Normative v. positive

Source: https://www.coursera.org/learn/law-student/lecture/bdO8x/2-2-lecture

[MUSIC] The normative, positive dichotomy distinguishes between
two different kinds of argumentation. This difference is sometimes referred to as the difference between is talk and ought talk. A normative claim is ought talk. A normative claim about the laws captured by the classic plea, there ought to be a law. Normative debates are about what the content of the law should be. In contrast, positive analysis of law
seeks to identify what the law is. Positive claims are hence capable
of being correct or incorrect. It is a markedly different inquiry to ask what is the speed limit than to ask what should be the speed limit. As beginning law students, you will be naturally caught up in learning the details of what the law is, but you should make sure to ask as well what the content of legal worlds should be. Oliver Wendell Homes, Jr. in his book, The Common Law, said the life the law has not been logic: it has been experience. The felt necessities of the time the prevalent moral and political theories intuitions of public policy of Oliver unconscious even the prejudices which judges share with their fellowmen and had a good deal more to do than the syllogism 三段论 in determining the rules by which men should be govern. By the way that first line, is maybe the most important single sentence in all of of American Jurisprudence. Well, logic might help you derive certain positive claims, homes claimed that the positive content of legal rules could be identified by investigating how they were used in practice. The Scottish philosopher, David Hume, argued that no ought claim could be correctly inferred from a set of purely factual premises. This result is sometimes referred to as Hume’s Law, or as the is-ought problem. The idea has important implications for law. Hume’s Law means that the fact of a mass shooting, by itself, can never be sufficient to conclude that we should pass new gun control laws. You can only derive should claims from premises that include should claims. You just can’t get from is to ought by itself. As with other dichotomies in these lectures, the distinction between the normative and the positive is not always cut and dried. Nominally positive claims, such as Richard Dawkins’ 2013 tweet saying, quote, all of the world’s Muslims have fewer Nobel Prizes than Trinity College, Cambridge. They did great things in the Middle Ages, though, unquote. Can be criticized as having normative overtones 言外之意. Dawkins’ tweet raises the normative question of why we should focus our attention on this fact, instead of whether Dawkins’ navel hair rotates in a clockwise or counterclockwise fashion. One way that I have papered over the normative motivations of my own analysis in writing articles is by converting normative characterizations of what law should be into nominally positive claims about what people with certain normative predispositions would favor. Thus, instead of arguing that the law should adopt a particular rule that has efficiency-enhancing properties, I have intended to say instead that, quote, efficiency-minded lawmakers would favor a particular rule. Following Hume, it is a good practice to think about and state the possible normative implications of your analysis. Some historians resist this practice. They might claim that they are studying a particular aspect of history because it’s interesting. I’m attracted to the opposite extreme, which as a provocation might be stated legal scholarship is only interesting if it might inform presentist normative decision making. A presentist normative claim is a claim about how the law should be today or in the future. Another way to put this is that legal scholarship is only interesting if it’s consequentialist in the sense that something might turn on it. Uncovering facts about the world,
as it is, or as it was, can definitely satisfy this criterion. But not all facts, or history, satisfy this criterion. Learning whether my navel 肚鸡眼 hair turns clockwise is uninteresting because it fails this consequentialist test. You can elicit the hidden, normative motivations of people. You can find out what’s behind their nominally positive claims simply by asking the author, so what. I’ve had the experience of asking hardcore non-normative historians, the question, so? Or so what? Until they finally spill the beans and provide a normative defense of their enterprise. Why they studied a particular topic. Thinking more explicitly about the positive, normative dichotomy can help
discipline you to avoid the laziness inherent in the claim, I just think the topic is interesting. The deeper question is why that subject is interesting, which is always a normative matter. I said that I offered as a provocation the idea that only facts which inform normative questions are interesting. What are other defensible criteria for interesting scholarship? [MUSIC] [BLANK AUDIO]