October 3, 2007
Why don't American philosophers of law talk about Kelsen?
So asks Michael Steven Green (William & Mary). Somewhat to my surprise, he does not note 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, namely: (1) that the nature of law is essentially tied to its use of sanctions, and (2) that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm. Contra Kelsen (and Austin), Hart argued that linking law's nature to the use of sanctions misrepresents law's normativity; and on the second point, Hart 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. There are no doubt other reasons that Kelsen is relatively neglected--his unlovely writing style is surely one; the pernicious influence on his jurisprudence of tendencies in NeoKantian German philosophy at the time another--but surely an important reason is that two central features of his jurisprudential view seem to be mistaken.
It is probably worth noting that within Anglophone "analytic" jurisprudence (a more pertinent category, it seems to me, than "American philosophy of law," which doesn't really exist), there is actually a lot more work on Kelsen than Green allows (though Stanley Paulson is quite plainly the leading English-language Kelsen scholar, but many others have written on Kelsen, perhaps most notably Joseph Raz). And even if sanction-based theoreis of law and the "purity" of the "pure theory of law" have few adherents, there still remain a lot of interesting aspects of Kelsen's jurisprudential work that deserve attention. (Some day my colleague Les Green will publish his provocative views on the rather striking similarities between Dworkin and Kelsen, though Dworkin may not welcome this exposition.)
(As a side note, Kelsen's huge influence in the non-Anglophone world, noted by Green, has much more to do with his contributions to constitutional and international law, than to legal philosophy.)
I wonder then why it is (if it is) that Hart's arguments against Kelsen aren't seen as decisive by those outside Anglophone jurisprudence? (I presume the arguments are known outside the Anglophone world.)
On the topic of Professor (Les) Green's views on the similarities between Dworkin and Kelsen: Here and there he teases readers with them... :) (For instance, p573 of his "General Jurisprudence: A 25th Anniversary Essay" reads: "In a way reminiscent of Kelsen, Dworkin said that there is a necessary connection between law and enforcement." And a footnote from there: "Dworkin also agrees with Kelsen that there are no gaps in the law, and that legal norms are primarily directed at the courts. I cannot explore these similarities here.")
Posted by: R. Morgan | Oct 4, 2007 1:35:05 AM
I don't think that either Kelsen himself or those in the non-anglophone who still take him seriously would view Kelsen's contributions to constitutional and international law as independent of his jurisprudential works. I would be interested in any theories you have as to why Hart's critique of Kelsen's legal philosophy seems not to have penetrated that world.
Or, if you think it is possible to understand Kelsen's works on international and constitutional law indpendent of his Pure Theory of Law, we are still left with the mystery of Kelsen's lack of influence in those doctrinal areas in the anglophone academy when his work is viewed as fundamental elsewhere.
I also suspect that the American legal academy's rejection of Kelsen (or ignorance of Kelsen) has relatively little to do with Hart's critique, as Kelsen's impact on American legal thought was negligible even before his encounter with Hart.
Posted by: Jeremy Telman | Oct 4, 2007 11:15:52 AM
R. Morgan and Jeremy Telman ask variations on the same question, so let me attempt a response to both.
The non-Anglophone world is not a monolith, and the extent to which the Hartian critique of Kelsenian views has made an impact varies quite a bit, often a function of factors like (1) the extent to which the jurisprudential communities in question are well-informed about Anglophone jurisprudence (as, for example, the Italian and Spanish-speaking communities tend to be), (2) the level of philosophical sophistication in these jurisprudential communities, and (3) issues of national pride and loyalty (sometimes an issue, one senses, in some German-language jurisprudential work when it comes to Kelsen). (2) may be particularly important, since Hart's work emerged out of developments in post-WWII Anglophone philosophy that are still either resisted or misunderstood in other parts of the world.
Kelsen certainly understood his work in constitutional and international law as growing out of his general jurisprudential views. I can't comment on whether constitutional or international law scholars generally view the pure theory as essential for understanding his contributions. My impression is that a lot of Kelsen's influence in, say, constitutional law has simply to do with the work he did on the Austrian constitution, his idea for a constitutional court, and so on. Those innovations and contributions may, indeed, have grown out of his jurisprudential views, but their significance and value is easily assessable apart from those. Why American constitutional law scholars haven't much interest in Kelsen is, in this regard, probably quite easy to explain: neither the Austrian constitutional work nor the idea of a constitutional court have played any role/had any influence in our own constitutional traditions.
On a more minor point, in reply to Professor Telman, I was not making any claim about the "American legal academy," but about Green's contention that American philosophers of law ignore Kelsen. The reason for that is, indeed, the general view that Hart successfully critiqued the two most distinctive features of Kelsen's jurisprudential view.
Posted by: Brian Leiter | Oct 4, 2007 2:20:00 PM
Brian - I've posted a response to you over at Prawfsblog.
Posted by: Michael Steven Green | Oct 4, 2007 8:25:56 PM
Michael, this is weirdly non-responsive, I'm not sure you want to have this in the blogosphere. If you want to leave it up, I'll get to it tomorrow or Saturday. I hope you will rethink this. The "empiricism" stuff is particulary silly, my own sympathies with naturalism are actually irrelevant here, and the differences between the "transcendent" and the "transcendental" don't matter substnatively in this context. Certainly those who read Prawfsblog, who mostly haven't a clue about the philosophical issues, may find your "response" congenial; but those who know something are going to be rather surprised. The real issue--namely, whether philosophers of law are or aren't right to think Hart's criticisms of Kelsenian views correct--is almost entirely unaddressed by you here (even though I know you have views on this).
Posted by: Brian | Oct 4, 2007 11:11:29 PM
Don't you think that the neglect of the Pure Theory in American scholarship is part of a wider neglect of (or even contempt for) philosophical problems about the nature of law?
In keeping with the generally pragmatic (and dare I say impatient?) leaning of American intellectual culture, American legal theorists - with notable exceptions - tend to be more interested in desirable features of law (which people can do something to alter) than they are in necessary features of law (which nobody can do anything about).
It is relatively easy to misrepresent Hart's The Concept of Law as a book about what is desirable in the law. In the pivotal chapter 5, Hart's allegorical presentation of the emergence of law almost invites this misinterpretation (and sure gets it, from Fuller, Dworkin, Unger, and many others). Kelsen is much more careful than Hart in forestalling the same misinterpretation. He knows that certain audiences will want to leap over the necessary features of law and get onto the desirable features. He refuses to give them excuses to do so, and repeatedly tells them to hold their horses. This is one of his 'purities' and there is no misunderstanding it.
This makes Hart a much easier figure than Kelsen for many American legal theorists to have opinions about, albeit often misguided opinions.
Of course this is not the only factor that puts Kelsen outside the mainstream in US jurisprudence. I'm just adding it to the mix.
Posted by: John Gardner | Oct 5, 2007 6:53:19 AM
PS If you want a good illustration of the pragmatic (and impatient) leaning I am talking about, consider the work by Steven Smith that was being discussed on this blog last month. If I understand him correctly, Smith believes that an interest in necessary truths is an 'incorrigibly academic' embarrassment, especially in a law school. We should all be turning our minds to here-today, gone-tomorrow policy debates rather than wasting our time on timeless questions about the nature of things.
Posted by: John Gardner | Oct 5, 2007 7:02:31 AM
John, these may indeed be features of the American legal academy, and of people who self-identify as "legal theorists," but Green's original contention was about American philosophers of law. And here it struck me as odd not to note that a philosopher of law might have thought that Hart had exposed deficiencies in a view like Kelsen's. (Smith, by the way, is in favor of questions about the timeless nature of (heavenly) things, just not *your* kinds of questions about the timeless nature of things!)
Posted by: Brian | Oct 5, 2007 7:29:33 AM
On Green: The main problem seems to be identifying the constituency about which Green is generalising. If we are really strict about who counts as a philosopher of law then America probably has too few of them to provide a statistically significant sample. As we adopt a looser and looser specification of the pool, my point about American intellectual life looms larger and larger.
I agree with you, by the way, that Hart got the better of Kelsen on some points. But Kelsen got the better of Hart on others! I'd call it a high-score draw.
On Smith: I put the point badly. Smith seems to be interested in questions about the timeless nature of things only on condition that the answer to them makes a difference to the actions of policymakers, lawmakers etc. Otherwise they are disparaged as 'incorrigibly academic'.
Posted by: John Gardner | Oct 5, 2007 11:01:11 AM
I've made a contribution to this debate on Legal Theory Blog:
Posted by: Lawrence Solum | Oct 5, 2007 3:10:38 PM
Hi, I'm Giovanni Ratti, I'm Italian, I work in Spain (University of Girona) as a lecturer in Jurisprudence.
I think that some pieces of information about the state of the art of jurisprudence in the non-Anglophone iustheoretical world could be useful for debate:
1) everybody who works in the field of Analytical Jurisprudence in Continental
Europe and Latin-American knows Hart’s critique of Kelsen. The great
majority share Hart’s critical views. In the mid-sixties, Norberto Bobbio
(considered on the Continent one of the members of the "Holy Trinity" of
Jurisprudence, together with Kelsen and Hart) stressed the importance of
Hart’s contribution for a renewed approach to legal theory.
Entire generations of European and Latin-American jurisprudents were
formed on Hart’s works. Genaro Carrió, Eugenio Bulygin, and Carlos Nino –
three of the most talented and influent civil-law legal theorists – were
direct disciples of Hart. "The Concept of Law" was translated and reviewed
in many non-English speaking countries immediately after its original
publication. Many articles by civil-law theorists deal with Hartian
topics: e.g., in the seventies, Genaro Carriò was probably the first
to formulate a version of what now has come to be known as “Inclusive
Legal Positivism”; Eugenio Bulygin wrote in 1976 an article which is
called “Sobre la regla de reconocimiento” (On the Rule of Recognition),
which was one of the first in conceiving the rule of recognition as a
conceptual rule (i.e. a recursive definition) and not as a regulative rule; Ricardo
Caracciolo wrote an article where he defends the thesis that Hart’s theory
of the rule of recognition is circular, since the existence of the rule of
recognition depends on judges, who, in turn, can only be determined in the
light of the rules of judgment, whose validity depend on the rule of
recognition. These are just a very few examples of Hartian themes in civil-law
jurisprudential literature (many researches in the field of Hobbesian, Benthamian, or Austinian studies have also been carried out in recent times).
2) one of the main questions that seems to be posed in your discussion is: Why
civil-law jurisprudents are so interested in Kelsen when Hart weakened his jurisprudential theses
so much? Well, generalizing a little bit, civil-law jurisprudents think that some parts of Hart’s
critique were well-founded, while other parts were not. In any case, many
civil-law jurisprudents tend to conceive of Hart’s theory as a derivation
from Kelsen’s. In many recent studies, Kelsen’s and Hart’s theories of the
legal system are considered unitarily as the common prototype of
foundationalism in legal theory.
Moreover, Kelsen’s theory has the great advantage of making the
explication of civil-law legal systems easier than Hart’s. Put very
roughly, these are some possible reasons: 1) Legal science, which has a
prominent role in civil-law legal education, was dealt with by Kelsen, but
is totally absent (for obvious reasons) in Hart’s works. 2) The idea of
rule of recognition, with all its references to judges’ practice, is not
so popular in civil-law legal culture, where the judge has often been
considered as a mere applicator of the law (so that it would have been
very puzzling to consider judicial practice as the foundation of the
validity of a legal system). 3) Kelsen’s theory of interpretation, with
his stress on language ambiguity and interpretive alternatives, is more
appealing to civil-law jurists than Hart’s “vagueness(open texture)-focused” theory of
Posted by: Giovanni B. Ratti | Oct 7, 2007 6:38:35 AM
These are extremely helpful and illuminating comments, thank you.
Posted by: Brian | Oct 7, 2007 9:54:25 AM
Anglophone philosophers who are interested in finding out more about Kelsen might want to have a look at Lars Vinx' forthcoming OUP book about him. (Lars is a German who has also studied in Canada, so he might be thought to have a foot in both worlds).
Posted by: bill wringe | Oct 7, 2007 1:07:35 PM
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