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October 6, 2007

Michael Green and Hans Kelsen Redux

Happily, Michael Green made some revisions to the original version of his putative response to my post answering his question why Kelsen is relatively neglected by Anglophone philosophers of law (Green thinks he is particularly neglected by "American" philosophers of law).  Green has also now put up a separate, and quite interesting, description of topics on which he believes Kelsen has interesting things to say (in response to questions posed by Larry Solum); I commend that to interested readers.  I am going to focus here, instead, on his "reply," which even in its revised form is rather peculiar.

Green posed, originally, the question why Kelsen is relatively neglected by "American philosophers of law" (since that's not a meaningful category, I'm going to focus on Anglophone philosophers of law).  I agree that he is relatively neglected.  One obvious answer for why--nowhere noted in Green's original post--is that he has become a figure of merely "historical" interest given the compelling criticisms (primarily by Hart) of the two distinguishing features of Kelsen's "pure theory" of law.  Like many figures with failed or historically dated jurisprudential views--other examples would be Austin or Radbruch--he attracts less attention than those figures whose views still seem to have philosophical merit.  Thanks in large part to Hart, general jurisprudence has moved away from the  "here's what  the great men of the past thought" approach to "here are the best arguments for answers to the fundamental questions about the nature of law."  (This is true in philosophy generally, of course.  Why aren't Neo-Kantians studied and taught extensively?  Because theirs was a failed philosophical program, of historical interest, to be sure, but not obviously of philosophical interest.  There are no Logical Positivists any longer, nor are there any Absolute Idealists, and so on.  Philosophy may not solve many or any problems, but, at least when done seriously, it is pretty good at figuring out which sytematic answers to philosophical problems are fatally flawed.) 

Green suggests he is only interested in the "sociological" question of why Anglophone philosophers of law neglect Kelsen, not the merits.  Thus, he writes in response to my diagnosis:

I suggested one reason [that Kelsen is neglected] 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.

I confess I really do not understand what Green means by "empiricism" here.  Is the method of "ordinary language philosophy" an empiricist method?  In what sense is Hart an empiricist?  The Scandinavian Realists are, in a very precise sense, empiricists, but their semantic and epistemological views are not shared in toto by Hart, let alone Raz.  Green surely knows that those skeptical about the "pure theory of law" are motivated not by philosophical doctrines (e.g., empiricism), but by trying to understand certain phenomena--law and legal systems, the normative claims the law makes, the differences between law and other social norms.  They think that Hart's account fares better than Kelsen's on this score--for example, because it does not involve gratuitous ontological posits (transcendent norms), and it gives a better account of the normative pretensions of law (e.g., to impose obligations).  Perhaps what Green wants to say is that, on the Kelsenian view, the Grundnorm is not a gratuitous ontological posit, because it does a kind of explanatory work (regarding the relations between abstract objects) that Hart's theory does not.  That's an intelligible argument, but it has nothing to do with empiricism (unless one thought that Hart's "empiricism" [whatever that is] commits him to denying the existence of abstract objects--but there is no reason at all to saddle him with that kind of view, is there?). 

Green also complains that in the U.S., "little is written [about Kelsen] and it usually gets Kelsen wrong."  He continues:

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.

Kelsen can believe what he wants about the status of the Grundnorm, but that is neither here nor there (in philosophy, authors do not get to settle questions about the coherence or nature of their claims!).  Of course, the transcendent and the transcendental are different, but that, rather obviously, doesn't preclude them from coinciding in many instances.  Not every specification of the possibility conditions for some phenomenon or capacity will involve positing a transcendent (e.g., a non-empirical) entity, faculty or property, but even on Green's (non-standard but intriguing) account of the Grundnorm, it figures in explaining the possibility of our knowledge of the necessary normative relations that hold between "legal meanings" which are "abstract objects."  Since this account is, again on Green's (plausible) rendering, offered in opposition to naturalistic and psychologizing accounts, it is quite clear that the description of the Grundnorm as "transcendent" is wholly apt:  surely it is not anything empirical or natural that explains the necessary relations holding between abstract objects? 

So Green's comments about the difference between the transcendental and the transcendent are, in this context, just obfuscatory pedantry, that have nothing to do with any substantive issue.

For reasons I don't follow, Green seems keen to insist that Kelsen's and Austin's view of the role of sanctions in law are different.  They are, indeed, different in the ways Green note (I did not intend to claim otherwise).  But they are not different vis-a-vis what worried Hart, namely, that a conceptual link between law and sanctions (either actual or permissible) mischaracterizes the law's claim to impose obligations on its subjects. 

Green also adduces some anecdotal evidence about Kelsen's philosophical importance in the non-Anglophone world, as distinct from his influence in constitutional and international law.  I have nothing to add to what I said in the comments to the previous post about this issue.

Regarding the original question--why Kelsen looms larger outside than inside the Anglophone world--I would particularly call the attention of readers to the long comment (scroll down) by Giovanni Ratti (Girona) regarding the appeal of Kelsen's jurisprudential theory for civil law countries.

ADDENDUM:  I spoke of Green's account of the Grundnorm as a non-standard one; a more conventional account can be found in Andrei Marmor's essay here.

Posted by Brian Leiter on October 6, 2007 in General Jurisprudence | Permalink


Brian - I think the distinction between the transcendent and transcendental has real meaning here and that Kelsen's approach does not appeal to the transcendent.

To speak of a condition for the possibility of knowledge as transcendent means, in part, that it violates causal laws. A Platonist account of our knowledge of mathematics would be an example. The Platonist assumes a non-natural faculty that is causally inexplicable.

Kant is a transcendental idealist because he denies that the transcendental self, from which the conditions for the possibility of empirical knowledge are derived, is an entity that violates causal laws. It is the *limit* of the empirical world, not a weird entity in the empirical world. (To be sure, Kant sometimes lapses into treating the transcendental self as a non-natural thing, but that is contrary to the spirit of his approach.) Because Kant is a transcendental idealist, he thinks that empirical psychology (or any other causal account of human beings) is fully adequate from its perspective.

Likewise when Kelsen describes the conditions for the possibility of knowledge of the law, he does not take these conditions to be transcendent. A psychological-causal account of the person knowing the law is fully adequate from its perspective. I discuss this more fully in my article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=455620

The matter is complicated, however, because occasionally Kelsen speaks of the basic norm as indeed transcendent but, in the spirit of Vaihinger, a fiction. (So there is some truth to your characterization.) As I suggested in my last post, I think that the basic norm should be scrapped for this (and other) reasons. But even here Kelsen does not claim that our knowledge of the law somehow violates causal laws. Empirical psychology remains fully adequate from its perspective.

Posted by: Michael Steven Green | Oct 7, 2007 2:37:24 PM

Maybe the trouble here has to do with ambiguities in the word "transcendent." Something that is the "limit" of the empirical is ergo not empirical, ergo is "transcendent" in the sense I was using the term. Or maybe the difficulty here is that I don't understand what work you think the Grundnorm does. Something which explains the possibility of there being necessary relations between abstract objects (which is what I took you to be saying about the Grundnorm) seems a good candidate for being transcendent, i.e., supra-emprical or natural.

Posted by: Brian | Oct 7, 2007 4:15:00 PM

In response to your question about what I meant by "empiricism" in my posts, Kelsen's approach is profoundly anti-empiricist in the following sense: For him, the law is not something that can be experienced through the senses (because it consists of abstract objects). Indeed, Kelsen thinks that the law does not exist in space and time.

I think it is fair to say that Hart and the realists (both Scandinavian and American) are all empiricists in the sense that they believe that the law can be experienced through the senses, no matter how much they might disagree on other matters.

Posted by: Michael Steven Green | Oct 15, 2007 5:28:31 PM

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