Metamorphosis in Hans Kelsen's Legal Philosophy

Date01 September 2017
Published date01 September 2017
DOIhttp://doi.org/10.1111/1468-2230.12291
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Metamorphosis in Hans Kelsen’s Legal Philosophy
Stanley L. Paulson
Two major questions stem from the fundamental shift in Hans Kelsen’s legal philosophy that
takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation.
On the first question, I argue that the shift is not limited to Kelsen’srejection of the applicability
of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his
earlier work. On the second question, I argue that the explanation for the shift has a conceptual
dimension as well as a historico-biographical dimension. That is, I argue that Kelsen’s rejection
of the principle of non-contradiction vis-`
a-vis legal norms reaches to the Kantian edifice in
that the principle was presupposed in Kelsen’s earlier work and appears, expressis verbis,inhis
‘Kantian filter’. And I argue that certain historico-biographical data are germane, including,
quite possibly, the earlier revolution in Kelsen’s thought, that of 1939–40.
INTRODUCTION
Hans Kelsen (1881-1973) developed his legal philosophy over a span of more
than 65 years, from circa 1904, which marks the beginnings of his work on
Main Problems in the Theory of Public Law (1911), to the posthumously published
General Theory of Norms (1979), which brings together much of his work during
the 1960s. The most puzzling development in Kelsen’s long professional life
is the sharp break in his thinking, in 1960 and in the years thereafter,1on
the issue of applying logic to the law.2Unclear, among other things, is the
William Gardiner Hammond Professor of Law Emeritus and Professor of Philosophy Emeritus,
WashingtonUniversity in St. Louis; presently a guest of Robert Alexy’sin the Her mann Kantorowicz-
Institut f¨
ur juristische Grundlagenforschung, Faculty of Law, University of Kiel. A number of col-
leagues and friends have given me critical advice on various aspects of the paper, and I wish to
thank them: J´
ulio Aguiar de Oliveira, Pierluigi Chiassoni, Roger Cotterrell, Michael Steven Green,
Riccardo Guastini, J¨
org Kammerhofer, Peter Koller, Dimitrio Kyritsis, Marcin Matczak, TeclaMaz-
zarese, Jos´
e Juan Moreso, Nicola Muffato, Pablo E. Navarro, Maria Cristina Redondo, Giovanni
Battista Ratti, Hubert Rottleuthner, F´
abio Shecaira, Jan Sieckmann, Kevin Toh, Kenneth Winston,
and Aleardo Zanghellini. My thanks, too, to an anonymous referee of the Modern Law Review,who
gave me helpful and most welcome suggestions. Finally, I owe a special word of thanks to Bonnie
Litschewski Paulson, whose insights – sowohl sprachlich als auch sachlich – were invaluable, and to
Robert Alexy for his gracious hospitality and many good conversations.
1 The period in question extends from 1960 to 1971. As my wife and I learned from visits with
Kelsen’s younger daughter, Maria Feder, in Kensington, California, Kelsen was not engaged in
research or writing during the last 18 months of his life. He died on 19 April 1973.
2 See H. Kelsen and U. Klug, Rechtsnormen und logische Analyse (Vienna: Franz Deuticke, 1981)
references, by date, to Kelsen’s manuscripts therein, ms 4 July 1960, 42-50, 43-44; I provide
quotations in the second section of the present text at notes 56 and 58. See also H. Kelsen, ‘Recht
und Logik’ (1965) 12 Forum.¨
Osterreichische Monatsbl¨
atter f¨
ur kulturelle Freiheit 421-425, 495-500,
repr in H. Klecatsky et al (eds), Die Wiener rechtstheoretische Schule (Vienna: Europa Verlag, 1968)
2vols(WS 1 or WS 2) vol 2, 1469, trans P. Heath under the title ‘Law and Logic’ in H. Kelsen,
Essays in Legal and Moral Philosophy O. Weinberger (ed) (Dordrecht: D. Reidel, 1973) 228; the
English-language translation, ‘Law and Logic’, is cited below with a corresponding reference to
C2017The Author. The Modern Law Review C2017The Modern Law Review Limited. (2017) 80(5) MLR 860–894
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Stanley L. Paulson
scope of the fissure. Is it limited to a single issue, Kelsen’s replacing his earlier
endorsement with a new, sceptical stance on the role of logic in the law? Or
does it reach in the end to well-nigh everything in the Pure Theory of Law,
counting, then, as a metamorphosis? With few exceptions, writers who have
addressed this period, the so-called Sp¨
atlehre, have confined their discussion
to Kelsen’s shift on the applicability of logic to the law3without offering a
clear picture of the scope of the shift. A second central question, raised by
Neil Duxbury,4goes further. Why a sharp break at all? And, I might add,
why 1960? Here, too, there is nothing remotely like a clear picture. In short,
two central questions – one addressing the scope of the break in Kelsen’s
thinking and the other addressing an explanation for it, including its timing –
remain outstanding, and they encapsulate the issues that I take up in the present
text.
On the first question, addressing the scope of Kelsen’s shift, I argue that
the sharp break in his thinking in the late period does indeed count as a
metamorphosis. In 1960 and the years following, Kelsen not only dismisses
the notion that logic is applicable to the law, he also abandons, expressis verbis,
the Kantian-inspired basic norm, a key doctrine belonging to the earlier,
Kantian edifice of the Pure Theory of Law. The ‘Kantian edifice’, my label
for the conceptual apparatus that Kelsen draws from the Kant of the Critique of
Pure Reason,5reflects the formative influence of Kant’s philosophy on Kelsen’s
during the long, classical period, from circa 1920 to 1960.6Given Kant’s
role in Kelsen’s legal philosophy, it comes as no sur prise to learn that Adolf
Julius Merkl (1890-1970), the most gifted of Kelsen’s colleagues in the Vienna
School of Legal Theory with a profound knowledge of Kelsen’s work, points
the reprinting, in WS, of the German orig inal. Finally, see H. Kelsen, General Theory of Norms
(first publ 1979) trans M. Hartney (Oxford: Clarendon Press, 1991) (Kelsen, GTN).
3 The most notable exception is Eugenio Bulygin, see E. Bulygin, Essays in Legal Philosophy C.
Bernal et al (eds) (Oxford: OUP, 2015) chs 3, 8, 14, 20, and 22.
4 N. Duxbury, ‘Kelsen’s Endgame’ (2008) 67 Cambridge Law Journal 51, 54.
5 Kelsen’sbrusque dismissal of Kant’s practical philosophy stands alongside his hearty endorsement
of the Kant of the Critique of Pure Reason (Kant, first Critique): ‘[I]t must be granted that Kantian
ethics and legal philosophy follow in the path of metaphysics and natural law theory. The Pure
Theory of Law draws its support not from these views but solely from the Kantian theory of
knowledge.’ H. Kelsen, ‘Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffas-
sung’ (1931) 66 Archiv f¨
ur Sozialwissenschaft und Sozialpolitik 449, 463 n 14, repr in H. Kelsen,
Demokratie und Sozialismus N. Leser (ed) (Vienna: Volksbuchhandlung, 1967) 69, 82 n 14.
6 Eugenio Bulygin, the most astute of recent commentators on Kelsen’s theory, distinguishes –
entirely correctly in my view – the ‘Kantian Kelsen’ of the classical period from the empiricist
Kelsen of the late period, see Bulygin, Essays in Legal Philosophy n 3 above, ch 14. The classical
period of Kelsen’s development stretches from circa 1920 to the second edition of the Pure
Theory of Law (1960). This long period represents Kelsen’seffort to provide philosophical support
for his theory, including elements that he first introduced in Hauptprobleme der Staatsrechtslehre
(T¨
ubingen: J. C. B. Mohr, 1911) (Kelsen, HP) repr in M. Jestaedt (ed), Hans Kelsen Werke
(T¨
ubingen: Mohr Siebeck, 2007 ff) (more than 30 volumes projected) (HKW with vol no and
date) vol 2 (2008). On the periodisation, see for example, S. L. Paulson, ‘Four Phases in Hans
Kelsen’s Legal Theory? Reflections on a Periodization’ (1998) 18 Oxford Journal of Legal Studies
153. An outspoken sceptic on the value of such a periodisation, with hard-hitting arguments, is
P. Chiassoni, ‘Wiener Realism’ in L. Duarte d’Almeida et al (eds), Kelsen Revisited. New Essays on
the Pure Theory of Law (Oxford: Hart, 2013) 131.
C2017 The Author.The Moder n LawReview C2017 The Modern Law Review Limited.
(2017) 80(5) MLR 860–894 861
Metamorphosis in Hans Kelsen’s Legal Philosophy
to Kant as Kelsen’s true intellectual mentor.7Still, we need not take Merkl’s
word for it. From the very beginning, Kelsen rules out both fact-based legal
positivism and natural law theory, the traditional alternatives to an appeal
to Kant. Kelsen’s purity postulate precludes, in legal science, all forms of
naturalism and psychologism on the one hand and, on the other, every form
of value theory – including moral philosophy, politics, theology.
In abandoning the Kantian-inspired basic norm, Kelsen is, eo ipso,aban-
doning a good deal of the Kantian edifice of his legal philosophy. That is,
other key doctrines that are a part of the earlier Kantian edifice disappear too,
proving to be incompatible with consequences of Kelsen’s sharp break on the
issue of applying logic to the law. In particular, Kelsen’s most far-reaching
Kantian doctrine, aside from the Kantian-inspired basic norm, is the ‘Kantian
filter’.
It is . . . correct that, in ter ms of the Kantian theory of knowledge, legal science
as cognition of the law is, as all cognition is, constitutive in character, ‘creating’ its
object in so far as it comprehends the object as a meaningful whole. Just as it is only
an ordering cognition in science that transforms the chaos of sensory perception
into a cosmos, that is, nature as a unified system, so it is only cognition in legal
science that transforms the wealth of general and individual legal norms issued by
legal officials – the material given to legal science – into a legal system, that is, a
unified system free from contradiction.8
The Kantian filter calls for unity qua consistency in the normative sphere, and
Kelsen invokes in its name the principle of non-contradiction. Once he adopts
a sceptical stance on the role of logic in the law, abandoning the principle of
non-contradiction, his move reaches straightaway to the Kantian filt er, whic h
now yields to Kelsen’s new, sceptical stance.
In short, there are two strands in Kelsen’s thinking on this front, and together
they usher in what we know as the late period. There is, first, Kelsen’s dismissal
of logic vis-`
a-vis the law, and, second, his abandonment of the Kantian edifice,
most prominently his express dismissal of the Kantian-inspired basic norm
along with the disappearance of the Kantian filter, both staples of his legal
philosophy over a period of forty years. These developments do not simply
follow by happenstance one after another.On the contrar y, they are linked non-
contingently, with the fate of the principle of non-contradiction underlying
each of the links.
The upshot of Kelsen’s metamorphosis is a species of legal empiricism.
Recognising, under the rubric of ‘concept empiricism’,9that central concepts
7 See A. J. Merkl, ‘Zum 80. Geburtstag Hans Kelsens. Reine Rechtslehre und Moralordnung’
(1961) 11 ¨
Osterreichische Zeitschrift f ¨
ur ¨
offentliches Recht 293, 294, repr in A. J. Merkl Gesammelte
Schriften D. Mayer-Maly et al (eds) (Berlin: Duncker & Humblot, 1993-2009) 3 vols, each in
two parts (Merkl, GS with vol no) vol I/1, 629, 630.
8H.Kelsen,Reine Rechtslehre (Vienna: Franz Deuticke, 2nd edn, 1960) (Kelsen, RR 2) § 16, 74
(quotation marks in the original) trans M. Knight ThePureTheoryofLaw(Berkeley: University
of California Press, 1960) (Kelsen, PTL) § 16, 72.
9 See D. Garrett, Cognition and Commitment in Hume’s Philosophy (New York: OUP, 1997) 29-38,
for a rigorous account of various species of empiricism.
862 C2017 The Author. The Modern Law Review C2017 The Moder n Law ReviewLimited.
(2017) 80(5) MLR 860–894

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