Table of Contents Introduction I. The Positive Turn at Work A. Inclusive Originalism B. Original-Law Originalism C. The Law of Interpretation D. The Core Argument II. Testing the Positive Turn A. Hart's Rule of Recognition 1. Summary 2. The Core Argument and the rule of recognition a. Validated by the rule of recognition? b. Accepted by current practice? c. The problem of disagreement B. Raz's Sources Thesis 1. Summary 2. The Core Argument and the Sources Thesis C. Shapiro's Planning Theory of Law 1. Summary 2. The Core Argument and the Planning Theory a. Consensus at the Founding? b. Empirical disagreement? c. Theory choice and jurisprudence D. Ignoring Jurisprudence: Lawyers' Assumptions Conclusion: The Dilemma at the Heart of the Positive Turn Introduction
"Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar."
--Chief Justice John G. Roberts Jr., June 25, 20111
When Chief Justice Roberts made the comment above, suggesting that much contemporary legal scholarship is unhelpful to the bench and bar, he provoked a fierce reaction from the legal academy. (2) Two of the Chief Justice's former clerks, however, seem to have taken their former boss's critique of legal scholarship to heart. In a series of articles, William Baude and Stephen E. Sachs have advanced an agenda for public law scholarship, an agenda that has been dubbed the "positive turn." (3) The core idea of the positive turn is that debates about how to properly interpret statutes and the Constitution ought to be settled neither by analyzing concepts of meaning, interpretation, or authority nor by engaging in normative debates sounding in political or moral philosophy. Instead, scholars should look to the same source lawyers and judges do to resolve legal disagreements: the law. Since both the existence and content of law are determined by certain facts about our legal system, scholars should devote their energies to figuring out what those facts tell us about how to interpret our legal materials. Once you look at those law-determining facts, you can see that, for instance, what the law requires as a matter of constitutional interpretation is originalism. (4)
The positive turn has seized the attention of constitutional theorists, quickly generating a flurry of commentary--much of it critical. (5) Most of the criticism has focused on the authors' substantive claim that our law is best described as originalist. (6) Yet the authors candidly acknowledge the limits of their substantive claim that originalism is our law. (7) What they really care about, they each emphasize, is the methodological thesis that we should resolve interpretive debates by reference to what "our law" is, whether or not they happen to be right that originalism is our law. (8) Lest there remain any doubt about these ambitions, Baude and Sachs subsequently coauthored another article in the Harvard Law Review in which they broaden the argument to include methods of statutory interpretation, in addition to constitutional interpretation, and again frame their argument largely in methodological terms. (9)
This methodological thesis, which is the essence of the positive turn, is also the most perplexing part of Baude and Sachs's project. This perplexity arises from the fact that the claim seems at once banal and inventive. How is it that an argument that scholars should look to the law to settle scholarly debates could possibly be a methodological innovation? Have not law professors always argued about what the law requires? Yet the authors do seem to be saying something interesting and provocative. But what, exactly?
The answer lies in two core insights of the positive turn: The first is the observation that "our law" not only substantively regulates our social, economic, and political life but may also speak to second-order questions about how judges should determine the meaning of such substantive law. (10) Second, as its label suggests, Baude and Sachs tie their claim about what the law requires to one about the nature of law, namely that its existence and content are primarily, if not exclusively, a matter of positive, empirical fact. (11)
The promise and appeal of the positive turn, then, may lie in its apparent capacity to bridge the alleged gulf between legal theory and legal practice that the Chief Justice's comment highlights. (12) It does so in two ways: On the one hand, it suggests that turning to legal practice ("our law") can help resolve, or at least reorient, our scholarly debates about how to interpret our Constitution and statutes. On the other hand, it suggests that deep questions of legal theory or philosophy may shed light on what legal practice requires. Theory and practice are brought together again in an ingenious sort of way.
This second insight, about the role of legal philosophy, however, remains largely undeveloped. Baude and Sachs insist that the law depends on "the right kind" of social facts (13) or "modern social facts," (14) but they do not say much about what those facts are or how we would know them when we see them. At times they suggest that we can know roughly which facts matter by relying on "lawyers' assumptions rather than technical jurisprudence." (15) At other times, they characterize it as an issue of jurisprudence that matters a great deal but that may be left for another day. (16) At still other times, they seem to commit themselves to one particular theory of law, namely that of H.L.A. Hart. (17) For Hart, the relevant social facts are the current practices of courts, so that may be one answer to the question which social facts matter. (18) But then the authors quickly clarify that they rely on Hart partly for "ease of exposition" because, in reality, "much of our framework should hold true on any mainstream theory." (19)
The ambiguity on this point matters because legal positivists have long debated which facts are the important ones in determining the existence and content of law. (20) So it is fair to ask whether the positive turn will generate its purported methodological benefits irrespective of which theory of law is employed to determine the relevant social facts. There is a world of difference between the claim A that a given theory's success depends on how one resolves a controversial issue that will be temporarily bracketed and the claim B that the theory succeeds irrespective of how one decides a controversial issue. Whereas A is an admission of the theory's dependence on controversial matters (and hence a theoretical vice), B is an assertion of its independence (and hence a theoretical virtue).
The aim of this Article, therefore, is to see how the positive turn fares under a few different well-known positivist accounts of law. The hope is that it will not only reveal something about the positive turn's true methodological payoff, or lack thereof, but also yield some insight into the motivations and ambitions behind it.
Examining how the positive turn would work under a variety of jurisprudential approaches demonstrates why the promise of the positive turn is more apparent than real. The turn achieves an air of novelty and plausibility only because the authors are ambiguous, evasive, or downright inconsistent about some of the deepest questions about the nature of law--questions about the relationship between legal validity and judicial practice, about the nature and implications of judicial disagreement, and about the criteria for theory choice among philosophies of law. These are hard questions, and (for that reason) they are questions that have, in part, set the course of jurisprudential debate at least since Hart published The Concept of Law in 1961. (21) Yet the authors write as if those debates never happened--as if the questions were never raised, let alone answers to them offered and challenged. The result is that what they present as a methodological advance in fact takes us back to some of the foundational debates about the nature of law and legal argument. The positive turn is really a U-turn.
Still, even in its failure, the positive turn is instructive. All of the various ambiguities and tensions one finds in the authors' arguments for and applications of the positive turn reduce to one fundamental tension concerning the nature and function of legal scholarship. That tension is the one mentioned at the outset between the demands of legal theory and those of legal practice. It may seem that the authors' ambition to reconcile these twin demands is futile, and the confusions that plague the positive turn might seem to give grounds for such skepticism. But that conclusion should be resisted. To the contrary, I respect the authors' ambition (if I understand it correctly) to show both that legal philosophy matters for law and that law itself can be a source of intellectual guidance rather than just a set of rules and institutions to be analyzed from the perspective of some other discipline. Thus, this Article suggests--albeit only briefly--a somewhat different approach to meeting the same challenge, one that rejects the distinction, now so entrenched in legal scholarship, between "internal" and "external" accounts of law. (22)
The rest of this Article supports these broad claims. Part I first summarizes the three main applications of the positive turn. It then reveals the common syllogistic structure to which all three applications conform, which I call the "Core Argument." The Core Argument holds that for any given interpretive rule, that rule counts as law (and thereby imposes a duty on courts to apply it) if it is supported by the kind of social facts that determine the content of law. The positive turn is best understood as the methodological thesis that scholars...