Law as Fact and Norm. Georg Jellinek and the Dual Nature of Law

Abstract

The history of legal scholarship is full of one-sided views that undervalue either the factual or the normative dimension of the law. This article develops a well-balanced account of law’s relation to both fact and norm by discussing two elements of Georg Jellinek’s theory of law. First, it discusses his thesis of the ‘normative force of the factual’, in the light of Kelsen’s critique and the problem of an Is-Ought-Fallacy. This article argues that we should better label this thesis the ‘regarded-as-normative force of the factual’. Second, the article focuses on Jellinek’s two-sided theory of the state and its modern variant, the dual nature thesis. It identifies the bridge problem as the main challenge to these accounts, and answers this problem by pointing to the dual nature of legal argumentation and to a dynamic theory of legal discourse.