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.