The Positive U-Turn

Abstract

Theories of legal interpretation have taken a “positive turn” in recent years. Some scholars have argued that disputes over how to interpret statutes and the Constitution should be resolved by looking to the social facts that determine what our positive law requires. Most of the commentary on the positive turn has focused on the substantive claim that what the law requires as a matter of constitutional interpretation is a version of originalism. Less attention has been paid to the more interesting and provocative methodological thesis that we ought to resolve our debates about legal interpretation by looking to “our law” and that doing so requires making claims about the nature of law – specifically, claims about the social facts that determine its content.

Because positivist theories vary with respect to which social facts matter for the purpose of determining the existence and content of law, an obvious (and obviously important) question for the positive turn is whether generating its alleged methodological benefits requires choosing from among rival positivist theories. Yet the chief proponents of the positive turn say very little on this question, and what they do say is ambiguous.

This article thus sets out to answer that question by testing how the positive turn would work under four different positivist accounts of law. The result of the analysis is that the positive turn fails under every approach considered. Although certain aspects of the positive turn fit well with each account of law, not one of them is capable of supporting it. Instead, each approach either leads to obviously false conclusions or fails to produce the normative and methodological payoff the positive turn promises. Even in its failure, however, the positive turn is instructive because it illustrates the difficulty of endeavoring to reconcile legal theory and practice.