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THEORY
PHILOSOPHY OF LAW
ATTY. ESTEBAN MOLON, JR.
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.
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 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:
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.
Conclusion