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Wednesday, October 03, 2007

Why No Kelsen?

Thanks to Dan for inviting me on Prawfsblawg. I thought I would use my blogtime to talk about some peculiarities and prejudices of philosophy of law in the United States.

First topic: Why don’t American philosophers of law talk about Hans Kelsen (1881-1973)?

It’s pretty much impossible to overemphasize the important of Kelsen in non-English-speaking countries. H.L.A. Hart is usually offered as the most famous English-speaking philosopher of law in the twentieth century. But I was able to find only 17 books published between 1983 and 2003 that were devoted predominantly to Hart, while there were over 75 published on Kelsen in the same period. (This ignores, of course, the crushing number of articles on him.)

Interest in Kelsen isn’t limited to German-speaking countries by the way. In fact, he currently has the greatest influence on Latin Americans and Italians (who, it has been said, suffer from “Kelsenitis”).

The point is that Kelsen is clearly the most important philosopher of law of the last century and there is practically nothing of substance written on him in this country. Furthermore, the casual comments about him made by Americans, even Americans who are accomplished philosophers of law, usually betray no familiarity with his writings. This is a real puzzle.

Of course, there is Stanley Paulson at Wash U., the dean of Kelsen studies (arguably not just in this country but in the world). But Paulson is the exception that proves the rule. Just as Kelsen doesn’t get the attention he deserves in the U.S., neither does Paulson, precisely because he writes about Kelsen.

Aside from Paulson, the number of recent articles that have been written on Kelsen by Americans can practically be counted on one hand. I wrote a piece on him a few years back. Jeffrey Brand-Ballard, a philosopher at George Washington, published something back in 1996, as did my law-school friend Danny Shivakumar (who died, tragically, earlier this year). Another recent piece is by Jeremy Telman, at Valparaiso, which concerns why Kelsen is so underappreciated in this country. (I disagree somewhat with Telman’s diagnosis below.)

Indeed, Americans have a long history of dissing Kelsen. When he escaped Nazi Europe in 1940 and came to the United States, he couldn’t get a permanent position in a law school here, even though his reputation as a philosopher of law was already established. He was also an important player in constitutional theory (having drafted the Austrian Constitution of 1920) and in international law. But the only job he could get was in the political science department at Berkeley.

So what gives? What is there about Kelsen that Americans don’t like?

The problem, I think, is that Kelsen’s approach runs against the two dominant trends in American philosophy of law. Most Americans look at law and legal systems empirically – as fundamentally involving questions of social facts. The competing view, represented by Dworkin and Finnis, considers legal facts to be, at least in part, moral facts.

Kelsen rejected both views. For him, the law was neither empirical nor moral. The best analogy I can think of is the way many philosophers talk about language. A language correlates certain physical things (e.g. strings of letters or phonemes) with linguistic meanings. For example, “Es regnet” means it rains in German (but nothing in English). For Kelsen, legal systems correlate certain social events (people raising their hands in a room) with legal meanings (a statute being enacted). And just as many philosophers consider linguistic meanings to be abstract objects – neither empirical nor moral – Kelsen thought the same thing was true of legal meanings.

One benefit of Kelsen's approach is that it allows the underlying logical structure of legal systems to be revealed, just as the philosophers' approach to language reveals its logical structure. But more on that (maybe) later.

P.S. Three more recent pieces by Americans on Kelsen. One by Jeffrey Lipshaw, one by Andrei Marmor, and a chapter entitled "Kelsen versus Hayek" in Richard Posner's Law, Pragmatism, and Democracy. But this still pales in comparison to the amount of work done on Hart in this country.

Posted by Michael S. Green on October 3, 2007 at 07:47 AM in Legal Theory | Permalink

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» Why don't American philosophers of law talk about Kelsen? from Brian Leiter's Legal Philosophy Blog
So asks Michael Steven Green (William Mary). Somewhat to my surprise, he does not note what is surely the main reason for lack of attention to Kelsen, namely, that it is pretty widely thought that Hart persuasively undermined the two [Read More]

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Comments

Possibly it's the American rejection of legal positivism? Often heard these days in law school classrooms is "everyone's a legal realist." The social facts phenomena you refer to. That wasn't true in Kelsen's day, but it appears to be the overriding narrative of law nowadays, more than the natural law tradition.

For what it's worth, I learned Kelsen not in law school, but as a political science undergrad specializing in political theory--and not even in my international relations/theory courses. Specifically, jurisprudence courses that covered the legacy of legal positivism. Kelsen's pure theory of state, his grundnorm--what place did they have in my legal education? Sadly, none. Then again, except for the occasional jurisprudence class that is offered only at some law schools (I'm on my second), law students won't even encounter Hart, much less Ely, Dworkin, Rawls, Finnis, Fiss, Fuller, etc.

I'm a legal realist--everyone is! And I'm sympathetic to the arguments and politics underlying CLS and CRT (limitedly now)--but it's tragic to me that legal philosophical/theory education basically starts in the '70s, with a nodd to the LR of the '30s--and then we move on from there to post-modern critiques. The Hart and Sacks legal process school is taught as a "the way we used to think about things" model. I would like to see more positive legal theory taught in law schools--but then again, I'd like to see any legal theory taught in law schools.

Posted by: Belle Lettre | Oct 3, 2007 9:23:51 AM

Michael, add one more. See my Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise, 3 Law, Culture & the Humanities 82 (2007). I cited your Alabama Law Review article at footnote 23. I grappled with the Kantian aspects of the Grundnorm. That in itself probably takes it to the periphery of American philosophy of law.

Posted by: Jeff Lipshaw | Oct 3, 2007 9:43:45 AM

Some of the explanation is surely sociological- Kelsen taught, when he taught in the US, in a political science department, not in a law school or a philosophy department, so his students were perhaps less likley to end up in law schools or philosophy departments and cary on debates the way that, say, Hart and Dworkin's students have. (I don't know if Kelsen had many students anyway- my limited impression is that he has more influence among IR scholars than legal scholars but that may well be wrong.) My other impressions is that legal philosophers have tended to think (rightly or wrongly I cannot say) that Hart captured most of what was important and interesting in positivism while cutting out the parts not so useful in Kelsen. That seems to have been Hart's view, at least, and given his influence as a teacher I'd not be surprised if it's a common view. Finally, Kelsen's version of legal positivism it tied up with a sort of neo-Kantianism that hasn't been very popular in the US and England (it is now getting some more attention but still not a huge amount) while Hart's version was more closely aligned both with mainstream analytic philosophy and with utilitarianism, making it more congenial to American and British legal scholars. That doesn't make Hart right and Kelsen wrong, of course, but I suspect it helps explain some of the reason why Kelsen is less studied. (Also his books are now hard to find and are massively over-priced, even when used.)

Posted by: Matt | Oct 3, 2007 9:55:36 AM

Belle - "rejection of legal positivism" wouldn't explain lack of emphasis on Kelsen relative to Hart; Hart is positivist too.

Posted by: anon | Oct 4, 2007 12:57:28 AM

I didn't mean to imply that it was a complete explanation. But it's a partial one. And yes, I know that Hart is a postivist.

I didn't articulate my thought well. I'm not so much bemoaning the lack of discussion of legal positivism by American philosophers of law (who definitely talk about Hart at least) as the lack of discussion of legal philosophy _at all_ in American law schools. If it is discussed at all, it's extremely limited, and horrifyingly to only the critiques without first going over the canon. And Kelsen, for whatever reason, isn't a part of the American canon of legal philosophy. So the propensity of American law schools to take legal realism for granted, and run from there exacerbates the neglect of legal positivist theory in general, much less European political theorists such as Kelsen.

Brian Leiter offers reasons for this here:

http://leiterlegalphilosophy.typepad.com/leiter/2007/10/why-dont-amer-1.html

Which does support my experience of reading Kelsen when I was studying political theory, not law. I wrote my senior thesis on Kelsen and Hart, and always about their absence from jurisprudence classes at the law school level. Very weird.

Posted by: Belle Lettre | Oct 4, 2007 2:55:48 AM

You may find interesting this excerpt from some comments I wrote about Kelsen:

Hans Kelsen was born in Prague in 1881; Franz Kafka was born in Prague in 1883, In 1914, when Kelsen was thinking about the meaning of law leading uip to his publication of The Pure Theory of Law in 1924, Franz Kafka started writing The Trial which was eventually published in 1925, a year and a half after Kafka’s death. Kelsen taught law at the University of Prague; Kafka studied law at that university. Is it possible that Kafka studied law under Kelsen? I hope someone can find out and let me know.
The reason this question is so interesting to me is that in an important sense Kafka’s The Trial is a novelization of precisely the picture that Kelsen paints of the citizen “out in the cold” who wants to discover what the law is. In Kafka’s novel, Josef K. tries to discover what the charges (if any) are against him. No other book that I know of can be so funny, absurd, startling, and nightmarish to a law student than The Trial! If you’ve spent hours in the library or surfing on the computer network to find a case or a statute in point, and later that night have a nightmare about your search, you will discover in The Trial Josef K.’s nightmare in real life. Josef K. physically tries to discover the law in a world of weird courtrooms, offices, closets, and doors that are the side-splitting analogues of a long library search or a computer retrieval.
[Unlike Kafka’s novel] there is nothing humorous in all of Kelsen’s voluminous writings. However, a few years ago I buttonholed a former student of Kelsen’s, now a law professor, and asked what sort of a person Kelsen was. “One of the most lively, fun-loving, boisterous people you’ll ever meet. Full of jokes. And his classes were an unforgettable delight.” -- Analytic Jurisprudence Anthology 53-54 (1996).

Posted by: Anthony D'Amato | Oct 4, 2007 10:15:31 AM

You say above that you disagree with my analysis somewhat, but I would have to concede that my analysis is incomplete. I very much like your description of the differences between Kelsen's approach and the "American" philosophy of law. It makes Kelsen sound like law's Saussure or Levi-Strauss. I've never really thought of him in relation to French structuralist thought. Am I reading too much into your comments, or do you think that Kelsen was familiar with that approach and self-consciously incorporated structuralist elements into his legal theory?

Posted by: Jeremy Telman | Oct 4, 2007 11:40:34 AM

Jeremy - I know of no evidence of structuralist influence on Kelsen and I wasn't alluding to it. The most important philosophical influence on Kelsen was late-nineteenth century Neo-Kantianism. In my paper, I argue for Hermann Cohen (of the Marburg school). I know that Paulson has argued for Heidelberg Neo-Kantianism. See Paulson's The Neo-Kantian Dimensions of Kelsen's Pure Theory of Law, 12 Oxford J. Leg. Stud. 311 (1992).

Posted by: Michael Steven Green | Oct 4, 2007 1:46:52 PM

FYI (plural "y"): Prof. Otto Pfersmann is teaching a course in European Legal Theory as a visitor at Cardozo this semester, the early part of which focuses quite heavily on Kelsen.

Posted by: Jason | Oct 4, 2007 7:18:24 PM

I have a post up at:
http://lsolum.typepad.com/legaltheory/2007/10/should-we-study.html

Posted by: Lawrence Solum | Oct 5, 2007 1:53:37 PM

I have another post on Prawfsblog giving some suggestions about why Kelsen is worth reading.

http://prawfsblawg.blogs.com/prawfsblawg/2007/10/why-should-we-r.html

Posted by: Michael Steven Green | Oct 6, 2007 7:39:35 AM

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