Faculty Q&A: The False Promise of the "Positive Turn" in Legal Interpretation
A new paper by University of Virginia School of Law professor Charles Barzun '05 critiques a recent movement in legal theory that claims to find provide support for originalism in current law.
While it's becoming popular for scholars to use current legal doctrine as the standard for settling disputes over interpretive methodology, Barzun argues in his forthcoming Stanford Law Review article, "The Positive U-Turn," that this positivist method fails.
Part of the reason it fails, Barzun argues, is that it depends on controversial assumptions about the nature of law, and defending those assumptions requires making exactly the sort of arguments that the positive turn purports to evade.
Why is examining the methods for interpreting the Constitution and statutes important?
As law students and lawyers well know, the Constitution and most statutes include provisions written in vague or ambiguous language whose meaning is a source of debate among courts and legal scholars. The interpretive method a court uses to analyze those texts when deciding cases will often narrow the range of possible meanings and will sometimes even dispose of the legal issue in question. So it matters which interpretive methods are the proper ones for courts to use. Should they, for instance, use canons of construction when determining the meaning of statutes? If so, which ones? Should they seek to uncover the “original meaning” of constitutional provisions? If so, where do we look to find that meaning? These are critical questions whose answers divide courts and scholars. Indeed, debates about the proper interpretive methods for courts to apply are some of the deepest and most heated ones in the legal academy today.
Explain the "positive turn" in legal interpretation you describe in your article.
Typically these debates over interpretive methods have been framed in normative terms. That is, scholars offer reasons why one or another method of interpretation would preserve democratic legitimacy, for instance, or serve important rule-of-law values, or improve overall social welfare. Recently, though, some scholars have argued that we should look to our “positive law” to settle these debates, by which they mean that we should look to see whether our current law already speaks to these interpretive questions. The thought is that, given that most of us can agree that judges have a duty to apply the law, if we can show that a particular method is itself required by law, then that method occupies a privileged position relative to other methods. The hope is that asking questions about what the law requires, as a matter of fact, clarifies the issues at stake and so allows the debates to move forward in a more productive way.
What does your analysis imply about the positive turn?
My argument, in brief, is that the positive turn offers a false promise. It has received so much attention from legal scholars, I think, because it appeals to a common-sense intuition that what matters most, for the purpose of offering guidance to courts, is figuring out what the law requires. It then asserts — and this is what makes it a “positive” turn — that such an inquiry is an essentially factual one, not an evaluative one or a conceptual one. It looks to what answers current judicial practice already provides to these methodological questions.
The problem, though, is that courts typically disagree about which methods of interpretations are the proper ones. Some invoke canons of construction, for instance, in contexts where others do not. Some look to the original meaning of the Constitution where others rely more on court precedent. So the difficult question is whether, or in what sense, there can be “positive law” on issues like these, where there is no judicial consensus as to the correct interpretive approach.
Now legal philosophers have been debating that question for decades, and I myself am not sure of the best answer. But my point is simply that the so-called “positive turn” cannot avoid engaging in these debates. And it turns out that doing so requires making precisely the kind of normative and conceptual arguments that the “positive turn” was supposed to enable scholars to avoid. That is why I say that the positive turn is really a U-turn. It takes us back to where we already were.
What are some social customs used to determine the content of law?
Well, legal philosophers disagree about how to answer that question, which is precisely my point: The positive turn cannot remain agnostic as to rival theories of law. But the most widely accepted positivist account today is the one H.L.A. Hart advanced in his 1961 landmark book, “The Concept of Law.” According to Hart, what matters for determining the content of law is whatever officials (particularly judges) in a legal system treat as the criteria of legal validity — that is, whatever they treat as the rules that must be satisfied in order for something to qualify as “law.” So, for instance, if judges in the United States consider themselves obligated to treat as federal law those rules that have been passed by both houses of Congress and signed by the president, then those rules count as law. Hart famously called the set of such rules the “rule of recognition” because it is what allow officials and citizens to “recognize” certain rules as law. Crucially, though, it is the fact that virtually all officials consider themselves and other officials obligated to treat rules ratified by those Article I procedures as law that makes those procedures part of the rule of recognition — not the text of Article I itself. That matters because, in Hart’s view, unless there is such a consensus among officials as to what criteria must be satisfied in some adjudicatory context for a rule to qualify as law, then there is no pre-existing law governing that issue. That is why the lack of such judicial or official consensus over interpretive methodologies presents a problem for the positive turn. Under Hart’s view, where there is judicial disagreement, there is no positive law.
What are you working on next?
I am currently working on a paper about the judicial philosophy of former Justice David Souter. Three of the Supreme Court opinions I have long found the most interesting were all written by Justice Souter. These opinions intrigue me because not only do they all endorse or engage in quite unconventional forms of legal reasoning and argument, but they do so in a similar way. In particular, each emphasizes the interdependencies between reason and emotion, explanation and justification, and fact and value. In my view, these cases, along with some of Justice Souter’s extrajudicial writings, serve as persuasive evidence that he belongs to a long tradition of American legal thought that has been influenced by (and has itself influenced) one strand of philosophical pragmatism.
- 10.1.16 EPISODE 113: The Entrails of Fowl (Oral Argument)