Hans Kelsen

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 rejects the 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 three pieces on Kelsen.

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.

Hans Kelsen and the Logic of Legal Systems, 53 Alabama Law Review 365-413 (2003)

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.

I have also blogged a bit on Kelsen.

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