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.
L'anglo-américanisation de Kelsen,
in Thomas Hochmann, Xavier Magnon, & Régis Ponsard (eds.), UN
CLASSIQUE MÉCONNU: HANS KELSEN (Editions Mare et Martin, forthcoming)
In
this essay, which was translated into French, I summarize what I see
are the systematic errors in Anglo-American interpretations of Kelsen.
I have also blogged a bit on Kelsen.
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