CONNECTING POSITIVE AND NoRMATIvE LEGAL THEORY
نویسنده
چکیده
Positive and normative legal theory often seem to have little to do with one another. Part I describes the disconnect and suggests that it arises from two sources: the gap between fact and value, and the gap between external and internal perspectives on law. In the following Parts, I lay out a repertoire of strategies and mechanisms for connecting positive and normative legal theory. Part II examines cases in which positive theory serves as a direct source of normative arguments. Part III examines cases in which positive theory serves as an indirect constraint on normative decisionmaking. In the latter case, positive theory serves a constructive role by narrowing the set of normative arguments that must be considered when deciding what to do. Part IV extends the theme of constraints to a second-order question: In light of our best positive theories, to what audiences can normative scholarship be addressed?
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