Analytical Jurisprudence Research Articles

What Values Separate Law and Fact?

Taking two issues in public law - the distinction between law and fact, and the use of two-step tests – I will set out a framework for thinking about the methodology of creating distinctions in law, taking the second point largely as a way of showing that some of the methodological issues with the law/fact distinction are pervasive in public law. I then make some broad conclusions about the way in which values could be used to distinguish between law and fact, and by extension to describe the operation of two-step tests more neatly. I suggest that the methodological discussions here are a fair and serious challenge to claims that law and fact can be understood separately, and claims that two-step tests can meaningfully operate separately from normal tests of legality. If this kind of analytical jurisprudence is incapable of giving any kind of useful framework for the distinction between law and fact, then our ideas of what the distinction between law and fact could be might need to be reframed. I conclude by suggesting some possible responses, and indicating which seems most useful, notwithstanding some residual problems.

H.L.A. Hart and the Invention of Legal Philosophy

In this essay I argue that in some sense legal philosophy, at least as the term is now understood among analytic jurisprudence in the Anglophone world, is to a large extent a creation of H.L.A. Hart. It is with him that the search for the concept of nature of law has been established as an independent object of inquiry that consciously tried to avoid moral or political questions. In framing the province of jurisprudence in this way Hart not only depart from the work of Thomas Hobbes and Jeremy Bentham, whose political commitments are well-known, but also from the seemingly much closer enterprise of John Austin. After demonstrating the difference between Austin's work and Hart's I criticize the direction legal philosophy has taken following Hart's lead.

The Ineliminability of Hartian Social Rules

On Shapiro’s view, any viable legal theory must successfully respond to his Possibility Puzzle and Humean Challenge. Moreover, he argues that Hartian legal theory fails in this respect. Here, I take issue with his characterization of these challenges and the Hartian response to them. I argue that he equivocates with respect to a number of the key terms and relations that inform his Possibility Puzzle, and I argue that if we disambiguate its terms consistently and plausibly, we will see that its putative challenge to Hartian legal theory is illusory. I also argue that once we adequately characterize Hartian legal theory, it easily meets the Humean Challenge. If correct, these arguments undermine Shapiro’s larger project of defending his planning theory of law, for a key pillar supporting his theory is that it meets challenges that rival theories cannot. I also consider his planning theory directly, and I argue that it compares unfavourably to the Hartian approach in a crucial respect. It obscures the Hartian insight that customary practice is an ineliminable and fundamental feature of legal systems. Thus, I conclude that though Shapiro’s Legality brings to the fore many of the key issues in contemporary analytic jurisprudence and does so in an insightful and provocative way, it does not succeed in its ultimate ambition of improving upon and supplanting Hartian legal theory.

Introduction to the symposium in honour of William Twining

Click to increase image sizeClick to decrease image size Notes Twining, W. (1997) Law in Context: Enlarging a Discipline (Oxford, Oxford University Press). Twining, W. (1967) Pericles and the plumber. Inaugural Lecture, Belfast. Published in shortened form in Law Quarterly Review, 83, p. 396. Twining, W. (1994) Blackstone's Tower: The English Law School (London, Sweet and Maxwell). Twining, W. & Miers, D. (1976) How To Do Things With Rules (London, Weidenfeld & Nicolson). Twining, W. (1980) Goodbye to Lewis Eliot: the academic lawyer as scholar. Presidential Address, Society of Public Teachers of Law, Journal of the Society of Public Teachers of Law, 15, pp. 2–19. See Twining, W. (1998) Imagining Bentham, Current Legal Problems, pp. 1–36; Twining W. (1989) Reading Bentham (Maccabean lecture), LXXV Proceedings of the British Academy, pp. 97–141; Twining, W. (1999) Jeremy Bentham and general jurisprudence (First Eckhoff Memorial Lecture), Tidsskrift for Rettsvitenskap, 112, pp. 381–407. See e.g. Twining, W. (1973) Karl Llewellyn and the Realist Movement (London, Weidenfeld & Nicolson); Twining, W. (1968) The Karl Llewellyn Papers (Chicago, University of Chicago Law School; Twining, W. (1993) Karl Llewellyn's unfinished agenda: law in society and the job of juristic method, Chicago Papers in Legal History, 1993. Twining, W. (2002) The Great Juristic Bazaar (London, Ashgate). Twining, W. (2000) Globalisation and Legal Theory (London, Butterworth); Twining, W. (2009) Implications of globalisation for legal scholarship, in: A. Halpin & V. Roeben (Eds) Theorising the Global Legal Order (Oxford, Hart), pp. 39–59; Twining, W. (2005) Have concepts, will travel: analytical jurisprudence in a global context, International Journal of Law in Context, 1, pp. 5–40. Twining, W. (2007) General jurisprudence, University of Miami International and Comparative Law Review, 15, pp. 1–59; Twining, W. (1996) General and particular jurisprudence – three chapters in a story, in: S. Guest (Ed.) Legal Positivism Today, (Aldershot, Dartmouth), pp. 119–146; Twining, W. (2009) General Jurisprudence: Understanding Law from a Global Perspective (Cambridge, Cambridge University Press). Twining, W., Kamenka, E. & Summers, R. (1986) Sociological Jurisprudence and Realist Theories of Law (Berlin, Duncker and Humblot). Twining, W. (2009) Institutions of law: globalization, non-state law and legal pluralism, in: M. Del Mar & Z. Bankowski (Eds) Law as Institutional Normative Order (London, Ashgate); Twining, W. (2009) Normative and legal pluralism (Bernstein Lecture), Duke Journal of Comparative and International Law, 20, pp. 473–517. Twining, W. (1964) The Place of Customary Law in the National Legal Systems of East Africa (Chicago, University of Chicago Law School). Twining, W. (2008) Surface law, in: H. Petersen, K.L. Kjaer & M.R. Madsen (Eds) Paradoxes of European Legal Integration (Ashgate, Aldershot). Twining, W. (1989) Reading law (Seegers Lectures), Valparaiso Law Review, 24, pp. 1–33. Twining, W., N. Gold, & MacKie (1989) Learning Lawyers' Skills (London, Butterworth). Twining, W. (1991) Lawyers' stories, in: R. Kevelson (Ed.) Action and Agency (New York, P. Lang), pp. 317–389. Twining, W., Anderson, T. & Schum, D. (2005) Analysis of Evidence, 2nd ed. (Cambridge, Cambridge University Press). Twining, W. (1980) Debating probabilities, Liverpool Law Review, 11, pp. 51–64. Twining, W. (1982) Taking facts seriously, in: N. Gold (Ed.) Essays on Legal Education (Butterworths, Toronto), pp. 51–76; Twining, W. (2007) Taking facts seriously again, in: P. Roberts & M. Redmayne (Eds) Teaching legal Scholarship (Oxford, Hart), pp. 65–86. Twining, W. (1986) Taking skills seriously, Commonwealth Legal Education Newsletter, No 43, Appendix. Reprinted in Journal of Professional Legal Education (1986) and Learning Lawyers Skills, op. cit.). Twining, W. & Quick, E. (1994) Legal Records in the Commonwealth (Aldershot, Dartmouth). Twining, W. & Uglow, J. (Eds) (1981) Legal Literature in Small Jurisdictions (Ottawa/London, Canadian Law Information Council & Commonwealth Secretariat). Twining, W. (2009) Punching our weight? Legal scholarship and public understanding (The SLS Centenary Lecture), Legal Studies, 29, pp. 519–533. Twining, W. (1983) Law for Non-Lawyers: Some Preliminary Reflections (London, Commonwealth Secretariat). Twining, W. (1979) Legal education for all, in: D Mitchell (Ed.) Legal Studies and Legal Education for Non-Lawyers (Sydney, Butterworths), pp. 1–13. Twining, W. (1987) The camel in the zoo, in: I. Shivji (Ed.) The Limits of Legal Radicalism (Dar es Salaam, Faculty of Law, University of Dar es Salaam). Twining, W., O'Donovan, K. & Paliwala, A. (1970) Ernie and the centipede, in: A. Jolowicz (Ed.) The Division and Classification of the Law (London, Butterworths). Twining, W. (1973) The bad man revisited, Cornell Law Review, 52, p. 275; Twining, W. (1997) Other people's power: the bad man and English Positivism, 1897–97, Brooklyn Law Review, 63, pp. 189–223. Twining, W. (1973) The way of the baffled medic, Journal of the Society of Public Teachers of Law, 12, p. 348.

A Treatise of Legal Philosophy and General Jurisprudence, vol 3, by Enrico Pattaro Editor-in-Chief, (Dordrecht: Springer, 2007). Page numbers in text are to this book.

Shiner has produced a valuable contribution to the field of analytical jurisprudence. He remains faithful to the investigative and exploratory task that he set for himself. Legal Institutions and the Sources of Law can be usefully consulted by anyone interested in the idea of a “source of law”. And it can certainly be used as an authoritative reference by those legal and political theorists who wish to pursue a fuller normative approach to law or politics.

Positivism Before Hart

Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we conceive of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are thus committing neither historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.

Comparing Natural and Normative Inquiry: The 'Real' and the 'Right' as Ordering Concepts

Charles S. Peirce held that the social impulse, the desire to reconcile our personal beliefs with those of our neighbors, leads us to believe in the “independently real.” “The real, then, is that which, sooner or later, information and reasoning would finally result in, and which is therefore independent of the vagaries of me and you. Thus the very origin of the conception involves the notion of a COMMUNITY, without definite limits, and capable of complete information, so that reality depends on the ultimate decision of the community. . . .Reality consists in the agreement that the whole community would eventually come to.”The real is for Peirce an ordering concept in natural inquiry and natural knowledge. In normative inquiry, even more apparent is the role of the “right” as an ordering concept. The notion of the right binds community and directly influences action, as does that of the real. The literature on the right is distinctively structured, and governed by the concept of justice, itself a highly structural idea. There are two distinct bodies of literature on the “right,” the legal and the moral. I focus here on the early literature of legal pragmatism. This paper, prepared for a conference on pragmatist inquiry, draws the following observations: 1. Normative inquiry, and normative knowledge, is driven in law by disturbances in the social fabric channeled into systematized dispute resolution. 2. Legal normativity is a web or network of standards emerging from disparate practices and woven together by professionals whose mission it is to impose coherence, consistency, and predictability. 3. The pragmatist theory of law as social inquiry implies a research program distinct from analytical positivist jurisprudence, which focuses on the concept and definition of law. 4. While the latter confronts the problem of indeterminacy in the doubtful legal case, the doubtful case is viewed by pragmatism as a stage in a continuing process of classification, in that sense comparable to experimental inquiry in natural science.

AUSTIN'S METHODOLOGY? HIS BEQUEST TO JURISPRUDENCE

This essay explores the disengaged state of contemporary legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. The common view that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an exclusivity in Austin’s field of inquiry that precludes potentially beneficial engagement with theoretical rivals, revolving around Austin’s central insight on the distinction betweeen the existence of law and law’s merit. His insight is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. This would encompass greater engagement between legal theorists themselves; would offer opportunity for engagement with other prospective stakeholders in legal theory; and position legal theory to deal with new forms of global legal phenomena.

The Province of Jurisprudence Contested

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, is regarded as presenting the opportunity for considering what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry. The scale of Hutchinson’s ambition matches John Austin’s original efforts to determine the Province of Jurisprudence, but seeks to replace an analytical approach to jurisprudence he associates with Austin by a theoretical approach committed to advancing “strong” democracy. This provokes an initial reflection on the nature of theoretical disageement, and in particular disagreement which goes beyond trivial theoretical contestability so as to contest the nature of the subject matter that is being investigated by establishing an appropriate field of inquiry for it. Three different techniques are introduced which are capable of demarcating the subject matter of jurisprudence through establishing a field of inquiry favouring a particular theoretical viewpoint: axiomatic disengagement, ambitious insight, and a split field of inquiry.Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out. First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy, and at the same time the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. Hutchinson’s one-dimensional representation of democracy along a participatory-representational continuum is rejected for failing to recognize a distinct fiduciary-beneficiary axis, which a richer understanding of “for the people” conveys. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.

A New Perspective on International Economic Law and the Use of the Intellectual Framework of the New Haven School of Jurisprudence

International economic law, based on functionalistic consideration rather than analytical positivist jurisprudence, is a combination of rules, regulations or laws from different legal branches, which purports to achieve some economic or social goals. In addition, it possesses more variability and instability than other laws, such as civil law, criminal law or administrative law. Changes in international economic law are always the result of complex social processes. These characteristics make the great adaptability of the methodology of the New Haven School particularly appropriate for research in this field.

Legal Positivism and the Separation of Existence and Validity

This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue.

The Abuse of Principle: Analytical Jurisprudence and the Doubtful Case

Contemporary analytical jurisprudence holds that the “doubtful” or “hard” case, not resolved by any clear legal authority, is either legally indeterminate or can be resolved only by judicial recourse to principles. There is an aspect of the “doubtful case” that militates against recourse to principle. When viewed as representative of an early stage of a continuing class of disputes, then (especially in controversial cases of broad import) judicial recourse to principles may lead to an improvident choice of reasons, and violates fundamental democratic values. This argues for early judicial minimalism or particularism, where judges resolve decisions narrowly, for two reasons: 1) principled resolution of all doubtful cases is inconsistent with the exploration and classification phase of judicial inquiry, and 2) public debate among scholars and citizens should be permitted to play a role in the development of practical reasoning and the adjustment of practices surrounding broad controversies.

Direct and indirect utilitarianism in Bentham’s theory of adjudication

Download this article . Francesco Ferraro graduated in Philosophy at Universita degli Studi di Pisa and received a PhD in Analytical Legal Philosophy and Jurisprudence at Universita degli Studi di Milano, where he currently holds a post-doc position. His doctoral thesis focused on Bentham's theory of adjudication and the role of the judges. A book developing this thesis is due to be published this year, with the title Il giudice utilitarista. Flessibilita e tutela della aspettative nel pensiero giuridico di Jeremy Bentham ('The Utilitarian Judge. Flexibility and Protection of Expectations in Jeremy Bentham's Legal Thought').

Social Identity and Legal Personality – Collective Entities as Legal Entities?

The paper argues that the legal-theoretical treatment of the issue of promoting certain collective entities to the status of legal entities cannot be satisfactorily accomplished within the methodological models of either Hart’s analytical jurisprudence or Kelsen's Pure Theory of Law. The question of the conceptualization of collective rights proves to be largely a question of justification rather than one of mere analysis or description. In this sense, the paper proposes to elucidate various aspects of the problem of the legal shaping of the social identity of relevant collective entities with the purpose of constructing legal personality. The first section of this paper briefly shows that the question of legal personality is a general problem of legal theory, and that there is consequently nothing specifically new about collective entities as potential legal entities. The second section of the paper considers in greater detail the social and legal „construction of diversity“, on which the concept of collective rights is based. Finally, the paper suggests that the legal theory of collective rights can hardly accomplish these tasks without recourse to the methodological apparatus of both sociological and anthropological disciplines.

Positivism Before Hart

Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we think of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are not committing either historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.

Analytical Jurisprudence and the Concept of Commercial Law

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain.

Law and the Causes of Judicial Decisions

This paper tests Brian Leiter's claim that the American legal realists were proto-naturalists in legal philosophy and were therefore immune to objections based on claims that they offered defective analyses of legal concepts. It disputes Leiter's account of the core claim of American realist thought, and reaffirms the view that some of them were engaged in, or presupposed, conceptual work of a kind familiar to analytic jurisprudence. It explains how those who did not intend to offer conceptual analyses nonetheless made conceptual errors. It offers a fresh account of the basis of realist scepticism, deploying the idea of 'permissive sources' of law. The paper concludes with general reflections on the preconditions and prospects for 'naturalizing' jurisprudence, suggesting that Hans Kelsen was correct to think that such efforts are likely to change the subject.

Los efectos diversos del Derecho comunitario: el caso de las directivas

La clásica distinción del Derecho comunitario europeo entre aplicabilidad directa y efecto directo se enfoca desde la no menos clásica distinción entre disposición y norma elaborada por la teoría jurídica analítica. El análisis de los distintos efectos, los efectos diversos, que pueden producir las normas de Derecho comunitario, especialmente las contenidas en directivas, ayuda a entender cuestiones como los efectos directos horizontales, o incluso los efectos indirectos o triangulares que han ido apareciendo en la jurisprudencia del Tribunal de Justicia de las Comunidades Europeas y que tantas dificultades han provocado en la doctrina comunitaria. La riqueza de materiales sobre los que puede volcarse la teoría analítica del Derecho abre nuevas avenidas para la investigación y el mutuo entendimiento entre estas disciplinas.

The Province of Jurisprudence (Really) Redetermined

When Julius Stone published his famous essay, The Province of Jurisprudence Redetermined, in 1944, he had reasonable cause for genuine optimism. English jurisprudence had been in the doldrums since the initial flurry of activity and excitement following Austin's launch of the modern project of analytical jurisprudence in 1832 with his The Province of Jurisprudence Determined. Most of the subsequent scholarship had simply refined and riffed unimaginatively on the basic Austinian themes. Yet, as the Second World War came to a close, there were signs that the time was ripe for a different and more vibrant approach to jurisprudential study. Julius Stone was at the forefront of such a spirited revival. Unfortunately, history has not been kind to Stone's optimistic obituary for analytical jurisprudence. Within a decade of his famous essay's publication, Hart's revival of legal positivism had restored the flagging fortunes of analytical jurisprudence. More sociologically-based efforts to expand the province of jurisprudence continued to be treated as marginal and secondary. This is an unfortunate state of affairs. Accordingly, in this essay, I want to do three things - to chronicle the hold that analytical jurisprudence still exerts as the 'default theory' of much legal thought and practice; to explore how Stone may have unintentionally contributed to that state of affairs; and to suggest how that continuing influence can be arrested and perhaps reversed. I intend to push through on an unconditional critique of analytical jurisprudence and to recommend an alternative approach that derives its rationale and motivation from a robust commitment to what I will term 'strong democracy'.

Jurisprudential Inquiries between Tradition and Discourse

This paper argues that jurisprudential inquiries can be profitably analysed as oriented towards either the explanatory paradigm of discourse or the explanatory paradigm of tradition. The first part of the paper offers a map of the discipline of jurisprudence in accordance with the above two different explanatory orientations. It does so at two levels: 1) ontological (pictures of law); and 2) epistemological (pictures of legal work). In the second part the paper, the tension and interaction between the explanatory paradigms of discourse and tradition in the work of five different theorists is considered: 1) Elizabeth Mertz's anthropological linguistics; 2) Nicola Lacey's revision of the relationship between analytical jurisprudence and descriptive sociology; 3) Roger Cotterrell's call for a sociology of legal ideas; 4) Neil MacCormick's concept of law as institutionalised normative order; and 5) Patrick Glenn's notion of a legal tradition. Finally, in the third part, the paper addresses certain implications of the analysis of jurisprudential inquiries by reference to the above two explanatory orientations for comparative and international legal scholarship. The two explanatory orientations (tradition and discourse) are offered as one of many paradigms thanks to which one can recognise the limitations of any one picture of law or legal work. At the metaphilosophical level, the analysis of the paper indicates that there are three options available to jurisprudence, i.e., 1) seek to provide a picture of law or legal work on the basis of one explanatory orientation; 2) maintain pluralism about concepts of law or legal work given their limitations in light of their explanatory orientations; or 3) attempt to combine the elements of both explanatory paradigms in a unified account. The paper argues that insofar as jurisprudence seeks to provide normative resources for responses to certain challenges in the public sphere, it ought to go for option two, namely, for maintaining pluralism about concepts of law and legal work.