The great Austro-American legal theorist Hans Kelsen
is
a subject of
intense study in non-Anglophone countries. Indeed, the Italians
have
been described as having "Kelsenitis." But he is little
appreciated in
the country he lived in for the last thirty years of his life. (Arguably, Stanley
Paulson
makes up for this by being the international
dean of Kelsen studies.) Aside from
Paulson, I
am one
of the few American philosophers
of law who write on him. Recently, however, I have noticed
increased
interest in Kelsen, both in this country and, even more so, in the
United Kingdom.
Kelsen occupies an unusual place in the philosophy of law. Like
H.L.A.
Hart
and other positivists, he accepts what is sometimes called the
separability thesis, according to which
the content of the law need not overlap with morality. For Kelsen,
the
law is one thing, morality is another. On the other hand, Kelsen
rejectsthe other
distinguishing feature of positivism, the
social fact thesis,
according to which the
criteria of
legality in a legal system are ultimately a matter of social
facts. For
Kelsen, the law is one thing, social facts are another.
As I read him, Kelsen understands legal
norms as
abstract
objects, like propositions or mathematical objects, and I draw
analogies between Kelsen
and the logician and philosopher Gottlob
Frege. I also emphasize the Neo-Kantian influences on Kelsen
(which is
another thing he shared with Frege). This is a distinctive reading
of
Kelsen that, I believe, can make him more comprehensible to
Anglophone
philosophers of law.
So far I have written five pieces on Kelsen.
Hans
Kelsen’s Non-Reductive Positivism, in Torben Spaak
& Patricia Mindus (eds.), Cambridge Companion to Legal
Positivism 272-300 (Cambridge University Press 2021)
This is the best introduction to my
reading of Kelsen for Anglo-American philosophers of law.
Kelsen, Quietism, and the Rule of
Recognition, in Matthew D. Adler
& Kenneth E. Himma (eds.), The Rule of Recognition and the
United
States Constitution 351-78 (Oxford University Press, 2009)
I think this is the best introduction for law
professors to my reading of Kelsen. I use the concrete example of
the
ratification of the U.S. Constitution through Article VII to
highlight
the difference between Kelsen's legal theory and Hart's
positivism.
This is my first piece on Kelsen and my second most
downloaded piece on SSRN. I still stand by Part Two though Six,
where I
offer an account of Kelsen's relationship to Kant. But I'm no
longer
happy with Part One, in which I take my first stab at a Fregean
reading
of Kelsen.
Marmor's Kelsen, in D.
A. Jeremy Telman (ed.), Hans Kelsen in America 45-84 (Springer
Verlag 2016)
In
this essay I criticize Andrei Marmor's recent reading of Kelsen
(and,
more generally, Anglophone approaches to Kelsen's work). I argue
that
Kelsen did indeed offer a pure theory of law. In particular, his
claims
about the relationship between law and efficacy do not undermine
the
purity of his theory, as many claim.
L'anglo-américanisation
de Kelsen,
in Thomas Hochmann, Xavier Magnon, & Régis Ponsard (eds.),
UN
CLASSIQUE MÉCONNU: HANS KELSEN 109-40 (Editions Mare et Martin
2019)
In
this essay, which was translated into French, I summarize what I
see
are the systematic errors in Anglo-American interpretations of
Kelsen.