While there is an argument that the normative “should” questions of the law create an interesting approach to legal thinking, there are many areas, particularly in constitutional law, where the positive analysis of what the Constitution says and the interpretation of the meaning of the words creates a field of legal scholarship.
The criteria here are less around the normative aspects, as the words are set. Rather, it is in the theory of the law and the “why” it exists, rather than the “how” it should be interpreted. For example, the ninth and tenth amendments to the US Constitution are broad reaching reservations of powers and rights to the people and to the states. What was the history of their inclusion? Why were they considered important? How to they influence the interpretation of the law and how are the used or cited in cases today? What are the impacts of these amendments on societal norms, civil rights, legal thought, the development of statutes?
More generally, the criteria for legal analysis on the positive aspects can range through the following questions for analysis:
- Why was the law enacted?
- Why does the law matter?
- What is the history behind the law and the legislative intent?
- How is the law applied in cases, historically and currently?
- What has been or is projected to be the impact of the law on the system? On society?
- Is the law meeting the objectives intended when enacted?
These criteria provide a framework for analysis and understanding of the law and the effects of the law – existing or proposed. The positive questions are valuable in that they provide the other piece of the analysis to the normative. If the normative examines how something ought to be, the positive examines the impacts and implications of those scenarios. You truly cannot analyze the law without looking at both the normative and the positive aspects. Otherwise you have theory without practice, or impractical solutions without understanding the practical implications. Truly, the two elements must work together for complete and effective legal analysis and scholarship.