Hans Kelsen

One of the peculiarities of the divide between the Anglo American world and that of Continental Europe is that positivism has taken two different forms. In the Anglo-American world, H.L.A. Hart is the key figure and the Concept of Law has taken on an extraordinary importance. On the Continent, however, Hans Kelsen is the most important positivist.

One important question is why there should be this divide. At first glance, it seems like an example of prejudice or chauvinism – each area prefers its own. Of course, people on each side might argue that their champion really is better – but that begs the question why each side so strongly prefers its own figure.

While I have read Hart, I have only read small portions of Kelsen. But reading this much of Kelsen reveals that his writing is in the style of much continental philosophy, which makes it quite hard for Anglo-Americans to understand (apart from translation problems). Continental writing, especially from the German speaking countries, is often filled with abstract language that is hard to understand, and to people from the Anglo-American world, often comes across as vacuous.

I have often wondered about this aspect of Continental writing when reading Friedrich Hayek, whose works I know quite well. For example, his discussion of a spontaneous order is an important advance, but it is often vague and unclear. It has taken many subsequent articles, by Anglo-American types and economists, to clarify it. I can’t tell you how many times I have been reading Hayek and have thought, “an example would really help here,” but rarely is one provided.

If the style of Continental philosophy is the problem for accepting Kelsen in the Anglo-American world, then one possible solution would be an attempt to describe his work – or to develop his ideas – in the Anglo-American style. For one attempt at describing his work see here.

What then about Hart’s lack of reception on the Continent? I don’t have any ideas about this. Perhaps Continental types believe that the ordinary prose of a Hart lacks seriousness and depth, but I don’t really know.

Finally, let me mention this one incident about Kelsen’s emigration to the United States that I had not known about. Kelsen moved to the United States in 1940 (which probably saved his life, as he was born to a Jewish family). Kelsen gave the prestigious Oliver Wendell Holmes lectures at Harvard Law School, and sought a position at Harvard Law School. Although he was a legal giant, according to this Wikipedia entry, Kelsen’s appointment was blocked by Lon Fuller, who wrote:

“I [believe] 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.”

Back in the day, I liked Fuller’s theories quite a bit (as a form of watered down Hayekianism). But  this is wrong, whatever one’s view about whether justice is objective or central to jurisprudence. Fuller’s view is just one view, and Fuller knew it. He used his power at the Harvard Law School to prevent an eminently qualified person from getting an appointment, just because he disagreed with him. Sorry, but that is wrong. And that it occurs regularly in the present day, especially to the right, does not make it any better.

It turned out that Kelsen ended up with a position in the Berkeley Political Science Department, even though Kelsen’s work so emphasized the independence of law from politics. That’s too bad.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, will be published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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