POSITIVE AND NORMATIVE LEGAL

THEORY

PHILOSOPHY OF LAW
ATTY. ESTEBAN MOLON, JR.

Sumanga, Monica Clara M.

De La Salle University GG03
Introduction

One of the most fundamental distinctions in legal theory is that between

"positive legal theory" and "normative legal theory." This post provides a very
brief introduction to the distinction, aimed at law students especially first years
with an interest in legal theory.
The core idea of the distinction between positive and normative legal
theory is simple: positive legal theory seeks to explain what the law is and why it
is that way, and how laws affect the world, whereas normative legal theories tell
us what the law ought to be. Thus, a positive theory of tort law might seek to
explain what causal forces have produced the existing principles of tort law,
whereas a normative theory of tort law would tell us what rules of tort liability
would be best, right, or justifiable. Or more simply: positive legal theories are
about facts and normative legal theories are about values.

Positive Legal Theory

Sometimes, the notion of positive legal theory is presented in an

oversimplified way--as if there were a single, well-defined type of theory that
counted as positive. In fact, the phrase "positive legal theory" is used in a variety
of ways. The one thing that positive legal theories have in common is that they
are not normative. Nonetheless, there are three characteristic type of positive
legal theory that can be identified:

Positive Legal Theory Type 1: Doctrinal Theories

The first kind of legal theory that is called "positive" is quite simply a theory
of what the content of a particular field of legal doctrine is. Thus, a theory of the
freedom of speech might simply seek to explain the shape of existing first
amendment doctrine. Or a theory of hearsay rule might seek to provide an
account of the rule and exceptions that explains and accurately predicts
particular applications of the rule. Doctrinal legal theories are responsive to
questions like, "What are the principles that shape this area of the law?" or "Can
these cases be explained by some underlying theory?"
Positive Legal Theory Type 2: Explanatory Theories

The second kind of legal theory to which the label "positive" is applied are
explanatory theories--theories about why the law is the way it is. For example, a
very simple Marxist theory might state that the interests of the ruling class can
best explain the content of the law. Some legal economists have tried to argue
that common-law rules are efficient, because there is "evolutionary pressure" on
inefficient legal rules.

Positive Legal Theory Type 3: Effects Theories

The third kind of legal theories that are referred to as "positive" are
theories about the consequences that will be produced by a given regime of legal
rules. This is the sense of "positive theory" that is most frequently invoked by
legal economists. The question "What effects will a strict liability regime as
opposed to a negligence regime have on the manufacturers of consumer
products?" can be answered by a legal theory that is positive in the sense that it
predicts behavior but does not explicitly evaluate the desirability of the rule.

Normative Legal Theory

Normative legal theories, on the other hand, are by their nature evaluative.
Thus, a normative theory of products liability law would take a stand on the
question whether negligence or strict liability is the better rule. Normative legal
theories tend to be entwined with more general normative theories, e.g. moral or
political theories, although this is not necessarily the case. The Legal Theory
Lexicon already includes entries on deontology, utilitarianism, and virtue ethics -
three of the most important general normative theories that have had an
influence on the law. There are two other distinctions that are important to
understanding the general idea of a normative legal theory:

Ideal versus Nonideal Theory

Some normative legal theories are "ideal" - that is, they are theories about
what the best legal rule would be in the world in which everything was politically
possible, the law could be adequately enforced, and other legal rules that interact
with the subject of the theory could be adjusted to produce the best overall
system. Other normative legal theories are "nonideal"--that is, they are theories
that assume a variety of constraints on the choice of legal rules. For example, a
nonideal theory might take into account political feasibility or it might take into
account the possibility that the system would not provide an optimal level of
enforcement for the rule that would otherwise be best. The Legal Theory Lexicon
entry on second best explores these ideas in greater detail.

Justificatory Theories and Critical Theories

 Normative legal theories also vary in their "attitude" towards the status
quo. You are likely to encounter normative legal theories that start with the
question, "What is the best justification that be given for such and such a legal
rule?" These justificatory theories have a limited purpose. They do not address
the ultimate question, "What is the best legal rule?" On the other hand, many
legal theories have the opposite purpose--the critique of existing legal doctrine.
Thus, a critical theory might enumerate all of the criticisms that could be made of
an existing legal rule - even though some of the criticisms may rest on
inconsistent premises.
The Intersection of Positive and Normative Theory

So far, we have been assuming a fairly sharp distinction between positive

and normative legal theory. And for many purposes, assuming that there is a
bright line that separates normative and descriptive legal theory is a good
working hypothesis. Even assuming there is such a bright line, however, there
are relationships between positive and normative legal theories.

Positive Theory in the Service of Normative Theory

One relationship is clear and straightforward. Many normative theories

underdetermine what the legal rules should be in the absence of substantial
information about the effects of the rules. This is most obvious in the case of
utilitarian theories, where information about consequences does all the real work
of determining which legal rule is best. For normative theories like utilitarianism,
positive theory performs an essential service. Without a positive account of the
effects of a given rule choice, utilitarianism has nothing to say about what rule is
best.

Positive Theory as a Constraint on Normative Theory

Another relatively noncontroversial relationship between positive and

normative legal theories arises when a positive theory that explains why the law
has the shape that it does, is taken as imposing a constraint on normative theory.
For example, public choice theory makes certain predictions about how
legislatures will act in response to various incentives. Some legal rules that might
be justified by ideal normative legal theory may be considered "unrealistic" in
light of positive theory. In cases like this, positive legal theory provides
constraints that limit the options available to normative theory.

Interpretivism and "Law as Integrity"

 There is another, more controversial; way that positive and normative legal
theory can interact. Ronald Dworkin's theory of law, "law as integrity," attempts to
combine the aims of positive doctrinal theory and normative theory. The idea is
that a legal theory should both fit and justify the existing legal landscape. Thus, a
Dworkinian theory of the freedom of speech would need to both fit the contours
of the Supreme Court's decisions and justify those decisions. Of those
interpretations of free speech doctrine that fit the legal topography, Dworkin
maintains that judges should select that interpretation that makes the existing
law, "the best that it can be." Dworkin's view of legal theory blurs the line between
positive and normative legal theory--essentially combining the enterprises that I
have called positive doctrinal theory and justificatory normative theory. As you
might imagine, this is hugely controversial--although that is a topic for another
post.

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.