The (Ir)relevance of Positivist Arguments for Originalism

45 Pages Posted: 3 Aug 2019 Last revised: 13 Jul 2023

See all articles by Andrew Jordan

Andrew Jordan

University of Iowa - College of Law

Date Written: July 30, 2019

Abstract

Some constitutional theorists have started looking to jurisprudential accounts of the nature of law for help in resolving disputes in constitutional theory. Most prominent is the so-called “positive” turn defended by William Baude and Stephen Sachs. According to Baude and Sachs, ongoing debates in constitutional theory can be resolved by looking to positive law—that is, to the convergent social practices of legal officials. As a result, they claim that we can avoid the normative debates that have traditionally occupied constitutional theorists. Here, I argue that any attempt to settle substantive debates in constitutional theory via jurisprudential accounts of the nature of law will face two problems. First, they will run the risk of double counting—of treating legality itself as providing additional reasons over and above those earned by the theory’s criteria of legality. Second, they risk a kind of illicit bootstrapping by claiming normative upshots supposedly inherent in legality itself that aren’t traceable to the theory’s criteria of legality. Normative constitutional theorists have traditionally aimed to provide an account of sound adjudication. That’s a worthy project. But such theorists must defend their views based on their underlying normative credentials. One cannot avoid that burden by turning to legal metaphysics.

Keywords: Constitutional law, Constitutional Theory, Legal Reasoning, Contextualism, Originalism, Anti-Theory

Suggested Citation

Jordan, Andrew, The (Ir)relevance of Positivist Arguments for Originalism (July 30, 2019). Loyola of Los Angeles Law Review, Vol. 56 Issue 3, Available at SSRN: https://ssrn.com/abstract=3429417 or http://dx.doi.org/10.2139/ssrn.3429417

Andrew Jordan (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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