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07/22/2019

Lawrence Solum on Positive and Normative Legal Theory
Michael Ramsey

From Legal Theory Blog's Legal Theory Theory Lexicon: Positive and Normative Legal Theory.  From the conclusion:

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both.

This is an important distinction to watch for in originalist theory.  Some justifications for originalism are expressly normative, and some are expressly descriptive.  But a lot of them blur the line.  And I doubt the latter is a good thing.  Unlike Professor Solum, I'm inclined to "try to force interpretivist theories into either the positive or the normative."  Or at least, I think it should be made clear what part is normative and what part is descriptive.  Otherwise, theories may covertly try to get normative mileage from their descriptive elements, and vice-versa.