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Friday, October 05, 2007

Kelsen one last time

Larry Solum at Legal Theory Blog has responded to Brian Leiter's and my two posts on Hans Kelsen. Since Larry asked me a question about my own views on Kelsen, I thought I would post about him one last time.

It is worth noting that my initial post had a sociological focus. I was interested in why Americans in fact don’t talk about Kelsen. Their reasons could be good or bad. I just wanted to describe, at a general level, what those reasons (or causes) were. I did this because I thought that Kelsen’s true merit wasn’t really a bloggable topic.

But the discussion has moved to that topic anyway. So I will say what I think:

Kelsen is undervalued here and should be read more.

Let me start by listing  a few of the very interesting questions in legal theory that arise in Kelsen’s writings, each of which can be appreciated independently of the more difficult philosophical stuff (I discuss some of these questions in connection with concrete legal examples in this article):

1) Is an act that is not legally forbidden necessarily permitted? Or are there deontic voids, in the sense that an act is simply nothing, neither forbidden nor permitted? Taking a trip to France is neither forbidden nor permitted in chess. It is neither a proper nor an improper move in the game. Is the same thing possible in legal systems? Or are there no gaps in the law?

2) Are legal contradictions possible? Kelsen thinks that they are not, and he has some very creative ways of showing how apparent conflicts are not conflicts at all. Consider a domestic statute in violation of a constitution. There is in fact no conflict here, he argues, because the statute remains valid until it is nullified by an act of judicial review. The sole exception would concern what Adler and Dorf call existence conditions, where failure to satisfy the condition makes the putative statute a nullity from the beginning. But here too there is no contradiction because there is no statute.

3) Kelsen’s solution to the problem of a domestic statute that is in violation of international law is to argue that the statute remains valid indefinitely, because there is no mechanism for invalidating it. So what does it mean for the statute to be in violation of international law? The passage of the statute makes sanctions against the authoring state permissible. When I teach Kelsen I ask my students to imagine a domestic constitution that functioned the same way. It could not be used to invalidate statutes, but it would provide for sanctions against the drafters.

4) Are multiple legal systems possible or is there only one legal system? If there is only one, which is it? Is all law fundamentally American law (at least from our perspective)? Or is American law really international law, in the sense that America’s laws are legitimate only because international law says so?

5) Related to 4, Kelsen is the only philosopher of law I know of who has actually said something about choice of law, a legal topic that has profound jurisprudential implications.

6) What is a revolution? Is it a change in legal systems or is it really an act, similar to legislation, within a legal system? Kelsen thinks it is the latter. Because, under international law, a state is legitimate if its laws are efficacious (in the sense that the population follows them), the instigator of a coup is like a legislator. He is authorized to change law by changing the behavior of the population.

7) In general Kelsen has far more to say about revolutions than most philosophers of law. It is odd that they are not spoken of more often, because they reveal the fundamental nature of legal systems.

8) Must a court make law with every decision? Kelsen has an important take on this long-standing issue that is different from both Hart’s and Dworkin’s.

9) What are the fundamental legal relations? Authorization, command, and permission?

So there is a lot in Kelsen that’s interesting. But what about the heart of his philosophy of law? Larry asks whether I believe “that the crucial idea (legal meanings are abstract objects independent of human beings) depends on grasping Kelsen's system.”

The best way of thinking of Kelsen is as the Frege of legal theory. He thinks that legal meanings are abstract objects with necessary relations to one another and he uses a Neo-Kantian approach to explain how knowledge of these abstract objects and relations is possible. This is similar to how Frege uses a Neo-Kantian approach to explain our knowledge of logical necessity in the face of attempts, common in the nineteenth century, to naturalize logic by reducing it to psychology. (I offer this reading of him in my article .)

I think there are good arguments that legal meanings are indeed abstract objects – correlated with, but not reducible to, social events.  Furthermore, if that’s true, we are forced to explain how these objects can exist and how we can know them. But is Kelsen’s system the way to do it?

The answer is no, if by “Kelsen’s system” Larry means the basic norm.

The basic norm is part of Kelsen’s Neo-Kantian explanation, but I think it is a mistake, even from within a Neo-Kantian perspective. (I won’t go into why here. Kelsen might have picked up the idea from Hans Vaihinger.)

So the basic norm aspect of Kelsen should be scrapped. But that doesn’t mean scrapping the basically Kelsenian view that legal meanings are abstract objects. Nor does it mean scrapping a largely Neo-Kantian account of our knowledge these objects, although if anyone can come up with a plausible Platonist account, I’m all ears.

Another problem with Kelsen’s theory of law is his insistence, which Brian mentioned, that legal norms are fundamentally coercive norms. I objected to the way Brian put this point because he drew an analogy between Kelsen and Austin. The analogy doesn’t work, because legal duties are not about a probability of sanctions for Kelsen (as they are for Austin). Instead, D has a legal duty to engage in act p only if her failure to p makes sanctions against her legally permissible. No sanctions need actually occur.

As I mentioned in my earlier post, I think Kelsen’s emphasis on coercion is less problematic than it seems. But it may be something to get rid of too. Still, most of Kelsen would look the same without it.

Finally, a few comments on reading. To Larry’s recommendations concerning secondary literature on Kelsen, I would add William Ebenstein, The Pure Theory of Law (1945) – a great book, but hard to find.

As far as reading Kelsen in translation is concerned, it is worth noting that he wrote a lot in English after moving to this country. He even published articles in the Harvard Law Review (in 1941) and the Yale Law Journal (later in the 40s). But the most important work by Kelsen is the Reine Rechtslehre (Pure Theory of Law) – which came out in two different editions separated by 26 years.

Larry’s right that the 1967 Max Knight translation of the second edition is pretty bad, even though it was approved by Kelsen. It also cuts out a lot of footnotes from the original. But the first edition is masterfully translated (under the title Introduction to the Problems of Legal Theory) by Bonnie Litschewski Paulson und Stanley L. Paulson. It's too bad that it's so expensive. The General Theory of Law and State, incidentally, is also ably translated by Wedberg.

Posted by Michael S. Green on October 5, 2007 at 09:18 PM in Legal Theory | Permalink

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Michael Green asks why American philosophers of law do not pay any attention to Hans Kelsen, and he suggests that the main reason is that Kelsen’s approach runs against the emphasis on empiricism (social facts) in American philosophy of law. In a later post, Green suggests that another possible reason may be that American philosophers of law are not “exposed to enough foreign work on Kelsen for them to feel any pressure to discuss or even understand him.”

Like Green, I have asked myself why Kelsen has failed to make an impression on American philosophers of law, and my tentative diagnosis is that academics in the English-speaking world in general and American academics in particular tend to believe that what is going on in other parts of the world, such as Germany and other countries where they speak German, simply is not of the same high intellectual standard as the work that is being done in the English-speaking world, and that in any case it is often somewhat obscure and – as if that weren’t enough – written in poor English, if available in English at all. But while the best work in contemporary American legal philosophy (by writers like Jules Coleman, Michael Moore, and Dennis Patterson, to mention just a few) is surely as good as it needs to be, writers like Hans Kelsen, Alf Ross (Denmark) Robert Alexy (Germany) and Carlos Alchourrón & Eugenio Bulygin (Argentina) are second to none (outside the group) – H. L. A. Hart and Ronald Dworkin, but not Lon Fuller, belongs in the same group, of course. I therefore believe the very high standard of American legal philosophy could be brought to an even higher level, if the writings of the above thinkers were taken (more) into account. I might add here that it would be a mistake to think that Kelsen, Ross, and the others represent a style of philosophy that is somehow in conflict with Anglo-American analytical philosophy: these writers are as analytical as their American colleagues. While Kelsen (like the well-known German legal philosopher Gustav Radbruch, who was a contemporary of Kelsen) was inspired by neo-Kantianism, this does not in itself mean that his style of reasoning is obscure. I myself read Kelsen with pleasure for a considerable time happily unaware that there was such a thing as neo-Kantianism!

Although Michael Green (who knows much more about Kelsen than I do) has already said pretty much what needs to be said about the benefits of reading Kelsen, I would like to add four points. First, the problem about the normativity of law has been treated at length by Kelsen, and any study of this intriguing problem should take Kelsen’s thoughts on the topic into account. For example, Kelsen’s simple point that this question concerns the precise nature of the relation between the operative facts and the legal consequence in a legal norm puts the problem well. Another interesting question concerns the exact place of the idea of the basic norm in Kelsen’s analysis of law’s normativity, and whether it would be possible to give up on the basic norm while keeping the rest of Kelsen’s analysis.

Second, the nature of norms and the idea of law as a system of norms (or standards of some sort), and related issues, were given detailed treatment by Kelsen. For example, the hierarchical structure of legal systems is well explained by Kelsen. Joseph Raz, for one, realized this. See his The Concept of a Legal System.

Third, the scope of Kelsen thinking about the law is impressive to say the least. If, for example, you compare the massive output on the part of Kelsen (Hauptprobleme der Staatsrechslehre, Allgeimene Staatslehre (translated into English as General Theory of Law and State), the two editions of Reine Rechtslehre, Allgemeine Theorie der Normen (translated into English as General Theory of Norms) with Hart’s much more limited production (The Concept of Law, Essays in Jurisprudence and Philosophy, Causation in the Law), you will get an idea of the scope of Kelsen thinking about the law. Kelsen treats topics such as law as a system of norms, and a number of related problems, the relation between legal and natural phenomena, the relation between law and morality, the relation between “legal science” (Rechtswissenschft) and natural science, the idea of a legal duty and its relation to sanctions, the concepts of legal power and a legal right, the relation between law and state, the relation between domestic law and international law, an legal interpretation. In other words, there is a lot of value in Kelsen’s writings, even if one rejects the concept of the basic norm (Grundnorm).

Fourth, the consistency with which Kelsen applies his theory is noteworthy. Kelsen never backs down from a conclusion, but always accepts the implications of his reasoning. Consider, for example, his refusal to give up on legal positivism in light of the Nazi tyranny and the conclusion arrived at by many others, including Gustav Radbruch, viz. that legal positivism was partly to be blame for the spread of Nazism in Germany. Also, Kelsen arrives at the idea of the basic norm as a result of having discussed the validity of legal norms in light of the distinction between Is (Sein) and Ought (Sollen) and the conceptual separation between law and morality. The introduction of the basic norm, then, is the result of a consistent application of the two these just mentioned.

To underscore my admiration for Kelsen, I would like to conclude by saying that I consider Kelsen to be a greater philosopher of law than Hart. True, Hart was the more accomplished philosopher, but Kelsen had a nose for philosophically interesting problems, such as the problem about the normativity of law, a deep knowledge of the law, and an ability to think consistently. Kelsen was, in my view, a more original thinker than Hart, though clearly less philosophically skilled. Reading Hart in the light of Kelsen makes this quite clear.

Posted by: Torben Spaak | Oct 8, 2007 8:41:48 AM

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