1. Development and Influence
Legal positivism has a long history and a broad influence. It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996). The modern doctrine, however, owes little to these forbears. Its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law. By the mid-twentieth century, however, this account had lost its influence among working legal philosophers. Its emphasis on legislative institutions was replaced by a focus on law-applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. The most important architects of this revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among whom there are clear lines of influence, but also important contrasts. Legal positivism's importance, however, is not confined to the philosophy of law. It can be seen throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also (though here unwittingly) among many lawyers, including the American “legal realists” and most contemporary feminist scholars. Although they disagree on many other points, these writers all acknowledge that law is essentially a matter of social fact. Some of them are, it is true, uncomfortable with the label “legal positivism” and therefore hope to escape it. Their discomfort is sometimes the product of confusion. Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects. It is doubtful that anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is expressly rejected by all leading positivists. Among the philosophically literate another, more intelligible, misunderstanding may interfere. Legal positivism is here sometimes associated with the homonymic but independent doctrines of logical positivism (the meaning of a sentence is its mode of verification) or sociological positivism (social phenomena can be studied only through the methods of natural science). While there are historical connections, and also commonalities of temper, among these ideas, they are essentially different. The view that the existence of law depends on social facts does not rest on a particular semantic thesis, and it is compatible with a range of theories about how one investigates social facts, including non-naturalistic accounts. To say that the existence of law depends on facts and not on its merits is a thesis about the relation among laws, facts, and merits, and not otherwise a thesis about the individual relata. Hence, most traditional “natural law” moral doctrines--including the belief in a universal, objective morality grounded in human nature--do not contradict legal positivism. The only influential positivist moral theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions. Such theists and relativists apply to morality the constraints that legal positivists think hold for law.
2. The Existence and Sources of Law
Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes. What then is distinctive of societies with legal systems and, within those societies, of their law? Before exploring some positivist answers, it bears emphasizing that these are not the only questions worth asking. While an understanding of the nature of law requires an account of what makes law distinctive, it also requires an understanding of what it has in common with other forms of social control. Some Marxists are positivists about the nature of law while insisting that its distinguishing characteristics matter less than its role in replicating and facilitating other forms of domination. (Though other Marxists disagree: see Pashukanis). They think that the specific nature of law casts little light on their primary concerns. But one can hardly know that in advance; it depends on what the nature of law actually is.
According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power -- they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign's commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction.” This imperatival theory is positivist, for it identifies the existence of legal systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether his commands are meritorious. It has two other distinctive features. The theory is monistic: it represents all laws as having a single form, imposing obligations on their subjects, though not on the sovereign himself. The imperativalist acknowledges that ultimate legislative power may be self-limiting, or limited externally by what public opinion will tolerate, and also that legal systems contain provisions that are not imperatives (for example, permissions, definitions, and so on). But they regard these as part of the non-legal material that is necessary for, and part of, every legal system. (Austin is a bit more liberal on this point). The theory is also reductivist, for it maintains that the normative language used in describing and stating the law -- talk of authority, rights, obligations, and so on -- can all be analyzed without remainder in non-normative terms, ultimately as concatenations of statements about power and obedience.
Imperatival theories are now without influence in legal philosophy (but see Ladenson and Morison). What survives of their outlook is the idea that legal theory must ultimately be rooted in some account of the political system, an insight that came to be shared by all major positivists save Kelsen. Their particular conception of a society under a sovereign commander, however, is friendless (except among Foucauldians, who strangely take this relic as the ideal-type of what they call “juridical” power). It is clear that in complex societies there may be no one who has all the attributes of sovereignty, for ultimate authority may be divided among organs and may itself be limited by law. Moreover, even when “sovereignty” is not being used in its legal sense it is nonetheless a normative concept. A legislator is one who has authority to make laws, and not merely someone with great social power, and it is doubtful that “habits of obedience” is a candidate reduction for explaining authority. Obedience is a normative concept. To distinguish it from coincidental compliance we need something like the idea of subjects being oriented to, or guided by, the commands. Explicating this will carry us far from the power-based notions with which classical positivism hoped to work. The imperativalists' account of obligation is also subject to decisive objections (Hart, 1994, pp. 26-78; and Hacker). Treating all laws as commands conceals important differences in their social functions, in the ways they operate in practical reasoning, and in the sort of justifications to which they are liable. For instance, laws conferring the power to marry command nothing; they do not obligate people to marry, or even to marry according to the prescribed formalities. Nor is reductivism any more plausible here: we speak of legal obligations when there is no probability of sanctions being applied and when there is no provision for sanctions (as in the duty of the highest courts to apply the law). Moreover, we take the existence of legal obligations to be a reason for imposing sanctions, not merely a consequence of it.
Hans Kelsen retains the imperativalists' monism but abandons their reductivism. On his view, law is characterized by a basic form and basic norm. The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior (the “delict”) is performed. On this view, law is an indirect system of guidance: it does not tell subjects what to do; it tells officials what to do to its subjects under certain conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical correlate of the primary norm which stipulates a sanction for stealing (1945, p. 61). The objections to imperatival monism apply also to this more sophisticated version: the reduction misses important facts, such as the point of having a prohibition on theft. (The courts are not indifferent between, on the one hand, people not stealing and, on the other, stealing and suffering the sanctions.) But in one respect the conditional sanction theory is in worse shape than is imperativalism, for it has no principled way to fix on the delict as the duty-defining condition of the sanction -- that is but one of a large number of relevant antecedent conditions, including the legal capacity of the offender, the jurisdiction of the judge, the constitutionality of the offense, and so forth. Which among all these is the content of a legal duty?
Kelsen's most important contribution lies in his attack on reductivism and his doctrine of the “basic norm.” He maintains that law is normative and must understood as such. Might does not make right -- not even legal right -- so the philosophy of law must explain the fact that law is taken to impose obligations on its subjects. Moreover, law is a normative system: “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system” (1945, p. 3). For the imperativalists, the unity of a legal system consists in the fact that all its laws are commanded by one sovereign. For Kelsen, it consists in the fact that they are all links in one chain of authority. For example, a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution. But what about the very first constitution, historically speaking? Its authority, says Kelsen, is “presupposed.” The condition for interpreting any legal norm as binding is that the first constitution is validated by the following “basic norm:” “the original constitution is to be obeyed.” Now, the basic norm cannot be a legal norm -- we cannot fully explain the bindingness of law by reference to more law. Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm -- no ought from is. It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any (and all) other norms as binding. To “presuppose” this basic norm is not to endorse it as good or just -- resupposition is a cognitive stance only -- but it is, Kelsen thinks, the necessary precondition for a non-reductivist account of law as a normative system.
There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place. One cannot say both that the basic norm is the norm presupposing which validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly. The Canadian Constitution of 1982 was lawfully created by an Act of the U.K. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: ‘The (first) U.K. constitution is to be obeyed.’ Yet no English law is binding in Canada, and a purported repeal of the Constitution Act by the U.K. would be without legal effect in Canada.
If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on what does its authority rest? The most influential solution is now H.L.A. Hart's. His solution resembles Kelsen's in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour of an empirical, Weberian one. For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed. Of these three “secondary rules,” as Hart calls them, the source-determining rule of recognition is most important, for it specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only the recognition rule (or rules) that best explains their practice, it is rule to which they actually appeal in arguments about what standards they are bound to apply. Hart's account is therefore conventionalist (see Marmor, and Coleman, 2001): ultimate legal rules are social norms, although they are neither the product of express agreement nor even conventions in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior towards which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others' behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it.
It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists' picture of the political system was pyramidal power, Hart's is more like Weber's rational bureaucracy. Law is normally a technical enterprise, characterized by a division of labour. Ordinary subjects' contribution to the existence of law may therefore amount to no more than passive compliance. Thus, Hart's necessary and sufficient conditions for the existence of a legal system are that “those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed, and ... its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials” (1994, p. 116). And this division of labour is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alert (1994, p. 117; cf. Waldron).
Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to certain deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti-positivist views, beginning with Henry Maine's criticism of Austin on the ground that his theory would not apply to certain Indian villages. The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: if it is good to have law, then each society must have it, and the concept of law must be adjusted to show that it does. If one thinks that law is a many splendored thing, one will be tempted by a very wide concept of law, for it would seem improper to charge others with missing out. Positivism simply releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing.
A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term (see Harris, pp. 107-111). Kelsen says that validity is the specific mode of existence of a norm. An invalid marriage is not a special kind of marriage having the property of invalidity; it is not a marriage at all. In this sense a valid law is one that is systemically valid in the jurisdiction -- it is part of the legal system. This is the question that positivists answer by reference to social sources. It is distinct from the idea of validity as moral propriety, i.e. a sound justification for respecting the norm. For the positivist, this depends on its merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth.
No legal positivist argues that the systemic validity of law establishes its moral validity, i.e. that it should be obeyed by subjects or applied by judges. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution” (1967, p. 204). Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited by fairness -- so there is no obligation to unfair or pointless laws (Hart 1955). Raz goes further still, arguing that there isn't even a prima facie duty to obey the law, not even in a just state (Raz 1979, pp. 233-49). The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Hart's own view is that an overweening deference to law consorts more easily with theories that imbue it with moral ideals, permitting “an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: ‘Ought this law to be obeyed?” (Hart 1958, p. 75).
3. Moral Principles and the Boundaries of Law
The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized. Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity. (It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good. The idea that law might of its very nature be morally problematic does not seem to have occurred to them.)
It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts (p. 204). But which concepts? Once one concedes, as Finnis does, that the existence and content of law can be identified without recourse to moral argument, and that “human law is artefact and artifice; and not a conclusion from moral premises,” (p. 205) the Thomistic apparatus he tries to resuscitate is largely irrelevant to the truth of legal positivism. This vitiates also Lon Fuller's criticisms of Hart (Fuller, 1958 and 1969). Apart from some confused claims about adjudication, Fuller has two main points. First, he thinks that it isn't enough for a legal system to rest on customary social rules, since law could not guide behavior without also being at least minimally clear, consistent, public, prospective and so on -- that is, without exhibiting to some degree those virtues collectively called “the rule of law.” It suffices to note that this is perfectly consistent with law being source-based. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character, and not their law-like character. Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality. And these virtues are minor: there is little to be said in favour of a clear, consistent, prospective, public and impartially administered system of racial segregation, for example. Fuller's second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. He gloatingly asks how “an amoral datum called law could have the peculiar quality of creating an obligation to obey it” (Fuller, 1958). One possibility he neglects is that it doesn't. The fact that law claims to obligate is, of course, a different matter and is susceptible to other explanations (Green 2001). But even if Fuller is right in his unargued assumption, the “peculiar quality” whose existence he doubts is a familiar feature of many moral practices. Compare promises: whether a society has a practice of promising, and what someone has promised to do, are matters of social fact. Yet promising creates moral obligations of performance or compensation. An “amoral datum” may indeed figure, together with other premises, in a sound argument to moral conclusions.
While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin's important works (Dworkin 1978 and 1986). Positivism's most significant critic rejects the theory on every conceivable level. He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Force must only be deployed, he claims, in accordance with principles laid down in advance. A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices (subject to a threshold condition of fit) that shows them to be best justified in light of the animating ideal. In addition to those philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions.
Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom. As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them. It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even tells us all the relevant reasons for decision. Positivists accept that moral, political or economic considerations are properly operative in some legal decisions, just as linguistic or logical ones are. Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic (or morality) is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law.
Other positivists respond differently to Dworkin's phenomenological points, accepting their relevance but modifying the theory to accommodate them. So-called “inclusive positivists” (e.g., Waluchow (to whom the term is due), Coleman, Soper and Lyons) argue that the merit-based considerations may indeed be part of the law, if they are explicitly or implicitly made so by source-based considerations. For example, Canada's constitution explicitly authorizes for breach of Charter rights, “such remedy as the court considers appropriate and just in the circumstances.” In determining which remedies might be legally valid, judges are thus expressly told to take into account their morality. And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may also be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make it so, and thus Dworkin is right that the existence and content of law turns on its merits, and wrong only in his explanation of this fact. Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant.
To understand and assess this response, some preliminary clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly. It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. On the contrary, we expect to see a sourceÑa statute, a decision, or a conventionÑwhen judges are constrained not to appeal directly to the merits. Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises. What sounds like moral reasoning in the courts is sometimes really source-based reasoning. For example, when the Supreme Court of Canada says that a publication is criminally “obscene” only if it is harmful, it is not applying J.S. Mill's harm principle, for what that court means by “harmful” is that it is regarded by the community as degrading or intolerable. Those are source-based matters, not moral ones. This is just one of many appeals to positive morality, i.e. to the moral customs actually practiced by a given society, and no one denies that positive morality may be a source of law. Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms. Thus, if a court decides that money damages are in some instances not a “just remedy” then this fact will join with others in fixing what “justice” means for these purposes. This process may ultimately detach legal concepts from their moral analogs (thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair, etc.)
Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. Hart sees this as happening pre-eminently in hard cases in which, owing to the indeterminacy of legal rules or conflicts among them, judges are left with the discretion to make new law. “Discretion,” however, may be a potentially misleading term here. First, discretionary judgments are not arbitrary: they are guided by merit-based considerations, and they may also be guided by law even though not fully determined by it -- judges may be empowered to make certain decisions and yet under a legal duty to make them in a particular way, say, in conformity with the spirit of preexisting law or with certain moral principles (Raz 1994, pp. 238-53). Second, Hart's account might wrongly be taken to suggest that there are fundamentally two kinds of cases, easy ones and hard ones, distinguished by the sorts of reasoning appropriate to each. A more perspicuous way of putting it would be to say that there are two kinds of reasons that are operative in every case: source-based reasons and non-source-based reasons. Law application and law creation are continuous activities for, as Kelsen correctly argued, every legal decision is partly determined by law and partly underdetermined: “The higher norm cannot bind in every direction the act by which it is applied. There must always be more or less room for discretion, so that the higher norm in relation to the lower one can only have the character of a frame to be filled by this act” (1967, p. 349). This is a general truth about norms. There are infinitely many ways of complying with a command to “close the door” (quickly or slowly, with one's right hand or left, etc.) Thus, even an “easy case” will contain discretionary elements. Sometimes such residual discretion is of little importance; sometimes it is central; and a shift from marginal to major can happen in a flash with changes in social or technological circumstances. That is one of the reasons for rejecting a strict doctrine of separation of powers -- Austin called it a “childish fiction” -- according to which judges only apply and never make the law, and with it any literal interpretation of Dworkin's ideal that coercion be deployed only according to principles laid down in advance.
It has to be said, however, that Hart himself does not consistently view legal references to morality as marking a zone of discretion. In a passing remark in the first edition of The Concept of Law, he writes, “In some legal systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values …” (1994, p. 204). This thought sits uneasily with other doctrines of importance to his theory. For Hart also says that when judges exercise moral judgment in the penumbra of legal rules to suppose that their results were already part of existing law is “in effect, an invitation to revise our concept of what a legal rule is …” (1958, p. 72). The concept of a legal rule, that is, does not include all correctly reasoned elaborations or determinations of that rule. Later, however, Hart comes to see his remark about the U.S. constitution as foreshadowing inclusive positivism (“soft positivism,” as he calls it). Hart's reasons for this shift are obscure (Green 1996). He remained clear about how we should understand ordinary statutory interpretation, for instance, where the legislature has directed that an applicant should have a “reasonable time” or that a regulator may permit only a “fair price:” these grant a bounded discretion to decide the cases on their merits. Why then does Hart -- and even more insistently, Waluchow and Coleman -- come to regard constitutional adjudication differently? Is there any reason to think that a constitution permitting only a “just remedy” requires a different analysis than a statute permitting only a “fair rate?”
One might hazard the following guess. Some of these philosophers think that constitutional law expresses the ultimate criteria of legal validity: because unjust remedies are constitutionally invalid and void ab initio, legally speaking they never existed (Waluchow). That being so, morality sometimes determines the existence or content of law. If this is the underlying intuition, it is misleading, for the rule of recognition is not to be found in constitutions. The rule of recognition is the ultimate criterion (or set of criteria) of legal validity. If one knows what the constitution of a country is, one knows some of its law; but one may know what the rule of recognition is without knowing any of its laws. You may know that acts of the Bundestag are a source of law in Germany but not be able to name or interpret a single one of them. And constitutional law is itself subject to the ultimate criteria of systemic validity. Whether a statute, decision or convention is part of a country's constitution can only be determined by applying the rule of recognition. The provisions of the 14th Amendment to the U.S. constitution, for example, are not the rule of recognition in the U.S., for there is an intra-systemic answer to the question why that Amendment is valid law. The U.S. constitution, like that of all other countries, is law only because it was created in ways provided by law (through amendment or court decision) or in ways that came to be accepted as creating law (by constitutional convention and custom). Constitutional cases thus raise no philosophical issue not already present in ordinary statutory interpretation, where inclusive positivists seem content with the theory of judicial discretion. It is, of course, open to them to adopt a unified view and treat every explicit or implicit legal reference to morality -- in cases, statutes, constitutions, and customs -- as establishing moral tests for the existence of law. (Although at that point it is unclear how their view would differ from Dworkin's.) So we should consider the wider question: why not regard as law everything referred to by law?
Exclusive positivists offer three main arguments for stopping at social sources. The first and most important is that it captures and systematizes distinctions we regularly make and that we have good reason to continue to make. We assign blame and responsibility differently when we think that a bad decision was mandated by the sources than we do when we think that it flowed from a judge's exercise of moral or political judgement. When considering who should be appointed to the judiciary, we are concerned not only with their acumen as jurists, but also with their morality and politics--and we take different things as evidence of these traits. These are deeply entrenched distinctions, and there is no reason to abandon them.
The second reason for stopping at sources is that this is demonstrably consistent with key features of law's role in practical reasoning. The most important argument to this conclusion is due to Raz (1994, pp. 210-37). For a related argument see Shapiro. For criticism see Perry, Waluchow, Coleman 2001, and Himma.) Although law does not necessarily have legitimate authority, it lays claim to it, and can intelligibly do so only if it is the kind of thing that could have legitimate authority. It may fail, therefore, in certain ways only, for example, by being unjust, pointless, or ineffective. But law cannot fail to be a candidate authority, for it is constituted in that role by our political practices. According to Raz, practical authorities mediate between subjects and the ultimate reasons for which they should act. Authorities' directives should be based on such reasons, and they are justified only when compliance with the directives makes it more likely that people will comply with the underlying reasons that apply to them. But they can do that only if is possible to know what the directives require independent of appeal to those underlying reasons. Consider an example. Suppose we agree to resolve a dispute by consensus, but that after much discussion find ourselves in disagreement about whether some point is in fact part of the consensus view. It will do nothing to say that we should adopt it if it is indeed properly part of the consensus. On the other hand, we could agree to adopt it if it were endorsed by a majority vote, for we could determine the outcome of a vote without appeal to our ideas about what the consensus should be. Social sources can play this mediating role between persons and ultimate reasons, and because the nature of law is partly determined by its role in giving practical guidance, there is a theoretical reason for stopping at source-based considerations.
The third argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law … ” (Kelsen 1967, p. 161). Kelsen thought that it followed from this principle that “It is … possible for the legal order, by obliging the law-creating organs to respect or apply certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law” (Kelsen 1945, p. 132). (Though he regarded this transformation as effected by a sort of tacit legislation.) If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. Suppose then that the Income Tax Act penalizes overdue accounts at 8% per annum. In a relevant case, an official can determine the content of a legal obligation only by calculating compound interest. Does this make mathematics part of the law? A contrary indication is that it is not subject to the rules of change in a legal system -- neither courts nor legislators can repeal or amend the law of commutativity. The same holds of other social norms, including the norms of foreign legal systems. A conflict-of-laws rule may direct a Canadian judge to apply Mexican law in a Canadian case. The conflicts rule is obviously part of the Canadian legal system. But the rule of Mexican law is not, for although Canadian officials can decide whether or not to apply it, they can neither change it nor repeal it, and best explanation for its existence and content makes no reference to Canadian society or its political system. In like manner, moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them. The inclusivist thesis is actually groping towards an important, but different, truth. Law is an open normative system (Raz 1975 , pp. 152-54): it adopts and enforces many other standards, including moral norms and the rules of social groups. There is no warrant for adopting the Midas Principle to explain how or why it does this.
4. Law and Its Merits
It may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified, and not only by its opponents. (See also Hart, 1958, Fuesser, and Schauer.)
4.1 The Fallibility Thesis
Law does not necessarily satisfy the conditions by which it is appropriately assessed (Lyons 1984, p. 63, Hart 1994, pp. 185-6). Law should be just, but it may not be; it should promote the common good, but sometimes it doesn't; it should protect moral rights, but it may fail miserably. This we may call the moral fallibility thesis. The thesis is correct, but it is not the exclusive property of positivism. Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin accepts it. Only a crude misunderstanding of ideas like Aquinas's claim that “an unjust law seems to be no law at all” might suggest the contrary. Law may have an essentially moral character and yet be morally deficient. Even if every law always does one kind of justice (formal justice; justice according to law), this does not entail that it does every kind of justice. Even if every law has a prima facie claim to be applied or obeyed, it does not follow that it has such a claim all things considered. The gap between these partial and conclusive judgments is all a natural law theory needs to accommodate the fallibility thesis. It is sometimes said that positivism gives a more secure grasp on the fallibility of law, for once we see that it is a social construction we will be less likely to accord it inappropriate deference and better prepared to engage in a clear-headed moral appraisal of the law. This claim has appealed to several positivists, including Bentham and Hart. But while this might follow from the truth of positivism, it cannot provide an argument for it. If law has an essentially moral character then it is obfuscating, not clarifying, to describe it as a source-based structure of governance.
4.2 The Separability Thesis
At one point, Hart identifies legal positivism with “the simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so” (1994, pp. 185-86). Many other philosophers, encouraged also by the title of Hart's famous essay, “Positivism and the Separation of Law and Morals,” (1958) treat the theory as the denial that there is a necessary connection between law and morality -- they must be in some sense “separable” even if not in fact separate (Coleman, 1982). The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles are part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society's laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems -- they probably don't even hold of all historical legal systems. As merely contingent truths, it is imagined that they do not affect the concept of law itself. (This is a defective view of concept-formation, but we may ignore that for these purposes.) If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator:
(EP) It is necessarily the case that there is no connection between law and morality.
(IP) It is not necessarily the case that there is a connection between law and morality.
In reality, however, legal positivism is not to be identified with either thesis; both are false. There are many necessary “connections,” trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position on only one of them; it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality, for in the only sense in which they insist on a separation of law and morals they must insist also--and for the same reasons--on a separation of law and economics.
To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the sheer existence of law (Raz 1975 , 165-70) If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. The same cannot be said of the following necessary connections between law and morality, each of which goes right to the heart of our concept of law:
(1) Necessarily, law deals with moral matters.
Kelsen writes, “Just as natural and positive law govern the same subject-matter, and relate, therefore, to the same norm-object, namely the mutual relationships of men -- so both also have in common the universal form of this governance, namely obligation.” (Kelsen 1928, p. 34) This is a matter of the content of all legal systems. Where there is law there is also morality, and they regulate the same matters by analogous techniques. Of course to say that law deals with morality's subject matter is not to say that it does so well, and to say that all legal systems create obligations is not to endorse the duties so created. This is broader than Hart's “minimum content” thesis according to which there are basic rules governing violence, property, fidelity, and kinship that any legal system must encompass if it aims at the survival of social creatures like ourselves (Hart 1994, pp. 193-200). Hart regards this as a matter of “natural necessity” and in that measure is willing to qualify his endorsement of the separability thesis. But even a society that prefers national glory or the worship of gods to survival will charge its legal system with the same tasks its morality pursues, so the necessary content of law is not dependent, as Hart thinks it is, on assuming certain facts about human nature and certain aims of social existence. He fails to notice that if human nature and life were different, then morality would be too and if law had any role in that society, it would inevitably deal with morality's subject matter. Unlike the rules of a health club, law has broad scope and reaches to the most important things in any society, whatever they may be. Indeed, our most urgent political worries about law and its claims flow from just this capacity to regulate our most vital interests, and law's wide reach must figure in any argument about its legitimacy and its claim to obedience.
(2) Necessarily, law makes moral claims on its subjects.
The law tells us what we must do, not merely what it would be virtuous or advantageous to do, and it requires us to act without regard to our individual self-interest but in the interests of other individuals, or in the public interest more generally (except when law itself permits otherwise). That is to say, law purports to obligate us. But to make categorical demands that people should act in the interests of others is to make moral demands on them. These demands may be misguided or unjustified for law is fallible; they may be made in a spirit that is cynical or half-hearted; but they must be the kind of thing that can be offered as, and possibly taken as, obligation-imposing requirements. For this reason neither a regime of “stark imperatives” (see Kramer, pp. 83-9) nor a price system would be a system of law, for neither could even lay claim to obligate its subjects. As with many other social institutions, what law, though its officials, claims determines its character independent of the truth or validity of those claims. Popes, for example, claim apostolic succession from St. Peter. The fact that they claim this partly determines what it is to be a Pope, even if it is a fiction, and even the Pope himself doubts its truth. The nature of law is similarly shaped by the self-image it adopts and projects to its subjects. To make moral demands on their compliance is to stake out a certain territory, to invite certain kinds of support and, possibly, opposition. It is precisely because law makes these claims that doctrines of legitimacy and political obligation take the shape and importance that they do.
(3) Necessarily, law is justice-apt.
In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a very significant feature of law. Not all human practices are justice-apt. It makes no sense to ask whether a certain fugue is just or to demand that it become so. The musical standards of fugal excellence are preeminently internal -- a good fugue is a good example of its genre; it should be melodic, interesting, inventive etc. -- and the further we get from these internal standards the less secure evaluative judgments about it become. While some formalists flirt with similar ideas about law, this is in fact inconsistent with law's place amongst human practices. Even if law has internal standards of merit -- virtues uniquely its own that inhere in its law-like character -- these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be sidelined by any claim of the sort that law's purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture.
These three theses establish connections between law and morality that are both necessary and highly significant. Each of them is consistent with the positivist thesis that the existence and content of law depends on social facts, not on its merits. Each of them contributes to an understanding of the nature of law. The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.
4.3 The Neutrality Thesis
The necessary content thesis and the justice-aptitude thesis together establish that law is not value-neutral. Although some lawyers regard this idea as a revelation (and others as provocation) it is in fact banal. The thought that law could be value neutral does not even rise to falsity -- it is simply incoherent. Law is a normative system, promoting certain values and repressing others. Law is not neutral between victim and murderer or between owner and thief. When people complain of the law's lack of neutrality, they are in fact voicing very different aspirations, such as the demand that it be fair, just, impartial, and so forth. A condition of law's achieving any of these ideals is that it is not neutral in either its aims or its effects.
Positivism is however sometimes more credibly associated with the idea that legal philosophy is or should be value-neutral. Kelsen, for example, says, “the function of the science of law is not the evaluation of its subject, but its value-free description” (1967, p. 68) and Hart at one point described his work as “descriptive sociology” (1994, p. v). Since it is well known that there are convincing arguments for the ineliminability of values in the social sciences, those who have taken on board Quinian holisms, Kuhnian paradigms, or Foucauldian espistemes, may suppose that positivism should be rejected a priori, as promising something that no theory can deliver.
There are complex questions here, but some advance may be made by noticing that Kelsen's alternatives are a false dichotomy. Legal positivism is indeed not an “evaluation of its subject”, i.e., an evaluation of the law. And to say that the existence of law depends on social facts does not commit one to thinking that it is a good thing that this is so. (Nor does it preclude it: see MacCormick and Campbell) Thus far Kelsen is on secure ground. But it does not follow that legal philosophy therefore offers a “value-free description” of its subject. There can be no such thing. Whatever the relation between facts and values, there is no doubt about the relationship between descriptions and values. Every description is value-laden. It selects and systematizes only a subset of the infinite number of facts about its subject. To describe law as resting on customary social rules is to omit many other truths about it including, for example, truths about its connection to the demand for paper or silk. Our warrant for doing this must rest on the view that the former facts are more important than the latter. In this way, all descriptions express choices about what is salient or significant, and these in turn cannot be understood without reference to values. So legal philosophy, even if not directly an evaluation of its subject is nonetheless “indirectly evaluative” (Dickson, 2001). Moreover, “law” itself is an anthropocentric subject, dependent not merely on our sensory embodiment but also, as its necessary connections to morality show, on our moral sense and capacities. Legal kinds such as courts, decisions, and rules will not appear in a purely physical description of the universe and may not even appear in every social description. (This may limit the prospects for a “naturalized” jurisprudence; though for a spirited defense of the contrary view, see Leiter)
It may seem, however, that legal positivism at least requires a stand on the so-called “fact-value” problem. There is no doubt that certain positivists, especially Kelsen, believe this to be so. In reality, positivism may cohabit with a range of views here -- value statements may be entailed by factual statements; values may supervene on facts; values may be kind of fact. Legal positivism requires only that it be in virtue of its facticity rather than its meritoriousness that something is law, and that we can describe that facticity without assessing its merits. In this regard, it is important to bear in mind that not every kind of evaluative statement would count among the merits of a given rule; its merits are only those values that could bear on its justification.
Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete theory of law requires also an account of what kinds of things could possibly count as merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also of the pivotal questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions, though its claim that the existence and content of law depends only on social facts does give them shape.
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I thank Brian Leiter and Liam Murphy for helpful discussion.
Hans Kelsen (German:[hans ˈkɛlsən]; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He is author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise of totalitarianism in Austria (and a 1929 constitutional change), Kelsen left for Germany in 1930 but was forced to leave this university post after Hitler's seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and later moved to the United States in 1940. In 1934, Roscoe Pound lauded Kelsen as “undoubtedly the leading jurist of the time.” While in Vienna, Kelsen was a young colleague of Sigmund Freud and wrote on the subject of social psychology and sociology.
By the 1940s, Kelsen’s reputation was already well established in the United States for his defense of democracy and for his magnum opus Pure Theory of Law. Kelsen’s academic stature exceeded legal theory alone and extended to political philosophy and social theory as well. His influence encompassed the fields of philosophy, legal science, sociology, the theory of democracy, and international relations.
Late in his career while at the University of California, Berkeley, Kelsen rewrote Pure Theory of Law into a second version. Kelsen throughout his active career was also a significant contributor to the theory of judicial review, the hierarchical and dynamic theory of positive law, and the science of law. In political philosophy he was a defender of the state-law identity theory and an advocate of explicit contrast of the themes of centralization and decentralization in the theory of government. Kelsen was also an advocate of the position of separation of the concepts of state and society in their relation to the study of the science of law.
The reception and criticism of Kelsen's work and contributions has been extensive with both ardent supporters and detractors. Kelsen's contributions to legal theory of the Nuremberg trials was supported and contested by various authors including Dinstein at the Hebrew University in Jerusalem. Kelsen's neo-Kantian defense of continental legal positivism was supported by H. L. A. Hart in its contrasting form of Anglo-American legal positivism, which was debated in its Anglo-American form by scholars such as Ronald Dworkin and Jeremy Waldron.
Kelsen was born in Prague into a middle-class, German-speaking, Jewish family. His father, Adolf Kelsen, was from Galicia, and his mother, Auguste Löwy, was from Bohemia. Hans was their first child; there would be two younger brothers and a sister. The family moved to Vienna in 1884, when Hans was three years old. After graduating from the Akademisches Gymnasium, Kelsen studied law at the University of Vienna, taking his doctorate in law (Dr iuris) on 18 May 1906 and his habilitation on 9 March 1911. Twice in his life, Kelsen converted to separate religious denominations. At the time of his dissertation on Dante and Catholicism, Kelsen was baptised as a Roman Catholic on 10 June 1905. On 25 May 1912 he married Margarete Bondi (1890–1973), the two having converted a few days earlier to Lutheranism of the Augsburg Confession; they would have two daughters.
Kelsen and his years in Austria up to 1930
Kelsen's dissertation on Dante's theory of the state in 1905 became his first book on political theory. In this book Kelsen made explicit his preference for the reading of Dante Alighieri's Divine Comedy as largely based in political allegory. The study makes a rigorous examination of the "two swords doctrine" of Pope Gelasius I, along with Dante's distinct sentiments in the Roman Catholic debates between the Guelphs and Ghibellines, and Kelsen's conversion to Catholicism was contemporaneous to the book's completion in 1905. In 1908 Kelsen won a research scholarship which allowed him to attend the University of Heidelberg for three consecutive semesters, where he studied with the distinguished jurist Georg Jellinek before returning to Vienna.
The closing chapter of Kelsen's study of political allegory in Dante also was important for emphasizing the particular historical path which led directly to the development of modern law in the twentieth century. After emphasizing Dante's importance to this development of legal theory, Kelsen then indicated the historical importance of Niccolò Machiavelli and Jean Bodin to these historical transitions in legal theory leading to modern twentieth century law. In the case of Machiavelli, Kelsen saw an important counter-example of an exaggerated executive part of government operating without effective legal restraints on responsible conduct. For Kelsen, this would be instrumental in the orientation of his own legal thinking in the direction of strong rule of law government, with a heightened emphasis on the central importance of a fully elaborated power of judicial review.
Kelsen's time at Heidelberg was of lasting importance to him in that he began to solidify his position of the identity of law and state from the initial steps he observed as being taken by Jellinek. Kelsen's historical reality was to be surrounded by the dualistic theories of law and state prevailing in his time. The major question for Jellinek and Kelsen, as stated by Baume is, "How can the independence of the state in a dualist perspective be reconciled with its status (as) representative of the legal order? For dualistic theorists there remains an alternative to monistic doctrines: the theory of the self-limitation of the state. Georg Jellinek is an eminent representative of this theory, which allows one to avoid reducing the state to a legal entity, and also to explain the positive relationship between law and state. The self-limitation of the sphere of the state presupposes that the state, as a sovereign power, by the limits that it imposes on itself, becomes a rule-of-law state." For Kelsen, this was appropriate for as far as it went yet it still remained a dualistic doctrine and therefore Kelsen rejected it stating: "The problem of the so-called auto-obligation of the State is one of those pseudo-problems that result from the erroneous dualism of State and law. This dualism is, in turn, due to a fallacy of which we meet numerous examples in the history of all fields of human thought. Our desire for the intuitive representation of abstractions leads us to personify the unity of a system, and then to hypostasize the personification. What originally was only a way of representing the unity of a system of objects becomes a new object, existing in its own right." Kelsen was joined in this critique by the distinguished French jurist Léon Duguit, who wrote in 1911: "Self-limitation theory (vis Jellinek) contains some real sleight of hand. Voluntary subordination is not subordination. The state is not really limited by the law if the state alone can introduce and write this law, and if it can at any time make any changes that it wants to make in it. This kind of foundation of public law is clearly extremely fragile." As a result, Kelsen solidified his position endorsing the doctrine of the identity of law and state.[jargon]
In 1911, he achieved his habilitation (license to give university lectures) in public law and legal philosophy, with a thesis that became his first major work on legal theory, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (Main Problems in Theory of Public Law, Developed from Theory of the Legal Statement). In 1919, he became full professor of public and administrative law at the University of Vienna, where he established and edited the Zeitschrift für öffentliches Recht (Journal of Public Law). At the behest of Chancellor Karl Renner, Kelsen worked on drafting a new Austrian Constitution, enacted in 1920. The document still forms the basis of Austrian constitutional law. Kelsen was appointed to the Constitutional Court, for his lifetime. Kelsen's emphasis during these years upon a Continental form of legal positivism began to further flourish from the standpoint of his law-state monism, somewhat based upon the previous examples of Continental legal positivism found in such scholars of law-state dualism such as Paul Laband (1838–1918) and Carl Friedrich von Gerber (1823–1891).
During the early 1920s he published six major works in the areas of government, public law, and international law: in 1920, Das Problem der Souveränität und die Theorie des Völkerrechts (The Problem of Sovereignty and Theory of International Law) and Vom Wesen und Wert der Demokratie (On the Essence and Value of Democracy); in 1922, Der soziologische und der juristische Staatsbegriff (The Sociological and Juristic Concepts of the State); in 1923, Österreichisches Staatsrecht (Austrian Public Law); and, in 1925, Allgemeine Staatslehre (General Theory of the State), together with Das Problem des Parlamentarismus (The Problem of Parliamentarianism). In the late 1920s, these were followed by Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus (The Philosophical Foundations of the Doctrine of Natural Law and Legal Positivism).
During the 1920s, Kelsen continued to promote his celebrated theory of the identity of law and state which made his efforts a counterpoint to the position of Carl Schmitt who advocated for the priority of the political concerns of the state. Kelsen was supported in his position by Adolf Merkl and Alfred Verdross, while opposition to his view was voiced by Erich Kaufman, Hermann Heller, and Rudolf Smend. An important part of Kelsen's main practical legacy is as the inventor of the modern European model of constitutional review. This was first introduced in both Austria and Czechoslovakia in 1920, and then latter in the Federal Republic of Germany, Italy, Spain, Portugal, and later many countries of Central and Eastern Europe.
As described above, the Kelsenian court model set up a separate constitutional court which was to have sole responsibility over constitutional disputes within the judicial system. Kelsen was the primary author of its statutes in the state constitution of Austria as he documents in his 1923 book cited above. This is different from the system usual in common-law countries, including the USA, in which courts of general jurisdiction from the trial level up to the court of last resort frequently have powers of constitutional review. Following increasing political controversy about some positions of the Constitutional Court of Austria, Kelsen faced increasing pressure from the administration which appointed him to specifically address issues and cases concerning the providence of divorce provisions in state family law. Kelsen was inclined to a liberal interpretation of the divorce provision while the administration which had originally appointed him was responding to public pressure for the predominantly Catholic country to take a more conservative position on the issue of the curtailment of divorce. In this increasingly conservative climate, Kelsen, who was considered sympathetic to the Social Democrats, although not a party member, was removed from the court in 1930.
Kelsen and his European years between 1930 and 1940
In her recent book on Kelsen, Sandrine Baume has summarized the confrontation between Kelsen and Schmitt at the very start of the 1930s. This debate was to reignite Kelsen's strong defense of the principle of judicial review against the principle of an authoritarian version of the executive branch of government which Schmitt had envisioned for national socialism in Germany. Kelsen wrote his scathing reply to Schmitt in his 1931 essay, "Who Should Be the Guardian of the Constitution?", in which he defended in plain terms the importance of judicial review over and against the excessive form of executive authoritarian government which Schmitt was promulgating in the early 1930s. As Baume states, "Kelsen defended the legitimacy of the constitutional court by combating the reasons that Schmitt cites for assigning the role of the guardian of the Constitution to the President of the Reich. The dispute between these two lawyers was about which body of the state should be assigned the role of guardian of the German Constitution. Kelsen thought that this mission ought to be conferred on the judiciary, especially the Constitutional Court." Although Kelsen was successful in drafting sections for the Constitution in Austria for a strong court of judicial review, his sympathizers in Germany were less successful. Both Heinrich Triepel in 1924 and Gerhard Anschütz in 1926 were unsuccessful in their explicit drive to instill a strong version of judicial review in Germany's Weimar Constitution.
Kelsen accepted a professorship at the University of Cologne in 1930. When the National Socialists came to power in Germany in 1933, he was removed from his post. He relocated to Geneva, Switzerland where he taught international law at the Graduate Institute of International Studies from 1934 to 1940. During this time period, Hans Morgenthau departed from Germany to complete his habilitation dissertation in Geneva, for which Hans Kelsen advised, which resulted in his first book written in French being published entitled, The Reality of Norms and In Particular the Norms of International Law: Foundations of a Theory of Norms. By remarkable good fortune for Morgenthau, Kelsen had just arrived in Geneva as a professor and he became an adviser for Morgenthau's dissertation. Kelsen was among the strongest critics of Carl Schmitt because Schmitt was advocating for the priority of the political concerns of the state over the adherence by the state to the rule of law. Kelsen and Morgenthau were united against this National Socialist school of political interpretation which down-played the rule of law, and they became lifelong colleagues even after both had emigrated from Europe to take their respective academic positions in the United States. During these years, Kelsen and Morgenthau had both become persona non grata in Germany during the full rise to power of National Socialism.
That Kelsen was the principal defender of Morgenthau's Habilitationschrift is recently documented in the translation of Morgenthau's book titled The Concept of the Political. In the introductory essay to the volume, Behr and Rosch indicate that the Geneva faculty under the examiners Walther Burckhardt and Paul Guggenheim were initially quite negative concerning Morgenthau's Habilitationschrift. When Morgenthau had found a Paris publisher for the volume, he asked Kelsen to re-evaluate it. In the words of Behr and Rosch, "Kelsen was the right choice to assess Morgenthau's thesis because not only was he a senior scholar in Staatslehre, but Morgenthau's thesis was also largely a critical examination of Kelsen's legal positivism. Thus, it was Kelsen to whom Morgenthau 'owed his Habilitation in Geneva,' as Kelsen's biographer Rudolf Aladár Métall confirms, and also eventually his subsequent academic career, because Kelsen produced the positive evaluation that convinced the board of examiners to award Morgenthau his Habilitation."
In 1934, at the age of 52, he published the first edition of Reine Rechtslehre (Pure Theory of Law). While in Geneva he became more deeply interested in international law. This interest in international law in Kelsen was in reaction largely to the Kellogg–Briand Pact in 1929 and his negative reaction to the vast idealism he saw represented in its pages, along with the lack of the recognition of sanctions for the illicit actions of belligerent states. Kelsen had come to endorse strongly the sanction-delict theory of law which he saw as substantially under-represented in the Kellogg–Briand Pact. In 1936–1938 he was briefly professor at the German University in Prague before returning to Geneva where he remained until 1940. His interest in international law would become especially focused in Kelsen's writings on international war crimes which he would redouble his efforts on behalf of after his departure to the United States.
Hans Kelsen and his American years after 1940
In 1940, at the age of 58, he moved to the United States, giving the prestigious Oliver Wendell Holmes Lectures at Harvard Law School in 1942. He was supported by Roscoe Pound for a faculty position at Harvard but opposed by Lon Fuller on the Harvard faculty before becoming a full professor at the department of political science at the University of California, Berkeley in 1945. Kelsen was defending a position of the distinction of the philosophical definition of justice as it is separable from the application of positive law. As Fuller stated his opposition, "I share the opinion of Jerome Hall, evidenced in this excellent Readings, that jurisprudence should start with justice. I place this preference not on exhortatory grounds, but on a belief that until one has wrestled with the problem of justice one cannot truly understand the other issues of jurisprudence. Kelsen, for example, excludes justice from his studies (of practical law) because it is an 'irrational ideal' and therefore 'not subject to cognition.' The whole structure of his theory derives from that exclusion. The meaning of his theory can therefore be understood only when we have subjected to critical scrutiny its keystone of negation." Lon Fuller felt that the natural law position he was advocating against Kelsen was incompatible with Kelsen's dedication to the responsible use of positive law and the science of law. During the ensuing years, Kelsen increasingly dealt with issues of international law and international institutions such as the United Nations. In 1953-54, he was visiting Professor of International Law at the United States Naval War College.
Another part of Kelsen's practical legacy, as he has recorded, was the influence that his writings from the 1930s and early 1940s had upon the extensive and unprecedented prosecution of political leaders and military leaders at the end of WWII at Nuremberg and Tokyo, producing convictions in more than one thousand war crimes cases. For Kelsen, the trials were the culmination of approximately fifteen years of research he had devoted to this topic, which started still in his European years, and which he followed with his celebrated essay, "Will the Judgment In the Nuremberg Trial Constitute a Precedent In International Law?," published in The International Law Quarterly in 1947. It was preceded in 1943 by Kelsen's essay, 'Collective and Individual Responsibility in International Law with Particular Regard to Punishment of War Criminals', 31 California Law Review, p 530, and in 1944 by his essay, "The Rule Against Ex Post Facto and the Prosecution of the Axis War Criminals," which appeared in The Judge Advocate Journal, Issue 8.
In Kelsen's companion 1948 essay for J.Y.B.I.L. to his 1943 "[...]War Criminals" essay cited in the above paragraph titled, "Collective and Individual Responsibility for Acts of State in International Law," Kelsen presented his thoughts on the distinction between the doctrine of respondeat superior and the acts of State doctrine when used as a defense during the prosecution of war crimes. On page 228 of the essay Kelsen states that, "Acts of State are acts of individuals performed by them in their capacity as organs of the State, especially by that organ which is called the Government of the State. These acts are performed by individuals who belong to the Government as the head of State, or members of the cabinet, or are acts performed at its command or with the authorization of the Government." Yoram Dinstein of Hebrew University in Jerusalem has taken exception to Kelsen's formulation in his book The Defense of 'Obedience to Superior Orders' in International Law, reprinted in 2012 by Oxford University Press, dealing with Kelsen's specific attribution of acts of State.
Shortly after the initiation of the drafting of the UN Charter on 25 April 1945 in San Francisco, Kelsen began the writing of his extended 700-page treatise on the United Nations as a newly appointed professor at the University of California at Berkeley (The Law of the United Nations, New York 1950). In 1952, he also published his book-length study about international law entitled Principles of International Law in English, and reprinted in 1966. In 1955, Kelsen turned to a 100-page essay, "Foundations of Democracy," for the leading philosophy journal Ethics; written during the height of Cold War tensions, it expressed a passionate commitment to the Western model of democracy over soviet and national-socialist forms of government.
This 1955 essay by Kelsen on democracy was also important for summarizing his critical stance towards the 1954 book on politics by his former student in Europe Eric Voegelin. Following this, in Kelsen's book entitled A New Science of Politics (Ontos Verlag, reprinted in 2005, 140pp, originally published 1956), Kelsen enumerated a point by point criticism of the excessive idealism and ideology which he saw as prevailing in Voegelin's book on politics. This exchange and debate has been documented in the appendix to the book, written by the author on Voegelin, Barry Cooper, entitled Voegelin and the Foundations of Modern Political Science from 1999. Kelsen's other book defending his realist position regarding the issue of the separation of state and religion as opposed to that of Voegelin's position on this issue was published posthumously under the title Secular Religion. Kelsen's objective in part was to safeguard the importance of the responsible separation of state and religion for those sympathetic to religion and concerned with this separation. Kelsen's 1956 book was followed in 1957 by a collection of essays on justice, law and politics, most of them previously published in English. It had originally been published in the German language in 1953.
Pure Theory of Law
Main article: Pure Theory of Law
Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of jurisprudence and public law, especially in Europe and Latin America although less so in common-law countries. His book titled Pure Theory of Law (German: Reine Rechtslehre) was published in two editions, one in Europe in 1934, and a second expanded edition after he had joined the faculty at the University of California at Berkeley in 1960.
Kelsen's Pure Theory of Law is widely acknowledged as his magnum opus. It aims to describe law as a hierarchy of norms which are also binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a 'basic norm (Grundnorm)'—a hypothetical norm, presupposed by the theory, from which in a hierarchy all 'lower' norms in a legal system, beginning with constitutional law, are understood to derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms, their specifically 'legal' character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation.
The Pure Theory of Law is generally considered among the most original contributions made by Hans Kelsen to legal theory. His book with that title was first published in 1934, and in a greatly expanded second edition (effectively a magnum opus doubled in length of presentation) in 1960. The second edition appeared in English translation in 1967, as Pure Theory of Law; the first edition appeared in English translation in 1992, as Introduction to the Problems of Legal Theory. The theory proposed in this book has probably been the most influential theory of law produced during the 20th century. It is, at the least, one of the high points of modernist legal theory. However, the original terminology which was introduced in the first edition was already present in many of Kelsen's writings from the 1920s, and was also subject to discussion in the critical press of that decade. Although the second edition is so much longer, the two editions have a great deal of similar content.
Kelsen's widespread contributions to legal theory
Kelsen's theory both drew from and has been developed by scholars in his homelands, notably the Vienna School in Austria and the Brno School led by František Weyr in Czechoslovakia. It is stated that in the English-speaking world, and notably the "Oxford school" of jurisprudence", Kelsen's influence can be seen in H. L. A. Hart, Julie Dickson, John Gardner, Leslie Green, Jim Harris, Tony Honoré, Joseph Raz and Richard Tur, and "in the backhanded compliment of strenuous criticism, also in the work of John Finnis". Among the principal writers in English on Kelsen are Robert S. Summers, Neil MacCormick and Stanley L. Paulson. Among Kelsen's principal critics today is Joseph Raz of Columbia University who has excoriated the reading of Nuremberg and the war crimes trials which Kelsen had interpreted in a consistent manner throughout the 1930s and 1940s at the end of his essay for Am. J. Juris., p 94, (1974) titled "Kelsen's Theory of the Basic Norm."
Some mystery surrounds the belated publication, in 2012, of Secular Religion. The text was begun in the 1950s, as an attack on work by his former pupil Eric Voegelin. In the early 1960s an expanded version was set up in proof but was withdrawn at Kelsen's insistence (and considerable personal expense in reimbursing the publisher), for reasons that have never become clear. However, the Hans Kelsen Institute eventually decided that it should be published. It is a vigorous defense of modern science against all, including Voegelin, who would overturn the accomplishments of the Enlightenment by demanding that science be guided by religion. Kelsen seeks to expose contradictions in their claim that modern science, after all, rests upon the same sorts of assumption as religion—that it constitutes forms of "new religion" and so should not complain when old religion is brought back in. Four major areas of Kelsen's contributions to legal theory over his lifetime included the following areas of (i) judicial review, (ii) hierarchical law, (iii) the de-ideologicalization of positive law to strongly disassociate all reference to natural law, and (iv) the clear delineation of the science of law and legal science in twentieth century modern law.
Judicial review for Kelsen in the twentieth century was part of a tradition inherited from the common law tradition based upon the American constitutional experience as introduced by John Marshall. By the time the principle had reached Europe and specifically Kelsen, the issue of the codification of Marshall's common law version of judicial review into its form of constitutionally legislated law became an explicit theme for Kelsen. In drafting the constitutions for both Austria and Czechoslovakia, Kelsen chose to carefully delineate and limit the domain of judicial review to a narrower focus than was originally accommodated by John Marshall. Kelsen did receive a lifetime appointment to the court of judicial review in Austria and would remain on this court for almost an entire decade during the 1920s.
Hierarchical law as a model for understanding the structural description of the process of understanding and applying the law was central for Kelsen and he adopted the model directly from his colleague Adolf Merkl at the University of Vienna. The main purposes of the hierarchical description of the law would be three-fold for Kelsen. First, it was essential to understanding his celebrated static theory of law as elaborated in Chapter four of his book on the Pure Theory of Law (see subsection above). In its second edition, this chapter on the static theory of the law was almost one hundred pages in length and represented a comprehensive study of law capable of standing as an independent subject for research for legal scholars in this area of specialization. Second, it was a measure of relative centralization or decentralization. Third, a fully centralized system of law would also correspond to a unique Grundnorm or Basic norm which would not be inferior to any other norm in the hierarchy due to its placement at the utmost foundation of the hierarchy (see Grundnorm section below).
The de-ideologicalization of positive law
Kelsen, during the time period of his education and legal training in fin-de-siecle Europe, had inherited a highly ambiguous definition of natural law which could be presented as having metaphysical, theological, philosophical, political, religious, or ideological components depending on any one of numerous sources who might desire to utilize the term. For Kelsen, this ambiguity in the definition of natural made it unusable in any practical sense for a modern approach to understanding the science of law. Kelsen explicitly defined positive law to deal with the many ambiguities he associated with the use of natural law in his time, along with the negative influence which it had upon the reception of what was meant even by positive law in contexts apparently removed from the domain of influence normally associated with natural law.
Science of law
The redefinition of the science of law and legal science to meet the requirements of modern law in the twentieth century was of significant concern to Kelsen. Kelsen would write book-length studies detailing the many distinctions to be made between the natural sciences and their associated methodology of causal reasoning in contrast to methodology of normative reasoning which he saw as more directly suited to the legal sciences. The science of law and legal science were key methodological distinctions which were of high importance to Kelsen in the development of the pure theory of law and the general project of removing ambiguous ideological elements from having undue influence on the development of modern twentieth century law. In his last years, Kelsen turned to a comprehensive presentation of his ideas on norms. The unfinished manuscript was published posthumously as Allgemeine Theorie der Normen (General Theory of Norms).
During the last 29 years of his life at the University of California, Kelsen's appointment at the University and his affiliation was primarily with the Department of Politics and not with the School of Law. This is strongly reflected in his many writings in the field of political philosophy both before and after joining the Faculty at Berkeley. In fact, Kelsen's very first book (see Section above) was written about the political philosophy of Dante Alighieri and it was only with his second book that Kelsen started to write book length studies about the philosophy of law and its practical applications. Baume speaks of Kelsen's political philosophy concerning judicial review as coming closest to Ronald Dworkin and John Hart Ely among the scholars active after the end of Kelsen's life.
In order to gain a useful understanding of the breadth of Kelsen's interests in political philosophy, it is informative to examine Charles Covell's book titled The Redefinition of Conservatism from the 1980s in which Covell engages Kelsen in the philosophical context of Ludwig Wittgenstein, Roger Scruton, Michael Oakeshott, John Casey and Maurice Cowling. Although Kelsen's own political preferences were generally aimed towards more liberal forms of expression, Covell's perspective of modern liberal conservatism in his book provides an effective foil for bringing to light Kelsen's own points of emphasis within his own orientations in political philosophy. As Covell summarizes them, Kelsen's interests in political philosophy ranged across the fields of "practical perspectives underlying morality, religion, culture, and social custom."
As summarized by Sandrine Baume in her recent book on Kelsen, "In 1927 [Kelsen] recognized his debt to Kantianism on this methodological point that determined much of his pure theory of law: 'Purity of method, indispensable to legal science, did not seem to me to be guaranteed by any philosopher as sharply as by Kant with his contrast between Is and Ought. Thus for me, Kantian philosophy was from the very outset the light that guided me.'" Kelsen's high praise of Kant in the absence of any specific neo-Kantians is matched among more recent scholars by John Rawls of Harvard University. Both Kelsen and Rawls also have made strong endorsements of Kant's books on Perpetual Peace (1795) and Idea for a Universal History (1784). In his book titled What is Justice?, Kelsen indicated his position concerning social justice stating, "[S]uppose that it is possible to prove that the economic situation of a people can be improved so essentially by so-called planned economy that social security is guaranteed to everybody in an equal measure; but that such an organization is possible only if all individual freedom is abolished. The answer to the question whether planned economy is preferable to free economy depends on our decision between the values of individual freedom and social security. Hence, to the question of whether individual freedom is a higher value than social security or vice versa, only a subjective answer is possible," Five principle areas of concern for Kelsen in the area of political philosophy can be identified among his many interests for their centrality and the effect which they exerted over virtually his entire lifetime. These are; (i) Sovereignty, (ii) Law-state identity theory, (iii) State-society dualism, (iv) Centralization-decentralization, and (v) Dynamic theory of law.
The definition and redefinition of sovereignty for Kelsen in the context of twentieth century modern law became a central theme for the political philosophy of Hans Kelsen from 1920 to the end of his life. The sovereignty of the state defines the domain of jurisdiction for the laws which govern the state and its associated society. The principles of explicitly defined sovereignty would become of increasing importance to Kelsen as the domain of his concerns extended more comprehensively into international law and its manifold implications following the conclusion of WWI. The very regulation of international law in the presence of asserted sovereign borders would present either a major barrier for Kelsen in the application of principles in international law, or represent areas where the mitigation of sovereignty could greatly facilitate the progress and effectiveness of international law in geopolitics.
Law–state identity theory
The understanding of Kelsen's highly functional reading of the identity of law and state continues to represent one of the most challenging barriers to students and researchers of law approaching Kelsen's writings for the first time. After Kelsen completed his doctoral dissertation on the political philosophy of Dante, he turned to the study of Jellinek's dualist theory of law and state in Heidelberg in the years leading to 1910. Kelsen found that although he had a high respect for Jellinek as a leading scholar of his day, that Jellinek endorsement of a dualist theory of law and state was an impediment to the further development of a legal science which would be supportive of the development of responsible law throughout the twentieth century in addressing the requirements of the new century for the regulation of its society and of its culture. Kelsen's highly functional reading of the state was the most compatible manner he could locate for allowing for the development of positive law in a manner compatible with the demands of twentieth century geopolitics.
State–society distinctions and delineations
After accepting the need for endorsing an explicit reading of the identity of law and state, Kelsen remained equally sensitive to recognizing the need for society to nonetheless express tolerance and even encourage the discussion and debate of philosophy, sociology, theology, metaphysics, sociology, politics, and religion. Culture and society were to be regulated by the state according to legislative and constitutional norms. Kelsen recognized the province of society in an extensive sense which would allow for the discussion of religion, natural law, metaphysics, the arts, etc., for the development of culture in its many and varied attributes. Very significantly, Kelsen would come to the strong inclination in his writings that the discussion of justice, as one example, was appropriate to the domain of society and culture, though its dissemination within the law was highly narrow and dubious. A twentieth century version of modern law, for Kelsen, would need to very carefully and appropriately delineate the responsible discussion of philosophical justice if the science of law was to be allowed to progress in an effective manner responding to the geopolitical and domestic needs of the new century.
Centralization and decentralization
A common theme which was unavoidable for Kelsen within the many applications he encountered of his political philosophy was that of centralization and decentralization. For Kelsen, centralization was a philosophically key position to the understanding of the pure theory of law. The pure theory of law is in many ways dependent upon the logical regress of its hierarchy of superior and inferior norms reaching a centralized point of origination in the hierarchy which he termed the Basic norm, or, Grundnorm. In Kelsen's general assessments, centralization was to often be associated with more modern and highly developed forms of enhancements and improvements to sociological and cultural norms, while the presence of decentralization was a measure of more primitive and less sophisticated observations concerning sociological and cultural norms.
Dynamic theory of law
The dynamic theory of law is singled out in this subsection discussing the political philosophy of Hans Kelsen for the very same reasons which Kelsen applied in separating its explication from the discussion of the static theory of law within the pages of Pure Theory of Law. The dynamic theory of law is the explicit and very acutely defined mechanism of state by which the process of legislation allows for new law to be created, and already established laws to be revised, as a result of political debate in the sociological and cultural domains of activity. Kelsen devotes one of his longest chapters in the revised version of Pure Theory of Law to discussing the central importance he associated with the dynamic theory of law. Its length of nearly one hundred pages is suggestive of its central significance to the book as a whole and may almost be studied as an independent book in its own right complementing the other themes which Kelsen covers in this book.
Reception and criticism
This section delineates the reception and criticism of Kelsen's writings and research throughout his lifetime. It also explicates the reaction of his scholarly reception after his death in 1973 concerning his intellectual legacy. Throughout his lifetime, Kelsen maintained a highly authoritative position representing his wide range of contributions to the theory and practice of law. Few scholars in the study of law were able to match his ability to engage and often polarize legal opinion during his own lifetime and extending well into his legacy reception after his death. One significant example of this involves his introduction and development of the term Grundnorm which can be briefly summarized to illustrate the diverse responses which his opinion was able to often stimulate in the legal community of his time. The short version of its reception is illustrative of many similar debates with which Kelsen was involved at many points in his career and may be summarized as follows.
Regarding Kelsen's original use of the term Grundnorm, its closest antecedent appears in writings of his colleague Adolf Merkl at the University of Vienna. Merkl was developing a structural research approach for the understanding of law as a matter of the hierarchical relationship of norms, largely on the basis of their being either superior, the one to the other, or inferior with respect to each other. Kelsen adapted and assimilated much of Merkl's approach into his own presentation of the Pure Theory of Law in both its original version (1934) and its revised version (1960). For Kelsen, the importance of the Grundnorm was in large measure two-fold since it importantly indicated the logical regress of superior relationships between norms as they led to the norm which ultimately would have no other norm to which it was inferior. Its second feature was that it represented the importance which Kelsen associated with the concept of a fully centralized legal order in contrast to the existence of decentralized forms of government and representing legal orders.
Another form of the reception of the term originated from the fairly extended attempt to read Kelsen as a Neo-Kantian following his early exchange with Hermann Cohen in 1913 concerning the publication of his Habilitation dissertation in 1911 on Public Law. Cohen was a leading Neo-Kantian of the time and Kelsen was, in his own way, receptive to many of the ideas which Cohen had expressed in his published book review of Kelsen's writing. Kelsen had insisted that he had never used this material in the actual writing of his own book, though Cohen's ideas were attractive to him in their own right. This has resulted in one of the longest-running debates within the general Kelsen community as to whether Kelsen became a Neo-Kantian himself after the encounter with Cohen, or if he managed to keep his own non-Neo-Kantian position intact which he claimed was the prevailing circumstance when he first wrote his book in 1911.
The Neo-Kantians, when pressing the issue, would lead Kelsen into discussions concerning whether the existence of such a Grundnorm (Basic Norm) was strictly symbolic or whether it had a concrete foundation. This has led to the further division within this debate concerning the currency of the term Grundnorm as to whether it should be read, on the one hand, as part and parcel of Hans Vaihinger's "as-if" hypothetical construction. On the other hand, to those seeking a practical reading, the Grundnorm corresponded to something directly and concretely comparable to a sovereign nation's federal constitution, under which would be organized all of its regional and local laws, and no law would be recognized as being superior to it.
In different contexts, Kelsen would indicate his preferences in different ways, with some Neo-Kantians asserting that late in life Kelsen would largely abide by the symbolic reading of the term when used in the Neo-Kantian context, and as he has documented. The Neo-Kantian reading of Kelsen can further be subdivided into three subgroups, with each representing their own preferred reading of the meaning of the Grundnorm, which were identifiable as (a) the Marburg Neo-Kantians, (b) the Baden Neo-Kantians, and (c) his own Kelsenian reading of the Neo-Kantian school with which his writings on this subject are often associated, as found in his response to the Cohen exchange circa 1911–1914.
Reception during Kelsen's European years
This section covers Kelsen's years in Austria, Germany, Czechoslovakia and Switzerland. While still in Austria, Kelsen entered the debate on the versions of Public Law prevailing in his time by engaging the predominating opinions of Jellinek and Gerber in his 1911 Habilitation dissertation (see description above). Kelsen, after attending Jellinek's lectures in Heidelberg oriented his interpretation according to the need to extend Jellinek's research past the points which Jellinek had set as its limits. For Kelsen, the effective operation of a legal order required that it be separated from political influences in terms which exceeded substantially the terms which Jellinek had adopted as its preferred form. In response to his 1911 dissertation, Kelsen was challenged by the Neo-Kantians, originally led by Hermann Cohen, who maintained that there were substantial Neo-Kantian insights which were open to Kelsen, which Kelsen himself did not appear to develop to the full extent of their potential interpretation as summarized in the section above. Sara Lagi in her recent book on Kelsen and his 1920s writings on democracy has articulated the revised and guarded reception of Jellinek by Kelsen. Kelsen was the principal author of the passages for the incorporation of judicial review in the Constitutions of Austria and Czechoslovakia during the 1910s largely on the model of John Marshall and the American Constitutional experience.
In addition to this debate, Kelsen had initiated a separate discussion with Carl Schmitt on questions relating to the definition of sovereignty and its interpretation in international law. Kelsen became deeply committed to the principle of the adherence of the state to the rule of law above political controversy, while Schmitt adhered to the divergent view of the state deferring to political fiat. The debate would have the effect of polarizing opinion not only throughout the 1920s and 1930s leading up to WWII, but has also extended into the decades after Kelsen's death in 1973.
A third example of the controversies with which Kelsen was involved during his European years surrounded the severe disenchantment which many felt concerning the political and legal outcomes of WWI and the Treaty of Versailles. Kelsen believed that the blamelessness associated with Germany's political leaders and military leaders indicated a gross historical inadequacy of international law which could no longer be ignored. Kelsen devoted much of his writings from the 1930s and leading into the 1940s towards reversing this historical inadequacy which was deeply debated until ultimately Kelsen succeeded in contributing to the international precedent of establishing war crime trials for political leaders and military leaders at the end of WWII at Nuremberg and Tokyo.
Critical reception during his American years
This section covers Kelsen's years during his American years. Kelsen's participation and his part in the establishment of war crimes tribunals following WWII has been discussed in the previous section. The end of WWII and the start of the United Nations became a significant concern for Kelsen after 1940. For Kelsen, in principle, the United Nations represented in potential a significant phase change from the previous League of Nations and its numerous inadequacies which he had documented in his previous writings. Kelsen would write his 700-page treatise on the United Nations, along with a subsequent two hundred page supplement, which became a standard text book on studying the United Nations for over a decade in the 1950s and 1960s.
Kelsen also became a significant contributor to the Cold War debate in publishing books on Bolshevism and Communism, which he reasoned were less successful forms of government when compared to Democracy. This, for Kelsen, was especially the case when dealing with the question of the compatibility of different forms of government in relation to the Pure Theory of Law (1934, first edition).
The completion of Kelsen's second edition of his magnum opus on Pure Theory of Law published in 1960 had at least as large an effect upon the international legal community as did the first edition published in 1934. Kelsen was a tireless defender of the application legal science in defending his position and was constantly confronting detractors who were unconvinced that the domain of legal science was sufficient to its own subject matter. This debate has continued well into the twenty-first century as well.
Two critics of Kelsen in the United States were the legal realist Karl Llewellyn and the jurist Harold Laski. Llewellyn, as a firm anti-positivist against Kelsen stated, "I see Kelsen's work as utterly sterile, save in by-products that derive from his taking his shrewd eyes, for a moment, off what he thinks of as 'pure law.'" In his democracy essay of 1955, Kelsen took up the defense of representative democracy made by Joseph Schumpeter in Schumpeter's book on democracy and capitalism. Although Schumpeter took a position unexpectedly favorable to socialism, Kelsen felt that a rehabilitation of the reading of Schumpeter's book more amicable to democracy could be defended and he quoted Schumpter's strong conviction that, to "realize the relative validity of one's convictions and yet stand for them unflinchingly," as consistent with his own defense of democracy. Kelsen himself made mixed statements concerning the extensiveness of the greater or lesser strict association of democracy and capitalism.
Critical reception of Kelsen's legacy after 1973
Many of the controversies and critical debates during his lifetime continued after Kelsen's death in 1973. Kelsen's ability to polarize opinion among established legal scholars continued to influence the reception of his writings well after his death. The formation of the European Union would recall many of his debates with Schmitt on the issue of the degree of centralization which would in principle be possible, and what the implications concerning state sovereignty would be once the unification was put into place. Kelsen's contrast with Hart as representing two distinguishable forms of legal positivism has continued to be influential in distinguishing between Anglo-American forms of legal positivism from Continental forms of legal positivism. The implications of these contrasting forms continues to be part of the continuing debates within legal studies and the application of legal research at both the domestic and the international level of investigation.
In her recent book on Hans Kelsen, Sandrine Baume identified Ronald Dworkin as a leading defender of the "compatibility of judicial review with the very principles of democracy." Baume identified John Hart Ely alongside Dworkin as the foremost defenders of this principle in recent years, while the opposition to this principle of "compatibility" was identified as Bruce Ackerman and Jeremy Waldron. Dworkin has been a long-time advocate of the principle of the moral reading of the Constitution whose lines of support he sees as strongly associated with enhanced versions of judicial review in the federal government. In Sandrine Baume's words, the opposing view to compatibility is that of "Jeremy Waldron and Bruce Ackerman, who look on judicial review as inconsistent with respecting democratic principles."
Hans Kelsen Institute and Hans Kelsen Research Center
For the occasion of Hans Kelsen's 90th birthday, the Austrian federal government decided on 14 September 1971 to establish a foundation bearing the name "Hans Kelsen-Institut". The Institut became operational in 1972. Its task is to document the Pure Theory of Law and its dissemination in Austria and abroad, and to inform about and encourage the continuation and development of the pure theory. To this end it produces, through the publishing house Manz, a book series that currently runs to more than 30 volumes. The Institut administers the rights to Kelsen's works and has edited several works from his unpublished papers, including General Theory of Norms (1979, translated 1991) and Secular Religion (2012, written in English). The Institut's database is free online with login registration. The founding directors of the Institut, Kurt Ringhofer and Robert Walter, held their posts until their deaths respectively in 1993 and 2010. The current directors are Clemens Jabloner (since 1993) and Thomas Olechowski (since 2011).
In 2006, the Hans-Kelsen-Forschungsstelle (Hans Kelsen Research Center) was founded under the direction of Matthias Jestaedt at the Friedrich-Alexander University of Erlangen-Nuremberg. After Jestaedt's appointment at the Albert-Ludwigs-University of Freiburg in 2011, the center was transferred there. The Hans-Kelsen-Forschungsstelle publishes, in cooperation with the Hans Kelsen-Institut and through the publishing house Mohr Siebeck, a historical-critical edition of Kelsen's works which is planned to reach more than 30 volumes; as of July 2013, the first five volumes have been published.
Honours and awards
- Society and Nature. The Lawbook Exchange, Ltd.; Reprint edition (November 2, 2009), 399 pages, ISBN 1584779861
- Das Problem der Souveränität und die Theorie des Völkerrechts (Jan 1, 1920).
- Reine Rechtslehre, Vienna 1934. Introduction to the Problems of Legal Theory (1934; Litschewski Paulson and Paulson trans.), Oxford 1992; the translators have adopted the subtitle, Einleitung in die rechtswissenschaftliche Problematik, in order to avoid confusion with the English translation of the second edition.
- Law and Peace in International Relations, Cambridge (Mass.) 1942, Union (N.J.) 1997.
- Peace Through Law, Chapel Hill 1944, Union (N.J.) 2000.
- The Law of the United Nations. First published under the auspices of The London Institute of World Affairs in 1950. With a supplement, Recent Trends in the Law of the United Nations . A critical, detailed, highly technical legal analysis of the United Nations charter and organization. Originally published conjointly: New York: Frederick A. Praeger, .
- Reine Rechtslehre, 2nd edn Vienna 1960 (much expanded from 1934 and effectively a different book); Studienausgabe with amendments, Vienna 2017 ISBN 978-3-16-152973-3
- Pure Theory of Law (1960; Knight trans.), Berkeley 1967, Union (N.J.) 2002.
- Théorie pure du droit (1960; Eisenmann French trans.), Paris 1962.
- General Theory of Law and State (German original unpublished; Wedberg trans.), 1945, New York 1961, Clark (N.J.) 2007.
- What is Justice?, Berkeley 1957.
- 'The Function of a Constitution' (1964; Stewart trans.) in Richard Tur and William Twining (eds), Essays on Kelsen, Oxford 1986; also in 5th and later editions of Lloyd's Introduction to Jurisprudence, London (currently 8th ed 2008).
- Essays in Legal and Moral Philosophy (Weinberger sel., Heath trans.), Dordrecht 1973.
- Allgemeine Theorie der Normen (ed. Ringhofer and Walter), Vienna 1979; see English translation in 1990 below.
- Die Rolle des Neukantianismus in der Reinen Rechtslehre: eine Debatte zwischen Sander und Kelsen (German Edition) by Hans Kelsen and Fritz Sander (Dec 31, 1988).
- General Theory of Norms (1979; Hartney trans.), Oxford 1990.
- Secular Religion: a Polemic against the Misinterpretation of Modern Social Philosophy, Science, and Politics as "New Religions" (ed. Walter, Jabloner and Zeleny), Vienna and New York 2012; written in English.
- ^"Kelsen, der Kampf um die "Sever-Ehen"".
- ^Métall, Rudolf Aladár (1969), Hans Kelsen: Leben und Werke, Vienna: Deuticke, pp. 1–17 ; but preferring Kelsen's autobiographical fragments (1927 and 1947), as well as the editorial additions, in Hans Kelsen, Werke Bd 1 (2007).
- ^Kelsen, Hans (1905), Die Staatslehre des Dante Alighieri, Vienna: Deuticke
- ^ abKelsen, Dante, concluding chapter.
- ^ abBaume (2011), p. 47
- ^Kelsen, Hans. General Theory of Law and State, p. 198.
- ^Duguit, Leon (1911). Traité de droit constitutionnel, vol. 1, La règle du droit: le problème de l'État, Paris: de Boccard, p. 645.
- ^Kelsen, p. 198.
- ^Kelsen, Hans (1911), Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (1923 2nd ed.), Tübingen: Mohr ; reprinted, Aalen, Scientia, 1984, ISBN 3-511-00055-6 (an index was issued separately by the Hans Kelsen-Institut in 1988). Also published as Kelsen, Werke, vol. II.