An alternative theory of Kelsen's neglect - Americans lazy, provincial

Yesterday I asked why it is that Americans ignore the most influential philosopher of law of the previous century - Hans Kelsen. I suggested one reason was that "Americans look at law and legal systems empirically - as fundamentally involving questions of social facts," whereas for Kelsen the law was fundamentally non-empirical. Brian Leiter has responded to my post over at his Legal Philosophy Blog. What he says seems to confirm my diagnosis.

Leiter is surprised that I didn't mention "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 most distinctive features of Kelsen's jurisprudence." But one of these two distinctive features turns out to be, as Leiter puts it, Kelsen's view "that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm."

Americans side with Hart, Leiter argues, because he offered "an account of law and its apparent normativity in terms that were exclusively psychological and sociological - in terms of what legal officials do and their attitudes towards what they do - that render otiose the need to posit transcendent norms." Americans don't like Kelsen, in short, because he took a non-empirical approach to the law.

Leiter might be correct that Kelsen's resistance to empiricism is fatal. (My goal was describing why Americans don't talk about Kelsen, not whether they are right not to do so.) But his motivations appear to be just what I described in my earlier post.

By the way, I can certainly understand why a naturalist like Leiter doesn't think much of Kelsen. Leiter is a twenty-first century representative of just what Kelsen and other late Neo-Kantians were reacting against - namely naturalism and psychologism in philosophy.

But Leiter's post does suggest a problem with my diagnosis. He points out that many non-American Anglophone philosophers of law write on Kelsen. He mentions Raz, but in the UK there's also Hart himself, J.W. Harris, Tony Honore, Deryck Beyleveld, Roger Brownsword, Neil MacCormick, and J.G. Starke. What is more, those in the US writing on Kelsen (e.g. Andrei Marmor) often have an international connection. I was first exposed to Kelsen during the two years I lived in Berlin.

Since all Anglophone philosophy of law tends to have an empiricist bent, philosophical disagreement is not enough to explain the neglect of Kelsen in this country. To be sure, much that's written on Kelsen in the UK is highly critical. But so is much that's written on him elsewhere. The point is that it is written, and generally well informed. In this country, little is written and it usually gets Kelsen wrong.

Leiter's post is an example. His description of the basic norm as a "transcendent norm" is one Kelsen explicitly rejected (e.g. Introduction to the Problems of Legal Theory p. 25). Kelsen is a Neo-Kantian and the distinction between the transcendent and the transcendental is basic Kant.

The same thing might be true of Leiter's second "distinctive feature" of Kelsen's philosophy of law, also allegedly undermined by Hart, namely Kelsen's view (which Leiter associates with Austin) that "the nature of law is essentially tied to its use of sanctions." True, Austin understands the law in terms of the use, or probability, of sanctions. But this is just the sort of empiricism that Kelsen rejected. Kelsen understood the law in terms of conditions for appropriateness of sanctions. The question is normative. Whether sanctions actually occur or are indeed at all probable does not matter (Introduction p. 25). The unenforced law is no problem for Kelsen. Only lex imperfecta (that is the law with no provisions for enforcement) is.

Nor are power-conferring laws (e.g. the conditions for creating valid contracts or wills) a problem for him. Kelsen understands such laws as fragments of larger laws (If the contract is in writing, and if the other side breaches, then sanctions are permissible). He does not understand them, as Austin does, as themselves commands with nullity as a sanction. Hart tries to argue against Kelsen's fragment theory, but I don't find him that persuasive here.

Still, Leiter might be right that Kelsen's emphasis on sanctions (properly understood) is also responsible American neglect of his thought.

But the real question has less to do with whether Kelsen can be criticized. Even if he can, the question remains: Why do American philosophers of law do so little of the criticizing? After all, Austin can be criticized too, but philosophy of law courses in this country rarely omit him. 

Here's a new theory of why Kelsen is neglected. One reason is his difficult prose ("his unlovely writing style" as Leiter puts it). Reading Kelsen is hard (at times, he seems to make it gratuitously hard). The other is that American philosophers of law, especially those who work in law schools, aren't exposed to enough foreign work on Kelsen for them to feel any pressure to discuss or even understand him.

One more comment. Leiter claims that "Kelsen's huge influence in the non-Anglophone world...has much more to do with his contributions to constitutional and international law, than to legal philosophy."

In fact, it is Kelsen's philosophy of law that these foreigners are most interested in. In February of 2006, I was at a gathering of Kelsen scholars assembled by Stanley Paulson at Wash. U. Only Paulson and I were from the U.S. (One of the benefits of Americans' neglect of Kelsen is that I can count as a Kelsen scholar simply by having written one article!) The rest were from France (Charles Leben), Sweden (Ake Frandberg), Australia (Iain Stewart), Poland (Jan Wolenski), Israel, and Japan. Each person gave a presentation concerning the state of Kelsen studies in his country. The conversation was mostly about his philosophy of law.

As further evidence, look to the end of my article on Kelsen, where I list the books written on him between 1983 and 2003. I can find over 20 that are clearly on Kelsen's pure theory of law, and only a few that are arguably on his views on international law or constitutional theory.

Finally, Kelsen's views on constitutional and international law (and particularly the latter) are intertwined with his philosophy of law. You can't understand what Kelsen says about international law without understanding his doctrine of the unity of law. This doctrine has two elements: that all valid laws (including international law and the laws of the various domestic legal systems) form a single system and that valid laws may not conflict. (Introduction pp. 111-22.) Kelsen comes to this conclusion on the basis of his Neo-Kantianism and his theory of the basic norm. (By the way, the doctrine - like much of Kelsen - is far more plausible than it sounds at first.)