Law’s Conception: The Positive-Normative Tension in Law (LAW529H1F)

The law possesses an inherent duality between society’s normative ideals and its positive commitment to the relevance and importance of facts. In some areas of the law, normative considerations dominate, whereas in other areas positive considerations weigh more heavily. This tension complicates both legal doctrine and policy but is necessary in pursuit of our constitutional and democratic principles.  

This course will explore the normative-positive dimension from both a theoretical and evidence-based approach. We will begin with the foundations of normativism and positivism, examine how the law grapples with evidence, and explore the mechanisms by which our society encourages (or discourages) compliance with both. We then look at the socioeconomic factors that influence how we perceive normativism and positivism, how society wrestles with arguably discriminatory policies, and conclude with how recent technological developments may affect how society, and law, evolves. 

The purpose of this seminar is twofold: the first is to provide a foundation for those interested in academic research; and two, for class members to write their own original academic research project, with the goal of publication in an academic journal. Your paper can be positive or normative in its focus, or both.