Interdisciplinary Reflections on Legal Method
Edited by Sanne Taekema, Bart van Klink and Wouter de Been
Chapter 9: Exploring the boundaries of law: On the Is–Ought distinction in Jellinek and Kelsen
AbstractThe topic of our contribution is the relation between is and ought in law and its implications for the autonomy of law and the possibility (or even necessity) of interdisciplinary research, as discussed in the debate between Jellinek and Kelsen. We take Jellinek’s general theory of the state as a starting point, because it offers a good opportunity to reflect on the interrelation of the factual and normative side of political order and the role law plays in connecting these two sides. Jellinek holds an exceptional position within normative legal positivism that is in line with the contemporary trend toward interdisciplinary research. However attractive it may be in this respect, is it a strong position or is it threatening the autonomy of law from the perspective of legal science, as Kelsen claims? And, if so, would that necessarily be a bad thing? With Kelsen, we believe that some kind of ‘border control’ between scientific disciplines is necessary, because otherwise the specific access to reality which a discipline offers gets lost. However, we consider his attempt to purify the science of law too rigid and ultimately not convincing. Therefore, we suggest revisiting the work of Jellinek, which has received less scholarly attention. In turn, Kelsen’s criticism helps to identify weak points and challenges in Jellinek’s theory, such as its exclusive focus on the nation state.
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