Legal theory and value judgments

Law and Philosophy

Volumn 16, Issue 4, 1997, Pages 447-477

  Villa, Vittorio ^a  

^a Dipto Studi su 'Polit Diritto S   (Italy)

Author keywords

Constructivism; Descriptivism value freedom principle; Legal knowledge; Value judgments

Indexed keywords

EID: 0031488076     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3504984     Document Type: Article

References (77)

1. In my opinion the notion of legal positivism has a much broader scope than what is currently assumed, because it includes all the conceptions that presuppose a certain concept of positive law, a concept according to which: i) law is always and integrally an human product; ii) this product is radically contingent, in the sense that its connection with morals, which could even be considered as 'necessary' for certain legal systems (this is the case of our current western legal systems) regards values that are always context-bound, that is, values which can never be objectively justified. From this point of view, there is a mutually exclusive opposition between natural law and legal positivism (opposition which amounts to an opposition between ethical objectivism and ethical relativism): both could be defined putting the sign of negation before the opposite one (positivist or naturalist). It is important to remark that, according to this definition, even legal realism (and Dworkin's theory) is a form of positivism. For this kind of definition of legal positivism, see my book Conoscenza giuridica e concetto di diritto positivo. Lezioni di filosofia del diritto (Torino: Giappichelli, 1993), pp. 105-108.
2. A classical formulation of this thesis is given by Kelsen: according to Kelsen, legal science's function does not consist in attributing values or in expressing evaluations, but rather, in a description of its own object, description which is performed leaving values out of consideration. See H. Kelsen, Reine Rechtslehre, Italian. transl. (Torino: Einaudi, 1975 (3rd edn)), p. 84. According to another leading figure in legal positivism, Hart, the separation, internal to the domain of discourses referring to positive law, between conceptual analyses and evaluations, represents one of the five meanings usually given to the notion of legal positivism. See H.L.A. Hart, 'Positivism and the Separation of Law and Morals', Harvard Law Review I (1958), pp. 593 ff. A very influential statement of this thesis, in Italian analytical positivism, is that given by Bobbio. According to Bobbio, compliance with the value-freedom principle constitutes one of legal positivism's three aspects. See N. Bobbio, Giusnaturalismo e positivismo giuridico (Milano: Ed. di Comunitá, 1972), pp. 105-107.
3. A classical formulation of this thesis is given by Kelsen: according to Kelsen, legal science's function does not consist in attributing values or in expressing evaluations, but rather, in a description of its own object, description which is performed leaving values out of consideration. See H. Kelsen, Reine Rechtslehre, Italian. transl. (Torino: Einaudi, 1975 (3rd edn)), p. 84. According to another leading figure in legal positivism, Hart, the separation, internal to the domain of discourses referring to positive law, between conceptual analyses and evaluations, represents one of the five meanings usually given to the notion of legal positivism. See H.L.A. Hart, 'Positivism and the Separation of Law and Morals', Harvard Law Review I (1958), pp. 593 ff. A very influential statement of this thesis, in Italian analytical positivism, is that given by Bobbio. According to Bobbio, compliance with the value-freedom principle constitutes one of legal positivism's three aspects. See N. Bobbio, Giusnaturalismo e positivismo giuridico (Milano: Ed. di Comunitá, 1972), pp. 105-107.
4. A classical formulation of this thesis is given by Kelsen: according to Kelsen, legal science's function does not consist in attributing values or in expressing evaluations, but rather, in a description of its own object, description which is performed leaving values out of consideration. See H. Kelsen, Reine Rechtslehre, Italian. transl. (Torino: Einaudi, 1975 (3rd edn)), p. 84. According to another leading figure in legal positivism, Hart, the separation, internal to the domain of discourses referring to positive law, between conceptual analyses and evaluations, represents one of the five meanings usually given to the notion of legal positivism. See H.L.A. Hart, 'Positivism and the Separation of Law and Morals', Harvard Law Review I (1958), pp. 593 ff. A very influential statement of this thesis, in Italian analytical positivism, is that given by Bobbio. According to Bobbio, compliance with the value-freedom principle constitutes one of legal positivism's three aspects. See N. Bobbio, Giusnaturalismo e positivismo giuridico (Milano: Ed. di Comunitá, 1972), pp. 105-107.
5. I have studied the problem of the scientific character of legal theorists' and jurists' discourses in my book Teorie delle scienze naturali e teorie della scienza giuridica. Modelli e analogie (Milano: Giuffré, 1984).
6. I borrow this expression from K. Füsser, 'Farewell to 'Legal Positivism': the Separation Thesis Unravelling', in R.P. George (ed.) The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), pp. 119-62.
7. See on this point Celano, who thinks that to accept the 'great division' logically implies refusing any place for value-judgments inside social sciences. See B. Celano, Dialettica della giustificazione pratica. Saggio sulla legge di Hume (Torino: Giappichelli, 1994), p. 49.
8. This kind of conviction is expressed very clearly by Ross, when he says that the 'descriptive terminology' that is used in the doctrinal study of law "has nothing to do with moral approval or condemnation" of a given legal system's rules. See A. Ross, On Law and Justice (London: Stevens & Sons Limited, 1958), pp. 31-32.
9. N. Bobbio, Giusnaturalismo e positivismo giuridico (supra n. 2), pp. 125-26.
10. This distinction is drawn by R. Guastini, 'Produzione di norme a mezzo di norme', in Etica e diritto, ed. by L. Gianformaggio and E. Lecaldano (Bari: Laterza, 1986), pp. 175, 186-87. have criticized this distinction in my 'Legal Analogy Between Interpretive Arguments and Productive Arguments', in Legal Knowledge and Analogy, ed. by P. Nerhot (Dordrecht: Kluwer, 1991), pp. 165-82.
11. This distinction is drawn by R. Guastini, 'Produzione di norme a mezzo di norme', in Etica e diritto, ed. by L. Gianformaggio and E. Lecaldano (Bari: Laterza, 1986), pp. 175, 186-87. have criticized this distinction in my 'Legal Analogy Between Interpretive Arguments and Productive Arguments', in Legal Knowledge and Analogy, ed. by P. Nerhot (Dordrecht: Kluwer, 1991), pp. 165-82.
12. Dworkin, anyway, points outs very clearly the need for sharply distinguishing 'ethical claims' and 'mere reports of taste' in legal domain. See R. Dworkin, Law's Empire (London: Fontana Press, 1986), p. 81. For a much broader distinction, epistemologically grounded, between objective and subjective value-judgments, see H. Putnam, Reason, Truth and History (Cambridge Mass.: Cambridge University Press, 1981), p. 156.
13. Dworkin, anyway, points outs very clearly the need for sharply distinguishing 'ethical claims' and 'mere reports of taste' in legal domain. See R. Dworkin, Law's Empire (London: Fontana Press, 1986), p. 81. For a much broader distinction, epistemologically grounded, between objective and subjective value-judgments, see H. Putnam, Reason, Truth and History (Cambridge Mass.: Cambridge University Press, 1981), p. 156.
14. See again my book Conoscenza giuridica e concetto di diritto positivo (supra n. 1), pp. 173-85.
15. Putnam exposes and criticizes this epistemological conception in many places; but see particularly H. Putnam, Reason, Truth and History (supra n. 9), pp. 49-50.
16. In recent years, for instance, there has developed a very interesting debate on which is the most feasible way to work out a concept of objectivity for legal practices that could represent a viable alternative to both strong objectivist positions, too much compromised with metaphysical realism, and subjectivist positions, which share relativistic or conventionalist premises. Among these attempts, see particularly J. Coleman & B. Leiter, 'Determinacy, Objectivity, and Authority', in Law and Interpretation: Essays in Legal Philosophy, ed. by A. Marmor (Oxford: Clarendon Press, 1995), pp. 203-78, and N. Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996).
17. In recent years, for instance, there has developed a very interesting debate on which is the most feasible way to work out a concept of objectivity for legal practices that could represent a viable alternative to both strong objectivist positions, too much compromised with metaphysical realism, and subjectivist positions, which share relativistic or conventionalist premises. Among these attempts, see particularly J. Coleman & B. Leiter, 'Determinacy, Objectivity, and Authority', in Law and Interpretation: Essays in Legal Philosophy, ed. by A. Marmor (Oxford: Clarendon Press, 1995), pp. 203-78, and N. Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996).
18. I can only make reference here to my recent book Conoscenza giuridica e concetto di diritto positivo (supra n. 1) and to my new book Costruttivismo e teorie del diritto (Torino: Giappichelli), which will be published later in this year.
19. See footnote 1 above.
20. E. Nagel, The Structure of Science (New York: Harcourt, Brace & World, 1961), p. 494.
21. I borrow this configuration of characterizing value-judgments from D. Zolo, 'Theoretical Language, Evaluations and Prescriptions: A Post-Empiricist Approach', in Reason in Law, ed. by C. Faralli and E. Pattaro, Vol. II (Milano: Giuffré, 1988), pp. 376-77.
22. I owe this characterization to B. Celano, Dialettica della giustificazione pratica (supra n. 5), pp. 359-63.
23. For the ambiguity of this thesis, see H.L.A. Hart, 'Positivism and the Separation Between Law and Morals' (supra n. 3), pp. 593 ff. See also P. Greenawalt, 'Too Thin and Too Rich: Distinguishing Features of Legal Positivism', in The Autonomy of Law: Essays on Legal Positivism (supra n. 4), pp. 11-12.
24. For the ambiguity of this thesis, see H.L.A. Hart, 'Positivism and the Separation Between Law and Morals' (supra n. 3), pp. 593 ff. See also P. Greenawalt, 'Too Thin and Too Rich: Distinguishing Features of Legal Positivism', in The Autonomy of Law: Essays on Legal Positivism (supra n. 4), pp. 11-12.
25. K. Füsser, 'Farewell to Legal Positivism' in The Autonomy of Law: Essays on Legal Positivism (supra n. 4), p. 121.
26. See, for instance, J. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 33-34
27. This seems to me the opinion of F. Viola, 'Ragion pratica e diritto naturale: una difesa analitica del giusnaturalismo', in Ragion pratica 1 (1993): 61-81.
28. See, for instance, the ideas exposed by N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981), pp. 160-61, and 'Natural Law and the Separation of Law and Morals', in Natural Law Theory: Contemporary Essays, ed. by R.P. George (Oxford: Clarendon Press, 1992), pp. 129-31 ; and by J. Raz, Ethics in the Public Domain. Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), p. 211.
29. See, for instance, the ideas exposed by N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981), pp. 160-61, and 'Natural Law and the Separation of Law and Morals', in Natural Law Theory: Contemporary Essays, ed. by R.P. George (Oxford: Clarendon Press, 1992), pp. 129-31 ; and by J. Raz, Ethics in the Public Domain. Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), p. 211.
30. See, for instance, the ideas exposed by N. MacCormick, H.L.A. Hart (London: Edward Arnold, 1981), pp. 160-61, and 'Natural Law and the Separation of Law and Morals', in Natural Law Theory: Contemporary Essays, ed. by R.P. George (Oxford: Clarendon Press, 1992), pp. 129-31 ; and by J. Raz, Ethics in the Public Domain. Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), p. 211.
31. See M. Jori, Il giuspositivismo analitico italiano prima e dopo la crisi (Milano: Giuffré, 1987), p. 48.
32. W. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994), p. 97.
33. This situation is described very brilliantly by L. Ferrajoli, Diritto e ragione. Teoria del garantismo penale (Bari: Laterza, 1979), pp. 349-52.
34. This is one of the main theses of F. Viola, in his book Il diritto come pratica sociale (Torino: Giappichelli, 1990).
35. J. Raz, 'Intention in Interpretation', in The Autonomy of Law (supra n. 17), pp. 260-61.
36. Ibid., p. 261.
37. J. Raz, Ethics in the Public Domain (supra n. 21), p. 193.
38. Ibid., p. 219.
39. Ibid., p. 221.
40. W. Waluchow, Inclusive Legal Positivism (supra n. 23).
41. Ibid., p. 22.
42. Ibid., p. 23. A similar position is expressed by A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992), pp. 55-57.
43. Ibid., p. 23. A similar position is expressed by A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992), pp. 55-57.
44. Ibid., pp. 25-6, 105-06.
45. Ibid., pp. 144-45
46. Ibid.
47. N. MacCormick, The Ideal and the Actual of Law and Society', in J. Tasioulas (ed.) Law, Values and Social Practices (Aldershot: Dartmouth Publishing Co, 1997), pp. 15-37, Section iv.
48. Ibid.
49. This way of handling the matter is clearer in a previous paper, in which he explicitly speaks of a distinction between 'description' and 'criticism' of positive law. See N. MacCormick, 'Taking the "Rights Thesis" Seriously', in N. MacCormick, Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), p. 140.
50. N. MacCormick, 'Natural Law and the Separation Between Law and Morals', in Natural Law Theory, ed. by R.P. George (Oxford: Clarendon Press, 1992), p. 113.
51. N. MacCormick, 'The Ideal and The Actual of Law and Society' (supra n. 37).
52. Ibid.
53. T. Perry, 'Interpretation and Methodology in Legal Theory', in Law and Interpretation. Essays in Legal Philosophy, ed. by A. Marmor (Oxford: Clarendon Press, 1995), pp. 122-23.
54. Ibid., p. 132.
55. F. Schauer, 'Positivism as Pariah', in The Autonomy of Law. Essays on Legal Positivism (supra n. 4), p. 33.
56. For an exposition and a criticism of this image, and for the use of this metaphor in analysing it, see the already classical book of R. Rorty, Philosophy and the Mirror of Nature (Oxford: Blackwell, 1980).
57. H. Putnam, Realism with a Human Face, ed. and intro. by J. Conant (Cambridge, Mass.: Harvard University Press, 1990), p. 150. A similar position, which tracks down the sources of 'facts/values' dichotomy in the mistaken alternative between 'strong cognitivism' in epistemology and 'non cognitivism' about values, is stressed by J. McDowell, 'Non-Cognitivism and Rule Following', in Wittgenstein: To Follow a Rule, ed. by J. Holtzmann and C. Leich (London: Routledge & Kegan, 1981), pp. 141-42. For an analysis which tries to apply these ideas in the legal domain, see my 'Normative Coherence and Epistemological Presuppositions of Justification', in Law, Interpretation and Reality: Essays in Epistemology, Hermeneutics and Jurisprudence, ed. P. Nerhot (Dordrecht: Kluwer, 1990), pp. 439-42.
58. H. Putnam, Realism with a Human Face, ed. and intro. by J. Conant (Cambridge, Mass.: Harvard University Press, 1990), p. 150. A similar position, which tracks down the sources of 'facts/values' dichotomy in the mistaken alternative between 'strong cognitivism' in epistemology and 'non cognitivism' about values, is stressed by J. McDowell, 'Non-Cognitivism and Rule Following', in Wittgenstein: To Follow a Rule, ed. by J. Holtzmann and C. Leich (London: Routledge & Kegan, 1981), pp. 141-42. For an analysis which tries to apply these ideas in the legal domain, see my 'Normative Coherence and Epistemological Presuppositions of Justification', in Law, Interpretation and Reality: Essays in Epistemology, Hermeneutics and Jurisprudence, ed. P. Nerhot (Dordrecht: Kluwer, 1990), pp. 439-42.
59. H. Putnam, Realism with a Human Face, ed. and intro. by J. Conant (Cambridge, Mass.: Harvard University Press, 1990), p. 150. A similar position, which tracks down the sources of 'facts/values' dichotomy in the mistaken alternative between 'strong cognitivism' in epistemology and 'non cognitivism' about values, is stressed by J. McDowell, 'Non-Cognitivism and Rule Following', in Wittgenstein: To Follow a Rule, ed. by J. Holtzmann and C. Leich (London: Routledge & Kegan, 1981), pp. 141-42. For an analysis which tries to apply these ideas in the legal domain, see my 'Normative Coherence and Epistemological Presuppositions of Justification', in Law, Interpretation and Reality: Essays in Epistemology, Hermeneutics and Jurisprudence, ed. P. Nerhot (Dordrecht: Kluwer, 1990), pp. 439-42.
60. See again my book Conoscenza giuridica e concetto di diritto positivo (supra n. 1), pp. 187-228, and my more recent essay 'La science juridique entre descriptivisme et constructivisme', in Théorie du droit et science, ed. by P. Amselek (Paris: PUF, 1994), pp. 281-91.
61. See again my book Conoscenza giuridica e concetto di diritto positivo (supra n. 1), pp. 187-228, and my more recent essay 'La science juridique entre descriptivisme et constructivisme', in Théorie du droit et science, ed. by P. Amselek (Paris: PUF, 1994), pp. 281-91.
62. Good examples of the kind of constructivism that I defend here can be considered, among others, the works of Putnam (see, for instance, H. Putnam, The Many Faces of Realism (La Salle, Illinois: Open Court, 1987)), Goodman (see N. Goodman, Ways of Worldmaking (Indianapolis & Cambridge: Hackett, 1978)), Hesse (M. Hesse, Revolutions and Reconstructions in the Philosophy of Science (Brighton: Harvester Press, 1980)), and Knorr Cetina (K. D. Knorr Cetina, The Manufacture of Knowledge (Oxford: Pergamon Press, 1981)).
63. Good examples of the kind of constructivism that I defend here can be considered, among others, the works of Putnam (see, for instance, H. Putnam, The Many Faces of Realism (La Salle, Illinois: Open Court, 1987)), Goodman (see N. Goodman, Ways of Worldmaking (Indianapolis & Cambridge: Hackett, 1978)), Hesse (M. Hesse, Revolutions and Reconstructions in the Philosophy of Science (Brighton: Harvester Press, 1980)), and Knorr Cetina (K. D. Knorr Cetina, The Manufacture of Knowledge (Oxford: Pergamon Press, 1981)).
64. Good examples of the kind of constructivism that I defend here can be considered, among others, the works of Putnam (see, for instance, H. Putnam, The Many Faces of Realism (La Salle, Illinois: Open Court, 1987)), Goodman (see N. Goodman, Ways of Worldmaking (Indianapolis & Cambridge: Hackett, 1978)), Hesse (M. Hesse, Revolutions and Reconstructions in the Philosophy of Science (Brighton: Harvester Press, 1980)), and Knorr Cetina (K. D. Knorr Cetina, The Manufacture of Knowledge (Oxford: Pergamon Press, 1981)).
65. Good examples of the kind of constructivism that I defend here can be considered, among others, the works of Putnam (see, for instance, H. Putnam, The Many Faces of Realism (La Salle, Illinois: Open Court, 1987)), Goodman (see N. Goodman, Ways of Worldmaking (Indianapolis & Cambridge: Hackett, 1978)), Hesse (M. Hesse, Revolutions and Reconstructions in the Philosophy of Science (Brighton: Harvester Press, 1980)), and Knorr Cetina (K. D. Knorr Cetina, The Manufacture of Knowledge (Oxford: Pergamon Press, 1981)).
66. Here it is important to mention the seminal anthropological work of the philosopher of language Whorf (see now B.L. Whorf, Language, Thought and Reality: Selected Writings of Benjamin Lee Whorf, ed. by J.B. Carroll (Cambridge, Mass.: MIT Press, 1993)).
67. See H. Putnam, Reason, Truth and History (supra n. 9), p. 231. See also, in a similar vein, N. Goodman, Ways of Worldmaking (supra n. 49), p. 17.
68. See H. Putnam, Reason, Truth and History (supra n. 9), p. 231. See also, in a similar vein, N. Goodman, Ways of Worldmaking (supra n. 49), p. 17.
69. One of the most classical versions of this thesis is offered by Quine. See, for instance, W.V.O. Quine, 'On the Reasons for Indeterminacy of Translation', The Journal of Philosophy 61 (1970): 179.
70. See, for this suggestion, at a general epistemological level, M. Hesse, Revolutions and Reconstructions (supra n. 49), pp. 133 ff., 188 ff., 193 ff.; and, with specific reference to human sciences, D. Thomas, Naturalism and Social Science: A Post-Empiricist Philosophy of Social Science (Cambridge: Cambridge Univer- sity Press, 1979), pp. 126-27.
71. See, for this suggestion, at a general epistemological level, M. Hesse, Revolutions and Reconstructions (supra n. 49), pp. 133 ff., 188 ff., 193 ff.; and, with specific reference to human sciences, D. Thomas, Naturalism and Social Science: A Post-Empiricist Philosophy of Social Science (Cambridge: Cambridge Univer-sity Press, 1979), pp. 126-27.
72. Kuhn is one of the authors who look with more care at this kind of value-judgments: see T.S. Kuhn, The Essential Tension: Selected Studies in Scientific Tradition and Change (Chicago and London: University of Chicago Press, 1977), pp. 321 ff.
73. H. Putnam, Reason, Truth and History (supra n. 9), pp. 140-41.
74. Quite obvious here is the great debt that this approach to legal value-judgments owes to Dworkin. As a matter of fact, many central points of my work are deeply influenced by Dworkin's thinking. Here there are some examples. Firstly, my idea that understanding a given positive law requires an ethical appreciation of its values is closely connected with dworkinian aesthetic hypothesis (see R. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), pp. 149-53). Secondly, my distinction between different kinds of (cognitive and creative) value-judgments is very close to the dworkinian distinction between 'interpreting while creating' and 'creating while interpreting' (ibid., p. 158). Thirdly, my suggestion on value-judgments as criteria of theory-choice in the legal domain resembles the way in which Dworkin conceives the underdetermination of raw behavioral data by the ascription of values (see R. Dworkin, Law's Empire (supra n. 9), p. 52)). There are, however, many important points in which I disagree remarkably with Dworkin. Apart from Dworkin's frequent lack of analytical rigour and from his reticence in highlighting his epistemological and semantical presuppositions, what doesn't convince me, speaking generally, is, among other things, Dworkin's choice of the participant's point of view as the correct stance for the legal theorist (ibid., p. 147). The fact is that Dworkin, after all, ends by accepting the very thesis of traditional positivists that he has so heavily criticized: I am referring to the thesis which equates ethical value- judgments expressed in legal practices with judgments produced invariably from the inside of the practice and possessing always a practical character. To sum up, for Dworkin to express an ethical value-judgment, in the context of a legal system, amounts to justifying its acceptance or rejection from a moral point of view or at least to justify some specific decision taken on the basis of its rules or principles.
75. Quite obvious here is the great debt that this approach to legal value- judgments owes to Dworkin. As a matter of fact, many central points of my work are deeply influenced by Dworkin's thinking. Here there are some examples. Firstly, my idea that understanding a given positive law requires an ethical appreciation of its values is closely connected with dworkinian aesthetic hypothesis (see R. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), pp. 149-53). Secondly, my distinction between different kinds of (cognitive and creative) value-judgments is very close to the dworkinian distinction between 'interpreting while creating' and 'creating while interpreting' (ibid., p. 158). Thirdly, my suggestion on value-judgments as criteria of theory-choice in the legal domain resembles the way in which Dworkin conceives the underdetermination of raw behavioral data by the ascription of values (see R. Dworkin, Law's Empire (supra n. 9), p. 52)). There are, however, many important points in which I disagree remarkably with Dworkin. Apart from Dworkin's frequent lack of analytical rigour and from his reticence in highlighting his epistemological and semantical presuppositions, what doesn't convince me, speaking generally, is, among other things, Dworkin's choice of the participant's point of view as the correct stance for the legal theorist (ibid., p. 147). The fact is that Dworkin, after all, ends by accepting the very thesis of traditional positivists that he has so heavily criticized: I am referring to the thesis which equates ethical value- judgments expressed in legal practices with judgments produced invariably from the inside of the practice and possessing always a practical character. To sum up, for Dworkin to express an ethical value-judgment, in the context of a legal system, amounts to justifying its acceptance or rejection from a moral point of view or at least to justify some specific decision taken on the basis of its rules or principles.
76. Quite obvious here is the great debt that this approach to legal value- judgments owes to Dworkin. As a matter of fact, many central points of my work are deeply influenced by Dworkin's thinking. Here there are some examples. Firstly, my idea that understanding a given positive law requires an ethical appreciation of its values is closely connected with dworkinian aesthetic hypothesis (see R. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), pp. 149-53). Secondly, my distinction between different kinds of (cognitive and creative) value-judgments is very close to the dworkinian distinction between 'interpreting while creating' and 'creating while interpreting' (ibid., p. 158). Thirdly, my suggestion on value-judgments as criteria of theory-choice in the legal domain resembles the way in which Dworkin conceives the underdetermination of raw behavioral data by the ascription of values (see R. Dworkin, Law's Empire (supra n. 9), p. 52)). There are, however, many important points in which I disagree remarkably with Dworkin. Apart from Dworkin's frequent lack of analytical rigour and from his reticence in highlighting his epistemological and semantical presuppositions, what doesn't convince me, speaking generally, is, among other things, Dworkin's choice of the participant's point of view as the correct stance for the legal theorist (ibid., p. 147). The fact is that Dworkin, after all, ends by accepting the very thesis of traditional positivists that he has so heavily criticized: I am referring to the thesis which equates ethical value- judgments expressed in legal practices with judgments produced invariably from the inside of the practice and possessing always a practical character. To sum up, for Dworkin to express an ethical value-judgment, in the context of a legal system, amounts to justifying its acceptance or rejection from a moral point of view or at least to justify some specific decision taken on the basis of its rules or principles.
77. Quite obvious here is the great debt that this approach to legal value- judgments owes to Dworkin. As a matter of fact, many central points of my work are deeply influenced by Dworkin's thinking. Here there are some examples. Firstly, my idea that understanding a given positive law requires an ethical appreciation of its values is closely connected with dworkinian aesthetic hypothesis (see R. Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), pp. 149-53). Secondly, my distinction between different kinds of (cognitive and creative) value-judgments is very close to the dworkinian distinction between 'interpreting while creating' and 'creating while interpreting' (ibid., p. 158). Thirdly, my suggestion on value-judgments as criteria of theory-choice in the legal domain resembles the way in which Dworkin conceives the underdetermination of raw behavioral data by the ascription of values (see R. Dworkin, Law's Empire (supra n. 9), p. 52)). There are, however, many important points in which I disagree remarkably with Dworkin. Apart from Dworkin's frequent lack of analytical rigour and from his reticence in highlighting his epistemological and semantical presuppositions, what doesn't convince me, speaking generally, is, among other things, Dworkin's choice of the participant's point of view as the correct stance for the legal theorist (ibid., p. 147). The fact is that Dworkin, after all, ends by accepting the very thesis of traditional positivists that he has so heavily criticized: I am referring to the thesis which equates ethical value-judgments expressed in legal practices with judgments produced invariably from the inside of the practice and possessing always a practical character. To sum up, for Dworkin to express an ethical value-judgment, in the context of a legal system, amounts to justifying its acceptance or rejection from a moral point of view or at least to justify some specific decision taken on the basis of its rules or principles.