The Problem About the Nature of Law vis-à-vis Legal Rationality Revisited: Towards an Integrative Jurisprudence

Abstract

In this paper I shall argue, following Frederick Schauer, that attempting to move theoretically from-the-necessary-to-the-important may hinder our understanding of law. I shall further argue that attempting to move from-the-important-to-the-necessary may well be a more promising route for advancing our understanding of law as an interpretive practice which is not merely important or valuable but morally important or valuable and even necessary, as Ronald Dworkin has advocated. My argument also draws on the insights of Oliver Wendell Holmes Jr., who by discussing the important, but apparently neither necessary nor sufficient aspects of legal practice, integrated both logic and experience into law as well as a pluralistic methodological approach to legal rationality. I shall argue that legal rationality comprises five different levels, spheres or types that are at least important or valuable, that one of these is at least morally important or valuable, and that a complex, but still workable, legal rationality is necessary to law. The paper concludes with a brief exploration of various implications of this general conclusion regarding the nature of law vis-à-vis legal rationality, namely that law and legal rationality do -- and even must -- integrate necessary references to morality.

Keywords: law, legal rationality, morality, nature of law, integrated jurisprudence

JEL Classification: K00, K10, K19