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Jeff Pojanowski, Reevaluating Legal Theory 130 Yale L. J. 1458 (2021).

In Reevaluating Legal Theory, Jeff Pojanowski addresses a central question of jurisprudence, that of whether a careful theory of what the law is, involves value judgments concerning what the law ought to be. (P. 1460.) In various forms, this question has been asked by philosophers from the beginning of the Western intellectual tradition. Thus, for example, Aquinas considers whether a law that is judged to be unjust (out of reasonable order) can continue to bind in conscience due to the normal authority of legal commands (Summa Theologiae I-II.95.2c; 92.1 ad 4; 96.4c). His answer is subtle and complex. Pojanowski’s article is similarly subtle and complex, and makes many useful points, though as indicated below, some of these could be taken further in future work.

Pojanowski’s article begins with a brief survey of recent responses to the central question by Oxonian philosophers, but his interest is primarily in the work of Julie Dickson. Dickson argued that the key to the controversy about the nature of law lies not in contrasting evaluation and description (i.e. that laws can be described without any evaluation), but in distinguishing types of evaluation: some evaluation (that centring upon the participants in a legal system in evaluating what is significant or important to them) is necessary, as distinct from moral evaluation, which is not. Pojanowski argues that such debates about the ‘dividing line between jurisprudence and normative philosophy’ (P. 1464: but does this not capitulate already to the positivist position?) actually turn upon broader moral considerations of ‘what is good for persons’ and ‘competing ways of thinking about society’, thus revealing something of our moral and metaphysical commitments. (Id.)

Pojanowski picks up Dickson’s identification of three types of evaluation that are necessary parts of jurisprudential theorising that are not morally evaluative: importance, significance, and illumination. (P. 1469.) The second part of the article considers the extent to which these values remain non-moral under scrutiny, and presents a general survey of Dickson’s book Evaluation and Legal Theory (Hart, 2001). It focuses upon Dickson’s claim to understand the law through the perspective of its participants. Perhaps the most obvious route for a theorist to take in this regard is some form of naturalism. But Pojanowski argues that while naturalised jurisprudence may offer a concept of law that is essentialist and value-neutral, this concept is evidently not the one Dickson has in mind when attempting to comprehend law from the perspective of the participants. (P. 1476.) This is because, inter alia, the naturalist method cannot be successfully squared with the desire to explain the nature of law in terms of the attitudes and beliefs participants have, not those of the scientist. (P. 1478.) Likewise, Dickson’s approach is incompatible with a hermeneutic explanation of law, since it seeks to remain morally detached and agnostic about the group’s understanding of law. (Pp. 1476-78.) These sections of the article are fairly brief, but they establish that Dickson’s theory has less room to manoeuvre than might be supposed. For they seek to establish that the theory cannot (a) describe essential features of law, (b) depend upon the understanding of the participants, and (c) remain morally neutral about the practice. (P. 1464.) More consideration of Finnis’s and of Voegelin’s work might have strengthened and broadened the article’s thesis, but an exploration of this avenue is beyond the scope of the present review.

The third part of the article comprises an argument for a teleological approach to jurisprudence that attempts to do (a) and (b), above, but denies (c). (P. 1479.) Its premise is that Dickson is correct to shun hermeneutic and naturalised approaches, but that it can only do so by rejecting moral neutrality. It begins with an argument that hermeneutical and interpretative approaches threaten to collapse into relativism (Pp. 1479-82) (a story about Dworkin’s theory, considered further on, might have been a useful coda to this discussion). It then explores flaws in these theoretical approaches identified by Charles Taylor, Alasdair MacIntyre and Stephen Perry (Pp. 1482-86), particularly utilizing the idea of the central case (or focal meaning in Finnis’s terms) as a means of describing both (i) the usual, normal, everyday, central instances of social practices and (ii) the non-standard, diminished, distorted, problematic, instances of those same practices. Pojanowski concludes by arguing that evaluative legal theorists should consider adopting a framework of ‘critical realism.’ (Pp. 1487-88.) Such a theory (which distinguishes the real from the observable, and hence too leads to relativism) is in broad terms ontological as opposed to empirical: a move that, for example, Finnis believes is regrettable for the ontological can only be secondary to empirical explanation. Again, the article would have further benefitted from a fuller consideration of these ideas.

But in fact, there is a shorter way to the article’s conclusions. For not only can we infer (1) legal conceptions and practices from (2) the attitudes and forms of characteristic behavior of the participants, but we can also see these attitudes and characteristic behaviors as deriving from (3) the basic needs and reasonable wants of the participants in society, and we gather these needs and wants from (4) a sound understanding of the demands and opportunities of sound practical reasoning. Teleology, which might form a fifth claim (5) that the ends of sound practical reasoning are in some way proper to the human being, plays no explanatory role in (1)-(4), which may strengthen the argument of the article, not because (5) is false (it is not), but because general attitudes to teleology among the positivist writers is so unfavorable that it would provide an occasion for those writers to dismiss the article’s argument on that basis alone.

This exceedingly brief survey of Pojanowski’s article leaves out much that is of value, and which could easily form a starting point for thinking about the theories it discusses, and the general debates in which it is involved. In one way, the article is a useful review of Dickson’s book; in another way, it goes beyond the potentially narrow debates to which the book gave rise, to touch lightly upon some of the most fundamental questions of human existence. Re-evaluating Legal Theory is an engaging and lively read. I would have liked to see some further development of the teleological argument in the article’s final section, a development I hope to see in the author’s future work. But in any case there is a multitude of ideas to be mulled over here.

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Cite as: Sean Coyle, Jurisprudence Reevaluated, JOTWELL (March 29, 2022) (reviewing Jeff Pojanowski, Reevaluating Legal Theory 130 Yale L. J. 1458 (2021)),