The positivist representation of legal validity is difficult to reconcile with the assertion that the law in force as such, whatever its content, deserves our universal respect and loyalty. Even if a valid law is a bad law, we have a certain obligation to obey it simply because it is a law. But how can this be the case if the validity of a law has nothing to do with its content? A final methodological vision that deserves separate treatment both for its influence and sophistication is that of Dworkin (Dworkin 1986). This view assumes that (i) the objective of a first-rate legal theory is existing legal practice, and (ii) such theories succeed to the extent that they provide a constructive, arguable (in Dworkin`s sense) interpretation of that practice. According to a constructive interpretation, the purpose of a first-rate legal theory is not to analyze a concept or reduce legal facts to other more fundamental facts. Rather, the purpose of a legal theory is to reconstruct the behavior and self-understanding of participants in legal practice and to do so in a way that places that practice in its best moral light. Therefore, the better a legal theory corresponds to both the data on how legal practitioners understand the practice in which they operate and normatively justify that practice, the more successful it is (Dworkin 1986; Perry, 1995, pp. 129-31; see also the entry on legal interpretation thinking). However, one question that arises for this position is the extent to which it differs from those discussed above.
If our own metanormative inquiry focuses on legal thought and speech, we seem to be getting closer to conceptual analysis of how jurisprudence should proceed. On the other hand, if the subject matter of the investigation focuses on how legal persons or immovable property fit into reality in general, then the view seems quite close to the naturalistic position that the subject matter of a jurisprudential investigation is a phenomenon of the law itself. Nevertheless, perhaps a particular attraction of the metanormative view is that it can show how the conceptual analysis image and the naturalistic image capture different parts of the larger enterprise of the task in which jurisprudence is engaged. Thus, instead of purporting to replace the other methods discussed above, the metanormative view, if reasonable, would eliminate the fact that there is a privileged starting point for jurisprudential investigations (such as the metaphysics of legal content, the semantic analysis of legal statements or the nature of legal obligations). There are about three categories in which the subjects of philosophy of law fall: analytical jurisprudence, normative jurisprudence, and critical legal theories. Analytical jurisprudence involves an analysis of the nature of the law to understand what distinguishes it from other systems of norms such as ethics. Normative jurisprudence consists of examining normative, evaluative and otherwise prescriptive issues about the law, such as restrictions on liberty, obligations to comply with the law, and the reasons for punishment. Finally, critical legal theories, such as critical legal studies and feminist jurisprudence, challenge more traditional forms of legal philosophy. 17 Thus, Bobbio himself supposes, when concluding his essay, to reorient the opposition between the legal philosophy of philosophers and jurists towards a final philosophical choice (“a difference between two types of philosophy”) between monism vs pluralism and rationalism vs. empiricism (Bobbio 1990a:98), jurists being more inclined to the second option within these dichotomies, that is, as I said, to give priority to analysis rather than synthesis.
It should be noted, however, that for Bobbio, this does not necessarily imply a strong analytical fragmentation of the philosophy of law in the specialized sub-disciplines he distinguishes (theory of law, theory of jurisprudence and theory of justice). For in the last paragraph of his book, he asserts that a “unified discipline” would be the best way for the philosophy of law to play its practical and critical role (a role that is close to “critical totalization”): “From a didactic point of view, the task of the philosophy of law is to pierce what keeps traditional legal disciplines in the artificial reservoir of a positive system. This objective can be better achieved by dismantling the dam on several sides at the same time” (Bobbio 1990a: 99). Unlike all forms of naturalism, there is legal positivism, which consists of roughly three theoretical obligations: (i) the thesis of the social fact, (ii) the thesis of conventionality and (iii) the thesis of separability. The social fact thesis (also known as the pedigree thesis) asserts that it is a necessary truth that legal validity is ultimately a function of certain types of social facts. The conventionality thesis emphasizes the conventional nature of the law and asserts that the social facts that lead to legal validity are authoritative on the basis of a kind of social convention. The thesis of separability, at the most general level, simply denies the thesis of overlapping naturalism; according to the separability thesis, there is no conceptual overlap between the terms law and morality. It is worth noting the relationships between legal realism, formalism and positivism. While it is often assumed that formalism goes hand in hand with positivism, it turns out that legal realism not only coincides with positivism, but also presupposes the truth of the three fundamental theses of positivism. In fact, the realist recognizes that the law is essentially the product of official activity, but believes that judicial legislation takes place more often than is generally assumed. But the idea that the law is essentially the product of official activity presupposes the truth of the conventionality of positivism, social facts and theses of separability. Although the realists` concerns are empirical (that is, they attempt to identify the psychological and sociological factors that influence judicial decision-making), their implicit conceptual obligations were decidedly positivist.
A third way in which legal theory could be evaluative in principle, although undisputed, is proposed by the prescriptive view discussed in section 2.1.3. If the task of a first-rate legal theory is to identify the concept of law that we should apply most desirablely, then there is a sense in which the resulting legal theory would of course be evaluative. Nevertheless, as we have seen above, prescriptive theories aim to answer a different question from that of theories of conceptual analysis, reductive or interpretative categories. For the debate on whether legal theory is evaluative, it is therefore not important whether legal theory could be evaluative in principle, but whether this is inevitable or necessarily the case. Another type of concern that arises for reductionist views (and perhaps naturalistic views) is that they may pose particular problems for positivism. In particular, if the law is a normative phenomenon that leads to legal obligations, one might fear that it would not be possible to reduce the legal facts (i.e. the facts about our legal obligations) to a set of purely non-normative facts, for example social. One would think that this would unacceptably exceed the well-known (though not undisputed) gap that should be achieved. (For a discussion of this kind of concern about positivism, see Shapiro 2011, 47–49.) One could try to answer this argument in two ways. A natural, though ultimately unsuccessful, answer is that interpreting something as the best example of its kind that it can be doesn`t require taking that path to be good.
To say that Bernie Madoff was (for a while) the best crook in history doesn`t mean you approve of cheating. As a result, the assertion that the law must be this or that to be a good authority of this type does not commit to thick valuation claims. Nevertheless, there is a deeper or more interesting meaning in which Dworkin`s view makes legal theory inherently evaluative. For Dworkin, legal theory is an interpretative enterprise, and a constructive interpretation of legal practice requires interpreting it in its best moral light. In order to offer an interpretation of legal practice, it would therefore be necessary to take a position on which of the available interpretations of that practice is morally better than the others. Of course, this does not necessarily require the assertion that the law is good in terms of particular interpretation – period.