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.