Ratio Juris. Vol. 3 No.

1 March 1990 (1-13)

copyright 0 Robert Alexy and Ralf Dreier 1990

The Concept of Jurisprudence*

ROBERT ALEXY and RALF DREIER

Abstmct. The first part of this article contains (i) considerations as to the relationship
between jurisprudence and legal dogmatics, legal philosophy, and sociology of law;
(ii) considerations about the status of jurisprudence both as a meta- and an object-theory.
These lead to the suggestion that jurisprudence should be defined as a general juristic
theory of law and legal science. In the second part, the characeer and elements of this
definition are explained systematically. The article's main thesis is that jurisprudence
is not distinguished from legal philosophy and sociology of law by its subject or its
method, but by the specifically juristic research aspect or perspective it is based upon.

I. Stating the Problem

The concept of jurisprudence' is contested. The main problems of delimitation
lie in the relation of jurisprudence to legal dogmatics on the one hand and to
legal philosophy and sociology of law on the other. These are augmented by
problems of the relationship between the theory of law and the theory of legal
science.

1 . Jurisprudence and Legal Dogmatics

Legal dogmatics can be defined as the juristic theory of a single legal system's
positive law. In all developed legal systems it is divided into specialist dogmatics,
e.g., the dogmatics of civil law, criminal law, administrative law, constitutional
law, etc. These sections again show various subdivisions. From this fact emerges
the need for a general juristic theory of positive law, which is also called "general
theory of law" ("Allgemeine Rechtslehre"). This need is the most important

The authors' warm thanks are due to: Miss Susanne Gaschke for help with the translation of
the original German text and to: Prof. Neil MacCormick and Mr. Zenon Bankowski for advice
on the final English version.
Instead of the term "jurisprudence"the term 'legal theory" might be used throughout this paper.
For the present purposes the two terms are treated as synonyms.
2 Robert Alexy and Ralf Dreier

reason for jurisprudence to become a basic systematic discipline in its own right.
A general juristic theory of positive law can take into account the positive
law of one, several, or all legal systems. As long as it refers to the positive law
of just one given legal system, for example to the positive law of the Federal
Republic of Germany, it is general legal dogmatics by definition. Its main
concerns are those basic concepts shared by all specialist dogmatics of this
system. By reference to these concepts, the specialist dogmatics are subsumable
within the general dogmatics of law. Where reference is made to concepts which
apply to more than one single legal system, the general dogmatics of law itself
becomes subsumable within a more general theory, which, because it takes into
account more than just one single legal system, is no longer legal dogmatics
in the defined sense.
Traditionally, such a general theory has been conceived as follows: It inquires
into the basic concepts of positive law in several related systems, usually systems
in societiesbelonging to Western culture. As there are, however, basic concepts
like, e.g., those of law, of the legal norm, of validity, and of application of the
law, which can be claimed with sound reasons to appear in all real and all pos-
sible legal systems alike, every regional theory is referred to a universal legal
theory, that is, to a general juristic theory of law. A legal theory understood
in this way claims on the one hand, as a juristic theory, to be a basic systematic
discipline of legal science, whereas on the other, as a general legal theory, it
encroaches on legal philosophy and legal sociology. Thus arises the question
of its delimitation with respect to these disciplines.

2. ]urisprudence and Legal Philosophy

In order to fix a boundary between jurisprudence and legal philosophy three
criteria can be taken into account: one concerning the subject, one concerning
the method, and one concerning the aspect.
(a) Legal philosophy has traditionally been concerned with the theory of
natural law and/or the law of reason, that is, with the ethical theory of the
right or the just law. In contrast to this, as pointed out, jurisprudence has
emerged to satisfy the need for a general theory of positive law. This may afford
a ground for distinguishing between them according to their subjects, juris-
prudence being the theory of positive law and legal philosophy being the theory
of right or just law.
Two objections can be raised against this distinction. First, legal philosophy,
as a theory of right or just law, has always and necessarily included conceptual
analyses of the basic concepts of law in general, which includes positive law,
like the concept of the legal norm, legal obligation, and validity. At least to
this extent, it encroaches on jurisprudence. Secondly, this distinction can only
be maintained if jurisprudence is defined as a general theory of positive law, ,

excluding any concern with the problem of justice. Such a conception pre-
supposes that there is no conceptually necessary connection between the law
 The Concept of Jurisprudence 3

as it is, Le., the positive law, and the law as it should be, i.e., natural law or
law of reason. This is the main thesis of legal positivism. However, important
objections can be made to this, and to discuss them is one of the main tasks
of jurisprudence. This is a point against defining the subject of jurisprudence
in a manner that pre-decides the solution to one of its main problems by
definition.
(b) Methodologically, jurisprudence can be pursued in various ways. One
of its main lines is analytical jurisprudence, which restricts itself methodologically
to structural analyses of the law and its concepts and thus sets itself apart from
legal philosophy as a discipline that works basically in a normative way. This
difference in method reflects the difference in subject mentioned. The reasons
stated above further stand against making it the basis of the definition of'
jurisprudence.
These reasons cannot be removed by the fact that the methodological instru-
ments of analytical philosophy and philosophy of science, which are used by
analytical jurisprudence, come near the ideal of exact science. First of all, these
instruments can also be employed to solve normative problems. Secondly, even
if the consideration of normative problems meant a loss of exactness, this would
have to be accepted for the sake of jurisprudence as a juristic discipline that
refers to practical problems, too, as long as a minimum standard of rationality
is guaranteed.
(c) Law can become the subject of scientific research under various aspects
or perspectives. Examples are historical, logical, ethical, sociological, economic,
and juristic aspects. Points of view defined according to the interests in terms
of which subjects are examined are the basis on which different aspects or
perspectives are distinguished. Furthermore, one has to differentiate between
subjective and objective aspects of research. An aspect of research is of subjective
character once and as far as it is chosen by an individual scientist according
to his personal interest. It is of objective character once and as far as it is
institutionally determined. It is institutionally determined above all by conven-
tions, that is, by socially valid norms of the scientific community, but partly
also by legally valid norms regulating sciences. Objective aspects of research are
the uniting principle of scientific disciplines and can be used for their definition.
Jurisprudence as it developed historically and as it is currently practiced -
also as it would be pursued in terms of ideal rationality - is based on a specifically
juristic aspect of research. It is, accordingly, a juristic (or 'lawyerly') discipline,
a fact also evidenced by the way in which it is integrated into the law faculties
and legal research institutions. The juristic aspect of research, which it shares
with other disciplines of legal science, is characterized by the fact that legal
science as a whole - directly or indirectly - is concerned with establishing what
persons in particular cases are legally obligated, prohibited, enabled or permitted
t.o do. Legal philosophy, on the other hand, having been pursued in its prime
- from Plato and Aristotle to Kant and Hegel - by philosophers rather than
jurists, is traditionally based on specifically philosophical aspects of research,
4 Robert Alexy and Ralf Dreier

like for example the scrutiny of law's structure, in order to learn something about
a certain part of reality as a whole and/or the elaboration of criteria concerning
the ethical rightness of the law.
The theories of law elaborated by philosophers under these aspects always
were and are of importance to law in general and to jurisprudence in particular.
This is valid also for any structural as well as for any ethical theory of the law
which philosophers may establish. The delimitation made above seems to be
jeopardized by this fact. It does not offer any criterion that allows a system
of statements about the law to be qualified as definitely belonging to legal
philosophy or to jurisprudence. Theories developed under a philosophical aspect
of research might very well deal in detail with basic concepts of law, such as,
e.g., the concept of the application of law or the concept of property, i.e.,
concepts of special juristic interest. On the other hand, it is perfectly possible
that theories developed under a juristic aspect of research could be concerned
with very general structural analyses for example of norms and individual rights
and the relations between them, i.e., analyses that might be of great interest
to philosophy. So far, systems of statements in legal philosophy and in
jurisprudence are identical, as to their possible contents. Beyond this, the
problem of delimitation is aggravated by the fact that post-Hegelian legal
philosophy has institutionally passed from philosophy departments to law
faculties and accordingly has been pursued by jurists rather than by philosophers
- a development that has only begun to be reversed in the last two or three
decades.
Still, there remain good reasons in favour of the proposed demarcation. It
is not directly concerned with theories as systems of statements but rather with
disciplines as systems of action. This is no doubt a difference which commonly
has some effect on the systems of statements created in varying systems of action
under diverse aspects of research. Generally speaking one can say that juristic
theories of law are distinguished from philosophical theories of law by being
more closely concerned with topics in the area of judicial and other forms of
legal decision-making. The suggested demarcation is thus based on a criterion
external to the system of statements, but with consequences internal to it;
consequences which do not follow always and necessarily, but quite normaIly
and commonly.
The difference in aspect between jurisprudence and legal philosophy produces
a considerable range of variation in systems of statements about the law. This
makes possible a rule of thumb distinction between the two disciplines for
pragmatical reasons, which picks up the thread of what is traditionally empha-
sized in research. By this test, general theory of law, legal methodology, and
the theory of legal sciences all belong to jurisprudence, while the history of legal
philosophy and legal ethics both belong to legal philosophy. This is, however,
only an undeveloped and rough distinction that does not affect the plausibility
of the differentiation suggested here.
As far as legal philosophy performed by jurists is concerned, philosophical
 The Concept of Jurisprudence 5

and juristic research aspects, as subjective ones, are often interconnected. The
disciplinary status of such work, however, is neither defined by the name it
happens to be given nor by its authorssubjective interests, but by the dominance
of one research perspective or the other, which is not in the end determined
by the authors professional competence.

3. Jurisprudence and Sociology of Law

Of the disciplines considered here, sociology of law is the youngest. Like
sociology itself, it appeared as late as the second half of the 19th century and
has only become a discipline of its own in the 20th century. Theoretical sociology
of law aims to work out a sociological theory of the law as a central element
of the structure of social systems; thus it is part of general theoretical sociology.
Empirical sociology of law examines aspects of the legal systems, such as, for
example, the social efficacy of norms or complexes of norms by means of
empirical social science; thus it is one of many special sociologies. Since,
however, empirical sociology of law is also concerned with testing hypotheses
about law proposed by theoretical sociology of law, it is justifiable to regard
empirical and theoretical sociology of law as one disciplinary unit. For the
delimitation of this discipline from jurisprudence one can employ again the
problem pattern of differentiation by subject, method, and research aspect or
perspective.
(a) At first sight, jurisprudence and sociology of law are identical as far as
their subject is concerned, because it is the law in both cases. On second
thoughts, a difference in subject matter appears, because and in so far as legal
sociology is concerned with the law as a social phenomenon (that is, with the
entirety of socially effective norms), while jurisprudence is concerned with the
law as a juristic phenomenon (that is, with the entirety of legally valid norms).
This difference, which already discloses the element of aspect or perspective,
is reflected in the variety of sociological and juristic definitions of law. There
are, however, juristic definitions of law which correspond with sociological
definitions as to their contents, and there are conceptions of jurisprudence that
suggest its susceptibility to a sociological self-assessment. The adequacy of these
definitions and conceptions is controversial. It may be admitted in the face of
them that the social efficacy of norms and systems of norms is a necessary
element in the definition of the juristic concept of law. But it is not a sufficient
one. This means that law, in the sense in which it is the subject of legal sociology,
does belong also to the realm of jurisprudence, but in a different perspective.
Problems of the relation of jurisprudence and sociology of law with respect to
their subjects appear substantially to be problems of the two disciplinesrelation-
ship in aspect. Their subject as such is therefore not sufficient for the purpose
of distinguishing between them.
(b) Methodologically, sociology of law both empirical and theoretical is a dis-
cipline working mainly empirically or empirical-analytically. Only occasionally,
6 Robert Alexy and Ralf Dreier

for example in the context of critical social theory, does it employ normative
methods. Jurisprudence, as will shortly be explicated, is a discipline working
first of all analytically or analytical-normatively, but embracing an empirical
dimension as well. The methodological stresses of the two disciplines are con-
sequently different, but there are methodological overlaps which make a strict
delimitation in this respect impossible.
fc) The decisive criterion for delimitation is again the criterion of aspect. The
research perspective in jurisprudence as a juristic discipline has already been
characterized. The research perspective or aspect in sociology of law as a
sociological discipline lies in the fact that its institutional purpose is to describe
and explain the law as a social phenomenon, revealing especially the actual
structures of the legal system and the functions of law within the social system.
This difference in perspective or aspect does not mean that legal sociology
is of no importance to jurisprudence. On the contrary, results of empirical legal
sociology, sociological analyses of the basic concepts of law, and sociological
theories concerned with the law have real impact on jurisprudence in all its
dimensions. To this extent the relationship between jurisprudence and sociology
of law is analogous with the relationship between jurisprudence and legal
philosophy. In both relationships, delimitation is determined by a criterion which
is external to the system of statements and which has only indirect internal
consequences for it. Just as systems of statements of jurisprudence and of legal
philosophy can be identical as to their content, so too can statements of
jurisprudence and of sociology of law. The disciplinary particularity of
jurisprudence, as being different from legal philosophy and sociology of law,
manifests itself in its closer relationship to legal dogmatics and, through this,
to legal practice.
Another parallel lies in the fact that sociology of law is pursued partly by
and for sociologists and partly by and for jurists, just as philosophy of law
involves philosophers and jurists alike. In order to differentiate, one again has
to decide which research perspective dominates and on which side the main
weight of professional competence lies. The remaining problems of delimitation
lie in the nature of the subject matter. In the light of these remaining problems,
it becomes obvious that the system of scientific disciplinesis historically contin-
gent and temporally open. But this does not detract from the possibility of
differentiating by reference to pragmatical stresses in the relationship between
jurisprudence and sociology of law, just as was done previously for the relation-
ship between jurisprudence and legal philosophy.

4 . Theory of Law and Theory of Legal Science

As distinct from legal dogmatics, legal philosophy, and sociology of law,
jurisprudence has been defined as a general juristic theory of the law. That this
is not as yet a thoroughly acceptable definition of jurisprudence follows from
a fact so far mentioned only incidentally, namely that jurisprudence traditionally
 The Concept of lurisprudence 7

and rightly also comprises legal methodology and the theory of legal science.
As a general juristic theory of law, jurisprudence has a certain subject - the
law - and as a theory it is characterized in a certain way, that is by the attributes
"general" and "juristic". Insofar, it has the status of an object-theory. Legal
methodology and the theory of legal science on the other hand have the status
of rneta-theories. They are not directly theories about the law, but theories about
its recognition. The research perspective of jurisprudence, focussing on the deter-
mination of what the content of law in a particular case is with respect to the
individual subjected to it, requires an extension of the realm of jurisprudence
onto a meta-level. It may be true that in many cases an answer to the question
of what the legal system makes obligatory in a particular case can be found
without meta-theoretical reflection, or, more plainly, by intuition. In hard cases,
however, it is hardly possible to find a right answer without methodological
deliberation. Methodological deliberation can also make it more likely that a
right answer will be found in easy cases.
The upshot of this appears to be that jurisprudence consists of three com-
ponents: (1)a general juristic theory of the law, which is mainly a theory of
the basic concepts of law in its analytical part and which thus continues the
tradition of the general theory of law ("Allgemeine Rechtslehre"), ( 2 ) a legal
methodology with the stress on a normative theory of judical decision-making,
and (3)a theory of legal science. On closer inspection, however, it seems that
this trinity should be reduced to a dualism. The central discipline of legal science
is legal dogmatics. Its main task is to guide and control juristic decision-making.
This means that the methodology of legal dogmatics embraces the methodology
of juristic decision-making. Thus legal methodology is part of the theory of legal
science. Consequently, jurisprudence can be defined as a general juristic theory
of law and legal science.
This dualistic model can be further reduced to a monistic one. It is possible
to define the concept of law in such a way as to cover not only a system of
norms, but also the process of their recognition and application. Since they are
theories about such processes, legal methodology and theory of legal science
would eo ips0 be theories of law. A jurisprudence which includes this meta-
level can therefore simply be defined as a "general juristic theory of law." This
definition can moreover be formulated differently without changing its substan-
tial content. If recognition and application of law belong to a wider concept
of law, they are basic concepts of law. Jurisprudence could accordingly be
defined as a juristic theory of the basic concepts of law.
These considerations prove the relativity of definitionsand show the importance
of the role which reflections on adequacy play in establishingthem. Considerations
on adequacy tell in favour of a dualistic definition. Notwithstanding the various
connections between them, object- and meta-level can be distinguished, and
distinguishing them is of substantial importance to a systematic handling of
jurisprudence. On this ground, a dualistic definition is suggested here, defining
jurisprudence as a general juristic theory of law and legal science.
 Robert Alexy and Ralf Dreier

11. Jurisprudence as a General Juristic Theory of Law

and Legal Science
There follows a systematic explanation of the definition worked out above.

7. Status of the Definition

The definition given is partly normative and partly descriptive in character.
It is descriptive in character insofar as it tells how jurisprudence is usually
understood and pursued. It is nornative in character insofar as it states how
jurisprudence should correctly be understood and how it should be practiced.
Excluded from the definition are non-disciplinary and unspecific uses of the
expression "jurisprudence" (as well as of the synonymous expression "legal
theory" or "Rechtstheorie"). A non-discip2inm-y use is at issue if the expression
refers to systems of statements about the law independent of whether these
belong disciplinarily to legal dogmatics, or jurisprudence, or legal philosophy,
or sociology of law, or any other discipline. Such a non-disciplinary use would
be in play, if one spoke for example about Kant's, Hegel's, Marx's, or Max
Weber's "Rechtstheorie" or legal theory. This rather common use of the word
in German is unaffected by the definition given above. The resulting ambiguity
of the term "Rechtstheorie" is harmless because and to the extent that the
respective context makes obvious the sense intended.
Especially in older German literature, the term "Rechtstheorie" was often used
with the limited meaning of a merely theoretical pursuit of the law as opposed
to the practical application of the law. This use of the term, which is based
on a theory/practice dichotomy is non-specified, because it leaves open the
categorisation of systems of statements about the law both by reference to
scientific disciplines and by reference to individual authors. It seldom appears
today and is not considered here.

2 . Explication of the Definition

For an explication of the present definition of jurisprudence, it is necessary to
consider its four elements: ( A )the concept of theory, (B) the predicate "juristic,"
(C) the concept of generality, and ( D )the conjunction "law and legal science."
( A ) As a theory of law and legal science, jurisprudence is a system of
statements. This denotes that system of statements which belongs to
jurisprudence as a scientific discipline. As a scientific discipline jurisprudence
is a system of actions as well as a system of statements. Only the latter is subject
to the definition in question.
( B ) As a juristic theory, jurisprudence is distinguished from non-juristic
theories of law and legal science.
(1) A theory is juristic if its orientation is determined by a juristic research
perspective o r aspect. It is so determined if it is concerned directly or indirectly
with what the law's content is in a particular case with respect to an individual
 The Concept of Jurisprudence 9

subjected to it. This means that a theory counts as juristic by virtue of its
relationship to legal and especially judicial decision-making. Since the subject
of the present definition is jurisprudence as a scientific discipline, what is the
issue here is the objective, i.e., institutionally determined research perspective
or aspect.
( 2 ) As a juristic theory in the sense explained, jurisprudence is necessarily
a three-dimensional discipline. It has each of: an analytical, an empirical, and
a normative dimension. To the extent that it structures the statements belonging
to any one dimension systematically, it is at the same time an integrative
discipline.
(2.1) The analytical dimension is concerned with the logical and conceptual
analysis of the basic concepts of law and legal science. For sound reasons, the
stress of the discipline has traditionally been laid on this. However, attempts
to define jurisprudence exclusively as an analytical discipline must fail. They
are inadequate, because jurisprudence is confronted with the task of integrating
the empirical and the normative dimension, if it wants to satisfy the demands
of its juristic research perspective. Furthermore, the analysis, for example of
the concept of law, of the validity of law, of a legal system, and of the applica-
tion of law shows that none of these can be satisfactorily accomplished without
taking into account empirical and normative elements.
(2.2) There are three respects on which the empirical dimension of
jurisprudence bears: first with respect to the recognition of positively valid law
and the actual practice of legal science; secondly with respect to the use of
empirical premises within the frame of normative arguments; and thirdly with
respect to the examination of factual structures and functions of the law.
Concerning the first point, the recognition of positive law is the task of legal
dogmatics. Jurisprudence needs as its starting point and as material for its
analyses the knowledge developed by legal dogmatics. To this extent, it makes
reference to legal dogmatics. In addition to this, it can apply specifically
jurisprudential aspects to seek more information about positively valid law.
Because of their meta-theoretical status, any findings about the practice of legal
science as it is actually performed have a genuinely jurisprudential character.
Insofar as statements about the practice of legal science are made in legal-
dogmatic contexts, for example in methodological theses, jurisprudence is
practised within the disciplinary framework of legal dogmatics.
The research perspective of jurisprudence includes an ambition to provide
answers to the questions of how the law should be. From this can be derived
the second point of relevance to the empirical dimension. Jurisprudence has to
argue normatively as well as descriptively. Though arguing normatively is
different from arguing empirically, empirical premises are just as essential to
it as the empirical arguments they are based upon. So, a rational theory of the
just state is impossible without empirical assumptions about psychological,
social, and economic facts. In this way jurisprudence connects up with disciplines
like psychology, sociology, and economy.
10 Robert Alexy and Ralf Dreier

As far as the third respect is concerned, jurisprudence is dependent upon the

examination of factual structures and functions of the law in order to obtain
as comprehensive as possible an understanding of its subject. What is more,
a sufficient amount of such knowledge is necessary for successful work in the
normative, and, to some extent, the analytical dimension. The exploration of
factual structures and functions of the law is basically a task for the sociology
of law, and at the same time (though with controversial delimitations) a task
for legal psychology and political sociology, as well as (in relation to former
legal systems) legal history and (in order to compare different legal systems
systematically) comparative law. These are, in part, sub-disciplines of legal
science; in part they are partial disciplines of independent neighbouring sciences,
in regard to which the second respect differs from the third respect of the
empirical dimension; for the second respect deals with general social-scientific
regularities, which play a role in normative arguments, while the third respect
is aimed at findings of the neighbouring sciences, which concern the legal system
as such. In both respects, jurisprudence has to test the results of scientific research
in neighbouring sciences (and results worked out by other partial disciplines
of legal science) as to their importance to a general juristic theory of law and
legal science and to integrate them according to their relevance. Besides,
empirical examinations carried out under specific jurisprudential perspectives
also belong among the tasks of jurisprudence.
(2.3) The normative dimension is concerned with how the law should be and
how legal science should be performed. So, on the one hand this calls for a
theory of right or just law and on the other for a theory of good legal science.
A jurisprudential theory of right or just law is in the first place a theory of
the justice which is implicit in the basic concepts of law. To be this, it has to
embrace a theory of justice, because to whatever extent this implicit justice
belongs to the legally valid law, to that extent a theory of justice is a necessary
element of jurisprudence. At the same time, justice is the main subject of legal
philosophy as legal ethics. Legal philosophy as legal ethics is a philosophical
discipline; a sub-discipline of practical philosophy. From this fact reciprocal
references and questions of scientific division of labour result; but that does
not dispense jurisprudence from the task of attending to the theory of justice.
As a normative theory of legal science, jurisprudence is basically concerned
with the elaboration of criteria that tell how legal science has to proceed in order
to obtain correct results. To that extent, it belongs to the normative philosophy
of science. Furthermore, the question of good legal science includes the question
of how legal science can be pursued responsibly. This is a problem of the ethics
of legal science as a partial problem of the general ethics of science.
(C)As a general juristic theory of law and legal science jurisprudence is not
limited in its subject to the positive law of a certain legal system and its legal
dogmatics but refers to law and legal science as such.
(1)From the characteristic of generality follow some disciplinary
delimitations.
 The Concept of Jurisprudence 11

(1.1)It was explained above that jurisprudence differs from legal dogmatics
insofar as the second is concerned with the law of a certain legal system while
the first deals with the law of all real and all possible legal systems. The same
goes for the theory of legal dogmatics as a meta-theory. As a meta-theory
jurisprudence is not only concerned with the legal dogmatics actually pursued
in a certain legal system, but with the legal dogmatics carried out in all real
and all possible legal systems. There are, however, sound reasons for
jurisprudence as a meta-theory to be chiefly concerned with the legal dogmatics
actually pursued in a certain legal system rather than with the merely possible
legal dogmatics of merely possible legal systems. Legal dogmatics actually
performed in a certain legal system on the one hand provides jurisprudence with
material, thus lowering the danger of merely abstract and speculative statements.
On the other hand, any legal dogmatics actually pursued and any legal system
actually existing feature all the structures necessary for legal dogmatics and legal
systems, and a part of the structures merely possible for them.
(1.2) As a theory of all real and all possible legal systems jurisprudence also
differs from legal history and comparative legal science. The first deals with
real legal systems in their temporal dimension, the second with real legal systems
in their spatial dimension. In spite both of this difference and of different
methodological stresses there are overlaps. These do not establish disciplinary
identity, but they do constitute mutual reference points.
(1.3) Furthermore, there are overlaps with the general theory of the state.
These are due to the facts that the state is an essential element of most legal
systems and that legal systems cannot be examined analytically or empirically
or normatively without considering that they are mostly organized as states.
Also, the general theory of state, which, like the general theory of law, has
emerged as a discipline of its own in the last century, shares with jurisprudence
the juristic research perspective and the character of generality. As a general
juristic theory it is characterized by a limited subject matter in contrast to
jurisprudence. It is a theory of all real and all possible states. As far as a theory
of all real and all possible legal systems includes such a theory one can say that
jurisprudence embraces the general theory of the state. Sometimes, especially
in the marxist realm, the two are treated as disciplinarilyidentical. Its disciplinary
independence has its reason in different traditional emphases of research. If only
for the sake of completeness, political science ought to be mentioned here, too.
Its disciplinary status is not yet clearly defined. Partly it is carried on in much
the same way as the general doctrine of the state. It has, however, been chiefly
established as a partial discipline of the social sciences and is thus characterized
by a social-scientific research perspective which is different from the juristic one.
(2) The concept of generality presents itself in different ways in the three
dimensions of jurisprudence.
(2.1) In the analytical dimension generality means conceptual necessity. One
has to distinguish between two uses of the term "necessary."
In the first application it is used to formulate statements about what has to
12 Robert Alexy and Ralf Dreier

be there so that one can talk about "law" and "legal science" at all. In this
application the theses that law is not possible without legal norms or that the
law is always somehow related to justice are true or false claims about concep-
tual necessities. Generality in this sense refers to necessary conceptual structures
of law and legal science and thus to necessary properties of law and legal science
as a whole.
In the second application the term "necessary" is not used to mark
characteristicsof law or legal science as a whole, but to mark structures of certain
legal concepts, like those of the norm, permission, obligation, prohibition,
weighing correctly, and subsumption. One has to distinguish between the two,
because there are conceptually necessary structures in the realm of law that do
not have to be realized in order to talk about "law" and "legal science" at all.
So, on the one hand there are conceptually necessary structures of rights and
weighing while, on the other, it may be conceptually possible that something
is a legal system without containing rights and weighing.
The elaboration of conceptually necessary structures can be called "structural
analysis" or, granted a wide concept of logic, "logical analysis of the law." A
logical analysis which strives for understandings of conceptual necessities in
the meanings explained always yields understandings of the conceptually
impossible as well as of the merely conceptually possible. The latter are no mere
by-products. A thorough presentation of that which is conceptually necessary,
impossible and merely possible provides a model of the logical space of law
and legal science.
(2.2) In the empirical dimension, generality is not based on conceptual
necessities but on empirical generalizations. This means that general juris-
prudential statements belonging to the empirical dimension call for empirical
examination and corroboration.
(2.3) In the normative dimension, again, two meanings of the concept of
generality have to be distinguished. In the first meaning this concept refers to
normative statements about right or just law, which claim to be valid to all
legal systems. Generality consequently means universality of validity. It is an
open question whether general normative statements in this sense can be justified
or whether they are always relative to the cultures the legal systems in question
are based upon. In the second meaning generality refers to generalizability as
a criterion of rational justification and thus of the correctness of normative
statements. Both meanings are connected by the fact that generalizability in
the sense of rational justification forms an argument in favour of the universality
of validity.
(3) Finally, the characteristic of generality poses the question of the relation-
ship of generality and speciality in jurisprudence. As a discipline, jurisprudence
comprises by definition a general theory in the sense of a comprehensive theory
of law and legal science. This does not rule out, however, a distinction between
its general and its special theories, or between jurisprudence as a complete disci-
pline and jurisprudential sub-disciplines. In this sense jurisprudence traditionally
 The Concept of Jurisprudence 13

embraces (as mentioned above) the sub-disciplines of general theory of law,

of legal methodology, and of the theory of legal science. Newer sub-disciplines
are deontic logics and juristic computer science. The thorough mastery of these
requires such a high degree of specialization that no one can be an adequate
authority in all fields of jurisprudence any more. The main schools in
jurisprudence - the analytical, the empirical, and the normative (as well as marx-
ist jurisprudence) - are special fields within the discipline and their correct treat-
ment requires a professional specialization too.
(D)As a general juristic theory of law and legal science jurisprudence con-
sidered in terms of its subject matter has two parts. The two subjects, law and
legal science, have however, as has been shown, systematically necessary
interconnections through the theory of the application of law. A general juristic
theory of law requires a theory of procedures for eliminating vagueness, gaps,
and conflicts in the legal system and a general juristic theory of legal science
requires a theory of the structures of legal systems to which legal science refers
institutionally.

Christian Albrechts University

Faculty of Law
Olshausenstrafle 40
D-2300 Kiel
West Germany

Georg August University

Faculty of Law
Platz der Gottinger Sieben 6
0-3400 Gottingen
West Germany