Dimitrios Kyritsis (University of Reading) has posted Is Moralised Jurisprudence Redundant? (K E Himma, M Jovanovic, B Spaic (eds), Unpacking Normativity: Conceptual, Normative, and Descriptive Issues (Hart Publishing 2018) 3-16) on SSRN. Here is the abstract:
In recent years questions about legal normativity have spilled over to the debate about the methodology of jurisprudence. In fact, it has been thought by some that the resolution of the methodological issue can give us a decisive reason for siding with either positivism or non-positivism. Thus, it has been argued by some non-positivists that jurisprudence cannot be fully descriptive. It must evaluate the vast collection of data that comprise legal practice. This seems to give an edge to a normative methodology for jurisprudence, according to which a philosophical explanation of law necessarily involves recourse to moral values. Importantly, it is maintained that a normative methodology makes better sense of the internal point of legal practitioners and thus vindicates law's normativity.
This suggestion has famously been challenged by Julie Dickson, who claims that jurisprudence may still be evaluative without being moralised. All it needs to do in order to sift through the data of legal practice is make judgments of importance or indirectly evaluative judgments. The idea of indirect evaluation is used not only as a shield but also as a sword. If it can help us identify essential truths about law, then the invocation of moral value, far from making jurisprudence continuous with legal practice, appears to be superfluous, a dispensable extra. For Dickson, there is no reason to think that the study of practitioners' attitudes must have the same character as those attitudes.
This chapter criticises the use of indirect evaluation as a sword. It argues that the appropriateness or otherwise of a methodology depends on the thing that is being studied. Methodology alone, divorced from an appreciation of the nature of law, cannot provide a shortcut in the debate between positivism and anti-positivism.