jules Coleman's much anticipated THE PRACTICE OF PRINCIPLE, a work that will likely set the terms of the discussion for the foreseeable future; in this seminal work, Coleman defends a pragmatist methodology for conceptual analysis. This, of course, stands Coleman against Ronald Dworkin and Stephen Perry, who believe that conceptual legal theory requires morally normative analysis, but it also stands him against Brian Leiter, who extends Quinean ideas to the realm of legal theory. On Leiter's view, conceptual analysis of the sort defended by Coleman is untenable. The only appropriate methodology for legal theory is one that employs the empirical methods and principles of the sciences.

EVALUATION AND LEGAL THEORY represents Julie Dickson's welcome contribution to this lively debate. Dickson, a talented young legal theorist at University College London, argues that successful theorizing about the law doesn't require recourse to normative moral claims, but it does require what she calls indirectly evaluative analysis. Thus, Dickson challenges the classical view that legal theory is purely descriptive; on her view, successful theorizing about the concept of law can, so to speak, be morality-free, but it can't be value-free.

To determine "the nature of theorizing about law," one must have a sense for what the substantive concerns of such theorizing are. Appropriately, Dickson begins in Chapter 1 with an analysis of what it is that conceptual theories purport to explain. As Dickson puts the matter, "analytical jurisprudence is concerned with explaining the nature of law by attempting to isolate and explain those features which make law into what it is" (p. 17). An adequate explanation of the nature of law will consist, at least in part, of claims that purport to be necessarily true because the supposition that law has a conceptual nature entails that law has certain "essential" properties, i.e., properties that are common to all and only systems of law.

In Chapter 2, Dickson considers John Finnis's view that it is not possible to understand the nature of law without evaluating its moral desirability. Dickson acknowledges that legal theorists must make at least two kinds of evaluative judgments. First, at the very least, legal theorizing is subject to meta-theoretical values such as simplicity, coherence, and clarity; thus, legal theorists must evaluate their theories against such meta-theoretical norms. Second, Dickson follows Raz in arguing that since law is a concept that "we use to understand our social world" p. 43), legal theorists must make evaluative judgments about what the

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concept of law centrally contributes to our social understanding of ourselves-and this requires theorists to identify what is generally thought to be significant about law and its institutions.

However, in Chapter 3 Dickson argues, contra Finnis, that successful legal theory requires no more than these sorts of judgment, which do not involve evaluating the moral desirability (or legitimacy) of the law. To this end, Dickson distinguishes directly evaluative claims from indirectly evaluative claims: whereas directly evaluative claims assert that some entity or phenomenon is good, indirectly evaluative claims assert only that it is important in some sense. As claims about what is merely "important," indirectly evaluative claims do not entail any judgments about goodness-moral or otherwise-though, admittedly, some feature may be "important" because it is good. For example, Raz's view that law claims legitimate authority merely "pick[s] out the existence of the law's claim as important, [but does] not
directly evaluat[e] its content" (p. 55). Thus, Dickson concludes, indirectly evaluative theories of law don't require any moral evaluation of the law or its institutions.

In Chapter 4, Dickson argues that even if moral evaluation is required for a successful evaluation of the law, it doesn't follow that a successful legal theory must conclude that law is morally justified. Dickson takes Finnis to believe that it is a conceptual truth that law is morally justified and argues that merely adopting a morally evaluative posture towards law doesn't guarantee that the evaluation will be positive. Thus, she points out that a critical race theorist could accept the claim that one must morally evaluate law to understand the concept of law but still reach the conclusion that law typically (or even conceptually) "operates in a way which results in great injustice to persons of colour" (p. 73).

In Chapter 5, Dickson considers the issue of whether a legal theory can be justified by reference to the beneficial moral consequences that would occur as a result of accepting it. Hart sometimes seems to defend positivism on exactly such grounds, arguing that the conceptual separation of law and morality facilitates intellectual clarity and hence moral criticism of the law. Dickson responds that such arguments beg the question: "the alleged promotion of clearer thinking about the law which results in an increased ability to subject it to rational scrutiny is a consequence which ensues IF [positivism] is true, and, as such, cannot itself be used to provide
argumentative support for its truth" (pp. 88-89).

In what is probably the finest chapter of the book, Chapter 6, Dickson considers Ronald Dworkin's view that even the conceptual nature of law can't be understood without engaging in moral and political evaluation because law is an interpretative practice that must be shown in its morally best light. Dickson rightly regards the Dworkinian view as the strongest challenge to her view that successful conceptual theorizing is indirectly evaluative and doesn't require any sort of normative moral analysis. If Dworkin is correct, then the application of Dickson's methodological views to legal theory will necessarily result in an inadequate understanding of law.

Dickson's argument against Dworkin has a number of prongs. First, she argues that, while Dworkin believes otherwise, his claim that the essential function of law is to morally justify coercion is highly controversial. Indeed, many positivists, including Hart, Raz, and Coleman, reject

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this view. Second, she argues that, contra Dworkin, there is nothing in positivism's core commitments that is grounded in a commitment to this conception of law's function. Raz, for example, infers the claim that the existence and content of law can always be determined without recourse to moral argument from the claim that it is a salient feature of law that it purports to issue directives that preempt the subjects' judgments about what ought to be done. Also, as Dickson points out, although this latter judgment about what law purports to do is based on an evaluation of what is important about law, such an evaluation need not involve any sort of moral analysis.

In reading the book, one should keep in mind the modesty of Dickson's theoretical objectives. She does not claim to address all of the major issues that arise in connection with methodology. Rather she is concerned to explain and illuminate one particular approach to legal theory, namely, Raz's indirectly evaluative approach. Accordingly, it is important that the reader grasp the individual chapters in the light of this more general project.

Even so, there is room to quibble. More explanation is needed, for example, in locating the sort of value analysis that is involved in indirectly evaluative theorizing. Dickson explicitly defines only two sources of values, meta-theoretical values and moral values, but argues that indirectly evaluative theorizing involves recourse to a different kind of value, one that focuses on what is important.

The issue this raises, however, is what kind of value is "importance." One can, I think, plausibly argue that the value of importance is a meta-theoretical value that applies to all theories. For example, in deciding how to characterize water, scientists had to decide what was really significant about water: Was it a precise chemical structure or a set of properties (e.g., transparency, tastelessness, odorlessness, etc.)? The reason this was an issue is that it is nomologically possible for a substance that has a different chemical composition than H2O to have all of the relevant properties. Accordingly, scientists had to make a decision about what was
important or significant about water.

However, if all theories require reference to such values, then it is hard to distinguish the Razian view from other positivist views. In particular, Coleman acknowledges that good legal theorizing satisfies many of the meta-theoretical norms Dickson identifies. Likewise, Leiter's view that legal theorists ought to adopt the methodology of the sciences in coming to understand law even at the conceptual level would be another example of an indirectly evaluative view. However, Coleman and Leiter would likely regard themselves as carving out views that are distinct from (and, indeed, opposed to) Raz's view.

Still, it is important not to make too much of these minor complaints-and to realize that they are simply asking for more of Dickson's consistently fine analysis. Though the legal academy oddly tends to neglect the concerns of conceptual jurisprudence, EVALUATION AND LEGAL THEORY explores issues that are every bit as foundational to the study of law as set theory is to the study of mathematics. Also, Dickson does it with all the virtues that have been exemplified by other efforts in the area: clarity, depth, intellectual rigor, creativity, and subtlety. As is true of these other efforts, this book deserves a careful reading, not only from theorists in the field, but also from other legal academicians.

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Copyright 2001 by the author, Kenneth Einar Himma.