Connecting Positive and Normative Legal Theory

10 Pages Posted: 28 Mar 2007

Abstract

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?

Suggested Citation

Vermeule, Adrian, Connecting Positive and Normative Legal Theory. University of Pennsylvania Journal of Constitutional Law, 2007; Harvard Public Law Working Paper No. 07-03. Available at SSRN: https://ssrn.com/abstract=977095

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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