Integrative Jurisprudence: Legal Scholarship and the Triadic Nature of Law

• Date: 01 December 2020
• DOI: http://doi.org/10.1111/raju.12301
• Author: Matthias Klatt
• Published date: 01 December 2020

© (2021) The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris, Vol. 33 No. 4 December 2020 (380–398)

Integrative Jurisprudence:

Legal Scholarship and the Triadic

Nature of Law

MATTHIAS KLATT

Abstract. What is the core of legal scholarship? How can we understand its relation to other

disciplines, such as moral and political philosophy, sociology, and economics? I explore these

questions by analysing the impact of the dual nature thesis. Criticising established theories of

legal scholarship, I defend the ideal of an integrative jurisprudence. Integrative jurisprudence

combines the two dimensions of law by employing analytical, empirical, and normative meth-

ods. I then discuss three objections and address the problem of how to bridge is and ought. In

the course of my analysis of three different bridge theories, I ultimately further develop the dual

nature thesis into a triadic nature thesis.

1. Introduction

The conception of legal scholarship as an academic discipline, with distinct re-

search questions, objects, and methods, is a highly contested issue. What exactly is

the proprium of legal scholarship? How can we construct the relations between legal

scholarship and other disciplines, most importantly moral and political philosophy,

sociology, and economics? “A picture of baffling diversity and perplexing inconsis-

tency” (Bodenheimer 1978, 204) exists beneath the glossy surface of our discipline:

Tossed to and fro between facticity and validity, political theory and legal theory today are

disintegrating into camps that hardly have anything more to say to one another. The tension

between normative approaches, which are constantly in danger of losing contact with social

reality, and objectivistic approaches, which screen out all normative aspects, can be taken as a

caveat against fixating on one disciplinary point of view. (Habermas 1996, 6)

Nonetheless, many scholars maintain that descriptive and normative inquiries in-

habit two different worlds of knowledge that we cannot hope to reconcile. There is a

significant need for a “reintegrative theory” (Dreier 2005, 221). The thesis I develop

in this article is that the triadic nature of law provides such a theory.

My new thesis that law has a triadic nature builds upon and further develops

Alexy’s (2010) dual nature thesis. Alexy advanced his dual nature thesis in a different

field, namely, the field concerned with the concept of law. I have already transferred

his conceptual thesis to the area of legal argumentation (Klatt 2015, 2016). In this

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Ratio Juris, Vol. 33, No. 4 © (2021) The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Integrative Jurisprudence

article, I endeavour to make a second transfer of this thesis, namely, to the problem of

the nature of legal scholarship (see also Nason 2013, 451–2).

The triadic nature of law leads me to the concept of integrative jurisprudence.

Integrative jurisprudence is a theory of legal scholarship that explicates the inter-

action of its various methods. Integrative jurisprudence holds that we must and

can bridge the rift between analytical, empirical, and normative methods by way of

synthesis (cf. Berman 1988, 779; Bodenheimer 1978, 204–5; Fechner 1962, 291–4; Hall

1958, 37–9). Integrative jurisprudence is in sharp contrast to all positions that see

descriptive and normative theories of law as radically disjunct. In this article, I want

to join forces with scholars who have castigated the “particularistic fallacy” (Fechner

1962, 53–86; Hall 1958, 25) of the prevailing restrictive theories of legal scholarship,

which monopolise one of the three methods at the cost of excluding the others.

In this article, I will understand “legal scholarship” as a single enterprise. I do

not intend to deny that it could also be understood as a plurality of enterprises. The

latter perspective arises when we consider the plurality of scholars and objectives of

academic enquiry. An intriguing taxonomy has been provided by Jakab (2011). The

diversity of legal cultures (Legrand 1996; Varga 2012) can influence different concep-

tions of legal scholarship and affect our judgements about the appropriate balance of

the three methods.

Nonetheless, I pursue the distinct question what these different approaches have

in common, and what unites them into a single enterprise. My aim is not to give a

complex descriptive account of the differences in legal scholarship. Instead, the very

point of my article is that these perspectives only grasp different sub-aspects of the

law. The question I address is what understanding of legal scholarship we arrive at

when we disregard the existing plurality of approaches. I concentrate on understand-

ing legal scholarship per se. I make a normative-analytical argument and claim that,

given the triadic nature of law, any scholarship that wants to get the full picture of

the law must be integrative. Attention to both the real and the ideal dimension and

their various sub-aspects is necessary in any enterprise that wants to understand

the law in its entirety. This leaves room for more narrow goals of inquiry which ac-

cordingly could focus on one or the other dimension of the law while neglecting

the others. While legal scholarship itself can be seen as a sociocultural phenomenon

(Engle Merry 2012; Kahn 1999; Nelken 2004), I engage in an analytical and normative

argument here.

2. The Dual Nature Thesis

Integrative jurisprudence presupposes a broader definition of law than that which is

usually adopted by each of the legal philosophical schools (Berman 1988, 781). The

dual nature thesis provides a starting point for such a broader definition. According

to the dual nature thesis, law consists of both a real, factual, authoritative, institu-

tional dimension as well as an ideal, critical dimension (Alexy 2010; Finnis 2014,

95–6; Jellinek 1921, 50; Wolf 1953, 20–1).

The ideal dimension of law stems from law’s claim to correctness (Alexy 2000).

Moral correctness is added to authoritative issuance and social efficacy as the third

element of a nonpositivist concept of law (Alexy 2010, 167). The claim to correctness

can only justify law’s ideal dimension if moral correctness exists at all—a premise

that the objection from moral irrationalism (Mackie 1977, 35) denies. Nonpositivists