Connecting Positive and Normative Legal Theory
10 Pages Posted: 28 Mar 2007
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?
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