8/5/22, 10:39 AM Legal Theory Blog: Legal Theory Lexicon: Positive and Normative Legal Theory

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January 29, 2012

Legal Theory Lexicon: Positive and Normative Legal Theory
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
Pormative 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 aboutfacts and normative legal theories are about values. (This simple formulations
assumes that facts and values are mutually exclusive, but that may not be correct.)

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?" What I am calling a "doctrinal theory" is also sometimes called a "descriptive 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 content of the law can best be explained by the interests of the ruling class. Some legal economists have tried to
argue that common-law rules are efficient, because there is "evolutionary pressure" on inefficient legal rules. What I am
calling an "explanatory theory" is also sometimes called a "causal theory."
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. What I am calling an "effects
theory" is also sometimes called a "predictive theory."

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.
TheLegal Theory Lexicon already includes entries on deontology, utilitarianism, and virtue ethics--three of the most

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important general normative theories that have had an influence on the law. There are three 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. TheLegal 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. Dworkin's theory--"law as
integrity"--is an example of a justificatory theory: Dworkin offers theories that "fit and justify" existing law. Such justificatory
theories 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.

Normative Legal Theories, Political Philosophy, and Comprehensive Moral Theories Another important issue
concerns the relationship of normative legal theory to other normative theories, especially political philosophy, ethics, and
comprehensive moral theories. Normative political philosphy asks questions about the normative justification for the state
and the normative principles that establish the ends of and limits on the content of the law. The term ethics can be defined in
various ways--but for our purposes on this , ethics might be seen as concerned with the morality of individual action outside
the political sphere. A comprehensive moral theory might encompass both ethics and normative political philosophy.
Normative legal theories have as their domain the normative evaluation of legal substance and procedure. Normative
theories about the law as a whole might be called "general normative jurisprudence." There can also be normative theories of
particular legal domains--"normative constitutional theory," "normative tort theory," and so forth.
One picture of this relationship normative legal theory, on the one hand, and moral and political philosophy, on the other,
might be called "top-down." That is, we might start with a comprehensive moral doctrine (such as utilitarianism or Kant's
version of deontology). Using the method of deduction, we might try to deduce the principles of political philosophy and
ethics from a comprehensive moral theory, and the principles of normative legal theory might in turn be deduced from those
of political philosophy and ethics. The top-down approach is exemplified by some consequentialists, who argue for a
comprehensive moral doctrine such as welfarism or utilitarianism and then derive normative justifications or criticisms from
the comprehensive doctrine and facts about which legal rules will result in what consequences.

Another possibility is that normative legal theory is relatively independent of ethics and political philosophy. It is at least
conceivable that one might believe that the realm of interpersonal ethics is governed by a different set of principles and
theories than is the law. For example, one might espouse deontological ethics, but believe that the laws should (for the most
part) be aimed at maximizing utility.
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.

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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. One of the oft-repeated questions that law professors ask
of entry-level candidates giving job talks (or ambitious students writing papers) is whether their theory is positive or
normative. Be sure you know the answer before the question is asked!
Related Entries

Legal Theory Lexicon 008: Utilitarianism

Legal Theory Lexicon 010: Deontology
Legal Theory Lexicon 012: Virtue Ethics
Legal Theory Lexicon 014: Fact and Value
Legal Theory Lexicon 031: Virtue Jurisprudence
Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the Philosophy of Law
Legal Theory Lexicon 058: Contractarianism, Contractualism, and the Social Contract
Bibliography

Adrian Vermeule, Connecting Positive and Normative Legal Theory, 10 University of Pennsylvania Journal of
Constitutional Law 387 (2007).

(This entry was last revised on January 29, 2012.)

Posted by Lawrence Solum on January 29, 2012 at 05:56 PM in Legal Theory Lexicon | Permalink

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