Connecting Positive and Normative Legal Theory
Harvard Law School
University of Pennsylvania Journal of Constitutional Law, 2007
Harvard Public Law Working Paper No. 07-03
Positive and normative legal theory often seem to have little to do with one another. I suggest that the disconnect arises from two sources: the gap between fact and value, and the gap between external and internal perspectives on law. I then lay out a repertoire of strategies and mechanisms for connecting positive and normative legal theory. In some cases, positive theory can serve as a direct source of normative arguments. In other cases, positive theory serves as an indirect constraint on normative decisionmaking, thereby narrowing the set of normative arguments that must be considered. Finally, I ask: in light of our best positive theories, to what audiences can normative scholarship coherently be addressed?
Number of Pages in PDF File: 10Accepted Paper Series
Date posted: March 28, 2007
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