GEORG JELLINEK ON VALUES AND OBJECTIVITY IN THE LEGAL AND POLITICAL SCIENCES

Abstract

Georg Jellinek was one of the legal theorists who brought a new level of methodological sophistication to German public law scholarship at the turn of the twentieth century. Where previous research has called attention to his theory of conceptual “types” and his application of contemporary neo-Kantian epistemology to the law, this article explores his thinking on the nature of values and value judgments, and the possibilities for objectivity in the legal and political sciences. Jellinek sought to open an increasingly calcified legal positivism to the findings of the social sciences and to an inherently pluralistic, changing world of subjective values, but without abandoning the positivist ideals of legal certainty and the exclusion of political and other value judgments. Analyzing his response to this challenge opens a window onto his broader work in public law and political science, illuminating doctrines like the “two-sided” theory of the state and the “normative power of the factual,” which have achieved a lasting place in German legal and political theory. It also shows why Jellinek put aside the traditional ideal of bias-free objectivity for a surprisingly modern vision of a process of intersubjective agreement, driven by the institutions of free and open scholarly debate.