Hans Kelsen and the Natural Law Tradition 9004390383, 9789004390386

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Hans Kelsen and the Natural Law Tradition

Studies in Moral Philosophy Series Editor Thom Brooks (Durham University) Editorial Board Chrisoula Andreou (University of Utah) Mark Bevir (University of California, Berkeley) Clare Chambers (University of Cambridge) Fabian Freyenhagen (University of Essex) Tim Mulgan (University of St Andrews) Ian Shapiro (Yale University)

VOLUME 14

The titles published in this series are listed at brill.com/simp

Hans Kelsen and the Natural Law Tradition Edited by

Peter Langford Ian Bryan John McGarry

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Hans Kelsen and the Natural Law Tradition (Conference) (2013 : Edge Hill University). | Langford, Peter, editor. | Bryan, Ian. editor. | McGarry, John (Law teacher), editor. | Edge Hill University, host institution. | Austrian Cultural Forum (London, England), sponsoring body. Title: Hans Kelsen and the natural law tradition / edited by Peter Langford, Ian Bryan, John McGarry. Description: Leiden ; Boston : Brill, 2019. | Series: Studies in moral philosophy, issn 2211-2014 ; volume 14 | Includes papers presented at “Hans Kelsen and the Natural Law Tradition : An International, Interdisciplinary Conference” hosted at Edge Hill University, UK in September 2013.--ecip Acknowledgements. | Includes bibliographical references and index. Identifiers: lccn 2018059320 (print) | lccn 2019005885 (ebook) | isbn 9789004390393 (ebook) | isbn 9789004390386 (hardback : alk. paper) Subjects: lcsh: Kelsen, Hans, 1881-1973--Congresses. | Natural law--Congresses. | Legal positivism--Congresses. Classification: lcc k339 (ebook) | lcc k339 .h362 2019 (print) | ddc 340/.112--dc23 lc record available at https://lccn.loc.gov/2018059320

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 2211-2014 ISBN 978-90-04-39038-6 (hardback) ISBN 978-90-04-39039-3 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

In Memoriam Michael Langford (1937–2018) Over my head in leaves grown deep, sings the young nightingale. It only sings of love there, I hear it in my sleep. (Heinrich Heine ‘Death’, ‘Der Tod, das ist die kühle Nacht’ 1823/24)

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Contents Acknowledgements  xi Notes on Contributors  xii

Introduction: The Kelsenian Critique of Natural Law  1 Peter Langford and Ian Bryan

Part 1 Aristotle, Dante and Kelsen 1

Kelsen’s Blind Spot for the Pluralism of Antiquity  59 Liesbeth Huppes-Cluysenaer

2

To the Roots of the Universal Juridical Order: Hans Kelsen and the Staatslehre of Dante Alighieri  94 Maurizio Cau

Part 2 Kelsen and Early Modern and Enlightenment Theories of Natural Law   3

Comments on the Kelsenian Idea of Natural Law in the Light of Althusius’ Theory of Law  121 Gaëlle Demelemestre

4

From Wolff to Kelsen: The Transformation of the Notion of Civitas Maxima  161 Peter Langford and Ian Bryan

5

Hans Kelsen and the Requirement of Self-determination: How the Austrian Jurist Takes Inspiration from Rousseau and How He Emancipates Himself from the Swiss Philosopher  188 Sandrine Baume

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Kelsen versus Kant on the Nature of Law  215 Joachim Renzikowski

7

Grounding the Normativity of Law: The Role of Transcendental Argumentation in Kelsen’s Critique of Natural Law Theory  253 Ana Dimiškovska

Part 3 Kelsen, Neo-Kantianism and Schmitt   8

Hans Kelsen and SouthWest German Neo-Kantianism on Natural Law: Transcendental Philosophy beyond Metaphysics and Positivism  289 Christian Krijnen

9

Hans Kelsen’s and Ernst Cassirer’s Conception of Natural Law  327 Pellegrino Favuzzi

10

Nomos or Law? Hans Kelsen’s Criticism of Carl Schmitt’s Metaphysics of Law and Politics  372 Gerhard Donhauser

11

The Trouble with Nature  399 Mariano Croce

Part 4 Kelsen’s Natural Law   12

Natural Law and the Vienna School: Hans Kelsen, Alfred Verdross, and Eric Voegelin  425 Franz Leander Fillafer and Johannes Feichtinger

13

Against Natural Law: The Political Implications of Kelsen’s Legal Positivism  462 Sara Lagi

C ontents

14

Hans Kelsen and Leo Strauss on Naturrecht and the Post-theological Wager  478 Peter Gostmann



Conclusion: Beyond Legal Positivism and Natural Law?  500 Peter Langford and Ian Bryan

Index  533

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Acknowledgements We would like to express our gratitude to the Acquisitions Editor for Philosophy, Jennifer Pavelko, and the Assistant Editor, Meghan Connolly, and their colleagues on the editorial team at Brill, for their invaluable help, assistance and patience throughout all stages of the preparation and submission of the manuscript. We would also like to express our gratitude to the contributors to this volume both for their support for our project and for their discerning, stimulating and innovative contributions. We would like, furthermore, to thank the Austrian Cultural Forum, the cultural arm of the Austrian Embassy in London, and Edge Hill University, for the financial support which enabled the ‘Hans Kelsen and the Natural Law Tradition: An International, Interdisciplinary Conference’ to take place. Many of the chapters in this volume are developed from papers first presented at the Conference, hosted at Edge Hill University, UK in September 2013. In addition to the aforementioned, Peter would like to acknowledge and thank all his friends for their interest and encouragement, and to thank his father for his support throughout this book project. Ian would like to express his profound gratitude to Adena, Maya, family and friends for their tolerance, support and understanding as well as for their insightful comments, cordial forbearance and unfailing kindness. John would like to thank his family, Clare, Joe, Joan and Ken for their support and patience. Peter, Ian and John May 2017

Notes on Contributors Sandrine Baume is an Associate Professor at the Centre for Public Law in the Faculty of Law and Criminal Justice, University of Lausanne, Switzerland. Her research centres upon the history of political thought and contemporary political theory. Her recent publications include Hans Kelsen and the Case for Democracy (2012); Carl Schmitt, penseur de l’Etat: Genèse d’une doctrine (2008) and (co-edited with Biancamaria Fontana) Les usages de la séparation des pouvoirs (2007). Ian Bryan is Senior Lecturer in Law, University of Lancaster, UK. His recent publications include Kelsenian Legal Science and the Nature of Law (co-edited with Peter  Langford and John McGarry, 2017); The Reconstruction of the Juridico-­ Political: Affinity and Divergence in Kelsen and Weber (co-edited with Peter Langford and John McGarry, 2016); The Foundation of the Juridico-Political: Concept Formation in Kelsen and Weber (co-edited with Peter Langford and John McGarry, 2015). Maurizio Cau is a researcher at the Italian-German Historical Institute, Trento, Italy. His research focuses upon the history of contemporary European political thought, the history of modern legal thought, the theory of the State and the history of German culture in the 20th century. His recent publications include L’Europa di De Gasperi e Adenauer. La sfida della ricostruzione (1945–1951) (2011) and ­Politica e diritto. Karl Kraus e la crisi della civiltà (2008). Mariano Croce is Assistant Professor at the Department of Philosophy of Sapienza – U ­ niversity of Rome, Italy, where he teaches Social Philosophy. His primary interest lies in the relation between the social world and the language of institutions with a view to understanding how the constitution of social groups, as well as their socio-political struggles, are to be read against the languages of the institutional fields where these groups operate. His recent publications include (with A. Salvatore) Undoing Ties: Political Philosophy at the Waning of the State (2015); The Legal Theory of Carl Schmitt (with A. Salvatore, 2013); Self-sufficiency of Law: A Critical-institutional Theory of Social Order (2012); Filosofia politica. Le nuove frontiere (with A. Salvatore, 2012).

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Gäelle Demelemestre is a researcher at the cnrs Institut d’Histoire des Représentations et des Idées dans les Modernités (ihrim), umr 5317 cnrs/ens-Lyon, France. Her ­research is centred upon the history, interpretation and philosophy of law, the theory of the State and the doctrine of jus gentium. Her recent publications include (with H. Bozarslan) Qu’est-ce qu’une révolution ? Amérique, France, Monde arabe 1763–2015 (2015); Francisco de Vitoria, De la loi (translation, introduction and notes) (2013); Carl Joachim Friedrich, Pouvoir et fédéralisme (edited, translation, and introduction) (2013); Introduction à la Politica de Johannes Althusius (2012) and Les deux souverainetés. Le tournant Bodin – Althusius (2011). Ana Dimiškovska is a Professor at the Institute of Philosophy within the Faculty of Philosophy, University Ss. Cyril and Methodius, Skopje, Republic of Macedonia. Her main areas of interest are history of logic, argumentation theory and legal reasoning. She is Vice-President of the Philosophical Society of Macedonia and Editor-in-Chief of the international journal Филозофија/Filozofija – A Journal of Philosophical Inquiry, published by the Faculty of Philosophy in Skopje. Her main publications include three books Прагматиката и теоријата на аргументацијата, Скопје, Ѓурѓа, 2001 [Pragmatics and Argumentation ­Theory, Skopje, Gjurgja, 2001], Логиката на правното расудување, Скопје, Аз-Буки, 2011 [The Logic of Legal Reasoning, Skopje, Az-Buki, 2011], and Основи на некласичните логики, Скопје, Аз-Буки, 2013, [Fundamentals of Non-Classical Logics, Skopje, Az-Buki, 2013], as well as numerous articles in Macedonian and international publications. Gerhard Donhauser is a Senior Lecturer in Philosophy and Law, specializing in legal theory, at the Universities of Innsbruck, Klagenfurt and Vienna and a Researcher at the Hans Kelsen Institute, Vienna. His recent publications include Türhüter. Wie Recht wird, was es ist (2013); Angst und Schrecken. Beobachtungen auf dem Weg vom Ausnahmezustand zum Polizeistaat in Europa und den usa (2015); Psychologie und Philosophie (2015); Wer hat Recht? Eine Einführung in die Rechtsphilosophie (2016). Pellegrino Favuzzi PhD in Philosophy and Intellectual History, Humboldt University, Berlin and University of Padua 2013, has held postdoctoral positions at the University of Hamburg and at the Research Center “Edition of Ernst Cassirer’s

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­ npublished ­Writings” in Berlin, where he is currently Visiting Fellow. His U field of research is in the history of 19th and 20th Century Continental Philosophy and Political Philosophy, and, within this, his areas of specialization is ­German N ­ eo-Kantianism, in particular, the Marburg School and Ernst Cassirer’s P ­ hilosophy of Culture. His other interests include Philosophy of Law, Social Philosophy, Philosophy of Technology, and Cultural History of Ideas. His recent publications include (as co-editor) Il fantasma dell’Unità. Riletture del Risorgimento tra grande guerra e fascism (2013) and (as co-editor) Philosophie der Kultur- und Wissensformen: Ernst Cassirer neu lessen (2016). Johannes Feichtinger is a senior research associate at the Institute of Culture Studies and Theatre History of the Austrian Academy of Sciences (OeAW), and he teaches history at the University of Vienna. He has specialized in intellectual history, history and philosophy of science, and cultural studies. His recent publications include the two monographs Wissenschaft zwischen den Kulturen: Österreichische Hochschullehrer in der Emigration 1933–1945 (2001) and Wissenschaft als reflexives Projekt: Von Bolzano über Freud zu Kelsen: Österreichische Wissenschaftsgeschichte 1848–1938 (2010), and the collected volume (edited with G.B. Cohen) Understanding Multiculturalism. The Habsburg Central European Experience (2014). Franz Leander Fillafer is a senior research associate at the Institute of Culture Studies and Theatre History of the Austrian Academy of Sciences (OeAW). His main areas of expertise are the Enlightenment in the Habsburg Monarchy and twentieth-century European history, with a strong emphasis on the history of jurisprudence and lawgiving. Among his most recent publications on these subjects are “Cosmopolitanism and the German E ­ nlightenment”, in: The Oxford Handbook of Modern German History, edited by H.W. Smith, 2nd ed. (2013), and “Österreichislam”, in: Habsburg neu denken: Vielfalt und Ambivalenz in Zentraleuropa. 30 kulturwissenschaftliche Stichworte, edited by J. Feichtinger and H. Uhl, (2016). Peter Gostmann is a Senior Lecturer in Sociology, Institute of Sociology, University of Frankfurt, Germany His recent publications include (co-edited with Claudius Härpfer) Verlassene Stufen der Reflexion. Albert Salomon und die Aufklärung der Soziologie (2011); Emil Lederer: Schriften zur Wissenschaftslehre und Kultursoziologie (co-editor with Alexandra Ivanova, 2014); Beyond the Pale. Albert Salomons Denkraum und das intellektuelle Feld im 20. Jahrhundert (2014); Einführung in

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die soziologische Konstellationsanalyse (2015). He is also the co-editor of the five-volume collected works of Albert Salomon (2008–2016). Liesbeth Huppes-Cluysenar is a Guest Researcher, Faculty of Law, VU University Amsterdam, the Netherlands. Her current research focuses upon the work of Aristotle and its relationship to contemporary legal theory. Her recent publications include ­Aristotle on Emotions in Law and Politics (co-edited with N.M.M.S. Coelho, 2017) and Aristotle and the Philosophy of Law: Theory, Practice and Justice (co-edited with N.M.M.S. Coelho, 2013). Christian Krijnen is Associate Professor of Philosophy, VU University Amsterdam, the Netherlands. His research focuses upon the areas of modern and contemporary philosophy; epistemology; philosophy of science; moral philosophy; philosophy of right; social philosophy; philosophical anthropology; philosophy of culture; philosophy of economics, management & organization and metaphysics. His recent publications include Philosophie als System: Prinzipientheoretische Untersuchungen zum Systemgedanken bei Hegel, im Neukantianismus und in der Gegenwartsphilosophie (2007); Wahrheit oder Gewinn?: Über die Ökonomisierung von Universität und Wissenschaft (co-editor, 2011); Marburg versus Südwestdeutschland: Philosophische Differenzen zwischen den beiden Hauptschulen des Neukantianismus (co-editor, 2012); Der Begriff der Geschichte im Marburger und südwestdeutschen Neukantianismus (co-editor, 2013); Wissenschaftsphilosophie im Neukantianismus. Ansätze – Kontroversen – Wirkungen (co-editor, 2014); Kulturphilosophie: Probleme und Perspektiven des Neukantianismus (coeditor, 2014); Recognition – German Idealism as an Ongoing Challenge (editor, 2014) The Very Idea of Organization: Social Ontology Today: Kantian and Hegelian Reconsiderations (2015). Sara Lagi is Assistant Professor of the History of Political Thought at the University of ­Turin, Italy. Her research centres upon the history of European liberalism, democratic thought and the history of liberal political thought within the late 19th century Habsburg Empire. Her recent publications include Il pensiero politico di Hans Kelsen (1911–1920). Le origini di Essenza e valore della democrazia (2008); Viaggio e politica (co-editor, 2009); Georg Jellinek Storico del pensiero politico (1882–1905) (translator and editor, 2009); Adolf Fischhof e Karl Renner. La questione nazionale austriaca (1867–1917) (2011); Georg Jellinek. Il Tutto e

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l’Individuo. Scritti di Filosofia, Politica e Diritto (translator and editor, 2015); Monisms and Pluralisms in the History of Political Thought (co-editor, 2016). Peter Langford is Senior Lecturer in Law, Edge Hill University, UK. His recent publications include Judicial decision-making. Artificio, razionalità, valori (co-authored with Valeria Giordano, 2017); Kelsenian Legal Science and the Nature of Law (co-­edited with Ian Bryan and John McGarry, 2017); The Reconstruction of the Juridico-Political: Affinity and Divergence in Kelsen and Weber (co-edited with Ian Bryan and John McGarry, 2016); The Foundation of the Juridico-Political: Concept Formation in Kelsen and Weber (co-edited with Ian Bryan and John McGarry, 2015); and Roberto Esposito: Law, Community and the Political (2015). John McGarry is Reader in Law, Edge Hill University, UK. His recent publications include Kelsenian Legal Science and the Nature of Law (co-edited with Peter Langford and Ian Bryan, 2017); Intention, Supremacy and the Theories of Judicial Review (2016); The Reconstruction of the Juridico-Political: Affinity and Divergence in Kelsen and Weber (co-edited with Peter Langford and Ian Bryan, 2016); and The Foundation of the Juridico-Political: Concept Formation in Kelsen and Weber (coedited with Peter Langford and Ian Bryan, 2015). Joachim Renzikowski is Professor of Criminal Law and Legal Philosophy/Legal Theory at MartinLuther-University Halle-Wittenberg, Germany. His main fields of research are the Theory of Norms, General Theory of Criminal Law, Crimes Against Sexual Autonomy and the European Convention on Human Rights. His recent publications, in the area of legal theory, include (edited with Matthias Kaufmann) Freiheit als Rechtsbegriff (2016), “Die Hart-Radbruch Kontroverse – nur eine Frage der Kompetenz?” in Die Natur des Rechts bei Gustav Radbruch, Martin Borowski and Stanley L. Paulson (eds.) (2015), “Fichtes Notstandslehre und ihre Rezeption in der deutschen Strafrechtswissenschaft” in Jürgen Stolzenberg and Oliver-Pierre Rudolph (eds.), Wissen, Freiheit, Geschichte. Die Philosophie Fichtes im 19. und 20. Jahrhundert (2012), “Die Radbruchsche Formel – ­ Hintergründe und Wirkungsgeschichte” in Walter Pauly (ed.), Rechts- und Staatsphilosophie des Relativismus. Pluralismus, Demokratie und Rechtsgeltung bei Gustav Radbruch, (Nomos, Baden-Baden, 2011).

Introduction: The Kelsenian Critique of Natural Law Peter Langford and Ian Bryan The construction and development of Kelsenian legal theory involves a sustained engagement with natural law.1 Kelsenian legal theory, as a theory of positive law, is predicated upon the exclusively human origin of a legal system and of the legal norms of which it is composed. The demonstration of this exclusively human origin, and the fundamental mutability of the legal norms which it entails, initiates a critique of natural law and an insistence upon the rejection of the natural law tradition as a continued resource for the elaboration of a methodologically coherent legal theory. The Kelsenian critique of natural law is composed of two main orientations. From the work of the late 1920s,2 there arises a set of elements which form the predominant orientation for a critique of natural law and emphasize the fundamental logical contradictions of a theory of natural law.3 The revelation of 1 The explicit critique of natural law commences from the late 1920s and continues until the 1960s. It is contained in the following work: Hans Kelsen, “Die Idee des Naturrechts”, Zeitschrift für öffentliches Recht, 7, (1927), 221–250; Hans Kelsen “Naturrecht und positives Recht. Ein Untersuchung ihres gegenseitigen Verhältnis”, Internationale Zeitschrift für Theorie des Rechts, 2, (1927/28), 71–94; Hans Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, (Charlottenburg, R. Heise, 1928); Hans Kelsen, “The Metamorphoses of the Idea of Justice”. In Interpretations of Modern Legal Philosophies. Essays in Honor of Roscoe Pound, edited by Roscoe Pound and Paul Lombard Sayre, (New York: Oxford University Press), 390–418; Hans Kelsen, “The Natural-Law Doctrine Before the Tribunal of Science”, Western Political Quarterly, 2, (4), (1949), 481–513; Hans Kelsen, “A “Dynamic” Theory of Natural Law”, Louisiana Law Review, 16, (4), (1956), 597–620; Hans Kelsen, “Justice et Droit Naturel”, Annales de Philosophie Politique (Le droit naturel), Vol. 3 (1959), 1–123; Hans Kelsen, “Plato and the Doctrine of Natural Law”, Vanderbilt Law Review, 14 (1960–61), 23–64. (German original 1957); Hans Kelsen, “Law and Morality” in Hans Kelsen, Essays in Legal and Moral Philosophy, (Dordrecht: Reidel, 1973), 83–94 (German original 1960); Hans Kelsen, “The Foundation of the Theory of Natural Law” in Hans Kelsen, Essays in Legal and Moral Philosophy, (Dordrecht: Reidel, 1973), 114–153 (German original 1963). 2 Kelsen, “Die Idee des Naturrechts”; Kelsen, “Naturrecht und positives Recht” and Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus. 3 These elements of the critique of natural law retain a significant degree of invariance in comparison with the wider question of the periodization of Kelsenian legal theory. For the discussion of the periodization of Kelsen’s work, see the debate between Stanley. L. Paulson and Carsten Heidemann in the Oxford Journal of Legal Studies (Stanley L. Paulson, “Four Phases in Hans Kelsen’s Legal Theory? Reflections on a Periodization”, Oxford Journal of Legal

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004390393_002

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these contradictions is the counterpart of the assertion of the comparative logical superiority of a Kelsenian theory of positive law. The critique is conceived as an aspect of the Kelsenian understanding of the position of a theory of law as one of legal cognition: the description of the necessary presuppositions for a theory of positive law. The demonstration of the logical contradictions of a theory of natural law provides legal cognition with a rational basis for the preference for a Kelsenian theory of positive law. The rational basis for this preference is located beyond the sphere of value, as the mere methodological transformation of value into truth, because the Kelsenian position commences from a methodological detachment from the sphere of value. The detachment is initiated by the installation of the opposition between science and value in which a theory of positive law, as a legal science of positive law,4 is constructed through the description of a system of legal norms rendered autonomous from the sphere of value. The rationality of the Kelsenian theory of positive law, as a claim to truth, is derived from the objectivity conferred by the methodology of a legal science. The objectivity of a legal science of positive law, which relates to the description of the distinct domain of legal norms, is to be distinguished from the domain of nature and the objectivity of the natural sciences. The domain of legal norms, as a realm of the ‘ought’ (Sollen), delineates an order of constraint (Zwangsordnung) upon human behaviour which is not comprehensible as the result of necessary causal relationships (‘laws of nature’) between phenomena within the domain of nature. The normative science of a Kelsenian theory of positive law is situated between the objectivity of the methodology of the natural sciences and theories of natural law.5 Studies, 18 (1) (1998), 153–166; Carsten Heidemann, “Norms, Facts, and Judgments. A Reply to Stanley L. Paulson”, Oxford Journal of Legal Studies 19 (2), (1999), 345–350 and Stanley L. Paulson, “Arriving at a Defensible Periodization of Hans Kelsen’s Legal Theory”, Oxford Journal of Legal Studies 19 (2) (1999), 351–364). See, also, the later article by Carsten Heidemann, “Facets of ‘Ought’ in Kelsen’s Pure Theory of Law”, Jurisprudence: An International Journal of Legal and Political Thought, 4 (2) (2013), 246–262. 4 As exemplified by Hans Kelsen’s Reine Rechtslehre of 1934. 5 The position of a Kelsenian theory of positive law between natural science and natural law is preceded by the Kelsenian critique of an emergent sociology of law which is considered either to be unable to thematise the autonomy of positive law (see Kelsen’s polemic exchanges with Eugen Erhlich collected in Hans Kelsen and Eugen Erlich, Rechtssoziologie und Rechtswissenschaft. Eine Kontroverse (1915/1917), (Baden-Baden: Nomos, 2003)) or represents a theoretical syncretism in which the concepts of sociological analysis, in particular that of the State, are dependent upon juridical concepts (see Kelsen’s critique of Weber in Hans Kelsen, Der Soziologische und der juristische Staatsbegriff: Kritische untersuchung des Verhältnisses von Staat und Recht, (Tübingen: Mohr, 1922)).

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From this position, the Kelsenian legal science of positive law demarcates itself from theories of natural law which demonstrate, through their deficient characterization of positive law, a theory of law unable to attain the status and objectivity of a science and permeated by the sphere of value. The initial ­parameters of the Kelsenian critique of natural law are adumbrated in the 1927 text entitled, “Die Idee des Naturrechts”,6 in which the critique of natural law is explicitly articulated as the retention of a theory of a normative order beyond the alternatives of sociology of law and natural law. The question of society, as the question of a “just order”,7 is preserved against its potential dissolution into “a sociology offering causal explanations of the reality of actual behaviour”8 through the reformulation of the question of order as one of the validity of the normative order of positive law. The reformulation of the question of order is simultaneously a central element of the critique of natural law which, in its presumption that “a ‘just’ order of human conduct has always appeared as that of a ‘natural’ order”,9 obscures “an essential contrast between the idea of ‘­nature’ and the idea of ‘justice’”.10 It is the insistence upon the contrast between norm and nature which, for Kelsen, is the presupposition for posing the question of a social order as a normative order. The Kelsenian critique of the interpenetration of the notions of justice and nature in the theory of natural law commences from the insistence upon the separation of natural and positive law. The separation is established through the internal differentiation of the meaning of the notion of nature into an objective and a subjective sense. The differentiation centres upon the presence of the will and the human being, within the theory of natural law, as inherently arbitrary and subjective elements within a theory of law which presents “an order which is not created ‘arbitrarily’, but comes about ‘on its own’, so to speak, from a basic fact somehow objectively given”.11 The presence of both subjective 6

Hans Kelsen, “Die Idee des Naturrechts”, Zeitschrift für öffentliches Recht, 7, (1927), 221– 250. All subsequent references are to the English translation, Hans Kelsen, “The Idea of Natural Law”, in Hans Kelsen, Essays in Legal and Moral Philosophy, (Dordrecht: Reidel, 1973), 27–60. 7 Kelsen, “The Idea of Natural Law”, 27. 8 Ibid., 27–28. 9 Ibid., 28. For Kelsen, there is a continuity of this superimposition of the ‘natural’ on the ‘just’ which is to be found “not only among the French and the Germans, but also among the Greeks, the master teachers of social theory. ‘ϕύσει δίκαιον’, ‘lex naturalis’, ‘l’ordre naturel’, ‘das Naturrecht’, ‘natural law’ – they all seek merely to express what is ‘just’”. (Ibid.). 10 Ibid. 11 Ibid., 28–29. The subjective, arbitrary element originates in natural law theories which, for Kelsen, derive their objective foundation from God once the theory encom­passes a notion of God’s will as “the divine will, which is elevated above the lawfulness of

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and objective elements reflects the intrinsic difficulty of a theory of natural law to conceive of the existence and development of positive law. The difficulty centres upon the passage, in the theory of natural law, from the foundation to the creation and application of law. The passage, as the relationship between the unconditioned (foundation) and conditioned (creation and application of law), situates positive law as always conditioned by an unconditioned, objective idea of natural law. For Kelsen, in the theory of natural law, positive law is considered as “always good or bad, just or unjust according to its degree of coincidence or conflict with natural law”.12 The unconditioned – the ground or basic fact of natural law – is both the origin and the basis for evaluation of the creation and application of positive law. The character of the Kelsenian critique proceeds from the intrinsic standpoint of pure natural law, it is to show by way of an immanent critique [emphasis added] that natural law – in contradiction to its own idea – must ultimately become the work of man, that the unavoidable application of natural law to the concrete case, its individualization, is necessarily a positivizing, which is to say, however, that the process of realizing natural law destroys the idea of it, so that it is not possible at all, it is so only in a sphere transcending the empirical human one.13 The destruction of the idea of natural law enables positive law to be thematised as an autonomous entity. Kelsenian legal science conceptualizes this autonomy, against all potential relapse into a sociology of law, in a manner which preserves the distinctive normativity of the legal norms of positive law. The preservation of this normativity requires that the theoretical framework of a legal science of positive law commences from a preliminary m ­ ethodological restriction “to a purely hypothetical formal grounding by way of the basic norm [Grundnorm]”.14 It is in this manner that Kelsenian legal positivism emerges from the critique of the theory of natural law. The further development and elaboration of the critique centres upon counterposing the distinct normativity of positive law to the purported n ­ ormativity attributed to it by the theory of natural law. The revelation of the difficulties of the theory of natural law arises with the question of the realization of a normative

12 13 14

divine reason, and thus, as omnipotence – is exalted into divine arbitrariness” (Ibid., 29). The subjective elements attain a more extensive and pervasive presence in natural law ­theories in which “[t] he natural law to be derived from the nature of man already approximates closely to the positive law flowing from the human will” (Ibid.). Ibid., 30. Ibid., 59. Ibid., 38.

Introduction

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order: the process of transformation of natural law into norms of positive law. For Kelsen, the process consists of two aspects whose difficulties derive from the presence of a human intermediary situated between f­ oundation and norm. This presence interrupts both the presumption of the direct, unmediated passage from the foundation (absolute, material ground) to the general norm of positive law and the presumption of the separation between the creation and the application of positive law. The theory of natural law presupposes the universal transparency of the absolute, material ground to the human intermediary. The universal possession of the knowledge of the ground of natural law constitutes the human intermediary as a mere conduit in the direct passage from the condition (the content specified by the absolute ground) to the consequence which flows from the violation or breach of the condition.15 This presupposition renders the status of the consequence unclear as the immediacy of the knowledge of the ground of natural law renders the necessity for an external source of coercion unclear. The initial lack of clarity in the distinction between the foundation and the norm of positive law is reinforced with any subsequent acknowledgement that the possession of the knowledge of the ground is less than universal. For any differentiation in the degree of this knowledge immediately introduces the possibility of disobedience – the failure of the inner necessity of natural law – and the requirement for the external imposition of coercion.16 The presence of a differential degree of knowledge remains unresolved by the introduction of the figure of the law-maker. The recourse to the authority of an individual is, for Kelsen, merely the creation of a façade of universalism in which the individual’s “capacity to know and will the just”17 is the source which purportedly overcomes the initial, defective distribution of this universal knowledge. The initial differential degree of knowledge – the absence of the universal – cannot be subsequently resolved by an individual whose knowledge of the ground, even if superior, remains necessarily subjective.18 15 16

17 18

For Kelsen, “[t]he natural law norm is realized as it were, ‘by itself’. Everyone to whom it applies posits the consequence which is immediately evident to him once the condition has come about” (Ibid., 33). Ibid. As Kelsen emphasizes, “if the natural law order, ideally speaking, is not a coercive order like positive law, it is so only on the presupposition that it and more especially the consequences annexed in its norm to a specific condition, namely ‘right’ or ‘just’ conduct, is immediately self-evident in like fashion to all men whose conduct is ruled by this order, and that these men have an equal willingness to live according to this insight. In default of this presupposition, which is in the truest sense of the word a utopian one, a coercive order is inescapable” (Ibid., 52). Ibid., 57. For Kelsen, “we shall have to interpose against every doubt about the justice of some positive law norm he lays down, every assertion contrary to such a statement of law, the

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The indication of the differential degree of knowledge of the absolute, material ground is, for Kelsen, sufficient to situate the human intermediary as the permanent interruption of the purported passage from foundation to norm and its associated consequence. This, in turn, constitutes the knowledge of the human intermediary as a realm of subjective value in relation to which the intelligibility of a legal order, composed of legal norms, can only exist as an ­external coercive order of positive law. For the interruption of the passage from foundation to norm is simultaneously the interruption of the passage from the legal condition to the legal consequence specified by the legal norm. The disappearance of the inner necessity of the theory of natural law redefines positive law as a coercive order, a specific social and technical means towards ends whose determination lies beyond the cognisance of positive law. Its form, i.e., the basic form of legal statement, is sufficiently characterized as a hypothetical judgment, whose “ought” conjoins a particular circumstance as condition to a particular act of coercion as consequence. The consequence laid down as obligatory in the positive legal statement does not, however, decree the behaviour of one man only, but must at least refer to two of them. One is the man against whom the ordained act of coercion is directed, and who by the ordainment of the coercive act so directed is obligated in positive law … The other man is he who must inflict the coercive act upon the first. This is what is characteristic of positive law, the “organ” exercising coercion which – itself “obligated” in a specific manner to its coercionrealizing behaviour – confronts him who was initially obligated.19 The external, coercive order of positive law establishes a separation between the individual obligated by the particular legal norm and the imposition of the consequence in the event of its breach or violation. The separation initiates a

19

principle that, in the interests of ‘peace and security’, it remains out of the question that any random individual should be allowed to put his subjective opinion about what is just in place of the norm laid down by the ‘appointed authority’”. (Ibid). Ibid., 32–33 (Emphasis in original). For Kelsen, the separation also overturns the designation of the legal condition and the legal consequence as two distinct norms: “(1) You are to behave in a certain way; (2) If you behave otherwise, i.e., if you violate the duty or norm designated in (1), a coercive act is to be directed against you” (Ibid., 53). The designation can only arise “on the tacit assumption that this norm has a ‘just’ content, that it obliges, not by virtue of the coercive order contained in it, but by virtue of its ‘just’ content. Thus in truth it can enter into the system of positive law only as a natural law norm; which is itself a contradiction since it actually makes the second, a coercion-ordaining norm, superfluous, and indeed impossible” (Ibid., 54).

Introduction

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further process of organization in which the imposition of the consequence proceeds, at its most undeveloped stage, from the “injured party” to a “functionally specialized ‘organ’ in a narrower sense, the ‘judge’ or ‘official’”, at its most developed stage.20 The separation between condition and consequence introduces the second aspect of the difficulties of the theory of natural law. The imposition of the consequence introduces the question of the individualization or concretization of the legal norm. The hesitation of the theory of natural law in relation to the question of the existence and character of coercion is accompanied by the limitation of its conception of concretization to “law in its general form merely, [and] pays no attention at all to the problem of individualization, and identifies law with statute”.21 The theory of natural law, flowing from the presumption of its inner necessity of its absolute, material ground, assumes that the process beyond this concretization in general form is merely the unproblematic and essentially mechanical activity of application. For Kelsen, in the absence, at the level of the human intermediary, of a definitive demonstration of the presence of the universality of this absolute material ground, the process of concretization of positive law is revealed as a more complex movement from abstract to concrete. In place of the unilateral movement of foundation to norm, and its attendant separation of creation and application, the Kelsenian position introduces the theory of levels (Stufenbaulehre).22 20 21 22

Ibid., 33. Ibid., 45 (Emphasis in original). The term originates in the work of another member of the Vienna School of legal theory, Adolf Merkel, and is subsequently adopted and inflected in Kelsen’s work after the Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatze of 1911 reaching its first full expression in Pure Theory of Law (Reine Rechtslehre) of 1934. The concept of the stufenbaulehre is developed by Merkel in the following work Adolf Merkl, “Zum Interpretationsproblem”, Grϋnhutsche Zeitschrift fϋr das Privatrecht und öffentliche Recht der Gegenwart, 42, (1916), 535–556; Adolf Merkl, “Das Recht im Spiegel seiner Auslegung”, Deutsche Richterzeitung, 9 (1917) 162, 394, 443–450; Adolf Merkl, Die Lehre von der Rechtskraft entwickelt aus dem Rechtsbegriff, (Vienna: Franz Deuticke, 1923), in particular, 277–302; Adolf Merkl, “Justizirrtum und Rechtswahrheit”, Zeitschrift für die gesamte Strafrechtswissenschaft 45, (1) (1925): 452–465; Adolf Merkl, “Prolegomena einer Theorie des rechtlichen Stufenbaues” in Gesellschaft, Staat und Recht. Festschrift fur Hans Kelsen zum 50. Geburstag, edited by A. Verdross, (Vienna: Springer, 1931), 252–294. See, on the concept of the Stufenbaulehre, Martin Borowski, “Concretized Norm and Sanction qua Fact in the Vienna School’s Stufenbaulehre”, Ratio Juris 27, (1) (2014), 79–93; Stanley L. Paulson, “How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law”, Revus, 21 (2013), 29–45 and Ewald Wiederin, “Die Stufenbaulehre Adolf Julius Merkls”, in Stefan Griller and Heinz Peter Rill (eds.), Rechtstheorie. Rechtsbegriff – Dynamik – Auslegung, (Vienna/New York: Springer, 2011), 81–134.

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The reconception of the internal structure of positive law transforms the status of the foundation from a single, supreme material ground – a substantive concept – to a basic norm (Grundnorm) – a formal concept – whose existence is result of the cognitive operation of legal cognition. The transformation simultaneously alters the conception of the development of the legal norms of positive law in which creation and application become integral aspects of the entirety of the system of positive law delineated by the theory of levels.23 Thus, the limitation of the theory of natural law to the general norm cannot be the sole manifestation of law, because in order to achieve its appointed goal it must be applied in the concrete case, and because this application is throughout an act of generating or creating law, whose product must equally be regarded as “law” because and insofar as it is a norm, a legal norm, albeit an individual one, valid only for the concrete situation, the particular case. In spite of the logical priority which the general norm has over the individual one, it should not be overlooked that law in the general norm is still in an unfinished state; and one must perceive that it is precisely in the individual norm that the idea of law finds it true fulfilment.24 The position of logical priority of the basic norm, in the Kelsenian r­ econception, enables the legal norms of positive law to be grasped within a framework whereby creation and application reflect the combination of a static and a dynamic character of positive law. The Kelsenian emphasis upon the concretization of positive law as a process of individualization reorientates the understanding of the external coercive order. The substantive notions of justice and injustice of the theory of natural law are transformed into the formal distinction between the notions of legal and illegal. This “relativizing of the ‘just’”25 situates the formal distinction entirely within the particular system of positive law: “the fact that anyone is legally obligated to a particular course of conduct means nothing whatever except that the contradictory opposite of this conduct stands under the ­sanction of a coercive act”.26 The process of individualization, as the expression of the ­relativization of the “just”, confines the focus to the resolution of individual disputes – the restoration of peace – in place of the instantiation of an absolute justice.27 23 24 25 26 27

Kelsen, “The Idea of Natural Law”, 40. Ibid., 40–41 (Emphasis in original). Ibid., 57. Ibid., 53. Ibid., 57.

Introduction

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The effect of the Kelsenian immanent critique of the theory of natural law is to establish a methodological boundary between the theory of natural law and the Kelsenian legal science of positive law. The boundary marks the opposition between legal positivism and natural law which reveals the mutually exclusive connection between “[p]ositivism and (epistemological) relativism” and “natural law theory and (metaphysical) absolutism”.28 The opposition indicates a boundary open to contestation in which the Kelsenian position seeks, through the demonstration of its logical superiority, to resist the continued potential for the reassertion of a theory of natural law. The methodological resistance, arising from the elaboration of a logically coherent conception of positive law, proceeds to extend the critique to become a critique of ideology. The incoherence of the theory of natural law, revealed through the “problem of realizing a normative order”,29 reflects its status as a supplement to an existing, contingent order of positive law. The supplementation is an operation of transformation, in which the notion of metaphysics has itself become ideological, a transformation of the contingent into the absolute attempting to legitimize positive law by means of natural law, to justify any given content of positive law by invoking natural law to empower the norm-giving authority, and thus to lend stability to an autocratic or aristocratic form of government; and hence that it is not natural but rather positive law, because it is a particular form of the state, that is to be given a foundation thereby.30 The Kelsenian critique of natural law, as a critique of ideology, represents the “purifying” impetus of the methodology of Kelsenian legal science. The Kelsenian theory of positive law understands the demonstration of its logical superiority as the presentation of an autonomous system of legal norms. The autonomy of the system of positive law is the corollary of a juridical theory of society: human relationships regulated by an essentially modifiable external legal order of constraint. The first aspect of the Kelsenian critique, exemplified by the 1927 essay, is combined in the works of 1928, with the reintroduction of specific reference to, and discussion of, the natural law tradition. This reintroduction marks the presence of the second enduring element of the Kelsenian critique – the concentration upon particular representatives of the natural law tradition. The second aspect of the Kelsenian critique represents a selective engagement with the 28 29 30

Ibid., 38. Ibid., 59. Ibid., 59–60.

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wider natural law tradition the parameters of which are not exclusively determined by the orientation of the first aspect. The two aspects of the Kelsenian critique co-exist, and this co-existence reveals a number of openings or paths of analysis which remain without further elaboration in the development of Kelsen’s critique of the theory of natural law. The second aspect reveals a more extensive and complex consideration of the representatives of the natural law tradition which forms the primary focus of the chapters of this book. The Kelsenian approach to the natural law tradition is presented, in this book, through a chronology which is distinct from that formed by the date of Kelsen’s engagement with the particular representatives of the natural law tradition. The distinct chronological structure is based upon a reconstruction of the relationship between the Kelsenian critique and the natural law tradition in order to enable a concentration upon the character of the engagement with a particular representative of the natural law tradition. This, in turn, reveals both the selective engagement of the Kelsenian critique and the range of different critical positions of which the critique is composed.31 1

Aristotle, Dante and Kelsen

The analysis of the Kelsenian critique of the natural law tradition commences from the engagement with Aristotle in Kelsen’s article of 1937.32 The primary focus of the Kelsenian critique is upon Aristotle’s the Politics, and appears to consider Aristotle within a framework which is without explicit reference to either classical natural law or the later natural law tradition.33 The absence of 31

32

33

The Kelsenian analysis is thus completely distinct from the type of reconstructive approach to the natural law tradition exemplified by the reconstruction of subjectivity in the natural law tradition, from Grotius to Leibniz, of Yves-Charles Zarka (see Yves-Charles Zarka, L’autre voie de la subjectivité, (Paris: Beauchesne, 2000)). For the Kelsenian analysis, in its contrast between a theory of positive law and a theory of natural law, remains uninterested in the question of the philosophical origin of the modern subject. Hans Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, International Journal of Ethics, Vol. 48, No. 1 (1937), 1–64. For the Kelsenian engagement with Plato, we refer to the detailed analysis by Sandro Chignola, “Kelsen, Weber: on Justice and Law” in Ian Bryan, Peter Langford and John McGarry (eds.), The Foundation of the Juridico-Political: Concept Formation in Hans Kelsen and Max Weber, (London: Routledge, 2015), 226–249. As emphasized by Huppes-Cluysenaer in Chapter 1 of this volume. The definition encompasses Aristotle as part of the natural law tradition “if one understands by law not a separated transcendence, but an immanent norm inspiring in their diversity the reality of positive laws. There is nothing more alien to the juridical thought of Aristotle, as elsewhere in his thought in general, than an abstract universalism, of which he prefigured

Introduction

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this reference reflects an underlying Kelsenian project to sever the continued potential for recourse to Aristotle in the domains of political theory and ethics.34 The presentation of Aristotle’s Politics involves a set of analogies with Aristotle’s Metaphysics and Nicomachean Ethics which combines the two aspects of the Kelsenian critique of natural law: the critique of the Aristotelian philosophical project has become a critique of ideology. Aristotelian philosophy, as ideology, is held to centre upon a sophisticated justification of monarchy. The Aristotelian justification of monarchy is reflected, for Kelsen, in the structure of the Politics which, rather than a unified work, is the combination of Chapters resulting from two separate periods of composition. The two periods, one youthful, the other mature, are distinguished by their theories of the state. The “plan of an ideal state” of Chapters of the youthful period is suc­ceeded by “a realistic doctrine of the state” of the Chapters of the mature period.35 The latter period is considered to confer the dominant sense of the Politics, and articulates a justification of monarchy which is contemporaneous with the ascendancy of the kingdom of Macedon over the other Greek states, and, in particular, the democratic constitution of Athens, created by the Treaty of Corinth 338bc/337bc. For Kelsen, once the Politics is situated within the context of this ascendancy, the realistic theory of the state is comprehensible as a complex justification of monarchy as the best regime whose form of rule simultaneously exemplifies that of the kingdom of Macedon over the Greek states. The ideological form and purpose of the Politics, for Kelsen, flows from Aristotle’s Metaphysics, in particular, the twelfth Book, Book Lambda, in which Aristotelian metaphysical theology is elaborated. The elements of this metaphysical theology produce a relationship between a monotheistic God (the

34 35

the critique” (Pierre Aubenque, “La Loi Selon Aristote” in Pierre Aubenque, Problèmes Aristotéliciens ii, (Paris: Vrin, 2011), 79–92 (89)). Hans Kelsen, “The Philosophy of Aristotle”, 1. Ibid., 25, fn.39. Here, the Kelsenian critique follows the analysis of the Politics by Werner Jaeger, Aristoteles: Grundlegung einer Geschichte seiner Entwicklung, (Berlin: Weidmann, 1923), but differs as to the specific Books of the Politics which are attributed to the earlier and later periods (Ibid.). The further attribution of the more direct, sophisticated ideological function of the Politics rests upon Kelsen’s appropriation of the work of Wilhelm Oncken (1838–1905) Die Staatslehre des Aristoteles; Karl Julius Beloch (1854–1929) Griechische geschichte ii & iii; Julius Kaerst (1857–1930) Studien zur Entwickelung und theoretische Begründung der Monarchie im Altertum Munich/Leipzig: Oldenbourg, 1898; Geschichte des hellenistiscien Zeitalters, i. Here, the Kelsenian appropriation of a promonarchist interpretation of Aristotle and the kingdom of Macedon is modified by the placing of Aristotle as “a decisive turning-point in the political ideology of antiquity. With this system, deeply rooted in ethics and metaphysics, that direction in Greek political philosophy begins which proclaims monarchy, instead of the Polis democracy, as the expression of constitutional justice” (Kelsen, “The Philosophy of Aristotle”, 62).

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prime mover) and the world which is essentially monarchic.36 The sole rule of the prime mover is accompanied, in Book Lambda, with the acknowledgement of the existence of other “divine beings”, which represents an attempt to install the primacy of the monarchic principle whilst preserving the predominant Athenian polytheism.37 Aristotelian ethics is similarly determined by the Aristotelian position in Book Lambda with the primacy of the Metaphysics, as a position of contemplation, constituting the will and action of the individual as comparatively deficient or subordinate modes of activity.38 The “double morality” of Aristotelian ethics is analogous to the “double theology” of the Metaphysics39 with the “double morality” – the relationship between soul and body – creating an ethics of contemplation as the essential corollary of absolute monarchy: “excluding the subjects from all share in public affairs”.40 The monarchic orientation of the Politics, generates a theory of constitutions, but not a juridical theory of the state.41 For Kelsen, the theory of constitutions, shaped by the question of the best regime, concludes with the superiority ­accorded to monarchy in comparison to democracy.42 The absolute personification of authority represented by monarchy – an individual invested with ­absolute power – becomes the locus for the creation and application of positive law. Aristotle becomes the transitionary figure between classical natural law and medieval natural law centred upon a n ­ otion of kingship. 36

37 38 39 40 41

42

Kelsen, “The Philosophy of Aristotle”, 4. The extent to which Book Lambda creates an essential relationship between Aristotle’s ontology and theology in the Metaphysics continues to be the subject of discussion in contemporary Aristotelian scholarship. See, for a comprehensive analysis, Markus Gabriel, “God’s Transcendent Activity: Ontotheology in ‘Metaphysics’ 12”, The Review of Metaphysics 63, 2 (2009), 385–414. Kelsen, “The Philosophy of Aristotle”, 5–6. Ibid., 6–15. Ibid., 9. Ibid., 15. It is the difficulties of this Kelsenian analogical critique that are the central focus of Huppes-Cluysenaer in Chapter 1 of this volume. The conceptual term, theory of the state, should be understood within the specifically German language tradition arising from the middle of the nineteenth century, in which the state has become an autonomous, self-constituting object whose theory is provided by a distinct a theory of the state (Staatslehre) and science of the state (Staatswissenschaft). The initial structure of a legal science of positive law, elaborated in Kelsen’s Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatze (1911), emerges from a sustained critique of the preceding tradition of Staatslehre/Staatswissenschaft. The plausibility of this interpretation is the focus of critical attention of Huppes-­ Cluysenaer in Chapter 1 of this volume. See also, David Roochnik, “Aristotle’s Defense of the Theoretical Life: Comments on ‘Politics’ 7”, The Review of Metaphysics, 61, 4 (2008), 711–735.

Introduction

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The resolutely anti-Aristotelian orientation of the Kelsen’s 1937 critique, confronts a significantly different approach to Aristotle in Kelsen’s first book of 1905 on Dante.43 The difference marks the earlier work’s identification of Dante, in the Monarchia, as a transitional figure between the medieval and the modern theory of the state (Staatslehre) whose Aristotelianism facilitates the development of these modern elements of the Dantean theory of the state.44 The Kelsenian interpretative position, centred upon the German language tradition of the theory of the state, situates the Monarchia as the intimation of the historical origin of this tradition, which simultaneously transcends the limits of this tradition.45 The backward projection of the origin of the tradition of Staatslehre/Staatswissenschaft unsettles both the parameters of this tradition and the multiple levels of argumentation – philosophical, poetic, theological, roman and canon law – of Dante’s Monarchia. The Kelsenian interpretation of the Monarchia, orientated by the identification of its medieval and modern elements, is uninterested in a direct critique of the Dantean theory of natural law as political theology.46 For Kelsen, in contrast to the position accorded to Aristotle in the 1937 essay, Dante occupies a transitional position directed towards the modern.

43 44

45

46

Hans Kelsen, Die Staatslehre des Dante Alighieri. Vienna/Leipzig: Deuticke, 1905. There is no reference to the earlier work in the 1937 essay. For Kelsen’s discussion of Aristotle in the Monarchia, see Kelsen, Die Staatslehre des Dante Alighieri, 41, fn.2; 63, fn.1; 70, fn.1; 80, fn.3; 81, fns.1 & 2 and 83, fns.1–4. On the wider question of Dante’s Aristotelianism in the Monarchia, see Paolo Falzone, “Ignoranza, desiderio, giudizio. L’Etica Nicomachea nella struttura argomentativa di Monarchia iii 3”, Documenti E Studi Sulla Tradizione Filosofica Medievale Vol. 17, (2006), 299–316; Antonio Toscano, “Dante: Il Discorso Aristotelico Nella Monarchia”, Forum Italicum Vol. 15, 2–3, (1981), 139–152 and Larry Peterman, “Dante’s “Monarchia” and Aristotle’s political thought”, Studies in Medieval and Renaissance History, x (1973), 3–40. This is already, as Cau demonstrates in Chapter 2 of this volume, to engage in significant interpretative ‘violence’ in relation to the Monarchia. The phrase “intimation of the historical origin” is utilized to reflect the final paragraph of Kelsen’s book, in which these modern elements, as prefigurative, remain underdeveloped in Dante, and will be taken further, but in a different direction, by Machiavelli and Bodin (Kelsen, Die Staatslehre des Dante Alighieri, 149). Kelsen, however, never devotes significant, sustained attention is his subsequent work to either Bodin or Machiavelli. See, however, for a different approach, Walter Pauly, “Irdische Universalherrschaft und göttliche Gerechtigkeit. Zu Dante Aligheris (1265–1321) Stellung in der spätmittelalterlichen Publizistik”, Der Staat; Zeitschrift für Staatslehre, Öffentliches Recht und Verfassungsgeschichte Vol. 53, 4, (2014), 509–531. On Dante’s political theology in the Monarchia, see Dirk Lüddecke, “Dantes Monarchia als politische Theologie”, Der Staat. Zeitschrift für Staatslehre, Öffentliches Recht und Verfassungsgeschichte 37 (1998), 547–570 and Dirk Lüddecke, Dantes politisches Denken. Überlegungen zur Argumentation der Monarchia Dante Alighieris, (Neuried: Ars Una, 1999).

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In the Monarchia, the modern arises through an almost exclusive concentration upon the monarchic form of government and its reconceptualization. This leads to the elaboration of the intertwined notions of world monarchy and empire,47 in which the domains of the secular and the spiritual/eternal are demarcated between monarch and church.48 This is, in turn, held to be linked to the specifically Dantean elaboration, within the secular domain, of the relationship between prince and people, in which the rudiments of a notion of popular sovereignty are elaborated.49 The Dantean notion is of the limitation of the prince by the people in relation to the potential for the absolute, personal power of the monarch to transform itself into tyranny. The Monarchia’s demarcation of a secular domain, and the importance that it is accorded in relation to the Church, indicates the initial opening towards the separation of Church and State.50 The potential for the Monarchia to become a theory of secularization is unrealized as, for Kelsen, the Dantean position remains an unresolved combination of modern and medieval elements.51 It is here, in particular, that Dante is held to exemplify the status of a transitional figure unable to proceed to a full realization of the modern aspects of his theoretical framework. The Dantean ideal State – as the presumption of a principle of order and unity – provides the final aspect of the Kelsenian presentation of the incipient modern elements of the Monarchia. The conception of a world state or empire arises from the conflicting assertions of the principle of unity, as competing assertions of superior authority, of the Church and the State. The Monarchia derives the principle of unity from a position, situated beyond Church and State, which simultaneously generates an institutional hierarchy within which 47

As developed in Chapters 3 to 6 of Kelsen, Die Staatslehre des Dante Alighieri. The extent to which this reconceptualization is heterodox, see the distinct interpretations of Brenda Deen Schildgen, Dante and the Orient, (Chicago: University of Illinois Press, 2002) and Donatella Stocchi-Perucchio, “The Limits of Heterodoxy in Monarchia” in Maria Luisa Ardizzone (ed.), Dante and Heterodoxy: The Temptations of 13th Century Radical Thought, (Newcastle: Cambridge Scholars, 2014), 197–224. 48 The Monarchia is an intervention against the theory of Papal Monarchy which sought to justify the superior authority of the Pope in relation to all Christian kings. On the theory of Papal Monarchy, see Paolo Prodi, The Papal Prince. One Body and Two Souls: The Papal Monarchy in Early Modern Europe, trans. Susan Haskins, (Cambridge: Cambridge University Press, 1987). For a recent presentation of this period as the origin of the formation of central concepts of modern political theory, see Gianluca Briguglia, Le pouvoir mis en question. Théologiens et théorie politique à l’époque du conflit entre Boniface viii et Philippe le Bel, (Paris: Belles Lettres, 2016). 49 See, Chapter 7 of Kelsen, Die Staatslehre des Dante Alighieri. 50 See, Ibid., Chapter 8. 51 Ibid., 118.

Introduction

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the unity is reproduced.52 The ideal State – as a world empire – is the transcendent, universal origin and extends to the entirety of the earth.53 The foundation of the origin of the ideal State is theological and constitutes a divine, imperishable origin which, in its personification in the figure of the Emperor, is a locus of unconditional authority. For Kelsen, from the Dantean conception of the world empire emerge the rudiments of a unified legal system founded upon the primacy of a law (the world empire) which is superior to existing states.54 These rudiments will also become the rudiments of Kelsen’s subsequent theory of legal monism – a ­theory of positive law predicated upon the overcoming of state sovereignty. The elaboration of the Kelsenian theory of legal monism will require the development of Kelsen’s legal theory of positive law from the initial framework of the Hauptprobleme (1911) to the Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (1920/1928). 2

Kelsen, Early Modern and Enlightenment Theories of Natural Law

The Kelsenian attempt to present one of the modern elements of Dante’s Monarchia as the gesturing towards a conception of limited monarchy55 – the transformation of unconditional, absolute personal power into power conditioned by external constraint – opens the question of a singular absence in Kelsen’s engagement with the theory of natural law. This relates to the theory of natural law arising from Huguenot thinkers in the late sixteenth century – the so-called monarchomachs56 – and provided with its most comprehensive 52 53 54

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Ibid., 134–135. For further discussion, see Giorgio Del Vecchio, “Dante as Apostle of World Unity”, Annual Report of the Dante Society, with Accompanying Papers, No. 73 (1955), pp. 23–30; Heinz Löwe, “Dante und das Kaisertum”, Historische Zeitschrift, Vol.190, No.3 (1960), 517–552. See, Kelsen’s discussion of the ambivalence of the Dantean position at the conclusion of Chapter ix (Kelsen, Die Staatslehre des Dante Alighieri, 135–136). It should also be noted here that, other than a passing acknowledgement of Dante’s acceptance of the legitimacy of the Roman Empire, there is no sustained discussion of its importance in the structure of the Monarchia. On this, see Thierry Ménissier, “Concilier communauté des hommes et souveraineté mondiale : l’empire selon Dante”, Cités, No. 20, (2004), 113–127. As Cau emphasizes in Chapter 2 in this volume, Kelsen himself explicitly acknowledges that this represents a forcing of the text of the Monarchia. The polemical term, attributed to them by their opponents, designates a group of French Protestant (Huguenot) thinkers who, in their work, formulate a justification for resistance to tyranny. The principal representatives of this group are Théodore de Bèze (1519–1605), François Hotman (1524–1590), Philippe Duplessis-Mornay (1549–1623). See, Paul-Alexis

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formulation in the work of Johannes Althusius (1563–1638). The introduction of the Althusian theory of natural law enables the connection between ­elements of the Kelsenian critique, elaborated in the texts of the 1920s, to be placed into question. The Althusian theory of natural law, through its underlying critique of Jean Bodin’s theory of absolute sovereignty, in the Six Books of the Commonwealth,57 situates the division, limitation and resistance to an absolute, indivisible sovereignty, as integral aspects of a social order. The internal division of the social order – a hierarchy of levels of political authority – is accompanied by a theory of law, derived from the classificatory framework of Petrus Ramus (1515–1572), founded upon a methodology, in conformity with the tenets of Calvinism,58 predicated upon the operations of definition and division. The primacy accorded to the operations of definition and division is the reflection of the wider rejection of the preceding Aristotelian and Scholastic importance accorded to rhetoric in comparison with logic. The Ramist position displaces the procedures of argumentation from rhetoric to logic and, in this displacement, generates a science of classificatory axiomatics.59 The centrality of this classificatory method, albeit in modified form,60 in Althusius, reveals a theory of natural law which explicitly encompasses the creation and application of positive law. Whilst the Althusian conception of positive law remains confined to the interpretative classification of the preexisting sources of Roman law combined with the retention of the developmental structure of Aristotle’s Politics and the Ciceronian conception of duty; the elaboration of the juridical framework proceeds beyond the incoherent limit of the abstract norm attributed to natural law by the Kelsenian critique of the 1920s.

57

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59 60

Mellet (ed.), “Et de sa bouche sortait un glaive”: Les Monarchomaques au XVIe siècle, (Paris: Droz, 2006). Jean Bodin, Six Books of the Commonwealth, abridged and trans. by M.J. Tooley, (Oxford: Basil Blackwell, 1955). For an extended analysis of the Althusian critique of Bodin, see Gaëlle Demelemestre, Les deux souverainetés et leur destin: Le tournant Bodin-Althusius, (Paris: Cerf, 2011). On the relationship between the thought of Luther, Calvin and Althusius, see Jordan J. Ballor, “Martin Luther, Johannes Althusius, and the Political Use of the Decalogue” in Herman J. Selderhuis, and J. Marius J. Lange van Ravenswaay (eds.), Luther and Calvinism: Image and Reception of Martin Luther in the History and Theology of Calvinism, (Göttingen: Vandenhoeck & Ruprecht, 2017), 123–134. As emphasized by Demelemestre in Chapter 3 in this volume. See, also, Marie-Dominique Couzinet, Pierre Ramus et la critique du pédantisme: philosophie, humanisme et culture scolaire au XVIe siècle, (Paris: Champion, 2015). See, Demelemestre in Chapter 3 in this volume.

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The specific character of Althusian positive law flows from the relationship between politics and law in Althusius’s Politica.61 The orientation by aspects of Aristotelian and Ciceronian thought expresses the subordination of the framework of positive law to a preceding delineation of the realm of politics: the determination of the structure of a life in common. The subsequent juridical exposition translates these basic elements of a life in common into a framework of rules through which it can be reproduced. Thus, the Althusian theory considers an external framework of constraint as an essential compliment to the basic structure of a life in common.62 The constraining function of law, as an externalization of the rights, duties and obligations inherent in life in common, is further analysed in Althusius’s Dicaeologicae Libri tres.63 Here, the classificatory method is integrated with a theory of authorization in which the hierarchy of forms of human association contain instances of authority. The determination of the location of the relevant instances of authority defines the locus of the creation and application of law. In this manner, it is a concern with the exercise of authority which has become an integral aspect of this theory of natural law and thereby produced the co-belonging of authority and the evaluation of its legitimacy.64 The sophistication of the Althusian theory of natural law, marked by its insistence upon the divisibility of sovereignty into co-ordinated instances of authorization, is further reinforced by its elaboration of a notion of federalism. This, in turn, reveals the limits of Kelsen’s initial demarcation and critique of the essential elements of the theory of natural law. For federalism is an e­ ssential aspect of Kelsenian legal theory in the 1920s,65 and indicates the unacknowledged prefiguration of federalism in the Althusian theory of natural law. The absence of the Althusian theory of natural law from the Kelsenian critique, and the limitations which it reveals, is an absence which is qualified by the explicit engagement with the later German Enlightenment theory of

61 62

63 64 65

Johannes Althusius, Politica (Politica methodice digesta), Abridged and translated by Frederick S. Carney, (Indianapolis: Liberty Fund, 1995). As discussed by Demelemestre in Chapter 3 in this volume. The explicit Althusian assumption of the differential knowledge of the good – both Christian and social – in ­individual humans and, thus, the inadequacy of this knowledge in itself to ensure the good, necessitates the recourse to law. Johannes Althusius, Dicaeologicae Libri tres, totum et universum Jus, (Frankfurt, 1617). As emphasized by Demelemestre in Chapter 3 in this volume. See, in particular, Hans Kelsen, Osterreichisches Staatsrecht, (Tubingen: J.C.B. Mohr/Paul Siebeck, 1923), 165ff and Hans Kelsen, Allgemeine Staatslehre, (Berlin: Julius Springer, 1925), 163–225.

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natural law. The exemplary figure66 in this engagement is Christian Wolff (1679–1754) and the Wolffian notion of civitas maxima elaborated in the Jus gentium methodo scientifica pertractatum (1749).67 The Kelsenian interpretation of Wolff arises in Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (1920/1928) with a further condensed consideration of the notion of civitas maxima in the conclusion of the 1926 Hague Lecture Course.68 The appropriation of the Wolffian notion of civitas maxima indicates the complexity of the methodological process of distinguishing a Kelsenian legal science of positive law from natural law.69 The complexity is evident from the manner in which Kelsen returns, in the ninth chapter of Das Problem der Souveränität, to the Wolffian notion through a critical examination of the work of Carl von Kaltenborn-Stachau (1817–1866).70 For Kelsen, Kaltenborn is ­simultaneously correct and too circumspect in the recognition of the continued pertinence of the Wolffian notion. The Kelsenian critique acknowledges the veracity of Kaltenborn’s recourse to Wolff in the rejection of state s­ overeignty as the sole foundation for the conceptualisation of international law. However, this rejection is limited, for Kelsen, by the impossible attempt to render the Wolffian notion compatible with the retention of a theory international  law centred upon state sovereignty. The alternative between an international law centred upon the primacy of a system of states and anarchy which Kaltenborn’s position establishes is rejected by Kelsen; and this rejection is the preliminary stage for the wider Kelsenian critique of later nineteenth century and early twentieth century German language theories of international law. The critique, which demonstrates the incoherence of the distinctions ­between organized community (organisierte Gemeinschaft) and an unorganized community (nichtorganisierte Gemeinschaft) and between corporation (Korporation) and societal association (Sozietät), is the counterpart of the 66

67 68 69 70

The other central representatives of this German Enlightenment theory of natural law – Samuel Pufendorf (1632–1694) and Christian Thomasius (1655–1728) – are either accorded little significant attention (Pufendorf) or are absent from Kelsen’s engagement with the natural law tradition. The distinctive contribution of Leibniz (1646–1716) to these developments in this theory of natural law is also entirely absent from Kelsen’s comprehension of the natural law tradition. Christian Wolff, Jus gentium methodo scientifica pertractatum, trans. Joseph H. Drake, (New York: William Hein, 1995). Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre 2nd Edition, (Tübingen: Mohr 1928); Hans Kelsen, “’Les rapports de système entre le droit interne et le droit International public”, RdC, 14, iv (1926), 231–332. This is considered by Langford and Bryan in Chapter 4 of this volume. The critical examination centres upon Kaltenborn’s, Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft, (Leipzig: Mayer, 1847).

Introduction

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demonstration of the objective, normative existence of international law beyond state sovereignty. The reconstruction of the primacy of international law involves the further Kelsenian transformation of the Wolffian notion of civitas maxima into an entirely juridical conception of the relationship between normative orders.71 The initial position of the ninth chapter of Das Problem der Souveränität is accorded a more comprehensive articulation in the later Lecture Course of 1926. Here, the notion of the civitas maxima is placed at the conclusion and preceded by the transformation of the notion of the state into an entirely juridical concept. This transformation is the methodological prerequisite for the elaboration of a theory of international law as the juridical relationship between normative orders. For Kelsen, the juridical relationship is considered within a unified normative space governed by the principle of non-­contradiction in which two alternative forms of legal monism are possible. Within this Kelsenian framework, the notion of civitas maxima assumes the position of the ­alternative in which the relationship between national and international law is based upon the primacy of international law. The Kelsenian appropriation of the notion of civitas maxima detaches it from the Wolffian theory of natural law, as a theory of the law of nations.72 The methodological transformation, which transposes the notion into a legal science of positive law, maintains the cosmopolitical orientation of Wolff’s thought and, in this manner, poses the question of the wider connection, in these works of the 1920s, between the Kelsenian project and the natural law tradition of the German Enlightenment. The French Enlightenment, and the particular conceptions of natural law associated with it,73 are confined, within the Kelsenian critique of natural 71 See, Langford and Bryan in Chapter 4 of this volume. 72 Ibid. 73 Here, following the position of Bernardi, this conception of natural law, which arises from the attribution of the origin of ‘modern’ natural law to Grotius and its subsequent ­elaboration by Pufendorf, then proceeds, through a complex process of translation, interpretation and development, by Barbeyrac (1674–1744) and Burlamaqui (1694–1748), to articulate a distinct theory of natural law. For Bernardi, this theory of natural law, “consists in recognizing two inherent qualities in the nature of man: right reason, which permits him to recognize that which is correct for him, and sociability, which encourages him to forge connections with others. The first founds moral obligation (we know what we must do as men), the second social and political obligation (we recognize ourselves connected by our commitments towards others). Man is a being by nature rational, reasonable and sociable. For the jusnaturalists, this anthropological presupposition has a hybrid foundation, theological and juridical. Natural religion is its guarantee: if God commands us to obey his law, it is because he has conferred upon us the capacity to know it. From the perspective of politics, at least, the thinkers of the Enlightenment inherit from this jusnaturalist anthropology both the logical sequence it establishes between moral freedom

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law, to Jean-Jacques Rousseau (1712–1778). In order to consider Rousseau within the purview of this critique, rather than as solely related to the Kelsenian theory of democracy,74 requires that one consider the essential interconnection between the Kelsenian theory of positive law and theory of democracy.75 The interconnection centres upon the demonstration that the concept of the people, as the expression of a collective or popular will, is produced through a process of institutional representation. The process is, for Kelsen, an aspect of the juridical framework of the state in which Parliament, as a juridical creation of the constitution, creates a unified people.76 The legal order is the only possible basis for a conception of this unity, as it alone governs and determines the behaviour of those subject to it: the content of legal norms constitutes the unity of an otherwise infinite variety of human action. The Kelsenian critique, through the reformulation of the notions of freedom, the people and democracy, produces a conception of democracy which

74

75

76

and political freedom, as well as the obligations arising therefrom respectively” (Bruno Bernardi, “Rousseau, Une Autocritique Des Lumières”, Esprit, 357, 8/9 (2009), 109–124 (116–117)). See, also, Bruno Bernardi, Le Principe d’obligation: sur une aporie de la modernité politique, (Paris: ehss/Vrin, 2007); Gabriella Silvestrini, “Rousseau, Pufendorf and the eighteenth-century natural law tradition”, History of European Ideas, 36, 3, (2010), 280–301 and Gabriella Silvestrini, Diritto naturale e volontà generale. Il contrattualismo repubblicano di Jean-Jacques Rousseau, (Turin: Claudiana, 2010). Kelsen’s discussion of Rousseau is contained in The Essence and Value of Democracy (Vom Wesen und Wert der Demokratie, 1920/1929), and concentrates entirely upon Rousseau’s Social Contract. It should also be noted here, that beyond the question of the Kelsenian circumscription of the analysis of Rousseau’s texts, there is also the question of Kelsen’s lack of discussion of Rousseau’s consideration of dictatorship in chapter 6, Book iv of the Social Contract. This absence or ‘silence’ is accompanied by a Kelsenian discussion, in Chapter 8, of The Essence and Value of Democracy, devoted to the selection of leaders structured by the opposition between autocratic and democratic processes of selection. The Kelsenian position becomes more complex once reference is made to the Schmittian analysis and transformation of Rousseau’s discussion of dictatorship in Dictatorship: From the Beginning of the Modern Concept of Sovereignty to Proletarian Class-Struggle (1921). See, Pascale Pasquino, “Remarks on Rousseau’s Dictatorship: Between Machiavelli and Carl Schmitt” in Anne Deneys-Tunney and Yves-Charles Zarka (eds.), Rousseau Between Nature and Culture: Philosophy, Literature, and Politics, (Berlin: Walter de Gruyter, 2016), 101–110. As emphasized by Oliver Lepsius, “Kelsen, théoricien de la démocratie” in Olivier Jouanjan, (ed.) Hans Kelsen. Forme du droit et politique de l’autonomie, (Paris: Presses Universitaires de France, 2010), 135–170; and Matthias Jaestedt “La science comme vision du monde: science du droit et conception de la démocratie chez Hans Kelsen” in Olivier Jouanjan, (ed.) Hans Kelsen. Forme du droit et politique de l’autonomie, (Paris: Presses Universitaires de France, 2010), 171–220. See Lepsius, “Kelsen, théoricien de la démocratie”, 144–151.

Introduction

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is “only a form, a method for the creation of the social order”.77 The method entails the rejection of a collective or popular will which exists prior to the juridical framework of the state for which it substitutes a system of representation by political parties. Thus, in place of a presupposition of a pre-existing people, the Kelsenian framework operates on the basis of majority rule: the political party elected with the largest number of representatives as the legitimate expression of the will of the majority.78 In this critical transformation of Rousseau, the Kelsenian approach continues to be informed by the interpretative background of the German tradition of Staatslehre/Staatswissenschaft in which Rousseau, as the exemplification of the thought of the French Revolution,79 represents the antithesis. The Rousseauian general will, propounded in the Social Contract, is held to dissolve the separation between a formal and material sense of law which is a central aspect of this tradition of Staatslehre/Staatswissenschaft, epitomised by Paul Laband’s Das Budgetrecht nach den Bestimmungen der Preussischen Vefassungsurkunde unter besonderer Beriicksichtigung der Verfassung des Norddeutschen Bund (1871) and Das Staatsrecht Des Deutschen Reiches (1876–1882). For the German tradition of Staatslehre/Staatswissenschaft is predicated upon a theory of the state which is elaborated without reference to a general popular will. Hence, the Kelsenian approach to Rousseau is marked by a dual procedure in which the tradition of Staatslehre/Staatswissenschaft is rendered democratic80 whilst ensuring that the concepts of freedom, the people and democracy are transformed into ­juridical concepts. The effect of this transformation is to replace Rousseau’s political philosophy with a legal science of positive law and democracy.81 77

78 79

80 81

Hans Kelsen, The Essence and Value of Democracy, trans. Brian Graf and ed. Nadia Urbinati and Carlo Invernizzi Accetti, (Lanham: Rowman and Littlefield, 2013), 101. For a contemporary presentation of Rousseau’s theory of democracy, see Gabriella Silvestrini, “Neither Ancient nor Modern: Rousseau’s Theory of Democracy”, in Kari Palonen, Tuija Pulkkinen and José María Rosales (eds.) The Ashgate Research Companion to the Politics of Democratization in Europe, (Abingdon: Routledge, 2008), 55–76. This is a central focus of Baume’s analysis in Chapter 5 of this volume. On the relationship between Rousseau and the French Revolution, see Roger Barny, Le droit naturel à l’épreuve de l’histoire: Jean Jacques Rousseau dans la Révolution, (Paris: Belles Lettres, 1995); Roger Barny, L’éclatement révolutionnaire du rousseauisme, (Paris: Belles Lettres, 1988); and Roger Barny Prélude idéologique à la Révolution française: Le rousseauisme avant 1789, (Besançon: Presses Universitaires de Franche-Comté, 1985). In this sense, The Essence and Value of Democracy becomes an extension and r­ adicalization of the project of the Hauptprobleme of 1911. On Rousseau’s distinctive political philosophy, see Blaise Bachofen, La Condition de la liberté: Rousseau, critique des raisons politiques, (Paris: Payot, 2002); Bruno Bernadi, La­ fabrique des concepts. Recherches sur l’invention conceptuelle chez Rousseau, (Paris: Champion,

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The transformation shifts the centre of reflection upon democracy to the question of the character and dynamics of a democratic social order governed by a majority.82 Kelsenian democracy, as a method of social order, confronts the regulation of the relationship between the majority and the minority. For, as Kelsen recognizes, the existence of a majority is the necessary counterpart of the existence of a minority. The regulation of this relationship determines the extent to which the procedure of democratic representation and the system of political parties continues to be a political form synonymous with “free criticism of itself”.83 This, in turn, opens the question of the form and limits of this regulation together with the adequacy of the Kelsenian response.84 The distinctive position of Rousseau in relation to the preceding natural law tradition finds an analogue in the work of Kant.85 The Kantian project, in the realm of practical philosophy, represents a fundamental reconception of the foundation and purpose of the natural law tradition flowing from the specifically Kantian notion of transcendental freedom.86 The initial Kelsenian engagement with Kant arises from an exchange, within the Vienna School, between Kelsen and Fritz Sander (1889–1939).87 The exchange, centred upon

82 83 84 85

86 87

2006); and Luc Vicenti, Jean-Jacques Rousseau, l’individu et la République, (Paris: Kime, 2001). See Baume’s analysis in Chapter 5 of this volume. Hans Kelsen, Preface to the French edition of The Essence and Value of Democracy (1932) (Hans Kelsen, La démocratie: sa nature – sa valeur, trans. Charles Eisenmann, (Paris: Dalloz, 2004), viii). This is a central focus of Baume’s analysis in Chapter 5 of this volume. Kelsen understands the Kantian project as without direct connection to the work of Rousseau. For discussion of the importance of this connection for the Kantian project, see Denis Guénoun, L’Enlèvement de la politique (une hypothèse sur le rapport de Kant à Rousseau), (Belval: Circé, 2002); Dieter Henrich, “The Moral Image of the World”, in Dieter Henrich, Aesthetic Judgment and the Moral Image of the World: Studies in Kant, (Stanford: Stanford University Press), 3–28; Hansmichael Hohenegger, “From Rousseau to Kant: A Study of Translatio Iudicii” in Marco Sgarbi (ed.), Translatio Studiorum: Ancient, Medieval and Modern Bearers of Intellectual History, (Dordrecht: Brill, 2012), 209–224; Klaus Reich, “Rousseau and Kant”, Graduate Faculty of Philosophy Journal, 23, 2, (2002), 35–54; and Richard L. Velkley, Freedom and the End of Reason: On the Moral Foundation of Kant’s Critical Philosophy, (Chicago: Chicago University Press, 1989). See Thomas Sören Hoffmann, “Kant und das Naturrechtsdenken. Systematische Aspekte der Neubegründung und Realisierung der Rechtsidee in der kritischen Philosophie”, Archiv für Rechts- und Sozialphilosophie, 87 (2001), 449–467. The texts of the debate, with an important introduction, are collected in Stanley L. Paulson (ed.) Die Rolle des Neukantianismus in der Reine Rechtslehre: eine Debatte zwischen Sander und Kelsen, (Aalen: Scientia Verlag, 1988). See, also, the later contribution, by Felix Kaufmann (1895–1949), another member of the Vienna School, Felix Kaufmann, “Kant

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the question of the methodological foundations of legal reason, represents a return to Kant which is mediated by the interpretative framework of NeoKantianism and the restriction of the question of a transcendental philosophy to a method of legal philosophy. In this exchange, the pertinence of Kant is introduced and expounded by Sander and it is the question of this pertinence to which Kelsen responds.88 The exchange structures the subsequent Kelsenian engagement with, and interpretation of, Kant, as it establishes Kant as a transitional figure situ­ ated between the preceding ‘metaphysical’ form of philosophy and the as yet ­unrealized potential of Kantian transcendental philosophy.89 The position ­accorded to Kant imposes a division upon Kant’s work in which this u ­ nrealized potential is considered to be present exclusively in the Critique of Pure Reason (1781/1787) in comparison with the Kantian work on practical reason (Groundwork for the Metaphysics of Morals (1785), Critique of Practical Reason (1788)

88

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und die Reine Rechtslehre”, Kant Studien, 29 (1924), 233–242. For recent discussion, see, also, Christoph Kletzer, “Kelsen, Sander, and the Gegenstandsproblem of Legal Science”, German Law Journal, 12, 2 (2011), 785–810; and Sophie Lodiot, “Kant, Kelsen and the Vienna School of Legal Theory” in Violetta L. Waibel (ed.) Detours: Approaches to Immanuel Kant in Vienna, in Austria, and in Eastern Europe, (Vienna: University of Vienna Press, 2015), 468–476. Kelsen acknowledges the importance of the exchange with Sander in the 1923 Preface to the Second Printing of the Hauptprobleme (see Hans Kelsen, “Foreword to the Second Printing of Main Problems in the Theory of Public Law (1923)”, in Stanley L. Paulson and Bonnie Litschewski Paulson (eds.), Normativity and Norms: Critical Perspectives on Kelsenian Themes, (Oxford: Oxford University Press, 1998), 3–22). It should be noted that this ‘return’ to Kant in the Vienna School occurs at a period, after World War i, when the Marburg and Baden/South-West Schools of Neo-Kantianism have lost the major figures of Hermann Cohen (1842–1918), Emil Lask (1875–1915) and Wilhelm Windelband (1848–1915), and in which the philosophical dominance of Neo-Kantianism is increasing subject to critique with the emergence of the philosophical movements of phenomenology (Edmund Husserl (1859–1938) and the early work of Martin Heidegger (1889–1976)), philosophical anthropology (Max Scheler (1874–1928); Helmuth Plessner (1892–1985)) and the renewal of a philosophy orientated by metaphysics and ontology (Nicolai Hartmann (1882–1950)). The ‘return’ to Kant is also not a universal feature of the Vienna School as is evident in the attempt by Fritz Schreier (1887–1981) and Felix Kaufmann (1895–1949) to incorporate the philosophical framework of Husserlian phenomenology into the methodology for a theory of law. See, Fritz Schreier, Grundbegriffe und Grundformen des Rechts, (Vienna: Deuticke, 1924); Fritz Schreier, Die Interpretation der Gesellschaften und Rechtsgeschäfte, (Vienna: Deuticke 1927); Felix Kaufmann, Logik und Rechtwissenschaft: Grundriss eines Systems der reinen Rechtslehre, (Tübingen: Mohr, 1922); and Felix Kaufmann, Die Kriterien des Rechts. Eine Untersuchung über die Prinzipien der juristischen Methodenlehre, (Tübingen: Mohr, 1924).

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and Metaphysics of Morals (1797)) which remains within the confines of a metaphysics of natural law.90 The effect of this interpretative stance is to restrict the potential of Kantian philosophy to the Critique of Pure Reason and, in this manner, to return the Kantian project to the parameters prior to the publication of Kant’s later works. Thus, the Kelsenian stance arises from the boundaries of Kantian philosophy created by the first edition of the Critique of Pure Reason,91 and the unrealized potential is to be expressed through a further Kelsenian development of these initial boundaries. The character of this further development is explicated in the concluding section of the “Natural Law Doctrine and Legal Positivism” (1928). Here, Kelsen considers the Critique of Pure Reason to contain a resolutely critical, anti-metaphysical method which dissolves all metaphysical absolutes providing for, but not itself undertaking, the passage to a philosophy of values. The further Kelsenian development consists in the appropriation of the “method of transcendental logic” of the Critique of Pure Reason and its reorientation “to provide the groundwork for a positivist legal and political doctrine”.92 This then becomes the basis for the elaboration of the methodological framework of the Pure Theory of Law (1934). 90

91

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The only indication of a broader Kelsenian position with regard to Kant’s work relates to the discussion of Kant’s theory of the state (which is, again, accorded a transitional position) in the opening pages of Kelsen’s “Die Lehre von den drei Gewalten oder Funktionen des Staates”, Archiv für Rechts- und Wirtschaftsphilosophie, 17, 3 (1924), 374–408. See, for other discussions of the relationship between Kelsen and Kant, Simone GoyardFabre, “L’inspiration kantienne de Hans Kelsen”, Revue de Métaphysique et de Morale, 83, 2 (1978), 204–233; Simone Goyard-Fabre, Kelsen e Kant. Saggi sulla dottrina pura del diritto, (Naples: Edizioni Scientifiche Italiane, 1993); and Luc Vincenti, “Philosophie des normes chez Kant”, Multitudes, 34, 3 (2008), 206–214. The presence and importance of Kant in Kelsenian legal theory becomes less evident in the post-World War ii work, and is explicitly rejected in the posthumous General Theory of Norms (Allgemeine Theorie der Normen) of 1979 (English translation 1990). It should also be emphasized that Kelsen neither acknowledges nor considers Kant’s Critique of Judgment (1790) in this interpretation of Kant’s philosophical project. As Ferrarin emphasizes, to remain within the boundaries of the first edition of the Critique of Pure Reason is to proceed from a radical separation between morality and transcendental philosophy, and “that the critique of pure reason was the one propaedeutic for all cognitions. The legislation over nature and freedom were the two parts of a metaphysical system in the Architectonic. The critique laid the ground for freedom, in which the third antinomy in the Dialectic showed the possibility. This freedom, however, was only negative. The antinomy showed the compatibility of freedom with the mechanism of nature. It was just a matter of dividing appearances and noumena and assigning the former to nature, freedom to the latter, and the antinomies were avoided. But the reality of freedom indispensable for the moral law were not thereby proven”. (Alfredo Ferrarin, The Powers of Pure Reason: Kant and the Idea of Cosmic Philosophy, (Chicago: Chicago University Press, 2015), 261). Kelsen, “Natural Law Doctrine and Legal Positivism”, 445.

Introduction

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The further Kelsenian development of the unrealized potential of the Kantian project, contained solely in the Critique of Pure Reason, leads to the examination of the coherence of this appropriation of certain aspects of the Kantian project.93 The question of coherence is intimately intertwined with the question of the viability of the methodological foundations of the Kelsenian legal science of positive law.94 The rejection of the Kantian work on practical reason entails the detachment of the Kantian reformulation of the notion of natural right, as an a priori moral law, from positive law and, in turn, the transformation of the notion of imputation.95 The detachment and transformation are the counterpart of the Kelsenian methodological distinction between the legal and the physical person in which the legal person is a heuristic device – a point of attribution – for the comprehension of the range of the rights and duties created by a system of positive law.96 The Kelsenian definition of the legal person directs the focus of a legal science of positive law to the determination of specificity of the legal normativity of positive law in which legal norm and sanction share an essential interconnection.97 The system of positive law, through the interconnectedness of norm and sanction, forms a system of external constraint or coercion (Zwangsordnung), which determines the extent of the legal regulation of human action. The Kelsenian delineation of the specific normativity of positive law arises from a methodological position of legal cognition. The transcendental logic, which Kelsen appropriates from Kant’s Critique of Pure Reason, becomes the foundation for this ­methodological position. Thus, the capacity of the Kelsenian project to realize the potential of Kantian philosophy is significantly dependent upon the coherence of its incorporation of forms of transcendental argumentation.98 The difficulties which emerge from the process of incorporation relate to the status and function of Kelsen’s conception of transcendental logic within a legal science of positive law. The question of the status and function of transcendental logic extends, beyond the internal coherence of Kelsenian legal 93 94

95 96 97 98

The question is posed in different forms by Renzikowski and Dimiškovska in Chapters 6 and 7 respectively of this volume. The interconnection between these two questions has been a central, insistent concern in the work of Stanley L. Paulson, see, for example, amongst this significant body of work, Stanley L. Paulson, “On the Puzzle Surrounding Hans Kelsen’s Basic Norm”, Ratio Juris 13, 3, (2000), 279–293; and Stanley L. Paulson, “On Transcendental Arguments, Their Recasting in Terms of Belief, and the Ensuing Transformation of Kelsen’s Pure Theory of Law”, Notre Dame Law Review, 75, 5, (2000), 1775–1795. This is discussed by Renzikowski, concentrating upon Kant’s Metaphysics of Morals, in Chapter 6 of this volume. See, Kelsen, Introduction to the Problems of Legal Theory, 46–53. See Renzikowski in Chapter 6 of this volume. This is the central focus of Dimiškovska in Chapter 7 of this volume.

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science, to encompass the continued methodological demarcation of the boundaries Kelsenian project from natural law.99 3

Kelsen, Neo-Kantianism and Schmitt

The relationship between the German philosophical movement of NeoKantianism and the Kelsenian project has centred almost exclusively upon the Marburg School of Neo-Kantianism and, within the Marburg School, upon the work of Hermann Cohen (1842–1918).100 The absence of consideration of the Neo-Kantianism of the South-West or Baden School101 arises from Kelsen’s direct critique of this School, commencing from his critical

99

This is explored by Dimiškovska in Chapter 7 of this volume. See, also, Stefan Hammer, “A Neo-Kantian Theory of Legal Knowledge in Kelsen’s Pure Theory of Law,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes, Stanley L. Paulson and Bonnie Litschewski-Paulson (eds.), (Oxford: Clarendon Press, 1998), 177–194; and Gerhard Luf, “On the Transcendental Import of Kelsen’s Basic Norm,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes, Stanley L. Paulson and Bonnie Litschewski-Paulson (eds.), (Oxford: Clarendon Press, 1998), 221–234. 100 See, for example, Agostino Carrino, Das Recht zwischen Reinheit und Realität: Hermann Cohen und die philosophischen Grundlagen der Rechtslehre Kelsens, (Baden-Baden: Nomos, 2011); Geert Edel, “The Hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen”, in Stanley L. Paulson and Bonnie Litschewski Paulson (eds.), Normativity and Norms: Critical Perspectives on Kelsenian Themes, (Oxford: Oxford University Press, 1998), 195–219; Helmut Holzhey, “Die Transformation neukantianischer Théorème in die Reine Rechtslehre Kelsens”, in Michael W. Fischer et al. (eds.), Hermeneutik und Strukturtheorie des Rechts, (Stuttgart: Franz Steiner, 1984), pp. 99–110 and Helmut Holzhey, “Kelsens Rechts-und Staatslehre in ihrem Verhältnis zum Neukantianismus”, in Stanley L. Paulson and Robert Walter (eds.), Untersuchungen zur Reinen Rechtslehre. Ergebnisse eines Wiener Rechtstheoretischen Seminars 1985, (Vienna: Manz, 1986), 167–192. The work of Stanley L. Paulson represents a singular exception to this predominant approach in its increasing reference to, and discussion of, the pertinence of interpretative reference to the SouthWest School. See, for example, Stanley L. Paulson, “A ‘justified normativity’ thesis in Hans Kelsen’s Pure Theory of Law?: Rejoinders to Robert Alexy and Joseph Raz” in Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy, (Oxford: Oxford University Press, 2012), 61–111. 101 The central figures of this School are Emil Lask (1875–1915); Heinrich Rickert (1863–1936) and Wilhelm Windelband (1848–1915). On the differences between the Marburg and Baden Schools of Neo-Kantianism, see Christian Krijnen, and Andrzej Noras, (eds.), Marburg versus Südwestdeutschland: philosophische Differenzen zwischen den beiden Hauptschulen des Neukantianismus, (Würzburg: Königshausen & Neumann, 2012); and Christian Krijnen, and Marc de Launey, (eds.), Der Begriff der Geschichte im Marburger und südwestdeutschen Neukantianismus, (Würzburg: Königshausen & Neumann, 2013).

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review of Hermann Kantorowicz’s, “Rechtswissenschaft und Soziologie”,102 in 1912. The critique is further developed and extended in the 1916 essay, “Rechts oder Kulturwissenschaft”,103 in which the South-West School and, in particular, Heinrich Rickert (1863–1936), is held to be unable to provide the necessary methodological prerequisites for the elaboration of a methodologically ­rigorous legal science of positive law. The interpretative question which arises is whether this Kelsenian position in regard to the South-West School should preclude further consideration of their relationship. The question encompasses both the methodological construction of a Kelsenian legal science of positive law and the turn, albeit fragmentary, within the South-West School to the specific thematization of ­morality, ethics and law.104 The reconsideration of the Kelsenian position requires a return to the fundamental tenets of the philosophical project of the South-West School105 and, from this renewed understanding, to an interrogation of the methodological prerequisites of a legal science of positive law.106 The reconsideration centres upon the status of the Kelsenian basic norm (Grundnorm) and its relationship to legal cognition. For the Kelsenian project, as a legal science of positive law, seeks to establish an objective foundation, beyond the particular norms of a legal system, for the comprehension of positive law. The basic norm, which is situated in a middle position between a sociology of law (designated by Kelsen as the absence of foundation of a form of empiricism) and natural law (designated by Kelsen as an absolute foundation of a form of metaphysics),107 occupies an analogous position to the 102 Hermann Kantorowicz, Rechtswissenschaft und Soziologie, (Tübingen: Mohr, 1911). The text was originally an address to the German Sociological Association Meeting of 1910 at the invitation of the President of the Association, Max Weber, and published in the collected proceedings of the Association’s 1910 Meeting. The critique is contained Hans Kelsen, “Zur Soziologie des Rechtes. Kritische Betrachtungen”, Archiv für Sozialwissenschaften und Sozialpolitik, 39, (1912), 601–614. 103 Hans Kelsen, “Rechts oder Kulturwissenschaft. Eine methodenkritische Untersuchung”, Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich, 40 (1916), 1181–1239. 104 This is the central concern of Krijnen in Chapter 8 of this volume. 105 See, for recent work on the philosophical project of the South-West School, Anna Donise, Antonello Giugliano, and Eduardo Massimilla (eds.), Methodologie, Erkenntnistheorie, Wertphilosophie: Heinrich Rickert und seine Zeit. Studien und Materialien zum Neukantianismus, (Würzburg: Königshausen & Neumann, 2016); and Thomasz Kubalica, Wahrheit, Geltung und Wert. Die Wahrheitstheorie der Badischen Schule des Neukantianismus, (Würzburg: Königshausen & Neumann, 2011). 106 This is the overarching orientation of Krijnen in Chapter 8 of this volume. 107 See, for example, Hans Kelsen, Introduction to the Problems of Legal Theory (Reine Rechtslehre), 1934, 13–14; 15–18.

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broader philosophical project, exemplified by Heinrich Rickert, of the SouthWest School.108 The analogy also contains the basis for the South-West School’s potential critique of the apparently insufficient methodological objectivity of Kelsen’s basic norm and, as its necessary corollary, its essentially subjective, dogmatic character.109 The demonstration of the potential methodological insufficiency of a legal science of positive law, through this return to the Neo-Kantianism of the South-West School, also enables the analysis to extend to the School’s reflection upon morality, ethics and law. The extension of the philosophical project of the South-West School to these domains emphasizes an objective foundation which combines rather than separates a formal and material content. Hence, the South-West School, despite the absence, apart from Lask’s Rechtsphilosophie (1905),110 of sustained reflection upon law, indicates a non-metaphysical, transcendental foundation for positive law which contains a material criterion for its evaluation.111 This material element, as an intrinsic aspect of the transcendental foundation, opens the question of a non-metaphysical conception of natural law within the South-West School. The evaluation of the influence of the Marburg School of Neo-Kantianism upon Kelsen, in its almost exclusive focus upon the work of Hermann Cohen, has also resulted in the comparative neglect of the relationship between Kelsen and another member of the Marburg School, Ernst Cassirer (1874–1945). This is despite the explicit acknowledgement, by Kelsen, of the importance of Cassirer’s Substance and Function 1910,112 upon the formulation of certain ­elements

108 For an exemplary analysis of Rickert’s philosophical project, see Christian Krijnen, Nachmetaphysischer Sinn. Eine problemgeschichtliche und systematische Studie zu den Prinzipien der Wertphilosophie Heinrich Rickerts, (Würzburg: Königshausen & Neumann, 2001). The main aspects of the Rickertian philosophical project are contained in Heinrich Rickert, Der Gegenstand der Erkenntnis: Einführung in die Transzendentalphilosophie 2nd Edition, (Tübingen: Mohr, 1904); Heinrich Rickert, Die Grenzen der naturwissenschaftlichen Begriffsbildung: Eine logische Einleitung in die historischen Wissenschaften, 2nd Edition, (Tübingen: Mohr, 1913); and Heinrich Rickert, Kulturwissenschaft und Naturwissenschaft, 3rd Edition, (Tübingen: Mohr, 1915). 109 As emphasized by Krijnen in Chapter 8 of this volume. 110 Emil Lask, Rechtsphilosophie, (Heidelberg: C. Winter, 1905). 111 Krijnen’s analysis, in Chapter 8 of this volume, discusses the presence of reflections upon law, in addition to Lask and Rickert, in the work of Bruno Bauch (1877–1942) (Bruno Bauch, ““Das Rechtsproblem in der Kantischen Philosophie”, Zeitschrift für Rechtsphilosophie, 3 (1921), 1–26) and Jonas Cohn (1869–1947) (Jonas Cohn, Wertwissenschaft, (Stuttgart: Frommann, 1932)). 112 Ernst Cassirer, Substance and Function, trans. Williams Collins Swabey and Marie Collins Swabey, (New York: Dover, 1953) (German original 1910).

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of the methodology of a legal science of positive law.113 The relationship between Kelsen and Cassirer becomes more complex once the comparison of their work extends beyond this early period of Cassirer.114 For the further development of Cassirer’s thought – the central importance of a theory of the symbol and of symbolic forms115 – produces a theory of culture, incorporating a theory of the state, democracy and natural rights,116 of which the republican constitution of the Weimar Republic is an inherent expression. The initial affinity between Cassirer and Kelsen in their support of the post-World War i democratic, republican constitutions in Germany and Austria is combined with divergent philosophical and methodological foundations.117 It is in this divergence that the question of natural law and Kelsenian legal positivism emerges. The presence of natural law in Cassirer’s thought can be traced to his early work on Leibniz, Leibniz’ System in seinen wissenschaftlichen Grundlagen (1902),118 in which natural law, in the form of ethics and natural rights, is analysed in Chapter 10.119 These initial reflections are extended in Freiheit und Form 113 See, in particular, Hans Kelsen, “Staat und Recht im Lichte der Erkenntniskritik”, Zeitschrift für öffentliches Recht, 2, (1921), 453–510 (464–467); the concluding remarks contained in the essay “Gott und Staat” of 1922/1923 (Hans Kelsen, “God and State” in Hans Kelsen, Essays in Legal and Moral Philosophy, trans. Peter Heath and selected by Ota Weinberger, (Dordrecht: Reidel, 1973), 61–82 (81–82)), and the 1933 letter to Renato Treves, “The Pure Theory of Law, ‘Labandism’, and Neo-Kantianism. A Letter to Renato Treves”, in Bonnie Litschewski Paulson and Stanley L. Paulson, (eds.) Normativity and Norms: Critical Perspectives on Kelsenian Themes, (Oxford: Oxford University Press, 2007), 169–175 (174). 114 This is the central concern of Favuzzi in Chapter 9 of this volume. 115 The term, “development”, is utilized here to indicate a complex process of differentiation from the initial philosophical framework of Marburg Neo-Kantianism. See, Gregory B. Moynahan, Ernst Cassirer and the Critical Science of Germany, 1899–1919, (London: Anthem Press, 2014). From a biographical perspective, it is also associated with the move to the newly established University of Hamburg and, during the Hamburg period, the effect of the intellectual exchange with Aby Warburg (1866–1929). 116 On these elements of Cassirer’s thought, see Dirk Lüddecke, Staat – Mythos – Politik: Überlegungen zum politischen Denken bei Ernst Cassirer, (Würzburg: Ergon, 2003); Dirk Lüddecke and Felicia Englmann (eds.), Das Staatsverständnis Ernst Cassirers, (Baden-Baden: Nomos, 2015). 117 This critical, comparative analysis informs Favuzzi discussion in Chapter 9 of this volume. 118 Ernst Cassirer, Leibniz’ System in seinen wissenschaftlichen Grundlagen, (Marburg: N.G. Elwert, 1902). 119 Ibid., 425–457. See, Christoph Sebastian Widdau, Cassirers Leibniz und die Begründung der Menschenrechte, (Wiesbaden: Springer, 2016); and Pellegrino Favuzzi, “Der Staat als sittliche Idee. Die Rezeption des Marburger Neukantianismus im politischen Denken Ernst Cassirers am Beispiel von Leibniz’ System in seinen wissenschaftlichen Grundlagen” in Dirk Lüddecke and Felicia Englmann (eds.), Das Staatsverständnis Ernst Cassirers, (Baden-Baden: Nomos, 2015), 47–74.

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(1918) and Natur-und Völkerrecht im Lichte der Geschichte und der systematischen Philosophie (1919),120 and then enhanced, from the 1920s, with the further development of Cassirer’s thought and its wider consideration of natural law within the Enlightenment.121 Within this period, commencing in the 1920s and concluding in 1933, with the advent of the National Socialist regime and Cassirer’s emigration, the affinities and divergences between Cassirer and Kelsen are encapsulated through a comparison of Kelsen’s, “La Garantie juridictionnelle de la constitution (la Justice constitutionnelle)” (1928)122 and Cassirer’s “Die Idee der republikanischen Verfassung” (1928).123 The comparison reveals the shared justification of a republican constitution combined with a significantly different manner in which the justification is elaborated. The Kelsenian approach, as the expression of the methodology of a legal science of positive law, concentrates upon the juridical structure of the constitution. Cassirer, in contrast, situates the constitution of the Weimar Republic as an integral development of the idea of a republican constitution. The respective forced emigration of Kelsen and Cassirer in the early 1930s, and their eventual occupation of academic positions in the United States, extends the purview of their comparative examination.124 The possibility for a continued, enduring relationship arises from the comparison of Cassirer’s final works, The Essay on Man (1944) and the posthumous The Myth of the State (1946) with Kelsen’s essays of the 1940s and 1950s in What is Justice? Justice, Law, and Politics in the Mirror of Science and the posthumous Secular Religion.125 Here, the divergence between Kelsen and Cassirer centres upon the 120 Ernst Cassirer, Freiheit und Form. Studien zur deutschen Geistesgeschichte, (Berlin: Cassirer, 1918); and Ernst Cassirer, Natur-und Völkerrecht im Lichte der Geschichte und der systematischen Philosophie, (Berlin: C.A. Schwetschke & Sohn, 1919). 121 See, for example, Chapter iv of Cassirer’s The Philosophy of the Enlightenment of 1932 (Ernst Cassirer, The Philosophy of the Enlightenment, trans. Fritz C.A. Koelln and James P. Pettegrove, (New Jersey: Princeton University Press, 2009), 234–274); and Ernst Cassirer, “Vom Wessen und Werden des Naturrechts”, Zeitschrift für Rechtsphilosophie in Lehre und Praxis, 6, 2 (1932), 1–27. 122 Hans Kelsen, “La Garantie juridictionnelle de la constitution (la Justice constitutionnelle)”, Revue du droit public, 35, (1928), 197–257. 123 Ernst Cassirer, “Die Idee der republikanischen Verfassung”, Zum Gedenken am Ernst Cassirer (1874–1945). Ansprachen auf der Akademischen Gedenkfeier am 11. Mai 1999. In Hamburger Universitätsreden, Neue Folge, i, 34–51. Hamburg: Dölling und Galitz, 1999. (Original 1928). 124 This is emphasized by Favuzzi in Chapter 9 of this volume. 125 Ernst Cassirer, Essay on Man: An Introduction to the Philosophy of Human Culture, (New Haven: Yale University Press, 1944); Ernst Cassirer, The Myth of the State, (New Haven: Yale University Press, 1946); Hans Kelsen, What is Justice? Justice, Law, and Politics in the Mirror of Science, (Berkley: University of California Press, 1957); Hans Kelsen, Secular Religion: A Polemic against the Misinterpretation of Modern Social Philosophy, Science and Politics as

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object of critique – myth (Cassirer) and justice/political theology (Kelsen) – and the potential affinity arises from the reaffirmation of the project of the Enlightenment in a philosophy of culture (Cassirer) and a secularism based upon a foundation in the methodology of science (Kelsen).126 The potential affinities between Kelsen and Cassirer are in marked contrast to the fundamental opposition between Kelsen and Carl Schmitt (1888–1985). The distinct position of Schmitt develops in continued confrontation with the Kelsenian legal science of positive law and theory of democracy. The confrontational stance derives from Schmitt’s complex relationship to Catholicism in which the antipathy to the Kelsenian project is not the expression of a direct return to the natural law tradition.127 The determination of the foundation of Schmittian juridical and political thought becomes more complex and pro­tracted with Schmitt’s membership of the National Socialist Party128 and the body of work produced between 1933–1944/5.129 This, in turn, introduces the question of the periodization of Schmitt’s work and the degree of continuity between the work of 1933–1944/5 and Schmitt’s pre-1933 and post-World War ii work.130

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128 129

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“New Religions”, Clemens Jabloner, Klaus Zeleny and Gerhard Donhauser (eds.), (Vienna: Springer, 2012). On this aspect of Cassirer’s thought, see Esther O. Pedersen, Die Mythosphilosophie Ernst Cassirers: Zur Bedeutung des Mythos in der Auseinandersetzung mit der Kantischen Erkenntnistheorie und in der Sphäre der modernen Politik, (Würzburg: Königshausen and Neumann, 2009) and Pellegrino Favuzzi, “Der Pathos der Vernuft. Cassirers Philosophie zwichen Demokratie und politischem Mythos”, in Tobias Endres, Pellegrino Favuzzi and Timo Klattenhoff (eds.) Philosophie der Kultur- und Wissensformen: Ernst Cassirer neu lessen, (Frankfurt: Peter Lang, 2016), 183–212. In relation to Kelsen, the position of the posthumous General Theory of Norms, which marks the final period of Kelsen’s work, beyond the earlier Secular Religion, introduces the question of a more fundamental divergence from the final period of Cassirer’s work. On Schmitt’s relationship to Catholicism, see Manfred Dahlheimer, Carl Schmitt und der deutsche Katholizismus 1888–1936, (Paderborn: Schöningh, 1998); Reinhard Merhring, “A “Catholic Layman of German Nationality and Citizenship”? Carl Schmitt and the Religiosity of Life” in Jens Meierhenrich and Oliver Simons (eds.) The Oxford Handbook of Carl Schmitt, (Oxford: Oxford University Press, 2017), 73–95 and Bernd Wacker (ed.) Die ei gentlich katholische Verschärfung. Konfession, Theologie und Politik im Werk Carl Schmitts, (Paderborn: Fink, 1994). Schmitt becomes a member on 1 May 1933. This commences with Schmitt’s Staat, Bewegung, Volk. Die Dreigliederung der politischen Einheit (1933) [English version: Carl Schmitt, State, Movement, People, trans. Simona Draghici, (Washington, DC: Plutarch Press, 2001)] and concludes with the work up to the period of Schmitt’s “Die Lager der europäischen Rechtswissenschaften” (1944) [English version: Carl Schmitt, “The Plight of European Jurisprudence”, Telos, 83, (1990), 35–70]. The secondary literature regarding this question is extensive, and it is beyond the scope of this introduction to engage in its discussion in detail. At present, the main interpretative orientations are those which stress the legal and political orientation of Schmitt (see, for example, Carlo Galli, Genealogia della politica. Carl Schmitt e la crisi del pensiero

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In relation to the complexities of this interpretative background of Schmittian legal and political theory, the Kelsenian project remains a constant presence as the culmination and limit of an inadequate form of legal and ­political theory. The invariance of the attribution of inadequacy is accompanied by different emphases which reflect the development of Schmitt’s theoretical framework.131 The most direct and intensive confrontation is represented by the exchange, in 1931, concerning the question of the ‘guardian of the constitution’ which, encapsulates the juridico-political opposition between Schmitt and Kelsen regarding the interrelationship between the state, constitution and democracy.132 The challenge to another related aspect of the Kelsenian project – the primacy of international law as a theory of legal monism – becomes the focus of Schmitt’s sustained attention in the later 1930s133 and is rearticulated

politico modern, (Bologna: Il Mulino, 2010); Jean-François Kérvegan, Hegel, Carl Schmitt. Le politique entre spéculation et positivité, (Paris: Presses Universitaires de France, 2002); Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts, (Paderborn: Fink, 1980)) and those which stress the orientation of political theology (for example, Jürgen Manemann, Carl Schmitt und die Politische Theologie: Politischer Anti-Monotheismus, (Munster: Aschendorff, 2002); Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters On The Distinction Between Political Theology And Political Philosophy trans. Marcus Brainard and Robert Berman, (Chicago: Chicago University Press, 2011); Tristan Storme, Carl Schmitt et le marcionisme: L’impossibilité théologico-politique d’un oecuménisme judéo-chrétien? (Paris: Cerf, 2008)). 131 For example, the different emphases in the critique of Kelsen in Schmitt’s Political Theology (1922) (Carl Schmitt, Political Theology, trans. George Schwab, (Chicago: Chicago University Press, 2005)), 16ff.; and Constitutional Theory (1928) (Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer, (Durham: Duke University Press, 2008), 63–64; 280.). 132 See, Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, (Cambridge: Cambridge University Press, 2015) for the English translation of the main texts of the debate. For further commentary and analysis of this exchange, see Olivier Beaud and Pasquale Pasquino (eds.) La controverse sur “le gardien de la Constitution” et la justice constitutionnelle: Kelsen contre Schmitt, (Paris: Editions Panthéon Assas, 2007) and Stanley L. Paulson, “Hans Kelsen and Carl Schmitt: Growing ­Discord, Culminating in the “Guardian” Controversy of 1931” in Jens Meierhenrich and Oliver Simons (eds.) The Oxford Handbook of Carl Schmitt, (Oxford: Oxford University Press, 2017), 510–546. 133 The English version of the major texts on international law of the 1930s are collected in Carl Schmitt, Writings on War, trans. and ed. Timothy Nunan, (Cambridge: Polity Press, 2011). This is not to ignore Schmitt’s work on international law, during the 1920s, collected in Carl Schmitt, Positionen und Begriffe, im Kampf mit Weimar – Genf – Versailles 1923–1939, (Berlin: Duncker & Humblot, 2014), and thereby create the impression of a strict separation between a national focus of the 1920s and the international focus of the 1930s, but, rather, to emphasize the greater comparative development in Schmitt’s conceptualization of international law in the 1930s.

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in Schmitt’s Nomos of the Earth in the International Law of Jus Publicum Europaeum (1950).134 The Schmittian position centres upon a critique of “the foundational preferences of modern political rationalism and of liberalism”135 and this mode of thought distinguishes it from a theory of both classical and modern natural law. The Schmittian critique represents a distinctive attempt to articulate a theory of social order, according central importance to juridical concepts, in relation to a conception of historical and social development permeated by violence and disorder. The articulation of a theory of social order is shaped by a combination of the recognition of the inherent fragility of every social order and the continued rethinking of juridical forms of social order. Within the Schmittian theoretical framework, the Kelsenian project becomes the impossible attempt to neutralize violence and disorder through a legal science of positive law and a theory of democracy. The Kelsenian methodological procedure of rendering law an autonomous domain, in which the authority of positive law is entirely derived from law itself, represents the failure to establish a form of absolute authority and obligation: a juridical form of social order. The methodological foundations of the Kelsenian project, with the presuppositions of a basic norm (Grundnorm) and the dynamic hierarchy of the system of positive law (Stufenbaulehre), obscure the complex origin of social order and constrain the comprehension of juridical forms of social order. The challenge of the Schmittian position136 and the character of the Kelsenian response137 open the question of the continued pertinence of their ­respective positions. The recourse to Schmitt involves an interpretative practice which, beyond the confrontation with the work of the period of National Socialism, focuses upon the sources of the Schmittian theoretical framework. The focus requires, in turn, a process of selection of these sources and a ­determination of their degree of influence. The selection and determination 134 Carl Schmitt, Nomos of the Earth in the International Law of Jus Publicum Europeaum, (Telos Press, 2003) (German original 1950). Schmitt’s Land and Sea of 1942 (Carl Schmitt, Land and Sea, trans. Samuel Garrett Zeitlin, (New York: Telos Press, 2015)) represents the transitional work between these two periods. For a comprehensive analysis of this aspect of the confrontation between Kelsen and Schmitt, see Emmanuel Pasquier, De Genève à Nuremberg: Carl Schmitt, Hans Kelsen et le Droit International, (Paris: Garnier, 2012). 135 Carlo Galli, Janus’s Gaze: Essays on Carl Schmitt, trans. Amanda Minervi, (Durham: Duke University Press, 2015), 26. See, also, Carlo Galli, “Carl Schmitt’s Anti-Liberalism: Its Theoretical and Historical Sources, and its Philosophical and Political Meaning”, Cardozo Law Review, 21, 5–6, (2000), 1597–1617. 136 See Croce’s analysis in Chapter 11 of this volume. 137 See Donhauser’s critical discussion in Chapter 10 of this volume.

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of influence is also accompanied by a reflection upon Schmitt’s contemporary relevance.138 The Preface to the second edition of Political Theology: Four Chapters in the Concept of Sovereignty (1934),139 furnishes an interpretative position derived from Schmitt’s explication of the modification of the original opposition, adopted in the first edition, between two types of legal theory: positivism/normativism and decisionism. The text of the first edition is not modified to reflect this transformation of Schmitt’s position, but designates it as the prelude to the addition of a third type of legal theory, institutionalism, derived from the work of the French legal theorist, Maurice Harriou (1856–1929), which Schmitt regards as guiding the formulation of both State, Movement, People (1933) and On the Three Types of Juristic Thought (1934).140 The explicit reference to, and incorporation of institutionalism, prompts reflection upon the place of institutionalism within Schmitt’s legal theory and whether it denotes a distinct period in Schmitt’s work.141 The institutionalist elements of Schmitt’s thought raise the further question of the extent to which they furnish the possibility to think with Schmitt beyond Schmitt. This interpretative possibility requires that these institutionalist elements are able to overcome the parameters of the overtly National Socialist orientation of these texts in order to maintain their critical pertinence in relation to Kelsenian legal positivism.142 138 This is one of the central concerns of Croce in Chapter 11 of this volume. See, for contrasting approaches, Ernst-Wolfgang Böckenförde, “Carl Schmitt Revisited”, Telos, 109, (1996), 81–86; Jürgen Habermas, “‘The Political’: The Rational Meaning of a Questionable Inheritance of Political Theology”, in Jürgen Habermas, Post-Metaphysical Thinking ii, trans. ­Ciaran Cronin, (Cambridge: Polity Press, 2017), 163–174; and Yves-Charles Zarka, “Présentation générale Carl Schmitt, après le nazisme”, Cités, 17, 1 (2004), 145–148. See also, Matilda Arvidsson, Leila Brännström amd Panu Minkkinen (eds.), The Contemporary Relevance of Carl Schmitt: Law, Politics, Theology, (London: Routledge, 2017). 139 Carl Schmitt, “Preface to the Second Edition”, in Carl Schmitt, Political Theology, 1–4. 140 Carl Schmitt, State, Movement, People., trans. Simona Draghici, (Washington, DC: ­Plutarch Press, 2001); Carl Schmitt. On Three Types of Juristic Thought, trans. Joseph Bendersky, (Westport: Praeger, 2004). 141 The distinctiveness of the institutionalist position is an integral part of Croce’s analysis in Chapter 10 of this volume. For constrasting positions, which stress the continuity in Schmitt’s work, see Emanuele Castrucci, “Mechanik der Entscheidung. Rechtsverwirklichung und Entscheidungsrichtigkeit durch Rechtspraxis in Carl Schmitts Gesetz und Urteil (1912)”, Carl Schmitt Studies, 1, (1), (2017), 10–25; and Jens Meierhenrich, “Fearing the Disorder of Things: The Development of Carl Schmitt’s Institutional Theory, 1919–1942”, in Jens Meierhenrich and Oliver Simons (eds.) The Oxford Handbook of Carl Schmitt, (Oxford: Oxford University Press, 2017), 171–216. 142 This is the interpretative position adopted by Croce in Chapter 11 of this volume, which extends the analysis in Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt, (London: Routledge, 2013).

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The discussion of the Kelsenian response to Schmitt has centred primarily upon the period up to the advent of the German National Socialist regime in 1933.143 The posthumous publication, in 2012, of Kelsen’s Secular Religion: A Polemic against the Misinterpretation of Modern Social Philosophy, Science and Politics as “New Religions”144 reveals the continued response to Schmitt in the final period of Kelsen’s work.145 The Kelsenian response marks a return to Schmitt’s Political Theology (1922) as the exemplification of Schmitt’s thought as a political theology.146 For Kelsen, Schmittian political theology, through its conception of sovereignty, represents an instance of secular religion: the impossible fusion of the secular and the religious. The fundamental contradiction arises from the Schmittian misinterpretation of the concept of sovereignty in Bodin and Hobbes which forces their formulations to provide this purported fusion.147 The cogency of the Kelsenian critique, beyond the Schmittian misappropriation of Bodin and Hobbes, depends upon the enduring pertinence of the separation of the realms of the secular and the religious established in Secular Religion. 4

Kelsen, Democracy and the Natural Law Renaissance

The challenge presented by Carl Schmitt to Kelsenian legal and political theory has the tendency to obscure the internal diversity of the Vienna School which formed around Kelsen in 1920s.148 This is particularly evident in the 143 See, for example, Sandrine Baume, “On political theology: A controversy between Hans Kelsen and Carl Schmitt”, History of European Ideas, 35, 9, (2009), 369–381, who traces the origin of the Kelsenian response to Schmitt to Kelsen’s essay, ‘God and State’ (Gott und Staat) of 1922/23. 144 Hans Kelsen, Secular Religion: A Polemic against the Misinterpretation of Modern Social Philosophy, Science and Politics as “New Religions”, Clemens Jabloner, Klaus Zeleny and Gerhard Donhauser (eds.), (Vienna: Springer, 2012). 145 This text forms a central focus of Donhauser’s analysis in Chapter 10 of this volume. For contrasting evaluations of this text, see Massimo Leone, “Hans Kelsen: Secular Religion”, International Journal for the Semiotics of Law, 26, 1, (2013), 241–245; Andityas Soares de Moura Costa Matos, “Notes on a Political Atheology: A Reading of Hans Kelsen’s Secular Religion”, Archiv für Rechts-und Sozialphilosphie, 99, 2, (2013), 201–211; and Bert van Roermund, “Kelsen, Secular Religion, and the Problem of Transcendence”, Netherlands Journal of Legal Philosophy, 44, 2, (2015), 100–115. 146 Kelsen’s text contains no reference to Schmitt’s post-World War ii work. 147 This is a central aspect of the analysis of Donhauser in Chapter 10 of this volume. 148 The main figures of the Vienna School were Felix Kaufmann (1895–1949); Josef L. Kunz (1890–1970); Fritz Sander (1889–1939) (although he has broken with the School by the mid-1920s); Fritz Schreier (1887–1981) and Alfred Vedross-Drossberg (1890–1980). The

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development of the legal theory of Alfred Verdross, whose work represents a form of natural law within the Vienna School; and whose theoretical and academic trajectory is in marked contrast to that of Kelsen.149 The importance of Verdross, within the Vienna School, relates to his theory of the primacy of international law,150 in contrast to the prevailing German pre-World War i and Weimar legal theory with its emphasis upon the primacy of the state.151 The purported Verdrossian demonstration of the primacy of international law involves the incorporation of the Catholic Salamanca School of natural law, as developed by the two leading figures of Francisco de Vitoria (1483–1545) and Francisco Suárez (1548–1617). The central focus of Verdross is upon the Salamanca School’s reconception of the Roman Law notion of ius gentium – law of nations – as a form of law which is both prior to and irreducible to an origin in state sovereignty. The autonomous existence of ius gentium is simultaneously the expression of its ethical character as a form of law which regulates the legal relationship between states.152 The incorporation is guided by a methodological framework which has recourse to elements of the social science of Othmar Spann’s Gesellschaftslehre153 and, thus, in Verdross’s work of the 1920s, a theory of natural law within the boundaries of a social science is established.154

149 150

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152 153 154

School was effectively dissolved with Kelsen’s move to the University of Cologne in 1930 and then to the Graduate Institute of International Studies, Geneva, Switzerland in 1934 (after his dismissal under newly enacted National Socialist racial laws), prior to permanent emigration to the usa in 1940. This is one of the central emphases of Feichtinger and Fillafer in Chapter 12 of this volume. The theory is developed in Alfred Verdross, Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, (Tübingen: Mohr,1923); Alfred Verdross, “Die gesellschaflswissenschaftlichen Grundlagen der Volkerrechtstheorie”, Archiv fur Rechts- und Wirtschaftsphilosophie, Vol. xviii (1924/25) 413–431 and Verdross, Die Verfassung der Volkerrechtsgemeinschaft, (Vienna/Berlin: Springer, 1926). For the wider relationship between Verdross and the Vienna School, see Herbert Schambeck, “Alfred Verdross als Rechtsphilosoph und die Wiener rechtstheoretische Schule”, in Margit Karollus et al. (eds.) Die Welt im Spannungsfeld zwischen Regionalisierung und Globalisierung. Festschrift für Heribert Franz Köck, (Vienna: Linde, 2009), 527–543. This represents, together with Verdoss’s more conventional Catholicism, the significant difference between Schmitt and Verdross during 1920s, see the critique of Verdross in Schmitt’s Constitutional Theory (Verfassungslehre) of 1928 (Carl Schmitt, Constitutional Theory, trans. and ed. Jeffrey Seitzer, (Durham/London: Duke University Press, 2008), 119–120; 122–123). On the Law of Nations in Vitoria and Suárez, see Jean-Paul Coujou, “The Law Of Nations And The Juridical Evolution Of Humanity In Vitoria And Suárez”, Ave Maria Journal of International Law, 2, 2, (2013), 139–175. Othmar Spann, Gesellschaftslehre, 2nd revised Edition, (Leipzig: Quelle & Meyer 1923). The central importance of Spann in the work of Verdross is emphasized by Carty, see Anthony Carty, “Alfred Verdross and Othmar Spann: German Romantic Nationalism,

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The combination of natural law and social science in Verdross’s thought is prompted by the collapse of the Austrian and Prussian monarchies, the emergence of the new democracies in the First Austrian Republic and the Weimar Republic, the emergence of the newly independent states of the former Habsburg Empire and the status of German speaking minorities. This elaboration of a systematic legal theory, seeks to reconceive the post-World War i situation through a juridical theory of unity (Einheit) which recognises the state and international law as part of an international community. The notion of community, in its return to the Salamanca School guided by Spann’s work, is one which contains the theologico-moral ground of human coexistence and is afforded further juridical expression in a hierarchical reordering of state and international law. The orientation of Verdross, within the Vienna School, places into question the methodological strictures of the Kelsenian legal science of positive law. The significant methodological differences between Verdross and Kelsen are heightened with the subsequent collapse of the Austrian First Republic and its replacement by the Dollfuss–Schuschnigg dictatorship (1933–1938)155 prior to the National Socialist Anschluss in 1938. For, in contrast to Kelsen’s departure from Vienna,156 Verdross remained at the University of Vienna during this period.157 This, in turn, prompts the question of Vedross’s degree of adherence to, and theoretical affinity with, both the Dollfuss–Schuschnigg regime and National Socialism; and of the extent to which there is continuity between ­ ational Socialism and International Law”, European Journal of International Law, 6, 1, N (1995), 78–97. Here, the central text is Verdross “Die gesellschaflswissenschaftlichen Grundlagen der Volkerrechtstheorie”. On Spann, see Giovanni Franchi (ed.) Othmar Spann: La Scienza Dell’intero, (Rome: Edizioni Nuova Cultura, 2012); John Haag, “The Spann Circle and the Jewish Question”, The Leo Baeck Institute Year Book, Volume 18, Issue 1, 1 (1973), 93–126; John Haag, “Othmar Spann and the Quest for a “True State””, Austrian History Yearbook, 12, 1, (1976), 227–250 and Johann Hans Pichler, (ed.) Othmar Spann oder die Welt als Ganzes (Vienna: Bölau, 1988). 155 On the Dollfuss–Schuschnigg dictatorship, see Florian Wenninger and Lucille Dreidemy, Das Dollfuss/Schuschnigg Regime 1933–1938: Vermessung eines Forschungsfeldes, ed. Florian Wenninger and Lucille Dreidemy, (Vienna: Böhlau, 2013). 156 The departure was prompted by the constitutional reform of 1929 which abolished the previous Constitutional Court and the selection of its personnel by Parliament and replaced it with direct appointment by the Government. Kelsen, in addition to his position at the University of Vienna, was a judge of the previous Constitutional Court, from its inception in 1920, and was dismissed in 1929. Kelsen comprehended this institutional change as a prelude to the eventual Dollfuss–Schuschnigg dictatorship, and left the University of Vienna for a position, in Germany, at the University of Cologne in 1929/1930. 157 His period of tenure was only interrupted, after the Anschluss, with a ban for a short period. After which Verdross was allowed to return to teach at the University of Vienna, but prohibited from teaching certain subjects.

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the work of the 1920s and the work of the 1930s and 1940s.158 The marked return to theories of natural law in the post-World War ii Austrian Republic, and Verdross’s prominent position of in the academic life of the Second Austrian Republic, raises the further question of an instrumental return to theories of natural law.159 The return enables a restoration of authority which displaces the origin of the collapse of the First Austrian Republic to the interconnection between secular, value-free legal positivism and the external phenomenon of German National Socialist totalitarianism.160 The resurgence of natural law in the immediate post-World War ii situation in Austria is an aspect of a wider transformation to which Kelsen responds in “The Foundations of Democracy” (1955).161 In the section of the article entitled, “Religion and Democracy”, Kelsen engages in a critical analysis of the emergence of a theory of natural law as a political theology of democracy exemplified in the work of Jacques Maritain’s Christianity and Democracy (1943) and Reinhold Niebuhr’s The Children of Light and the Children of Darkness: A Vindication of Democracy and a Critique of Its Traditional Defense (1944) and Emil Brunner’s Justice and the Social Order (1945).162 The central, common elements of this theory of natural law propound an essential connection between an absolute theological foundation and its expression in the political system of democracy. 158 See Carty, for whom, the continuity arises from three aspects of Verdross’s theory of the 1920s: “[t]he individual man exists only as a member of a people; the goal of a peaceful international order is to ensure that each people is able to build its own State; and it is the State and the international legal order’s function to serve the well-being of peoples, and not vice versa” (Carty, “Alfred Verdross and Othmar Spann”, 80–81). 159 This is a central focus of Fillafer and Feichtinger in Chapter 12 of this volume. For a contemporaneous overview of this phenomenon, see Thomas Würtenberger, “Zur Geschichte Der Rechtsphilosophie Und Des Naturrechts: Deutschsprachige Beiträge seit 1948”, Archiv für Rechts- und Sozialphilosophie, 41, 1 (1954), 58–87. See, also Lena Foljanty, Recht oder Gesetz. Juristische Identität und Autorität in den Naturrechtsdebatten der Nachkriegszeit, (Tübingen: Mohr Siebeck, 2013). 160 As emphasized by Feichtinger and Fillafer in Chapter 12 of this volume. 161 Hans Kelsen, “The Foundations of Democracy”, Ethics, 66, 1, (1955), 1–101. 162 Jacques Maritain, Christianity and Democracy, (London: Geoffrey Bles, 1945) (French origi­ nal 1943); Reinhold Niebuhr, The Children of Light and the Children of Darkness: A Vindication of Democracy and a Critique of Its Traditional Defense, (New York: Charles Scribner’s Sons, 1944); Emil Brunner, Justice and the Social Order, trans. Mary Hottinger (London and Redhill: Lutterworth, 1945) (German original 1943). Brunner’s position within post-World War ii Protestantism represents a minority one, as a result of the pre-World War ii debate between Karl Barth and Emil Brunner in which Barth rejects all recourse to forms of natural theology and natural law. See, Karl Barth and Emil Brunner, Natural Theology, (London: Geoffrey Bles, 1946) (German original 1934).

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Kelsen confronts a new form of natural law which, in its designation of democracy as the best political system, rejects the methodological presuppositions of the Kelsenian legal science of positive law and theory of democracy.163 The rejection derives from the Kelsenian insistence upon commencing from a social reality composed of “different and contradictory social values” – the methodological detachment from absolute value – which is then investigated in relation to the “appropriate means for their realization”.164 For this form of natural law, the merely “conditional justification of democracy”,165 which is the consequence of the initial methodological detachment, is the fundamental deficiency and irresponsibility of the Kelsenian position. The Kelsenian response consists of a combination of a critique of these theories and a reaffirmation of the veracity of the Kelsenian theoretical framework.166 The critique, centred upon the passage from the absolute theological foundation to the political system of democracy, reveals the difficulties of each thinker in sustaining “an essential connection between democracy and Christian religion”.167 The difficulties indicate that this theory of natural law, through its incapacity to demonstrate this absolute foundation for democracy, remains within the limits of a justification of democracy “as a relative value”.168 The theologico-political terminology of Brunner in Justice and the Social Order – the division of political systems into good and evil – is the counterpart of the designation of the methodology of legal positivism as morally deficient.169 The Kelsenian critique assumes an immanent form, analogous to his work of the 1920s, indicating an incoherence in Brunner’s theoretical framework. The incoherence arises with Brunner’s acknowledgement of both an absolute and a relative justice and, in Kelsen’s demonstration of the inability to place

163 As demonstrated by Lagi, in Chapter 13 in this volume. 164 Hans Kelsen, “The Foundations of Democracy”, 40. 165 Ibid. 166 See Lagi, in Chapter 13, in this volume. It should also be noted that this Kelsenian response occurs in the changed circumstances of an academic position in the usa of the 1940s and 1950s whose main features are indicated by Carlos Miguel Herrera, “Science et Politique chez Hans Kelsen” in Olivier Jouanjan, (ed.) Hans Kelsen. Forme du droit et politique de l’autonomie, (Paris: Presses Universitaires de France, 2010), 99–133 (104–105). 167 Kelsen, “The Foundations of Democracy”, 41. 168 Ibid. 169 Although Kelsen considers Brunner to exemplify this new form of natural law, Brunner’s position within post-World War ii Protestantism becomes a minority one in relation to the earlier pre-World War ii debate between Karl Barth and Emil Brunner, in which Barth rejects all recourse to forms of natural theology and natural law. See Karl Barth and Emil Brunner, Natural Theology, (London: Geoffrey Bles, 1946) (German original 1934).

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these two notions of justice within a unified structure.170 For Kelsen, the absence of this unified structure creates, in place of an absolute foundation, an underlying ambivalence towards the political system of democracy. The ambivalence which Kelsen reveals in Brunner is also evident in Niebuhr’s The Children of Light and the Children of Darkness: A Vindication of Democracy and a Critique of Its Traditional Defense.171 The Niebuhrian position is distinguished from that of Brunner in its recognition of the “limitations of human nature” and its consequent weakening of the presence of an absolute notion of justice.172 In this recognition, for Kelsen, there is the repetition of the same difficulty of maintaining a coherent relationship between an absolute and a relative notion of justice. The presence and status of the political system of democracy – the connection between Niebuhrian natural law and a concrete political system – is then subject to a perpetual uncertainty in regard to its absolute foundation. The uncertainty is reinforced, for Kelsen, through the Niebuhrian definition of democracy as a political system of free expression. For free expression opens the possibility of placing into question the relationship between democracy and its absolute foundation: the relativization of the foundation of democracy.173 The incoherent relationship between an absolute and a relative foundation manifests itself in Maritain’s Christianity and Democracy174 in the moral principles which constitute the “evangelical law”175 for democracy. The particular form of connection between absolute and relative foundation arises from an absolute foundation in the Gospel whose effect upon the human conscience creates the democratic principles to be expressed in the political system of democracy. Maritain’s attempt to derive democratic principles from the Gospel 170 See Lagi, in Chapter 13 in this volume. 171 For an extended critical analysis of Kelsen’s critique of Niebuhr, see Daniel F. Rice, “Kelsen and Niebuhr on Democracy” in D.A. Jeremy Telman (ed.) Hans Kelsen in America – Selective Affinities and the Mysteries of Academic Influence, (Dordrecht: Springer, 2016), 135–160. 172 Kelsen, “The Foundations of Democracy”, 55. 173 Ibid., 56ff. For Kelsen, the capacity of the Niebuhrian definition of democracy to engage in this process of free expression is the corollary of the essentially historical existence of theories of natural law and their principles of justice. 174 Maritain’s reply to Kelsen – without citing the 1955 essay directly – is contained in opening pages of Truth and Human Fellowship, (New Jersey: Princeton University Press, 1957). For further discussion of Maritain and Kelsen, see Roberto Gatti, “Dare un’anima alla democrazia: legge naturale e diritto dell’uomo. Kelsen e Maritain”, Studium, 93, 5 (1997), 663–697; Miguel Vatter, “Politico-Theological Foundations of Universal Human Rights: The Case of Maritain”, Social Research: An International Quarterly, Volume 80, Number 1, (2013), 233–260 and Francesco Viola, “Jacques Maritain et les problems épistémologiques actuels de la science juridique”, Nova et Vera, 1978, 4, 279–290. 175 The term is that of Maritain.

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is held, by Kelsen, to founder upon its uncertain relationship to political authority. The specific democratic principles – equality, dignity and opposition to slavery – which Maritain derives from the Gospels are without a determinate democratic content.176 For Kelsen, this reveals the inability of these principles to effect the passage between an absolute foundation and the political system of democracy. The Kelsenian critique of the new form of natural law, in its demonstration of incoherence in the variants of a political theology of democracy, reaffirms the political system of democracy as “a social order established by man for man and [in which the] legal order is [one of] positive law”.177 The insistence is upon a theory of democracy as a juridical order, detached from “metaphysics or religion”178 which opens rather than closes a space of responsible political action.179 The “Foundations of Democracy” contains a footnote response180 to Leo Strauss’s own critical footnote in Natural Right and History181 in which Kelsen contests the Straussian attribution of an essentially instrumental relationship to power, based upon Kelsen’s unchanged position towards natural right. The Straussian critique also presumes that Kelsen’s General Theory of Law and State (1948) is a translation of Kelsen’s Allgemeine Staatslehre (1925) and that the translation omits a passage exemplifying this essentially instrumental position. The critique contains the insinuation of an attempted dissimulation, by translation, of an unaltered Kelsenian position. The Kelsenian response, refuses the status of a translation to the General Theory of Law and State, and asserts that the purportedly omitted passage from the Allgemeine Staatslehre merely represents a “particular application”182 of the more general Kelsenian position of a necessary methodological separation between politics and law. The separation enables the comprehension of the state as a legal order of which democracy and autocracy become two particular forms differentiated by the structure of their legal systems: the manner in which law is created and applied.

176 177 178 179

Kelsen, “Foundations of Democracy”, 65ff. Ibid., 45. Ibid., 40. As emphasized by Lagi in Chapter 13 of this volume. For Kelsen, “[i]t leaves the decision about the social value to be realized to the individual acting in political reality. It does not and cannot take the burden of this grave responsibility off his shoulders” (Kelsen, “Foundations of Democracy”, 40). 180 Kelsen, “Foundations of Democracy”, 100–101, fn.13. 181 See, Leo Strauss, Natural Right and History, (Chicago: Chicago University Press, 1953), 4, fn.2. 182 Kelsen, “Foundations of Democracy”, 101, fn.13.

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This apparently minor exchange, in which their respective positions are asserted (Strauss) and reasserted (Kelsen), suggests a Straussian classification of Kelsen as a mere example utilized to illustrate the opening stance in Natural Right and History, as a critique of the nihilistic logic of the methodology of a value-free social science. The Straussian relationship to Kelsen becomes more central once Natural Right and History is considered as part of an extended developmental trajectory commencing from the effect upon Strauss of Kelsen’s 1928 essay on natural law.183 The encounter with Kelsen’s essay coincides with period, in 1930s,184 in which Strauss focuses upon the work of Hobbes, an extension of his earlier work on Spinoza,185 and proceeds from the question of biblical criticism and extends to the further question of natural right. The extended Straussian reflection upon Hobbesian natural right becomes the basis for the critical response to Kelsen’s essay as the exemplary positivist challenge to the continued possibility of a conception of natural right. Strauss’s engagement with Hobbes included a Foreword, which Strauss himself never intended to publish,186 consisting of an extensive critique of Kelsen’s essay as the prelude to the presentation of the Hobbesian theory of natural right.187 The underlying ambivalence within this Straussian critique of Kelsen188 – the reflection of the presence of the question of natural right within a wider question of the relationship between reason and revelation189 – is reconceived in Strauss’s 1935 book on Philosophy and Law.190 In the Straussian interpretation of Averroes (1126–1198), Gersonides (1288–1344) and Maimonides (1135–1204), primacy is accorded to law by these philosophers in their ­conceptualization of the relationship between reason and revelation. Thus, the Kelsenian critique of natural law, centred upon the incapacity of natural law to conceive of a notion

183 This is the starting point for Gostmann’s analyses in Chapter 14 of this volume. 184 On this period in Strauss’s thought, see Martin D. Yaffe and Richard S. Ruderman (eds.), Reorientation: Leo Strauss in the 1930s, (Basingstoke: Palgrave Macmillan, 2014). 185 Leo Strauss, Spinoza’s Critique of Religion, (Chicago: Chicago University Press, 1997) (German original 1930). 186 For further discussion see Gostmann in Chapter 14 of this volume. 187 See, Leo Strauss, “Foreword to a Planned Book on Hobbes (1931)” in Leo Strauss, Hobbes’s Critique of Religion and Related Writings, trans. and edited by Gabriel Bartlett and Svetozar Minkov, (Chicago: Chicago University Press, 2011), 137–150. 188 As emphasized by Gostmann in Chapter 14 of this volume. 189 On this relationship between reason and revelation as a question of political theology, see Heinrich Meier, Leo Strauss and the Theologico-Political Problem, (Cambridge: Cambridge University Press, 2006). 190 Leo Strauss, Philosophy and Law: Contributions to the Understanding of Maimonides and his Predecessors, trans. Eve Adler (State University of New York Press, 1995).

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of positive law, receives a Straussian response in the interconnection between natural and positive law, through the figure of a prophet.191 The prophet, as the figure of transition from divine to human, reveals natural law. The revelation requires the medium of human, positive law as the revelation, as divine truth, is intended for dissemination. The process of dissemination renders the prophet more than simply a religious or theological figure. For dissemination, as law, entails both the creation and application of positive law and the confrontation with existing systems of political rule and law. Hence, the position of a prophet is philosophical: animated and orientated by the search for a truth distinct from that held by rulers or the ruled. The potentially precarious position of the philosopher-prophet becomes the counterpart, in the 1940s, of a particular form of textual practice.192 The difficult truth which, in its challenge to existing forms of authority and expectation, adopts an indirect form of expression.193 The texts collected in Persecution and the Art of Writing articulate a more general interpretative practice which prefigures the challenge to the extension of the methodology of the social sciences to the realm of politics. Straussian political philosophy incorporates a theory of natural law, as a theory of natural right, through an ­interpretative practice which insists upon the continued pertinence of classical theories of political philosophy.194 The Straussian project purports, in its reflection upon the source of natural right, to have overturned the Kelsenian critique and, in this overturning, to have demonstrated the imposture of the Kelsenian legal science of positive law as a methodology of social science. In this demonstration, however, beyond the question of the absence of a developed Straussian theory of positive law, there remains the consideration of the analogous distance of Strauss and Kelsen from the existing system of political power and law. The Kelsenian position establishes this distance through an explicit process of methodological purification whose strictures demand a stance of detachment.195 In contrast to the 191 See Gostmann in Chapter 14 of this volume. 192 See Gostmann in Chapter 14 of this volume. 193 See Leo Strauss, Persecution and the Art of Writing, (Chicago: Chicago University Press, 1952). 194 This is the central argumentative development of Natural Right and History. This is then further developed and extended in such texts as What Is Political Philosophy? and Other Studies, (Chicago: Chicago University Press, 1988) (originally published in 1959); Leo Strauss, The City and Man, (Chicago: Chicago University Press, 1980) (originally published in 1964); Leo Strauss, Socrates and Aristophanes, (Chicago: Chicago University Press, 1980) (originally published in 1966). 195 See, for example, Kelsen’s “Author’s Preface” to the Introduction to the Problems of Legal Theory. A Translation of the First Edition of the Reine Rechtslehre, trans. Bonnie

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Kelsenian detachment, the Straussian detachment arises from the ethics of an interpretative practice in relation to the tradition of philosophy which forms the contemporary political philosopher. Here, in place of the Kelsenian absence of the political, there is a Straussian insistence upon the ­comprehensive interrogation of the political: the inadequacy of the existing system of political power and law in relation to the tradition of political philosophy.196 Bibliography Althusius, Johannes. Politica. Abridged and translated by Frederick S. Carney. Indianapolis: Liberty Fund, 1995. (Latin original 1603). Althusius, Johannes. Dicaeologicae Libri tres, totum et universum Jus, (Frankfurt, 1617). Arvidsson, Matilda Leila Brännström and Panu Minkkinen (eds.). The Contemporary Relevance of Carl Schmitt: Law, Politics, Theology, (London: Routledge, 2017). Aubenque, Pierre. “La Loi Selon Aristote”. In Problèmes Aristotéliciens ii, Pierre Aubenque, 79–92, (Paris: Vrin, 2011). Bachofen, Blaise. La Condition de la liberté: Rousseau, critique des raisons politiques, (Paris: Payot, 2002). Ballor, Jordan J. “Martin Luther, Johannes Althusius, and the Political Use of the Decalogue”. In Luther and Calvinism: Image and Reception of Martin Luther in the History and Theology of Calvinism, edited by Herman J. Selderhuis and J. Marius J. Lange van Ravenswaay, 124–134, (Göttingen: Vandenhoeck & Ruprecht, 2017). Barny, Roger. Prélude idéologique à la Révolution française: Le rousseauisme avant 1789, (Besançon: Presses Universitaires de Franche-Comté, 1985). Barny, Roger. L’éclatement révolutionnaire du rousseauisme, (Paris: Belles Lettres, 1988). Barny, Roger. Le droit naturel à l’épreuve de l’histoire: Jean Jacques Rousseau dans la Révolution, (Paris: Belles Lettres, 1995). Barth, Karl and Emil Brunner. Natural Theology. Translated by Peter Fraenkel. London: Geoffrey Bles, 1946 (German original 1934). Bauch, Bruno. “Das Rechtsproblem in der Kantischen Philosophie”, Zeitschrift für Rechtsphilosophie, 3 (1921): 1–26.

Litschewski Paulson and Stanley L. Paulson, (Oxford: Oxford University Press, 2002) (German original 1934), 1–5. The detachment is, however, not intended as an entirely apolitical stance, but of a necessarily indirect effect upon the existing system of political power and law. See, Ibid., 124–125. 196 For Gostmann, in Chapter 14 of this volume, the analogous positions of Kelsen and Strauss arise from a ‘choice for’ a particular theoretical orientation and thereby display a common position based upon the neo-Pascalian structure of a post-theological wager.

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Baume, Sandrine. “On political theology: A controversy between Hans Kelsen and Carl Schmitt”, History of European Ideas, 35, (9) (2009): 369–381. Beaud, Olivier and Pasquale Pasquino (eds.). La controverse sur “le gardien de la Constitution” et la justice constitutionnelle: Kelsen contre Schmitt, (Paris: Editions Panthéon Assas, 2007). Bernardi, Bruno. La fabrique des concepts. Recherches sur l’invention conceptuelle chez Rousseau, (Paris: Champion, 2006). Bernardi, Bruno. Le Principe d’obligation: sur une aporie de la modernité politique, (Paris: EHSS/Vrin, 2007). Bernardi, Bruno. “Rousseau, Une Autocritique Des Lumières”, Esprit, 357, (8/9) (2009): 109–124. Böckenförde, Ernst-Wolfgang. “Carl Schmitt Revisited”, Telos, 109, (1996): 81–86 Bodin, Jean. Six Books of the Commonwealth. Abridged and translated by M.J. Tooley, (Oxford: Basil Blackwell, 1955). Briguglia, Gianluca. Le pouvoir mis en question. Théologiens et théorie politique à l’époque du conflit entre Boniface viii et Philippe le Bel, (Paris: Belles Lettres, 2016). Brunner, Emil. Justice and the Social Order. Translated by Mary Hottinger (London and Redhill: Lutterworth, 1945) (German original 1943). Carrino, Agostino. Das Recht zwischen Reinheit und Realität: Hermann Cohen und die philosophischen Grundlagen der Rechtslehre Kelsens, (Baden-Baden: Nomos, 2011). Carty, Anthony. “Alfred Verdross and Othmar Spann: German Romantic Nationalism, National Socialism and International Law”, European Journal of International Law, 6, (1), (1995): 78–97. Cassirer, Ernst. Leibniz’ System in seinen wissenschaftlichen Grundlagen, (Marburg: N.G. Elwert, 1902). Cassirer, Ernst. Freiheit und Form. Studien zur deutschen Geistesgeschichte, (Berlin: Cassirer, 1918). Cassirer, Ernst. Natur-und Völkerrecht im Lichte der Geschichte und der systematischen Philosophie, (Berlin: C.A. Schwetschke & Sohn, 1919). Cassirer, Ernst. “Vom Wessen und Werden des Naturrechts”, Zeitschrift für Rechtsphilosophie in Lehre und Praxis, 6, 2 (1932): 1–27. Cassirer, Ernst. An Essay on Man: An Introduction to the Philosophy of Human Culture, (New Haven: Yale University Press, 1944). Cassirer, Ernst. The Myth of the State, (New Haven: Yale University Press, 1946). Cassirer, Ernst. Substance and Function, trans. Williams Collins Swabey and Marie Collins Swabey, (New York: Dover, 1953) (German original 1910). Cassirer, Ernst. “Die Idee der republikanischen Verfassung”, Zum Gedenken am Ernst Cassirer (1874–1945). Ansprachen auf der Akademischen Gedenkfeier am 11. Mai 1999. In Hamburger Universitätsreden, Neue Folge, i, 34–51, (Hamburg: Dölling und Galitz, 1999) (Original 1928).

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Cassirer, Ernst. The Philosophy of the Enlightenment. Translated by Fritz C.A. Koelln and James P. Pettegrove, (New Jersey: Princeton University Press, 2009) (German original 1932). Castrucci, Emanuele. “Mechanik der Entscheidung. Rechtsverwirklichung und Entscheidungsrichtigkeit durch Rechtspraxis in Carl Schmitts Gesetz und Urteil (1912)”, Carl Schmitt Studies, 1, (1), (2017), 10–25. Chignola, Sandro. “Kelsen, Weber: on Justice and Law”. In The Foundation of the Juridico-Political: Concept Formation in Hans Kelsen and Max Weber, edited by Ian Bryan, Peter Langford and John McGarry, 226–249, (London: Routledge, 2015). Cohn, Jonas. Wertwissenschaft, (Stuttgart: Frommann, 1932). Coujou, Jean-Paul. “The Law Of Nations And The Juridical Evolution Of Humanity In Vitoria And Suárez”, Ave Maria Journal of International Law, 2, (2), (2013): 139–175. Couzinet, Marie-Dominique. Pierre Ramus et la critique du pédantisme: philosophie, humanisme et culture scolaire au XVIe siècle, (Paris: Champion, 2015). Croce, Mariano and Andrea Salvatore. The Legal Theory of Carl Schmitt, (London: Routledge, 2013). Dahlheimer, Manfred. Carl Schmitt und der deutsche Katholizismus 1888–1936, (Paderborn: Schöningh, 1998). Deen Schildgen, Brenda. Dante and the Orient, (Chicago: University of Illinois Press, 2002). Demelemestre, Gaëlle. Les deux souverainetés et leur destin: Le tournant Bodin-Althusius, (Paris: Cerf, 2011). Donise, Anna, Antonello Giugliano, and Edoardo Massimilla (eds.). Methodologie, Erkenntnistheorie, Wertphilosophie: Heinrich Rickert und seine Zeit. Studien und Materialien zum Neukantianismus, (Würzburg: Königshausen & Neumann, 2016). Edel, Geert. “The Hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen”. In Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 195–219, (Oxford: Oxford University Press, 1998). Falzone, Paolo. “Ignoranza, desiderio, giudizio. L’Etica Nicomachea nella struttura argomentativa di Monarchia iii 3”, Documenti E Studi Sulla Tradizione Filosofica Medievale, 17, (2006): 299–316. Favuzzi, Pellegrino. “Der Staat als sittliche Idee. Die Rezeption des Marburger Neukantianismus im politischen Denken Ernst Cassirers am Beispiel von Leibniz’ System in seinen wissenschaftlichen Grundlagen”. In Das Staatsverständnis Ernst Cassirers, edited by Dirk Lüddecke and Felicia Englmann, 47–74, (Baden-Baden: Nomos, 2015). Favuzzi, Pellegrino. “Der Pathos der Vernuft. Cassirers Philosophie zwichen Demokratie und politischem Mythos”. In Philosophie der Kultur- und Wissensformen: Ernst

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Part 1 Aristotle, Dante and Kelsen

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Chapter 1

Kelsen’s Blind Spot for the Pluralism of Antiquity Liesbeth Huppes-Cluysenaer Abstract In 1937 Kelsen published an article on the political theory of Aristotle in which he interprets Aristotle’s Politics as a sophisticated defence of hereditary monarchy which purports to offer a favourable evaluation of democracy. The Kelsenian critique situates Aristotle as the transitional figure between the preceding Greek theory of democracy and the subsequent theories of monarchy. This transitional position is created, for Kelsen, by the dependence of Aristotelian Ethics and Politics upon the Metaphysics which replicate the contradiction of attempting to hold two conflicting principles together. This chapter will critically examine the Kelsenian critique of Aristotle, through a return to Aristotelian Ethics and Politics in order to indicate the blind spot in the Kelsenian approach. The blind spot will be revealed to arise from the project of a Kelsenian legal science of positive law and theory of democracy which misunderstands the relationship between nature, man and community in Aristotle.1

1 Introduction In 1937 Kelsen published an article on the metaphysical, ethical and political content of Aristotle’s philosophy.2 In this article, Kelsen deliberately interprets 1 The author would like to acknowledge the dedicated assistance of the editors, in particular, Peter Langford, for their detailed comments and suggestions in relation to the chapter. 2 This article has appeared in different versions in different languages. Here, all references will be made to the English version of 1937: Hans Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, Ethics 48, no. 1 (1937): 1–64. It is important to note that there is a reprint of the English version (1937) in 1977 in a book series on Ancient theory, which of the article’s four parts is composed of merely the third one. (H. Kelsen, “Aristotle and Hellenic-Macedonian Policy”, in Articles on Aristotle. 2, Ethics and Politics, ed. Jonathan Barnes, Malcolm Schofield, and Richard Sorabji, (London: Duckworth, 1977), 170–194). Note 39 of the original has become an additional note in this issue, referred to in note 6.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004390393_003

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Aristotle in a non-charitable way.3 The critical interpretation seeks to remove all vestiges of the ‘divine’ of authority of Aristotle. The character of this critical stance is evident from the beginning of Section 1, in which Kelsen states: The almost divine authority which Aristotle enjoyed in the sphere of the natural sciences has long since disappeared; (…) But the profound ­respect accorded to his Ethics and Politics remains undiminished. Their influence on the thought of our time can scarcely be overestimated. Modern scientific treatments of the problems of a moral world-order and of a juridical state community still, in very great measure, betray the stamp of the Aristotelian system. But in that system Aristotle’s Ethics and Politics are essentially connected with his Metaphysics. And thus it is the Metaphysics which appears as the foundation of the moral system of values, whether these values be knowingly accepted in their original form or received through the dogmas of Christian theology into which they have gone over. But it is precisely the Metaphysics which is the least personal part of Aristotle’s work. In this department he remained the pupil of Plato, although in no other he did so passionately combat the philosophy and the theory of ideas of his master.4 According to this passage, Kelsen seeks to articulate a theory of law through the development of a method which confers an objectivity which is as strong as that of the natural sciences.5 Legal theory had to liberate itself in the same manner as the natural sciences from Aristotelian thought. 3 See, for the same judgment, Wolfgang Kersting, “Kelsen Und Aristoteles”, in Griechische Phi­ losophie Im Spiegel Hans Kelsens, ed. Clemens Jabloner, Robert Walter, and Klaus Zeleny, (Vienna: Manz, 2006), 15–30. and Sébastien de Benalsazar, “Kelsen et L’approche Historiciste Du Droit Natural Classique”, Droits 2, no. 48 (2008): 219–234. Although I agree with Benalsazar that Kelsen’s intent is not merely an interpretation of the thought of Aristotle, but aims at a critique of its political influence, I do not think that Kelsen’s aim is well described as “il s’agit de l’écarter le droit natural”. In a certain sense Benalcazar admits this, when he states “bien que Kelsen n’en fasse jamais référence expressivement dans son article” (Ibid., 220). For Kersting (Ibid., 22–23), Kelsen did not consider Aristotle a proponent of natural law. For a similar position, see Tony Burns, Aristotle and Natural Law, (London: Bloomsbury, 2011), 9. 4 Hans Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, Ethics 48, no. 1 (1937), 1. 5 See, for this close link between the legal positivism of Kelsen and his epistemology, Mónica García-Salmones Rovira, The Project of Positivism in International Law, History and Theory of International Law, (Oxford University Press, 2013), specifically Section 6 (198–245). See Matti Ilmari Niemi, “Form and Substance in Legal Reasoning: Two Conceptions”, Ratio Juris 23, no. 4 (December 1, 2010): 479–492, for the close connection in legal positivism between formal and substantive (utilitarian) reasoning, 484ff.

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This chapter adopts a critical stance with regard to the Kelsenian approach centred upon Kelsen’s incorrect attribution of a particular epistemological position to Aristotle. The critical stance is developed through a comparison of the epistemologies of Aristotle and Kelsen which concentrates upon delineating their distinct metaphysical assumptions.6 Kelsen’s work is directly related to the rapid and far reaching developments in the theory of knowledge of the first half of the twentieth century, ­specifically to the work of the Vienna circle.7 The connection between Kelsen and the intellectual mileu of the Vienna circle is indicated by the letter Kelsen wrote to Neurath (15th February 1936): I am exceedingly interested in the work of your circle, and I am extremely sorry that, when in Vienna, when I had the possibility, I did not enter into closer contact with you, Schlick or Carnap. The parallels that are found between the Pure Theory and Carnap’s philosophy are in fact remarkable.8 According to Paulson, the affinity between Carnap and Kelsen is that both theoretical projects are oriented to objectivization: Carnap rejects the radical subjectivism of metaphysics, whilst Kelsen eliminates subjective concepts in his elaboration of normativity.9 6 Here, the position follows that of Jabloner/Zeleny for whom Kelsen’s anti-metaphysics is analogous to the critical project of the Wiener Positivists (Clemens Jabloner and Klaus Zeleny, “Kelsen Und Die Griechischen Philosophen – Eine Einführung”, in Griechische Philosophie Im Spiegel Hans Kelsens, ed. Clemens Jabloner, Robert Walter, and Klaus Zeleny, (Vienna: Manz, 2006), 1–13 (2)). 7 See Friedrich Stadler, The Vienna Circle: Studies in the Origins, Development, and Influence of Logical Empiricism (Springer, 2015), xxx, 249, 257, 274. Stadler explains that, in order to really belong to the circle, one had to have been invited to it by Schlick. Kelsen did not belong to this inner circle, and had had to leave Vienna already in 1930. Nevertheless, it is clear that he belonged to the wide group of intellectuals, who were closely connected to this milieu by personal contacts with its members. In 1936, the Vienna circle ended with the death of Moritz Schlick. By 1938, the whole of the wider intellectual milieu had effectively also come to a close. 8 Friedrich Stadler, “Logischer Empirismus Und Reine Rechtslehre. Über Familienähnlichkeiten”, in Logischer Empirismus Und Reine Rechtslehre. Beziehungen Zwischen Dem Wiener Kreis Und Der Hans Kelsen-Schule., ed. Clemens Jabloner and Friedrich Stadler, (Vienna: SpringerVerlag, 2001), xvi. 9 Paulson, “Zwei Wiener Welten Und Ein Anknüpfungspunkt: Carnaps Aufbau Kelsen’s Reine Rechtslehre Und Das Streben Nach Objectivität”, in Logischer Empirismus Und Reine Rechtslehre. Beziehungen Zwischen Dem Wiener Kreis Und Der Hans Kelsen-Schule., ed. Friedrich Stadler and Clemens Jabloner, (Vienna: Springer Verlag, 2001), 137–190.

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The underlying orientation for the development of this position of objectivization in the intellectual milieu of the Vienna circle of the 1930s, and the character of its survival after World War ii, are emphasized by Stadler: It was (thought) no coincidence that the ongoing shift from democracy to totalitarianism was accompanied by the regression from a scientific world conception to the philosophies of old. For that reason, the intellectual aspect of a struggle for a democratic society involved dissemination of an anti-metaphysical, science oriented point of view. The aim was to demarcate a realm standing apart from irrationalism and pseudo-rationalism, while concretely presenting the findings of scientific philosophy as a positive paradigm. The effort was the outcome of the recognition that human actions are ruled more by unconscious drives than conscious scientific thought and that these drives and emotions need to be taken seriously as an object of scientific study. (…) the idea of a practically oriented collective scientific enterprise was itself the primary expression of the modern cosmopolitan spirit.10 This position will be defined as Neopositivism. For Stadler, this Neopositivist position is, from a contemporary perspective, naively optimistic. The Vienna Circle were animated, at the outset, by the concern to identify and establish a secure, methodological foundation for science and had proceeded to acknowledge that this was impossible. In place of this initial methodological concern, the Circle modified its position, which entailed a dilution of the preceding methodological strictures for a form of optimistic pragmatism: a practically oriented collective scientific enterprise. This entailed the reorientation of the relationship to politics in which this modified epistemological approach was directly linked to a defence and revitalization of democratic politics. In the post-war period, especially from the 1960s onwards, this project of democratic social engineering received a renewed impetus. In this context, the reflection upon this project led to a reconsideration of the original project of the Vienna circle and to further methodological developments and elaborations within the field of the philosophy of science. These new impulses within this field then extended beyond its parameters to contribute to the furtherance of the politics of a practically-oriented collective scientific enterprise.11 10 Stadler, The Vienna Circle, xxx. Stadler refers here to Philipp Frank. 11 Kersting (16) refers to Daniel Bell’s The End of Ideology and concludes that Bell was essentially right even though there were, shortly after its publication in 1960, political turbulences from Berlin to Berkeley. In a series of lectures in 1985, Popper furnished a

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General Outline

The affinity between Kelsen and the project of the Vienna Circle, leads to the question of the more specific character of the Kelsenian theory. For García, Kelsen is a leading proponent of economic-positivism, who, in common with other legal positivists, deliberately avoided producing an adequate theory of the morality of law, or indeed, any other theory that reflected on what it is to be a human being ….12 Kelsen’s Pure Theory of Law represents, on this interpretation, a shift from the search of “das richtige Recht” to “die richtige Methode”, which is actually nothing other than a purely economic and evolutionary theory.13 Kelsen himself describes, in 1941/2, the fundamental change within which his work is undertaken: Of the greatest importance for the technical development of the law is the process of centralisation. (…) In the field of law this process is characterized by the surprising fact that the centralisation of the law- a­ pplying function precedes the centralisation of the law-creating function. (…) (Customary law was) a totally decentralized means of creating law. During thousands upon thousands of years it was the only way of creating general legal norms. The application of the law, however, long ago became the exclusive function of special organs, was long since centralized. (…) [D]ecisions have for long been entrusted to a judge, a special organ different from and independent of the parties in conflict. The general norms, however, in accordance with which the judge decides such conflicts, are not always created by a central organ; they still have the ­character of customary law. Customary law forms an important part of the legal order even in technically highly developed legal communities.14

12 13 14

strong impetus for the revitalisation of this position, in a simplistic attack on relativism which indicated its direct connection with the concentration camps in Germany in World War ii. Karl R Popper, “Toleration and Intellectual Responsibility”, in In Search of a Better World: Lectures and Essays from Thirty Years, (London; New York: Routledge, 1992), 188–204. García-Salmones Rovira, The Project of Positivism in International Law, (359). Ibid., (Section 6). Hans Kelsen, “The Law as a Specific Social Technique”, University of Chicago Law Review, no. 9 (1942 1941): 75–98, (93). At the beginning of the twentieth century, this phenomenon

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Kelsen’s critical analysis of Aristotle’s theory should be understood in relation to the Kelsenian presentation of this technical development of law: a turn from a jurisprudential perspective to one in which legislation is accorded a more central position: an economic view. The Kelsenian critique of Aristotle’s concept of practical wisdom is combined with its replacement by a common scientific enterprise. In regard to the specific examination of Aristotle’s philosophy, Kelsen considers there to be a significant, if not determinate connection, between it and Aristotle’s relationship to the Kingdom of Macedon. The purported differences of emphasis and orientation that Kelsen identifies, are held to be the reflection of Aristotle’s presence at the court in Macedon and his subsequent return to Athens to start his school after the city had been brought under the supremacy of Macedon. For Kelsen, the Aristotelian relationship is reflected in three parallel indeterminacies in, respectively, Aristotle’s Metaphysics (polytheism-monotheism), Ethics (active-contemplative) and Politics (democracy-hereditary monarchy), which are held to represent the Aristotelian adaptation to the prevailing ideas in Athens, while secretly, and very cautiously, attempting to persuade the Athenians of the superiority of Macedon. Kelsen’s three inconsistencies and their relation to supremacy of the kingdom of Macedonian will be adopted in this chapter. However, the idea of “inconsistency” will be understood as “conscious duality” and “monotheism” as “epistemology”. In this manner, Kelsen’s criticism will be situated against the background of the new epistemology of democratized rationality and the shift from jurisprudentialism to positive law. The idea of democratized rationality implies the unity of an objective worldview and a rule-following practice which is unable to conceive of rationality as plurality. The analysis of this chapter follows the general structure of Kelsen’s article, and its division into four parts: 1. Metaphysics (1–6), 2. Ethics (6–16), 3. Politics (16–51), 4. Conclusion (52–64). However, the analysis will combine the final two parts, and this will be combined with a reversal of Kelsen’s interpretation: metaphysics (Aristotle’s subjectivism versus Kelsen’s objectivism), of centralization – the state as legislation-machine –, was frequently characterized by sociologists of law, in contrast to Kelsen, and in a manner similar to that of Marx: the disappearance of law. Sociology, and the subsequent differentiation of a sociology of law, emerged in a state of hostility to law, writes Timasheff, and Roscoe Pound subsequently repeats these words, explicitly referring to him. Pound, “Sociology of Law, Chapter xi”, in Twentieth Century Sociology, ed. Georges Gurvitch and Wilbert Ellis Moore, (New York: Philosophical Library, 1945), (304ff).; Nicholas S. Timasheff, An Introduction to the Sociology of Law, (Cambridge Mass.: Harvard University Committee on Research in the Social Sciences, 1939), (45ff).

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ethics (­Aristotle’s personal autonomy versus Kelsen’s anti-ethics) and politics (Aristotle’s science of politics versus Kelsen’s ideology critique).15 3 Metaphysics 3.1 Kelsen’s Anti-metaphysics For Kelsen, the Metaphysics is the essential foundation of Aristotle’s Ethics and Politics and, at the same time, the least personal part. Kelsen acknowledges that, despite Aristotle’s apparently enduring critical stance towards Plato, there is a more fundamental continuity between them: Plato’s dualism of idea and reality is reconceived by Aristotle as a double theology. God, in Aristotle, represents the idea of the good in Plato: the transcendental absolute value. In this reconceptualization, Aristotle creates two distinctions within the idea of the Good which result in an opposition between material and immaterial and a struggle of form to overcome the resistance of the material. Both distinctions can be simply reduced to antitheses between good and evil.16 Aristotle’s decisive step, in the Metaphysics, consists in the combination of these two oppositions: The unmoved mover – the Godhead – is at the same time force and absolute reason. God exists not in willing or doing, but in thinking. Therefore, a person attains the highest degree of happiness in thinking: in a contemplative life. This contemplation is without connection to material objects, and represents a type of affirmation of the goodness of the world as it is. Aristotle’s ontology is, therefore, in truth a theology: an onto-theology. For Kelsen, there is a direct connection between Aristotle’s Metaphysics and his Politics arising from Aristotelian ontology which, as the realm of being, requires to be well governed, and this, in turn, is only satisfied by a sole ruler. Thus, the Metaphysics envisages absolute monarchy as the best form of government, in which the sole ruler, while moving the world towards the good, remains in a position of unmovable contemplation.17 15

16 17

All references are to the Loeb edition of the Metaphysics (Metaphysics. Books i-ix Books i-ix, trans. Hugh Tredennick, (Cambridge, Mass.; London: Harvard University Press, 1933)), for the Physics, the translation by R.P. Hardie and R.K. Gaye in The complete works of Aristotle: the revised Oxford translation, ed. Jonathan Barnes, (Princeton, N.J.: Princeton ­University Press, 1984), (315–447) and, for the Nicomachean Ethics, the translation of W.D. Ross, revised by J.O. Urmson in The complete works of Aristotle: the revised Oxford translation, trans. Ross, W.D. and Urmson, vol. ii, (Princeton, N.J.: Princeton University Press, 1984). Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 2. Ibid., 4.

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The presence of this connection is, however, blurred by the Aristotelian recognition, beyond the prime mover, of other immovable movers (Met.1073a-b). For Kelsen, this reflects the concession of Aristotle to the dominant polytheism in Athens: the adaptation which simultaneously attempts to subvert. The Aristotle designation of polytheism as the “relics of an ancient treasure”18 and its justification as “inspired utterances”19 are, for Kelsen, the conferral of both continued legitimacy on polytheism and the elaboration of a foundation for monotheism.20 3.1.1 Kelsenian Objectivism versus Aristotelian Subjectivism The emphasis Kelsen places upon the Metaphysics as the foundation of Aristotle’s theory is, however, combined with a remarkably cursory the treatment of it, and it is this character of the interpretation of the Metaphysics from which proceeds the comparatively extensive analysis of Aristotle’s Politics. The manner in which Kelsen constructs this interpretative position involves the occlusion of the central importance of Aristotle’s criticism of Plato. Kelsen thus ignores the distinctively Aristotelian inauguration of the move from a classificatory approach to a study of the probabilistic/ finalist laws of nature. The Aristotelian critique of Plato is animated by the intention demarcate an independent philosophy which is other than a mere combination of his own approach with the one of Plato. It is, however, this merely combinatory approach to Plato, which, for Kelsen, marks the entirety of Aristotle’s philosophical project. Whilst it is possible to concede a certain plausibility in the Kelsenian presentation of Aristotle’s Metaphysics as a theology or onto-theology, the limitations of the Kelsenian interpretation commence from the presumption that this particular Book of the Metaphysics, Metaphysics Lambda, is the central, exemplary Book of the Metaphysics. This is, however, to leave unexamined the compositional structure and argumentative development of the Metaphysics and the broader Aristotelian consideration of the differentiation of fields of knowledge and their definition as sciences. 3.1.2

Why Aristotle’s View is Not a Combination of a Platonic and Finalist Approach The Kelsenian interpretative stance finds a continued, but unacknowledged presence in contemporary approaches to Aristotle which proceed to explain Aristotle’s view on natural laws in a Platonic manner, as if the Aristotelian position 18 Aristotle, (Met. 1074b). 19 Ibid. 20 Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 11.

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is one in which every individual of a certain species seeks to accomplish the ideal reality belonging to the form of its species.21 It is the work of Pellegrin22 on Aristotle’s zoology which has opened a different perspective enabling the rejection of the continued predominance of this interpretation.23 Pellegrin’s interpretation commences from the following passage from the Metaphysics: For everything which is different differs either in genus or in species – in genus, such things as have not common matter and cannot be generated into or out of each other, e.g. things which belong to different categories; and in species, such things as are of the same genus. (…) For things which differ in genus have no means of passing into each other, and are more widely distant, and are not comparable “have not common matter”. (Met. 1054b27–1055a8, trans. Tredennick) The passage indicates that Aristotle considers genera as the point of departure. The study of his biological works shows that he understands species as certain overlapping groupings of the attributes of these genera. This then leads to the conclusion that a telos cannot be envisaged in a Platonic manner as if each species conforms to an ideal. The overlap between species also implies that, contrary to the predominant interpretation, Aristotle did not and could not aim in his biological work at a taxonomic project of ordering living things into families. Taxonomic projects are, in Pellegrin’s view, typical of modernity, in which living things are reduced to a collection of characteristics by eliminating finality as the essence of every living being.24 Although Plato, also (as with Aristotle) did not aim at classification, he 21 22

23

24

See, for example, H.L.A. Hart, The Concept of Law, (Oxford: Clarendon Press, 1961), 185. Pierre Pellegrin, Aristotle’s Classification of Animals: Biology and the Conceptual Unity of the Aristotelian Corpus, (University of California Press, 1986), Preface and 55. His work is, in part, a further elaboration of David M Balme, “The Place of Biology in Aristotle’s Philosophy”, in A. Gotthelf and J.G. Lennox (eds.), Philosophical Issues in Aristotle’s Biology, (Cambridge: Cambridge University Press, 1987), 9–20. See, for a sceptical review, Charlotte Witt in The Philosophical Review 98, no. 4 (1989): 543–544. and Cynthia. A Freeland in iisis 79, no. 2 (1988): 339–340. In contrast, see, for positive reviews: Jonathan Barnes in The Classical Review, New Series, Vol. 33, no. 2 (1983): 334–335 and Stephen R.L. Clark in Journal of the History of Philosophy 27, no. april (1989): 301–302. See, for a similar understanding of Aristotle’s realism, based on his Metaphysics, Liesbeth Huppes-Cluysenaer, “The Individual Realism of Aristotle”, ed. Sebastião Trogo, Aluisio Santiago, and Nuno M.M.S Coelho, Revista Da Faculdade de Direito de Conselheiro Lafaiete Nova fase, no. 3, special issue (2007). Pierre Pellegrin, Aristotle’s Classification of Animals, 45 and 163.

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did aim at objectivism by developing a formal rigidity in his conceptual analysis. Aristotle rejected this objectivism of Plato, because he considered it impossible that any systematic ordering could account for the abundant variability in the world.25 In his zoological research, Aristotle had to commence from a provisional ordering and grouping of animals into kinds as a tool for the elaboration of a comparative anatomy.26 The overtly approximative character of this division between genus and species is reflected in the Aristotelian use of non-­technical names for this initial step. Aristotle refers for these names in zoology to those produced, at the level of common sense, from the extensive experience of, for example, observant seafaring people, bee-keepers or hunters.27 On the basis of these names, Aristotle then proceeds to search for the scientific definitions which formulate the essential predicates of things.28 Aristotle’s guiding ­interest in the attributes (specifically the organs) is to discover their sustaining functions and what these can explain about life.29 Life is, according to Aristotle, not a predicate of things, but things manifest life, each in its own life. It is an inward determinateness – autonomy – of living things by which they cannot be defined or described, but only perceived as essences. It is impossible to logically derive an understanding of the characteristics of individual things from perception. Such an understanding is, in part, generated from perceiving differences and similarities between things, and, in part, it is that type of understanding which renders a meaningful perception possible. The zoological research of Aristotle is, therefore, – as is indicated by Pellegrin – neither inductive nor deductive.30 It is this approach in Aristotelian zoology which is also present in the Politics.31 3.1.3 Taxonomic Projects in Modernity Pellegrin considers the taxonomic projects typical for modernity to originate with Celsapinus and Tournefort and are further developed in Linnaeus’ Systema Naturae, published in 1735.32 The method by which a clear taxonomic system 25 26 27 28 29 30 31 32

Ibid. 21–40. Ibid. 117, 163 and, at 134, “Although the classifications cannot claim scientific rigour, they help to prevent scientific research from getting lost in the pure multiplicity of the immediate”. Ibid. 45–46,120. Ibid. 42. Ibid. 161. Ibid. 123. Pellegrin calls the method of Aristotle moriology, referring to it as a research of parts. Ibid. 120. Ibid., 45, 58 and 163.

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is created arises from two assumptions: firstly, the assumption of common natures, secondly, the formulation of this common nature as a hypothetical ordering principle combined with the attribution of a logical quality to the ordering which corroborates the truth of the application of the ordering principle. The first assumption has a historical origin which precedes Linnaeus, as it originates, around 1300 ad, in the protracted dispute within Scholasticism between realists and nominalists. The disputants presuppose the existence of common natures, but differ in regard to the epistemological and ontological status of the assumption. The concentration upon the differences, however, displaces the shared post-Aristotelian position of both realists and nominalists: the existence of a natural language directly corresponding to a common essential nature of things, which is present in human understanding. Hence, the shared acceptance of a justified language corresponding to classes such as Horse, Stone or Man.33 The post-Aristotelian character of this position, and its explicit rejection by Aristotle is even acknowledged by Darwin.34 The second assumption, is of more recent historical origin, emerging with the rise of humanist philosophy. The concept of natural classes enabled the transposition of the focus of Platonic and Aristotelian philosophy from an individual agent to a class of agents.35 The transposition produces the presupposition of a common human nature which is the essence of their existence and that each individual human has a natural insight, by either reasoning or life experience, into this common essence of human being.36 A distinction is then made between, on the one hand, a state of nature in which man is sometimes depicted as a wild animal, and sometimes as a quarrelsome, inquisitive, argumentative, man of honour and, on the other, an enlightened state in which man 33 34

35

36

Mateusz W. Oleksy, Realism and Individualism: Charles S. Peirce and the Threat of Modern Nominalism, (John Benjamins Publishing Company, 2015) 20–23. See the first footnote in the historical sketch in Charles Darwin, The Origin of Species, ed. L. Harrison Matthews, (London; New York: E.P. Dutton, 1972). Darwin refers to the Physics 198b17–32 where Aristotle rejects the theory Darwin defends. See, also, on Darwin’s letters to Ogle, the translator of Aristotle’s Animal Parts, Allan Gotthelf, “Darwin on Aristotle”, Journal of the History of Biology 32, no. 1 (1999): 3–30. Plato had played with this idea, introducing his statues. Aristotle has argued that this idea of Plato is absurd and that it would ask for an ideal world in which for every species and subspecies there would need to be a statue. He later adds that Plato’s view is only about numbers and that when you would apply the idea of movement to them it would lead to the idea of different ideal movers. Only when ranking these movers mathematical reasoning would apply. This is that which Kelsen marks out as Aristotle’s polytheism and which he points out as a flagrant contradiction (Met.1073a14–b, Met.987b3–11, Met.997b10–20). This is the position of Burns, in relation to his interpretation of natural law in Aristotle, when he utilizes the example of Grotius for whom necessary truths can be derived from reason, in the same way as in mathematics. (Burns, Aristotle and Natural Law, 45–46).

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is sometimes depicted as a gregarious peaceful ant and sometimes as an obedient rational man, a cultured man or an altruist man and even sometimes as a man who realizes his autonomy by understanding his essence to be t­ hinking in terms of categories about his own behaviour.37 All these theories attribute to each individual agent an underlying purpose to realize his ideal common nature: to depart from the state of nature and become enlightened. The process of leaving the state of nature becomes the precondition for p ­ olitical activity: the contribution to a common enterprise. A taxonomic combination occurs through a scientific methodology which commences the examination of reality as the realization of the ideal of a common nature. This combination of the two assumptions within a specifically historical perspective of “coming to be” is characteristic for the taxonomic projects at the conclusion of the eighteenth century. The juridicial expression of this taxonomic transformation reaches its exemplary expression in legal theory of Begriffsjurisprudenz of Savigny. Savigny considers his method as tracing a genealogy of concepts which is both historical (Aristotle) and ­systematic (Plato): historical because the spirit which belongs to all people motivates their action and orientates their perception and judgment; systematic, because this spirit can be described in its manifestation with the assistance of a comparative approach. Savigny derives concepts from the comparison of cases, through the use of Einfühlung (empathy), in which the degree of conformity of the ­cases to reason is discovered. The combination of Platonism and Aristotelianism creates the coherent system and the moralism does not refer to an individual moral agent, but to a common essence of the people of a nation, or all people.38 This spirit is designated as Volksempfindung by Savigny, and the method introduces a moral perfectionism and nationalistic culturalism into law.39 37

38

39

Thomas Hobbes, Leviathan, or the Matter, Forme & Power of a Commonwealth, Ecclesiasticall and Civill, ed. A.R Waller, (Cambridge: Cambridge University Press, 1904); Jean-Jacques Rousseau, “On the Social Contract” in Rousseau: The Social Contract and other later political writings ed. and trans. by Victor Gourevitch, (Cambridge: Cambridge University Press, 1997), 39–152; Immanuel Kant, “An Answer to the Question: What Is Enlightenment”, in Kant’s Political Writings 2nd Enlarged Edition, ed. Hans Reiss and trans. N.B. Nisbet, (Cambridge: Cambridge University Press, 2016), 54–60. To emphasize the normative assumption, which is implied in the legal taxonomic method, I used the name normative inductivism to characterize the legal method of Savigny in my thesis E.A Huppes-Cluysenaer, “Waarneming en theorie: naar een nieuw formalisme in empirische wetenschap en rechtswetenschap” [s.n.], 1995, (164). See, also, Daniel Steel, “What If the Principle of Induction Is Normative? Formal Learning Theory and Hume’s Problem”, International Studies in the Philosophy of Science 24, no. 2 (2010): 171–85. Friedrich Carl von Savigny, “Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft”, in Thibaut und Savigny: ihre programmatischen Schriften, ed. H Hattenhauer,

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3.1.4 Anti Anti-metaphysics The Kelsenian identification and critique of the Historical School as a taxonomic project is correct, but becomes problematic with the further i­dentification between the Historical School and Aristotle. For the Kelsenian approach thereby elides the essential difference between Aristotle and the Historical School through its attribution of an Aristotelian origin to the foundational assumption of the common nature of the Historical school. This is combined with a critique, which engages in a transformation, rather than a rejection, of this foundational assumption of the Historical School replacing an ethical interpretation of practice and a subjective interpretation of research with an ­interpretation which is technical and objective. The Kelsenian position, characterized by its inability to recognize the difference between Aristotle and the Historical School, is also shaped by an anti-metaphysical stance which, more generally, prevents a comprehensive ­understanding and interpretation of Aristotle. The limitation of this position in relation to the interpretation of Aristotle also reveals, in its hidden metaphysical presuppositions, its potential vulnerability to Aristotelian critique. 3.2 The Link Between Aristotle’s Metaphysics and Ethics The Kelsenian interpretation, flowing from the cursory engagement with the Metaphysics, contains no detailed presentation of Aristotle’s architectonic of science, craft and other types of mental activities. In the absence of this presentation, the degree of concordance of the Kelsenian project of a legal science and the philosophical project of Aristotle, can be alluded to more generally as a broad consensus with regard to the definition of certain or demonstrable knowledge. However, the limits of this concordance become immediately a­ pparent once the focus turns towards the central position which Aristotle accords to the non-demonstrable elements of rationality in Aristotelian ethics which, for Kelsen, are relegated to the realm of values whose origin is essentially irrational. 3.2.1

The Hierarchy of Knowledge: Science (Metaphysics, Physics, Mathematics) and Craft Aristotle, in the Metaphysics, establishes a hierarchy of knowledge. (Met. 982b23–983a13). The hierarchy is established with explicit reference to the (München: Vahlen, 1973). The reaction to this approach is evident in the later work of Jhering, who, rejecting the method of Begriffsjurisprudenz, and its origins in Savigny, mocks these civil law zoologists. See, Jhering, “Vertrauliche Briefe über die heutige Jurisprudenz. Von einem Unbekannten!. Brief: Über die civilistische Konstruktion”, in Interessenjurisprudenz;, ed. Günter Ellscheid and Winfried Hassemer, (Darmstadt: Wissenschaftliche Buchgesellschaft, 1974).

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Nicomachean Ethics (EN 1138b18ff) thereby acknowledging, and emphasizing, the relevance for ethics of the difference between knowledge and other mental activities such as intuition, understanding, deliberation, judgment. (Met. 981b26).40 Theoretical science is knowledge which is orientated to systematic construction and lacks practical utility. It is marked by an internal hierarchy in which the Metaphysics is the highest form of theoretical knowledge with the distinct forms of theoretical knowledge, as “natural sciences” (e.g. physics mathematics, biology, zooology) situated beneath it. The separation and internal differentation of theoretical knowledge commences from a common origin: direct apprehension – intuition – which ­precedes the subsequent division into theoretical and practical knowledge. Theoretical intuition concerns the validity of definitions arising from the intuitive grasp of similarities, or rules. The foundation in intuition entails a fundamentally subjective origin as intuition cannot in itself be shared. Hence, a “natural science”, such as zoology, is therefore, for Aristotle, a systematic inquiry which is essentially a subjective, speculative theoretical knowledge without practical utility. It is only in the subsequent formulation of its conclusions, in terms of rules (or common names) which enable it to become systematic and to be taught to other people (Met.982a4ff, 1025b–1026a). Mathematical knowledge, whilst also arising from theses produced by theoretical intuition, proceeds more immediately and directly to an objective form of knowledge, because its intuitive theses can be elaborated into demonstrations, as in geometrical constructions.The objective knowledge of mathematics is a theoretical science which remains without practical utility (Met.1051a21 ff). Beyond these specific forms of theoretical knowledge, Aristotle recognises other forms of theoretical knowledge, as analogous to mathematics, arising from research which studies matter, but disregards its function. These forms of theoretical knowledge whilst not defective (P. 193b34), are limited by the inherently analytic rather than synthetic knowledge which they generate: the capacity only to state what could happen. In contrast, craft is practical knowledge and, thus, is not disinterested, systematic analysis. It specifies in which conditions certain actions have certain effects. Craft is, thus, a productive science and is also designated by Aristotle as a technique or art. This practical knowledge is exemplified by the physician who cannot blindly or mechanically apply rules to patients, but has to 40

On the question of the hierarchy of knowledge in Aristotle, see Jean-Louis Labarrière, “The Articulation and Hierarchy of Knowledge in Aristotle’s thought”, Diogenes, No. 178, Vol. 45 (2), (1997), 23–31.

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perceive the individual situation of his patient (Met. 981a18–225). The physician requires a direct apprehension of individual situations, and here his subjective perception continues to fulfil an important role. However, it is the goal of a particular craft which orientates and guides the contribution of subjective perception thereby rendering it objective. Beneath craft, the lowest form of knowledge is constituted by tacit experience: a knowledge of how to produce good results derived solely from ­previous experience. Whilst this is in itself a limited form of knowledge it is the precondition for the further development of practical knowledge. Thus, in this development practical knowledge becomes practical wisdom and knowledge becomes virtue.41 For Aristotle, it is mathematics and craft which are the only two forms of knowledge that have a demonstrative – objective – element. The practical knowledge of craft contains this objective element through the choice of a function – the creation of a determinate goal (EN 1140a35). This goal guides the particular instrumental practice and determines which characteristics are important to reach the desired result. The comparison of the Aristotelian position with that of Kelsen reveals a broad similarity with regard to the position of theoretical knowledge as the only source of certain demonstrable truth. However, this apparent consensus effectively dissolves once it is recognised that the Kelsenian insistence on the objectivity of science – whether this is that of the science of nature or the legal science of positive law – leads to a rejection of the epistemological role which is attributed, by Aristotle, to the subjective foundation of other forms of mental activity. Thus, Kelsen’s interpretative position which seeks to present the intimate connection between the Metaphysics and the Politics is unable to recognize the importance accorded, by Aristotle, to the knowledge generated by physics as a speculative – philosophical – science, as far as it does not have recourse to mathematics or craft. For the Politics, focusing on the question what it means to be a human being is partly zoology, partly – where it questions the nature of rationality – metaphysics (theory of science/ epistemology/ ontology/theology). 41

As Eikeland emphasizes, tacit experience “was the self-evident starting-point for Aristotle. His aim was not primarily to show that tacit knowledge existed at all, or that it was important. This was his almost self-evident starting-point. What was important to Aristotle (as well as for Plato and Socrates) was to articulate, develop, and perfect the tacit familiarity of acquaintance, habit and experience into something more and better”. (Olav Eikeland, The Ways of Aristotle: Aristotelian Phronesis, Aristotelian Philosophy of Dialogue and Action Research, (Bern: Peter Lang, 2008), 186 fn.175).

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3.2.2 The Technical Development of Law In addition to this Kelsenian limitation of the realm of theoretical knowledge as science, the Kelsenian position is also one which rejects the subjective mental activities, such as intuition or deliberation, which are central to Aristotelian ethics. Kelsen seeks to elaborate a legal science of positive law without reference to such subjective elements through the installation of a clear distinction between legal fact (Rechtssatz) and legal norm (Rechtsnorm).42 In this manner, Kelsen has freed the theory of law, as a legal science of positive law, from the continued influence of Aristotle’s metaphysics and ethics, and has created an analogy between the objectivity of natural science and a science of law. By making this distinction, Kelsen transforms the legal concepts of the preceding Begriffsjurisprudenz into a pure theory of positive law and, thus, reflects a further transformation of law, which commenced at the end of the eighteenth century: a process of centralisation and technical development.43 The notion of technical development refers to the transformation of the capacity to judge conformity to law into a demonstrable fact of conformity to a legal norm. However, this conformity is for Kelsen, to be located in the legal norm as a specific form of obligation or ‘ought’. From a scientific view of the world, however, within which only a positive theory of law can be established, the difference between the (causal) law of nature and the rule of law must be maintained with all emphasis. If the rule of law is formulated “Under certain conditions certain consequences ought to take place”; if, in other words, the norm-created connection of the legal facts determined in a legal norm as condition and consequence is expressed by the word “ought”, then this word is not used in its usual sense, as has been said before. “Ought” usually expresses a command, not an authorization or permission. The legal “ought” however, the conjunction which in the rule of law connects condition and consequence embraces all three meanings: the command, the authorization and the positive permission of a consequence.44

42

Pure Theory of Law, trans. Max Knight, (Union, N.J.: Lawbook Exchange, 2002), i, 4e. To this end Kelsen introduces a distinction between Rechtsnorm (legal norm) and Rechtssatz (legal rule) and explains that, in traditional German Jurisprudence, the two terms were considered t to be synonymous thereby conflating the normative function of legal authority and the scientific function of legal science. Kelsen, Pure Theory of Law. Chapter iii, 16. 43 Supra footnote 16. 44 Kelsen, Pure Theory of Law, 77.

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The Aristotelian response to this Kelsenian project of a legal science of positive law would commence from an understanding law as a set of norms, promulgated or existing as customs, and describing this set of norms in terms of the collective goals or values which can be reached by these norms. Law is treated as a (demonstrable) craft and not as a pure theory. From this Aristotelian position, the conventional distinction between legal positivists, natural law theorists and legal sociologists becomes irrelevant. They all depart from the same belief that acting is rule-following and that these rules can be perceived as objective reality. Thus, the existence of these rules is to be explained by collective goal/value-orientations. These goals/values do not arise from within but have an external existence in social life in which individuals connect their personal lives to these social facts. 4 Ethics 4.1 Kelsen’s Anti-ethics For Kelsen, the ethics of Plato and Aristotle concur in situating contemplation, as knowledge of God, as the supreme possibility for man.45 Beyond this continued Platonic influence upon Aristotle, Kelsen considers there to exist a remarkable parallelism in the structure of Aristotle’s Metaphysics and Ethics in which the double theology of the Metaphysics finds its complement in the double morality of the Ethics.46 Man consists of soul and body but, within the soul, reason and desire are essentially opposed to each other: reason being contemplative/theoretical and desire being ethical i.e., obeying reason. As the soul obtains mastery over the body, so must reason obtain mastery over desire: the mastery of the good over the evil. Aristotle accordingly distinguishes between the virtue of thinking and knowing (dianoetical) and the virtue of willing and doing (ethical). The virtue of thinking is a specific activity of the soul and is, as such, superior to the will. The highest virtue is to be attained by man is, thus, not in a practical, but in a theoretical attitude. Kelsen considers the difference between Platonic and Aristotelian ethics to arise from Aristotle’s withdrawal from a direct engagement in politics. Aristotle’s elaboration of practical wisdom (the famous Mesotes formula) is, for Kelsen, absolutely futile: Aristotle’s ethical theory simply supposes positive morality and positive law to be the rightful and valid order and contents itself 45 46

Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 9. Ibid., 9ff.

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by legitimizing their requirements instead of examining independently whether positive morality and positive law correspond to the ideal determined by ethics, as by a scientific or philosophical knowledge of the good.47 While Plato’s idea of the good was oriented at the philosopher as a ruler, Aristotelian ethics is, in its metaphysical teaching, directed against political activity, and to a withdrawal into contemplation. Aristotle defends thus a double morality, which places the sober philosophical ideal of pure contemplation above the civic morality of an active political life, which has the advantages of a comfortable life. (EN 1178a-b) These two forms of morality are not antagonistic, but the higher may be reconciled to the lower, which is justified by it. This Aristotelian ethical ideal is itself inexplicable,48 but in its very withdrawal into contemplation, is indicative, for Kelsen, of the influence of external factors. The Aristotelian promotion of the ideal of a contemplative life reflects the adjustment to the political regime of absolute monarchy. The essential tendency of this form of state consists in excluding the subjects from all share in public affairs.49 4.1.1 The Misrecognition of Aristotelian Ethics The Kelsenian attribution of emptiness to the Aristotelian Mesotes formula is peculiar,50 but underscores Kelsen’s blind spot for the epistemology of Aristotle. This becomes immediately apparent from the examination of Book v of the Nicomachean Ethics, in particular, Aristotle’s treatment of rectificatory justice (EN 1131b–1132b). This specific type of justice – to be contrasted with distributive justice (EN 1130b30b–1131a1) – concerns the correction or rectification of private transactions between two parties and which are themselves

47 48

Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 11. For Kelsen, “Can one so near real life, a philosopher so much nearer it than Plato was, sincerely hold up the ideal of the monk-especially in the midst of a people from whose nature no ideal was further removed, and whose popular morality no philosopher was more anxious to respect than was Aristotle?” (Ibid., 14). 49 Ibid. 50 Compare Kersting, “Kelsen Und Aristoteles”, 24. On the wider question of the relationship between Aristotle’s individualism and anti-individualism, see David Lefebvre, David. “Anti-individualisme et promotion des individualités. Sur les rapports entre l’éthique et la politique chez Aristote”, Les Cahiers Philosophiques, 77 (1998), 7–41.

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distinguished by their voluntary or involuntary character (EN 1131a3–9).51 The process of r­ ectification involves a situational judgment of the particular circumstances of the transaction. In relation to transactions classified as voluntary, the situational judgment relies upon a small set of interdependent concepts: voluntary or involuntary contract, gift or commercial transaction, fairness or unfairness of an agreement. Hence, all these concepts refer not to facts, but, rather, to a careful analysis of the individual transaction in relation to an evaluative background. The evaluation commences from injustice, as it is the alleged breach or failure by one party in relation to a voluntary agreement with the other party which creates both a sense of injustice and, if established, the requirement for rectificatory justice to restore the balance betwen the parties: to render it just. Thus judgment – the evaluation and determination of the degree of injustice of a voluntary transaction and its rectification or correction – is, for Aristotle, potentially present in relation to all voluntary transactions insofar as the claim of injustice is raised by one of the two parties to the particular transaction. From this potential arises the position of the judge – the dispute between the parties requires a third party who is situated between them and determines their respective claims of gain and loss and, if necessary, rectifies their respective positions. The ubiquitousness of potential claims for rectificatory justice indicates the limitations of the Kelsenian attribution of an empty formalism to the Aristotelian theory of justice. For, the position and function of judgment, exemplified by rectificatory justice, reveals its central position in determining concrete relationships between individuals. Whilst the form of judgment in rectificatory justice is evaluative and, therefore, subjective, it is not simply arbitrary. Rather, the Aristotelian position develops from the acceptance of the necessary subjectivity of such decisions. This is the basis for his concept of personal autonomy in which a share in political life refers primarily to the distribution of the authority which, in relation to rectificatory justice, involves the exertion of professional authority in public offices. 4.1.2 The Nature of Contemplative Morality The response to the anti-ethics of Kelsen commences from the recognition of the presence of two apparently incompatible models of the good life 51

The present analysis leaves unexamined the question of the potential existence and purpose of third form of justice in Book v – reciprocal justice – as an integral element of the Aristotelian theory of justice.

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(­eudonamia) in Book x of the Nicomachean Ethics (EN, 1177a13–1179a32). The incompatibility arises from the essential conflict involved in their realization in which the activity of contemplation and the activity of politics are mutually exclusive: each prevents the realization of the other activity. The mutual exclusivity extends to different types emotions (courage for politics in contrast to justice and moderation for contemplation) and external goods required for the realization of each model.52 However, the further elaboration of the response to Kelsen arises from the question of the extent to which the Aristotelian conception of science extends to Aristotelian ethics and, in particular, whether Aristotle attributes an ethical character to contemplation, namely, the presence of a complementary relationship between the two notions of the good life. The connection between these notions of the good life and the particular Aristotelian method which guides the zoological investigations is evident in Aristotle’s analysis of constitutions (politeiai). For Pellegrin, the connection is explicit in Pol. 4.4.1290b25–38 in which Aristotle presents a direct analogy between the method for the identification and classification of parts of animals and that of constitutions.53 This methodological orientation of Book iv of the Politics is complemented by the preparatory philosophical orientation of the Nicomachean Ethics which introduces the passage from ethics to politics in the emphasis, in the final book, Book ix, upon the necessity of a study of collections of laws and constitutions, as an integral part of the development of a knowledge of political life which enables the determination of the best laws and constitutions. Now laws are as it were the works of the political art; how then can one learn from them to be a legislator, or judge which are best? Even medical men do not seem to be made by a study of textbooks. Yet people try, at any rate, to state not only the treatments, but also how particular classes of people can be cured and should be treated – distinguishing the various states; but while this seems useful to experienced people, to the ignorant it is valueless. Surely then, while collections of laws and constitutions also, may be serviceable to those who can study them and judge what is 52

Beyond Kelsen, the contradictory character of Aristotle’s position is also emphasized, for example, by Werner Jaeger, Aristotle, (Oxford: Oxford Univesity Press, 1948), 334; Thomas Nagel, “Aristotle on Eudaimonia”, Phronesis, vol. 17 No. 3, (1972), pp. 252–259; John Cooper, Reason and the Human Good in Aristotle, (Cambridge, Mass., Harvard University Press, 1975), pp. 156–177, W.F.R. Hardie, Aristotle’s Ethcial Theory 2nd ed., (Oxford: Oxford Univer­ sity Press, 1980). 53 Pellegrin, Aristotle’s Classification of Animals, 98, 103–104.

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good or bad and what enactments suit what circumstances, those who go through such collections without a practiced faculty will not have right judgment (unless it be spontaneous), though they may perhaps become more intelligent in such matters.54 This type of comparative, historical research and reflection confers a knowledge which is different from that of practical wisdom. For the ends of practical wisdom are directly linked to active political life and the question of how to act well in individual situations. In relation to the knowledge which arises from a craft, such as medicine, there is an analogy; however, in contrast to medicine, the experience which is required to determine the best is, at present, absent as a body of knowledge which can be taught.55 The body of knowledge is to be constituted by considering these laws and constitutions in their relationship to both the question of the preservation and destruction of constitutions and the good and bad organization of political life.56 4.1.3 The Separation of Law and Morality: Kelsenian Legal Science The Aristotelian position confronts a conception of science which orientates the Kelsenian project of a legal science of positive law predicated upon the separation of law from morality and ethics. The separation, as the purification of law, creates a theory of positive law which is systematically elaborated without recourse to the study and collection of previous constitutions. The legal science of positive law as a pure theory of law provides a description of ­positive law which is detached from questions of preservation and destruction of constitutions and the good and bad organization of political life.57

54 Aristotle, Nicomachean Ethics, (EN. 1181b–1181b12). 55 Ibid. 56 (EN. 1181b13–25). In the elaboration of this body of knowledge, the Politics was complemented by the wider project of the Aristotelian school of the recording and collection of Greek constitutions of which only the Athenian Constitution has remained significantly preserved. On the status and character of this project, see Kurt von Fritz, “The Composition of Aristotle’s Constitution of Athens and the So-Called Dracontian Constitution”, Classical Philology, 49, (2) (1954): 73–93; John J. Keaney, “The Structure of ­Aristotle’s Athenaion Politeia”, Harvard Studies in Classical Philology, 67 (1963), 115–146; Frank W. Gilliard, “Teleological Development in the “Athenaion Politeia””, Historia: Zeitschrift für Alte Geschichte, 20, (4) (1971), 430–435; David L. Toye, “Aristotle’s Other Politeiai: Was the Athenaion Politeia Atypical?”, The Classical Journal, 94, (3) (1999), 235–253. 57 See, Hans Kelsen, Introduction to the Problems of Legal Theory (A Translation of the Reine Rechtslehre or Pure Theory of Law) translated by Bonnie Litschewski Paulson and Stanley L. Paulson, (Oxford: Oxford University Press, 2002).

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The detachment is the counterpart of the Kelsenian theory of politics as a theory of democracy.58 The consideration of monarchy is as a form of political organization which has been surpassed by democracy, and requires continued critical vigilance in order to prevent its return in types of personified ­authority.59 The generalization of democracy is as a framework of political representation which Kelsen confines to representation in the form of political parties and excludes direct democracy.60 Thus, the Kelsenian theory of democracy defines as incoherent the possibility of a mixed regime of monarchy and democracy and reduces participation to the electoral relationship between voter and elected representative of a political party. The methodological framework of the Kelsenian project of legal science of positive law and the Kelsenian theory of democracy is the counterpart of the Kelsenian critique of the Aristotelian project. The Metaphysics, the Nicomachean Ethics and the Politics are each considered to contain a fundamental incoherence which reflects the Aristotelian attempt to overcome the prevailing Athenian democratic culture whilst simultaneously presenting the ­Aristotelian project as one which preserves this culture. The Kelsenian critique proceeds by presenting the Metaphysics, as exemplified by Metaphysics Lambda, as a theory of absolute value,61 and, thus, a theology: “perfection or goodness b­ elongs to the essence of reality, and all reality, therefore, as such, is in some degree good”.62 The question of the Metaphysics as first philosophy is thereby replaced with the demonstration of the incoherence of this “doctrine of absolute value”.63 For Kelsen, the Metaphysics is the foundation for the Ethics and the Politics and the Kelsenian critique reveals an analogous incoherence in both the structure of the Ethics and the Politics. The effect of the Kelsenian critique is to prevent the comprehension of the specific Aristotelian conception of the relationship between nature, man and community. Thus, in occluding this relationship, the Kelsenian critique ­simultaneously dissolves the distinctive Aristotelian notion of plurality which 58

Here, is should be emphasized, following Lepsius, that the Kelsenian theory of democracy is without a definitive formulation as it is contained in a range of texts number of texts whose concerns shift from the context of the Weimar and First Austrian Constitutions of the 1920s and early 1930s to the post-World War ii context and an academic position in the usa. See, Oliver Lepsius, “Kelsen, théoricien de la démocratie” in Olivier Jouanjan (ed.) Hans Kelsen: Forme de droit et politique de l’autonomie, (Paris: Presses Universitaires de France, 2010), 135–170. 59 See, for example, Hans Kelsen Essence and Value of Democracy (French version, as footnotes absent from English translation). 60 This is a central aspect of Kelsen’s Essence and Value of Democracy. 61 Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 3–4. 62 Ibid., 4. 63 Ibid.

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arises from this relationship. This, in turn, renders the characteristic development of the structure of an Aristotelian science of politics unintelligible. The Kelsenian critique, in the attribution of an essentially contradictory t­ heoretical framework to the Aristotelian project, is unable to grasp the Aristotelian differentiation of morality and politics in which only “a double connection of extrinsic finality”64 remains: politics serves morality through the legislation which it institutes, morality serves politics through the quality of the legislators which it provides –, [thus] Aristotle has permitted the constitution of an autonomous domain – that of the “nomothetic”, of the institutional mechanisms and specific rules of the art of governing – which became the proper object of a new science, the science of politics.65 This science of politics, in contrast to the Kelsenian legal science of positive law and theory of democracy, considers the wider domain of human action as the intersection between nature, man and community. The intersection is revealed through the Aristotelian conception of human action as orientated by deliberation (bouleusis) and deliberate choice (proairesis). For the passage from individual action to collective action – the passage from Aristotelian ­ethics to politics – is the transition from individual deliberation and choice to collective deliberation and choice. The domain of human action is an individual and collective space in which [m]an only realizes himself in the community (koinonia), in coexistence and conviviality (sunousia), of which deliberation in common is only the intellectual condition of possibility. It is in this sense that the “government of the milieu”, which one calls “politiea” or “democracy”, is the most “excellent” of the constitutions: not because more than others it is the government of the middle classes or a middle form of government, but because it opens and maintains open a space, a “milieu”, that of speech and of exchange of goods, of shared experience, of common aspirations, beyond which human life, reduced to solitude, would no longer be that of a man, but that of a beast or a god.66 64

Pierre Aubenque, “Politique et Ethique chez Aristote”, in Pierre Aubenque, Problèmes Aristotéliciens ii: Philosophie Pratique, (Paris: Vrin, 2011), 131–145 (145). 65 Ibid. 66 Pierre Aubenque, “Aristote et la Démocratie” in Pierre Aubenque, Problèmes Aristotéliciens ii: Philosophie Pratique, (Paris: Vrin, 2011), 159–167 (166–167). The final phrase the quotation is a paraphrase of Aristotle’s Politics Book 1 (Pol. 1.2.1253a28–30). See, also, (Pol. iii. 6. 1279a15–30).

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The sphere of human action – situated between that of animals and gods – is a milieu which requires the regulation and direction of laws. This, in turn, situates the milieu as a political community in which law “is both the cause and the effect”.67 For law differentiates the polis from “barbarian social formations”68 and, within the polis, from the deviations which Aristotle identifies as tyranny and, more ambivalently, a certain form of democracy.69 The polis contains a number of potential regimes, each defined by its constitution composed of laws. The internal distinction of the Aristotelian notion of the polis is the ­reflection of the Aristotelian conception of the relationship between human nature and law. [I]f it is true that divine nature is immutable and that physical nature is ­everywhere the same…it is not the same for human nature, which is characterized, one could say, by its plasticity and, at least, within certain limits, by its indetermination…The true natural law is therefore that which adapts itself to an eminently variable human nature.70 The adaptation entails that law contains a relationship between generality and particularity which is different from that of the simple process where positive laws particularize the generality of natural law.71 For Aristotle, “natural law itself, illustrated here through the notion of politeia, renders itself particular in order to conform to the diversity of nature”,72 and natural law is, therefore, not located as the invariant origin of a variable positive law. There is, thus, a variability of both natural and positive law in which the variations of the first [natural law] are necessary both in their form and in their content, while the variations of the second [positive law] are only necessary in their form: the content is here contingent and cannot be deduced from any principle.73 67

Pierre Aubenque, “La Loi Selon Aristote”, in In Pierre Aubeque, Problèmes Aristotéliciens ii: Philosophie Pratique, (Paris: Vrin, 2011), 79–91 (83). 68 Ibid. 69 As Aubenque indicates (ibid., fn4), the ambivalence of Aristotle in regard to democracy relates to the Aristotelian identification of a deviant form of democracy, in contrast to a moderate form of democracy in (Pol. iii, 7, 1279b4), which exists with the Aristotelian support for a generalization of rotation of office (Pol. iii, 6, 1279a8–15). 70 Pierre Aubenque, “La Loi Selon Aristote”, 87–88. 71 Ibid., 88. 72 Ibid. 73 Ibid. Here, Aubenque relies upon the discussion in the Nicomachean Ethics (EN. 1134b19– 1135a6). This Aristotelian position also finds expression in Book iv of Aristotle’s Politics (Pol. iv, 1, 1289a11–25).

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The variability expresses the plurality of forms of polis and the presentation of this plurality, for Aristotle, is an integral element of a considered reflection upon – a science of politics – rather than immediate identification with a particular form of existing polis. The distance introduced by the Aristotelian reflection is created by an analysis which indicates the limits evident in each regime and extends from those examined in Book 3 of the Politics to the “many purely imaginary…but not[…] impossible”74 conditions of the regime presented in Book 7. The reflective distance furnishes an understanding in which politics “while […] not open to a perfect or utopian resolution” remains “permanently revisable”.75 It is this capacity for revision, and not the perpetuation of a tradition, which orientates the Aristotelian science of politics.76 5 Politics 5.1 Kelsen’s Anti-politics The contradictions which the Kelsenian critical analysis considers to have been revealed in Aristotle’s philosophical project are held to be the reflection of the Aristotelian response to a particular historical conjuncture: the conflict between Athens and the kingdom of Macedon under Philip of Macedon. Here, the biographical and the philosophical are held to be intimately intertwined in Aristotle with the Aristotelian presence in Athens, participation in Plato’s academy, the move from Athens to presence at the Macedonian court and the tutorship of Philip’s son Alexander and with the subsequent return to Athens, after the Treaty of Corinth, and foundation of Aristotle’s philosophical school. The reflection of this conjucture in the Politics is revealed, for Kelsen, in which the fundamental contradiction of the Aristotelian politics, to which the ethics and the metaphysics contribute, the apparently irreconcilable opposition between the two political ideals of a hereditary monarchy and of a moderate democracy, explain themselves when the Aristotelian conception is confronted with the historical reality of its time, if we remember 74 (Pol. vii, 4, 1325b38–39). Here, following the analysis of the purpose of Book 7 in Steven Salkever, “Whose Prayer? The Best Regime of Book 7 and the Lessons of Aristotle’s Politics”, Political Theory, 35, 1, (2007), 29–46. 75 Steven Salkever, “Whose Prayer?”, 41. 76 As also emphasized by Aubeque, see Pierre Aubenque, “Aristotle Etait-Il Communitariste?”, in Pierre Aubenque, Problèmes Aristotéliciens ii: Philosophie Pratique, (Paris: Vrin, 2011), 169–181.

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the ­object of the great struggle between the Greek city republics, at the head of which Athens stood, and the Macedonian monarchy, which was in power at the time when Aristotle wrote [completed] his Politics.77 This fundamental contradiction is, for Kelsen, refracted through the purportedly different periods in which the Books of the Politics were completed.78 Here, the contrast is between the early ideal city-state of Book vii and the later “theory of government of Books i, iii–vi” which is, for Kelsen, centred upon an examination of different, principally Greek, forms of constitution, and never proceeds to a more general theory of the state nor “a thought of the possibility or of the necessity of a national state, comprising all the Greeks”.79 5.1.1 A Theory of Constitutions The purported distinction between the Books of the Politics is reinforced in the Kelsenian analysis through reference to the Treaty of Corinth. For it is after the conclusion of this Treaty that Aristotle returns to Athens and, for Kelsen, in accordance with the interpretation of the chronology of the Books of the Politics, completes those Books which are marked by the mature, realist orientation. Books i, iii–vi of the Politics, through the presentation of forms of constitution, indicate, for Kelsen, that both monarchy and a moderate or mixed democracy can be accorded the status of the best regime. The apparent paradox of the text – the “strange attitude”80 of Aristotle – becomes comprehensible once placed within the context created by the Treaty of Corinth. For Kelsen, the Treaty of Corinth preserves the two forms of constitution and situates them in the distinct domains of foreign and domestic affairs respectively.81 Hereditary monarchy is orientated to foreign affairs and the mixed or moderate ­democracy, distinguished by its “obligation to afford protection to property”,82 is orientated to domestic affairs. The Macedonian hereditary monarchy remains outside the alliance of Greek states created by the Treaty, but is situated in a position of leader of the 77 78

Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 52. Here, Kelsen relies upon a modified version of the analyses of Werner Jäger Aristoteles: Grundlegung einer Geschichte seiner Entwicklung, (Berlin: Widmann, 1923), in which the Books of the Politics are to be grouped accorded to a periodization of youthful/Platonic/ idealist and mature/realist. See, in particular, the extended discussion in fn.39 of “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”. 79 Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 60. 80 Ibid., 58. 81 Ibid. 82 Ibid.

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League created by this alliance. The figure of the hereditary monarch is situated “as federal general-in-chief with unlimited powers […] who determined the external policy of the League, and thus the policy also of the states of which it was composed”.83 The exclusive orientation to foreign policy of the Macedonian monarchy is complemented by the mixed or moderate democracy characterizing the constitution of the Greek states in the alliance. The provisions of the Treaty specifically preserve the constitutions of these Greek states “against revolutionary forces within the states, especially of a social nature”: the express prohibition of “the confiscation of fortunes, remittances of debt, the sharing of estates, and the liberation of slaves”.84 The limitation of the Aristotelian presentation, in the Politics, to the description and evaluation of forms of constitution becomes explicable as the textual expression of the political structure created by the Treaty of Corinth. The attribution of the status of best regime to both monarchy and mixed or moderate democracy is, thus, the reflection of the Treaty’s combination of these two forms of constitution. The later, realist orientation of these Books of the Politics is, for Kelsen, not merely the passive acknowledgement and description of a specific political conjuncture in the relationship between the Greek states and the Macedonian monarchy. The Politics engages in the more sophisticated task of reconciling the Greek states to the Macedonian monarchy and the overarching structure created by the Treaty of Corinth. This task which Kelsen considers to animate the construction of these Books of the Politics determines the exclusive orientation of the Aristotelian project to forms of constitution. The absence of a general theory of the state in Aristotle is the corollary of the structure of the Treaty of Corinth which, in place of a juridical framework installing a national unity in Greece, created a protectorate predicated upon the primacy of the Macedonian monarchy. The Politics, through its textual reflection of the protectorate, represents the double subordination of the democracy of the Greek states to the Macedonian monarchy. The differentation between two forms of democracy and the insistence upon the superiority of moderate or mixed democracy imposes an internal limit upon the parameters of democracy. The internal limitation is then reinforced by the subordination of this form of democracy to the Macedonian monarchy. The Politics expresses both the decline of the Greek polis and its distinctive form of democracy and the ascendancy of monarchy.

83 Ibid., 53. 84 Ibid.

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5.1.2 Kelsen’s Anti-monarchism The importance accorded by Kelsen to the Treaty of Corinth in the periodization of the composition and orientation of the theoretical framework of the Books of the Politics is an aspect of the circumscribed analysis of the text of the Politics. The Kelsenian critique is directed by the demonstration of the Politics as a text involved in the political project of the Macedonian monarchy and the consequent erosion of the democracy of the Greek polis. For Kelsen, Aristotle’s political philosophy is epoch-making, for it marks a decisive turning-point in the political ideology of antiquity. With this system, deeply rooted in ethics and metaphysics, that direction in Greek political philosophy begins which proclaims monarchy, instead of the Polis democracy, as the expression of constitutional justice.85 The Politics, in its particular combination of monarchy and democracy, marks a transitional stage in the passage to a single, monarchical form of constitution as the sole context for the subsequent development of post-Aristotelian Greek philosophy. The transition is achieved by the transformation of the relationship between philosophy and democracy in which the Aristotelian text does not place philosophy in opposition to democracy “but – with the help of philosophy – hereditary monarchy in opposition to democracy”.86 In this transition, the text of the Politics operates to support “ideologically the policy of Macedonian imperialism”.87 The Politics represents a sophisticated justification of monarchy pursued through a subtle diminution of the democratic constitution exemplified by the Greek states. The anti-monarchist emphasis of the Kelsenian critique ­reveals the Politics, beyond its specific textual justifications of monarchy, as initiating the subsequent historical process of reasserting the predominance of monarchy. The purportedly pro-monarchic orientation of the Aristotelian project in the Politics revealed by the Kelsenian critique rests upon a textual i­nterpretation which deems the Aristotelian discussion of monarchy in Book iii of the Politics insignificant. Whilst Kelsen acknowledges Aristotle’s distinctive discussion of monarchy, the distinctiveness is considered to reside in its comparatively 85 Ibid., 63. 86 Ibid., 64, fn.132. 87 Ibid.

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more effective reflection of the political structure created by the Treaty of Corinth in relation to other contemporaneous proponents of the Macedonian monarchy. The re-centering of attention on Book iii discloses a more complex and ambivalent Aristotelian consideration of monarchy. The complexity and ambivalence arise, in Book iii, from the Aristotelian incorporation and reflection upon a range of Greek theories of monarchy – ­historical and contemporaneous – within the overarching argumentative structure of the Politics.88 The central organizing elements of Book iii relate to the basis upon which an individual personifies kingship and the compatibility or coherence of these philosophical foundations of kingship with the philosophical foundations of the polis developed in the Politics. The degree of distance of the argument of Book iii from a justification or reflection of the dominance of the Macedonian monarchy is evident from the text’s “metaphysical and ontological analysis of kingship”.89 Kelsen, in contrast, considers that these levels of analysis are established intertextually, rather than within Book iii, through the presence of the analogy to monarchy, citing Homer, in Aristotle’s Metaphysics Lamda (Met., 1076a). For Kelsen, in Metaphysics Lamda, it is the Aristotelian statement that “The world refuses to be governed badly”; and its connection to the citation from Homer that “The rule of many is not good; one ruler let there be”,90 which establishes the connection between Aristotelian ontology and monarchy. Hence, [i]n the absolute being, in the being as such, this ontology recognizes an absolute monarchy. And as the being obviously is well governed, it can have but one ruler, the godhead, who, himself immovable, moves the world to good and who is to be represented as sole ruler.91 In Book iii of the Politics, the discussion of monarchy, and its attendant ontological and metaphysical analysis, arises after a discussion of the rule of the many which, rather than engaging in a simple rejection, presents a sustained 88

The argument here draws upon Carol Atak, “Aristotle’s Pambasileia and the Metaphysics of Monarchy”, Polis, 32, (2015), 297–320; which is considered to be a more plausible discussion of the Aristotelian approach to monarchy in Book iii than that advanced by P.A. Vander Waerdt, “Kingship and Philosophy in Aristotle’s Best Regime”, Phronesis, 30, no. 3 (1985), 249–273 and W.R. Newell, “Superlative Virtue: The Problem of Monarchy in Aristotle’s ‘Politics’”, The Western Political Quarterly, 40, no. 1 (1987), 159–178. 89 Atak, “Aristotle’s Pambasileia and the Metaphysics of Monarchy”, 299. 90 Homer, Iliad, ii, 204. 91 Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”, 4.

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analysis of its integral elements.92 It is then in relation to this preceding analysis that the Aristotelian presentation and analysis of monarchy is developed. The Aristotelian analysis proceeds to a type of monarchy – absolute monarchy (Pambasileia) – which finds no inherence in either a contemporaneous or historical individual. The lack of inherence indicates that the typology responds to a critical philosophical reflection which is not animated by the simple demonstration of the superiority of monarchy to democracy. The typology proceeds as a critical analysis of monarchy and its justifications and situates absolute monarchy beyond an immediate comparative evaluation with democracy.93 The position of absolute monarchy is one of as yet unactualized possibility which is identified philosophically as an aspect of the further differentiation and classification of forms of rule and rulership. Absolute monarchy, in its difference from the rule of the many, expresses, in part, “a (possibly counterfactual) counterexample to the ‘republican’ phenomenon of equal citizens organizing their affairs in the polis context (Politics 3.1–12)”.94 It is this relationship of comparative difference, rather than comparative superiority, which determines the structure of Book iii: “A kingship is then still “political” in the general sense of political leadership, needed for the well-being of the king’s subjects, but not anymore in the narrow sense, like an aristocracy, as (best) regime with political rule”.95 This, in turn, renders problematic Kelsen’s emphasis upon the Aristotelian contradiction of the retention of the democratic ideal of active participation by every citizen in government and public administration which is combined with placing above this democratic ideal – in the same manner as in Aristotelian ethics – the autocratic ideal of a contemplative life. The Kelsenian interpretation insists that the difference between two modes of life (theoretical or ethical) results in a perpetually unresolved choice between democracy and hereditary monarchy, because there are two forms of the “good life” which are the end of political life. It is this insistence which the argumentative structure of Book iii resists.96

92 93 94 95 96

See, Elsa Bouchard, “Analogies du pouvoir partagé: remarques sur Aristote, ‘Politique’ iii.11”, Phronesis, 56, no. 2 (2011), 162–179, for a discussion of the philosophical status and coherence of the Aristotelian analysis of the rule of the many. As emphasized by Atak, “Aristotle’s Pambasileia and the Metaphysics of Monarchy”. Ibid., 298. Brecht Buekenhout, “Kingly versus Political Rule in Aristotle’s Politics”, Apeiron, 49(4), 515–537 (536). It is the ambivalence of Aristotle in regard to monarchy which is, for Aubenque, intimately associated with Aristotle’s ambivalence toward democracy. See, Pierre Aubenque, “Aristotle et la Démocratie”.

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6 Conclusion One of the most interesting aspects of Kelsen’s critique of Aristotle is the explicit focus upon the dual morality in Aristotle’s theory of ethics and politics. Whilst Kelsen rejects Aristotle’s morality of contemplative life as a theology, he embraces it as science. Kelsenian Neopositivism rejects the claim that s­ cience is a methodology of pure contemplation as it embraces a common scientific enterprise which considers the methodology of science to be an intrinsic component of a democracy. It seeks the widest dissemination of the ­methodological reflection which this activity involves as an integral element in the formation of democratic individuals who read, write, and discuss. The limitation of this Kelsenian position is apparent from the absence of a civic morality within this project of a contemplative science of positive law and theory of democracy. The absence is the corollary of Kelsen’s incapacity to recognize that an ethics is irreducible to values, and is indispensable for the development the essential relationship between personal autonomy and political institutions. Hence, the Kelsenian insistence upon the duality and, thus, the contradiction of Aristotelian philosophy is, on the contrary, the expression of the central duality between two main functions of political ­organization. A citizen’s choice of a particular mode of life enters into a reciprocal relationship with the political institutions which express and shape that mode of life. This represents the fundamental Aristotelian insight into the connection between ethics and politics. Bibliography Antonov, Mikhail. “The Legal Conceptions of Hans Kelsen and Eugen Ehrlich: Weighing Human Rights and Sovereignty”, Higher School of Economics Research Paper No. WP BRP 62 (2016). Aristotle. Metaphysics. Books i–ix Books i–ix. Translated by Hugh Tredennick, (Cambridge, Mass.; London: Harvard University Press, 1933). Aristotle. “Physics”. In The complete works of Aristotle: the revised Oxford translation, Vol. i translated by R.P. Hardie and R.K. Gaye, edited by Jonathan Barnes, 315–446, (Princeton, N.J.: Princeton University Press, 1984a). Aristotle. “Ethics”. In The complete works of Aristotle: the revised Oxford translation, Vol. ii translated by W.D. Ross and J.O. Urmson, edited by Jonathan Barnes, 1729–1867, (Princeton, N.J.: Princeton University Press, 1984b). Aristotle. “Politics”. In The complete works of Aristotle: the revised Oxford translation, Vol. ii translated by W.D Ross. and J.O. Urmson, edited by Jonathan Barnes, 1986– 2129, (Princeton, N.J.: Princeton University Press, 1984c).

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Atak, Carol. “Aristotle’s Pambasileia and the Metaphysics of Monarchy”, Polis, 32, (2015): 297–320. Aubenque, Pierre. “La Loi Selon Aristote”. In Problèmes Aristotéliciens ii: Philosophie Pratique, Pierre Aubenque, 79–91, (Paris: Vrin, 2011a). Aubenque, Pierre. “Politique et Ethique chez Aristote”. In Problèmes Aristotéliciens ii: Philosophie Pratique, Pierre Aubenque, 131–145, (Paris: Vrin, 2011b). Aubenque, Pierre. “Aristote et la Démocratie”. In Problèmes Aristotéliciens ii: Philosophie Pratique, Pierre Aubenque, 159–167, (Paris: Vrin, 2011c). Aubenque, Pierre. “Aristotle Etait-Il Communitariste?”, in Problèmes Aristotéliciens ii: Philosophie Pratique, Pierre Aubenque, 169–181, (Paris: Vrin, 2011d). Austin, John. The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence, (London: Weidenfeld and Nicolson, 1954). Balme, David M. “The Place of Biology in Aristotle’s Philosophy”. In Philosophical Issues in Aristotle’s Biology edited by A. Gotthelf and J.G. Lennox, 9–20, (Cambridge: Cambridge University Press, 1987). Barnes, Jonathan. “Review: La Classification Des Animaux Chez Aristote. Statut de La Biologie Etunité de L’aristotélisme by Pierre Pellegrin”, The Classical Review, New Series, 33, no. 2 (1983): 334–335. Beloch, Karl Julius. Griechische Geschichte, (Strasbourg: Trübner, 1912). de Benalsazar, Sébastien. “Kelsen et L’approche Historiciste Du Droit Natural Classique”, Droits 2, no. 48 (2008): 219–234. Bouchard, Elsa. “Analogies du pouvoir partagé: remarques sur Aristote, ‘Politique’ iii.11”, Phronesis, 56, no. 2 (2011): 162–179. Buekenhout, Brecht. “Kingly versus Political Rule in Aristotle’s Politics”, Apeiron, 49 (4): 515–537 Burns, Tony. Aristotle and Natural Law, (London: Bloomsbury Publishing, 2011). Clark, Stephen R.L. “Review of Aristotle’s Classification of Animals: Biology and the Conceptual Unity of the Aristotelian Corpus by Pierre Pellegrin and Anthony ­Preus”, Journal of the History of Philosophy 27, no.2 (1989): 301–302. Darwin, Charles. The Origin of Species. Edited by L. Harrison Matthews, (London; New York: Dent; E.P. Dutton, 1972). Eikeland, Olav. The Ways of Aristotle: Aristotelian Phronesis, Aristotelian Philosophy of Dialogue and Action Research, (Bern: Peter Lang, 2008). Freeland, Cynthia A. “The Origins of Civilization in Greek and Roman Thought by Sue Blundell; Aristotle’s Classification of Animals: Biology and the Conceptual Unity of the Aristotelian Corpus by Pierre Pellegrin and Anthony Preus”, iisis 79, no. 2 (1988): 339–340. García-Salmones Rovira, Mónica. The Project of Positivism in International Law, (­Oxford: Oxford University Press, 2013). Gilliard, Frank W. “Teleological Development in the “Athenaion Politeia””, Historia: Zeitschrift für Alte Geschichte, 20, (4) (1971): 430–435.

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Gotthelf, Allan. “Darwin on Aristotle”, Journal of the History of Biology 32, no. 1 (1999): 3–30. Hart, H.L.A. The Concept of Law, (Oxford: Clarendon Press, 1961). Hobbes, Thomas. Leviathan, or the Matter, Forme & Power of a Commonwealth, Ecclesiasticall and Civill. Edited by A.R Waller, (Cambridge: University Press, 1904). Huppes-Cluysenaer, E.A. “Waarneming en theorie: naar een nieuw formalisme in empirische wetenschap en rechtswetenschap”. [s.n.], 1995. Huppes-Cluysenaer, Liesbeth. “The Individual Realism of Aristotle”. Edited by Sebastião Trogo, Aluisio Santiago, and Nuno M.M.S Coelho. Revista Da Faculdade de Direito de Conselheiro Lafaiete Nova fase, no. 3, special issue (2007): 65–81. Jabloner, Clemens, and Klaus Zeleny. “Kelsen Und Die Griechischen Philosophen – Eine Einführung”. In Griechische Philosophie Im Spiegel Hans Kelsens, edited by Clemens Jabloner, Robert Walter, and Klaus Zeleny, 1–13, (Vienna: Manz, 2006). Jhering. “Vertrauliche Briefe über die heutige Jurisprudenz. Von einem Unbekannten. !. Brief: Über die civilistische Konstruktion”. In Interessenjurisprudenz; edited by Günter Ellscheid and Winfried Hassemer, (Darmstadt: Wissenschaftliche Buchgesellschaft, 1974). Kaerst, Julius. Geschichte des hellenischen Zeitalters. Bd. 1–2:1, (Leipzig: B.G. Teubner, 1901). Kant, Immanuel. “An Answer to the Question: What Is Enlightenment”, in Kant’s Political Writings 2nd Enlarged Edition, edited by Hans Reiss and translated by N.B. Nisbet, 54–60, (Cambridge: Cambridge University Press, 2016). Keaney, John J. “The Structure of Aristotle’s Athenaion Politeia”, Harvard Studies in Classical Philology, 67 (1963): 115–146. Kelsen, H. “Aristotle and Hellenic-Macedonian Policy”. In Articles on Aristotle. 2, Ethics and Politics, edited by Jonathan Barnes, Malcolm Schofield, and Richard Sorabji, 170–194, (London: Duckworth, 1977). Kelsen, Hans. Pure Theory of Law. Translated by Max Knight, (Union, N.J.: Lawbook Exchange, 2002a) (German original 1960). Kelsen, Hans. Introduction to the Problems of Legal Theory (A Translation of the Reine Rechtslehre or Pure Theory of Law) translated by Bonnie Lic Paulson and Stanley L. Paulson, (Oxford: Oxford University Press, 2002b) (German original 1934) Kelsen, Hans. “The Law as a Specific Social Technique”, University of Chicago Law Review, no. 9 (1942 1941): 75–98. Kelsen, Hans. “The Philosophy of Aristotle and the Hellenic-Macedonian Policy”. Ethics 48, no. 1 (1937a): 1–64. Kelsen, Hans. The Philosophy of Aristotle and the Hellenic-Macedonian Policy, 1st ed. Vol. xlviii, The International Journal of Ethics, 1937b. Kersting, Wolfgang. “Kelsen Und Aristoteles”. In Griechische Philosophie Im Spiegel Hans Kelsens, edited by Clemens Jabloner, Robert Walter, and Klaus Zeleny, 15–30, (Vienna: Manz, 2006).

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Labarrière, Jean-Louis. “The Articulation and Hierarchy of Knowledge in Aristotle’s thought”, Diogenes, No. 178, Vol. 45 (2), (1997): 23–31. Lefebvre, David. “Anti-individualisme et promotion des individualités. Sur les rapports entre l’éthique et la politique chez Aristote”, Les Cahiers Philosophiques, 77 (1998):7–41. Lepsius, Oliver. “Kelsen, théoricien de la démocratie”. In Hans Kelsen: Forme de droit et politique de l’autonomie, edited by Olivier Jouanjan, 135–170, (Paris: Presses Universitaires de France, 2010). Natali, Carlo. The Wisdom of Aristotle, (New Jersey: SUNY Press, 2001). Newell, W.R. ‘Superlative Virtue: the Problem of Monarchy in Aristotle’s Politics’, ­Western Political Research Quarterly, 40, no. 1 (1987): 159–178. Niemi, Matti Ilmari. “Form and Substance in Legal Reasoning: Two Conceptions”, Ratio Juris 23, no. 4 (2010): 479–492. Paulson. “Zwei Wiener Welten Und Ein Anknüpfungspunkt: Carnaps Aufbau Kelsen’s Reine Rechtslehre Und Das Streben Nach Objectivität”. In Logischer Empirismus Und Reine Rechtslehre. Beziehungen Zwischen Dem Wiener Kreis Und Der Hans Kelsen-Schule., edited by Friedrich Stadler and Clemens Jabloner, 137–190, (Vienna: Springer Verlag, 2001). Pellegrin, Pierre. Aristotle’s Classification of Animals: Biology and the Conceptual Unity of the Aristotelian Corpus, (University of California Press, 1986). Pound. “Sociology of Law, Chapter xi”. In Twentieth Century Sociology, edited by ­Georges Gurvitch and Wilbert Ellis Moore, (New York: Philosophical Library, 1945). Rousseau, Jean-Jacques. “On the Social Contract”. In Rousseau: The Social Contract and other later political writings translated and edited by Victor Gourevitch, 39–152, (Cambridge: Cambridge University Press, 1997). Salkever, Steven. “Whose Prayer? The Best Regime of Book 7 and the Lessons of Aristotle’s Politics”, Political Theory, 35, 1, (2007), 29–46. Savigny, Friedrich Carl von. “Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft”. In Thibaut und Savigny: ihre programmatischen Schriften, edited by H Hattenhauer, (München: Vahlen, 1973). Stadler, Friedrich. “Logischer Empirismus Und Reine Rechtslehre. Über Familienähnlichkeiten”. In Logischer Empirismus Und Reine Rechtslehre. Beziehungen Zwischen Dem Wiener Kreis Und Der Hans Kelsen-Schule., edited by Clemens Jabloner and Friedrich Stadler, IX–XXI, (Vienna: Springer, 2001). Stadler, Friedrich. The Vienna Circle: Studies in the Origins, Development, and Influence of Logical Empiricism, (Vienna: Springer, 2015). Steel, Daniel. “What If the Principle of Induction Is Normative? Formal Learning Theory and Hume’s Problem”, International Studies in the Philosophy of Science 24, no. 2 (2010): 171–185.

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Timasheff, Nicholas S. An Introduction to the Sociology of Law, (Cambridge [Mass].: Harvard University Committee on Research in the Social Sciences, 1939). Toye, David L. “Aristotle’s Other Politeiai: Was the Athenaion Politeia Atypical?”, The Classical Journal, 94, (3) (1999): 235–253. Van der Waerdt, P.A. “Kingship and Philosophy in Aristotle’s Best Regime”, Phronesis, 30, no. 3 (1985): 249–273. von Fritz, Kurt. “The Composition of Aristotle’s Constitution of Athens and the SoCalled Dracontian Constitution”, Classical Philology, 49, (2) (1954): 73–93. Witt, Charlotte. “Review of Aristotle’s Classification of Animals: Biology and the Conceptual Unity of the Aristotelian Corpus by Pierre Pellegrin and Anthony Preus”, The Philosophical Review 98, no. 4 (1989): 543–544.

Chapter 2

To the Roots of the Universal Juridical Order: Hans Kelsen and the Staatslehre of Dante Alighieri Maurizio Cau Abstract In 1905 Hans Kelsen published Die Staatslehre des Dante Alighieri, an essay in which the jurist from Vienna analyses the “political” work of the poet, trying to reconstruct his Staatslehre. It is not a mature Kelsen yet, but in that first work we can already recognize some of the roots and the methodological perspectives that will find complete expression in Kelsen’s later production. The interest in Kelsen’s work arises not from its importance in the studies on Dante, but from the chance that it offers to reconstruct the development of the body of Kelsen’s categories’ and to highlight how much the first Kelsen owed to the dominant juridical thought. Kelsen finds a singular harmony between the features of Dante’s universal State and the elements that identify the modern Rechtstaat: a way of reading Dante’s work suitable for a precise interpretation of the European juridical experience that aims at backdating the birth of the modern form of the State. Young Kelsen’s thought has not taken the shape of his later doctrine yet, but seems to disclose the attempt to build a supranational international law that will be part of the reine Rechtslehre and of his kosmopolitisches Projekt. In Kelsen’s admiration for the systemorientierten Einheitsgedanken, of the medieval idea of law, one can recognize some of the features of the doctrinal project he will develop in the 1920s and 1930s that aimed at a subordination of national legal orders to international law.

1

The Intellectual Origins of the Young Kelsen

Traditionally, Hans Kelsen’s intellectual adventure is deemed to have started in 1911 with the publication of the Hauptprobleme der Staatsrechtslehre, the work where the Austrian jurist put his stay in Heidelberg to good use, and which opened the way to his teaching post at Vienna University. However, this work was not the first monograph written by Kelsen, who had published a book a few years earlier dedicated to Dante Alighieri’s political thought. In the vast literature dedicated to the “jurist of the century”, references to this work, which

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the majority of Kelsen’s scholars have considered an immature intellectual exercise, are very few. However, as we shall strive to demonstrate, these youthful pages reveal traits that would be characteristic of his later thinking. His attraction toward philosophy had brought the young Kelsen to attend Leo Strisower’s lectures. And it was during these courses that he encountered Dante’s political thinking and decided, against his professor’s advice, to dedicate a study to Dante’s theory of State and to observe it from the perspective of the juridical science of his own time. In 1905, a year before graduating with Eugen von Philippovich and Heinrich Lammasch, Staatslehre des Dante Alighieri was published as the third chapter of the sixth volume of Wiener Staatswissenschaftliche Studien edited by Edmund Bernatzik and Philippovich. It is certainly not possible to establish a direct filiation of the long gestation of Kelsen’s Reine Rechtslehre to this earliest work dedicated to Dante, but some methodological approaches typical of the Austrian jurist’s later production can be recognised in this first work.1 In Kelsen’s earliest work, no traces can be found of the Neo-Kantian matrix which was to deeply mark the development of his theoretical analysis, nor are the doctrinal bases, on which he was to build his attempt to make juridical science autonomous by purifying it from political values and demands, fully outlined. The purpose, openly stated by the young Kelsen, consisted rather in “systematically showing from a juridical point of view […] the general doctrine of the State according to the Poet”.2 The matter, then, was not to simply retrace the juridical implications arising within a text from the literary tradition, but rather to reconstruct a more general juridical doctrine starting from the Poet’s writings. This obviously derives from the peculiar feature of Monarchia, Dante’s work to which Kelsen had turned his attention and which represented “one of the heights of the political thought of the 14thcentury and the entire Latin Middle Ages”.3 Kelsen’s analysis started from the assumption that Dante’s doctrine of the State would be “the most excellent expression of the Medieval doctrine and at 1 Horst Dreier has expressed a similar view, although limited to implications linked to Kelsen’s international law doctrines, “Hans Kelsen (1881–1973): Jurist des Jahrhunderts?”, in Deutsche Juristen jüdischer Herkunft, ed. Helmut Heinrichs, (Munich: Beck, 1993), 713. 2 Hans Kelsen, Die Staatslehre des Dante Alighieri, (Vienna and Leipzig: Deuticke, 1905); Italian translation: La teoria dello Stato in Dante, (Bologna: Boni, 1974), xxviii. All references are to the Italian translation. 3 Diego Quaglioni, “Alighieri Dante”, in Enciclopedia del pensiero politico. Autori, concetti, dottrine, (Bari-Roma: Laterza, 2000), 13. For a more thorough analysis of juridical and political implications of Dante’s work, see Diego Quaglioni, “Introduzione”, in Dante Alighieri, Opere, ii, ed. Marco Santagata, (Milan: Mondadori, 2014), 809–883.

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the same time – at least in several points – its outgrowing”.4 In it, the struggle of the Medieval man of Scholasticism against the modernity of the Renaissance would find its expression. According to such an interpretation, the doctrine of the Medieval State, which, for Kelsen, had developed from a combination of conceptual principles associated with Christianity and antiquity, by neglecting instead the factors of “Germanism” and feudal “effectual statehood”,5 had found in Dante its “most lucid and consequential”6 accomplishment. According to Kelsen, the early beginnings of a modern concept of statehood could be perceived in it, whereby – as a result of the dissemination of Aristotle’s Politics – the process of the autonomization of the philosophy of State and law was enabled to assert itself against the constraints of theology. This intermingling of tradition and innovation is detected by Kelsen in the analysis of Dante’s political reflection and activity, which he placed within the political and institutional context of Florence, considered from a Burckhardtian position as “the world’s first modern State”.7 After having reviewed the most famous personalities of 13th century European public law (Thomas, Ptolemy da Lucca, Aegidius Romanus, John of Paris, Pierre Dubois, Jordan of Osnabrück), Kelsen outlined the features of Dante’s State doctrine. The expression “theory of the State” (Staatslehre) referred the elements of Dante’s political-juridical thinking to the conceptual categories pertaining to the public law tradition of 19th century Germany and reveals the underlying projection, by Kelsen, of modern interpretation models onto Medieval political thought. This is not a mere matter of terminology, as behind the assertion of the concept of “Staatslehre” one may see the influence of the cultural project pursued by the German juridical science of the 19th century, which aimed at articulating a distinct, juridical conceptualization of the State in place of one derived from the political realm.8 After having outlined the features of the Medieval universalistic vision as a chain based on principium unitatis, keeping particular individuals, families and societies all tied together, Kelsen identified the features of the Medieval “­earthly State” in the special interpretation offered by Dante. Constructed on the likeness of God’s seigneury over the universe, and based on the principle 4 Kelsen, La teoria dello Stato in Dante, xxviii. 5 Cf. ibid., 20. 6 Ibid., 47. 7 Jacob Burckhardt, Kultur der Renaissence in Italien, (Leipzig: Seemann 1869), 78. 8 For a review of the evolution of the German state doctrine between the 18th and 19th centuries and the achievement of Staatslehre between Naturrecht, Rechtsphilosophie and Allgemeine Staatsrecht see Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, (München: Beck, 1992), 122–123; 423–426.

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bringing order to the cosmos within a unified entity, Dante’s State is identified with the “universal State of the temporal empire”. For Kelsen, its historical concretization is represented by the Roman-German empire and the continuity it manifested with imperium romanum.9 “This temporal monarchy”, Kelsen states, is the State for him, the only independent and supreme State, before which all other kingdoms and territorial States are more or less provincial. This enormous entity, whose territory is the earth, whose people is humankind and whose power is represented by the empire, this is Dante’s State.10 As is well known, the first book of Monarchia is dedicated to the question of the “need for universal monarchy for bringing order to the world”.11 In order to demonstrate this need, Dante proceeds first to define the purposes of humankind, for whose protection the achievement of a universal kingdom would be useful and needed. The ultimate purpose of humankind is found, according to Dante, in “actuare semper totam potentiam intellectus possibilis, per prius ad speculandum et secundario propter hoc ad operandum per suam extensionem”,12 therefore, in the complete fulfilment of cognitive faculties, which is made possible solely in a state of peace and lack of conflicts. The need for a universal monarchic order, as the institution capable of assuring and making peace, justice and freedom possible, is thought by Dante precisely as the means to pursue these goals. In examining the range of positions adopted by Dante to justify the State, Kelsen establishes a distinctive and singular affinity with the central elements of the definition of a “Rule-of-Law State” (Rechtstaat). For Kelsen the necessity to restore peace, justice and freedom characterising Dante’s State are 9 Kelsen, La teoria dello stato in Dante, 62. 10 Ibid. 11 Monarchia 1, i. For all references to Dante’s work, see the national edition edited by Società Dantesca Italiana; Dante Alighieri, Monarchia, ed. Prue Shaw, (Firenze: Le Lettere, 2009). 12 See Monarchia i, v: “Nunc constat quos totum humanum genus ordinatur ad unum, ut iam preostensum fuit: ergo unum oportet esse regulans sive regens, et hoc ‘Monarcha’ sive ‘Imperator’ dici debet. Et sic patet quod ad bene esse mundi nocesse est Monarchiam esse sivi Imperium”, Dante, Monarchia, 345. [“Now it has already been established above that the whole human race is directed to one goal. Therefore it follows that there ought to be one person directing or ruling it, and this person would propertly be called the ‘monarch’ or ‘emperor’. And thus it is clear that it is necessary for the well-being of the world that there be monarchy or empire”. Dante’s Monarchia, translated with a commentary by Richard Kay, (Toronto: Pontifical Institute of Medieval Studies, 1998), 32–33.]

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(both historically and conceptually) the same as those of the “so-called Ruleof-Law State”.13 This, in turn, would merely be the medium of the more general process of the realization of the potential of the human intellect because Dante did not reserve merely the purpose of law to his State, but rather the purpose of culture, and thus he recognised the idea of the modern State of culture, one of the first to do so in the Middle Ages.14 As emphasized by Vittorio Frosini, in reality these are not two antithetical definitions, but rather “a dual definition of the State, which has a double root also in Dante’s mind set”.15 One would refer to the juridical definition of the State, as imperium and iurisdictio, as expressed within parameters of the law; the second would refer to (in the intermingling of Aristotelian and Christian aspirations) the protection of humana civilitas as the very purpose of the State.16 Both the definitions used by Kelsen, either that of the “Rule-of-law State” or that of the “modern State of culture”, refer obviously to historical-juridical categories which are not immediately and self-evidently applicable to Dante’s thinking. In particular, regarding the idea of the rule-of-law State perceived by Kelsen in the pages of Monarchia, it seems that a clearly external attribution of typical traits of modern statehood was assigned to the Medieval thought of public law. Rather than being an intimate expression of the juridical traits of the Medieval political and institutional order, the rule-of-law State that Kelsen presupposes was in fact the development of the political-juridical doctrines which, starting from the notions of classical liberalism, had been transmitted to 19th century Constitutionalism.17 Therefore, Kelsen attributed modern traits to the Medieval principle of legality, of which the universal empire represented both “the symbol and concrete 13 Kelsen, La teoria dello Stato in Dante, 78. 14 Ibid., 78–79. 15 Vittorio Frosini, “Kelsen e Dante”, in Kelsen, La teoria dello Stato in Dante, xvii. 16 Cf. Claudia Di Fonzo, Dante tra diritto, teologia ed esegesi antica, (Napoli: Edises, 2012), 45–48. 17 The notion of Rule of law has attained a degree of prominence in the juridical and political tradition of the last two centuries, but its definition continues to be quite problematic. As it has been recently written, “the complexity of the semantic field of ‘Stato di diritto’ is not a recent phenomenon, but a profile which has characterized the entire historical course of this expression: an expression which cannot be separated from the national cultures and societies where it was developed and used; an expression linked to politicaljuridical projects and conflicts, a congenitally polysemic, ideologically meaningful, valueladen word”, Pietro Costa and Danilo Zolo, Lo Stato di diritto. Storia, teoria, critica, (Milano: Feltrinelli, 2002), 5–6.

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accomplishment”.18 In these early analyses by Kelsen, it appears we are witnessing an attempt to establish the retrospective origin of the birth of the modern form of statehood, with an underlying tonality in which one can sense the echoes of the atmosphere of late German juridical Romanticism based on Organicism. Kelsen himself does seem to be fully aware of the theoretical and historical-juridical implications of this outline. Some elements seem to have been taken a-critically, as we shall see, from the public law approach which was prevailing at the time, and, in particular, from Jellinek’s Allgemeine Staatslehre19 and Otto von Gierke’s thinking. A few years after the publication of Staatslehre des Dante Alighieri, in a short contribution in the Österreichische Rundschau, Kelsen illustrated the elements of his own idea of the rule-of-law State and, in particular, its deeply “Germanic” roots, as the figure of Dante’s emperor appeared entirely “Germanic” to the jurist from Vienna:20 Building the State as a legal entity comprising all its activities, its many and diverse manifestations of power, this is the foundation of public law, whose logical premise is the rule-of-law State (Rechtstaat). Of course not a State merely consisting in its executive power and jurisdictional apparatus, but rather a State being determined in all its activities through the legal system, meant juridically in all directions, this is the idea of the rule-of-law State, which is so deeply engrained in the German spirit to be always and again in opposition with the political principle of a­ bsolutism, whose theoretical reverse consists in relinquishing the possibility of juridically building the State. And this very idea of the rule-of-law State is taking hold with much deeper roots than fragile argumentations of those who would like to become its sextons. This passage shows the effort engaged in by Kelsen in those years to excavate the roots of Rechtsstaat from a somewhat atavistic Germanic propensity towards a juridical State building and the juridification of its essential activities. This approach looks quite similar to the one adopted by Kelsen in his e­ xploring of Dante’s Monarchia. In other words, Kelsen’s interpretation of Dante seemed to spring from the same cultural climate that saw the need to counter the 18 19 20

Francesco Calasso, I glossatori e la teoria della sovranità (Milano: Giuffrè, 1957), 167. Georg Jellinek, Allgemeine Staatslehre (Berlin, 1900). Hans Kelsen, “Rechtsstaat und Staatsrecht”, Österreichische Rundschau 36 (1913): 88–94. For the evolution of the term “Rechtsstaat”, whose first use might still be traced back to Robert von Mohl, see Pietro Costa, “Lo Stato di diritto: un’introduzione”, in Lo Stato di diritto. Storia, teoria, critica, 89–170, 263–283.

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a­ rbitrariness of the monarchical power of the post-absolutist State by contemplating the juridification of the State and considering political powers and ­institutions just as organs of the legal order.21 It is not yet possible to clearly see in Kelsen’s pages from 1905 the re-founding of the State within the juridical framework (and of the law as a positive law founded upon itself) which, starting from Hauptprobleme in 1911, he was to pursue with increasing methodological rigour. However, it is already possible to recognise the fondness, already clear in Kelsen, for the State meant as a “function” of the legal system; an element that he linked to the vision of the Medieval monarch who exercised his power in the name of a law (ius) to which he himself is subordinate.22 Thus, in the study dedicated to Dante, Kelsen seems to investigate “the prehistory of the rule-of-law State”,23 namely, the context in which, although not yet fully formalised, the concept of Rechtsstaat was already present. In their substantial generalisation, the traits that the young Kelsen attributed to the notion of “rule-of-law State” are partly different from those found in his later more mature works, where he would attempt to reshape the boundaries of the traditional theoretical heritage of the Rechstaat starting from suggestions arising from Neo-Kantian epistemology. Instead, his understanding that the State’s power derived from state building (and not solely from power), and his confidence in the process of the juridification of state functions and activities are also to be found in the later evolution of his thinking.24 2

“Modernizing” Interpretation and Its Pitfalls

Kelsen’s early attention was, thus, completely focused on the innovative features of Dante’s analysis, on what he considered Dante’s ability to brilliantly anticipate “the ideas of a new era”,25 even though Dante was a product of the Middle Ages, through a melding of Scholastic thought and the aspirations 21 22

23 24 25

For a review of the German doctrinal debate, from Kaiserprinzip to a progressive parliamentarization, now see Maria Agostina Cabiddu, “Presentazione”, in Hans Kelsen, Lo Stato come integrazione, (Milano: Giuffrè, 2001), xx–xxxii. The debate on whether Kelsen belonged to the juridical climate of tradition, as codified in the so-called Gerber-Laband-Jellinek line, is still alive; in this regard, see Maurizio Fioravanti, “Kelsen., Schmitt e la tradizione giuridica dell’Ottocento”, in Crisi istituzionale e teoria dello Stato in Germania dopo la Prima guerra mondiale, eds. Gustavo Gozzi and Pierangelo Schiera, (Bologna: il Mulino, 1987), 51–103. Pietro Costa, “Lo Stato di diritto: un’introduzione storica”, 91. For an analysis of the idea of rule-of-law State elaborated by Kelsen in his more mature years, see Giorgio Bongiovanni, “Stato di diritto e giustizia costituzionale. Hans Kelsen e la Costituzione austriaca del 1920”, in Lo Stato di diritto. Storia, teoria, critica, 317–346. Hans Kelsen, La teoria dello Stato in Dante, 103.

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toward modernity. In this formulation, characterized by a reading of Dante’s text which is functional to a very precise interpretation of the juridical experience of modern Europe, an underestimation or marginalization may be found concerning some central elements for the understanding not only of Dante’s universalism, but also of the entire Medieval juridical and political order. For example, this is true for the centrality of Divine Providence as the essential prerequisite for the principle of justice26 and guidance for temporal monarchy. At the same time, the inclusion of Dante’s prophetism within the canonist debate of the time was presented, by Kelsen, through a critical approach derived from the presuppositions and expectations of a person intending to find a complete and logically consistent doctrinal system within that political analysis. In the absence of this comprehension of the underlying impetus of Kelsen’s interpretation, some observations the author seems to address directly to the Poet, as in a sort of academic debate performed within Vereinigung der deutschen Staatsrechtslehrer, could not be explained. For example, the remarks made by Kelsen concerning the theological reasoning used by Dante to demonstrate – on the basis of the analogy between the monarchy and God’s rule of the universe and by virtue of Christ’s coming into the world at the time of the Augustan empire – the need for a “world empire” for human salvation.27 For Kelsen: Dante puts forward another theological argument puzzling us for its particular and typically Medieval candour, and shedding some light on the whole way of thinking which at the time was subjected to the hegemony of religion […]. The birth of Jesus at the time of Rome’s world domination was enough for the Middle Ages to declare that this form of rule was the best one.28 Kelsen’s remarks on the consequences of principio unitatis on Dante’s thinking are also similarly critical: Dante begins another very special philosophical deduction with a very questionable statement: What one can make alone would be best done so, rather than being made by several individuals […], because all that is 26

Cf. Diego Quaglioni, À une desse inconnue: la conception pré-moderne de la justice, (Paris: Publications de la Sorbonne, 2003), 93–94. 27 See the first book of Monarchia, precisely dedicated to the need for a universal monarchy capable of bringing order to the world, referring to the monarchy’s power to assure peace for humanity and the fact that Christ himself had decided to be born in the period of peace in the age of Augustus. Cf. On this topic Cesare Vasoli, “Filosofia e politica in Dante fra Convivio e Monarchia”, Letture classensi 9–10 (1982): 11–37. 28 Kelsen, La teoria dello Stato in Dante, 95–96.

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being added to that single one is superfluous and thus ungrateful toward God and Nature and therefore evil […]. Demonstrating the evident errors of these deductions would be useless; from the vantage point of our modern thought we can hardly understand these oddities; we smile at it. However, in their time, this reasoning was deemed convincing with the typical seriousness of scientific research.29 The problematic nature of Kelsen’s interpretations refers precisely to his having used “the vantage point of our modern thought” for the understanding of Medieval thinking, or, better still, to his having read it through the application of categories formalised by the 19th century doctrines of public law. Therefore, a partial distortion of not only Dante’s texts, but also of the very features of the juridical experience in the Middle Ages results from it. In particular, we are referring here to the impossibility of applying an understanding of the law, based upon the centrality of the norm and the suggestions of the “post-Enlightenment juridical mythology”, to the Medieval juridical system.30 The Medieval view of justice was, instead, marked by the sound intermingling of moral and juridical aspirations, doctrinal dimension and interpretation, so much so that not only ethical-religious considerations cannot be deemed external to Medieval juridical analysis, but rather they constitute its philosophical foundation. The Medieval ragione civile is not the result of an act of authoritarian imposition of the sovereign power, but a condition for the very existence of the political and state authority; it is a dimension of society more than a mere attribution of power.31 Therefore, more than rule-of-law State, in today’s meaning of this expression, for the Middle Ages we may talk of a legal State deriving its authority and strength from the law, and being ruled and sustained by it. It was superbly stated that in that case we did not have a State under the rule of law but rather under the rule of justice.32 29 30 31

32

Ibid., 99–100. The category has been taken from Paolo Grossi, Mitologie giuridiche della modernità, (Milano: Giuffrè, 2001), 75–82. As recently written by Paolo Grossi, “at first there was the law; political power came afterward […]. In Medieval civilization, law rests in the deep and long-lasting layers of society, its secret and hidden backbone. […] It is not the voice of power, nor does it speak with its tone, and it does not suffer from its impoverishment”, ibid., 21–22. See also Gerhard Dilcher, “Recht ohne Staat – Rechtsdurchsetzung ohne Staat? Überlegungen zur Rolle der Zwangsgewalt im mittelalterlichen Rechtsbegriff,” Quaderni fiorentini xxxiii (2001): 139–158. Ugo Nicolini, Scritti di storia del diritto italiano, (Milano: Vita e pensiero, 1983), 20–21.

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As remarked by Agostino Carrino, regarding the apparent marginality of the notion of history in Kelsen’s theory, [in the Austrian jurist] there is not any explicit or thematized philosophy of history, and yet at the basis of his thinking there is an odd combination of the philosophy of history and philosophy of science; there is therefore a belief in the value of progress and liberation through science. This is Kelsen’s ‘philosophy of history’: a somewhat mythological belief in the progressively liberating value of science.33 Thus, the attribution of specific modern traits to Dante’s thinking is, with Kelsen, functional to a historiographical project aiming at re-defining the origins of the modern State by identifying a continuity between the Middle Ages and the post-absolutist State. In the name of the defence of an impersonal bureaucratic ideal of the State, a “process of functionalization and abstractness of the Modern, which is no longer explored in its genesis, but in its ultimate, already functionalist, outcomes” is therefore generated.34 Again, in Hauptprobleme of 1911, Kelsen in fact denied that the achievement of modern statehood had marked a real break from the Medieval constitutional order. Young Kelsen’s doctrinal and historiographical sources would here come to mind, referring, in particular, to Otto von Gierke (1841–1921) and Georg Jellinek (1851–1911). Apart from the presence of certain inflections from Gierke’s lateRomantic Germanism, he seems to have taken from this author the confidence in the centrality of the historical-juridical element for the dogmatic construction of the theory of the State.35 However, it is the predominance of the notion of historical continuity which brought the first text written by the Austrian jurist into a more direct relationship with the scholar of Genossenschaftsrecht. In Gierke, we see the attempt to attribute to the Germanic tradition and the old German State some traits of the juridical tradition that were to find their 33 34 35

Antonio Carrino, “Introduzione”, in Kelsen e il problema della sovranità, ed. A. Carrino, (Napoli Roma: Edizioni scientifiche italiane, 1990), 14–15. Ibid., 13–14. Otto von Gierke, “Labands Staatsrecht und die deutsche Rechtswissenschaft”, Schmollers Jahrbuch 7 (1883), now in Labands Staatsrecht und die deutsche Rechtswissenschaft, (Darmstadt: Wissenschaftliche Buchgesellschaft, 1961), 1113. Regarding Genossenschaftslehre and, more generallly, Gierke’s methodological framework, see Stolleis, Geschichte des öffentlichen Rechts in Deutschland, 359–363; Franz Wieacker, Storia del diritto privato moderno, (Giuffrè, 1980) 155–159; Gerhard Dilcher, “Genossenschaftstheorie und Sozial­ recht: ein ʻJuristensozialismusʼ Otto v. Gierkes?”, Quaderni Fiorentini iii-iv (1974–75): 319–365; A. Janssen, Otto von Gierkes Methode der geschichtlichen Rechtswissenschaft, (Göt­ tingen: Musterschmidt, 1974).

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full historical achievement only following the development of natural law doctrines and the establishment of the rule-of-law State. As in Gierke, in the young Kelsen, there is the tendency to recognise in the “Germanic” traits the most significant elements of the Medieval juridical experience, in conformity with a historiographical project aiming at identifying the “doctrinal forerunners of the modern State”36 and smoothing (in adherence to the Organicist ­perspective) the elements of rupture characterising the course of history. During this period Georg Jellinek was also attempting to find the early traces of modern liberties in Medieval society (in particular that of Germanic traditions) and “carefully tying again the multiple threads linking the old tradition of limited power with the early English Constitutionalism”.37 The “philosophy of history” being the backdrop for Jellinek’s interpretation of the juridical phenomenon reveals the need to rethink the opposition between the Medieval political-institutional models, traditionally judged to be State-less, and the modern ones. This is not, however, a merely historiographical confrontation: the real question at issue referred to the very fate of the rule-of-law State and its feared crisis. In other words, the matter consisted in demolishing a certain ideology of “modernity” by showing how it was functional to justify a political and institutional model based on concentration of power. Young Kelsen started from a similar orientation; on the one hand, he reacted against the image of the rule-of-law State as the terminal and degenerated stage of the modern State; on the other hand, he turned to the Middle Ages in search of an organisational model for politics and law which would furnish the basis for the interpretation of contemporary challenges. Driven by the will to measure, even in Dante’s work, the closeness between the contemporary form of the State and its Medieval dimension, Kelsen seems not to have grasped some of the typical traits pertaining to the Middle Ages. Particularly striking are Kelsen’s interpretations regarding the presence of a type of doctrine of popular sovereignty in Dante’s Monarchia. Following Gierke’s Genossenschaftsrecht,38 Kelsen remarked how Dante’s monarch came closer – for his lack of tyrannical features – to the Germanic notion of s­ overeign function.39 After having stressed the “Germanic feature” of Dante’s understanding of the relationships between law and State,40 Kelsen continued to 36

The expression has been taken from Diego Quaglioni, La sovranità, (Roma-Bari: Laterza, 2004) 18. 37 Maurizio Fioravanti, “Stato”, in Enciclopedia del diritto, (Milano: Giuffrè, 1990), 708–758, 714. 38 Otto von Gierke, Das deutsche Genossenschaftsrecht, (Berlin, 1881). 39 Kelsen, La teoria dello Stato in Dante, 107–108. 40 Ibid., 110.

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illustrate how the relationship between the prince and the people, as outlined by the Poet, corresponded to the doctrine of popular sovereignty in the Middle Ages. The constraints placed upon the sovereign by the operation of the laws were the confirmation, according to Kelsen, of a notion of popular sovereignty. Kelsen’s analysis of the relationship between law and power in the Middle Ages is not particularly thorough. He presents, instead, an odd reconstruction of the relationship between the sovereign and the people, and between the divine origin of authority and the real sovereignty of the people. In this case, as well, we see a direct projection of the conceptual framework of modernity, as shown in the explicit reference to the category of representation. For Kelsen, [t]he position […] of the sovereign derives from a Divine institution only as a last resort. The divine origin of temporal authority is repeatedly highlighted by Dante […]. Thus God, as cause, disappears here as well, and acts only simply as ‘remote cause’, while the people, whose representative is the sovereign, are considered the immediate origin of sovereignty – corresponding to the idea of the doctrine of popular sovereignty.41 However, as Kelsen immediately and explicitly concedes, “[t]his thought, however is not explicitly expressed, but several circumstances show that Dante had in mind this concept, or at least a similar one”.42 As historian Arrigo Solmi wrote in 1907, reacting to the publication of Staatslehre des Dante Alighieri, we do not understand how Kelsen could have inferred a principle of popular sovereignty from these rigorously stated constraints [God’s law and human law]. In reality, for Dante, the sovereignty right is limited by the constituent principles of God’s and human law; but it is in any case of divine origin in its essence.43 41 42 43

Ibid., 108. Ibid., 108. Arrigo Solmi, “Monarchia universale e Stati particolari”, Bullettino della Società Dantesca Italiana xiii (1907), now in Il pensiero politico di Dante, (Firenze: La Voce, 1922), 123. Solmi’s criticism refers, more generally, to Kelsen’s attempt to detect an organic design of political science in Dante’s work, and his tendency to consider the Monarchia as a treatise predominantly centred on the State’s legal system and its forms, rather than a work dedicated to the doctrine of universal monarchy. Openly in opposition with the reconstruction made by Mario Chiuaudano (Dante e il diritto romano, (Firenze: Olschki, 1912)) who, in his turn, had directly recalled Kelsen’s interpretation, Solmi’s remarks were to be taken up again by Francesco Ercole in the 1920s, in his Il pensiero politico di Dante, (Milano: Alpes, 1928), 24–25.

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In this case as well, therefore, what emerges is Kelsen’s anti-historical attitude, as he continues his personal transposition, in a Medieval setting, of concepts that would be systematized only by the 19th century doctrine. The Medieval idea of sovereignty, which Dante did not detach himself from, is based on the solutio a legibus of the princeps, who, however, is subjected to a moral constraint towards the norms of the law of nations, of the natural law and God’s law.44 Although “Medieval sovereignty cannot be understood if not within the legality framework”, as it was written,45 however, the existence of a juridical constraint upon the prince’s absolute power cannot lead to the ­presumption, which Kelsen seeks to maintain, by following Gierke’s Genossenschaftsrecht, of the existence of a political authority of the people, or their political autonomy,46 nor a category of sovereignty which, devoid of a precise historical origin and content, would accompany the European historical-political experience in a linear path concluding with the juridical constructions of the 19th century State.47 In this case, as well, the young Kelsen’s conclusions may, therefore, be useful in revealing the dangers of “transplanting concepts and languages that pertain to, and are engrained in, the Medieval world without adequate filters”.48 From the concern with the destructive potential of this form of interpretation, Paolo Grossi has sought to emphasize that: We moderns currently use concepts and terms like ‘State’, ‘sovereignty’, ‘law’, ‘legality’, ‘interpretation’, charging them with the contents that modern consciousness has heavily deposited in them; concepts and terms which are inevitably compromised by those contents. If, as historians and also legal historians are self-assuredly used to do, such concepts and 44 Quaglioni, La sovranità, 27. 45 Calasso, I glossatori e la teoria della sovranità, 166. 46 See Solmi, Il pensiero politico di Dante, op. cit., p. 124. 47 See, in this regard, Quaglioni’s statement in La sovranità, 18–19: “Even when it could be acknowledged that the doctrinal tradition was capable of providing the tools for the construction of the sovereignty criterion in the early modern age, no historian of institutions or public thinking would accept today to outline in such a linear fashion a development involving the entire experience of building a civilization characterized by the dialectics between law and power, by the complex movement of the 11th-century ‘papal revolution’ and the resumption of Roman studies down to the era of juridical and political centralization of the absolutist 18th century which laid the foundation for the uniform 19th-century State”. On the issue of populus as unitary organization and source of the production of law (more than the origin and object of a theory of popular sovereignty), see Calasso, I glossatori e la teoria della sovranità, 92–97. 48 Paolo Grossi, L’ordine giuridico medievale, (Rome: Laterza, 2006), p. 10.

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terms are transplanted into the Medieval fabric almost as if a continuum linked that fabric with us; if instead, as it truly is, the Medieval/modern relationship is characterized by discontinuity, with a change of the fundamental values of the political and juridical universe; these conceptsterms are turned into a straining of historical reality and, rather than tools for an understanding, they work instead as a dangerous matrix of misunderstanding and ambiguities.49 The return to Kelsen’s early work is particularly interesting in order to understand the degree of his formation by, and contribution to, the juridical tradition that, in the first decades of the 20th century, he both brought to completion and from which he later distanced himself.50 In Kelsen’s later works, Gierke’s influence was not so evident as it is in his Staatslehre des Dante Alighieri, while the encounter with Jellinek’s doctrine would become central, starting from his stay in Heidelberg in 1908.51 3

State, Sovereignty, Imperium. At the Origins of Kelsen’s kosmopolitisches Projekt

In Dante, the State was an instrument for the achievement of a more general “purpose of culture”.52 It is through the “universal State of humankind” that, according to the poet from Florence, happiness and perfection in human life would be attained. In this Christian adaptation of an Aristotelian principle, Kelsen found the essence of Dante’s political analysis. This is an interpretation centred upon a concept, that of a “modern idea of the State of culture”, which more than casting light on Dante’s project describes (once again) the boundaries of Kelsen’s, nourished by the idea of the supremacy of the universal juridical order over the individual juridical systems of the State. Searching in Kelsen’s early work the unmistakable origins of doctrinal formulations which would 49 50

Ibid., 11. For an analysis of Kelsen and the 19th century juridical tradition, see Maurizio Fioravanti, La scienza del diritto pubblico. Dottrine dello Stato e della Costituzione tra Otto e Novecento, (Milano: Giuffrè, 2001) 605–656. 51 Despite the many references to Jellinek’s Allgemeine Staatslehre found in Die Staatslehre des Dante Alighieri, Kelsen’s consideration of the doctrine of the German jurist seems to derive, at this juncture, from a rather superficial and scholastic reading; cf. Francesco Riccobono, “Gli inizi di Kelsen: La teoria dello Stato in Dante”, Revista internazionale di filosophia del diritto 53 (1976): 262–263. 52 Kelsen, La teoria dello Stato in Dante, 79.

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find their full expression only in later decades would be inappropriate, but the suggestions guiding the work on Dante seem to find a later development and confirmation in some turning points of Kelsen’s later doctrine. Alongside Kelsen’s admiration for the “orientated unitary thinking (systemorientierten Einheitsgedanken)” of the Medieval vision,53 in the work dedicated to Dante, the favour reserved for the principle of the State’s subordination to the universal rule may be recognised; without considering its theological consequences, this position forcibly recalls the doctrinal project that would be developed in the Twenties and Thirties and refers to a subordination of state regulations to the universal juridical system of international law. In the young Kelsen the confidence in the universal significance of the systematic construction of the law is quite sound: the system of Medieval Weltanschauung has found in Dante’s works its most lucid and consequential fulfilment. All the qualities of this system, his depth of thinking, his rigorously logical consistency stand out clearly in the bright light of a great personality. Here the entire universe is ideally reconstructed in a conceptual construction based on a grand architectural layout. The earthly State should also be understood only as part of the entire building of the world, an organic member of the divine State embracing both earth and heaven.54 In the 1905 work, not only Kelsen’s fondness for wide conceptual constructions based on logical consistency seems to be clearly outlined, but also the search for a monist and unitary foundation of the theory of State.55 If on the one hand this is the result of his projecting 19th century systematic aspirations, on the other hand, it unveils the attempt to trace back in Dante’s work a possible confirmation of the foundation of the dualism between state and international law systems, with the clear supremacy of the latter. The young Kelsen’s suggestions seem somewhat to anticipate the subsequent ­presentation of the methodological justification for a legal science of positive law, as a theory of legal monism predicated upon the primacy of international law, which, already from the 1920 monograph dedicated to the issue of sovereignty, will be an integral element of a reine Rechtslehre and his kosmopolitisches Projekt.56 It is precisely within the 53

Jochen von Bernstorff, Der Glaube an das universale Recht. Zur Völkerrechtstheorie Hans Kelsens und seiner Schüler, (Baden-Baden: Nomos, 2001), p. 69. 54 Kelsen, La teoria dello Stato in Dante, 47. 55 Cf. Jochen von Bernstorff, Der Glaube an das universale Recht, 70. 56 Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu ­einer reinen Rechtslehre, (Tübingen: Mohr, 1920). For Kelsen’s doctrine around the function

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framework of Kelsen’s fundamental critique of the juridical and political category of sovereignty that his project developed for the elaboration of a system of international law as a universal juridical system above the juridical systems of the individual States. A universal community that, “having essentially the same nature of individual States, it may be indi­cated as the personification of the world or universal juridical system, as a world or universal State, as civitas maxima”.57 The conferral of this indicative status on Kelsen’s work on Dante is evident from the appearance and presence of the term civitas maxima in Kelsen’s subsequent work of the 1920s, which refers to the appropriation, of this term from Christian Wolff, within his Jus gentium methodo scientifica pertractatum 1764, of a notion of a voluntary law applicable to all nations.58 In the 1905 text, the critical appropriation of Dante is not explicitly orientated against the sovereignty principle, as it was to happen starting from Das Problem der Souveränität in 1920, but there are already several signs of Kelsen’s propensity to resituate the entirety of the sovereign or sovereignty of every ­political unit within the juridical dimension. In this, some clear affinities become evident between Kelsen’s reconstruction of Dante’s theory and the later, mature internationalist doctrine of the Austrian jurist, based on a “normologic” understanding of sovereignty, and the supremacy of the international juridical universe over the state’s individual legal systems. In Kelsen, the construction of a systematic legal science of positive law capable of overcoming the dualism between state law and international law in Heinrich Triepel’s legal theory59 is undertaken within the framework of a wider “cosmopolitical” project. This was to assume an increasingly detailed of coordination and delimitation of international law over state law, and more in general on the supranational trait of international law in Kelsen’s interpretation, see Jochen von Bernstorff, Der Glaube an das universale Recht, 39–104; Martti Koskenniemi, The gentle civilizer of nations. The rise and fall of international law 1870–1960, (Cambridge: Cambridge University Press, 2002), 238–248. 57 Kelsen, Il problema della sovranità e la teoria del diritto internazionale, 367. 58 For an analysis of this term in Kelsen’s work in the 1902s, see C. Leben, “The Notion of Civitas Maxima in Kelsen’s Work”, in C. Leben, The Advancement of International Law, (Oxford: Hart Publishing, 2010), 189–202. In the works of the 1920s, the term appears and is extensively discussed in Chapter 9 of Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts, and appears in the conclusion to the 1926 Lecture Course. 59 See, H. Triepel, Völkerrecht und Landesrecht, (Leipzig: Hirschfeld, 1899) and the later 1923 Lecture Course, “Les Rapports Entre Le Droit Interne et Le Droit International”, Recueil des cours 1923, Vol. i, (1925): 73–12. On Triepel, see U.M. Gassner, Heinrich Triepel: Leben und Werk, (Berlin: Duncker & Humblot, 1999), A. Hollerbach, “Zu Leben und Werk Heinrich Triepels”, Archiv des öffentlichen Rechts (1966): 91, 417–41 and R. Smend, “H. Triepel”, in Festschrift G. Leibholz, (Tübingen: Mohr, 1966), vol. ii, 107–120.

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formulation in the work of the 1920s and 1930s. The need, in Kelsen’s work, to redefine the state legal system through the establishment of the primacy of an international juridical framework based on supra-state and not on inter-state relations, would, perhaps, already find its covert roots in the analysis of Dante’s world empire, to which Kelsen attributed the traits of utopian ideality: This is perceived rather clearly by whoever keeps in mind the colossal scope that Dante assigned to the sovereignty of his world emperor, precisely the emperor who, as German king, was not even able to restrain the unruly princes of his country!60 Both the analysis of the direct relationship between the universal monarchy and the “sub-associations”, and the exploration of the existence of a direct relationship between the citizens of the world State and the monarch, seem to ­essentially anticipate later analyses. These analyses extend not only to those concerning the relations of subordination of the particular state law with respect to the law of civitas maxima, but even those linked to the role of the individual as a third actor (together with the State and the international organisation) of a systematic theory of international law.61 The conflictual tension arising from the establishment of a world empire confirms for Kelsen the detachment of Dante’s political ideal from an essential relatedness to the notion of the nation. The process of detachment, this particular devaluing of the idea of the nation, contains the “reactionary” trait of Dante’s theory as, for Kelsen, it was rests on the assertion of one element, the world empire, which “has had its day”.62 The modernity of Dante’s political vision may be in fact found, according to Kelsen, in the traits attributed by Dante to the imperium of the monarch, as well as to the well-known analyses found in book iii of Monarchia concerning the relationship between State and Church. For Kelsen, the functions of servant performed by the emperor with respect to the state power, the vision of the monarch as the organ of the highest jurisdictional power, and the subjection of the emperor to the imperium are all pointing at the traits of modernity in Dante’s vision. In Dante, the figure 60 Kelsen, La teoria dello Stato in Dante, 151. 61 “Thus the relationship of men as citizens of the world State – if this term is allowed – with the world monarch is specifically defined as a direct and immediate relationship and not as something mediated through the individual princes. On the contrary! The direction of particular associations by the princes is precisely derived from the supreme universal direction of the emperor, and therefore a construction of the universal State as a feudal association is naturally rejected as well”, ibid., 158. 62 Ibid., 162.

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of the sovereign is therefore devoid of any trace of despotism and, in full correspondence with the “doctrine of popular sovereignty which, already born before the Middle Ages, and increasingly expanding at the end of that period”, would for Kelsen come closer to the Germanic notion according to which the officium of the sovereign was performed to the service and in the interest of the entire community, with rights and duties derived from it.63 In this case as well, the interpretative emphasis used by Kelsen recalls the typical atmosphere of the doctrinal climate in which the young Kelsen undertook the first elements of his independent academic work. His insistence on the image of an emperor as a mere organ of state power, and on the existence of an imperium “placed above the emperor”64 seems, at least from its underlying tone, to echo the predominant bureaucratic perspective upon the political form characterising the Hapsburg empire (the last heir of the Medieval Holy Roman Empire) and a significant part of the juridico-political analysis in the late nineteenth and early twentieth centuries. When considered in relation to this context, Kelsen’s entire text may be considered, as emphasized by Frosini, as “one of the first and most significant contributions” to what has been called “the Hapsburg myth in German literature”.65 The analysis of the reconstruction presented by Kelsen of Dante’s antihierocratic positions and the well-known pages dedicated to the relationship between the Emperor and the Pope is particularly interesting. For it is within this part of Kelsen’s interpretation and analysis that the most significant limitations become apparent, as it is governed by an orientation which seeks a degree of linear development and systematicity which can hardly be satisfied by Dante’s form of textual argumentation and wider philosophical doctrine. The different interpretations of Dante’s work during the past century have ­centred upon the detailed textual analysis of Dante’s justification for the complex character of the independence of the universal monarch from the vicar of God in book iii of Monarchia.66 In comparison with this more recent interpretative consideration, Kelsen’s interpretation, contained in the eighth chapter of the Dante book, is marked by its confinement to, and concentration upon, the wellknown element in Dante’s argumentation in which the Emperor’s filial reverence for the Pope indicates a type of limit to the complete independence of the figure of the monarch, even though in the books written before Monarchia 63 64 65 66

Ibid., 107–108. Ibid., 115. Vittorio Frosini, “Kelsen e le interpretazioni della sovranità”, in Kelsen e il problema della sovranità, 26. Cf. now, on this point, Quaglioni, “Introduzione”, 875–883.

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Dante had denied, against the Decretalists, the superiority of the spiritual over the temporal sphere, thus stressing the autonomy of the universal monarchy (preordained to the fulfilment of earthly happiness through rationality) from the spiritual power (preordained to the fulfilment of eternal life through revelation). Kelsen structures his analysis of Dante’s argumentation through a division into a negative and a positive presentation of the Emperor’s independence from the Pope. The negative argumentation – Dante’s refutation of a series of arguments for the subordination of the Emperor to the Pope – is described, but, for Kelsen, it is effectively of merely historical interest. With the transition to the positive presentation, the most important elements of Dante’s argument are revealed. Apart from a further potential indication of the transfer of power by the universal vote of humans, it is the argument which confers upon the theory of two beatitudes – terrestrial and celestial – two ­distinct domains of the State and the Church. However, it is exactly the character of this separation and independence which, for Kelsen, is immediately qualified by the statement of a veiled spiritual subordination of the secular power to the Pope’s. Here, Kelsen sees the “typical inconsequence of the Poet”,67 who would end up contradicting the entire work in the conclusion of Monarchia:68 No one could miss the contradiction found at the end of the third book with the entire work. It almost seems that there Dante had unfurled the superb banner where he had written ‘the emperor’s independence from the pope’, ‘the freedom of the State from the Church’. With all the tools of a sharp dialectics and an enthusiastic belief, he tried to lay down the assumptions for an autonomous power of the state and now that he had to draw some conclusions, he spoke with vague and indefinite words of Caesar’s ‘reverentia’ for Peter, and that, after all, even earthly happiness would be somewhat dependent from heaven. With this, Dante did essentially make all his harmonious argumentation harmless! Kelsen seems to admit that the deviation apparently characterising the ending of Monarchia is the inevitable consequence of Dante’s Medieval religiosity but, in the deployment of this explanation, Kelsen reveals his own limited 67 Kelsen, La teoria dello Stato in Dante, 120. 68 Ibid., 139. See Dante Alighieri, Monarchia, 437: “Que quidam veritas ultime questionis non sic stricte recipienda est, ut romanus Princeps in aliquo romano Pontifici non subiacet, cum mortalis ista felicitas quodammodo ad inmortalem felicitatem ordinetur. Illa igitur reverentia Cesar utatur ad Petrum qua primogenitus filius debet uti ad patrem: ut luce paterne gratie illustratus virtuosius orbem terre irradiet, cui ab Illo solo prefectus est, qui est omnium spiritualium et temporalium gubernator”.

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c­ omprehension of Dante’s conceptual framework. For the entirely spiritual value of Caesar’s reverence was not, in Dante’s presentation, the affirmation of the political-juridical dependence of the Emperor on the Pope. With the following words, Kelsen provides the historical context and explanation for the appearance of this evident (and from the perspective of logic unacceptable) inconsistency in Dante’s thought: In the immense esteem for the religious factor in the Middle Ages, there was a higher appreciation of the “heavenly” and the “earthly” in a rather urgent and needy fashion as a full equalisation of the temporal with the spiritual, of the State with the Church was simply impossible to conceive for a 13th century man.69 Therefore, continues Kelsen, Dante’s fiery genius has truly endowed the poet with the foretelling of new future ideas, but did not give him the strength to break away from the old. Certainly in the premises set by Dante himself, the modern understanding of the complete separation between State and Church has come light.70 The historical limitations of Dante’s argumentation, for Kelsen, are thus the reflection, not of the individual intellectual limitations of Dante, but of the imprint of the historical period upon Dante’s thought. At the level of Dante’s conceptual framework of Chapter iii, this is evident in the continuing presence of the principuum unitatis, which returns, for Kelsen, in Dante’s subsequent introduction of the subjection of both the Emperor and the Pope to the common unity of divine government. The introduction of this unifying third term, situated above the preceding separation of the domains of Church (Pope) and State (Emperor), is, however, one which lacks any further specification of the status and character of this preceding separation. Hence, for Kelsen, Dante’s third term renders the previous argumentation for the separation indeterminate, and represents the enduring strength of the principuum unitatis. The particular and partial character of Kelsen’s presentation becomes evident once one recognizes that, for Dante, the pre-eminence in spiritualibus of the Pope was not accorded the status of a necessary injury to the Emperor’s autonomy. The spiritual solidarity between the two powers did not deny, 69 Kelsen, La teoria dello Stato in Dante, 140. 70 Ibid., 141.

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in other words, their independence nor did it represent the disavowal of the overtly critical and controversial horizon within which Dante had developed his treatise.71 The consistency of the text, in its consistent integration of anti-­ hierocratic drives, juridical reasoning and Aristotelian references, cannot therefore be considered undermined by the final passage relating to the spiritual subiacentia of the Emperor to the Pope. The substantial difficulty shown by Kelsen in understanding the final development of Dante’s treatise, and the inability to consider the element of “reverentia” as something more than a mere logical contradiction or the historical reflection of Medieval religiosity, are at the origin of the only partial interest shown by Dante scholarship in Kelsen’s work. The contemporary research on Monarchia, starting from the studies by Michele Maccarone in the 1950s, Bruno Nardi and Gustavo Vinay in the early 1960s, to the contributions made by Ovidio Capitani in the 1980s, have essentially confirmed the limits of the interpretation proposed by Kelsen, who, in his turn, did recall some elements of the interpretations presented by Franz Xaver Kraus and Franz Xaver von Wegelequale in the late 19th century.72 In the late 1970s, however, the Kelsenian approach to Dante re-emerged in Vittorio Russo’s work dedicated to Monarchia, where some of the main elements of Kelsen’s interpretation were repeated. In depicting Dante’s treatise as a theoretical-political response to a precise historical circumstance, Russo openly recalled Kelsen’s work attributing to Dante the merit of having interpreted an unconscious, but “not yet defined”, need, in his historical circumstances, and of having laid “the theoretical foundations, from a non-­confessional and bourgeois perspective, for a scientific exploration of the concept of State and law, or better still of the concept of a rule-of-law State”.73 The projection of entirely modern sensibilities and conceptions also appears to have been appropriated 71

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As recently written, “in Monarchia the relationship between the Empire and the particular law system is defined in modern terms and at the normative and jurisdictional level, as the relationship between an original power and powers necessarily marked by derivativity. Likewise, the relationship between the two universal poles, the spiritual and the temporal, is to be defined as a relationship of mutual autonomy, although that of the emperor is a ‘reverential’ autonomy”, Quaglioni, “Introduzione”, 876. We review here, without any pretense of being exhaustive, the main contributions that Dante scholarship developed, in the twentieth century, concerning the Poet’s political thinking: Michele Maccarrone, “Il terzo libro della ‘Monarchia’”, Studi danteschi xxxiii (1955): 5–142; Bruno Nardi, “Il concetto dell’Impero nello svolgimento del pensiero dantesco”, in Saggi di filosofia dantesca, (Firenze: La Nuova Italia, 1967), 215–275; Bruno Nardi, “Tre pretese fasi del pensiero politico di Dante”, in Saggi di filosofia dantesca, 276–310; Gustavo Vinay, Interpretazione della “Monarchia” di Dante, (Firenze: Le Monnier, 1962), Ovidio Capitani, Chiose minime dantesche, (Bologna: Patron, 1983); Quaglioni, “Introduzione”. Ibid., 198.

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from Kelsen and further radicalized. The extent of this radicalization is evident from Russo’s presentation of Dante as a forerunner of Kant, and Monarchia as a treatise in which one can find the connection between the “theoreticalpolitical aspirations uttered on the outset of the bourgeois era” and the “needs and problems from our present time”.74 In the context of the development of contemporary Dante scholarship, the further radicalization of this early Kelsenian interpretative framework demonstrates its increasing anachronism. As stated by Alfred Verdross, who studied under Kelsen and who became a well-known internationalist, in an essay from the early sixties on the idea of law, State and empire in Grillparzer’s poetry, the jurist’s attention (in particular as Staatswissenschaftler) for the work of a man of letters should not be considered a disrespectful infringement of one’s area of competence, because the examination of the State’s foundations would have to go through not only juridical-organizational frameworks, the definitions of components such as land, climate and population, but also the spiritual foundations nourishing the very effectivity of the State.75 This insistence by one of the central figures of the Vienna School upon the legitimacy of the jurist, and juridical ­interpretation, within the field of literature, has also to acknowledge that the relationship contains the inherent risks of the forced and careless transposition of the juridical categories of modernity onto earlier juridical categories and those of the associated literary tradition. It is these risks which Kelsen’s work on Dante exemplifies despite the overt indications of a knowledge of the intertextual relationship between ­Monarchia and Dante’s other work.76 The attempt to situate Dante as the point of transition between the modern and Medieval conceptions of the State, Empire and Church is animated by an interpretative interest which seeks the historical origin of the German tradition of Staatslehre/Staatswissenschaft beyond the confines of the corpus of German work of the nineteenth and early twentieth centuries. This necessitates the scrutiny of the Monarchia for signs of the emergence of the conceptual framework of the later German tradition and a marked inattentiveness to the wider particularities of Dante’s text in its relationship to the Medieval language of law, power and political forms.77

74 75 76 77

Ibid., 205–206. A. Verdross, “Recht, Staat und Reich in der Dichtung Grillparzers”, in Österreichische Zeitschrift für öffentliches Recht (xi, 1961), 518. See, for example, the discussion of the relationship between Monarchia and Dante’s Divine Comedy in the final pages of Chapter 8 of Kelsen’s work on Dante. On the distinctive complexities of this Medieval language, see, for example, B. Grévin, “Les mystères rhétoriques de l’État médiéval. L’écriture du pouvoir en Europe occidentale (XIIIe–XVe siècle)”, Annales 63, 2 (2008): 271–300.

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The inattentiveness of Kelsen’s predominantly juridical interpretation of Dante creates an initial position for Kelsen in which Dante’s transitional position requires no further significant consideration of the Medieval tradition of natural law.78 The work on Dante enables Kelsen to situate himself outside the strict confines of the Staatslehre/Staatswissenschaft tradition, and this will become the basis for the further critical distance from both this tradition and the natural law tradition in his subsequent work. Bibliography Burckhardt, Jacob. Kultur der Renaissence in Italien, (Leipzig: Seemann, 1869). Capitani, Ovidio. Chiose minime dantesche, (Bologna: Patron, 1983). Drier, Horst. “Hans Kelsen (1881–1973): Jurist des Jahrhunderts?”, in Deutsche Juristen jüdischer Herkunft, edited by Helmut Heinrichs, 705–732, (Munich: Beck, 1993). Fioravanti, Maurizio. La scienza del diritto pubblico. Dottrine dello Stato e della Costituzione tra Otto e Novecento, (Milan: Giuffrè, 2001). Frosini, Vittorio. “Kelsen e le interpretazioni della sovranità”, in Kelsen e il problema della sovranità, edited by Agostino Carrino, 23–41, (Rome/Naples: Edizione Scientifiche Italiane, 1999). George, Robert P. “Kelsen and Aquinas on the Natural-Law Doctrine”, Notre Dame Law Review 75 (2000): 1625–1646. Grévin, B. “Les mystères rhétoriques de l’État médiéval. L’écriture du pouvoir en Europe occidentale (XIIIe–XVe siècle)”, Annales 63, 2 (2008): 271–300. Grossi, Paolo. L’ordine giuridico medievale, (Rome: Laterza, 2006). Kelsen, Hans. Die Staatslehre des Dante Alighieri, (Vienna and Leipzig: Deuticke 1905, (Italian translation: La teoria dello Stato in Dante. Bologna: Boni, 1974). Maccarrone, Michele. “Il terzo libro della ‘Monarchia’”, Studi danteschi xxxiii (1955): 5–142. Nardi, Bruno. “Il concetto dell’Impero nello svolgimento del pensiero dantesco”, in Saggi di filosofia dantesca, 215–275, (Firenze: La Nuova Italia, 1967a). Nardi, Bruno. “Tre pretese fasi del pensiero politico di Dante”, in Saggi di filosofia dantesca, 276–310, (Firenze: La Nuova Italia, 1967b). Quaglioni, Diego. “Introduzione”, in Dante Alighieri, Opere, ii, edited by Marco Santagata, 809–883, (Milan: Mondadori, 2014). Quaglioni, Diego. “Alighieri Dante”, in Enciclopedia del pensiero politico. Autori, concetti, dottrine, 12, (Bari/Rome: Laterza, 2000). 78

See, for example, R.P. George’s critique of Kelsen based upon the absence of Kelsen’s consideration of Aquinas (R.P. George, “Kelsen and Aquinas on the Natural-Law Doctrine”, Notre Dame Law Review 75 (2000): 1625–1646).

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Riccobono, Francesco. “Gli inizi di Kelsen: La teoria dello Stato in Dante”, Revista internazionale di filosophia del diritto 53 (1976): 261–289. Verdross, Alfred. “Recht, Staat und Reich in der Dichtung Grillparzers”, in Österreichische Zeitschrift für öffentliches Recht (xi, 1961): 518–530. Vinay, Gustavo. Interpretazione della “Monarchia” di Dante, (Firenze: Le Monnier, 1962).

Part 2 Kelsen and Early Modern and Enlightenment Theories of Natural Law

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Chapter 3

Comments on the Kelsenian Idea of Natural Law in the Light of Althusius’ Theory of Law Gaëlle Demelemestre Abstract In his work of 1928, Kelsen undertakes a systematic comparison of natural law and positive law in order to provide an enhanced comprehension of their specificities. This centres upon the difference of their nature and origin in which natural law is subject to critique in comparison to a theory of positive law based upon the principle of imputation. The hierarchical structure of norms of positive law is founded upon a deductive movement in which the Kelsenian conception situates us in a systematic, self-­referential system. The Kelsenian theory of positive law, offers a detached description of positive law which propounds a theory of validity which merely requires the particular legal norm to result, at each level of the hierarchy, from the competent authority. However, this is one of the most perplexing aspects of Kelsenian project of a legal science of positive law: how could positive law, as an entirely human creation, possibly be free of any evaluation? Is it sufficient, for an authority, to be empowered to make the law for it to have the power to compel? The relevance of a return to Althusian legal theory results from the fact that Althusius develops his ideas in response to a selfcentred theory of power and law which is, analogous to the Kelsenian position, unreceptive to evaluative criticism. This chapter will, through an examination of Althusian theory, indicate how the power to coerce can claim to be sovereign and yet integrate supervisory bodies responsible for regulating its validity.

In his work of 1928, Kelsen undertakes a systematic comparison between natural law and positive law while trying to seize the founding idea of these two ­legal forms.1 According to him, natural law is a static order presenting a set of precepts rooted in an ontological natural order and constructed on a first principle distinguished by its transcendence, its absolute value, its independence

1 I would like to express my gratitude to Peter Langford and Ian Bryan for their helpful comments on an earlier draft of this essay.

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and its invariability.2 In contrast, positive law is a relative and variable manmade law, characterized by its formal and deductive nature and by the fact that it is a principle of imputation and of authorization.3 Kelsen indicates that the two systems of law are necessarily in tension, because they cannot both simultaneously constitute the same legal order. From this tension, Kelsen demonstrates that, due to its nature, positive law system should be privileged, with the subsequent abandonment of the natural-law doctrine.4 However, as emphasized by Merio Scattola, the Kelsenian systematization and critique of the natural-law doctrine, whilst certainly pertinent for the modern doctrine of natural law, which satisfies the requirement of consistency and systematic construction,5 ceases to have pertinence for the classical doctrine of natural law, and, in particular, the doctrine elaborated by the jurists of the sixteenth century. An exemplary instance of this distinctive position is the legal doctrine developed by Johannes Althusius (1557–1638), a Calvinist natural law theorist who, expanding an idea of this period, sought to confer a universal and systematic from upon law, through recourse to entirely different criteria from those of modern natural law. One of the purposes of this chapter is to show how Althusius manages to avoid the Kelsenian dilemma (either natural law, or positive law) by developing an axiomatic exposition of law and focusing upon the essential complementarity of natural law and civil law. A further orientation for the analysis of the Kelsenian theory of law concerns its deontological consequences. By defending the rigour and impartiality of positive law, Kelsen’s theory centres upon defining an autonomous normativity which is specific to law as law. He thus seeks to present an independent system of legal norms as an order of constraint (Zwangsordnung). In the 1928 work, one of the central elements in the systematic distinction between natural law and positive law derives from the concern to separate law from politics: the overtly political (conservative) orientation of natural law is always combined and concealed by an epistemological attitude of juridical scientists orientated 2 Hans Kelsen, “Natural Law Doctrine and Legal Positivism”, in General Theory of Law and State translated by Wolfgang H. Kraus, (New York: Russell &Russell, 1961): 392; 397; 399–400. 3 Ibid., 394–396; 401–406. 4 Ibid., 434. 5 For the modern theorists of natural law, natural law has a first principle, from which all subsequent norms are deduced. Their value is only conferred by their participation in it, and, thus, the system must always have a consistent logical construction. See, Merio Scattola, “Johannes Althusius und das Naturrecht des 16. Jahrhunderts”, in Frederick S. Carney, Heinz Schilling and Dieter Wyduckel (eds), Jurisprudenz, Politische Theorie und Politische Theologie. Beiträge des Herborner Symposions zum 400. Jahrestag der Politica des Johannes Althusius (1603–2003), (Berlin: Duncker und Humblot, 2004): 373.

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to the determination of nature of the State and the law.6 This leads Kelsen to a critical examination of the epistemological, metaphysical and psychological foundations of natural-law doctrine7 which is revealed to be continually rendered an ideological instrument for an underlying political theory or ideology.8 In contrast, positive law being an entirely distinct, autonomous system, cannot be reduced to the function of a simple instrument of power or of any other external principle. This “political indifference”9 of the theory of positive law is the basis for the explicit recognition of an order of law as a compromise between conflicting interest-groups in the struggle for power,10 which allows Kelsen to characterize it as “an order of peace”.11 Contrary to the natural-law order grounded on a heterogeneous principle, the positive legal order is derived from a “hypothetical basic norm”, the founding principle of all the subsequent legal deductions, which is the absolute referent used for the further examination of the lawfulness of the subsequent norms (and for all other questions of potential conflict between legal norms). Kelsen thereby initiates an epistemological upheaval in the prevailing conception of the legal reason and the rationality of the legal order. Indeed, the legal cognition undertaken by the Kelsenian legal science of positive law transforms the notion of a “non-contradictory order” from that of a conformity with an absolute value (external standard) of natural law into “the hypothetical basic norm of critical positivism with its function of constituting the empirical legal

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“Natural-law theory does not owe its conservative character to these political motives alone as they have been sketched here, which, understandably enough, play an important role in any political and legal theory. This conservatism is fundamentally rooted in the epistemological situation of a science which seeks to understand the nature of the State and of law. Out of this arises an extraordinary difficulty, a handicap to the critical analysis of any political and legal theory: it is the more difficult to uncover a political motivation, whose effectiveness varies with the historical situation, the more the political motivation is paralleled by an epistemological tendency which may obscure and conceal it to a certain degree”., Hans Kelsen, “Natural Law Doctrine and Legal Positivism”: 418. Ibid., 419–433. Ibid., 417. This means that the natural-law doctrine is a philosophical construct, whereas positive law has an inherent value value in itself and from which an autonomous juridical order can arise. Ibid., 438. This order of law “has the degree of effectiveness necessary to make it positive is more or less of a compromise between conflicting interest-groups in their struggle for power, in their antagonistic tendencies to determine the content of the social order”. (438). “[I]t is the expression of a social equilibrium manifested in the very effectiveness of the legal order, in that it is obeyed in general and encounters no serious resistance. In this sense, critical positivism recognizes every positive legal order as an order of peace”. (439).

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material as an order”.12 The upheaval created by this methodological position is accompanied by the exclusion of all other principles as external to law. It is not possible for positive law to be judged or to be evaluated from perspective beyond the legal order of positive law. For it is, as a system of positive law, internally coherent and entirely self-validating. Hence, While creating a completely formal system, delivered from any interference by extra-juridical elements, Kelsen draws the juridical system towards a level of abstraction that is simply incompatible with the links he entertains with the social and political structures. By doing so, he ­deprives it of any basic element of criticism while rendering his examination impermeable to the conception of the fair and the unfair.13 This further consequence enables us to establish a connection between Kelsen and Althusius. Indeed, the Althusian theory of law is introduced through a ­critique of the seamless and all-encompassing character of Bodin’s theory of absolute sovereignty.14 For Jean Bodin (1529–1596), as elaborated in the Six Books of the Commonwealth, the sovereign is in full possession of law, and is the only one who is permitted to enact a legal norm (legislation), which renders the critical evaluation of his acts impossible.15 To which Althusius responds that it is not possible to exclude law from criticism since it is in the service of men, which means that one should always be able to evaluate the fairness or coherence of a juridical norm.16 Thus, the Althusian project is to institute, in each 12

Ibid., 439. For Kelsen, “[i]t is the inevitable result of an attempt to transmute justice, a value of volition and action, into a problem of cognition which by necessity is subject to the value of truth, that is to the idea of a non-contradictory unity” (440). 13 Olivier de Frouville, “Une conception démocratique du droit international”, Revue européenne des sciences sociales 120 (2001): 115. 14 Jean Bodin, Six Books of the Commonwealth, Abridged and trans. by M.J. Tooley, (Oxford: Basil Blackwell, 1955). On Bodin, see Simone Goyard-Fabre, Jean Bodin et le droit de la République, (Paris: Presses Universitaires de France, 1989); Yves-Charles Zarka (ed.), Jean Bodin: Nature, histoire, droit et politique, (Paris: Presses Universitaires de France, 1996); Spitz, Jean-Fabian, Bodin et la souveraineté, (Paris: Press Universitaires de France 1998); Claudia Opitz-Belakhal, Das Universum des Jean Bodin: Staatsbildung, Macht und Geschlecht im 16. Jahrhundert, (Frankfurt: Campus Verlag, 2006); 2007, Mario Turchetti, “Jean Bodin théoricien de la souveraineté, non de l’absolutisme”, in Adriano Prosepri et al. (eds.), Chiesa cattolica e mondo moderno, Scritti in onore di Paolo Prodi, (Bologna: Il Mulino, 2007), pp. 437–455. 15 Bodin, Six Books of the Commonwealth, Book i, chapter 8. 16 Althusius represents a particular critical approach to Bodin’s absolutism at the end of the 16th century. On this point, see Ernst H. Kossman, Political Thought in the Dutch Republic: Three Studies, (Amsterdam: Koninklijke Nederlandse Akademis van Wetenschappen,

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strata of decision-making, an instance of control which is authorized to evaluate the conformity of laws with the interest of the community.17 The presence of this critical capacity indicates the second underlying purpose of this chapter to reveal the complexity of the Althusian position: the installation of evaluation of political and juridical decisions without the abandonment of a notion of the sovereignty as the power of decision-making in the final instance.18 1

The Law as conditio sine qua non of Human Society

The Althusian Politics is elaborated from a criticism of Bodin’s theoretical attitude. In the introduction to his Politica, Althusius denounces the confusion created by Bodin between the domains of politics and law, mixing indifferently the elements of both law and politics without making any distinction between them, posing a political question answered with a juridical solution and vice versa.19 For Althusius, the confusion and the mixing from which it derives, produces a lack of clarity and coherence between the two domains which, in

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2000). For the Althusian critique within context of the broader reception of Bodin in the seventeenth century, see Michael Philipp (ed.), Debatten Um Die Souveranitat: Jean Bodins Staatsverstandnis Und seine Rezeption seit dem 17. Jahrhundert, (Baden-Baden: Nomos, 2016). For an overview of Absolutist Theories of Royal Power and their critical opponents, see Wolfgang Weber, “‘What a Good Ruler Should Not Do’: Theoretical Limits of Royal Power in European Theories of Absolutism, 1500–1700”, The Sixteenth Century Journal, Vol. 26, No. 4 (Winter, 1995): 897–915. For the general outlines of Althusius’s critique of Bodin, see Marie-Hélène Belin, “Althusius contre Bodin”, Commentaire, 2 (2015): 275–278. The discussion will be centred upon on the Politica methodice digesta (3th ed., 1614), (Cambridge: Harvard University Press, 1932) and his Dicaeologicae libri tres (1618), (Aalen: Scientia Verlag, 1958). “How many juridical questions taken from the midst of jurisprudence do you find in the political writings of Bodin and Gregorius? (…) How far one may proceed in political science is sufficiently indicated by its purpose. This is, in truth, that association, human society and social life may be established and conserved for our good by useful, appropriate and necessary means. (…) The purpose of jurisprudence is skillfully to derive and infer right (ius) from fact (factum), and so to judge about the right and merit of fact in human life. (…) Now the political scientist properly teaches what are the sources of sovereignty, and inquires and determines what may be essential for the constituting of a commonwealth. The jurist, on the other hand, properly treats of the right (ius) that arises at certain times from these sources of sovereignty and the contract entered into between the people and the prince. Both, therefore, discuss rights of sovereignty: the political scientist concerning the fact of them, and the jurist concerning the right of them”. Johannes Althusius, Politica Methodice Digesta, Atque Exemplis Sacris et Profanis illustrate (1615), (Cambridge, Mass.: Harvard University Press, 1932), (hereafter Politica): 4–5.

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turn, affects the conception of the wider relationship between natural law and social life. Therefore, these two fields have to be differentiated and a clear relationship established between them. Politics should consider the facts that are necessary for social life, and the jurist should refer to these analyses in order to derive the juridical bonds that unite men. The Althusian theory of law commences from this differentiation and its further elaboration is based upon the integration of the scientific method of definition and classification of knowledge, developed by Ramus, in the middle of the sixteenth century and certain central contributions of the classical tradition of natural law. The Ramus’ Contribution to the Methodological Distinctiveness of the Althusian Approach of Law The methodological distinctiveness of the Althusian theoretical framework is the explicit concern with the conferral of a scientific status upon its analyses. This concern is expressed by the adoption of a process of reasoning based upon a purely formal method, thereby avoiding the possibility for the introduction of considerations extraneous to the order of scientific knowledge. The construction of this methodology is guided by the specific approach adopted in the work of Petrus Ramus (1515–1572) which rejects the previous Aristotelian and Scholastic tradition. The rejection is a combination of theoretical and religious divergence from the existing tradition. The Aristotelian and Scholastic tradition is considered to be a mode of knowledge characterized by argumentative excess, endless digression and accumulation of references which, in turn, all result in a verbal formalism detached from the initial subject of study. These difficulties were accentuated in a period in which all the existing intellectual, social, political and geostrategic certainties had become increasingly unstable. Ramus seeks to re-anchor knowledge in a stable manner20 in which the break with the Aristotelian and Scholastic tradition is combined with the justification of Calvinism centered on divine commandments and the rejection of the “Thomist” doctrine of natural law. The decisive element of the Ramist method lies in the “rejection of the [ancient dialectical] method of deriving correct conclusions which has been highly developed by and become formalized in Scholastic thought”,21 and its 1.1

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Christoph Strohm underlines “his rejection of the method of deriving correct conclusions which had been highly developed by and become formalized in Scholastic thought, and his replacement with a method of definition and (generally dichotomous) division” (“Theology and Zeitgeist: The Triumph of the Method of Peter Ramus at the Beginning of the Modern Age”, Kees Meerhoof and Jean-Claude Moisan (eds.) Autour de Ramus: Le Combat): 191. Ibid., 190.

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substitution by a method of definition, “as the clarification of the essence of a thing”,22 and of division, “as the determination of different varieties of a particular type or of different parts of a whole”.23 Thus, the constituent parts of the Ramist method were composed of the operations of definition and the division, replacing the Scholastic use of the Aristotelian syllogism. The centrality of these operations is accompanied by the recourse of this method to the ancient discipline of logic, which is reorganized as a method of the scientific knowledge. Ramus divided this method into a formal rule and three physical laws. The formal rule is defined as a single method (methodus unica) to be applied to each object of knowledge, allowing it to retain its specificity. It is “the methodological principle according to which the arrangement of precepts (dispositio) must perforce follow a descending order of progression, from the general to the particular”.24 In relation to this formal rule and then further distinguished the physical law, namely, “the law of truth”, “the law of justice” and the “law of wisdom”, considered as the indispensable principles of any art or discipline.25 The reflection upon the process of the exposition of knowledge’s exposition centred upon the De inventione dialectica of Agricola (1443/4–1485) which had distinguished two procedures in relation to the topoi, the inventio and the judicium, with a predominant focus upon the inventio. Ramus, commencing from the scientific field opened by the De inventione dialectica, focused upon the dialectical argument concerning Agricola’s second procedure, the judicium. Thus, judgment was transformed into a procedure enabling the establishment of the premises and, as part of logic, represented a complete reversal of the severance of logic and rhetoric in the medieval model of logic.26 Ramus formulates three criteria constituting all knowledge axiomatically and ensuring the scientific status of a theory: any provision must be complete, it must be based on uniform elements and, finally, it must be ordered, namely, conducted deductively, the general truth being conceived as the highest and most important.27 To achieve this, Ramus utilized the mode of exposure of the objects as given by the topoi,28 which allow their analytical decomposition 22 Ibid. 23 Ibid. 24 Guido Oldrini, “The Influence of Ramus’ Method on Historiography and Jurisprudence”, in M. Feingold, S. Freedman and W. Rother (eds.) The Influence of Petrus Ramus. Studies in Sixteenth and Seventeenth Century Philosophy and Sciences, (Basel: Schwabe, 2001): 216. 25 For this point, see Oldrini, op. cit., 216–217. 26 Wolfgang Schmidt-Biggemann, “Der rechte Ort von Erkenntnissen oder: Der rechte Satz am rechten Platz: Die Rolle von Invention und Judicium in der humanistischen Wissenschaftsgeschichte”, Berichte zur Wissenschaftsgeschichte, Vol. 3, n 1–2 (1980): 69. 27 Ibid., 70. 28 See hereafter the example by Althusius.

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and their synthetic presentation as axiomatic. This process generates a high level of rationality, in which the method proposes “a distribution of various homogeneous axioms which, because of their clarity, may be called precepts (­praepositum) that are easy to remember, and from there one can judge the suitability of the whole”.29 The contribution of this methodology, as emphasized by Ramus, is the foundation upon simple principles, its didactic c­ haracter and ease of use and its lack of detachment from the object of study. The majority of Calvinist thinkers, predominantly German with the notable exception of Bodin, adopt this method in order to differentiate themselves from the Scholastic tradition. In the troubled context of the 16th century, a moment of instability and collapse of all the old certainties, the attributes of the Ramist method created an intellectual and pedagogical space of renewed certainty.30 This certainty was one which, however, in its implacable methodological opposition to Scholastic formalism, revealed the emergence of a tendency to a more abstract formalism for which some of his contemporaries reproached him.31 The whole Althusius’ work is shaped by Ramist methodology, which has become an affirmation of “scientificity” in the second half of the sixteenth century. Indeed, Althusius accorded primacy to raising law and politics to the level of sciences by utilizing a proper system which would be the expression of a perfect, Ramist formalization.32 The structure of Althusian texts, complemented by synthetic tables, are oriented to the methodological embrace of the entirety of the object that will be studied.33 The methodology of law ought to be formal to prevent the incursion of value judgments that mislead and alter it. One has to begin with a definition of the general case, and then to divide it formally into its possibilities. Politics has to be treated the same manner: it begins with the definition of its object (the communicatio), and then, proceeding to the deduction by topoi, Althusius engages in the analysis of its components.34 The result of this method is a general understanding of definition the specific object and all its possible modalities. Although the Connanian ontological 29 30 31 32 33

34

Petrus Ramus, Dialecticae libri duo (Paris, 1572): 87. Strohm, op. cit., 191. C.J. Friedrich, Introduction to the Politica, lxii. Oldrini, op. cit., 224. The is immediately evident from the titles of his books: Iuris Romani libri duo, ad leges methodice Rameae conformati, et tabula illustrate; Civilis conversationais libri duo: methodice digesti et exemplis sacris et profanes passim illustrate; Politica methodice digesta, atque exemplis sacris et profanis illustrata; Dicaeologicae libri tres, totum et universum ius, quo utimur, methodice complectentes… Whether the object relates to morality, justice, politics or the law, the method is always the same. Althusius makes a strict application of the three laws of Ramus. See Oldrini, op. cit., 224.

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background35 is no longer present, one senses that Althusius, producing an encyclopedic synthesis of law and politics, intends to offer an exhaustive inventory of the relevant beings and realities.36 However, Althusius was not a Ramist stricto sensu. Whilst systematic unity was essential to Althusian science, this could be achieved without a strict application of the Ramist method.37 For, if we consider, for example, the Politica, it is not structured solely by a deductive movement, but, combined with the progression of synthesis and of analyses. Each chapter is composed in a similar manner, with a predominant use of dichotomies relating to topoi. The first chapter opens with the definition of its object (Politics and communicatio) and its different modalities, followed by a set of chapters beginning, which all commence with definitions, prior to the further analytic and exhaustive exposure of their contents.38 The book progresses from the smallest components of the republic (families and private associations) to the largest (villages, towns, and provinces) and concludes with the state. The method of the book’s construction is then not merely deductive, but one of a synthetic and integrative presentation of the social and political institutions of the republic. Althusius, therefore, combines simultaneously and concomitantly two logical processes – analysis and synthesis – initiating a more dynamic and complex form of scientific reasoning which avoids the potential for logical formalism.39 The lack of 35

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François Connan, one of the greatest representatives of systematic humanism, of whom Althusius had a high opinion, considered that law was not simply an order added to reality, but that it expressed, more fundamentally, the natural normativity of the world. He believed in an order of natural law created by God, which was realized in the world and that the lawyer had to find. In drawing upon law that connects men, the lawyer could access, more directly than any other kind of knowledge, the rationality of the real (“Cum enim scientia nihil aliud sit, quam naturae quaedam observatio, et cognitio rerum earum quae non sunt, nulla institutia suscipi potest”, Connan, Commentariorum iuris civilis tomus prior et posterior, Paris, J. Kerver, 1553, i, 1, fo. 1). On the relation between law and ontology in the systematizations of law in the 16th century, see Christoph Bergfeld, Franciscus Connanus. Ein Systemiker des römischen Rechts, (Cologne/Graz: Böhlung Verlag, 1968): 65. Ordrini, 221. One feels yet in Althusius (as in Bodin and Connan, their predecessor) the aspiration to unify the entire law in the same body, as Cicero had the project in a lost book of Cicero which humanists often refer, the De iure civili in artem redigendo. On this point, see Jean-Louis Thireau, « Cicéron et le droit naturel au XVIe siècle », Revue d’Histoire des Facultés de Droit et de la Science Juridique, n°4 (1987): 57. He rewrote his Iurisprudentia libri tres by removing the reference to Ramus and reports, in the preface to its new edition, that his readers were troubled by this withdrawal, although the text remained the same. For the evolution of the Ramist considerations in Althusian works, see Oldrini, op. cit., 225. See, for example, the very extensive enumeration of the trades by Althusius in the Politica, chapter iii. C. Friedrich, Introduction to the Politica, lxii.

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adherence to a strict Ramist method is equally indicated by the introduction of a considerable number of examples and references to social, religious or political history, which present a distinct source of material for reflection. The formal frame of reasoning is, thus, enriched with a content originating from social, religious and political experience, a contribution that Ramus would have invalidated as extraneous to the relevant discipline. The fact remains that the Althusian emphasis on the methodically ordered exposition of knowledge indicates that one is in the presence of a Ramist tendency to link method and science. The Althusian doctrine presents an exposition of law, politics and morality according to a scientific method, whose claim to scientific status are certainly not those of later modernity, but that correspond to the requirement of the respect for the formal laws of logic.40 It is, therefore, incorrect to hold that the natural law tradition is alien to the methodical and objective treatment of the law, since the Althusian theoretical framework is a model of an axiomatically ordered discourse on human society and law. 1.2 The communicatio Founding the Common Living Another aspect of the Althusian theory of natural law which distinguishes him from Ramus is his integration of the Aristotelian thesis of natural sociability into his political thought, itself an element of the Thomist tradition, and conferred with a more precise elaboration by the School of Salamanca in their opposition to the Lutherian thesis.41 Althusius thus considers that human beings are impelled by their nature to live with one other, for men are unable to exist without the help of others. The Althusian reference is to Book 1 of Aristotle’s Politics in which Aristotle characterizes solitary men as either gods or beasts, and he concludes that solitary life is useless for oneself and for the other since it is unable to provide a human being with the possibility of autonomy.42 It is 40

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As emphasized by Strohm (op. cit., 203), as a historian of ideas, one cannot demand, of the 16th century, criteria that are not those of the considered period. For a real understanding of its intellectual context, one has to take into account the contemporaneous “outillage mental” (Lucien Febvre) of the period. On the Althusian relations to the Second Scholastic, see Peter J. Winters, Die „Politik“ des Johannes Althusius und ihre Zeitgenössischen Quellen zur Grundlegung der politischen Wissenschaft im 16. und im beginnenden 17. Jahrundert, (Freiburg Im Breisgau: Rombach, 1963): 61–78; Ernst Reibstein, Johannes Althusius als Fortsetzer der Schule von Salamanca: Untersuchungen zur Ideengeschichte des Rechtsstaates und zur altprotestantischen Naturrechtslehr, (Karlsruhe: Müller, 1955): 17–53. On Luther and the School of Salamanca, see Gaëlle Demelemestre, “Martin Luther et Francisco de Vitoria. De la relation entre la théologie, la loi naturelle et l’action humaine”, Laval théologique et philosophique, n° 69 (2013): 239–259. Politica, chap. i, 4.

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human nature, on the contrary, which furnishes the rationale and impetus for individuals to live together, to cultivate their individual talents in common and make others profit from them.43 Men seek naturally to live with other human beings, so that they can combine their respective aptitude with those of the others, and thus live comfortably and quietly.44 Althusius proceeds to deduce that the principle of human life is the communicatio, namely, mutual assistance for the achievement of a comfortable life without needs. The political fact from which law should commence is then the communicatio, which is the founding principle of social life consisting of individuals placing goods and services in common, and thus respecting the same, unique law. The politics has to analyze it, to understand how to achieve it in the collectivities, to identify what it needs and to teach magistrates how to preserve and enhance it. The offer and provision of those services (goods, services, rights) enable the satisfaction of the requirements to live honestly and worthily, Althusius emphasizes, but also the enjoyment of the pleasures of a comfortable life which are themselves related to the body’s pleasures. If any individual can profit from all the pleasant things of a human life in common, he thus should accept, in return, to make the other profit from his work and to fulfil the functions required by this plural form of organization of social life. As a ­consequence, the dynamics of social life consist in the sharing of goods and competences under a common law in order to achieve social autonomy. That is why the function of politics, for Althusius, consists in establishing, cultivating and conserving social life among men. The subject matter of politics is therefore consociation, in which the symbiotes pledge themselves each to the other, by explicit or tacit agreement, to mutual communication of whatever is useful and necessary for the harmonious exercise of social life.45 The different types of communicatio structuring life in common form the foundation and framework from which the jurist should determine the conception and purpose of right (ius). Indeed, considered in its relation to political science, law is not an autonomous knowledge, for Althusius, but a means placed 43

44 45

“God distributed his gifts unevenly among men. He did not give things to one person, but some to one and some to others, so that you have need for my gifts, and I for yours. And so was born, as it were, the need for communicating necessary and useful things, which communication was nor possible except in social and political life”., Althusius, Politica, chap. i, 18. Politica, i, 3. Politica, chap. i, 15.

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in the service of human society. Hence, it has no implicit inherence in things such that it is capable of being abstracted from “nature”. It requires, on the contrary, the prior examination of politician theorists establishing the centres of organized human organized life together with their goals, principles and means: the construction of organized society. From this knowledge, the jurist can, through a cognitive operation, establish the relationships of duty that should exist within it.46 The space of the political, which should encompass social dynamics, presents the jurist with the field within which to determine the legal rules which should to enable its constitution and regulation. Consequently, law is accorded the function of formulating and organizing the relationships of obligation and authorization that are being constructed between the various individuals in order to enable the achievement of political finality. The Plurality of Natural Law Principles and the Different Complementary Domains of Law The function of law entails that it is accorded a central position in Althusian thought. Law is the subject of a systematic exposition of juridical doctrine which remains foreign to both the idea of system of modern natural law and of the legal positivism of Kelsen. The Althusian oeuvre contains two different classifications of law. In his Dicaeologica, he constructs the system of law from two distinct species of law.47 The first is derived from the duty of obligation (obligatio) established by natural law. Its function is to determine the duties inherent in the interactions between human beings. The second is centred upon the notions of dominium and the iura majestatis, and originates in the social organization that is necessary to produce various goods. It confers men with a 1.3

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This process is far from simple, for Althusius always refers to natural law when he analyses the different members of the Republic and their internal dynamic. This ambiguous attitude arises from the Althusian understanding of the Decalogue as a universal political teaching which cannot be ignored: “And I have included among other things herein, all in their places, the precepts of the Decalogue […], about which there is a deep silence among some other political scientists. The precepts of the Decalogue are included to the extent that they infuse a vital spirit into the consociation and symbiotic life that we teach, that they carry a torch before the social life that we seek, and that they prescribe and constitute a way, a rule, a guiding star and boundary for human society. If anyone would take them out of politics, he would destroy it; indeed, he would destroy all symbiosis and social life among men”. (Preface to the Third Edition, pp. 7–8). Political theorists have then to mobilize the normative content of the Decalogue as parts of their reasoning, formulating it as natural law, hence its repeated appearance in the Althusian descriptions. These two different juridical species coexist and are derived from the dual function of law. See Althusius, Dicaeologicae libri tres (1618), (Aalen: Scientia Verlag, 1958) (hereafter Dicaeologica), Book i, chap. xiii, 11–14; chap. xiv–xvii.

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legally valid power for the rational organization of human interaction.48 In the Politica, three different domains of law are distinguished – natural law, the law of nations and the civil law – which are not different forms of law, but norms operating in different sectors. For, natural law is deduced from human nature, immediately known by everyone, and contains the whole of set of precepts for the complete regulation of human interaction. In contrast, the law of nations becomes relevant when the question of dominium arises, its norms generated by reasoning, and the civil law is a clarification of the content of natural law in accordance with the needs and cultural specificities of a certain c­ ommunity.49 The origin of these forms of law is derived from different sources and acts in different sectors and their domains of competence are thus not similar. However, this diversity is not the description of disparate, or fragmented, legal spaces, rather, they are complementary and facilitate a presentation of all the possible juridical dimensions of human life.50 In relation to the domain of natural law (lex naturalis), Althusius considers it as the first source of law, which he equates with ius naturalis and lex ­communis.51 For this orthodox Calvinist, it represents a synthesis of the divine revealed law and of the data supplied by human reason, a moral law inscribed in the mind and heart of man and from which our duties towards ourselves and the others emanate.52 For the School of Salamanca, whose position provides Althusius with an obvious orientation, those precepts are innate ideas, since the lex naturalis is “inscripta, ingenerate, impressa or innate”53 in the heart of men. It is not possible to have no knowledge of it, since human nature tends spontaneously, by an “inclinatio naturalis”, to accomplish it, and, thus, every man has an innate knowledge (“notitia”) of it. This rule, which is solely god’s will for men manifested in his law, is called law in the general sense that it is a precept for doing those things that pertain to living a pious, holy, just and suitable life. That is to say, it p ­ ertains to the duties that are to be performed toward God and one’s neighbour, and to the love of God and one’s neighbour.54 48

See the synoptic tables placed in introduction to the Dicaeologica. We shall return, in ii, to this second species of law. 49 Politica, chap. xxi, 33. 50 See the particularly pertinent presentation of the diversity and unity of these juridical relations in Scattola, op. cit., 385. 51 Althusius also designates it as ius naturale or ius commune, which he distinguishes from the ius proprium, specific to each group. See Politica, chap. xxi, 194. 52 “Commune igitur est ius, quod a nature, vel Deo immediate hominum mentibus est inscriptum (…)”, Althusius, Dicaeologica, chap. xiii, 7. 53 Politica, chap. xxi, 19–20. See Scattola, op. cit., 379. 54 Politica, chap. xxi, 190.

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Natural law is not conceived as a single system whose rules are to be derived deductively, without exception, from a single first principle in the form of a pyramidal model. Althusian natural law, on the contrary, includes a plurality of principles. Indeed, Althusius includes two types of duty: those toward oneself and those toward the others. The former include the right to self-defense, of conservation and of reproduction. The latter are perfectly expressed by the two tables of the Decalogue, the first ordering the duties toward God, and the second the duties toward our fellow creatures. Those principles are independent and neither can be reduced to nor be deduced from a more fundamental, absolute principle. Each principle is accorded its own legal validity and this is combined with both their immediate existence and their immediate enforcement by God. No human being can change their value, even if the judge determines a more specific content for a particular principle. Thus, this natural law is not a philosophical theory without legal value. The norms of Althusian natural law actively produce strict, binding obligations of duty for the regulation of social life. The Althusian natural law, despite its emergence from the recourse of Althusian politics to Aristotle’s Politics Book 1, is unrelated to the Aristotelian sense of relative equality analysed in Book v of the Nicomachean Ethics. It does not teach men how to act in order to be just in regard to a certain situation, and it does not aim to determine the position of the just mean between two things. The source of this natural law is, rather, the neo-Ciceronianism developed by legal humanism at the beginning of the sixteenth century in which Althusius’ understanding of natural law is conceived according to Ciceronian ethics as a duty, an officiis, incumbent upon men because of their interaction with other men. It contains the Stoic thesis of a set of natural, innate precepts, of inclinations in conformity with human nature. Althusius describes it as regula vivendi, the recta ratio communis that is constitutive of human society.55 Natural law is not natural in the sense that it necessarily operates in the world without relation to the will of man, but, rather, as the condition sine qua non of human society. The inclinatio naturalis allows men to identify, by right use of reason, what must be done to permit the establishment of productive human relationships. Here, however, the connection with Aristotle returns in the aim of the legislators for concord which, when it is achieved, removes the necessity for justice. For Althusius also demonstrates that, if good will and concord dominate, the purpose of social life – and of politics – is achieved.56 55

“The rule of living, obeying, and administering is the will of God alone, which is the way of life, and the law of things to be done and to be omitted”., Althusius, Politica, chap. xxi, 189. 56 Chapter xxi (De studio concordiae conservandae) of Politica is devoted to this question.

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Although Althusius accords a divine origin to the natural law, it is its function which is afforded the most attention. For without natural law, human existence, as a human community, association or republic would be impossible. Natural law is that without which there would be no human society. It is the basis of social life, which is of inherent worth anywhere, for anyone and in any epoch, and will, consequently, be called the lex communis. It governs the formation of communities and continues to regulate them when they are formed.57 It acts as a principle, because it should be respected by all the members of the republic and by each of the persons authorized to take political decisions, and it extends from the prefect to the supreme judge. It will be held as the basis by the ephores58 in order to evaluate the coherence of the decisions of the sovereign. It is the supreme criteria which, in the event of a contradiction between a particular decision of the sovereign and the natural law, will enable them to invalidate the decision of the sovereign. From this overview of the central elements of the Althusian theory of ­natural law, it is evident that it remains unaffected by the Kelsenian critique of this notion. Indeed, for Althusius, the natural law contains a plurality of principles immediately accessible to human reason, which create a legal order completed by the law of nations and of the civil law. The legal system is not inherently coherent and without the possibility for contradiction. The three domains of law can generate dilemmas, but it is precisely the office of judge which, in a particular instance, enables the determination of which norms of law should apply.59 It is not possible either to consider this theory of natural law as subject to general Kelsenian critique because the power of natural law, in Althusius, is not derived from an origin (God, reason or justice), but from the fact that it is the condition of possibility of society. While Althusius demonstrates the necessity to recognize the commands of natural law, this is not because of the inviolability of their origin, of their incontestability, but because they are that without which human society could not exist. Their constraining force, their 57

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Althusius specifies that “the subject of the Decalogue is indeed political insofar as it directs symbiotic life and prescribes what ought to be done therein. For the Decalogue teaches the pious and just life; piety toward God and justice toward symbiotes. If symbiosis is deprived of these qualities, it should not be called so much a political and human society as a beastly congregation of vice-ridden men. Therefore, each and every precept of the Decalogue is political and symbiotic”, (Politica, chap. xxi, 198). Althusius uses this term to refer to the meaning it had in the ancient city of Sparta, where the ephors were a collegiate body sitting next to the legislator in order to control him. For the relationship between natural law and civil law and the law’s determination lying with the judge, see Scattola, op. cit., 387–388.

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imputative value, arises from the fact that they are the source of social relations. It is not the power of its origin or its supremacy that furnish the force of natural law, but the much more prosaic fact that it is at the origin of social life.60 Even if the theoretical argumentation refers to God as source of commandment, as the one assures the law’s power to constraint, Althusius is opposed to Lutheran juridical voluntarism that one must obey the law because it is the will of God. The justification of law is the fundamental use it has for human beings in so far as they have to organize relationships with others in order to live in common. One can then state that, for Althusisus, law is firstly in the service of society, and secondly, and much more fundamentally, the means of sociability, which is to enable men to establish and maintain enduring productive and moral relationships. The resistance of the Althusian conception of natural law to the Kelsenian critique is indicative of the further difficulties of this critique itself. Kelsen’s conception of natural law considers law within the epistemological framework in which law is conceived as animated by a strict causality linking separated events. In the Kelsenian presentation of the so-called “classical” natural laws, everything occurs as though this natural normativity should accomplish itself independently from the human being, following the model of the law of gravity: Since the idea is one of a “natural” order, it follows that its rules, directly as they flow from nature, God or reason, are as immediately evident as the rules of logic and thus require no force for their realization.61 He considers natural law as indeed present in reality and determining its own order in a manner equivalent to any other physical law. However, this idea is found in none of the sixteenth century’s theorists of natural law, for they did not yet have the concept of law attributed to them by Kelsen, namely, the idea of an objective and strict causality that necessarily unfolds in the ­establishment of deterministic relationships (cause and effect) between objectively identified and distinguished realities.62 This objective scientific epistemology of nature 60

61 62

This allows one to place into question the Kelsenian position on natural law: “The norms of natural law, on the other hand, in keeping with their basic idea, derive their validity from the objective “justice” of their content”., Hans Kelsen, “Natural Law Doctrine and Legal Positivism”: 412. Ibid., 392. See also, 412: “For, why should a human-arbitrary order be needed for the regulation of human conduct, if a just regulation can already be found in an order “natural”, evident tout all and in harmony with what all en of good will would propose?” Wolfgang Schmidt-Biggemann, “Der rechte Ort von Erkenntnissen oder: Der rechte Satz am rechten Platz: Die Rolle von Invention und Judicium in der humanistischen

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will only be elaborated in the later period of modernity, half a century after the period of the significant classical theories of natural law. For the classical authors, all normativity should be oriented to, and can then infered from other data, which justifies the duty of sanction if the law is not respected.63 2

The Althusian Methodological Rationalisation of Law

2.1 “Private” Rights64 and Liberties One of the central aspects of Althusius’ juridical theory resides in the rationalisation of law presented at the beginning of Politica, and further developed in the Dicaelogica, as a systematic classification of juridical concepts. The initial knowledge of natural law is to be articulated with the improvement of the doctrine of law. The Politica is explicitly undertaken to study politics and law in a scientific way. This leads Althusius to engage in a process of internal differentiation and classification of law, distinguished through its various elements and modes, to establish its forms in accordance with the circumstances of their use.65 The systematization is itself only possible after the determination

63

64

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­Wissenschaftsgeschichte”, Berichte zur Wissenschaftsgeschichte, Vol. 3, No.1–2 (1980): 70–72. For all the representatives of the natural law tradition (Thomas Aquinas, Gerson, Allmain, Vitoria, Domingo de Soto…), one has to distinguish law’s vis coactiva (force of constraint) and its vis directiva (force of command). It is an integral aspect of natural law to be articulated with vis coactiva. In this tradition, it cannot be conceived as an already existent obligatory relationship which, through its comprehension in reason, is the orientation for action, as this would be to formulate a purely descriptive theory of natural law. On the contrary, the elaboration of a juridical theories arises because law does not naturally belong to human relations and that, consequently, one should actively examine and determine the conditions of their formation (who creates or imposes the law), the conditions of their validity (promulgation and writing), and their finality (that which the law should aim at). If natural laws should be recognized as such by men, and sanctioned by the prince and justice, that is because it is not in the inherent nature of men to already accord them respect. Natural law is not performative. I follow, here, the designation of John Witte (The Reformation of Rights. Law, religion and human rights in early modern Calvinism, (Cambridge: Cambridge University Press, 2007): 177). It is a potentially controversial topic, because we do not find, in Althusius, an explicit and clear differentiation between the public and private domains. However, following the interpretation of dominium, by the School of Salamanca, combined with the interpretative connection between the ability to do (potestas) and the law (ius), Althusius defines that which both belongs to and is due to men because of their humanity, and which the state has to protect – a definition equivalent to that of private rights. John Witte, “A demonstrative Theory of Natural Law: Johannes Althusius and the Rise of Calvinist Jurisprudence”, Ecclesiastical Law Journal, 11, 3 (2009): 255–259.

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of the political analysis – the framework of human interaction – because law has no pre-existing origin in nature. The character of the systematization is not orientated to the further precision of the relationship between norms and the subject, but, instead, concentrates upon analyses of the types of norms that establish and maintain just and regulated human interaction. In this manner, the systematization is the elaboration of the science of a human society’s legal forms. The decisive Althusian theoretical gesture commences by distinguishing facts from law. This manner of commencement is predicated upon the understanding that law cannot be found directly and immediately in facts, but, ­rather, that law installs itself, as a juridical relationship, between facts. It is these juridical relations that Althusius then proceeds to systematically classify and describe. In the Politica, the first fact which is the foundation or ground of social life is the communicatio, namely, the symbiotic groups within which law can be enacted. The purpose of the Politics is to gather the sources of the impetus for, and vitality of, universal association, and then to entrust the jurist with the task of instituting normative rules that maintain and reproduce universal association. After connecting the common natural law with the ground of sociability, and before approaching the essential question of dominium and iura majestatis, Althusius concentrates upon another species of law, that of “private” rights. For, if the social dynamics of sociability rests on the sharing of goods resulting from human activity, men should respect one another in their humanity. Otherwise they will remain closed to one another and will exclude themselves from the collective effort. At this point, [a]s in his discussion of religious rights, Althusius first set out the b­ asic natural rights taught by Second Table [of the Decalogue] and parallel natural law statements, and then summarized some of the civil rights that elaborated these natural rights. The Second Table has five sets of natural rights of a person in society and five corresponding duties that other persons and groups, including the church and state, owe to the rights holder.66 Althusius identifies five kinds of rights which should be accorded universal recognition. The first one is the respect of the moral and physical integrity of each individual. It includes “the liberty and safety of his own body”, the freedom to 66

John Witte, The Reformation of Rights, on whose interpretation we are relying here. See, in particular, pp. 176–181.

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nourish, protect, and care for one’s own life, the right to carry arms for protection, and also excludes “terror, murder, injury, wounds, beating, compulsion, slavery, fetters, and coercion”67 and thus contain freedom from murder, assault and personal injury. Secondly, everyone has the right to lead a holy, chaste and pure life and to resist the actions of others who threaten the same.68 The third imperative is the recognition of each individual’s right to property and, as the lawful owner of external goods, their use and enjoyment.69 If goods were to be unable to be attributed as property to someone, then it would not be possible to ensure the stability of each individual’s everyday life nor to envisage the future in a peaceful way. Consequently, it is the duty of each individual to respect the property and the use of external goods by the other. The fourth private right is the respect of each individual’s reputation.70 Rumours, insinuations or insults made verbally to others infringe both individual self-esteem and the esteem which each has for the other. One of the sources of social discord is the ‘adder’ coming out of the mouth of the one who wants to degrade another’s honour. Each individual has, thus, the duty to preserving the social image and standing of his fellows, and not to impugn or undermine their dignity. And fifth, everyone has the right to marry, procreate, nurture and educate their children.71 2.2 Dominium and iura majestatis as Authorization Rights The second Althusian theoretical movement is the exposition of the legal relationships binding altogether all the Republic’s components. The analysis and classification are developed by the identification, definition and detailed description of all the elements which comprise the juridical act. This analysis is an integral element of the broader method of Althusian rationalisation of law. The systematization proceeds to separate the domain of the juridical into a general and a special part.72 The differentiation between the two branches of law – natural law and positive law – is, in this context, irrelevant because 67 68 69

70

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Politica, Chap. x, 95. Dicaeologicae, Book i, Chap. 25–26. “Thirdly, a man has external goods that he uses and enjoys, opposed to which are the corruption, damage, and impairing of his goods in any form, as well as their plundering or robbery, and any violation of their possession or artificial impediment to their use”. Politica, Chap. x, 95. “Secondly, the neighbour possesses his reputation, good name, honor and dignity, which is called the “second self” of men. Opposed to them are insult, ill repute, and contempt. (…) Also pertaining to this category are the right of family, and the right of citizenship that belongs to some”, Politica, chap. x, 96. Politica, Chap. x, 5–7; Dicaeologicae, Book i, Chap. 117–122. Dicaeologicae, Book i, Chap. 1, 3.

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Demelemestre The parts of trade (partes negotium)

Things (res)

Singular (discreta)

Universal (universales)

Persons (personae, homines)

Singular (singuli, distincti)

Collectives (conjuncti)

Incorporeal Corporeal (corporales) (incorporales)

The species of trade (species negotium)

Voluntary act (contract, pact...)

involuntary act (offence, quasi-offence...)

Figure 3.1 The two schemas reproduced here are (simplified) parts of the general plan which Althusius places at the beginning of the Dicaelogica.

­ lthusius classifies the types of law implicated in each species in regard to A their logical structure, not to their origin.73 Both of the distinctions are found in natural law (iuris obligatio) as well as in positive law (servitus). In the Dicaeologica, the fact anterior to law, and of which the jurist should take account, is trade, which represents the acts bringing to social life that which is useful or necessary, or, on the contrary, the acts which are in direct opposition to that which is useful or necessary (Figure 3.1). The juridical relationship will then be grounded on this fundamental fact. The general part consists of the presentation of legal relationships which are established from the fact of human interaction based upon trade.74 The further distinction and definition of these legal relationships is created by the separation of two elements: Things and Persons. Althusius first distinguishes the parts of trade which are things, since any trade bears on a thing, these things being able themselves 73 74

The negotium is distinguished between partes and species, partes between res and personae, res between discreta and universales. Ibid., Chap. 1, 4 ; Chap. 1, 6–8.

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Comments on the Kelsenian Idea of Natural Law Law (ius)

The constitution of law (Constitutio iuri)

Natural law (ius naturalis et communis)

The forms of law (species juris)

particular civil laws (ius propria et civilis)

Obligations (obligatio)

Power over things Full property

Dominium (authorisation rights)

Power over persons

Semi-property

Power over oneself (libertas) Domestic power (Potestas privata)

Power over the other (Potestas in alium) Public power (Potestas publica)

Limited power Paternal power Marital power General power (Potestas universali) (Potestas limitates)

Figure 3.2 The origin and forms of the right of authorization

to be subdivided and classified into singular, universal, corporal, incorporeal things.75 Then, the element of persons is considered because any trade provided with a subsequent juridical framework has a subject that can be collective or individual.76 This consideration is then followed by a classification of the type of trades, which can themselves be further subdivided into those which derive from a voluntary act, such as the contract, the transaction,77 or, in contrast, those which derive from an involuntary act, such as an offence, semi-offence.78 Althusius then proceeds, in the special part, to consider law in itself – ­constitution iuris – through the identification of the first constitution of law, namely, the ground of the juridical framework, of law itself (Figure 3.2). It is composed of the natural common law, which is the common and supreme source of law, and of particular civil laws proper to each symbiotic group. Hence, Althusius adopts a specific two-fold classification in which the law 75 76 77 78

Ibid., Chap. 1, 9–24. Ibid., Chap. 5, 1–2. Ibid., Chap. 8, 1–2; Chap. 9, 2; Chap. 9, 8. Ibid., Chap. 11, 1; 11, 6–27.

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which protects the “welfare and necessity of all” is defined as law common to all, and the law which protects them in a manner “appropriate to individual places and people” is defined as “civil or individual law”.79 Then, Althusius proceeds to distinguish the types of law (species iuris), which refer to the typology of juridical relationship that impose obligations to men because of their humanity and their life in common. These are mutually complementary: the former (obligatio) repository of all the duties toward oneself, God and the others, while the latter (dominium) confers an authorization, as regards a thing or a person, which is available to man considering his needs, his use and the proper conduct of his life. The juridical relationship established by the dominium – an individual power over something or someone – consists in conferring upon an individual subject the possibility to use some form of power in relation to another subject. From this origin, Althusius analyzes the various forms of the right of authorization that have the potential to be operative within society. He distinguishes the dominium into that exercised over things in full or semi-ownership and the dominium over persons. The power over persons relates to the power over oneself – individual liberty – and the power over the other itself divided into domestic (private) and political power. The political power – a collective or functional power functional power over individuals – is composed of the iura majestatis which all the symbiotic groups are considered to share. Each group possesses part of it, and it is subdivided into universal right, provincial right, right of the town and right of private groups. The iura majestatis thus contains a number of particular forms of rights which allow an individual or group, according to their function, to have a specific type of power over others. It is evident that Althusius, in this hierarchical classificatory structure, situates moral law, as natural law, at the top of the hierarchy, which prefigures the conception of natural law in the later tradition of modern rationalism. However, this form of presentation is coupled with two elements which are absent from this later tradition, namely, the predisposition for, and emphasis upon, law in the form of rights attached to a function (officium) and validated by a contract.80 For the species of law described and classified by Althusius are powers recognized as those of individuals engaged in social life and are, thereby, attributed with distinct types of responsibility. Thus, the prefect, after his election and the agreement, by each party, of the contractual terms of his mandate, will be authorized to impose a certain obligation (i.e., financial) on the 79 80

Dicaeologicae, Book 1, Chap. 13, 6. Robert von Friedeburg, “Persona and Office: Althusius on the Formation of Magistrates” in Conal Condren and Stephen Gaukroger (eds.) The Philosopher in Early Modern Europe: The Nature of Contested Identity, (Cambridge: Cambridge University Press, 2009): 162.

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other members of the town, if he has been entrusted with this ­competence and the senate as a whole agrees with his decision.81 This public form of authorization has its parallel, for example, in the private form of the father’s domestic power over his children. Hence, while natural law is situated as the natural origin of social life, the civil rights agreed by the community are the grounds upon which the social structures will arise. In analysing law, in engaging in the systematic and detailed classification of the various elements of which it is composed, Althusius obviously pursues the further purpose of rationalising social relationships. The theoretical project is undertaken as if the clarification of the juridical relations between men is simultaneously to render the dynamics of the various social relationships intelligible, and to enable the effective limitation of the margin of expectational uncertainty that continues to characterize human behaviour. If one focuses on the Althusian effort of systematisation, it is no longer possible to consider Althusius as a theoretician of natural law whose conception of natural law is one which is exclusively present in “nature”. This, in turn, reveals that the meaning attributed to natural law by Althusius requires its acknowledgement as a specific variant of the theories of natural law within the natural law tradition. In this manner, the distinctiveness of the Althusian theory of law is evident in the attention devoted to the particular juridical modalities which institute a legal relationship between the individuals.82 Indeed, this ­becomes apparent from the conception of “functional” rights as authorization rights: the powers conferred to the town, to the husband, to the prefect (etc.) do not prescribe anything, they only authorise these subjects to take the decisions that they consider as being necessary to fulfil the function with which they are entrusted. Legal authorizations to use power are granted, and, thus, are authorizations to entrust the other with the power to act should it be considered necessary to do so. The Althusian theory involves the systematic combination of the elements of natural law, civil law, duties and legal authorizations within a coherent, non-contradictory framework. 3

The Fundamentally Evaluative Status of Political and Juridical Actions

Law is partly created by men and is an instrument placed at their service. One should then be able to evaluate it for three main reasons. First, humanity is not infallible and, from this constitutive weakness, a space opens within which 81 82

John Witte, The Reformation of Rights: 183. John Witte, “A demonstrative Theory of Natural Law”: 258–259.

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to judge the coherence of the specific juridical rules that are a sought to be imposed. The space of judgment creates a position external to the existing or potential legal rules from which it must then always be possible to judge, criticize and evaluate in accordance with a standard which exists outside them. Law, for Althusius, must itself seek to preserve the internal dynamism of the universal association, and so, one is led to question the decisions and associated legal rules made by the supreme judges. To this, we must add the fact that a power retained exclusively by a single agent is always a potential source of tyranny. Althusius explicitly considers these three difficulties when he turns to the question of the rights of sovereignty, and, as we shall now see, he combines a definition of power and law which provides the capacity for their evaluation. 3.1 The Rights of Sovereignty as Rights of Authorization Althusius first emphasizes the open, dynamic features of law and politics, through the authorization of socio-political groups to exercise part of the rights of sovereignty. Althusius contests the Bodinian doctrine of sovereignty based upon the insight that, if sovereignty is concentrated in a single point, society is dispossessed of its active principle and condemned to powerlessness. This determines the decision to distribute the rights of sovereignty which are thus shared between all the organized members of society.83 The possibility for this distribution arises from the Althusian notion of communicatio as a founding principle of social life. For the different levels at which the communicatio is held to emerge and develop is at the centre of a political analysis which is constituted on the basis of this sharing. The notion of sharing, as a sharing in communicatio, separates the Althusian presentation from the description of a society of exchange in the modern sense. His theory describes social structures particularly suitable to the production of goods and the exchange of services. These social structures are classified and analysed as a hierarchy ranging from the smallest to the largest which is also the passage from the private to the public: family, private association of trade bodies, then villages, towns and ­provinces, and then the universal consociation or republic. Each form of human association possesses a certain share of sovereign rights, namely, a right of self-management based on its capacity to fulfil the finality that justifies its existence. To each of these groups should be ac­ corded the right to enjoy the power necessary for their autonomy, without the ­interference of any other more powerful group. Althusius permits this delegation while conceiving of the rights accorded to these groups as authorization rights. They c­ onfer upon the institution in charge of the organisation the ­capacity to exercise power in the interests of all the members of the particular 83

Politica, Preface to the 3th edition: 4–5.

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consociation. As in the Dicaeologica, these degrees of sovereign rights are not formulated as natural rights which are the subject of the Kelsenian critique; they do not impose the obligation of conformity to a certain content. In Althusius, the rights of sovereignty are distinguished by their existence as rights of authorization. The designation of these rights as authorization rights, which is the position which such civil rights are accorded within the Kelsenian approach, perfectly encapsulates the type of power conferred by Althusius upon the various groups. Indeed, he proposes no further rule to determine the specific use of these rights. The lack of any specification flows from the dependence of the juridical on the political: the rights of authorization are in the service of the needs of a certain form of association. Hence, it is impossible to predict and determine in advance how they will be used. The rights of authorization are, instead, “regulated”, by Althusius, through the definition of the various constitutive principles for these groups: 1. The end of each of the groups is to ensure their autonomy; 2. In each of the small groups, there should be a prefect in charge of the power of constraint, and a collegial element in charge of making the decisions, and in the larger associations, the college will evaluate the coherence of the decision taken by the prefect; 3. The power should be exercised in the collective interest, a particular will can emancipate itself from the whole without altering the structure of the whole; 4. Each body is authorized to take measures that will seem appropriate and will be obeyed. The rights accorded to the consociations are then delegations without any prescription. Althusius is one of the first theoreticians of law and of politics to proceed to establish a clear distinction between the authorities holding the power of decision and the authorities in charge of executing or administering these rights.84 Furthermore, the political decision of the jus regni, expressed by the final integrative strata of the universal consociation, is formulated in general terms, but its application has to acknowledge the particular situations of the members of the republic, and so be adapted to it.85 The ruler’s wisdom is accompanied with a wisdom of execution and, thus, of a practical sense that 84 85

Politica, chap. xxi “De lege, ad quam Reipublicae administration est instituenda”; chap. xxix “De sanctione legum et administratione justiciae”. For an exhaustive, comparative description of the qualities required by the magistrates in the Politics, see Michael Behnen, “Herrscherbild und Herrschaftstechnik bei Johannes Althusius”, Zeitschrift für historische Forschung, 11, 4, (Berlin: Duncker u.Humblot, 1984): 417–472.

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the administrators should cultivate in order to prevent that counterproductive use of power.86 3.2 The Duty of Control Inherent in the Use of Power and of Law Althusius differentiates himself from the predominant theory of absolutism (Bodin, Pierre Cardin Le Bret87 (1558–1655), Charles Loyseau88 (1566–1627)) as he refuses to exclude power and law from the possibility of evaluation from a position which is accorded external authority. The suppression of this ­possibility is to establish a nexus between the theory of absolutism and the elimination from the theory of politics and law of the recognition of levels of rule and of the associated question of the relationship between ruler and ruled at each of these levels. The main critique formulated by Althusius in relation to the Bodinian theory of sovereignty was its absence of exteriority, namely, the fact that power becomes the sole judge of the well-founded and correct use of its rights. Consequently, the absolutist theory of sovereignty is hermetic, and dissociated from all possibility of critique, since it articulates the exercise of power in a unified manner: the identity between the promulgation of the law and the goal of power. In the representation of sovereign absolutist power, it is not possible to evaluate the exercise of power, because the sovereign is the exclusive norm of the political act. The sovereign states the law and the origin of law in the sovereign places the law beyond any critique. The central focus of the critique of Calvinist, monarchomach theorists (François Hotman89 (1524–1590), Théodore de Bèze90 (1519–1605), Simon ­Goulart91 (1543–1628), Nicolas Barnaud92 (1538–1604), Philippe Duplessis-­ Mornay93 (1549–1623) and George Buchanan94 (1506–1582)), which Althusius 86 87 88 89 90 91 92 93 94

Politica, chap. xxix, 277. Pierre Cardin Le Bret, Traité de la Souveraineté du Roy, 1632. Charles Loyseau, Traité des Ordres et simples dignitez (1610), english transl. “A Treatise on Orders”, in The Old Regime and the French Revolution, ed. Keith Michael Baker, (Chicago: University of Chicago Press, 1987). François Hotman, Francogallia, critical ed. by Ralph E. Giesey, transl. by J.H.M. Salmon, (New York: Cambridge University Press, 1972). Théodore de Bèze, De iure magistratuum, critical ed. by Klaus Sturm, (Neukirchen-Vluyn: Neukirchener Verlag des Erziehungsverein, 1965). Simon Goulart, Mémoires de l’estat de France sous Charles ix, (Meidelbourg: H. Wolf, 1578). Nicolas Barnaud, Le miroir des François, compris en trois livres, 1582. Philippe Duplessis-Mornay, Vindiciae contra tyrannos, sive de principis in populum et populi in principem legitima potestate (Stephanio Junio Bruto Celta auctore), Edimburgi, 1579. George Buchanan, De iure regni apud Scotos, Edimburgi, 1579.

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will adopt, is that the absolutist theory entails the total submission of the subjects to the political will of the sovereign. The basis for such an abnegation is, for the monarchomachs, the misapprehension of the bond linking the ruler and the people. Republics are no tyrannical commonwealth, exemplified, for Bèze, by the Ottoman Empire.95 One must distinguish between the prince, or the king, and the kingdom or community of citizens (universitas).96 The prince is only the first magistrate, the princeps of the republic, but “all the body of the people, and the magistrates of the kingdom who represent this body, are over the prince”,97 because he only possesses his power as a result of a preceding process of power’s translation entrusted by contract by the universitas. In a similar manner, for Althusius, the ius regni is conceived as that which is to be exercised over the people by contract, and as any power exercised on a free being, the latter should be able to evaluate the accomplished act. It is not possible to exercise a power over a free creature, and, thereby, to compel him to act in a certain way without the requirement to present a justification: “Rulers are made for the people, not people for the rulers”.98 Hence, the relationship between power and law cannot be considered self-referential. That is why, in the republican body conceived of by Althusius, each decisional strata contains both a unitary principle and a collegial principle. This structure is replicated at the highest strata with a collegial group, the ephors, associated with a unitary principle, the prince and holding the jus regni. They are elected by all the associations and aim at the defence of the interest of the universal consociation as a whole.99 The people transfers to them part of its authority and power in order that they can act in the role of guardian of the common interest. Althusius also designates them as the representatives of the people.100 Their role is to scrutinize the use of power and law by the 95

See Robert von Friedeburg, “Von den Ephoren als Institut ständischer Mitbestimmung zur Fundamentalverfassung des Gemeinwesens: Die Entwicklung von Calvin bis hin zu Althusius, Besold und Boxhorn um die Mitte des 17. Jahrhunderts”, in Heinrich de Wall (ed.), Reformierte Staatslehre in der frühen Neuzeit, (Berlin: Duncker & Humblot, 2010): 90. 96 On this distinction, see Jean Bart, “La justification du tyrannicide selon les monarchomaques”, in Dominique Gros and Olivier Camy (ed.), Le Genre humain, 44, Seuil (2005): 48–49. 97 Théodore de Bèze, De iure magistratuum, 18–19. 98 Politica, chap. xix, 13. This is a classical quotation found in Bèze and other earlier Calvinists. 99 “These public ministers of the realm are elected by the united and associated bodies or members of the realm for the purpose of properly and honestly attending to, administering, governing, and conserving the body and rights of this universal association”., Politica, chap. xviii, 136. 100 Ibid., chap. xviii, 143.

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supreme magistrate. They evaluate the coherence of his decisions, censure the measures that appear bad to them,101 and ensure that power is exercised correctly.102 And they can dismiss the supreme magistrate if he contravenes his duties. Indeed, “if they miss the only duty inherent to their function, they are not only perjurers alongside the tyrant, but they legalize tyranny because of their passivity”.103 The ephors’s right, and even more their duty, to dismiss an incompetent governor is an essential component of their contractual relationship with the supreme magistrate, as theorized by monarchomachs and provided with significant further development by Althusius. As noted by Witte, the Althusian republic is institutionally construted on various phases and dimensions of the political covenant, creating a series of receiprocal contractual obligations: The first was the agreement among the people themselves who, directly or through their representatives, chose to form a political association regardless to its type of government. The second was between the rulers and the people, by which each side defined the forms and norms of government of the political association, and their respective duties and rights, powers and privileges therein. The third agreement was between the ruler and God to maintain a Godly commonwealth that […] secured the blessings of liberty for the people and their associations. The fourth was between the chief magistrate and the lower magistrates, by which each side agreed to check and balance the other as a safeguard against tyranny.104 These political covenants – urban, provincial, and national level alike – were “the guarantee of the ultimate rule of laws and rights in human society”.105 And they were not just metaphysical, or metaphorical constructs, but were 101 “Whence polities have often been freed from their greatest dangers and disorders by these ephors and orders. For the ephors either abolish or overcome the wicked actions or tyranny of the supreme magistrate. They also compensate for his sloth by their own vigilance and diligence, and fully provide and make sure that the commonwealth does not suffer anything to its detriment by the actions of the king”, Ibid., chap. xviii, 144. 102 “From these things it is apparent that ephors, as the critical supporters and upholders of the universal society or realm, are the means by which it is sustained and conserved during times of interregnum and peril, or when the magistrate is incapable of exercising imperium, or when he abuses his power, as Botero says”., Ibid., chap. xviii, 144. 103 Marie-Hélène Belin, “Souveraineté et droit de résistance”, Philosophie, éd. de Minuit, n° 4 (1984): 10. 104 John Witte, The Reformation of Rights: 191. 105 Politica, xxxviii, 31.

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written chapters and constitutions, to which the rulers and the people solemnly swore their allegiance before God. They specified in detail the mutual rights and duties, powers and prerogatives of the rulers and the people, and the principles and procedures for the creation and enforcement of positive laws.106 Thus, the supreme magistrate is not in possession of power. He exercises the power granted by the organized people for an office through a contract with this people (pactum subjectionis), where he commits himself, before God, to rule by God’s laws and the fundamental laws of the kingdom. Under these conditions, the people agrees to obey his commandments. However, if one either side violates the terms of the contract, the other is immediately released from its provisions. Thus, if the chief magistrate does not fulfill the function en­trusted to him, the people, prior to any legal action against the tyrant taken by the appropriate authority, is released from its duty of obédience.107 Then, assessing the complaints made to the supreme monarch in light of his actions, the ephors must adjudicate with the capacity to sanction ranging from temporary suspension of duties to final dismissal. For Althusius, if the people themselves do not possess the right of revolt against power, their representatives are, on the contrary, capable of exercising the right of resistance on their behalf, if the supreme magistrate refuses to consider their critique. In overturning the famous absolutist sentence Princeps legibus solutus est, Althusius argues that “the law is superior to the king, and the king [has to] be subjected to law”.108 If the body of the ephors as a whole adopts a position against a sovereign decision and the prince continues to maintain it, then the people will not have to obey him. If the prince continues in his attitude of refusal, and thus of the negation of the power of control, the ephors have the duty to engage in his removal. Indeed, through the contractual relationship between the supreme magistrate and the organized people, it is entirely legal for the supreme magistrate to be revoked by the body which assists him to govern.109 Althusius develops his argumentation for a power in the service of a community through the enunciation of one of its ultimate 106 Witte, op. cit., 191–192. 107 However, apart from passive resistance, a particular individual cannot do anything against his supreme magistrate without acting outside of the law; only the representative bodies have the ability to judge their magistrate. See Bart, op. cit., 54–56. 108 Politica, xxxviii, 123. 109 For a comparative analysis of the Althusian position within the tradition of the theorists of the right to resistance, see Bart, op. cit., 47–57.

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c­ onsequences: a magistrate who exceeds the parameters of his granted power or who uses the rights for his own benefit “ceases to be a king and a public person, and becomes a private person”.110 In other words, it is in placing the leader under the control of the body which has conferred him with his power that Althusius preserves an inherent normative use of law and power. Such an extreme case – dismissing the supreme magistrate – should not be understood as jeopardizing the republican institutions. One could indeed fear that the legal capacity to sanction judges – which is found in all the associative levels, since each one has a dualistic structure, a princeps and a collegial body in charge to inform and control him – finally creates an unregulated challenge to the duty of obedience, being a constant potential source of anarchy. However, Althusius wrote his Politica as a practical political work, not as a philosopher or political theorist.111 He positions himself as a political strategist: assuming the critical role of the future officers of the republic, he informs them of the nature of their function, that which they must fear and how to overcome divergences among men.112 Thus, “[t]he law, pre-eminently the Decalogue, is the “vinculum quo respublica cohaeret et spiritus vitalis” (the cohering bond and vital spirit of the republic, Politica, Chap. x, 4). But laws must be understood and applied by individuals possessing experience, specialized knowledge and self-control”.113 That is the reason why public officers – in the villages, towns, provinces, and at the national level – must necessarily express attributes, skills, specific virtues attached to their duties, in relation to which the Politics has to instruct them, and to enable them to learn how to repress both their own personal vices and failures and those created by their dominant public position (arrogance and superiority). For, they would be incapable of maintaining order if they were not to engage with current legal procedures and advise on the practicalities of ruling human beings.114 It is then not surprising if one of the most difficult functions of the magistrate, emphasized by Althusius, is to generate the consent to law among the people.115 In the troubled times in which the Politica was written, after the shock of the massacre of Saint Barthelemy, the war of the United Provinces against Philip ii, and in the middle of the wars of religion tearing the European kingdoms apart, 110 111 112 113 114

Politica., chap. xviii, 152. Belin, op. cit., 11. On the conceptualization of the magister by Althusius, see Behnen, op. cit., 417–472. von Friedeburg, op. cit., 162. On the duties required by the magistrates and the councillors, see the very useful analyses of von Friedburg, op. cit. 115 On this point, see von Frieberg, op. cit., 172.

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absolutism was defended as the only form capable of restoring peace within the European continent. However, it was a solution, in its dispossession of the people of their sovereign rights, which was also considered as a form of tyranny.116 In explicit opposition to absolutism, Althusius placed the rights of sovereignty firmly in the hands of the universitas, and sought to institutionalize it in order to regulate the social and political tensions within states. For Althusius, politics was to maintain the institutional order of the republic by a body exterior to the logic of the private and public consociations. It took for granted that the body politic was a hierarchy of rulers and ruled, and that the civitas was thus in need of an institutionalized order, a res publica of magistrates responsible for and operating within an institutional structure distinguishable from the other association of the civitas.117 The Althusian concern to establish an institutional configuration for the regulation of society is accompanied by the insistence that, without the separation between this order and the exercise of sovereignty, “this would be to deny the accountability of the supreme to the inferior magistrates, or to positive civil laws”.118 The ruler is thus reintegrated into the order of the magistracy; he is certainly supreme, but only as the first one among equals and is never situated above the law and the republic. 4 Conclusion The analogy between the historical circumstances in which the Althusian and Kelsenian theories of law and of state were formulated provides a further interpretative perspective upon their work and theoretical expectations. Kelsen experiences the later crisis of nineteenth century forms of state – c­ onstitutional monarchy/empire – resulting from World War i, and his response to this situation is a total reconstruction of the theory of law and state initiated by a major critique of the preceding German language tradition of Staatslehre or Staatswissenschaft. Through an internal transformation of its theoretical categories, he elaborated a legal science of positive law as a pure theory of law and 116 Politica, Chap. xxxviii, 6. 117 von Friedeburg, op. cit., 165. 118 Ibid., 167.

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a theory of constitutional democracy, arguing for the rejection of all recourse or return to natural law.119 The Politica and the Dicaeologica are also the product of crisis. They are published in the intellectual context of medieval and renaissance crisis, within the wider disintegration of the feudal order, the Reformation having undoubtedly discredited the idea of an “all-inclusive, strictly hierarchical organization of the medieval ordo, for which the church formed the ideological foundation”.120 The forms of personal authority had been weakened affecting the stability and legitimacy of the ascending hierarchy of obligation to one’s lord. The same phenomena of dissolutio – destruction of the previous order – also occurred in the discipline of law, the Scholastic method (described mostly negatively as ius italicus) being unsuitable to the new theoretical and practical exigencies of the early modernity, and continually criticized by the French legal humanists (inventing the ius gallicus) and the Reformed jurists. In a similar manner to Kelsen, directly related to the experience of crisis, Althusius’ works were animated by the requirement for order. With a similar suspicion in relation to the predominant juridical and political methodology, Althusius sought to restore the endangered order through an axiomatic method conferring a scientific status upon his analyzes. However, the Kelsenian project advances the idea of a pure formalism avoiding law’s contamination with the realm of empirical facts, whilst Althusius relies, instead, on a founding element, logically prior to the concept of community understood as a body, for which he ensured its scientific status as the origin of his theory: it is the notion of order. This notion of order is no more that perpetuation of the medieval idea, but of an axiomatically established order for the law and of the republic. Thus, Althusius commences from the medieval idea of universitas as a moral and political body and thematizes it so that order is prior to the interpretation and the law.121 However, instead of considering it as a presupposition for his reasoning, he subjects it to scientific analysis in order to extract its genuine principle – the iura majestatis –, which is at the centre of his legal and political theory. In this manner, he can defend the idea that social actors are generators of order.122 The capacity to exceed or renounce the ordo iuris is presented as 119 For a detailed discussion of this point, see Ian Bryan, Peter Langford and John McGarry (eds.), The Reconstruction of the Juridico-Political: Affinity and Divergence in Hans Kelsen and Max Weber, (London: Routledge, 2015), Introduction: 7. 120 Strohm, op. cit., 202. 121 Stéphane Bonnet, Droit et raison d’État, (Paris: Garnier, 2010): 22. 122 Here lies a striking crosscheck between Althusian and Weberian approaches since, for Weber, “[t]he methodological approach commences from the meaning to be attributed

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e­ ndangering and altering the shape of the republic, as a violation of the integrity of the community. Althusius was acutely aware of the Bodinian thesis that the will of the sovereign ought not to be an ordered or regulated power (ordinata potestas), but a power released from the civil order, transcending both the concern for the useful and the necessary and the civil order.123 The Bodinian position is overturned by demonstrating that the “sovereign” is not the holder of his power, and that the legal order of the universalis consociatio, ontologically prior to his action, founds it, frames it, and restricts it. The Althusian innovation is to recognize the capacity of socio-political actors to create law (through the dominium and the majestatis iura); and that this legal autonomy remains at each level under control of common order, since the universitas of each consociation may oppose the magistrate if it judges that he does not use his power in the interests of the association; and this also applies, without qualification, to the first magistrate. The Althusian conception of natural remains beyond the Kelsenian criticism of the natural law, through its recognition of a plurality of innate principles of natural law. It is a natural order constructed from the idea that the natural law, the law of nations and the civil law have their own domain of competences, each of one engaging in a complementary apprehension of a distinct form of human relationship. The Althusian regulation of the use of law and power as an integral element of the Althusian theory indicates that the Kelsenian conception of an essentially idealistic natural-law doctrine is unable to encompass the primary purpose of the Althusian notion of natural law. Althusius, through the opposition to Lutheran juridical voluntarism, does not conceive and posit natural law as an absolute authority because of its origin (God). The Althusian justification for law is predicated not upon belief as the as the foundation for its constraining force, but upon the fact that law is the conditio sine qua non of human society. It is as the condition of possibility of social life that natural law should prevail. Society which, composed of levels of consociation, creates a more complex and enriched framework of human relationships, requires, for its maintenance and reproduction, the full use of the potential of civil law. Althusius utilizes, then, the civil law rooted in dominium, or on a part to social action – the action of individuals in relation to other individuals – and subsequently introduces the notion of the State. The primacy accorded to the meaning of social action entails that the State is understood as a type of organization which orientates and co-ordinates social action”. (Bryan, Langford and McGarry, op. cit., 5). The same could be said for Althusius. 123 “Cette volonté, qui tend à s’affirmer chez Bodin, n’est pas justifiée par l’utilité et la nécessité de ses décisions, mais seulement en tant que volonté souveraine, y compris lorsque ses décrets sont iniques ou nuisibles”. (Bonnet, op. cit., 330).

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of the iura majestatis, to enable men to exercise their capacity for i­nitiative whilst providing them, under certain conditions, with an authorization to organise the power and the subsequent rights related to the needs of the particular community of which they are in charge. Althusius utilizes ­natural law to evaluate the civil norms that comprise the essential juridical corpus of the republic. To suppress or eliminate the existence of this evaluative standard, entails relinquishing any limit or regulation of power and civil law, and, thus, the creation of the conditions for the emergence of a tyrannical regime. Thus, the Althusian theory, “understand[ing] society as universitas rather than as a civitas, as based on concord and consensus between social interests and opinions rather than on conflict and dissension”,124 does not provide for the integration of the modern idea of negative liberty, and its capacity for the republic to be a rule of law but, rather, concentrates upon facilitating a government by law. However, the Althusian emphasis upon consensus and consent remains open to the question of the place and the importance of dissent and consensus within liberal civil society, and, correspondingly, continues to be the subject of debate within our contemporary political situation.125 Similarly, our relationship to the law is certainly no longer the one thematized by Althusius; but can we, despite this, reject his thesis of a necessary critical exteriority to the law? Is the Althusian position, as Kelsen would assume, without continued relevance? When introducing this chapter, the outlines of the critique formulated against Kelsen’s theory of natural law were presented. For Kelsen, the limitation of the parameters of legal thought to the consideration of the juridical order itself – as the deduction of a delegation – entails normative authority is justified through its relationship to a superior norm. One of the consequences of this hermeticism of the juridical system towards evaluation is that “Kelsen’s pure theory transforms law into the exclusive privilege of power”,126 since he who is allowed to make the law is exempt from any critique.127 This is very 124 Miguel Vatter, “Republicanism or Modern natural Right? The question of the Origins of Modern Representative Democracy and the Political Thought of Giuseppe Duso”, The New Centennial Review, Vol. 10, n 2 (2010): 102. 125 This is evident, for example, in the intellectual controversy which divided Claude Lefort and Cornelius Castoriadis. Lefort argues that modern democratic society, characterized by its different interests and aspirations, was by its nature agonistic and, thus, required the rule of law, whilst Castoriadis, more sensitive to its depoliticization, stressed the importance of consensus and the urgency for its reinstallation in liberal society. 126 de Frouville, op. cit., 115. 127 Legal positivism implies that standards are only deductions, “ought-to-be”, without taking into account sociological, historical or material elements. Given its scientific, it is foreign to the judgment of value attached to human things, and can only recognize a scientific

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­ aradoxical, since it is the opposite of Kelsen’s first attempt, which was to p ­protect law from any instrumentalisation. However, this paradox leads to a more general process of relativization in which this relativism presents a major difficulty: by renouncing to any norm that could fulfil a critical function in relation to the law in force, the “pure theory” renders one completely disarmed in face of despotism.128 Implicitly, one of the paradoxes of a positive legal theory appears here: law is a human creation adapted to a certain form of society in a given historical period; and yet, none of the relative norms adopted by men can violate a normative basis that appears as more originary, fairer and of more intrinsic value than those norms. Leo Strauss encapsulates this essential difficulty encountered by Kelsen’s legal science of positive law theory and the response from a renewed recourse to natural law: To reject natural law is tantamount to saying that all right is positive, and this means that all law is determined exclusively by the legislators and courts of the various countries. Now it is obviously meaningful, and sometimes even necessary, to speak of “unjust” laws or “unjust” decisions. In passing such judgements, we imply that there is a standard of right and wrong independent of positive right and higher than positive right: a standard with reference to which we are able to judge of positive right …. If there is no standard higher than the ideal of our society, we are utterly unable to a critical distance from that ideal.129 It is then more the function of natural law than its nature that should retain our attention. The fact that an essential aspect of law, its “truth”, “is that which guarantees its validity beside and beyond its authoritarian imposition; it is this which renders it the object of this choice, this decision which is freely consented obligation; it is the “value” which is the content of any juridical rule and of which the rule, is merely, so to speak, a normative translation (…)”.130 The doctrine of natural law would thus supply all the essential elements for a deontological critique of law and legal thought. judgment of logic invalidation or validation. As alien to its logical normativity, the criticism becomes irrelevant. 128 de Frouville, op. cit., 115. 129 Leo Strauss, Natural Right and History, (Chicago: University of Chicago Press, 1953): 2–3. 130 Alexandre Passerin d’Entrèves, “Le Droit naturel”, Annales de philosophie politique 3 (1959): 156.

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Strohm, Christoph, “Althusius’ Rechtslehre im Kontext des reformierten Protestantismus”, in: Frederik S. Carney/Heinz Schilling/Dieter Wyduckel (Hg.), Jurisprudenz, Politische Theorie und Politische Theologie. Beiträge des Herborner Symposiums zum 400. Jahrestag der Politica des Johannes Althusius 1603–2003, (Berlin: Duncker u. Humblot, 2004a): 71–102. Strohm, Christoph, “Althusius’ Rechtslehre im Kontext des reformierten Protestantismus”, in: Frederik S. Carney, Heinz Schilling and Dieter Wyduckel (eds.), Jurisprudenz, Politische Theorie und Politische Theologie. Beiträge des Herborner Symposiums zum 400. Jahrestag der Politica des Johannes Althusius 1603–2003, (Berlin: Duncker u. Humblot, 2004b): 71–102. Thireau, Jean-Louis, “Cicéron et le droit naturel au XVIe siècle”, Revue d’Histoire des Facultés de Droit et de la Science Juridique, n°4 (1987): 55–85. Troper, Michel, Pour une théorie juridique de l’Etat, (Paris: PUF, 1994). Turchetti, Mario, “Jean Bodin théoricien de la souveraineté, non de l’absolutisme”, in Adriano Prosepri et al. (eds.), Chiesa cattolica e mondo moderno, Scritti in onore di Paolo Prodi, (Bologna: Il Mulino, 2007): 437–455. Villey, Michel, La formation de la pensée juridique moderne, (Paris: PUF, 2003). Vinx, Lars, Hans Kelsen’s Pure theory of law: legality and legitimacy, (Oxford: Oxford University Press, 2007). Waline, Marcel, “Positivisme juridique et sociologie”, in Mélanges carré de Malberg, edited by Cristian Pfister and Joseph Duquesne, (Paris: Sirey, 1933): 517–534. Walter, Robert and Klauss Zeleny, Reflexionen über Demokratie und Recht : Festakt aus Anlass des 60. Geburtstages von Clemens Jabloner, (Wien: Manz, 2009). Weber, Wolfgang, “‘What a Good Ruler Should Not Do’: Theoretical Limits of Royal Power in European Theories of Absolutism, 1500–1700”, The Sixteenth Century Journal, Vol. 26, No. 4 (Winter, 1995): 897–915. Winters, Peter. J.. Die „Politik“ des Johannes Althusius und ihre Zeitgenössischen Quellen zur Grundlegung der politischen Wissenschaft im 16. und im beginnenden 17. Jahrundert, (Freiburg Im Breigau: Rombach, 1963). Witte, John. “A Demonstrative Theory of Natural Law: Johannes Althusius and the Rise of Calvinist Jurisprudence”, Ecclesiastical Law Journal, 11, 3 (2009): 248–265. Witte, John. The Reformation of Rights. Law, religion and human rights in early modern Calvinism, (Cambridge: Cambridge University Press, 2007). Woldring, Henk. “The constitutional state in the political philosophy of Johannes Althusius”, European Journal of Law and Economics 5, no. 2 (1998): 123–132. Zarka, Yves-Charles (ed.), Jean Bodin: Nature, histoire, droit et politique, (Paris: Presses Universitaires de France, 1996).

Chapter 4

From Wolff to Kelsen: The Transformation of the Notion of Civitas Maxima Peter Langford and Ian Bryan Abstract A significant part of Kelsen’s work is devoted to the methodological separation of a theory of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from the Jus Gentium Methodo Scientifica Pertractatum (1749) of Christian Wolff. The presence of this notion immediately raises the question of the relationship between Kelsen’s theoretical framework and the specific conception of natural law developed by Christian Wolff. It is through an examination of the transformation of this notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought.

1 Introduction Hans Kelsen’s development of a theory of positive law – a theory of law as a distinct autonomous entity – involves, as an integral part of its methodological approach, the demonstration of the distinction between a theory of positive law and a theory of natural law.

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The methodological demonstration of this distinction, of which textual examples are present in the majority of the periods of Kelsen’s work,1 seems to indicate a process of strong, sustained theoretical critique. The predominant impression is of a process entirely orientated to sundering the conceptual framework of positive law from any continuing reliance upon natural law. However, this impression is in need of qualification, once it is acknowledged that certain of Kelsen’s works, in particular, the 1926 Lecture Course (“Les Rapports de Système entre le Droit Interne et le Droit International”2) at the l’Académie de droit international, the Hague, which is, a condensed exposition and development of Kelsen’s earlier Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920),3 involve the appropriation of the notion of civitas maxima from the Jus Gentium Methodo Scientifica Pertractatum (1749) of Christian Wolff. The presence of this notion immediately raises the question of the relationship between Kelsen’s theoretical framework and the specific Wolffian conception of natural law, which distinguishes between the law of nature and the law of nations. It is through an examination of the appropriation, and consequent transformation, of the Wolffian notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent.

1 Hans Kelsen, “The Idea of Natural Law”, in Hans Kelsen, Essays in Law and Moral Philosophy, (Dordrecht and Boston: Reidel, 1973): 27–60 (German original 1927); Hans Kelsen, “Natural Law Doctrine and Legal Positivism”, trans. Wolfgang Kraus, in Hans Kelsen, General Theory of State and Law, trans. Anders Wedburg, (New Brunswick/London: Transaction Publishers, 2006): 391–445 (German original 1928); Hans Kelsen, “L’âme et le droit”, Annuaire de l’Institut International de Philosophie de Droit et Sociologie Juridique, no.2 (1936): 60–82; Hans Kelsen, “The Natural Law Doctrine Before the Tribunal of Science”, 2, 4 Western Political Quarterly, 481–513 (1949); Hans Kelsen, “A ‘Dynamic’ Theory of Natural Law”, Louisiana Law Review, 16, 4 (1956): 597–620; Hans Kelsen, “Justice et Droit naturel”, Annales de Philosophie Politique, no. 3 (1959): 1–124, Hans Kelsen, “Plato and the Doctrine of Natural Law”, 14 Vanderbilt Law Review, 14, (1960):. 23–64 (German original 1957); Hans Kelsen, “The Foundation of the Theory of Natural Law”, in Hans Kelsen, Essays in Law and Moral Philosophy, (Dordrecht and Boston: Reidel, 1973): 114–153 (German original 1964). 2 Hans Kelsen, “Les Rapports de Système entre le Droit Interne et le Droit International”, Receuil des Cours, 14, iv (1926): 227–331. 3 Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre, (Tübingen: Mohr, 1920). The second edition of Das Problem der Souveränität, in 1928, refers specifically to the importance of the Lecture Course of 1926 (Kelsen, Das Problem der Souveränität, iii). All references are to the second edition.

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The Notion of civitas maxima in Christian Wolff’s Jus Gentium Methodo Scientifica Pertractatum 1749

In order to describe and examine Kelsen’s appropriation of the Wolffian notion of civitas maxima, it is necessary to begin with the presentation of the notion of civitas maxima which Christian Wolff offers in the Preface and Prolegomena of the Jus Gentium Methodo Scientifica Pertractatum.4 For it is here, in conformity with Wolff’s own methodological self-understanding of the purpose of these sections, that the distinctiveness of Wolff’s approach to the preceding natural law tradition is combined with a concise presentation of the philosophical method which guides the development of both the notion of civitas maxima and the text as a whole. The knowledge of this natural law, contained in the Jus Gentium Methodo Scientifica Pertractatum, is derived, as the Preface states, from the application of “that method which I have used in all of the law of nature and in other departments of philosophy, so that the truth can be clearly seen”.5 In the application of this method (which is, arguably, indebted to Leibniz’s philosophical interventions regarding the question of Natural Law6), Grotius,7 and the 4 All references are to the English translation, from the edition of 1764, Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum, trans. Joseph Drake, (Oxford: Oxford University Press, 1934). 5 Wolff, Jus Gentium, 3. 6 The wider question of the determination of the degree of indebtedness of Wolff’s philosophy to that of Leibniz is complicated by the avowed reliance of Wolff on the earlier philosophical tradition of medieval scholasticism and the absence, during Wolff’s lifetime, of significant publication of the work of Leibniz. On this see, T. J Hochstrasser, Natural Law Theories in the Early Enlightenment, (Cambridge: Cambridge University Press, 2004). On Leibniz’s theory of natural law, see Gaston Grua, Jurisprudence Universelle et Théodicée selon Leibniz, (Paris: Presses Universitaires de France, 1953); Gaston Grua, La Justice Humaine selon Leibniz, (Paris: Presses Universitaires de France, 1956); Robert J. Mulvaney, “The Early Development of Leibniz’s Concept of Justice”, Journal ofthe History of Ideas, 29 (1968): 53–72; Robert J. Mulvaney, “Divine Justice in Leibniz’s ‘Discourse on Metaphysics’”, Studia Leibnitiana, 14 (1975): 61–82; Patrick Riley, Leibniz’ Universal Jurisprudence: Justice as the Charity of the Wise, (Cambridge Mass.: Harvard University Press, 1996). See also the discussion between Patrick Riley and Andreas Blank: Patrick Riley, “Leibniz’s Méditation sur la notion commune de la justice, 1703–2003”, Leibniz Review, 13 (2003): 67–81; Andreas Blank, “Definitions, Sorites Arguments, and Leibniz’s Méditation sur la notion commune de la justice”, Leibniz Review, 14 (2004): 153–166 and Patrick Riley, “Leibniz’ Méditation sur la notion commune de la justice. A Reply to Andreas Blank”, Leibniz Review, 15 (2005): 185–216. 7 On Grotius, see Benjamin Straumann, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’s Natural Law, (Cambridge: Cambridge University Press, 2015); Patrick Riley, “The Legal Philosophy of Grotius”, in Patrick Riley, The Philosophers’ Philosophy of

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earlier reception of Grotian natural law in German-speaking lands, become the natural law tradition against which the method demonstrates the necessity for a distinction or differentiation within natural law between the law of nature (“individual free persons, as physical persons, living in a state of nature”) and the law of nations. The Prolegomena commences from the recognition of a distinct law of nations, which is, for Wolff, a methodological advance and has for its domain “that law which nations or peoples use in their relations with each other and of obligations corresponding thereto”.8 The distinction is predicated upon presupposition that “the nature of the nation is not the same as human nature”9 The lack of similarity is, however, not to be understood as affecting the nature or being of the nation from the outset but, rather, one resulting from a progressive differentiation from a common origin of individual free persons and nations in the law of nature. The common origin is the law of nature which acts through individuals, as physical persons, and leads from an initial state of nature of individual free persons to their combination into a unity (“man’s usefulness to man”) in a society or nation in the form of a social contract. It is the passage from the state of nature to the social contract which introduces the progressive differentiation. For the social contract simultaneously creates a unity – the society/nation – and vests and personifies authority in a ruler. This, in turn, creates a distinction within the society/nation between the ruled – the individuals ‘endowed with the bare capacity to act’ – and the ruler from whom is derived ‘their power to act rightly’.10 For Wolff, nations are moral persons and therefore subject to only certain rights and duties, which by virtue of the law of nature arise from the social contract, their nature and essence undoubtedly differ very much from the nature and essence of individual men as physical persons.11

Law from the Seventeenth Century to Our Days, (Dordrecht: Springer, 2009): 365–377. Wolff’s engagement with Grotius in the Jus Gentium of 1749, is preceded by his edition, distinguished by its absence of “extraneous commentary”, of Grotius’s De Jure Belli ac Pacis of 1734, which, for Grunert, already marks the “final stage of the intensive reception of De jure belli ac pacis, well after its peak” (Frank Grunert, “The Reception of Hugo Grotius’s De Jure Belli AC Pacis in The Early German Enlightenment” in Timothy J. Hochstrasser and Peter Schröder eds., Early Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment, (Dordrecht: Kluwer, 2003), 89–105 (92)). 8 Wolff, Jus Gentium, 9. 9 Ibid. 10 Ibid., 3. 11 Ibid., 5.

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The social contract is, however, for Wolff, to be understood as one in which the civil law (the field of duties towards self and others) which results is not the expression of the free will of the individuals who have combined, but solely of the prescriptions of the law of nature mediated through each particular ruler. Nations, as moral persons, are held to be subject to an analogous, necessary inclination to combine into a unity as a civitas maxima. This is to indicate the character of the difference between the law of nature and the law of nations, and, in distinction from Grotius, to demonstrate that the necessity of the civitas maxima is to be inferred as a “necessary consequence from previous conclusions”.12 Hence, that the origin of the law of nations is not to be understood to reside, as Wolff considers it does for Grotius, in the voluntary law of nations, as this would be to confine the existence and development of the law of nations to the arbitrary ‘caprice’ of the actions of individual nations. From the demonstration of the necessity of the law of nations, as the notion of civitas maxima, Wolff then proceeds to describe the character of the civitas maxima. It is to be understood as being itself a society or nation because “there would be no purpose in the supreme state, into which nature has united nations, unless from it some law should arise for the whole in regard to the individuals”.13 Hence, a “right exists in it of promulgating laws with respect to those things that concern it”14 and, this includes the right of coercion of individual nations. The right of nations as a whole over individual nations is itself the expression of the existence of “some sovereignty over individual nations [which] belongs to nations as a whole”.15 This, in turn, introduces the question of the purpose of the civitas maxima and its conformity with the right of nations as a whole with reference to individual nations. For the promulgation and exercise of these laws exists within the context of a presumption of the “moral equality of nations”.16 The moral equality of the nations which compose the civitas maxima entails that Wolff strictly separates the law of nations from power, force and might and, with this separation, defines the form of government of the civitas maxima as democratic. The presumption of the moral equality of nations contains the necessary consequence that no nation within the civitas maxima is conferred with the sovereignty to promulgate laws with respect to other nations.

12 13 14 15 16

Ibid., 7–8. Ibid., Prolegomena, §13, 14. Ibid., Prolegomena, §11, 13. Ibid., Prolegomena, §15, 15. Ibid., Prolegomena, §16, 15.

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From this, however, arises the question of the determination of the will of all nations contained within the civitas maxima as a democratic form of government. Here, Wolff commences from a single state which, in the form of a democracy, determines the “will of a whole people” as that which “shall have seemed best to the majority”.17 The difference between the will of the people in the single nation and the “will of all the nations” in the civitas maxima is the impossibility for “all nations scattered throughout the whole world” to “assemble together”.18 The will is, therefore, detached from any direct process of democratic will formation, and constituted, instead, by the will of all nations which they are bound to agree upon, if following the leadership of nature they use right reason. Hence, it is plain, because it has to be admitted, that what has been approved by the more civilized nations is the law of nations.19 This definition of the ‘will of all nations’ leads to the question of the ruler of the supreme state, namely, the site or locus from which following the leadership of nature, [is defined] by the right use of reason what nations ought to consider as law among themselves, although it does not conform in all respects to the natural law of nations, nor altogether differ from it.20 It is here, however, that the ruler of the supreme state is stated to be a fiction. This notion has a specific sense for Wolff as that which is ‘advantageously allowed in every science, for the purpose of eliciting truths as well as for proving them’.21 In the particular case of the science of the law of nations, that fictitious ruler of the supreme state is assumed, in order to adapt the natural or necessary law of nations to the purpose of the supreme state, as far as human conditions allow, using the right of making laws, which we have shown above belongs to the supreme state.22 17 Ibid., Prolegomena, §20, 16. 18 Ibid., §20, 17. 19 Ibid. 20 Ibid., Prolegomena, §21, 17. 21 Ibid. 22 Ibid.

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The effect of the use of this fiction of the ruler of the civitas maxima is to have established a fixed and immovable foundation for the voluntary law of nations, and there are definite principles, by force of which that law can be derived from the concept of the supreme state, so that it is not necessary to rely by blind impulse on the deeds and customs and decision of the more civilized nations, and from this there must be assumed as it were a certain universal consensus of all, just as Grotius seems to have perceived.23 The natural law of nations, as that “derived from the concept of the supreme state” and, hence, “considered to have been laid down by its fictitious ruler and so to have proceeded from the will of nations”,24 enables the methodological separation of the natural or necessary law of nations from the positive law of nations as stipulative or customary law. Stipulative and customary law are necessarily particular – they rest upon the express or implicit consent of specific nations – and cannot, therefore be the necessary origin of the law of nations.25 3

The Kelsenian Appropriation of the Wolffian Notion of civitas maxima

The Wolffian notion of civitas maxima appears in Kelsen’s legal science of positive law in the ninth chapter of Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre. The initial appearence is distinguished by its exclusive concentration upon the Preface and Prolegomena 23 24 25

Ibid., Prolegomena, §22, 18. Ibid., Prolegomena, §22, 17. For further considerations of the Wolffian notion of civitas maxima, see Francis Cheneval, “Der präsumtiv vernünftige Konsens der Menschen und Völker – Christian Wolffs Theorie der ‘civitas maxima’”, Archiv für Rechts- und Sozialphilosophie, 85, 4 (1999): 563–580; Francis Cheneval, “Auseinandersetzungen um die ‘civitas maxima’ in der Nachfolge Christian Wolffs”, Studia Leibnitiana 33, 2 (2001): 125–144; Nicholas Greenwood Onuf, “Civitas maxima: Wolff, Vattel and the Fate of Republicanism”, American Journal of International Law, 88 (1994): 280–303; Marcel Thomann, “Le “Jus Gentium” de Ch. Wolff”, in Christiani Wolffii Jus Gentium edidit et curavit Marcellus Thomann, Reihe (Christian Wolff Gesammelte Werke, iii, 25), v- (Hidelsheim/New York: Olms, 1972), v–li and Marcel Thomann, “Die historische Bedeutung des Wolffschen Naturrechts”, in Christian Wolff, Grundsätze des Natur- und Völkerrechts, worin alle Verbindlichkeiten und alle Rechte aus der Natur des Menschen in einem beständigen Zusammenhange hergeleitet werden. (Halle 1754), (Christian Wolff: Gesammelte Werke. i, 19), (Hildesheim/New York: Olms 1980), 5–7.

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of the Methodo. There is no reference to the further elaboration of the Wolffian theory of natural law in the Methodo, because the Kelsenian interpretation already presumes that there is no longer the possibility of a simple return to, or reaffirmation of, the tradition of natural law of the pre-Kantian German Enlightenment.26 This presumption is the corollary of the wider Kelsenian critique, developed in Das Problem der Souveränität, which is centred upon the conceptualization of sovereignty and international law in the later German language tradition of both the nineteenth and the first decade of the twentieth century.27 The critique involves a return to the Wolffian notion of civitas 26

27

This includes the Wolffian project of an elaboration of a philosophica practica and its internal differentiation on the basis of the Aristotelianian distinctions between ethics, politics and economics. See, on this, Franco Volpi, “The Rehabilitation of Practical Philosophy and Neo-Aristotelianism”, in R.C. Bartlett and S.D. Collins, (eds.) Action and Contemplation: Studies in the Moral and Political Thought of Aristotle, (Albany: State University of New York Press, 1999), 3–25 (6–7). The Kelsenian critique of notions of practical philosophy and practical reason continue to be reaffirmed in the final, posthumous General Theory of Norms (Allgemeine Theorie der Normen) Hans Kelsen, General Theory of Norms, (Oxford: Oxford University Press, 1991). The breadth of this Kelsenian critique is evident from the citation and discussion of the following works in this ninth chapter: Ernst Beling, Die strafrechtliche bedeutung der exterritorialität. Beiträge zum völkerrecht und zum strafrecht, (Breslau: Schletter, 1896); Karl Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts, (Leipzig: Köhler, 1877); Karl Bergbohm, Jurisprudenz und Rechtsphilosophie, (Leipzig: Duncker & Humblot, 1892); Karl Binding, Die Gründung des Norddeutschen Bundes. Ein Beitrag zur Lehre von der Staatenschöpfung, (Leipzig: Duncker & Humblot, 1889); Johann Caspar Bluntschli, Das moderne Völkerrecht der civilisirten Staten, (Nördlingen: Beck, 1878); Paul Heilborn, Das System des Völkerrechts, (Berlin: Springer, 1896); Max Huber, “Die Gleichheit der Staaten”, in Berolzheimer, Fritz (ed.) Rechtswissenschaftsliche Beiträge Juristischen Festgabe des Auslandes zu Jozef Kohlers 60. Geburtstag, (Stuttgart:Enke, 1909), 88–118; Georg Jellinek Allgemeine Staatslehre, 3rd Edition, (Berlin: Haring, 1914); Carl Kaltenborn von Stachau, Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft, (Leipzig: Mayer, 1847); Erich Kaufmann, Das Wesen des Völkerrechts und die clausula rebus sie stantibus. Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriff, (Tübingen: Mohr, 1911); Heinrich Lammasch, Das Völkerrecht nach dem Kriege, (Aschehoug: Kristiania 1917); Adolf Lasson, Princip und Zukunft des Völkerrechts, (Berlin: Hertz, 1871); Franz von Liszt, “Das Wesen des völkerrechtlichen Staatenverbandes und der internationale Prisenhof” in Berlin Law Faculty (ed.), Festgabe der Berliner juristischen Fakultät für Otto Gierke zum Doktor-Jubiläum, 21. August 1910, Volume iii, (Breslau: Marcus, 1910), 19–44; Friedrich Fromhold von Martens, Völkerrecht: Das internationale Recht der civilisirten Nationen (German edition) 2 Volumes, (Berlin: Weidmann, 1883) [This is the only translation referred to in the ninth chapter]; Joseph Mausbach, Naturrecht und Völkerrecht, (Freiburg: Herder, 1918); Leonard Nelson, Die Rechtswissenschaft ohne Recht kritische Betrachtungen über die Grundlagen des Staats- und Völkerrechts insbesondere über die Lehre von der Souveränität, (Leipzig: Veit & comp, 1917); Otfried Nippold, Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten, (Leipzig: Duncker & Humblot, 1907); Heinrich

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maxima as the origin for a methodological dissolution of the primacy of state sovereignty and the articulation of a legal theory of the primacy of international law. The methodological position of the ninth chapter of Das Problem der Souveränität is then provided with extended elaboration in the 1926 Lecture Course which concludes with the reassertion of the Kelsenian notion of civitas maxima.28 3.1 Das Problem der Souveränität: The Initial Approach to Wolff The ninth chapter approaches the Wolffian notion of civitas maxima through its presence in Kaltenborn’s Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft.29 For Kelsen, Kaltenborn represents,30 through the recognition of the continued pertinence of Wolff, a divergence from the predominant German language conception of international law of the nineteenth century. The divergence centres upon Kaltenborn’s rejection of an exclusive focus upon the state and its sovereign will as the sole origin for any possible conception of international law. The rejection is based upon the acknowledgement, drawing upon Wolff’s Methodo, of the existence of an objective principle of international law distinct from the subjective principle of the state and its sovereign will.31

28 29

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B. ­Oppenheim, System des Völkerrechts, (Stuttgart: Kröner, 1845); Lassa Oppenheim, “Die Zukunft des Völkerrechts”, in Festschrift für Karl Binding, Volume 1, (Leipzig: Engelmann, 1911), 141–201; Karl T. Pütter, Beiträge zur Völkerrechtsgeschichte und Wissenschaft, (Leipzig: Wienbrack, 1843); Robert Redslob, Das Problem des Völkerrechts, (Leipzig: Veit & comp, 1917); Leo Strisower, Der Krieg und die Völkerrechtsordnung, (Vienna: Manz, 1919); Ernst Ullman, Völkerrecht, (Tübingen: Mohr, 1908). The Lecture Course of 1926, whilst utilizing the notion of civitas maxima, contains no explicit reference to the work of Wolff. Op. cit., fn 28. The distinctiveness of Kaltenborn’s approach is also emphasized by Ian Hunter in contrast to the predominant contemporary interpretation of the historiography of international law. See, Ian Hunter, “About the dialectical historiography of international law”, Global Intellectual History, 1, no.1 (2016): 1–32. See also the discussion of Kaltenborn in Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in Universal Law, (Cambridge: Cambridge University Press, 2010), 15–20. This critical approach, which identifies Kaltenborn as marking a limited break with a preceding tradition whose limitations Kelsen then attempts to overcome is also deployed in relation to Dante’s Monarchia in Kelsen’s earlier 1905 work (Die Staatslehre des Dante Alighieri, (Vienna/Leipzig: Deutike, 1905)) and in relation to Kant’s philosophical project in the later work on Natural Law of 1928 Hans Kelsen, “Natural Law Doctrine and Positive Law” in Hans Kelsen, General Theory of State and Law, (New Brunswick/London: Transaction Publishers, 2006), 391–445. It is Kaltenborn who, as Kelsen emphasizes, is distinguished by his explicit opposition to either the declaration of the falsity or the purposeful disregard of Wolff’s work (Kelsen, Das Problem der Souveränität, 250).

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The limits of Kaltenborn’s appropriation of Wolff rest upon the retention of the subjective principle of state sovereignty and the concomitant rejection of an objective principle of international law in the form of the Wolffian notion of civitas maxima.32 For Kelsen, Kaltenborn’s retention of the subjective principle reflects an incapacity to entirely relinquish the dogma of state sovereignty manifested in the lack of clarity in the presentation of the relationship between the two principles.33 The lack of clarity is combined with an inability to comprehend the Wolffian notion of civitas maxima other than as an essentially political form: a universal state. In this manner, Kaltenborn’s state-centred perspective can only conceive the civitas maxima as the destruction of the subjective principle which expresses the freedom of individual states.34 The potential to overturn the dogma of state sovereignty, indicated by Kaltenborn’s work, requires Kelsen to present a reinterpretation of the Wolffian notion of civitas maxima. The reinterpretation overcomes the limitations of Kaltenborn through the presentation of the Wolffian notion of civitas maxima as a juridical notion.35 The Kelsenian presentation involves a critical appropriation which detaches the notion of civitas maxima from the wider Wolffian framework of natural law of the Methodo. This is achieved by designating the original Wolffian distinction between different types of natural law as lacking clarity36 and, thereby, enabling the notion of civitas maxima to be situated as the methodological origin for the development of a theory of positive law as a pure theory of law.37 The Kelsenian interpretation of the notion of civitas maxima enables the conceptualization of a world legal order (Weltrechtsordnung) as an autonomous, internally differentiated legal order without connection to a world state (Weltstaat). Thus, the Wolffian framework of natural law, as a practical philosophy – philosophica practica – is transformed into a theory of the logic of the norms of positive law. In this transformation, the notion of nature is thereby redefined as that of logical necessity: the presupposition, in the form of a legal hypothesis, 32 Kelsen, Das Problem der Souveränität, 249. 33 Ibid., 243–244. 34 Ibid., 255. 35 This is emphasized in the incisive analysis of Leben. See, Charles Leben, “La notion de civitas maxima chez Kelsen”, in Carlos-Miguel Herrera, Actualité de Kelsen en France, (Paris: ldgj), 87–98. (English translation, as chapter 6, of Charles Leben, The Advancement of International Law, (Oxford: Hart Publishing, 2010)). 36 Kelsen, Das Problem der Souveränität, 250–252. 37 Ibid., 249. Hence, the designation, in the subtitle, as a contribution to a pure theory of law (Beitrag Zu Einer Reinen Rechtslehre). The Kelsenian theory of positive law as a pure theory of law will find its first systematic expression in the Pure Theory of Law (Reine Rechtslehre) of 1934.

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resulting from an act of cognition, of a unified legal order which exists prior to the state.38 The legal hypothesis is an act of cognition which also removes the Wolffian recourse to the social contract and displaces the Wolffian personified fiction of the ruler of a supreme state. For it is predicated upon the preceding Kelsenian conception of the place and operation of legal fictions developed through the critical engagement with the work of Hans Vaihinger.39 In contrast to the Wolffian conception of the position and operation of fictions, as a simple supplement to the other conceptual categories deployed in the elaboration of a philosophical system, the Kelsenian position accords the fiction a more singular and central position. The alteration of the status accorded to the fiction represents the transformation of the philosophical background against which the fiction is comprehended. In place of the Wolffian adherence to the philosophical parameters of the eighteenth century, pre-Kantian German Enlightenment, the Kelsenian position is elaborated in relation to Vaihinger’s particular variant of the nineteenth and early twentieth century philosophical movement of German Neo-Kantianism.40 For Kelsen, following Vaihinger, the notion of a fiction, as an entirely cognitive operation, is situated on the boundary between the realms of the real and the ideal.41 The fiction exemplifies the limits of cognition as it is considered a transparently heuristic device – the projection onto the real of a notion which is an entirely cognitive creation – which enhances the comprehension of the real. The enhancement of this comprehension also contains the ­inherent 38

For Kelsen, the potential for this transformation is already present in the Methodo and, hence, the Kelsenian approach to Wolffian natural law is one which seeks to think with Wolff beyond Wolff (see, in particular, Das Problem der Souveränität, 252–253). 39 Hans Kelsen, “Zur Theorie der juristischen Fiktionen. Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob” Annalen der Philosophie, 1, (1919): 630–658. All references are to the French translation, in Christophe Bouriau, Les fictions du droit. Kelsen, lecteur de Vaihinger, (Paris: ens Editions, 2013), 60–85. 40 Vaihinger’s Philosophie des Als Ob was published in 1911, but is based upon an earlier dissertation of 1877. One should also emphasize here that Vaihinger’s Neo-Kantianism is not the sole source or variant of Neo-Kantianism to which Kelsen subsequently has recourse. See, for example, Hans Kelsen, “’Foreward’ to the Second Printing of Main Problems in the Theory of Public Law”, in Normativity and Norms: Critical Perspectives on Kelsenian Themes ed. Stanley L. Paulson and Bonnie Litschewski Paulson, (Oxford: Oxford University Press, 2007), 3–22; and Hans Kelsen, “The Pure Theory of Law, ‘Labandism’, and NeoKantianism. A Letter to Renato Treves”, in Normativity and Norms: Critical Perspectives on Kelsenian Themes ed. Stanley L. Paulson and Bonnie Litschewski Paulson, (Oxford: Oxford University Press, 2007), 169–176. 41 Bouriau, Les fictions du droit, 60–67. The separation of these realms and the conception of their relationship is one of the central distinguishing features between pre-Kantian German philosophy and the later Neo-Kantian philosophy.

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­ otential for hypostatization – the misrecognition of the fictional entity as a p real object existing independently of cognition. Kelsen proceeds beyond Vaihinger in the insistence upon the further distinctiveness of legal fictions and, as an integral element of this insistence, the emptying of all appearance of substantive content from legal fictions.42 Thus, for Kelsen, Vaihinger’s retention of the notion of the social contract as the fiction which provides the basis for the state’s authority cannot provide the specifically juridical justification for the state’s authority.43 A juridical justification, in distinction from Vaihinger, is to establish an exclusively juridical – the normative basis – for the particular exercise of authority. Vaihinger’s presentation of the social contact as the sole basis upon which the jurist is able to recognize rights and, therefore, authority is, for Kelsen, “a factual error”:44 “[t]he contract is only one of number of states of affairs to which the juridical order attaches rights and obligations”.45 Hence, the social contract is not a fiction of legal theory, but an ethical fiction, the fiction originating from a moral conception of the world. A strictly legal theoretical approach must leave aside precisely this fiction – and with it the idea of a moral foundation of law.46 The strict demarcation of the juridical from the moral is the counterpart, in the later Das Problem der Souveränität, of the removal of the Wolffian fiction of the figure of the supreme legislator and its replacement with the transparently fictional notion of the state as the purely heuristic designation for a partial, subordinate element of a world legal order. The effect of the Kelsenian position is to enable the further dismantling of the parameters of the conceptual framework of nineteenth and early twentieth century German language work on international law. In particular, it seeks to dissolve two pairs of opposing notions which Kelsen considers shape the 42

Ibid., 77ff. In the “Letter to Renato Treves”, op. cit., 174, this emptying, as the transformation of substantive concepts into functional concepts, is also acknowledged to be influenced by another representative of Neo-Kantianism, Ernst Cassirer, in his early work, Substanzbegriff und Funktionsbegriff: Untersuchungen über die Grundfragen der Erkenntniskritik. (Berlin: Bruno Cassirer, 1910). See, also the final pages of the 1922 essay, God and State, (Hans Kelsen, “God and the State”, in Essays in Law and Moral Philosophy, (Dordrecht and Boston: Reidel, 1973), 61–82 (German original 1922)). 43 Bouriau, Les fictions du droit, 79. 44 Ibid. 45 Ibid. 46 Ibid.

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thematization of international law. These pairs of opposing notions – organized community (organisierte Gemeinschaft)/unorganized community (nichtorganisierte Gemeinschaft) and corporation (Korporation)/society (Sozietät) – indicated in the subsequent subheadings of Chapter 9,47 are held to be central to the predominant reflection upon, and determination of, the nature of international law. The first pair of opposing notions is held to derive from Kaltenborn’s problematic appropriation of Wolff.48 The incapacity of Kaltenborn to fully overcome the state-centred thinking of the preceding German language work on international law is reflected in the failure to comprehend the Wolffian notion of civitas maxima other than through the opposition between an organized community (organisierte Gemeinschaft) and an unorganized community (nichtorganisierte Gemeinschaft). For Kaltenborn, the civitas maxima cannot be conceived as a state, but only as a system of states, from which an international legal community then arises. This, for Kelsen, is to retain a material, and essentially political, conception of the state in place of a formal, juridical conception of the state intimated by the Wolffian notion. Thus, the potential to pose the formal, juridical question of the relationship between normative orders – the national and the international – as a logical question of the relationship between norms is displaced by the question of the material genesis of a system of states. In this displacement, the Wolffian notion of civitas maxima, as the international legal community, is forced into the apparent alternatives of either an international law, whose existence is only intelligible as dependent upon the primacy of a system of states, or anarchy. For Kelsen, the apparent opposition dissolves once it becomes evident that a normative order of international law distinct from the state is incapable of being derived from Kaltenborn’s proposed origin in the material genesis of a system of states. Rather, it merely produces the anarchy to which the system was purportedly opposed in which international law is merely the expression of (power) relations between states and cannot be conceived as a legal system.49 The demonstration of the essential contradiction of Kaltenborn’s position then forms the basis for the further development of Kelsen’s position against the reaffirmation of this opposition in subsequent German language work. Kelsen commences from the negative definition of the civitas maxima as the 47 §54 and §55 of the Chapter. 48 Kelsen, Das Problem der Souveränität, 255–257. 49 Ibid., 257.

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purported anarchy of an unorganized community and indicates that this characterization is merely a misrecognition of the normative characteristics of international law. The Kelsenian approach is to reveal that these normative characteristics only become intelligible once one detaches the question of order from its necessary association with rule as an apparatus of domination and with the existence of special institutions or organs of enforcement. The approach has recourse to a set of argumentative positions which establish the logical possibility of a systematic order of legal norms which accords primacy to international law.50 In place of the notions of anarchy and disorganisation, Kelsen commences from an understanding of international law as comparatively underdeveloped and, in its relative primitiveness, analogous to archaic or ‘primitive’ law. From this analogy, it is apparent that enforcement within archaic or ‘primitive’ law is effectively undertaken by a plurality of entities without the existence of special institutions or organs.51 The recourse to one of these entities for an alleged breach of a norm and for its enforcement is intertwined with a process in which the legal norms are rendered more concrete through the diffuse activities of individuals and a plurality of organs rather than a centralized institution. The purpose of the analogy is to indicate that archaic or ‘primitive’ law is a type of prefiguration of the logical distinction for legal cognition, as a legal science of positive law, between the validity of law and its enforcement. The analogy creates the initial displacement of the identity between validity and enforcement which is then furnished with its further logical development through the concept of the Stufenbau.52 This concept operates to describe the validity of a modern, domestic legal system as both static and dynamic in which 50 51

52

Ibid., 258–261. Kelsen will return to these initial reflections upon primitive law in Hans Kelsen, “L’âme et le droit”, Annuaire de l’Institut International de Philosophie de Droit et Sociologie Juridique, no.2 (1936), 60–82. Hans Kelsen, “Causality and Retribution”, Philosophy of Science, Vol. 8, No. 4 (1941), pp. 533–556; Hans Kelsen, “Law as a Specific Social Technique”, University of Chicago Law Review, Vol. 9, No. 1 (1941), 75–97; Hans Kelsen, Society and Nature: A Sociological Inquiry, (New Jersey: The Lawbook Exchange, 1946/2009). The concept of the Stufenbau originates in the work of Kelsen’s Austrian contemporary and member of the Vienna School, Adolf Merkl. See, in particular Adolf J. Merkl, Die Lehre von der Rechtskraft entwickelt aus dem Rechtbegriff. Eine rechtstheoretische Untersuchung, (Leipzig/Vienna: Deutike, 1923). For the character of the specifically Kelsenian appropriation of Merkl’s concept, see S.L. Paulson, “How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law”, Revus, 21 (2013): 29–45. For a critique of the conception of the Stufenbau in the Vienna School, see Martin Borowski, “Concretized Norm and Sanction qua Fact in the Vienna School’s Stufenbaulehre”, Ratio Juris, Vol. 27, no. 1 (2014): 79–93.

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the ­constitution is situated as the point of transition from static to dynamic validity. The constitution establishes the (static) validity of the legal system and the further, dynamic development of legal system is produced through the process of subsequent stages of progressive concretization of the norms of the legal system. The validity of legal norms is, thus, derived from within the legal system through the hierarchical order resulting from the process of concretization. For Kelsen, the existence of special, centralized institutions is not an integral element of legal validity. Rather, legal validity denotes the conditions under which a legal norm is valid and from which the application of a legal norm – the process of its further concretization – then follows. Hence, the Kelsenian critique substitutes the notions of validity and application for that of validity as enforcement. The focus of Kelsen’s critique then shifts to the predominant analysis of international law as a form of contract between states.53 Here, the assumption, founded upon a particular understanding of civil law, is that it is solely the contract itself which generates international law between states. For Kelsen, the contract has no intrinsic legal validity or force, as it is merely a form of concretization of a more general or abstract legal norm which is situated above it. Thus, it cannot generate an objective system of international law, but is confined to a merely subjective status – between two particular states – and, therefore, becomes indistinguishable from other domestic forms of legislation and custom. The concept of the Stufenbau, as an aspect of a theory of legal cognition, demonstrates that as a logical presupposition or hypothesis for the validity of a legal system it extends to the theory of international law.54 For an objective system of international law requires legal cognition to adopt this understanding of a hypothetical origin for international law distinct from its forms of concretization. This, in turn, transforms the question of domestic incorporation or recognition of international law into an instance of concretization by a partial legal order of an objective system of international law. The demonstration of the autonomy of legal validity from enforcement is accompanied by Kelsen’s acknowledgement that the primitive character of international law leaves open the question of the status of war. In relation to this question, Kelsen holds that, in order for international law as an objective 53 Kelsen, Das Problem der Souveränität, 261–263. 54 Kelsen will devote renewed attention to the question of the form of international law in the 1930s. See, for example, Hans Kelsen, “La transformation du droit international en droit interne”, Revue générale de droit international public, Vol. 49 (1936): 5–49; Hans Kelsen, “Contribution à la théorie du traité international”, Revue internationale de la théorie du droit, Vol. x (1936): 253–292; Hans Kelsen, “La théorie du droit international coutumier”, Revue internationale de la théorie du droit, Vol. 1 (1939): 253–274.

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system of norms to be conceivable, war has to be defined as an aspect of this objective system. From this position, war cannot exist either as the expression of the state’s will or freedom of action – war as merely subjective law55 – or as the expression of the more fundamental ground for the determination of a state’s position within the international order.56 The demonstration of war as a coercive element of the objective normative system of international law acknowledges the absence of a centralized, institutional apparatus of the generation and enforcement of its norms, but contests the necessity of the conclusion that the force or violence of war is to be located beyond or outside the international legal community.57 The Kelsenian position rests upon a return to the initial analogy with the ‘primitive’ legal system in which the normative development of the system proceeds through the activities of a plurality of entities. The states within the framework of the primitive international legal order, through self-defence or in defence of another state, can be conceived as enforcing the objective normative system of international law. Thus, the distinction between organized and unorganized coercion as the expression of the more fundamental distinction between an organized community (organisierte Gemeinschaft) and an unorganized community (nichtorganisierte Gemeinschaft) is effectively dissolved.58 The second pair of opposing notions – corporation (Korporation) and societal association (Sozietät) – are created from the transposition of categories of civil law into the realm of international law. The effect of the use of this second pair is, for Kelsen,59 analogous to that of the preceding pair. Whilst the second pair is transposed without direct reference to the Wolffian notion of civitas maxima, the conception of international law which results from its operation is one which refuses to recognise a corporate will beyond the boundaries of the individual state. This is the corollary of the further definition of all juridical relationships between states as the expression of particular agreements in the form of contracts. The primacy is accorded to a state will in relation to which a non-contractual association between states can 55

Here, Kelsen’s critique focuses upon the position of Leo Strisower, Der Krieg und die Völkerrechtsordnung, (Vienna: Manz, 1919). 56 Here, Kelsen’s critique focuses upon the position of Eric Kaufmann, Das Wesen des Völkerrechts und die clausula rebus sie stantibus. Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriff, (Tübingen: Mohr, 1911). 57 Here, Kelsen’s critique focuses upon the positions of Lassa Oppenheim, Lassa. “Die Zukunft des Völkerrechts”, in Festschrift für Karl Binding, Volume 1, 141–201, (Leipzig: Engelmann, 1911) and Paul Heilborn, Das System des Völkerrechts, (Berlin: Springer, 1896). 58 Kelsen, Das Problem der Souveränität, 267. 59 Ibid., 268–272.

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only be conceived as the subordination of the state will to a general or collective will. The Kelsenian critique of this oppositional pair rests upon the demonstration of the incoherence of recourse to the notion of a will and the comparatively superior coherence of the position of legal cognition. The objectivity of law – its specific normative character – rests upon the break with an origin in conceptions of the will. For Kelsen, the recourse to the notion of a will, as the basis of a contract, results in a limited understanding of the juridical character of a contract between states. The exclusive focus upon the will is unable to comprehend a contract as the concretization of law which exists prior to and extends beyond the particular punctual agreement between the state parties. Thus, it cannot explain the normative basis upon which either the rights generated by the contract or their enforcement continue to exist beyond the moment of the agreement of the contract. Legal cognition, in contrast, is able to comprehend both the moment of the agreement of the contract and its enduring normative basis, through the transformation of the state into a heuristic, juridical category. The explicitly heuristic function of this juridical category is to personify a partial legal order and, through the operation of personification, to make more easily intelligible the existence of a partial legal order. In this manner, the objectivity of law is established whilst acknowledging the process of the agreement of the contract as an aspect of the operation and development of a partial legal order within a wider, overarching and hierarchically ordered legal system. This, in turn, for Kelsen, demonstrates the essential fragility of the distinction between corporation (Korporation) and societal association (Sozietät), and, as a result, the limitations of the concentration upon the capacity of institutions created by contracts between states to represent a societal association. The transfer of categories of civil law to the realm of international law, beyond the installation of the second oppositional pair, presupposes the equality of states as contractual wills.60 This presupposition, for Kelsen, becomes a further basis for the characterization of the notion of civitas maxima as an essentially coercive unity which can only suppress the individual, sovereign wills of each state.61 The characterization thereby effectively pushes the notion of civitas maxima outside the boundaries of the legitimate concepts of i­ nternational 60 61

Ibid., 272–273. Here, Kelsen’s critique focuses upon Max Huber, “Die Gleichheit der Staaten”, in Rechtswissenschaftsliche Beiträge Juristischen Festgabe des Auslandes zu Jozef Kohlers 60. Geburtstag, edited by Fritz Berolzheimer, 88–118, (Stuttgart: Enke, 1909) and Lassa Oppenheim, “Die Zukunft des Völkerrechts”, in Festschrift für Karl Binding, Volume 1, 141–201, (Leipzig: Engelmann, 1911).

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law. From this position, the notion of civitas maxima is defined as either an essentially political concept – analogous to the concept of a world state – or the simple projection of a future, utopian stage of international relations. The Kelsenian response is centred upon revealing that the insistence upon the unconditioned sovereign will of the state involves its essential selflimitation. The formal equality of the wills of each sovereign state requires that every state recognizes the existence of this will in all other states. This, in turn, entails that the will of the state is the recognition of a free personality and the concomitant obligation of each state to respect all other states. The obligation of respect is the self-limitation of the will of each state to ensure the existence of the free personality of all states. For Kelsen, the unconditioned freedom of the will is already limited – conditioned – from the outset in order for the formal equality of wills to exist. Hence, the presumption of an unconditioned free will which defines all limitation as essentially external and coercive is reversed: the limitation of the will is an integral aspect of its freedom. The reversal of the presumption is then the initial stage for the further demonstration that this limitation cannot simply remain at the level of each, separate state will, as self-limitation. For Kelsen, this is not simply to acknowledge the capacity of the will to assert itself as unconditioned and, thereby, to cease to recognize the equality of all states. It is also to acknowledge that a state which is affected by the other state’s lack of recognition may be placed in a position where it is unable to protect itself against the consequences of this lack of recognition. From this, the notion of the civitas maxima returns within the boundaries of international law as the collective security of all states: the objective limitation and guarantee of the equality of each state. It is also here, in contrast to the later 1926 Lecture Course, that Kelsen explicitly identifies collective security with the institutional framework of the League of Nations.62 The argumentative effect of this Kelsenian position is to establish a further reversal of the position predicated upon the transposition of concepts of civil law into international law. The limits of international law established by this transposition are indicated to have an essentially political object and purpose: the limitation of international law by the primacy of state sovereignty. In contrast, the Kelsenian position of legal cognition, as a theory of law purified of all political postulates, imposes no essential limitations upon the character and development of international law. In contrast to the Lecture Course of 1926, the concluding sections of the ninth chapter, exhibit only the rudiments for this reworking of a pure theory of international law. In particular, it indicates a hesitation, beyond the p ­ receding 62 Kelsen, Das Problem der Souveränität, 273.

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reinterpretation of the Wolffian notion of civitas maxima, as to the sources for this reworking. The previous argumentation with regard to collective security rests upon an explicit reference to Rousseau, but the reference is not itself to a text of Rousseau, but to the work of Redslob.63 Whilst the reference to Rousseau demonstrates, through the particular Kelsenian presentation, the presence of an essential limitation upon the will, the wider question of its coherence with the Wolffian position remains unexamined. The impression of hesitation is reinforced in the concluding lines of the chapter with the introduction of the historical origin of the theory of international law in the idea of the “imperium Romanum” in the Middle Ages and the early modern period.64 For this immediately reanimates the question of the status of the preceding use of Rousseau and indicates the continued presence of Kelsen’s first published work on Dante65 in these final passages of the chapter. This additional hesitation reflects the more preliminary stage of methodological construction of a pure theory of positive law which has yet to establish a distinct position from the existing tradition of political philosophy. The further methodological development is provided by the 1926 Lecture Course. The Lecture Course of 1926: The Further Development of the Kelsenian Approach The methodological reinterpretation of the Wolffian notion of civitas maxima is confirmed and extended in the Lecture Course of 1926. In contrast to the earlier Das Problem der Souveränität, there is no explicit discussion of the Wolffian notion in the main body of the Lecture Course, and its appearance is confined to the conclusion. The detachment of the Wolffian connection between the notion of civitas maxima and individuals combining into a society or nation, through the means of a social contract, is reaffirmed and supplanted by a sustained critique of the “dogma of state sovereignty”. This further emphasizes the radical divergence of the Kelsenian interpretation with its distinct focus upon state sovereignty as the primacy obstacle to the development of a theory of law as universal juridical order. The Kelsenian critique dissolves the conception of the state as a separate entity from law, and transforms their relationship into an internal distinction within a valid legal order produced by the cognitive operation of personification. This, in turn, transforms the notions of territory, people and sovereignty into juridical categories. The central transformation involves the notion of 3.2

63 Robert Redslob, Das Problem des Völkerrechts, (Leipzig: Veit & comp, 1917). 64 Kelsen, Das Problem der Souveränität, 274. 65 Hans Kelsen, Die Staatslehre des Dante Alighieri, (Vienna/Leipzig: Deuticke, 1905).

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s­ overeignty because the juridification of the notion of sovereignty is accompanied by the question of the location or site of supremacy within the legal order. The attribution of this site of supremacy is, in Kelsen’s methodological understanding, a cognitive operation. Hence, it is not the expression of a necessity, in the Wolffian sense, but of a ‘hypothesis of juridical science’. As a hypothesis, the process of attribution is open to the possibility of divergent hypotheses concerning the question of whether the theory of the State can or must admit, in order to interpret its contents, the sovereignty of the State order or, on the contrary, the sovereignty of the sole international order.66 In this manner, these hypotheses are simply a particular aspect or example of the more general question of the relationship between normative systems: the logical investigation of “how different normative orders can be logically combined with each other”.67 Hence, the rights and obligations of individuals and nations arising out of the Wolffian state of nature have been replaced with a Kelsenian logical space containing normative systems. Within this logical space, the application of the principle of non-contradiction redefines the relationship of normative orders as one shaped by coordination and subordination. The primary operation, as the application of the principle of non-contradiction to this logical space, is that of subordination. For it dissolves any possibility for potential conflict between normative orders through their designation as partial orders of a superior order. Thus, it establishes the boundaries of each partial order thereby enabling the secondary operation of coordination among the elements of these partial orders. The question of the relationship between the normative orders of national and international law is then resolved through the application of this principle of non-contradiction in the form of subordination and coordination. The application of the principle of non-contradiction confines the question of the relationship between the normative orders of national and international law to two potential variants of a hypothesis: the unity of national and international law. The question has, therefore, become that of a theory of law as a theory of legal monism in which the variants are distinguished by whether the international order is subordinated to the national order or whether the 66 67

Hans Kelsen, “Les Rapports de Système entre le Droit Interne et le Droit International”, §20, 255. Ibid., §23, 263.

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national order is subordinated to the international order. The variant of the hypothesis which accords primacy to the national legal order establishes the unity of the juridical order by locating the operations of subordination and coordination in the national legal order itself. It asserts the national legal order as the point of unity in an otherwise disorganized multiplicity of legal orders and States. For Kelsen, the limitation of this variant resides in the continuing reliance, even if the form of purely juridical personification, of a notion of state sovereignty. This has the effect of excluding the “idea of an international law superior to States, which limits them reciprocally and consequently coordinates them”.68 With this exclusion, the logical consequences of reliance on the primacy of the national order become evident: there cannot exist many coordinated state orders, equal in law, and through this it discovers the true, logical sense of the notion of the sovereignty of the State, namely, the unity and necessary uniqueness of the juridical order thus denominated. Besides, there is not a characteristic common to the law nor to juridical science: each system pretends to be solely valid, in its unity.69 In contrast, the variant of legal monism which accords primacy to the international legal order is one, for Kelsen, which demonstrates a logically coherent and comprehensive unity for the two legal orders. This is set against the logically flawed operations of recognition and self-limitation, through which the national legal order purportedly reproduces its primacy in relation to the international legal order. Thus, the primacy of the international legal order is reproduced by “the same methods as those which pit different degrees of the state order against each other”.70 Hence, “the frustration of a rule of a superior level by a rule of an inferior level gives rise either to its nullity or to its annulability, or to a sanction against the institution responsible”.71 This possibility for the reproduction of the primacy of the international legal order is initially dependent upon the national legal order having the juridical form of a constitution. It is only this form which can ascribe to particular national institutions, applying international law within the national legal order, the capacity to make a declaration of nullity and the juridical authority to annul. 68 Ibid., §34, 289. 69 Ibid., §39, 296. 70 Ibid., §50, 317. 71 Ibid.

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The limit of this internal reproduction of the primacy of the international legal order, beyond the degree of generalization of the constitutional form of national juridical orders, emerges with the question of the capacity to impose a sanction for the violation of international law by a provision of a national legal order. For Kelsen, in the absence of internal sanctioning mechanisms at the level of the national order, the sanction can only be an “external” sanction: war as a juridical act. Yet, the decision to impose the sanction of war remains a purely national decision and, as such, this limit – the absence of a procedure and institution to establish the existence of the conditions for the application of the sanction – attests to the “primitive stage” in the development of the primacy of the international legal order. The “primitive stage” of the primacy of international law expresses not an inherent limit, but a disjunction between possibility and actuality. This, for Kelsen, is the expression of the disjunction between the domain of legal science, and its methodological demonstration of the logical coherence of the variant of the hypothesis according primacy to international law, and the realization of the actuality of this variant as the project of a civitas maxima. 4 Conclusion Kelsen’s appropriation and transformation of the Wolffian notion of the civitas maxima raises the question of the relationship of his thought both to the Enlightenment in the German-speaking lands and to what may be termed a cosmopolitical project. In regard to the Enlightenment in German-speaking lands, and having regard to recent scholarship,72 the question becomes whether Kelsen’s appropriation of Wolff’s civitas maxima entirely detaches it from the complex theoretical field composed of the interaction of a civil and a metaphysical Enlightenment. While Kelsen’s return to this Wolffian concept would indicate a rejection of a historical and interpretative understanding in which the civil and metaphysical Enlightenment only attains its comprehensive expression with Kant, the particular reinterpretation and reconfiguration of this notion is also the rejection of a simple ‘return to Wolff’. It is arguable that it is the separation rather than the reconciliation between the metaphysical and the civil which finds expression, in methodologically reduced form, in Kelsen’s appropriation of Wolff. The separation becomes that between the legal science 72

In particular, the work of Ian Hunter, as exemplified in Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany, (Cambridge: Cambridge University Press, 2001).

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of a theory of law, as a theory of legal monism, and the project of a civitas maxima. In this, there is the repetition of separation, but in a form which represents an effective distancing from, rather than direct affinity with, the tradition of the German Enlightenment. For, metaphysics has become a term in direct opposition to the methodology of a legal science, and civil Enlightenment, as the institutional separation of civil society from a religious community, is already considered to have been established in the notion of state sovereignty from which Kelsen’s critique proceeds. The remains of civil Enlightenment are arguably present in an exclusively juridical understanding. First, in a constitution as a legal form of the national legal order which enables the internal reproduction of the primacy of international law within the national legal order, and, second, in the aspiration for the elimination of war as an exclusively national sanction. It is this concern for the juridification of war, or, what might be termed the restriction or subordination of the national legal order to the security of the international order – collective security – that the remnants of this civil Enlightenment become the passage to an attempt to revive a cosmopolitical project. Here, the continuing affinity between Wolff and Kelsen arises, but it is one in which the Wolffian ‘necessary law of nations’ has become, for Kelsen, the possibility of the development of the primacy of international law beyond its current ‘primitive stage’. The Wolffian fiction has been supplanted by the Kelsenian hypothesis, and with this, the corresponding limitation of a legal science to the presentation of the consequences of the choice between two variants of legal monism. Bibliography Beling, Ernst. Die strafrechtliche bedeutung der exterritorialität. Beiträge zum völkerrecht und zum strafrecht, (Breslau: Schletter, 1896). Bergbohm, Karl. Staatsverträge und Gesetze als Quellen des Völkerrechts, (Leipzig: Köhler, 1877). Bergbohm, Karl. Jurisprudenz und Rechtsphilosophie, (Leipzig: Duncker & Humblot, 1892). Bernstorff, Jochen von. The Public International Law Theory of Hans Kelsen: Believing in Universal Law, (Cambridge: Cambridge University Press, 2010). Binding, Karl. Die Gründung des Norddeutschen Bundes. Ein Beitrag zur Lehre von der Staatenschöpfung, (Leipzig: Duncker & Humblot, 1889). Blank, Andreas. “Definitions, Sorites Arguments, and Leibniz’s Méditation sur la notion commune de la justice”, Leibniz Review, 14 (2004): 153–166.

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Bluntschli, Johann Caspar. Das moderne Völkerrecht der civilisirten Staten, (Nördlingen: Beck, 1878). Borowski, Martin. “Concretized Norm and Sanction qua Fact in the Vienna School’s Stufenbaulehre”, Ratio Juris, 27, 1 (2014): 79–93. Bouriau, Christophe. Les fictions du droit. Kelsen, lecteur de Vaihinger, (Paris: ENS Editions, 2013). Cassirer, Ernst. Substanzbegriff und Funktionsbegriff: Untersuchungen über die Grundfragen der Erkenntniskritik, (Berlin: Bruno Cassirer, 1910). Cheneval, Francis. “Der präsumtiv vernünftige Konsens der Menschen und Völker – Christian Wolffs Theorie der ‘civitas maxima’”, Archiv für Rechts- und Sozialphilosophie, 85, 4 (1999): 563–580. Cheneval, Francis. “Auseinandersetzungen um die “civitas maxima” in der Nachfolge Christian Wolffs”, Studia Leibnitiana 33, 2 (2001): 125–144. Grua, Gaston. Jurisprudence Universelle et Théodicée selon Leibniz, (Paris: Presses Universitaires de France, 1953). Grua, Gaston. La Justice Humaine selon Leibniz, (Paris: Presses Universitaires de France, 1956). Grunert, Frank. “The Reception of Hugo Grotius’s De Jure Belli AC Pacis in The Early German Enlightenment” in Early Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment, Timothy J. Hochstrasser and Peter Schröder eds., 89–105, (Dordrecht: Kluwer, 2003). Heilborn, Paul. Das System des Völkerrechts, (Berlin: Springer, 1896). Hochstrasser, Timothy J. Natural Law Theories in the Early Enlightenment, (Cambridge: Cambridge University Press, 2004). Huber, Max.“Die Gleichheit der Staaten”, in Rechtswissenschaftsliche Beiträge Juristischen Festgabe des Auslandes zu Jozef Kohlers 60. Geburtstag, edited by Fritz Berolzheimer, 88–118, (Stuttgart:Enke, 1909). Hunter, Ian. Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany, (Cambridge: Cambridge University Press, 2001). Hunter, Ian. “About the dialectical historiography of international law”, Global Intellectual History, 1, no.1 (2016): 1–32. Jellinek, Georg. Allgemeine Staatslehre, 3rd Edition, (Berlin: Haring, 1914). Kaltenborn von Stachau, Carl. Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft, (Leipzig: Mayer, 1847). Kaufmann, Erich. Das Wesen des Völkerrechts und die clausula rebus sie stantibus. Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriff, (Tübingen: Mohr, 1911). Kelsen, Hans. Die Staatslehre des Dante Alighieri, (Vienna/Leipzig: Deuticke, 1905). Kelsen, Hans. Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre, (Tübingen: Mohr, 1920/1928).

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Kelsen, Hans. “Les Rapports de Système entre le Droit Interne et le Droit International”, Receuil des Cours, 14, iv (1926): 227–331. Kelsen, Hans. “L’âme et le droit”, Annuaire de l’Institut International de Philosophie de Droit et Sociologie Juridique, no.2 (1936a): 60–82. Kelsen, Hans. “La transformation du droit international en droit interne”, Revue ­générale de droit international public, Vol. 49 (1936b): 5–49. Kelsen, Hans. “Contribution à la théorie du traité international”, Revue internationale de la théorie du droit, Vol. x (1936c): 253–292. Kelsen, Hans. “La théorie du droit international coutumier”, Revue internationale de la théorie du droit, Vol. 1 (new series) (1939): 253–274. Kelsen, Hans. “Causality and Retribution”, Philosophy of Science, 8, no. 4 (1941a): 533–556. Kelsen, Hans. “Law as a Specific Social Technique”, University of Chicago Law Review, 9, no. 1 (1941b), 75–97. Kelsen, Hans. Society and Nature: A Sociological Inquiry, (New Jersey: The Lawbook ­Exchange, 2009) (originally published 1946). Kelsen, Hans. “The Natural Law Doctrine Before the Tribunal of Science”, Western ­Political Quarterly, 2, no.4 (1949): 481–513. Kelsen, Hans. “A ‘Dynamic’ Theory of Natural Law”, Louisiana Law Review, 16, no. 4 (1956): 597–620. Kelsen, Hans. “Justice et Droit naturel”, Annales de Philosophie Politique, 3 (1959): 1–124. Kelsen, Hans. “Plato and the Doctrine of Natural Law” Vanderbilt Law Review, 14, (1960): 23–64 (German original 1957). Kelsen, Hans. “The Idea of Natural Law”. In Essays in Law and Moral Philosophy, Hans Kelsen, 27–60, (Dordrecht and Boston: Reidel, 1973a) (German original 1927). Kelsen, Hans. “God and the State”. In Essays in Law and Moral Philosophy, Hans Kelsen, 61–82, (Dordrecht and Boston: Reidel, 1973b) (German original 1922). Kelsen, Hans. “The Foundation of the Theory of Natural Law”. In Essays in Law and Moral Philosophy, Hans Kelsen, 114–153, (Dordrecht and Boston: Reidel, 1973c) (­German original 1964). Kelsen, Hans. General Theory of Norms, (Oxford: Oxford University Press, 1991) (­German original (posthumous) 1979). Kelsen, Hans. “Natural Law Doctrine and Positive Law” in General Theory of State and Law, Hans Kelsen, 391–445, (New Brunswick/London: Transaction Publishers, 2006) (German Original 1928). Kelsen, Hans. “‘Foreward’ to the Second Printing of Main Problems in the Theory of Public Law”. In Normativity and Norms: Critical Perspectives on Kelsenian Themes edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 3–22, (Oxford: Oxford University Press, 2007a).

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Kelsen, Hans. “The Pure Theory of Law, ‘Labandism’, and Neo-Kantianism. A Letter to Renato Treves”. In Normativity and Norms: Critical Perspectives on Kelsenian Themes edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 169–176, (Oxford: ­Oxford University Press, 2007b). Kelsen, Hans. “Contribution à une théorie des fictions juridiques, centrée sur la philosophie du comme si de Hans Vaihinger”. In Les fictions du droit. Kelsen, lecteur de Vaihinger, Christophe Bouriau, 60–85, (Paris: ENS Editions, 2013). Lammasch, Heinrich. Das Völkerrecht nach dem Kriege, (Aschehoug: Kristiania 1917). Lasson, Adolf. Princip und Zukunft des Völkerrechts, (Berlin: Hertz, 1871). Leben, Charles. “La notion de civitas maxima chez Kelsen”, in Actualité de Kelsen en France, edited by Carlos-Miguel Herrera, 87–98, (Paris: LDGJ, 2001). Leben, Charles. The Advancement of International Law, (+Oxford: Hart Publishing, 2010). Liszt, Franz von. “Das Wesen des völkerrechtlichen Staatenverbandes und der internationale Prisenhof” in Festgabe der Berliner juristischen Fakultät für Otto Gierke zum Doktor-Jubiläum, 21. August 1910, Volume iii, edited by the Berlin Law Faculty, 19–44, (Breslau: Marcus, 1910). Martens, Friedrich Fromhold von. Völkerrecht: Das internationale Recht der civilisirten Nationen (German edition), 2 Volumes, (Berlin: Weidmann, 1883). Mausbach, Joseph. Naturrecht und Völkerrecht, (Freiburg: Herder, 1918). Mulvaney, Robert J. “The Early Development of Leibniz’s Concept of Justice”, Journal of the History of Ideas, 29 (1968): 53–72. Mulvaney, Robert J. “Divine Justice in Leibniz’s ‘Discourse on Metaphysics’”, Studia Leibnitiana, 14 (1975): 61–82. Nelson, Leonard. Die Rechtswissenschaft ohne Recht kritische Betrachtungen über die Grundlagen des Staats- und Völkerrechts insbesondere über die Lehre von der Souveränität, (Leipzig: Veit & comp, 1917). Nippold, Otfried. Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten, (Leipzig: Duncker & Humblot, 1907). Onuf, Nicholas Greenwood. “Civitas maxima: Wolff, Vattel and the Fate of Republicanism”, American Journal of International Law, 88 (1994): 280–303. Oppenheim, Heinrich B. System des Völkerrechts, (Stuttgart: Kröner, 1845). Oppenheim, Lassa. “Die Zukunft des Völkerrechts”, in Festschrift für Karl Binding, ­Volume 1, 141–201, (Leipzig: Engelmann, 1911). Paulson, Stanley L. “How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law”, Revus, 21 (2013): 29–45. Pütter, Karl T. Beiträge zur Völkerrechtsgeschichte und Wissenschaft, (Leipzig: Wienbrack, 1843). Redslob, Robert. Das Problem des Völkerrechts, (Leipzig: Veit & comp, 1917).

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Riley, Patrick. “The Legal Philosophy of Grotius”, in The Philosophers’ Philosophy of Law from the Seventeenth Century to Our Days, Partrick Riley, 365–377, (Dordrecht: Springer, 2009). Riley, Patrick. “Leibniz’s Méditation sur la notion commune de la justice, 1703–2003”, Leibniz Review, 13 (2003): 67–81. Riley, Patrick. “Leibniz’ Méditation sur la notion commune de la justice. A Reply to ­Andreas Blank”, Leibniz Review, 15 (2005): 185–216. Riley, Patrick. Leibniz’ Universal Jurisprudence: Justice as the Charity of the Wise, (­Cambridge Mass.: Harvard University Press, 1996). Straumann, Benjamin. Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’s Natural Law, (Cambridge: Cambridge University Press, 2015). Strisower, Leo. Der Krieg und die Völkerrechtsordnung, (Vienna: Manz, 1919). Thomann, Marcel. “Le “Jus Gentium” de Ch. Wolff”, in Christiani Wolffii Jus Gentium edidit et curavit Marcellus Thomann, Reihe (Christian Wolff Gesammelte Werke, iii, 25), v–li, (Hidelsheim/New York: Olms, 1972). Thomann, Marcel. “Die historische Bedeutung des Wolffschen Naturrechts”, in Grundsätze des Natur- und Völkerrechts, worin alle Verbindlichkeiten und alle Rechte aus der Natur des Menschen in einem beständigen Zusammenhange hergeleitet werden. (Halle 1754), Christian Wolff, 5–7, (Hildesheim/New York: Olms 1980) (Christian Wolff: Gesammelte Werke. i, 19). Ullman, Ernst. Völkerrecht, (Tübingen: Mohr, 1908). Volpi, Franco. “The Rehabilitation of Practical Philosophy and Neo-Aristotelianism”, in Action and Contemplation: Studies in the Moral and Political Thought of Aristotle, edited by R.C. Bartlett and S.D. Collins, 3–25, (Albany: State University of New York Press, 1999). Wolff, Christian. Jus Gentium Methodo Scientifica Pertractatum. Translated by Joseph Drake, (Oxford: Oxford University Press, 1934) (German original 1749).

Chapter 5

Hans Kelsen and the Requirement of Self-determination: How the Austrian Jurist Takes Inspiration from Rousseau and How He Emancipates Himself from the Swiss Philosopher Sandrine Baume Abstract Hans Kelsen’s reflections on democracy converge on a quest for the criteria that distinguishes this form of government from other systems of political organisation. In his view, democracy’s distinctiveness derives from its respect for the principle of self-­ determination: norms are worked out through the autonomy of the will of the members of the state or their representatives. In common with Jean-Jacques ­Rousseau, Kelsen asks: How is it possible to be subject to a social order and still be free? Following Rousseau’s example, Kelsen strips from the concept of freedom its previously accepted negative meaning – the absence of restraint – to accord it a positive political sense. Liberty becomes the self-determination of the individual by participating in the creation of the social order. However, even though self-determination is the distinguishing characteristic of democracy, and it underlies the opposition between democracy and autocracy, Kelsen ponders and theorises the limits of self-government. The limitations on self-government proposed by Kelsen are set out in order to defend a particular conception of democracy, namely, constitutional parliamentary democracy. Kelsen limits the principle of self-government for two reasons, which I will discuss, along with the perils – identified by writers such as James Madison, Benjamin Constant, Alexis de Tocqueville and John Stuart Mill – that remain at the heart of debates about democracy today.

1 Introduction Hans Kelsen’s reflections on democracy converge on a quest for the criteria that distinguish this form of government from other systems of political organisation. In his view, democracy is distinctive in its respect for the principle of self-determination: norms are worked out through the autonomy of the will of the members of the state or their representatives. Following Rousseau’s © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004390393_007

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example, Kelsen strips from the concept of freedom its originally accepted negative meaning—the absence of restraint—to confer upon it a positive political sense. Liberty becomes the self-determination of the individual by participating in the creation of the social order. Even though self-determination is the distinguishing characteristic of ­democracy which also underlies the opposition between democracy and ­autocracy, Kelsen ponders and theorises the limits of self-government. The limitations on self-government proposed by Kelsen are set out in order to defend a particular conception of democracy, namely, constitutional parliamentary democracy. Kelsen limits the principle of self-government on the basis of two forms of reasoning, which I will develop more specifically in this chapter. The first form of reasoning concerns the impracticality of complete respect for the principle of self-government. The size of modern states makes it necessary to have delegation, i.e., representative government. And the ­impossibility of reaching a consensus imposes the principle of majority decisions. These reasons for limiting self-government are still pretty consensual in the literature. First, delegation or representation is often perceived as the incarnation of the division of labour in political activities; this was eloquently expressed by Sieyes who considered that governing requires specific skills, particular competences in order to increase the performance or the productivity in economic, social or political spheres.1 And this allows Sieyes to think of governing as a “profession.”2 In the political sphere, the division of labour means ­representation.3 Secondly, majority rule is almost always considered an

1 “La raison, ou du moins l’expérience, dit encore à l’homme : Tu réussiras d’autant mieux dans tes occupations que tu sauras les borner. En portant toutes les facultés de ton esprit sur une partie seulement des travaux utiles, tu obtiendras un plus grand produit avec de moindres peines et de moindres frais. De là vient la séparation des travaux, effet et cause de l’accroissement des richesses et du perfectionnement de l’industrie humaine. Cette séparation est à l’avantage commun de tous les Membres de la Société. Elle appartient aux travaux politiques comme à tous les genres du travail productif,” Emmanuel Sieyes, “Observations sur le rapport du comité de constitution concernant la nouvelle organisation de la France, du 2 octobre 1798” (cited in Pasquale Pasquino, “Emmanuel Sieyes, Benjamin Constant et le ‘gouvernement des modernes.’ Contribution à l’histoire du concept de représentation politique,” Revue française de science politique, 37, no.2 (1987): 220–221). See also Bernard Manin. The Principles of Representative Government, (Cambridge: Cambridge University Press, 1997), 130. Manin emphasizes that “[v]iewed from a certain angle, the history of the Western world can be seen as the advance of the principle of division of labor” (ibid). 2 “The common interest, the improvement of the state of society itself cries out for us to make Government a special profession,” Emmanuel Sieyes, “Observations sur le rapport du comité de constitution concernant la nouvelle organisation de la France, du 2 octobre 1798” (cited in Bernard Manin. The Principles of Representative Government, 3). 3 Pasquino, “Emmanuel Sieyes,” 221.

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o­ bvious device in collective decision-making, although the justifications for its preponderance are not completely clear.4 This then forms the transition to the second part, in which these very limits, which life in modern states imposes on the principle of self-government, themselves generate dangers that Kelsen was perfectly aware of and that imply further limitations on the democratic decision-making process. This second aspect is clearly more controversial. For Kelsen, the unlimited practice of majority decision-making is perilous because of the risk of the imposition of tyranny on individuals in the minority. This peril—identified well before Kelsen by writers such as James Madison, Benjamin Constant, Alexis de Tocqueville and John Stuart Mill5—remains at the heart of debate about democracy today: to what extent should majority decisions be submitted to safeguards? This chapter is structured as follows: the first section deals with the doctrinal continuity and discontinuity between Rousseau and Kelsen. It is followed by a section on Kelsen’s paradoxical relation with the notion of s­ elf-determination. The chapter then concentrates on the types of limits upon self-determination that appear acceptable to the Austrian jurist. We conclude with a few contemporary questions raised by the limits to self-determination advocated by Kelsen. 2

Kelsen and Rousseau: Affinity and Divergence

Hans Kelsen’s considerations of democracy could be perceived as a quest for the distinguishing criteria of the democratic regime. In his view, democracy’s distinctiveness comes from its respect for the principle of self-determination. In a similar manner to Jean-Jacques Rousseau, Kelsen asks, “How is it possible to be subject to a social order and still be free?” Following Rousseau’s example, Kelsen considers liberty to be the individual’s exercise of self-determination by participating in the creation of the social order. Political freedom is liberty, and liberty is autonomy or self-determination. The freedom that is possible within society, and especially within the State, cannot be the freedom from any bond, it can only be from a particular kind of bond. The problem of political freedom is: How is it possible to be subject to a social order and still be free? Thus, ­Rousseau has formulated the question to which democracy is the answer. A subject is politically free 4 Philippe Urfalino, “Les justifications de la règle de majorité,” Raisons politiques 53 (2014): 5. 5 Alexander Hamilton, James Madison and John Jay, The Federalist Papers, (Oxford: Oxford University Press 2008), 10, 48–55. John Stuart Mill, On Liberty, (Oxford: Oxford University Press, 2015), 8. Alexis de Tocqueville, Democracy in America, (New York: W.W. Norton, 2007), Chapter xv: “Unlimited Power of the Majority in the United States, and its Consequences,” 206–220.

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insofar as his individual will is in harmony with the “collective” (or “general”) will expressed in the social order. Such harmony of the “collective” and the individual will is guaranteed only if the social order is created by the individuals whose behaviour it regulates. Social order means determination of the will of the individual. Political freedom, that is, freedom under social order, is self-determination of the individual by participating in the creation of the social order. Political freedom is liberty, and liberty is autonomy.6 The equation between self-determination and democracy is clearly visible in Kelsen’s “Foundations of Democracy”; the renunciation of self-determination means political absolutism: “In this sense political absolutism means for the ruled the complete renunciation of self-determination. It is incompatible with the idea of equality because justifiable only by the assumption of an essential difference between the ruled and the ruler.”7 In the earlier General Theory of Law and State, Kelsen refers to a specific passage in The Social Contract in which Rousseau considered that self-determination constitutes the solution for the following problem formulated in an interrogative way: how is it possible to “coalesce” with all while obeying only oneself? ‘To find a form of association which may defend and protect with the whole force of the community the person and property of every associate, and by means of which each, coalescing with all, may nevertheless obey only himself, and remain free as before. Such is the fundamental problem of which the social contract furnishes the solution.’ Through the social contract, the ‘state of nature’ is replaced by a state of social order.8 Fundamentally, what do Hans Kelsen and Jean-Jacques Rousseau have in common? Principally, it is the answer they provide to the following question: what distinguishes democracy from other forms of government? It is respect for the principle of autonomy or self-determination that constitutes the dividing line between regimes. People are held to exist in a democracy insofar as they submit to rules that they have chosen. Kelsen’s distinction between forms of government is based on the principle of political liberty, thus creating two ideal 6 Hans Kelsen, General Theory of Law and State, (Clark, New Jersey: The Lawbook Exchange, Ltd., 2011), 285. 7 Hans Kelsen, “Foundations of Democracy,” Ethics 66, no.1 (1955): 26. 8 Kelsen, General Theory, 285. The passage from Rousseau is contained in: Jean-Jacques ­Rousseau, “The Social Contract,” in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch, (Cambridge: Cambridge University Press, 1997), 49–50. Hans Kelsen has also utilized this quotation in “Foundations of Democracy,” 24 and in The Essence and Value of Democracy, (Lanham: Rowman & Littlefield Publishers, 2013), 29.

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types: autocracy and democracy. A person is politically free if he is subject to his own will and not to a heteronomous or alien will.9 In “State-Form and World-Outlook,” Kelsen pointed out that “the essential nature of democracy cannot, however, be wholly understood through the Idea of freedom alone. In itself the Idea of freedom is quite incapable of forming the basis of any social order.”10 The principle of self-determination or freedom finds its effective incarnation in unanimity, but the constitution of the social order or the reform of the latter is not compatible with the requirement of unanimity. Consequently, the principle of freedom has to be “supplanted, and restricted, by the Idea of equality.”11 For Kelsen, only this combination of principles – liberty and equality – allows the majoritarian decision, which is essential to the formation of the state’s will. Thus, the pertinent question is no longer whether everyone is in accordance with the rule but whether the majority is in harmony with it. The principle of equality among members of the social order is essential for the acceptance of the decision of the majority, since the state of minority is linked not to a question of status but to a question of number.12 We will return to the question of the majoritarian decision later.13 9

“The Idea of democracy is the Idea of freedom as political self-determination. It is found expressed in its relatively purest form where the state order is directly created by those who are themselves subject to it, where a people, in an assembly of the whole population, agrees upon the norms for its conduct.” Hans Kelsen “State-Form and World-Outlook” in Hans Kelsen, Essays in Legal and Moral Philosophy, ed. O. Weinberger, (Dordrecht: Riedel, 1973), 99. 10 Ibid. 11 Ibid. 12 Moreover, Kelsen asks himself what “type of character” is the most compatible with “the political attitude, in which the longing for freedom is modified by the sense of equality,” “State-Form and World-Outlook.” 100. For him, “It is the type of the sympathising, peaceloving, non-aggressive man, the man whose primitive aggressive instincts are turned, not outward so much as inward, and are expressed here as an inclination to self-criticism and an enhanced tendency to feel guilt and a sense of responsibility. Nor is it by any means so paradoxical as might at first sight appear, that precisely the type of a relatively subdued self-consciousness should be matched to a political form characterised by a minimisation of dominance. For the subject’s attitude to the problem of authority, the basic problem of politics, is essentially determined by the intensity with which the will to dominate is active in the particular individual whose attitude it is. But the individual tends to identify with a form of state which encourages him, even as a subject under authority, to identify with the ruling power. The stronger this will to dominance, the smaller the value attached to freedom. The total negation of this value, the maximisation of dominance, is the Idea of autocracy. Here the governmental order is created by a single individual, to whom all others are subordinated – having no part whatever in forming the communal will – and who stands over against all others as one completely different, because unique, as their lord and leader […] The identification with authority: that is the secret of obedience.” Ibid. 13 See below, “Kelsen’s paradox: The holiness of self-determination and the necessity of its limitation.”

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Rousseau’s understanding of political liberty – the principle of self-­ determination – constitutes a strong source of inspiration for Kelsen, which is itself transformed, and thereby detached from the wider Rousseauist framework, through two interpretative shifts: first, Kelsen defends a conflictual ­perspective in regard to the question of the formation of the State’s will, in opposition to Rousseau, who advocates a consensual perspective; secondly, Kelsen constructs his theory of democracy in opposition to jus naturalism and from his adherence to positivism. In short, and according to the Kelsenian perspective, juridical positivism consists of an attempt to elaborate a science of law devoid of any non-legal elements — i.e., no ethics or politics.14 What distinguishes positivism from antipositivist doctrines, such as natural law,15 is the idea that law is a product of the will and of human authority and does not refer to any system of thought, norms or values that would transcend it. When Kelsen contrasted positivism with natural law, he stated This is where the ‘positivity’ of a legal system comes in, as compared with the law of nature: it is made [‘posed’] by human will — a ground of validity thoroughly alien to natural law because, as a ‘natural’ order, it is not created by man and by its own assumption cannot be created by a human act. In this lies the contrast between a material and a formal principle of validity.16

14

For a convincing definition of positivism, see Norberto Bobbio’s following quotation: “Positivism is not concerned with the axiological justification of norms, with the foundation understood as a problem of the value of the norms. Jus quia iussum non quia iustum. So it becomes perfectly natural, and perfectly compatible with the logic of the system, for a norm to be considered valid provided it is imposed by an authority that has received the power to issue binding norms, which in turn has received that power from an even higher authority, and so on. Since for a positivist the problem of the foundation of law comes down to the problem of its validity, the assertion that the foundation of law is law itself becomes legitimate and understandable: validity is simply a legal status, unlike value, which presupposes the presence of ethical assumptions or of considerations of political expediency,” Norberto Bobbio, Essais sur la théorie du droit, (Paris: Bruylant, 1998), 235 (our translation). 15 See Hans Kelsen, “ʻDynamic’ Theory of Natural Law,” Lousiana Law Review 16, no.4 (1956): 597–620; Hans Kelsen, “The Natural Law Doctrine before the Tribunal of Science,” The Western Political Quarterly, 2, no.4 (1949): 481–513; Kelsen, General Theory; Hans Kelsen, “The idea of natural law,” in Hans Kelsen, Essays in Legal and Moral Philosophy, ed. O. Weinberger, (Dordrecht: Riedel, 1973), 27–60. 16 Kelsen, General Theory, 392.

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The norms of natural law are valid not because they are posed by human authority but only because “they stem from God, nature or reason and thus are good, right and just.”17 Let us return to the two types of opposition between Rousseau and Kelsen. Although Kelsen and Rousseau both seek to establish the meaning of the concept of liberty within a system of a binding social order, they diverge on the ways in which the will of the state is formed. In contrast to Rousseau, Kelsen does not exclude conflict from democratic procedures,18 and he treats the notion of the general will as an erroneous image.19 According to Kelsen, theories that found and construct social unity on the general will (or the common interest) postulate a convergence of wills among members of the same community. For Kelsen, these doctrines are essentially used to deny the conflicts that can arise in a state and therefore perform an essentially ideological function. The will of the state is ultimately the product of diverse and conflictual wills, whose conflict is resolved by the election of representatives through a process of voting. The general will – so precious to Rousseau – and the existence of a collective state interest are ideological fictions, which do not mirror the political reality of democratic life that is necessarily confronted with divergence. For Kelsen, the necessity of compromises also indicates the conflictual basis of political life. This ideological purpose is seen more clearly when the real unity of the State is described as a ‘collective interest.’ In reality, the population of a state is divided into various interest-groups which are more or less opposed to each other. The ideology of a collective State-interest is used to conceal this unavoidable conflict of interests. To call that interest which is expressed in the legal order the interest of all is a fiction even when the legal order represents a compromise between the interests of the most important groups.20 As Przeworski has emphasized, Kelsen – followed by many others, such as Schumpeter, Bobbio, Dahl, Downs and Shklar – dispelled the illusion of the common good, and he departed from the classical doctrines of democracy, as 17 Ibid. 18 See note 18. 19 Renaud Baumert, “Kelsen, lecteur critique de Rousseau: de la volonté générale à la volonté collective,” Jus Politicum 10 (2013): 1. 20 Kelsen, General Theory, 185.

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Schumpeter21 termed them.22 According to Przeworski, Kelsen “was perhaps the first to systematically challenge the theory of self-government based on the assumption of consensus.”23 Interestingly, this Kelsenian “conflictual” ­perception that is opposed to the consensual Rousseauian perception also concerns the idea of justice itself. The representation of justice is also a matter of conflict of interests and, above all, a non-cognitive object and, consequently, is situated within the domain of a plurality of values: Justice is an irrational ideal. However indispensable it may be for volition and action of men, it is not subject to cognition. Regarded from the point of view of rational cognition, there are only interests, and hence conflicts of interest. Their solution can be brought about by an order that either satisfies one interest at the expense of the other, or seeks to achieve a compromise between opposing interests. That only one of these two orders is ‘just’ cannot be established by rational cognition. Such cognition can grasp only a positive order evidenced by objectively determinable acts.24 This positivist conception of justice clearly articulated in the General Theory of Law and State leads to the second main divergence between Rousseau and Kelsen related to their different relationship to jus naturalism. In Kelsen’s conception, jus naturalism is always defined in opposition to positivism, and conversely, 21

Joseph Schumpeter, Capitalism, Socialism and Democracy, (New York: Harper Perennial Modern Thought, 2008), Chap. xxi. 22 “Thus far these views do not diverge as far from the classical conception as Schumpeter would have it. Although they would be uncomfortable with the emphasis on interests and parties, Madison or Sieyes would have agreed that the role of representatives is to determine for the people, and sometimes against the people, what is good for them. But here comes the crucial break with the classical tradition: Kelsen, Schumpeter, Bobbio, Dahl and Downs all agree that nobody and no single body can represent the will of all the people. In sharp contrast to the classical view, these theorists maintain that political parties represent distinct interests. The theory of democracy based on the assumption of the common good is just incoherent”. For Przeworski, “[a]s Judith Shklar, [“Let Us Not Be Hypocritical,” Deadalus 108 (1979): 14] put it … ‘A people is not just a political entity, as was once hoped. Parties, organized campaigns, and leaders make up the reality, if not the promise, of electoral regimes,’” (Adam Przeworski, Democracy and the Limits of SelfGovernment, (Cambridge: Cambridge University Press, 2010), 26–27). 23 Ibid, 27. 24 Kelsen, General Theory, 13.

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It was characteristic of the natural-law doctrine, whether as a part of ethics or theology or as an autonomous discipline, that it used to operate on the assumption of a ‘natural order.’ Unlike the rules of positive law, those prevailing in this ‘natural order’ which govern human conduct are not in force because they have been ‘artificially’ made by a specified human authority, but because they stem from God, nature or reason and thus are good, right and just.25 In contrast to Kelsen, Rousseau accepted an authority which would be superior to and independent of the sovereign static authority – in other words, a natural order.26 For example, in Considerations on the Government of Poland, he mentions explicitly the holiness of natural law: “[…] the law of nature, this sacred, imprescriptible law, which speaks to man’s heart and to his reason […].”27 Although Rousseau manifests his explicit adherence to jus naturalism in many occurrences,28 the Swiss philosopher also mentioned elements that could place into question his adherence to natural law, such as when he drew attention to the artificial nature of the state: “The State, by contrast, being an artificial body, has no determinate measure […]”29 or when he stated that the law is based on a convention: “But the social order is a sacred right, which provides the basis for all the others. Yet this right does not come from nature; it is therefore founded on conventions.”30 Finally, and surprisingly, Rousseau strongly criticises jus naturalism in the preface of the Discourse on the Origin and the Foundations of Inequality among Men.31 These contradictory elements 25 26

Ibid, 392. Robert Derathé, Jean-Jacques Rousseau et la science politique de son temps, (Paris: Vrin, 1988), 157. 27 Jean-Jacques Rousseau, “Considerations on the Government of Poland and on its Projected Reformation,” in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch, (Cambridge: Cambridge University Press, 1997), 196. This is emphasized by Viroli, who affirms that “Rousseau states several times very clearly that there is a natural law, described also as the ‘Law of Reason,’ which is distinct from civil law, and that the natural law is superior to civil law,” Maurizio Viroli, Jean-Jacques Rousseau and the ‘wellordered society’, (Cambridge: Cambridge University Press, 1988), 132. 28 Derathé, Jean-Jacques Rousseau, 157. 29 Jean-Jacques Rousseau, “The State of War,” in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch, (Cambridge: Cambridge University Press, 1997), 169. 30 Rousseau, “The Social Contract,” 41. 31 Jean-Jacques Rousseau, “Discourse on the Origin and the Foundations of Inequality Among Men,” in The Discourses and Other Later Political Writings, ed. Victor Gourevitch, (Cambridge: Cambridge University Press, 1997), 126–127. Later in the same text, Rousseau added: “Hobbes very clearly saw the defect of all modern definitions of Natural right,” ibid, 151.

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have made possible minority interpretations of Rousseau that considered him an enemy of jus naturalism, notably those of Vaughan32 and Cobban.33 In this regard, Noone has convincingly attempted an interpretation that could be seen as a kind of compromise, defending Rousseau’s adherence to natural law in the sense that the individuals have a conscience of “what is right and wrong, just and unjust,” but also mentioning that the obligatory character is conditional. In the one case it depends on the ascertainable fact of human enforcement, in the other, on a strong inner faith in the existence of God. If both of these faiths are in vain, the whole question of natural law becomes at best academic […].34 Kelsen largely emphasised the conventionalist character of Rousseau’s thought, with which he is much more comfortable. Rousseau’s jus naturalist inclination is effectively treated as anecdotal by Kelsen35 for obvious reasons. As Hans Kelsen’s definition of democracy is focused on self-determination and autonomy of the will of the political body, this places the Austrian jurist in an open conflict with the tenets of natural law. 32

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According to Vaughan, Rousseau would have rejected the idea of natural law: “And here we come to the core of the whole matter. The corner-stone of Locke’s theory is the assumption of a ‘natural Law’– a law of admitted duty to others – ‘known and read of all men’ in the state of nature. Rousseau is under no such illusion. He sees that the sense of duty must necessarily be a thing of slow growth; that to suppose it implanted as an ‘innate idea’ in the breast of man was not only inconsistent in Locke, but wholly unreasonable in itself; that for primitive man, even as he is conceived by Locke, much more as he must have been in reality, it is nothing short of an absurdity. For these reasons, he sweeps away the idea of natural Law, root and branch,” Charles Edwyn Vaughan, The Political Writings of Jean Jacques Rousseau, (Oxford, Basil Blackwell, 1962), 16. Alfred Cobban, Rousseau and the Modern State, (London: G. Allen, 1964). John B. Noone, “Rousseau’s Theory of Natural Law as Conditional,” Journal of the History of Ideas, 33, no.1 (1972): 42. “[…] the contention of the revolutionary-destructive character of natural law, initiated by Friedrich Julius Stahl and later adopted by Bergbohm, was caused by the fact that a particular phase in this millennial trend, namely, Rousseau’s mid-eighteenth-century legal and political theory, was simply identified with the natural-law doctrine in general. We can here ignore the question of the revolutionary character of Rousseau’s teachings. It is, by the way, not at all as self-evident as is ordinarily assumed. Yet, the French Revolution did furnish a thoroughly revolutionary interpretation of Rousseau’s natural-law doctrine. Nothing can be more significant than the fact that this was the reason that official legal science, as taught in the universities, dropped the doctrine of natural law. Although for generations it had proved its conservative worth in support of throne and altar, it ­manifestly could also be used for diametrically opposed purposes,” Kelsen, General Theory, 417–418.

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Kelsen’s Paradox: The Holiness of Self-determination and the Necessity of Its Limitation

In the previous sections, I have indicated the importance that Kelsen accords to self-determination as a specific feature of democracy: people live in a democracy insofar as they abide by rules that they have chosen. In that context, I have also insisted on the Rousseauist filiation and how much Kelsen is inspired by The Social Contract. In addition, I emphasized two main divergences between the two authors: the consensual perspective versus the conflictual perception of democratic life and the relationship to jus naturalism, Kelsen being totally opposed to the idea of “natural law” and Rousseau more in harmony with it, although some less generally accepted interpretations consider the Swiss philosopher more ambiguous in his relationship with that doctrine. I would now like to outline a third divergence between Rousseau and Kelsen, which is of great importance for Kelsen’s political theory: limits that Kelsen consciously placed upon the principle of self-determination which were not theorised by Rousseau. Even though self-determination is the distinguishing characteristic of democracy, Kelsen ponders and theorises the limits of self-government. We face here a considerable paradox that Kelsen did not raise explicitly: the Kelsenian theory of democracy is constructed on the basis of the idea of self-­ determination, but the most elaborate and sophisticated developments concern his theorisation of the limitations of self-determination in democracy. This paradox – establishing a theory of democracy based on the concept of self-determination and further specifying this theory through the restraint of this concept – can be solved in the following way. First, the strong Kelsenian adherence to the principle of self-determination arises from his relativist perspective on democracy. According to Kelsen, democracy is not related to intangible values; there is no definition of the good or social choices which cannot be placed into question. Thus self-determination is the only principle which is completely compatible with a critical, relativist and positivist understanding of democracy. In fact, a relativist perspective is not reconcilable with any predefined order which would restrain the will of the majority. On the other hand, the principle of self-determination also generates important risks that Kelsen is very aware of, the main danger being certainly the “tyranny of the majority.” In general, the limitations on self-government proposed by Kelsen are elaborated in order to defend a particular conception of democracy, namely, constitutional parliamentary democracy. In short, there are two major adversaries which Kelsen seeks to combat: non-relativist theories of democracy, which justify the principle of self-determination and the rejection of any predetermined

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order, and the absolutism of the majority, which justifies intrinsic limitations of the principle of self-determination. Let us return to the limitations that the Austrian jurist himself placed upon the principle of self-determination. Kelsen limits the principle of selfgovernment on the basis of two forms of reasoning. In the literature, one type is more consensual36 – derived from practical reasons – than the other one – which is that of liberalism. First, the limits of the principle of self-government arise, according to Kelsen, from its impracticality. Two types of impracticality can be identified. The size and complexity of modern states make it necessary to have a division of labour, a procedure of delegation, i.e., representative government. Consequently, citizens are included not in the whole political decision-making process, but only in the choice of their representatives. These representatives emerge from political parties which most effectively express the citizen’s preferences, according to Kelsen.37 His plea for representative government goes hand in hand with a defence of the party democracy. In addition, self-determination proves to be impractical due to the impossibility of reaching a consensus or unanimous decision. The irreducible divergence of interests and values makes majority rule necessary in democracies.38 Hence, the conflictual component of the social order generates “necessary restriction of liberty by the principle of majority.”39 These reasons for l­imiting self-government, which are subject to thematic reflection and defended by Kelsen, remain to a large extent accepted in contemporary approaches. In established democracies, majority decisions and the principle of delegation to representatives are unexceptional presumptions. Secondly, the so-called “practical” limits – that modern states impose on the principle of self-government through majority decision and representation and that come from the unfeasibility of the principle of self-determination – themselves generate dangers of which Kelsen was aware and for which he suggested correctives, and which represent other limitations to the principle 36 37 38

See notes 1 and 2. Hans Kelsen, The Essence and Value of Democracy, 38–39. “Within the parliamentary principle, the idea of freedom thus once again emerges in a dual relationship, which constrains that idea’s original force. First, it is linked with the majority principle, whose connection with the idea of freedom has already been investigated and to whose real function within the parliamentary system we will return later. The second element, which an analysis of parliamentarianism brings to light, however, is the indirect nature of this form of government. In other words, we encounter the fact that the will of the state is not directly produced by the people itself, but by a parliament chosen by the People,” Kelsen, The Essence and Value of Democracy, 49. 39 Kelsen, General Theory, 286.

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of self-determination stemming from a different order: the liberal one. This second aspect of limitations is more controversial. For Kelsen, the unlimited practice of majority decision can be perilous, because of the risk of tyranny that it imposes on individuals in the minority. This peril — identified well before Kelsen by writers such as James Madison, Benjamin Constant, Alexis de Tocqueville and John Stuart Mill — remains at the heart of Kelsen’s political thought.40 This peril can be expressed as follows: to what extent should ­majority decisions be submitted to safeguards? 4

Acceptable Limits to Self-determination

If Kelsen considers that the devices moderating majority decisions cannot be found in a natural order, or in any metaphysics whatsoever, where do legitimate limits on the majority principle find their source? These limits are, for Kelsen, both legal and political. Let us commence from the legal limits, which can be considered the most evident and widely acknowledged in relation to Kelsen’s work. For Kelsen, devices that moderate majority decisions reside first of all in the existence of a constitutional jurisdiction. Kelsen’s thought is here in continuity with the doctrine of the school that theorised the conditions of an effective guarantee of the constitutional order, later perpetuated by ­proponents of constitutional democracy. In the interwar years, Kelsen had the opportunity to express extensively his fundamental adherence to the existence and operation of a constitutional court, particularly in his very famous quarrel (“disputatio”) with Carl Schmitt. Their confrontation culminated in the publication of two texts; the first one was published in 1931 by Carl Schmitt, Der Hüter der Verfassung (The Guardian of the Constitution), and the Kelsenian retort was published the same year under the title Wer soll der Hüter der V ­ erfassung sein? (Who Should Be the Guardian of the C ­ onstitution?). In this essay, Kelsen defended the legitimacy of a constitutional court by combating the reasons that Schmitt cites for assigning the role of guardian of the constitution to the President of the Reich. It should be emphasized that the model of constitutional jurisdiction in Weimar was less developed or audacious than the one set out in the Austrian Constitution from 1920. In fact, the Weimar Constitution established not a centralised organ of constitutional jurisdiction but a “plurality of guardians of the constitution in competition, which, in certain ­circumstances, disagree.”41 The dissatisfactions generated by 40 Kelsen, The Essence and Value of Democracy, 67–78. 41 Our translation of: “Mehrheit miteinander konkurrierender, unter Umständen miteinander in Widerspruch tretender Verfassungshüter.” Richard Grau “Zum Gesetzentwurf

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such an imbroglio of bodies which should act as guardians of the Constitution generated projects of a real constitutional court, notably from Heinrich Triepel in 1924 and Gerhard Anschütz in 1926.42 However, neither proposal was ever adopted in order to create a constitutional court within the Weimar Constitution. In his juridico-political quarrel with Schmitt, Kelsen faced two major objections concerning the legitimacy of a constitutional court, which originate in the Schmittian corpus but continue to have a contemporary resonance.43 First, constitutional review undermines the principle of the separation of powers.44 To this, Kelsen replied that, in a democracy, separation of powers implies a reciprocal monitoring of state bodies by one another. This is not only to prevent the concentration of excessive power in the hands of a single body – which would be dangerous to democracy – but also to guarantee the regularity of the operation of the various bodies. So

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über die Prüfung der Verfassungsmäßigkeit von Reichsgesetzen und Reichsverordnungen,” Archiv des öffentlichen Rechts, xi (1926): 287, Carl Schmitt “Das Reichsgericht als Hüter der Verfassung,” in Die Reichsgerichtspraxis im deutschen Rechtsleben. Festgabe zum 50 jährigen Bestehen des Reichsgerichts, ed. O. Schreiber, (Berlin und Leipzig: Walter de Gruyter, 1929), 155. “Il faut noter que divers projets pour établir une véritable Cour de Justice constitutionnelle ont été élaborés par les publicistes. Après celui de Triepel en 1924, celui d’Anschütz présenté au 36e Congrès des juristes allemands en 1926, proposait que le Staatsgerichtshof soit doté d’un nouveau statut pour assurer notamment un contrôle juridictionnel de la constitutionnalité des lois. Le droit de saisine aurait été accordé à un tiers des membres du Reichstag ou du Reichsrat. Un projet de loi fut d’ailleurs déposé en décembre 1926 au Reichstag. Élaboré à partir des conclusions du 36e Congrès des Juristes allemands par le Ministère de l’Intérieur, il ne dépassa pas le stade des travaux en commission,” Jean-Claude Béguin, Le contrôle de la constitutionnalité des lois en République fédérale d’Allemagne, (Paris: Economica, 1982), 20. “Judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for society to focus clearly on the real issues at stake when citizens disagree about rights […] And it is politically illegitimate, so far as democratic values are concerned: by privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality,” Jeremy Waldron, “The Core of the Case Against Judicial Review,” The Yale Law Journal 115 (2006): 1353. The resistance to the attempt to render compatible the democratic principle and constitutional jurisdiction is eloquently argued by Michel Troper, see Otto Pfersmann. “Principe majoritaire et démocratie juridique. A propos d’un argument de Kelsen revisité par Michel Troper,” in L’architecture du droit, ed. Denys Béchillon et al., (Paris: Economica, 2006), 859–870. Carl Schmitt, Der Hüter der Verfassung, (Berlin: Duncker & Humblot, 1996), 36–37.

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not only is the institution of a constitutional court not in contradiction with the separation of powers, it is in fact an affirmation of it.45 Second, judicial review also undermines the principle of the popular sovereignty, or more precisely, the supremacy of the Parliament. In fact, if the majority will of the Parliament is the will of the people, how is it possible to justify that this will can be supplanted by judges – who do not express the will of the people and who are not elected democratically? In other words, if Parliament is regarded as the sovereign body par excellence, how can this be reconciled with control being exercised by another body over the legislation that it enacts? To this second criticism, Kelsen replied that Parliament, in common with every other public body, is subject to the constitution, which ultimately justifies constitutional control being applied to it.46 According to Kelsen, constitutional law has another important role in the preservation of balances, which envisages not only relations between different institutions of the state but also majority-minority relations. In order to counter, at a different level, the antidemocratic arguments opposing a ­constitutional court, Kelsen draws the rationale for such a court from his reflections on minority protection.47 Constitutional law acts as a shield for minorities whose rights could be violated by “despotic” majorities.48 It is often forgotten that, in Kelsen’s approach, moderation of majority decisions also takes place through channels other than a constitutional court. The Austrian jurist also examines political-institutional means to reduce the negative impact of majority tyranny. Proportional voting systems are particularly 45

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Hans Kelsen, “Wesen und Entwicklung der Staatsgerichtsbarkeit,” in Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Wien am 23. Und 24 April 1928 (Negotiations of the Conference on German Constitutional Law at Vienna on 23 and 24 April 1928), eds. Heinrich Triepel, Hans Kelsen, Max Layer and Ernst von Hippel, (Berlin und Leipzig: Walter de Gruyter & Co, 1929), 55 (our translation). Cf. Michel Troper, “Kelsen et le contrôle de constitutionnalité,” in Le Droit, le politique autour de Max Weber, Carl Schmitt, ed. C.-M. Herrera, (Paris: L’Harmattan, 1995), 171. The threat to the majority of an appeal to a constitutional court acts to protect the minority: “Die Verfassungsmässigkeit der Gesetze ist daher ein eminentes Interesse der Minorität; gleichgültig, welcher Art diese Minorität ist, ob es sich um eine klassenmässige, eine nationale oder religioöse Minorität handelt, deren Interessen durch die Verfassung in irgendeiner Weise geschützt sind,” Kelsen, “Wesen und Entwicklung der Staatsgerichtsbarkeit,” 81. “Hence, if the minority’s political existence, which is so important for the very nature of democracy, is to be secure, that minority must have an opportunity to appeal, directly or indirectly, to the constitutional court. Otherwise, the minority would be subject to the arbitrary will of the majority and the constitution would be subject to the arbitrary will of the majority and the constitution would be a lex imperfect,” Kelsen, The Essence and Value of Democracy, 83.

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important here since they allow for better representation of minority parties. Kelsen’s case for proportional representation coincides with a particular understanding of the political body, never conceived as a unity but as a set of groups with patently contradictory opinions and values. In his view, political parties represent this diversity, which is best ensured by dividing up the seats in accordance with each party’s electoral strength.49 In Kelsen’s view, compromise is another aspect through which parliamentary regimes reduce the risk that majorities will abuse their power. As noted above, if there are no absolute values that can be proclaimed and imposed in democracies, the only way to overcome differences in a political community is to encourage compromise. This is an important way of pacifying the representatives of opposing interests. Democracy being subject to permanent conflicts, a well-tuned mechanism of compromise is essential to its survival. These r­ eflections of Kelsen were particularly relevant in the climate of social divisions and class warfare that posed serious challenges to democratic thinking in the 1920s. How could class warfare be prevented from threatening political life? Kelsen’s scientific contribution to this burning issue was in theorising compromise as the privileged mechanism for managing and resolving the conflicts that are a part of democratic life. Moreover, compromise appears to be the instrument that is most compatible with his positivist view: The content of the positive legal order is no more than the compromise of conflicting interests, which leaves none of them wholly satisfied or dissatisfied. It is the expression of a social equilibrium manifested in the very effectiveness of the legal order, in that it is obeyed in general and encounters no serious resistance. In this sense, critical positivism recognizes every positive legal order as an order of peace.50 Given that harmony or the general will for Kelsen necessarily remains fictional, social integration can only result from a renewable compromise between the

49 Ibid, 70–71. 50 Kelsen, General Theory, 439. It is interesting to note that in “The function of the pure theory of law,” Kelsen stresses in another way the compatibility between positive law and compromises: “From the point of view of rational cognition, there are only interests and, consequently, clashes of interests, the solutions of which are reached through an order of interests, an order that either satisfies one interest at the expense of another or brings about a compromise between opposite interests. That the one or the other order alone has an absolute value, i.e., that it is ‘just,’ cannot be proved by rational cognition,” Hans Kelsen “The Pure Theory of Law” in Law: A Century of Progress 1835–1935, vol.2, ed. Alison Reppy, (New York/Oxford: New York University Press/Oxford University Press, 1935), 236.

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different actors belonging to the plurality.51 The notion of compromise even takes a prominent place in his defence of the principle of self-determination. In his definition of compromise, he considers that the devaluation of that political device “comes neither from the ideology of liberty nor from thinking about self-determination.”52 Since, for Kelsen, relations between the majority and minority should not be the oppression of one by the other – even though they clearly favour the majority – compromise appears to be a very adequate device in order to moderate the majority decision and to afford minorities an opportunity to be integrated in the formation of the state’s will. Otherwise the principle of self-determination would be violated: […] Compromise is part of democracy’s very nature. Compromise means the solution of a conflict by a norm that neither entirely conforms with the interests of one party, nor entirely contradicts the interest of the other. Insofar as in a democracy the contents of the legal order, too, are not determined exclusively by the interest of the majority but are the result of a compromise between the two groups, voluntary subjection of all individuals to the legal order is more easily possible than in any other political organization. It is precisely because of this tendency towards compromise that democracy is an approximation of the ideal of complete self-determination.53 Consequently, compromise could be understood as a pragmatic embodiment of the principle of self-determination and as a mechanism of collective ­decisions that guarantee the autonomy of the formation of the state’s will in a necessarily fragmented public body.54 The preeminent place that Kelsen reserves for compromises in democratic life was another source of disagreement 51 52

Hans Kelsen. Allgemeine Staatslehre, (Berlin: Julius Springer, 1925), 324. “Compromise means: to replace what breaks connections with what makes them. Every exchange, every contract is a compromise, for to compromise means to tolerate. All social integration is ultimately possible only through compromise. Indeed, the majority itself can only arise through such a compromise. The derogatory, contemptuous judgement that is not infrequently expressed about the principle of compromise and about an attitude inclined to compromise comes neither from the ideology of liberty nor from thinking about self-determination,” ibid, 324 (our translation). 53 Kelsen, General Theory, 288. 54 “In our day, comparative political science, notably the work of Arend Lijphart, has confirmed Kelsen’s intuition: “consensus democracies” that are characterised by power sharing are more widely considered by their citizens to be “kinder and gentler” regimes than are majoritarian democracies of the Westminster type, which are sometimes seen as elective dictatorships,” Arend Lijphart, Patterns of Democracy: Government Forms

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b­ etween him and Carl Schmitt. For the latter, the notion of compromise is incompatible with the idea of the constitution, which has to express clear or even radical orientations. Compromises on important decisions have no place in the constitution, according to Schmitt: political unity has to prevail in the constitution in its “absolute meaning.”55 From this orientation, far from expressing political unity, the Weimar Constitution was the reflection of multiple compromises.56 For Schmitt, this was completely deleterious, while for Kelsen, it was part of the essence of a parliamentary democracy. 5

Concluding Reflections

In both the Allgemeine Staatslehre and the later Essence and Value of Democracy, it is noticeable the degree to which Kelsen considers the relationship between majorities and minorities, especially in parliamentary arenas, as being almost necessarily inclined towards compromises. In other words, he expresses great confidence in the self-limiting capabilities of majorities, which arise, in the long term, because the majority has no interest in abusing its power over

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and Performance in Thirty-Six Countries, (New Haven (CT): Yale University Press, 1999), 300. Schmitt identifies four meanings of the notion of the constitution: the absolute, relative, positive and ideal conception of the constitution. The constitution has an “absolute” meaning if it indicates a totality, Carl Schmitt, Constitutional Theory, (Durham: Duke University Press, 2008), 59–93. In opposition to Kelsen, Schmitt considers that the “absolute meaning” of the constitution corresponds to a “status of unity and order,” ibid, 60. This prefigures and legitimates the use of Article 48 by the President of the Weimar Republic, which authorizes the President to enact state emergency powers in order to re-establish the threatened order. “One effect, above all, that is of importance for the problem of the constitution as a contract, is ascertainable here: the constitution itself, as well as the will-formation of the state that takes place within its framework, appears as a compromise of the different bearers of pluralism within the state. The changing coalitions of social organizations of power, which depend on the issue-area of the compromise – foreign policy, economic policy, social policy, cultural policy – transform the state itself into a pluralistic entity with their methods of negotiation. In the theoretical literature, one has already proclaimed the thesis, with great carelessness, that the parliamentary state as such is, in its essence, nothing but a compromise,” Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, ed. and trans. by Lars Vinx, (Cambridge: Cambridge University Press, 2015), 123. Schmitt’s aversion to the notion of contract related to the constitution is also directed against the Rousseauian idea of the “social contract,” see Samuel Salzborn, “Schmitt, Rousseau und das paradox des Volkswillen” in Legalität ohne Legitimität? Carl Schmitts Kategorie der Legitimität, ed. Rudiger Voight, (Wiesbaden: Springer), 65.

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minorities because the latter would necessarily leave the democratic process, and this would compromise the whole system of representation: That the efficacy of the majority principle is not really dependent upon the idea of a numerical majority is most intimately related to the fact that absolute domination by the majority over the minority does not actually exist in social reality. The reason for this is that the will of society, which is produced according to the so-called majority principle, does not represent a dictate from the majority against the minority, but is rather the result of the mutual interaction between the two groups and a consequence of their colliding ­political persuasions. A dictatorship of the majority over the minority is already not possible, because a minority condemned to irrelevance will eventually abandon its – now merely formal and therefore not only worthless, but downright detrimental – participation in government. This would deprive the majority – which already by definition is impossible without a minority – of its very character.57 The prominent place that Kelsen accorded to the majority-minority relationship raises a number of questions within the contemporary thematisation of democracy. Our conclusion will be devoted to further reflection on these questions: First, is the process of self-limitation by majorities so natural in representative democracies? Second, is the art of compromise really typical of democratic regimes? Third, if majority decision-making is so naturally selflimiting, why do we have to devote significant attention to its limitation? With regard to our first area of reflection: Are self-limitations by majorities, and therefore the practice of compromise, really so natural in representative democracies? In Kelsen’s account, the majority never seems to exclude the minority from the formation of the will of the state. The application of the ­majority principle is accompanied almost naturally by self-limitation in rule making. In the interwar period, Hermann Heller58 had already been less optimistic in relation to this when he emphasised the need to ensure that 57 Kelsen, The Essence and Value of Democracy, 69. 58 “Es hat den Anschein, als ob unserer Zeit eine befriedigende politische Gestaltung der sozialen Massendemokratie nicht gelingen wollte. Die überlieferten Formen und Normen scheinen der Aufgabe nicht gewachsen zu sein. Jedenfalls ist der Glaube an die demokratischen Formungsmöglichkeiten der durch bürgerliche und proletarische ­ Revoltuionen deformierten Gesellschaft schwer erschüttert. Voraussetzung jeder Staastbildung ist die Betätigung eines gemeinsamen Willensgehaltes, der fähig ist, die ewig a­ ntagonistische gesellschaftliche Vielheit zur staatlichen Einheit zu integrieren,”

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democracies contain mechanisms of integration.59 Heller was thus suggesting that relations between majorities and minorities do not necessarily incline towards moderation and can sink into violent power relations – if the minority has no realistic prospect of ever attaining power, for example, especially if its minority status includes structural characteristics linked to religion or language.60 Against the positivist tradition and one of its main representatives – Hans Kelsen61 – Hermann Heller reaffirms the necessity of a community of values, an essential component to the integration process:

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Hermann Heller, “Europa und der Fascismus,” in Gesammelte Schriften, ed Martin Drath et al., vol. ii (Recht, Staat, Macht), (Leiden: A.W.Sijthoff, 1971), 467. The concern about integration draws Hermann Heller’s attention to Rudolf Smend’s work. It should be noted that Heller integrated some considerations from Verfassung und Verfassungsrecht to indicate the necessity of a community of values which would not be called into question even in vehement political debates: “Immerhin bleibt auch heute noch die nationale Selbstbestimmung der wirksamste innen- und außenpolitische Integrationsfaktor der europäischen Demokratien. Daneben gibt es selbstverständlich eine Unzahl von staatsbildenden Faktoren persönlicher, funktioneller und sachlicher Art; ihre Integrationswirkung bleibt aber stets bedingt “ʻdurch eine vom politischen Kampf nicht in Frage gestellte Wertgemeinschaft, vorbehaltlich deren dieser Kampf geführt wird, die diesem Kampf selbst Regeln und den Sinn gibt, eine Funktion integrierenden Gruppenlebens zu seinʼ” [Rudolf Smend, Verfassung und Verfassungsrecht, (München: Duncker & Humblot, 1928) 40], quoted by Hermann Heller, “Europa und der Fascismus,” 471. If the question of integration is common to Heller and Smend, let us note that the manner in which they conceptualize it is very different. In opposition to Heller, Smend has an organicist perspective on the state: “Der Staat sei bei Smend nicht bloss ‘geistiges Kollektivgebilde’ ideeller Art, sondern durch die sich in der natürlichen, körperlichen Welt vollziehende Integration von Menschen zugleich als ‘realer Verband’ gebriffen und damit nichts anderes als ein mit eingenem Leben ausgestatteter ‘Übermensch,’” Robert Chr. Van Ooyen, Integration. Die antidemokratische Staatstheorie von Rudolf Smend im politischen System der Bundesrepublik, (Berlin: Springer, 2014), 27–28. This organicist, antipluralist and antiparliamentarian perspective is in complete opposition to Kelsen’s conception of the democratic state, Hans Kelsen, Der Staat als Integration. Eine prinzipielle auseinandersetzung, (Vienna: Julius Springer 1930), 82–82. See, also, Sandrine Baume, Hans Kelsen and the Case for Democracy, (Colchester: ECPR Press, 2012), 56. “[Heller] bemängelte, dass Kelsen sich in seiner normativen Theorie nur mit der ‘Rechtsförmigkeit’ der juristischen Normen beschäftigt und sie ‘entleert’ und aller ‘Rechtsinhalte’ und politischen Zielvorstellungen beraubt habe. Er ging so weit, zu behaupten, die Rechtsnormen setzen sich in Kelsens ‘Nomokratie’ von selbst,” Christoph Müller, “Hermann Hellers Konzept der politischen Kultur,” in Souveräne Demokratie und soziale Homogenität: Das politische Denken Hermann Hellers, ed. M.L. Lanque, (Baden-Baden: Nomos, 2010); P. Goller, Hermann Heller: Historismus und Geschichtswissenschaft im Staatsrecht (1919–1933), (Frankfurt: Peter Lang, 2002), 69.

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Through Gerber, Laband and Gerog Jellinek, this liberal legal formalism attained a dominant position far beyond Germany, above all in France and Italy. It achieved its accomplishment with Hans Kelsen, for whom every State is logically a State of law to the extent that the law, being independent from values and reality, offers (darstellt) a form for any type of content. Thus, inevitably, such a decomposition (Zersetzung) of law must lead to a decomposition of the State. […] Without any political community of values, there is neither community of will nor community of law. In the disintegration (Auflösung) of the community of values the deepest roots of the political crisis in Europe are to be found, and only a mode of thought which is unconcerned with knowledge of reality but e­ xclusively with the knowledge of knowledge, which radically separates theory and practice, taking into account that the latter [form of knowledge] sinks into agnosticism, can maintain and support a theory of state, which reveals, as the rationalism of the 18th century discovered in religion the fraudulence of priests (Religion als Priesterbetrug), the state as a fiction or an abstraction.62 In clear opposition to Kelsen, Heller considers that a certain degree of social homogeneity is essential to the stability of political life: The degree of possibility of the formation of political unity depends on the extent of social homogeneity; as is the case for the degree of possibility of a representative mandate (Repräsentationsbestellung) and the stability of the position of the representatives. There is a certain degree

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Our translation of: “Dieser liberale Rechtsformalismus gelangt durch Gerber, Laband und Georg Jellinek weit über Deutschland hinaus, vor allem auch in Frankreich und Italien zur Herrschaft. Seine Vollendung erhielt er durch Hans Kelsen, für den folgerichtig jeder Staat eine Rechtsstaat ist, weil das Recht unabhängig von Wert und Wirklichkeit eine Form für jeden beliebigen Inhalt darstellt. Unausweichlich muss solche Rechtszersetzung zur Staatszersetzung treiben […] Ohne politische Wertgemeinschaft gibt es weder eine politische Willensgemeinschaft noch Rechtsgemeinschaft. In der Auflösung dieser Wertgemeinschaft liegen die tiefsten Wurzeln der politischen Krise Europas, und nur ein Denken, welches sich nicht um die Erkenntnis der Realität, sondern ausschließlich um die Erkenntnis der Erkenntnis kümmert, das Theorie und Praxis radikal trennt und angesichts der letzteren dem Agnostizismus anheimfällt, nur eine solches Denken kann eine Staatslehre tragen und ertragen, welche, wie der Rationalismus des achtzehnten ­Jahrhunderts die Religion als Priesterbetrug, den Staat als seine Fiktion oder Abstraktion enthüllt,” Hermann Heller, “Europa und der Fascismus,” 476.

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of social homogeneity without which a democratic formation of unity is absolutely impossible.63 This is not to conclude that Heller denied conflicts and antagonisms in political and civil society. But these conflicts related to values and interests must take place in a context where the “Wir-Bewusstein” (We-Identity) is alive.64 In 1993, Fritz Scharpf reformulated Heller’s concerns when he recalled that the restrictions imposed by the majority on itself do not stand on their own, for they require conditions to which Kelsen perhaps paid too little attention. Indeed, accepting that the majority party (or coalition) will limit itself, such as by not imposing on the minority either unsustainable costs or norms that violate its identity, presupposes some degree of identification of the majority with the minority. To refer to the necessary identification of the different parts of the political community with each other, and in a certain conceptual proximity the Hellerian notion of “Wir-bewusstsein,” Scharpf discusses a “Wir-Identität” that makes it possible both for the majority not to abuse its power and for the minority to feel that the vote of the majority to which it is subject is not an external domination but, rather, a mechanism for collective decision-making. A deficit of “Wir-Identität” would expose the minority to risks that Scharpf very 63

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Our translation of: “Von einer grösseren oder geringeren sozialen Homogenität ist also die grössere oder geringere Möglichkeit einer politischen Einheitsbildung, die Möglichkeit einer Repräsentationsbestellung und die grösserer oder geringere Festigkeit der Stellung der Repräsentanten abhängig. Es gibt einen gewissen Grad von sozialen Homogeneität, ohne welchen eine demokratische Einheitsbildung überhaupt nicht mehr möglich ist,” Hermann Heller, “Politische Demokratie und soziale Homogenität,” in Gesammelte Schriften, ed. Martin Drath et al., vol. ii (Recht, Staat, Macht), (Leiden: A.W.Sijthoff, 1971), 427–428. “Soziale Homogenität ist immer ein sozial-psychologischer Zustand, in welchem die stets vorhandenen Gegensätzlichkeit und Interessenkämpfe gebunden erscheinen durch eine Wirbewusstsein und – Gefühl, durch einen sich aktualisierenden Gemeinschaftswillen” Hermann Heller, “Politische Demokratie und soziale Homogenität,” 428. In 2012, Henkel returned to this notion of “Wir-Bewusstsein”: “Ein bestimmtes Mass sozialer Homogenität muss gegeben sein, damit politische Einheitsbildung überhaupt möglich sein soll. Solange an die Existenz solcher Homogenität geglaubt und angenommen wird, es gäbe eine Möglichkeit, durch Diskussion mit dem Gegner zur politischen Einigung zu gelangen, solange kann auf die Unterdrückung durch physische Gewalt verzichtet, solange kann mit dem Gegner parliert werden (PDsH, 427). Ausdrücklich kennzeichnet Heller die von ihm gemeine Homogenität, womit er hier unzweideutig das Wir-Bewusstsein meint – verstanden als sozial-psychologischer Zustand, der nicht monokausal erklärbar sei, dessen Orientierung aber jedenfalls in der ʻSphäreʼ liege, ʻin welcher das Bewusstsein der Epoche vorwiegend beheimatet istʼ” (PDsH, 428). Michael Henkel, Hermann Hellers Theorie der Politik und des Staates: Die Geburt der Politikwissenschaft aus dem Geiste der Soziologie, (Tübingen: Mohr, 2012), 301.

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clearly understood. When societies lack a feeling of sameness (Wir-Identität), mutual empathy and trust, there is a risk that majoritarian mechanisms will be used to pursue narrow utilitarian, individualistic or particularistic ends.65 As to the second area of reflection, is the art of compromise really typical of democratic regimes, as Kelsen suggested? If compromise is considered as a distinguishing characteristic of democratic life, then this characteristic has itself been called into question in contemporary research. Is it really the case that dictatorial regimes do not themselves regularly engage in compromise? For example, Jennifer Gandhi and Adam Przeworski question that idea and note that dictatorships do resort to compromise, especially when confronted with a high risk of rebellion.66 If this is true, then the Kelsenian characterisation of democracy – broadly associated with the idea of compromise – will be weakened. Of course, it could be argued that, while compromise may be necessary in autocracies when rebellion threatens, it is not the rule and it is not even a natural response in such regimes, in contrast to democracies as understood by Kelsen (and others, such as Norberto Bobbio67). And finally, in relation to our third area of reflection: if majority decisionmaking is so naturally self-limiting, why do we have to think so much about possible ways to limit it? Kelsen’s argument seems remarkably contradictory when, on the one hand, he accords considerable attention to political-legal devices for moderating majority decisions, while, on the other hand, he displays excessive confidence in majorities’ capacity for self-restraint, notably through compromises. This paradox can be explained partly by the discursive context in which Kelsen’s propositions emerged. Kelsen’s optimism acted as a kind of c­ ounterweight to an intellectual climate that was rather hostile (or suspicious) to parliamentary systems. At the same time, his attempt to rescue the reputation of parliaments was not blind to their potential abuses, and, therefore, he recognised the need to constrain them, i.e., to moderate them. In these considerations of moderation, Rousseau could not be a resource, as his thought is in many aspects in complete contradiction with the Austrian jurist. It seems that Kelsen did not consider this obvious antagonism, as he failed to accord importance to the jus naturalist inclination of Rousseau. How can we explain this silence? Probably by the fact that Kelsen has elaborated a theory of 65 66 67

See Fritz W. Scharpf, “Versuch über Demokratie im verhandelnden Staat,” in Verhandlungs-demokratie, Interessenvermittlung, Regierbarkeit, eds. Roland Czada and Manfred G. Schmidt, (Opladen: Westdeutscher Verlag, 1993), 26. Jennifer Gandhi and Adam Przeworski, “Cooperation, co-optation, and rebellion under dictatorships,” Economics and Politics, 18 (2006): 2. Norberto Bobbio, The Future of Democracy, (Minneapolis: University of Minnesota Press, 1989), 116.

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democracy which is an assembling of different elements which are made compatible by him even if they are considered irreconcilable from other doctrinal perspectives. In short, this chapter revealed the very paradoxical relationship that Kelsen has with the notion of self-determination. On the one hand, self-determination is essential in order for Kelsen to depart from all non-positivist-relativist doctrines and, above all, from the jus naturalist perspective, but, on the other hand, the Austrian jurist advocates the absolute necessity of restraining the principle of self-determination, knowing that the latter is potentially deleterious for the protection of the minority’s rights. Protecting minorities belongs as much to his definition of democracy as the principle of self-determination. This “double bind” necessarily placed Kelsen in an ambivalent relation to Rousseau, obsessively attached to the principle of self-determination to the exclusion of any consideration of the effect of compromise – the recognition of minorities – upon those in the majority. Bibliography Baume, Sandrine. Hans Kelsen and the Case for Democracy, (Colchester: ECPR Press, 2012). Baumert, Renaud. “Kelsen, lecteur critique de Rousseau: de la volonté générale à la volonté collective.” Jus Politicum 10 (2013): 1–16. Béguin, Jean-Claude. Le contrôle de la constitutionnalité des lois en République fédérale d’Allemagne, (Paris : Economica, 1982). Bobbio, Norberto. Essais sur la théorie du droit, (Paris: Bruylant, 1998). Bobbio, Norberto. The Future of Democracy, (Minneapolis: University of Minnesota Press, 1989). Cobban, Alfred. Rousseau and the Modern State, (London: G. Allen, 1964). Derathé, Robert. Jean-Jacques Rousseau et la science politique de son temps, (Paris: Vrin, 1988). Gandhi, Jennifer, and Adam Przeworski. “Cooperation, co-optation, and rebellion under dictatorships.” Economics and Politics 18 (2006): 1–26. Goller, Peter. Hermann Heller: Historismus und Geschichtswissenschaft im Staatsrecht (1919–1933), (Frankfurt: Peter Lang, 2002). Grau, Richard. “Zum Gesetzentwurf über die Prüfung der Verfassungsmäßigkeit von Reichsgesetzen und Reichsverordnungen,” Archiv des öffentlichen Rechts, xi (1926): 287–334. Hamilton, A., J. Madison, and J. Jay. The Federalist Papers, (Oxford: Oxford University Press, 2008).

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Heller, Hermann. “Europa und der Fascismus.” In Gesammelte Schriften, edited by Martin Drath et al., vol. ii (Recht, Staat, Macht), 463–609, (Leiden: A.W.Sijthoff, 1971a). Heller, Hermann. “Politische Demokratie und soziale Homogenität.” In Gesammelte Schriften, edited by Martin Drath et al., vol. ii (Recht, Staat, Macht), 421–433, (Leiden: A.W.Sijthoff, 1971b). Henkel, Michael. Hermann Hellers Theorie der Politik und des Staates: Die Geburt der Politikwissenschaft aus dem Geiste der Soziologie, (Tübingen: Mohr, 2012). Kelsen, Hans. Allgemeine Staatslehre, (Berlin: Julius Springer, 1925). Kelsen, Hans. “Wesen und Entwicklung der Staatsgerichtsbarkeit.” In Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Wien am 23. Und 24 April 1928 (Negotiations of the Conference on German Constitutional Law at Vienna on 23 and 24 April 1928), edited by Heinrich Triepel, Hans Kelsen, Max Layer, and Ernst von Hippel, 30–84, (Berlin und Leipzig: Walter de Gruyter & Co, 1929). Kelsen, Hans. Der Staat als Integration. Eine prinzipielle Auseinandersetzung, (Wien: Julius Springer, 1930). Kelsen, Hans. “The Pure Theory of Law.” In Law: A Century of Progress 1835–1935, vol.2, edited by Alison Reppy, 231–241, (New York/Oxford: New York University Press/­ Oxford University Press, 1935). Kelsen, Hans. “The Function of the Pure Theory of Law.” In Law. A Century of Progress 1835 to 1935. Contributions in celebration of the 100th Anniversary of the Founding of the School of Law of the New York University, vol. 2, edited by Alison Reppy, 231–241, (New York: New York University Press. 1937). Kelsen, Hans. “The Natural Law Doctrine before the Tribunal of Science,” The Western Political Quarterly, 2, no. 4 (1949): 481–513. Kelsen, Hans. “Foundations of Democracy,” Ethics 66, no.1 (1955): 1–101. Kelsen, Hans. “‘Dynamic’ Theory of Natural Law,” Lousiana Law Review 16, no.4 (1956): 597–620. Kelsen, Hans. “State-Form and World-Outlook.” In Hans Kelsen, Essays in Legal and Moral Philosophy. Edited by O. Weinberger, 95–113, (Dordrecht: Riedel, 1973a). Kelsen, Hans. “The idea of natural law.” In Hans Kelsen, Essays in Legal and Moral Philosophy. Edited by O. Weinberger, 27–60, (Dordrecht: Riedel, 1973b). Kelsen, Hans. General Theory of Law and State, (Clark, New Jersey: The Lawbook ­Exchange, Ltd., 2011). Kelsen, Hans. The Essence and Value of Democracy, (Plymouth: Rowman & Littlefield, 2013). Lijphart, Arend. Patterns of Democracy: Government Forms and Performance in ThirtySix Countries, (New Haven (CT): Yale University Press, 1999). Manin, Bernard. The Principles of Representative Government, (Cambridge: Cambridge University Press, 1997). Mill, John Stuart. On Liberty, (Oxford: Oxford University Press, 2015).

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Müller, Christoph. “Hermann Hellers Konzept der politischen Kultur.” In Souveräne Demokratie und soziale Homogenität: Das politische Denken Hermann Hellers, edited by M. Llanque, 65–92, (Baden-Baden: Nomos, 2010). Noone, John B. “Rousseau’s Theory of Natural Law as Conditional,” Journal of the History of Ideas, 33, no.1 (1972): 23–42. Pasquino, Pasquale. “Emmanuel Sieyes, Benjamin Constant et le ‘gouvernement des modernes.’ Contribution à l’histoire du concept de représentation politique,” Revue française de science politique, 37, no.2 (1987): 214–229. Pfersmann, Otto. “Principe majoritaire et démocratie juridique. A propos d’un argument de Kelsen revisité par Michel Troper.” In L’architecture du droit, edited by Denys de Béchillon et al, 859–870, (Paris: Economica, 2006). Przeworski, Adam. Democracy and the Limits of Self-Government, (Cambridge: Cambridge University Press, 2010). Rousseau, Jean-Jacques. “Considerations on the Government of Poland and on its Projected Reformation.” In The Social Contract and Other Later Political Writings, edited by Victor Gourevitch, 177–260, (Cambridge: Cambridge University Press, 1997a). Rousseau, Jean-Jacques. “Discourse on the Origin and the Foundations of Inequality among Men.” In The Discourses and Other Early Political Writings, edited by Victor Gourevitch, 113–231, (Cambridge: Cambridge University Press, 1997b). Rousseau, Jean-Jacques. “Of the Social Contract.” In The Social Contract and Other Later Political Writings, edited by Victor Gourevitch, 39–161, (Cambridge: Cambridge University Press, 1997c). Rousseau, Jean-Jacques. “The State of War.” In The Social Contract and Other Later Political Writings, edited by Victor Gourevitch, 162–176, (Cambridge: Cambridge University Press, 1997d). Salzborn, Samuel. “Schmitt, Rousseau und das paradox des Volkswillen.” In Legalität ohne Legitimität? Carl Schmitts Kategorie der Legitimität, edited by R. Voight, 53–76, (Wiesbaden: Springer, 2015). Scharpf, Fritz W. “Versuch über Demokratie im verhandelnden Staat.” In Verhandlungs-demokratie, Interessenvermittlung, Regierbarkeit, edited by Roland Czada and Manferd G. Schmidt, 25–50, (Opladen: Westdeutscher Verlag, 1993). Schmitt, Carl. “Das Reichsgericht als Hüter der Verfassung.” In Die Reichsgerichtspraxis im deutschen Rechtsleben. Festgabe zum 50 jährigen Bestehen des Reichsgerichts, edited by O. Schreiber, 154–178, (Berlin und Leipzig: Walter de Gruyter, 1929). Schmitt, Carl. Der Hüter der Verfassung, (Berlin: Duncker & Humblot, 1996). Schmitt, Carl. Constitutional Theory, (Durham: Duke University Press, 2008). Schumpeter, Joseph. Capitalism, Socialism and Democracy, (New York: Harper Perennial Modern Thought, 2008). Shklar, Judith. “Let Us Not Be Hypocritical,” Deadalus 108 (1979): 1–25. Tocqueville, Alexis. Democracy in America, (New York: W.W. Norton, 2007).

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Troper, Michel. “Kelsen et le contrôle de constitutionnalité.” In Le Droit, le politique autour de Max Weber, Carl Schmitt, edited by C.-M. Herrera, 157–182, (Paris: L’Harmattan, 1995). Urfalino, Philippe. “Les justifications de la règle de majorité,” Raisons politiques 53 (2014): 5–12. Vaughan, Charles Edwyn. The Political Writings of Jean Jacques Rousseau, (Oxford: Basil Blackwell, 1962). Vinx, Lars. The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law. Edited and Translated by Lars Vinx, (Cambridge: Cambridge University Press, 2015). Viroli, Maurizio. Jean-Jacques Rousseau and the ‘well-ordered society, (Cambridge: Cambridge University Press, 1988). Waldron, Jeremy. “The Core of the Case Against Judicial Review,” The Yale Law Journal 115 (2006): 1346–1406.

Chapter 6

Kelsen versus Kant on the Nature of Law Joachim Renzikowski Abstract A comparison between Kant and Kelsen is of interest for legal philosophy in many aspects, especially because Kelsen frequently refers to Kant. Notwithstanding great ­differences between both thinkers their concepts can be combined in some way. While Kant constitutes why one should obey a legal obligation a priori, that means by pure reason, Kelsen focuses on positive law only, and his Reine Rechtslehre can be read first as a theory of legal practise, not as social practise but in its normativity. But he falls short by rejecting all other ways of legal reasoning on justice. Kant as well reflects the difference between legal practise and law of reason without theorizing the first. Legal science has to deal with both questions, because not every legal practise is legally just and not every principle of justice is valid in different positive legal orders.

1 Introduction1 At the outset of Corpus Iuris Civilis, dated 533, the so-called “Institutiones,” is the statement: “Omne autem ius quo utimur vel ad personas pertinent vel ad res vel ad actiones.”2 In translation: “Every law of which we make use has reference either to persons, to things, or to actions.” Despite the emergence of the common law which, from a historical perspective, evolved and emancipated itself from a Roman Law system of forms of action,3 contemporary legal discourse retains an undifferentiated focus upon individuals’ rights (subjektive

1 I would like to thank my friends Alexander Aichele (Halle), Christian Krijnen (Amsterdam) and – most of all – Stanley L. Paulson (St. Louis/Kiel). I am very grateful for many suggestions and reviews. I have also to express my gratitude to Peter Langford for numerous commentaries and editorial work. 2 Inst. i.2.12, as cited in O. Behrends, R. Knütel, B. Kupisch and H.H. Seiler, eds., Corpus Iuris Civilis. Die Institutionen, (Heidelberg: C.F. Müller, 1993): 5. 3 For details see F.W. Maitland, The Forms of Action at Common Law, (Cambridge: Cambridge University Press, 1962).

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Rechte).4 These rights exist between persons and refer to an object of this legal relation. Apart from the niceties of any particular legal system, one can think, as the Roman lawyers did, about matters of law in this sense. Another issue is the particular way in which the law addresses its material. The law – as well as morality – uses the language of ‘ought,’ for example “Thou shall not kill!,” and so on – and that is plainly true for any possible legal system. In this regard, one can initiate a consideration of the specific form of the law. This is the central focus of Kelsen’s Pure Theory of Law as a legal science of positive law. A third question is whether there is a common content found in every legal system, be this due to the divine order of creation, human nature, or reason. This is the issue raised by the various natural law doctrines – and it is an important issue, too, in Immanuel Kant’s Metaphysics of Morals. Thus, the following elements of law are capable of being distinguished and considered in abstracto: form, subject, and content of law. The process of distinction is, however, in general combined with a consideration of the degree and type of connection or relationship between these elements. Here, the conceptual framework of Kant and Kelsen for the reflection upon law will be compared. This comparison is also undertaken by Kelsen, under the influence of Neo-Kantianism, and Kelsen’s work contains explicit discussion and interpretation of Kant.5 The comparison will show that their respective starting points, their methods in approaching the phenomenon of “law,” have certain similarities – more than one may suppose at first glance. However, this revelation of similarity is qualified by the distinctly different question which underlies their respective positions. Kelsen’s subject is positive law. He rejects all natural law doctrines as irrelevant to the consideration of normativity. By contrast, Kant is searching for the principles that are the presuppositions for the possibility of positive law. Hence, the question arises whether one may ignore all of the 4 The term “individuals’ rights” (subjektive Rechte) is to some extent imprecise or uncertain. German legal theorists usually differenciate between individuals’ rights and public rights (Rechte der Allgemeinheit) and the generic term is “Rechtsbeziehung.” The translation “legal relation” seems to be somewhat artificial, but it is not necessary to discuss these details here. 5 Due to the constraints of space, I do not elaborate a broad commentary and criticism of the Kelsenian and the Kantian concept of law. Hence, the following considerations are restricted to some significant aspects. Furthermore, I do not differentiate between different periods in Kelsen’s theory; for details see Stanley L. Paulson, “Four Phases in Hans Kelsen’s Legal Theory? Reflections on a Periodization,” Oxford Journal of Legal Studies 18, no. 1 (1998): 153–166; Stanley L. Paulson, “Arriving at a Defensible Periodization of Hans Kelsen’s Legal Theory,” Oxford Journal of Legal Studies 19, no. 2 (1999): 351–364. Thus, I do not aim at a historically correct reconstruction of the Pure Theory of Law, and its developments by Kelsen are only briefly touched on.

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presuppositions that are fundamental to positive law, as Kelsen thinks. Or, is it preferable to juxtapose both competing approaches, legal positivism and natural law doctrine, on the ground that they complement one another?6 2

Kant’s Categorical Imperative: Proper “Ought”

Kant’s legal theory, as developed in the Metaphysics of Morals, breaks with the classical natural law tradition, which attempted to derive the rules of natural law from the essence of human beings or from the nature of things. Kant does not presuppose concrete attributes of human beings. Instead, his position is based on the idea of freedom. 2.1 “Ought” and Its Implications According to Kant, all legislation involves two elements: “first, a law that represents the action that ought to take place as necessary objectively, thus making the action an obligation; second, … that the law makes obligation the motive of the action.”7 An action is objectively necessary, if and in so far as the obligation depends, not on the desire of the party to whom the obligation is addressed, but on a concrete “determining principle of the will.”8 Kant differentiates between juridical and moral obligations: The agreement or non-agreement of an action with the law, without reference to its motive, is its legality; and that character of the action in which the idea of obligation arising from the law, at the same time forms the motive of the action, is its morality.9

6 This is not to ignore the differences between the concepts of legal positivism and natural law. For an overview see L. Green, “Legal Positivism,” in Stanford Encyclopedia of Philosophy (2003), http://plato.stanford.edu/entries/legal-positivism/. Some reasons for a combined approach will be given later. 7 Immanuel Kant, Metaphysik der Sitten (1797), in: Kants Gesammelte Schriften edited by the Königlich Preußischen Akademie der Wissenschaften. First Section, Volume 6, (Berlin: Georg Reimer, 1907): 203, 218: “erstlich ein Gesetz, welches die Handlung, die geschehen soll, objectiv als nothwendig vorstellt, d.i. welches die Handlung zur Pflicht macht; zweitens … daß das Gesetz die Pflicht zur Triebfeder macht.” 8 Cf. ibid., 225: “Bestimmungsgrund der Willkür.” 9 Ibid., 219: “Man nennt die bloße Übereinstimmung oder Nichtübereinstimmung einer Handlung mit dem Gesetze, ohne Rücksicht auf die Triebfeder derselben die Legalität (Gesetzmäßigkeit), diejenige aber, in welcher die Idee der Pflicht aus dem Gesetze zugleich die Triebfeder der Handlung ist, die Moralität (Sittlichkeit) derselben.”

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Consequently, the objects of morality are the motives to perform a certain action. In other words, morality is orientated – inter alia – to the right attitude. By contrast, motives do not, in principle, form a part of the law. Rather, the law concerns the order of the external “mine” and “thine.”10 From the outset, the criminalization of factors of a purely mental character is excluded. Because the law is unable to secure the fulfilment of its obligations by appeal to the right motivation, only one alternative remains: legally organised force.11 For Kant, to thematise the “ought” and obligation has the following implications. What happens with necessity can be described according to natural laws under the category of causality.12 The necessary presumptions belong to theoretical reason, that is, to what we can know. By contrast, practical reason ­addresses the question of what we ought to do.13 This question can only be raised within the framework of the transcendental idea of freedom, which is not an object of empirical knowledge, but which can be presented as logically possible.14 What is more, the idea of freedom has “objective reality.”15 The necessity for the adoption of this position derives from the impossibility of the construction of a rational subject of practical reason in any other manner. The concept of the volitional act of choice is connected with freedom as the possibility of absolute spontaneity. By this, Kant means “a power of acting or not acting according to liking in so far as the activity is accompanied with the consciousness of the power of the action to produce the object.”16 The volitional act of choice is free, owing to “its independence of being ­determined 10 11

Cf. ibid., 245. As already acknowledged in the earlier German natural law tradition, see, for example, Christian Thomasius, Fundamenta juris naturae et gentium (Hallae et Lipsiae, 1705), lib. I. cap. 5, § 4 – and therefore it holds: § 17: “Ergo jus omne externum est.” 12 Kant, Kritik der reinen Vernunft (2nd ed. 1787), in: Kants Gesammelte Schriften, edited by the Königlich Preußischen Akademie der Wissenschaften. First Section, Volume 3, (Berlin: Georg Reimer 1911): B 238–240. 13 Cf. Kant, Logik (1800), in: Kants Gesammelte Schriften, edited by the Königlich Preußischen Akademie der Wissenschaften. First Section, Volume 9, (Berlin: Georg Reimer 1923): 1, 25. 14 Cf. Kant, Grundlegung zur Metaphysik der Sitten (1785), in: Kants Gesammelte Schriften. edited by the Königlich Preußischen Akademie der Wissenschaften, First Section, Volume 4, (Berlin: Georg Reimer 1911): 385, 446–463; Kant, MdS, AA vi, 221. 15 Kant, KrV, Einleitung B xxvii–xxix. For further consideration, cf. Alexander Aichele, “An sich kein Ding: Nietzsches Wirklichkeiten,” in Wirklich. Wirklichkeit. Wirklichkeiten. Nietzsche über “wahre” und “scheinbare” Welten, ed. R. Reschke, (Oldenburg: AkademieVerlag 2013): 139, 152–156. 16 Kant, MdS, AA vi, 213: “ein Vermögen nach Belieben zu thun oder zu lassen. Sofern es mit dem Bewußtsein des Vermögens seiner Handlung zur Hervorbringung des Objects verbunden ist.”

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by ­sensuous impulses or stimuli” and “may be determined to action by the pure will.”17 Hence, one who can be guided by reason to conduct oneself in accordance with what the obligation requires – which includes the possibility of acting from a disposition contrary to obligation – is an addressee of legal norms and, therefore, a legal person. 2.2 Person, Imputation, Freedom Kant defines a person as “a subject who is capable of having his actions imputed to him.”18 “Imputation, in the moral sense, is the judgment by which any one is declared to be the author (free cause) of an action which is then regarded as his deed (moral fact), and is subject to laws.”19 Thus, persons are not identical to human beings, but depend on something different than their mere affiliation with the biological species. Persons have “free volition,” which is to say, they can act by maxims that they choose themselves, and are not “necessitated to act by sensible principles of determination.”20 Their behaviour is not, by contrast to that of animals, driven by their physical needs alone. They, therefore, can choose their maxim according to the practical law of freedom, that is, according to reason. In other words, persons act from reason, although of course they can act unreasonably, too. A judgment of imputation occurs, however, only in a legal or moral context, that is to say, when one asks whether someone did not act in accordance with a rule of law or of ethics.21 Accordingly, an offence is “an act, in so far it is subject to laws of obligation, and ­consequently in so far as the subject of it is regarded with reference to the freedom of his choice in the exercise of his will.”22

17

Ibid., 213: “[in] Unabhängigkeit ihrer Bestimmung durch sinnliche Antriebe” … “zu Handlungen aus reinem Willen bestimmt werden”; furthermore Kant, GL, AA iv, 412: “Wille ist ein Vermögen, nur dasjenige zu wählen, was die Vernunft unabhängig von der Neigung als praktisch notwendig, d.i. als gut erkennt.” – “The will is a faculty to choose that only which reason independent of inclination recognizes as practically neccessary, that is, as good.” 18 Kant, MdS, AA vi, 223. 19 Ibid., 227: “Zurechnung (imputatio) in moralischer Bedeutung ist das Urtheil, wodurch jemand als Urheber (causa libera) einer Handlung, die alsdann That (factum) heißt und unter Gesetzen steht, angesehen wird.” For a detailed analysis, see Joachim Hruschka, “Imputation,” Brigham Young University Law Review 12, no. 3 (1986): 669–710. 20 Ibid., 226: “durch keine sinnliche Bestimmungsgründe zum Handeln genöthigt zu werden.” 21 See ibid., 227–228. 22 Ibid., 223: “That heißt eine Handlung, sofern sie unter Gesetzen der Verbindlichkeit steht, folglich auch sofern das Subject in derselben nach der Freiheit seiner Willkür betrachtet wird.”

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The Kantian concept of imputation is in no way original, rather, it is the most comprehensively elaborated definition of a concept of imputation whose origins derive from Aristotle and the concept, detached from a necessary Kantian framework, remains prominent in contemporary practical philosophy. The notion of individual responsibility as the basis of punishment stems from it. As the German Federal Court states: “The perpetrator is blamed by a judgment of guilt that he acted unlawfully, that he decided on a legal wrong, although he could have acted lawfully and could have decided on the law.”23 The Kantian concept of law evolves from the freedom of the person. Freedom is independence of the compulsory will of another; and in so far as it can co-exist with the freedom of all according to a universal law, it is the one sole original, inborn right belonging to every man in virtue of his humanity.24 In relation to this freedom, the law, as the Kantian concept of legal right, becomes its guarantor. Right, therefore, comprehends the whole of the conditions under which the voluntary actions of any one person can be harmonized in reality with the voluntary actions of every other person, according to a universal law of freedom.25 Consequently, every action is right that in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the freedom of the will of each and all in action, according to a universal law.26 23

bghst 2, 194, 200: “Mit dem Unwerturteil der Schuld wird dem Täter vorgeworfen, daß er sich nicht rechtmäßig verhalten, daß er sich für das Unrecht entschieden hat, obwohl er sich rechtmäßig verhalten, sich für das Recht hätte entscheiden können.” 24 Kant, MdS, AA vi, 237: “Freiheit (Unabhängigkeit von eines Anderen nöthigender Willkür), sofern sie mit jedes Anderen Freiheit nach einem allgemeinen Gesetz zusammen bestehen kann, ist dieses einzige, ursprüngliche, jedem Menschen kraft seiner Menschheit zustehende Recht.” 25 Ibid., 230: “Das Recht ist also der Inbegriff der Bedingungen, unter denen die Willkür des einen mit der Willkür des anderen nach einem allgemeinen Gesetze der Freiheit zusammen vereinigt werden kann.” 26 Ibid.: “Eine jede Handlung ist recht, die oder nach deren Maxime die Freiheit der Willkür eines jeden mit jedermanns Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann.”

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Thus, a legal right is characterized by a mutual delimitation of individual liberty. An illegal act is a hindrance to the legitimate use of personal liberty. It follows, moreover, from the concept of right that such an act may be prevented by force. “Hence,” for Kant, “according to the principle of non-contradiction, every right is accompanied by a power to bring compulsion to bear on any one who may violate it in fact.”27 Since a lawful status is only possible in a civil society, the relations of which are regulated by a “system of laws,”28 reason commands “a union of a number of men under juridical law,”29 which, in turn, entails a state.30 These laws, as such, are to be regarded as necessary a priori – that is, as following of themselves from the conceptions of external law generally – and not as merely established by statute. The form of the state is thus involved in the idea of the state, viewed as it ought to be according to pure principles of the law.31 Therefore, the Kantian concept of law includes a plan to construct a liberal constitutional state. Thus, behaviour can be criminal only if it interferes with another’s right.32 By the same token, the state is, in principle, empowered to constrain individual liberty only if it is necessary for the protection of the liberty of all. In this manner, the Kantian subjective right is the commencement and essence of Kant’s legal philosophy and the end of all law is to secure it. Then, and only then, is there a legal order which merits the title “Rechtsstaat.”33

27 28 29 30 31

32 33

Ibid., 231: “Mithin ist dem Rechte zugleich eine Befugnis, den, der ihm Abbruch thut, zu zwingen, nach dem Satze des Widerspruchs verknüpft.” Ibid., 311. Ibid., 313. See ibid., 256–257, 307. Ibid., 313: “So fern diese als Gesetze a priori nothwendig, d.i. aus Begriffen des äußeren Rechts überhaupt von selbst folgend, (nicht statutarisch) sind, ist seine Form die Form eines Staats überhaupt, d.i. der Staat in der Idee, wie er nach reinen Rechtsprincipien sein soll.” This is similar to the Harm Principle of John Stuart Mill, On Liberty, (London: John W. Parker and Son, 1859): 22. For a contemporary criticism, see Arthur Ripstein, “Beyond the Harm Principle,” Philosophy & Public Affairs 34, no. 3 (2006): 216–246. For a detailed analysis, see Joachim Hruschka, “Kants Rechtsphilosophie als Philosophie des subjektiven Rechts,” Juristenzeitung 22 (2004): 1085–1092. A modern paraphrase of this liberal concept of law is Rawls’s principle of maximum possible equal freedom: “Each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberty for others” in: A Theory of Justice, rev. edn., (Oxford: University Press, 1999): 53. But it one can discuss, whether Rawls’ Theory of Justice

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2.3 The Categorical Imperative and the Law Kant raises the question: what matter can be considered as a duty that is obligatory for everyone? Here, the basis of a possible positive legislation can be found. For, an external legislation, containing only positive laws, is therefore conceivable; but in that case a previous natural law must be presupposed to establish the authority of the lawgiver by the power to subject others to obligation through his own act of will.34 This would appear to indicate the Kantian prefiguration of the notion of a basic norm. But his basic norm is, in contrast to Kelsen’s, not the pure “ought” per se, but the foundation of obligation by reason. In his Groundwork of the Metaphysic of Morals, Kant differentiates between physics, which concerns the laws of nature, and ethics, which concerns the laws of freedom.35 While the moral laws refer to objects of practical cognition, their application requires “knowledge of man himself” as well as “judgement sharpened by experience.”36 However, in relation to the moral quality, the question is not one of empirical morality to be determined by a moral ­psychology. Rather, the idea of obligation for every human being can be developed solely a priori, thus in a manner distinct from their concrete nature and from differences in their individual dispositions. Hence, we can only look to a pure philosophy for the moral law …. That which confounds these pure principles with the empirical does not deserve the name of philosophy …; much less that of moral philosophy, since by this confusion it even spoils the purity of morality and counteracts its own end.37 is really Kantian, see Otfried Höffe, Kategorische Rechtsprinzipien, (Frankfurt am Main: Suhrkamp, 1990): 306–330. 34 Kant, MdS, AA vi, 224: “Es kann also eine äußere Gesetzgebung gedacht werden, die lauter positive Gesetze enthielte; alsdann aber müßte doch ein natürliches Gesetz vorausgehen, welches die Autorität des Gesetzgebers (d.i. die Befugniß, durch seine bloße Willkür andere zu verbinden) begründete.” 35 Kant, GL, AA iv, 387–388. 36 Ibid., 389. 37 Ibid., 390: “Nun ist aber das sittliche Gesetz … nirgend anders, als in einer reinen Philosophie zu suchen …; selbst verdient diejenige, welche jene reinen Principien unter die empirischen mischt, den Namen einer Philosophie nicht … viel weniger einer Moralphilosophie, weil sie eben durch diese Vermengung sogar der Reinheit der Sitten selbst Abbruch thut und ihrem eigenen Zwecke zuwider verfährt.”

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This celebrated distinction between “is” and “ought” is familiar from David Hume. One cannot derive an “ought” from an “is.”38 The attempt to do so is also known as the “naturalistic fallacy.” In his Critique of Pure Reason, Kant follows this tradition: the mind can only think of objects of sensation, which have been “schematized” by means of the applicable categories. Apart from that, no cognition is possible. It is only the forms of perception and of cognition that are given a priori.39 This marks the end of an objective, invariant and universal natural law as understood in the classical tradition, which attempted to derive legal content from human nature or from the nature of things. However, the question then arises as to the foundation or ground for obligation. The a­ utonomy of the rational will becomes the Kantian foundation of law.40 The question arises: how can a reasonable will generate the basis for a claim of universal binding force?41 With the exclusion of individual dispositions as 38

David Hume, A Treatise of Human Nature (1739/40), in The Philosophical Works, eds. T. Green and T. Grose, (Aalen: Scientia Verlag, 1964), vol ii, 245–246 (Book iii, Part i, § 1 at the end): “I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ’tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou’d subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv’d by reason.” Now, we meet this statement in the distinction between a prescriptive and descriptive language: the meaning of “being” is different from “ought.” For example, the sentence “The window is open” can be false or true. It is true, when the window in fact is open; it is false, when the window is closed. In contrast, the command “Open the window!” cannot be true or false. It can neither be verified by the actual status of the window – “closed” or “open” – nor can it be disproved by the complete absence of any individual obeying the command. Commands can only be valid or invalid. But what makes a command valid? 39 Kant, KrV, aaiii, B 74 ff. 40 Cf. Kant, GL, AA iv, 440; Kant, MdS, AA vi, 228. Kelsen completely missunderstands Kant’s radical turn with the traditional natural law doctrine, cf. C. Krijnen, “Hans Kelsen and Southwest German Neo-Kantianism on Natural Law: Transcendental Philosophy beyond Metaphysics and Positivism,” in this volume. 41 For Kelsen, Reine Rechtslehre, 2nd edn., (Vienna: Franz Deuticke, 1960): 423, the concept of practical reason is the “result of an improper mixing of two substantially different …

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principles of determination, only a formal criterion can be considered: universality. From this, the categorical imperative follows: “Act according to a maxim that can be adopted at the same time as a universal law!”42 Consequentially, the universal law orders: “Act externally in such a manner that the free exercise of thy will can co-exist with the freedom of all others, according to a universal law.”43 This concept of law is derived from “pure reason” and is, therefore, immutable. Hence, “systematic knowledge of the principles of natural law” yields “the immutable principles of all positive legislation.”44 The common objection to the categorical imperative, which Kelsen raises, is this: the formula is merely formal and tautological.45 This critique, however, immediately reveals itself to be of a superficial character. The concept of law derived from the categorical imperative includes a rational justification of personal freedom as a right per se. A legal system which purports to adhere to the rule of law must be shaped in conformity with it. Thus, it is not merely “formal.” This is equally applicable and is a fortiori valid for the categorical imperative in the form of the so-called “formula of mankind”: “Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.”46 This formula is an integral part of discourse on the concept of human dignity.47 From this, there follows, for instance, the ban on slavery, for in a ­society of slaveholders the slaves are not treated as ends in themselves, that capacities of the human being,” that is to say, of reason as cognition and will as appetitive faculty. But since “the theoretical with the practical reason is one and the same reason, it cannot as theoretical reason and as practical reason perform a completely different function, viz to will” (ibid., 425). Kant, KpV, AA v, 16, 89 would say: of course, it can! Because both ways of reasoning are based on one and the same logic function of the judgment, cf. Kant, KrV, aaiii, B 95. For further consideration, see Christian Krijnen, “Kants Kategorien der Freiheit und das Problem der Einheit der Vernunft,” in Kants Kategorien der Freiheit, ed. Stephan Zimmermann Berlin (forthcoming). 42 Kant, MdS, AA vi, 225: “Handle nach einer Maxime, welche zugleich als ein allgemeines Gesetz gelten kann!” 43 Ibid., 231: “Also ist das allgemeine Rechtsgesetz: handle äußerlich so, daß der freie ­Gebrauch deiner Willkür mit der Freiheit von jedermann nach einem allgemeinen Gesetze zusammen bestehen könne.” 44 Ibid., 229. 45 Kelsen, RR2, 372–373. Kelsen’s objection is a little surprising because his own concept of law is rather formal. 46 Kant, GL, AA iv, 429: “Handle so, daß du die Menschheit sowohl in deiner Person, als auch in der Person eines jeden andern jederzeit zugleich als Zweck, niemals bloß als Mittel brauchst.” 47 Cf. e.g. Markus Rothhaar, “Menschenwürde qua Autonomie und Anerkennung: Kant und Fichte,” in Menschenwürde und Medizin, eds. Jan C. Joerden, Eric Hilgendorf and Felix Thiele, (Berlin: Duncker & Humblot, 2013): 73–97 including the further references cited in the text.

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is, as p ­ ersons, but as things used to enhance the owner’s prosperity. Therefore, slavery cannot be thought of as legal. From the outset, brute force cannot fall within the concept of law, for it is incommensurate with freedom: For a contract by means of which the one party renounces his whole freedom for the advantage of the other, ceasing thereby to be a person and consequently having no obligation even to observe a contract, is selfcontradictory, and is therefore of itself null and void.48 The Crux: The Relation between a priori Principles of Law and Positive Law Now, the decisive question is the relation between the categorical imperative or the concept of mutual liberty according to a general law, on the one hand, and the positive law on the other. Saint Augustine responded most concisely: a state without justice is nothing other than a large robber band.49 Kant himself never postulated the priority of a priori principles of law over positive law or a corresponding condition for the validity of positive law. In the introduction to the Rechtslehre, Kant differentiates between the questions, what is “legal” – quid sit iuris – and what is “just,” whereby one can recognize justice and injustice – iustum et iniustum. An empirical consideration, “what the laws of a certain place and of a certain time say or may have said,” provides the answer to the first question. In answer to the second question, one has to employ “pure reason … in order to lay a real foundation for actual positive legislation.”50 Another aspect is his division of 2.4

the system of rights, viewed as a scientific system of doctrines, … into natural right and positive right. Natural right rests upon pure rational principles a priori; positive or statutory right is what proceeds from the will of a legislator.51

48 Kant, MdS, AA vi, 283: “… ein Vertrag aber, durch den ein Theil zum Vortheil des anderen auf seine ganze Freiheit Verzicht thut, mithin aufhört, eine Person zu sein, folglich auch keine Pflicht hat, einen Vertrag zu halten, sondern nur Gewalt anerkennt, [ist] in sich selbst widersprchend, d.i. null und nichtig.” 49 Augustinus, De civitate Dei contra Paganos, ed. with introduction, translation and commentary by P.G. Walsh, (Oxford: Oxbow Books, 2005), lib. iv.4.: “Remota itaque iustitia quid sunt regna nisi magna latrocinia?” 50 Kant, MdS, AA vi, 229–230. 51 Ibid., 237: “[Einteilung] der Rechte, als systematischer Lehren: in das Naturrecht, das auf lauter Prinzipien a priori beruht, und das positive (statutarische) Recht, was aus dem Willen eines Gesetzgebers hervorgeht.”

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The possibility of laws contrary to reason is not thereby excluded. Although Kant writes elsewhere that positive laws “must not be contrary to the natural laws that demand the freedom of all the people and the equality that is conformable thereto.”52 It would, however, be “ridiculous to shirk one’s obedience to the ultimate and supreme will, on the ground that it supposedly is not in accordance with reason.”53 Rather, the jurist as an authority on the text of the code of law does not look to his reason for the laws that secure the Mine and Thine, but to the code of laws that has been publicly promulgated and sanctioned by the highest authority (if, as he should, he acts as a civil servant). To require him to prove the truth of these laws and their conformity with right, or to defend them against reason’s objections would be unfair. For these decrees first of all determine what is right, and the jurist must straightaway dismiss as nonsense the further question of whether these decrees themselves are right.54 Resistance on the part of the people to the supreme legislative power of the state, is in no case legitimate; for it is only by submission to the universal legislative will, that a condition of law and order is possible.55 Therefore only the “freedom of the quill” remains in the appeal to the legislator for a change of the unjust laws.56 52 Ibid., 315. 53 Kant, Der Streit der Facultäten in drei Abschnitten (1798), in Kants Gesammelte Schriften, edited by the Königlich Preußischen Akademie der Wissenschaften, First Section, Volume 7, (Berlin: Georg Reimer,1907): 1, 25: “Es wäre lächerlich, sich dem Gehorsam gegen einen äußern und obersten Willen darum, weil dieser angeblich nicht mit der Vernunft über­ einstimmt, entziehen zu wollen.” 54 Ibid., 24–25: “Der schriftgelehrte Jurist sucht die Gesetze der Sicherung des Mein und Dein (wenn er, wie er soll, als Beamter der Regierung verfährt) nicht in seiner Vernunft, sondern im öffentlich gegebenen und höchsten Orts sanctionirten Gesetzbuch. Den Beweis der Wahrheit und Rechtmäßigkeit derselben, ingleichen die Vertheidigung wider die dagegen gemachte Einwendung der Vernunft kann mann billigerweise von ihm nicht fordern. Denn die Verordnungen machen allererst, daß etwas recht ist, und nun nachzufragen, ob auch die Verordnungen selbst recht sein mögen, muß von den Juristen als ungereimt geradezu abgewiesen werden.” 55 Kant, MdS, AA vi, 320: “Wider das gesetzgebende Oberhaupt des Staates gibt es also keinen rechtmäßigen Widerstand des Volkes; denn nur durch Unterwerfung unter seinen allgemein-gesetzgebenden Willen ist ein rechtlicher Zustand möglich” – because the supreme authority can “als Quell der Gesetze betrachtet, nicht unrecht thun” (ibid., commentary). 56 I.Kant, Über den Gemeinspruch: Daß mag in der Theorie richtig sein, taugt aber nicht für die Praxis (1793), in: Kant’s Gesammelte Schriften, edited by the Königlich Preußischen Akademie der Wissenschaften, First Section, Volume 8, (Berlin: Georg Reimer, 1923): 273, 304.

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During the Enlightenment, this opinion was very popular.57 Within the German Enlightenment, the position derived from the observation that public authority acquired its legitimacy from the observance of the principles of natural law.58 In relation to the question of the state’s formulation and implementation of its aims, natural law was considered to be dispensable. The further question of how to determine the exact content of natural law in a given case always proved to be problematic. For, the dominant concept of natural law did conceive of its capacity to exist permanently and independently of its particular determination by the authorities, whilst to confine natural law to this level was scarcely reliable as a reading of the natural laws.59 This, in turn, situated the subjects in a relationship of obedience to the sovereign – the duty to obey the laws of the authorities – for natural law provided no independent, autonomous ground upon which to reflect upon the sovereign and his commands. Thus, the notion of the sovereign’s accountability was effectively absent, as in no case were the subjects authorized to review whether and to what extent the laws were in conformity with the principles of natural law. Hence, the presumption was of a general conformity between the sovereign and natural law: the assumption of the competence of the authorities.60 This assumption was combined, for thinkers in the seventeenth and eighteenth century, with an increasing attention to the character of positive law, as the form in which the sovereign’s commands were to be expressed. The emergence of a legal positivism centred, for these thinkers, upon the requirement that these commands take the form of a written, public law. The concern was for the diminution in the exercise of arbitrary authority, thereby enabling the emergence of a public authority which was stable and secure. The regulation of public authority was, however, the corollary of the formation, by subjects, of a civil

57

For a detailed analysis, see Jan Schröder, “‘Naturrecht bricht positives Recht’ in der Rechtstheorie des 18. Jahrhunderts?,” in Staat, Kirche, Wissenschaft in einer pluralistischen Gesellschaft: Festschrift für Paul Mikat, eds. Dieter Schwab et al., (Berlin: Duncker & Humblot, 1989): 419–433. 58 Cf. S. Pufendorf, De officio hominis et civis juxta legem naturalem, libri duo, ed. novissima, (Francofurti ad Moenum, 1714), lib. ii cap. xii § 3. 59 Cf. S. Pufendorf, De jure naturae et gentium, libri octo, (Londini Scanorum, 1672), lib. vii cap. vi § 7; similarly Thomas Hobbes, Leviathan or The Matter, Forme & Power of a Commonwealth Ecclesiasticall and Civil, (London, 1651): 181–182: “To the care of the Soveraign, belongeth the making of Good Lawes. But what is a good Law? By a Good Law, I mean not a Just Law: for no Law can be Unjust.” 60 Pufendorf, De jure, lib. xii cap. i § 5: “Privatos autem homines, dum cognitionem boni & mali ad se trahunt, cupere esse sicut reges.” Kant, MdS, AA vi, 319–320 at least refers also to an argument of competence.

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society which emerged from a general obligation of reason. Within this conceptual framework, the importance of natural law increasingly centred upon the ­development of a theory of legislation. In conformity with this tradition, in particular that of the German Enlightenment, the Kantian position is not – at least not explicitly – one which proposes a combination thesis, according to which the concept of law necessarily includes elements of justice.61 The absence of this co-belonging of law and justice opens, rather than excludes, the question of whether Kant enables the full realization of his concept of law.62 This, in turn, enables one to pose, beyond the structures of Kant’s philosophical system, the continued pertinence of the consideration of reasons for the coexistence of natural law and positive law: positive law is a certain interpretation of social facts, whereas natural law is the morality of positive law and the material ground for legal obligations.63 Both are equally legitimate subjects of jurisprudence. We will revisit this idea later. 3

Kelsen’s Concept of Law: Pure “Ought”

Kelsen seeks to determine the “law” as an issue of jurisprudence, which can claim to be an authentic science. For this purpose, he delineates the concept of law in two directions: on the one hand, he rejects all material standards for the law. As he famously states: “Any possible matter can be law.”64 The validity of a legal norm does not depend on material criteria. Kelsen considers a material concept of law as impossible, for there is no absolute morality and, thus, no absolute justice.65 Hence, for Kelsen, all attempts to read substantive 61

Robert Alexy, Begriff und Geltung des Rechts (Freiburg/Munich: Alber, 1994) is a contemporary and ambitious example of such a position. 62 Here, a further consideration arises from the effect of censorship upon the position of an official jurist under an absolut monarchy. For, the principles of natural law could not extend to the placing into question of foundation of absolutist authority. Whether this has been extended to self-censorship or not, Kant, for his part, distinguishes the Metaphysics of Morals which belongs to the faculty of philosophy, from legal practise which belongs to the faculty of law. While the legislator can err and state unreasonable laws, philosophers are entitled to criticize because they are bound to truth only (cf. AA vii, 27–28, 32–33). Or, in other words, the critical review of laws from the standpoint of natural law is the office of legal theory, the application of law is the business of legal profession which should not promulgate new laws. 63 For a contemporary formulation, see John Finnis Natural Law and Natural Rights, (Oxford: Oxford University Press, 2nd ed. 2011). 64 Kelsen, RR2, 201. 65 Kelsen, RR2, 68–71. On several occasions Kelsen dealt with different concepts of justice, see Was ist Gerechtigkeit, (Wien: Deuticke, 1953); “Das Problem der Gerechtigkeit” (1958),

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notions into the concept of law are ideologically suspect.66 On the other hand, law is not merely a fact. With such a “purified” concept of law Kelsen purports to recognize the specificity of the law: its normativity.67 3.1 The Doctrine of the Basic Norm Let us assume that a person A orders another person B to pay a certain amount to a third person C. Then the question arises: how is this event to be understood? For instance, A could be a bank robber who commands that the cashier B hand over the money to his accomplice C. A could also be a judge who orders defendant B to pay damages to plaintiff C. Thus, for Kelsen, a legal science of positive law is required to have the capacity to distinguish normatively between these two situations. In common with Kant, Kelsen differentiates strictly between “is” and “ought.” Because one cannot derive an “ought” from an “is,”68 one cannot prove the validity of a command by appeal solely to facts. Here, Kelsen is rejecting an important school of legal positivism which treats the law as a social fact. One example is the well-known definition by Oliver Wendell Holmes: “The prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by the law.”69 Whether a command can be factually enforced is not, however, relevant to Kelsen’s concept of law: bank robber A could force the cashier B to follow the command by threatening to shoot him. But his behaviour does not in this way become a legal act.70 Further prerequisites are required to understand A’s command to B not only as an “ought,” but as a legal obligation. Kelsen already interprets the decision itself as a norm. According to his definition, a norm is an “act of will,” directed to an “ought.”71 This can also be the act of will of an individual – in this context: of reprinted as an attachment in RR2, 355–444; Die Illusion der Gerechtigkeit. Eine kritische Untersuchung der Sozialphilosophie Platons, Wien: Manz, 1985. 66 Kelsen, RR2, 71, 435–436. 67 Kelsen, RR2, 4–9, 215–221. 68 See Hans Kelsen, Hauptprobleme der Staatsrechtslehre, 2nd edn., (Tübingen: Mohr Siebeck, 1923): 7–8; RR2, 5–6. 69 Oliver W. Holmes, “The Path of Law” (1897), in Philosophy of Law and Legal Theory: An Anthology, ed. Dennis Patterson, (Blackwell: Malden, 2003): 9–21, 11; cf. also Anders V. Lundstedt, Die Unwissenschaftlichkeit der Rechtswissenschaft, vol. i, (Berlin: Rothschild, 1932): 252–253: “Abstrahiert man von diesem faktischen Verhalten der Staatsorgane … so sind die Begriffe Rechtsordnung und Rechtsregel leere Worte.”; Karl Olivecrona, Law as Fact, (Copenhagen: Einar Munksgaard/London: Milford, 1939): 27: “My purpose is to reduce our picture of the law in order to make it tally with the existing objective reality.” 70 Cf. Kelsen, RR2, 2–3. 71 Kelsen, RR2, 4–5.

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the judge.72 To be an individual norm presupposes that A’s command itself can be traced back to a superior general norm.73 This general norm has the form of a relation, connecting the matter of fact with a sanction in such a way that the sanction “ought” to be imposed if the material conditions obtain. This relation between matter of fact and legal consequence is expressed in the legal proposition, that is, the statement about a norm, by means of the principle of imputation.74 The world of facts is thereby not completely, but only conceptually, separated from the world of law. After all, an act of will is a fact,75 and the law itself refers to facts, for example, to a reciprocal promise and its nonfulfillment by the later defendant B. These facts acquire a legal meaning, but not before they have been relegated to a normative status. Hence, norms serve as a scheme for interpretation.76 In this manner, the subjective act of will takes on an objective meaning, it becomes a legal norm. The general norm is also an act of will, usually of a legislature, directed to an “ought.” Thus, a regress occurs. Every act of will becomes law only by reason of a superior norm, and this regress can be continued, on and on, until the ­highest level of a legal system is reached: the constitution. At this point, the problem arises again, namely, to establish the normativity of the constitution. The mere fact that an assembly has established certain rules does not render this decision legal. Thus, the existence of the constitution is not in itself sufficient to prevent the re-emergence of the possibility of an infinite regress. Therefore, Kelsen postulates a “basic norm.” 72 73

Cf. Kelsen, RR2, 85, 107, 121, 244. Cf. Hans Kelsen, Reine Rechtslehre (1934), 2nd reprint, (Aalen: Scientia Verlag, 1994): 66– 68; RR2, 47, 79–86. For a detailed analysis, see Carsten Heidemann, “The Creation of Normative Facts,” Law and Philosophy 19, no. 2 (2000): 263. 74 Kelsen, RR1, 22; RR2, 79–86; for details see Carsten Heidemann, “Der Begriff der Zurechnung bei Hans Kelsen,” in Hans Kelsen. Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts, eds. Stanley L. Paulson and Michael Stolleis, (Tübingen: Mohr Siebeck, 2005): 17–34, 19–21. 75 Cf. also Hans Kelsen, Allgemeine Theorie der Normen, (Wien: Manz, 1979): 4: “Eine durch einen in der Seinswirklichkeit stattfindenden Willensakt gesetzte Norm ist eine positive Norm … d.h. durch Willensakte, und zwar durch menschliche Willensakte, gesetzte Normen.” – “A norm set by an act of will which occurs in reality is a positive norm … that is a norm set by acts of will, namely human acts of will.” And later (p. 114): “Die Seins-Tatsache … des Gesetzt-Werdens [ist eine] Bedingung … der Geltung einer Norm, aber nicht diese Geltung selbst.” – “The pure fact … of being set [is a] precondition … of the validity of a norm, but not this validity itself.” 76 Kelsen, RR2, 3–4; illustrated by the parable of King Midas, ibid., 282: “Like all that he touched mutated into gold, so all whereto the law refers assumes legal nature.”

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As the highest norm it must be presupposed, for it cannot be set down by an authority whose competence would have to be based upon a still higher norm. Since its validity cannot be derived from a higher norm, the basis of its validity can no longer be questioned.77 The basic norm has a second function. Not only does it establish the normativity of the constitution and all subsequent norms, it also guarantees the unity of a legal system: All norms whose validity can be traced back to one and the same basic norm form a system of norms, a normative order. The basic norm is the common source for the validity of all norms which belong to one and the same order, their common basis of validity. The reason why a certain norm belongs to a certain basic norm is that its ultimate basis of its validity is the basic norm of this order. This basic norm constitutes the unity of the plurality of norms by representing the basis of the validity of all norms belonging to that order.78 The basic norm cannot have any particular content, for every possible legal system relies on a basic norm which establishes the validity of the individual norms of that order and guarantees its unity. The basic norm expresses an objective obligation without reference to any values that inhere in the law. Thus, the normative hierarchy is directed exclusively to the normative relation of validity. A’s command to B can be interpreted as legally binding, for it can be traced back via a chain of norms to a basic norm. Of course, this is not a material deduction, for the basic norm contains no particular prescriptions. For, the basic norm, from its purely logical existence, is constitutively incapable 77 Kelsen, RR2, 197: “Als höchste Norm muß sie vorausgesetzt sein, da sie nicht von einer Autorität gesetzt sein kann, deren Kompetenz auf einer noch höheren Norm beruhen müßte. Ihre Geltung kann nicht mehr von einer höheren Norm abgeleitet werden, der Grund ihrer Geltung nicht mehr in Frage gestellt werden.” 78 Kelsen, RR2, 197: “Alle Normen, deren Geltung auf ein und dieselbe Grundnorm zurückgeführt werden kann, bilden ein System von Normen, eine normative Ordnung. Die Grundnorm ist die gemeinsame Quelle für die Geltung aller zu einer und derselben Ordnung gehörigen Normen, ihr gemeinsamer Geltungsgrund. Daß eine bestimmte Norm zu einer bestimmten Grundnorm gehört, beruht darauf, daß ihr letzter Geltungsgrund die Grundnorm dieser Ordnung ist. Diese Grundnorm ist es, die die Einheit einer Vielheit von Normen konstituiert, indem sie den Grund für die Geltung aller zu dieser Ordnung gehörigen Normen darstellt.”

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of furnishing a rationale for obedience to the law.79 The Kelsenian position cannot have recourse to morality, although it explicitly recognizes the difference between positive law and absolute justice.80 However, the orientation to the question of absolute justice is to engage in an essentially empty reflection, only a relative moral value can ever be attributed to any law. Thus, it is absurd to claim under the precondition of an absolute moral value that law should be moral.81 3.2 Some Problems of the Doctrine of the Basic Norm Kelsen has been criticized on the ground that one cannot derive anything from an empty basic norm. The basic norm would have to be contingent – in any legal system in which normativity is ensured – and therefore superfluous.82 But this objection exaggerates the meaning of the concept of basic norm. Kelsen does not aim at a material deduction of the individual legal norms from the basic norm. Rather, the basic norm provides for the normativity of a legal ­system. It is the ultimate ground of the legal “ought.” For jurisprudence, the basic norm has merely an epistemological function, namely, as the presupposition of knowledge of law qua “ought,” qua norm. In contrast to the attribution of methodological redundancy to the basic norm, an alternative critical position has placed into the question the alleged purity of the basis norm.83 The validity of a legal system at a certain place and at a certain time depends on its efficacy, and, thereby, on a social fact, that

79

Hart, for example, considers this question as one to be addressed to morality, cf. H.L.A. Hart, The Concept of Law, 2nd ed., (Oxford: Oxford University Press, 1994): 207–211. 80 Cf. Kelsen, RR1, 12–18. 81 Kelsen, RR2, 66–69. For further analysis, see Stanley L. Paulson “The Great Puzzle: Kelsen’s Basic Norm,” in Kelsen Revisited: New Essays on the Pure Theory of Law, ed. L. Duarte d’Almeida et al., (Oxford: Hart Publishing, 2013): 43–62, 47–49. According to Alf Ross, “Validity and the Conflict between Legal Positivism and Natural Law,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 147–163, 160, legal validity seems to lead to a moral obligation to comply with legal norms – but, the question arises, is this still pure? For further discussion, see Stanley L. Paulson, “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law? Rejoinders to Robert Alexy and Joseph Raz,” in Institutional Reason. The Jurisprudenz of Robert Alexy, ed. Mattheis Klatt, (Oxford: Oxford University Press, 2013): 61–111, 66–71. 82 Cf. Hart, Concept, 293: “needless reduplication.” 83 Cf. Eugenio Bulygin, “An Antinomy in Kelsen’s Pure Theory of Law,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 297–315, 302–303.

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is, an “is.”84 It is only on the basis of this efficacy that the Augustinan band of robbers may be distinguished from a legal order.85 Consequently “is” and “ought” would be confounded. However, if one interprets a command as legal, it is p ­ resupposed, according to Kelsen, that the person in question is entitled to issue the command with legal force. Kelsen does not derive the validity of the law from facts only. Rather, he introduces a normative premise – even though his legal positivism relapses, practically speaking, into a theory of power: due to a lack of distinctive, material features to differentiate from the realm of nonlaw, the law follows power.86 If one does not elect to base the validity of norms on a certain content, as in the different natural-law doctrines, it appears that no other possibility arises to postulate a point or site of unconditioned authorization. To this extent, however, the basic norm is replicative: from the social norms qua fact the inference to the basic norm is carried out – to interpret the facts as legal norms.87 This leads, in turn, to the question of the formulation of the basic norm.88 Here, two possibilities exist. First, the basic norm might authorize a concrete legislator. Then, one can differentiate between different basic norms that are addressed to different legislatures. In this case, each basic norm is relative, namely, in its reference to a concrete legal system. However, its justification becomes problematic, for a certain basic norm is inferred from the fact of a certain legislation. This seems to be an “is”-“ought” fallacy. What is more, this is 84 85 86

87 88

See Kelsen, RR2, 215–221, 219: “Setzung und Wirksamkeit sind in der Grundnorm zur Bedingung der Geltung gemacht.” – “Postulation and efficacy are combined to the condition of validity by the basic norm.” Cf. Kelsen, RR2, 49. “To the eternal question what is behind the positive law,” Kelsen replies: “He who is looking for the answer will find, I assume, neither the absolute truth of metaphysics nor the absolute validity of natural law. At him who raises the veil and does not close his eyes, the Gorgon’s head of power stares.” – “Wer die Antwort sucht, der findet, fürchte ich, nicht die absolute Wahrheit einer Metaphysik noch die absolute Geltung eines Naturrechts. Wer den Schleier hebt und sein Auge nicht schließt, dem starrt das Gorgonenhaupt der Macht entgegen.” This statement is contained in: Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer, Vol. 3, (Berlin/Leipzig: Walter de Gruyter, 1927): 54–55; cf. also RR2, 67; this is very close to Hobbes’ “Auctoritas non veritas facit legem.” Cf. W. Kersting, “Neukantianische Rechtsbegründung. Rechtsbegriff und richtiges Recht bei Cohen, Stammler und Kelsen,” in Neukantianismus und Rechtsphilosophie, eds. Robert Alexy et al., (Baden-Baden: Nomos, 2002): 23–68, 63–64. Kelsen offers in his works very different formulations of the basic norm. For more details see Stanley L. Paulson, “Die unterschiedlichen Formulierungen der ‘Grundnorm,’” in Rechtsnorm und Rechtswirkichkeit. Festschrift für Werner Krawietz zum 60. Geburtstag, eds. Aulis Aarnio, Stanley L. Paulson, and Ota Weinberger, (Berlin: Duncker & Humblot, 1993): 53–74.

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a confusion of terms: an “ought” – here: the basic norm – cannot refer to a fact, that is, what has already happened, but only to something that does not yet exist. Secondly, the basic norm could function for any potential legislator: “You can legislate!” Then, we have only one basic norm, the application of which is contingent and relative – analogous to the principle of causation. The Kelsenian response to these potential difficulties remains obscure. Since the basic norm constitutes the unity of a legal order89 and since, in fact, many different states with different legal systems exist, it would appear logical to suppose that there are different basic norms for every single state.90 This is incompatible with the assumption of the basic norm as “transcendentallogical precondition.”91 It is different with the assumption of the primacy of international law.92 Here, the chain of legitimization is proceeds in this direction: basic norm → international law → principle of sovereignty → national legal orders.93 This particular argumentative procedure would appear to render the problem of transcendental preconditions less intractable (I will return to this later). Yet, Kelsen also considers a primacy of national law structurally plausible.94 In this case, every single legal order should be based on a separate basic norm, from which international law could be derived – a strange idea. At first, Kelsen held that, based on a primacy of national legal order, only one single state could be assumed. All other states would have to be identical, because they must be seen as derived legal orders.95 However, this assumption leads “to a negation of the law as such and consequently of the knowledge of law, of the

89 90

See again Kelsen, RR2, 197. For criticism, see Bulygin, “Antinomy,” 310–312. Cf. the interpretation by Joseph Raz, “Kelsen’s Theory of the Basic Norm,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 47–67, 48–49, 63–64. 91 Kelsen, RR2, 204. 92 CF. Kelsen, RR1, 119, 147–150. 93 Cf. Hans Kelsen, Allgemeine Staatslehre, (Berlin: Julius Springer, 1925): 126–128; “Sovereignty,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 525–536, 528–529. 94 Cf. Hans Kelsen, “Die Einheit von Völkerrecht und staatlichem Recht,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 19 (1958): 234–248, 235–238; RR2, 333–336; for a convincing criticism see Joseph Starke, “Monism and Dualism in the Theory of International Law,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 537–552, 546–548. 95 Kelsen, AS, 120–121.

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jurisprudence.”96 Anyway, the very intricate problems of Kelsen’s legal monism cannot be discussed in depth here.97 Furthermore, the integration of the basic norm in Kelsen’s concept of norms raises some difficulties. At first, it seems doubtful whether the concept of empowerment can be incorporated in the concept of “ought.”98 Kelsen himself applies “ought” to the whole range of deontic modalities, command as well as to authorization and permission: “By ‘ought’ which the statement about a norm expresses, all three normative functions are designated.”99 Thus, the “ought” should not be taken too literally. This interpretation acquires additional pertinence in relation to the concept of coercive norms. The initial appearance is of a lack of correspondence: the basic norm does not have the form of a relation in which the matter of fact is accompanied by a sanction. In other words: the basic norm is not a conditional. It does not order, but it confers a power, namely, to issue norms.100 In this respect, the hierarchy of norms should be seen as a chain of authorizations, until finally the criminal law confers a power to the judge to impose a penalty, and, accordingly, the civil law to order an executory payment.101 Nevertheless, the basic norm cannot be considered as an “act of will, directed at an ‘ought’” – because a factual act of will needs the empowerment by a higher norm in order to be interpreted as law. The impossibility to trace back the basic norm to a – factual – act of will102 was, in the final period of Kelsen’s work, acknowledged through the 96 Kelsen, AS, 132: “Negation des Rechts überhaupt und sohin der Rechtserkenntnis, der Rechtswissenschaft”; see also RR1, 141. Later, in RR2, 343–345, this concern no longer appears, but Kelsen now holds, that one could “decide” between the primacy of international law and the primacy of national law as equivalent alternatives. 97 For further discussion, see H.L.A. Hart, “Kelsen’s Doctrine of the Unity of Law,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 553–581. 98 Cf. Hart, Concept, 28–33. 99 Kelsen, RR2, 81. 100 Cf. Kelsen, RR1, 64; RR2, 199, 202–203, 219; for this interpretation, see Stanley L. Paulson, “An Empowerment Theory of Legal Norms,” Ratio Juris 1 (1988): 58–72, 69–70; “The Weak Reading of Authority in Han’s Kelsen’s Pure Theory of Law,” Law and Philosophy 19, no 2 (2000): 131–171, 139–155.; for a criticism see Robert Alexy, “Hans Kelsens Begriff des relativen Apriori,” in Neukanianismus und Rechtsphilosophie, eds. Robert Alexy et al., (BadenBaden: Nomos, 2002): 179–202, 188–190. 101 Cf. Kelsen, RR2, 26, 47, 52 et passim; see, also, the detailed analysis by Paulson, “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law?,” 78–92. 102 The same problem may be the case for the hypothesis of a historical first constitution from which, according to Kelsen (RR1, 65–66; General Theory of Law and State, (Cambridge: Harvard University Press, 1945): 115–116; RR2, 203), all following legal orders can be – more or less – derived.

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r­ edesignation of the basic norm: from a logico-transcendental condition to a fiction. Now the basic norm is a fictitious act of will.103 In this transformation the status of a legal theory of positive law is also profoundly affected. However, in this unfinished, posthumous General Theory of Norms (Allgemeine Theorie der Normen) it remains unclear whether all trace of the former conception of the basis norm has been erased.104 In this lack of clarity one can understand the unstable combination of the attempt to derive an specific normative logic, through a critical engagement with traditional propositional logic and recourse to an far earlier source in the development of the Kelsenian project – the theory of fictions in the work of Hans Vaihinger.105 Here, the attempt is, arguably, to combine the heuristic device of the fiction with the elaboration of a distinct logic of norms. However, it is utterly impossible to deduce anything for social reality from a fiction. A fiction refers to something non-existent.106 Thus, any possible world of law would only remain fictitious as a logical world. In this attempt, the intial concern of the Pure Theory to delimit questions of positive law to questions of logical coherence is retained, but the character of the theory of logic is one which is further detached from the comprehension of social reality as a world of law. But law is not concerned with fiction but with a certain interpretation of the social reality. An “ought,” in its essential meaning is practical, and can never be reduced, without remainder, to an object of mere logico-empirical knowledge. These difficulties can potentially be overcome by relinquishing the Kelsenian conception of the basic norm as a legal norm – an act of will directed at an “ought” or a connection of a matter of fact with a sanction. The position and function of the basic norm is shifted from one which establishes the law, to one which explicates social facts as law. The external or extrinsic position of 103 Kelsen, atn, 206–207 with reference to Hans Vaihinger, Die Philosophie des Als Ob: System der theoretischen, praktischen und religiösen Fiktionen der Menschheit auf Grund eines idealistischen Positivismus, 7./8. edn., (Berlin: Reuther & Reichard, 1922). In a similar manner, Robert Walter, “Der gegenwärtige Stand der Reinen Rechtslehre,” Rechtstheorie 1 (1970): 69–95, 80 states, coercive orders are to be interpreted “as if the would be normative” – although they are not in fact? 104 Cf. Stanley L. Paulson, “Das Ende der Reinen Rechtslehre?,” Zeitschrift für Rechtsphilosophie 11 (2013): 16–37, 25–26. 105 See Kelsen, „Zur Theorie der juristischen Fiktionen. Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob“, Annalen der Philosophie 1 (1919): 630–658. 106 Cf. Alexander Aichele, “Von der Fiktion zur Abstraktion, Nikolaus Hieronymus Gundling über mögliche Urteilssubjekte am Beispiel seiner Auseinandersetzung mit Dadino Alteserras Begriff der persona ficta,” Archiv für Rechts- und Sozialphilosophie 96 (2010): 516. For example, Jabberwocky is fictitious, see Lewis Carroll, Through the Looking-Glass, and What Alice Found There (Macmillan, 1871).

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the ­basic norm, insofar it stands outside of the law, generates its explanatory capacity. This reinterpretation is, however, one which can be considered to develop a number of passages in Kelsen’s work.107 As Paulson shows in his recent essay, the conceptual candidate for this reinterpretation is the Kelsenian concept of peripheral imputation which leads from the realm of facts to the basic norm, namely, conferring upon an event a normative meaning.108 3.3 Issues of Law: The Person and Individuals’ Rights Kelsen defines the person as the endpoint of (central) imputation.109 As in Kant, the person is legally constituted in virtue of the fact that something can be imputed to it. The biological classification “human being” is, per se, relevant only for natural science. A human being does not become a legal personality until imputation takes place. With it all – ostensible – commonalities end. While Kant employs the concept of imputation with material criteria, Kelsen’s concept remains merely formal.110 Whilst Kant postulates the idea of a free will,111 Kelsen seeks to avoid the problem of autonomy; and, he states: “That the subject of a moral or legal order is ‘free,’ means that it is the endpoint of a possible imputation based only on this normative order.”112 Therefore, ­something is imputed as an action to a person not merely because one acts with a free 107 Cf. Hans Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, (Berlin: Pan-Verlag Rolf Heise, 1928): 12: “[Die Grundnorm] hebt nur ins Bewußtsein, was alle Juristen … tun, wenn sie … das ihrer Erkenntnis Gegebene nicht als Tatsache der Macht, sondern als Recht, nicht als bloßes Faktum, sondern als Norm … verstehen.” – “[The basic norm] simply raises to the level of consciousness what all jurists are doing … when in conceptualising their object of inquiry … not as a matter of power but as law, not as simple fact but as norm.” See also RR2, 209. 108 Paulson, “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law?,” 106–111, who utilizes the term “nomological normativity.” 109 Cf. Kelsen, RR1, 52–53; RR2, 97. However one should bear in mind that Kelsen uses different concepts of imputation; for details see Stanley L. Paulson, “Die Zurechnung als apriorische Kategorie in der Rechtslehre Hans Kelsens,” in Zurechnung als Operationalisierung von Verantwortung, eds. Matthias Kaufmann and Joachim Renzikowski, (Frankfurt am Main: Peter Lang, 2004): 93–120, 93–96, 100–107. 110 For details see Joachim Hruschka, “Die Zurechnungslehre Kelsens in Vergleich mit der Zurechnungslehre Kants,” in Hans Kelsen. Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts, eds. Stanley L. Paulson and Michael Stolleis, (Tübingen: Mohr Siebeck, 2005): 2–16. 111 And therewith in no way utilizes the heuristic device of a fiction, as Kelsen, RR2, 99 fn. * states. 112 Kelsen, RR2, 97: “Daß der einer Moral- oder Rechtsordnung unterworfene Mensch ‘frei’ ist, bedeutet, dass er Endpunkt einer nur auf Grund dieser normativen Ordnung möglichen Zurechnung ist.” For further analysis see Paulson, “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law?,” 105–106.

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will. For Kelsen, “imputation” is a synonym for freedom, and “freedom” has no meaning distinct from imputation. For a Pure Theory of Law, this position is the corollary a system of positive law which accepts any imaginable content as law. The adoption of this position, as the resolution of the division between human person and legal person, is one in which the legal person becomes a ­heuristic device to describe the particular set of rights and obligations which have been attributed by positive law. The question arises, however, as to ­whether this resolution is the effective detachment of all reference to the human person, and its potential for the resumption of the pre-modern position of the Middle Ages, for example, in which animals that supposedly caused mischief were sentenced to death.113 In this way, the concept of penalty, as a specific response to a crime is lost and, with it, the capacity to distinguish it from other forms of sanction (for example confinement in a psychiatric clinic), ordered in the case of those of unsound mind. Furthermore, the concept of “ought” is effectively altered, as a norm is unable to be considered as an order to an individuum to act in a certain manner. For, this only continues to have meaning if the addressee is also accorded the capacity to decide against compliance.114 If one denies free will as the basis for imputation, norms revert to predictions. Then, there is no difference between “A shall be punished” and “It will rain tomorrow.” Hence, the separation between a legal science of positive law and legal realism, in the form familiar from Oliver Wendell Homes, becomes difficult to discern. The difficulties with the Kelsenian conception of the legal person extend to the absence of individual rights which pre-exist or are more fundamental than the system of positive law. The absence is initially to be explained by the ­objectivity of the Kelsenian concept of law. For Kelsen, rights understood as preexisting rights are ideologically suspect.115 In addition, individual participation in the law-making process is not conceptually necessary.116 However, Kelsen’s fear that the objective law lends itself to subjectification retains, despite its 113 For details, see Peter Dinzelbacher, Das fremde Mittelalter. Gottesurteil und Tierprozess, (Essen: Magnus Verlag, 2006): 103–156. On the other hand, environmentalists plead for the recognition of animals and plants as legal persons, cf. e.g. Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects,” California Law Review 45 (1972): 450–501; for a contrary argument, see Christian Krijnen, “Tiere ohne Rechte und Menschen mit Pflichten,” in Tiere ohne Rechte, eds. Jan C. Joerden and Bodo Busch, (Berlin et al.: Springer, 1999): 83–99. 114 Hence, the purpose of an empowerment: the addressee of the empowerment can, within the limits conferred by law, freely decide whether and how to exercise their legal authority. 115 Kelsen, RR1, 42–44. 116 Cf. Kelsen, RR1, 48–49; RR2, 134–135.

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explicit rejection of all notions of the social contract, an unacknowledged degree of connection to the Kantian conceptual framework. For Kant, (subjective) rights cannot be justified individually: By an individual act of my own will I cannot obligate any other person to abstain from the use of a thing in respect of which he would otherwise be under no obligation; and, accordingly, such an obligation can only arise from the collective will of all united in a relation of common possession.117 Thus, the (subjective) right is also objective for Kant, namely, in the meaning of reciprocal general legislation as a precondition for the possibility of “mine” and “thine.” Or, in other words: there is no (subjective) right outside a positive legal system.118 The further explanation for this absence concerns the Kelsenian interpretation of legal norms as coercive norms. A legal norm links concrete behaviour with a sanction, that is, with a penalty or civil remedy.119 Beyond these two types legal norm, differentiated by the type of sanction, Kelsen does not recognize any other types of legal norms. For the legal science of positive law, norms of conduct are outside its domain, if the misconduct is not tied to a sanction or they are dependent upon the sanctioning norm.120 However, this 117 See Kant, MdS, AA vi, 261 on property: “Durch einseitige Willkür kann ich keinen Andern verbinden, sich des Gebrauchs einer Sache zu enthalten, wozu er sonst keine Verbindlichkeit haben würde: also nur durch vereinigte Willkür Aller in einem Gesamtbesitz.” 118 Therefore, everyone is obliged by reason to found a civil state of law. See Kant, MdS, AA vi, 264: “Der Vernunfttitel der Erwerbung aber kann nur in der Idee eines a priori vereinigten (notwendig zu vereinigenden) Willens aller liegen, welches hier als unumgängliche Bedingung (conditio sine qua non) stillschweigend vorausgesetzt wird.” – “The rational title of aquisition can therefore only lie in the idea of the a priori united (necessarily to be united) will of all, which is here tacitly assumed as an indispensable condition (conditio sine qua non).” 119 Kelsen, RR2, 114–116. 120 Kelsen, HS, 270–299; RR2, 116–120 in contrast to Jeremy Bentham, Of Laws in General, ed. H.L.A. Hart, (London: Athlone Press, 1970): 139–145. The modification of this conception is shown in detail by Stanley L. Paulson, “Zwei Wiener Welten und ein Anknüpfungspunkt: Carnaps Aufbau, Kelsens Reine Rechtslehre und das Streben nach Objektivität,” in Logischer Empirismus und Reine Rechtslehre, eds. Clemens Jabloner and Friedrich Stadler, (Wien/New York: Springer, 2001): 137–190, 174–183: from the hypothetically formulated coercive norms (see Hauptprobleme der Staatsrechtslehre, 1911, 234–237) to the empowerment to impose sanctions (see gtls, 61–64; RR2, 82–83) in Allgemeinen Theorie der Normen, posthum published in 1979. There, Kelsen accepts, in addition to the (primary) norm which prescribes the imposing of a sanction as an “ought,” the existence of secondary

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does not entail the exclusion of (subjective) rights from the Kelsenian framework but, rather, their comparatively inessential character in regard to the primacy accorded to the concept of legal obligation. The emphasis upon a theory of coercive norms indicates the essential relationship between a right and its enforcement. However, this emphasis is the result of a problematic conceptual reversal: a certain form of behaviour is not a legal wrong simply because it is tied to a sanction. Rather, it must be shown first which right is harmed by the sanctioned behaviour. Legal force follows from the harm of a (subjective) right. Here, the comparison with Kant is instructive: If a certain exercise of freedom is itself a hindrance to the freedom that is, according to universal laws, it is wrong; and the compulsion or constraint which is opposed to it is right, as being a hindering of a hindrance to freedom, and as being in accord with the freedom which exists in accordance with universal laws.121 In contrast, Kelsen at the outset rejects every material concept of crime.122 He also underestimates the function of norms of conduct. They do not serve solely as conditions for sanctions. They give effect to a necessary orientation for the living together in a society by introducing a framework of expectations of behaviour.123 An example is rules relating to road traffic. Every user of the roads must be sure that the others observe the traffic rules as well. Otherwise the situation for all road users would become impossible. When a visitor to England from the Continent drives on the left, this is not only the result of a fear of a penalty, but also because driving on the right could cause harm to himself and others. Finally, Hartian legal positivism, indicated the explanatory weakness of the Kelsenian approach through the demonstration that the legal norms which prescribe a certain behaviour of the legal persons as an “ought” (pp. 43, 115–116). Furthermore, Kelsen denotes prescriptions and permissions as normative functions (ibid., pp. 76–92). 121 Kant, MdS, AA vi, 231: “Wenn ein gewisser Gebrauch der Freiheit selbst ein Hinderniß der Freiheit nach allgemeinen Gesetzen (d.i. unrecht) ist, so ist der Zwang, der diesem entgegengesetzt wird, als Verhinderung eines Hindernisses der Freiheit mit der Freiheit nach allgemeinen Gesetzen zusammenstimmend, d.i. recht.” For, further discussion, see Authur Ripstein, “Hindering a Hindrance to Freedom,” Jahrbuch für Recht und Ethik 16 (2008): 227–250. 122 Cf. Kelsen, RR2, 118. 123 Cf. Hart, Concept, 38–40; Joseph Raz, Practical Reason and Norms, (Oxford: Oxford University Press, 1975): 157–162. For a critical analysis of this objection, see Michael Pawlik, Die Reine Rechtslehre und die Rechtstheorie H.L.A. Harts, (Berlin: Duncker & Humblot, 1993): 79–85.

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consequence of the violation of norms of authorization – for example the formal requirements of a testimony – is neither a penalty nor the execution of a sanction but a nullity.124 Hence, the Kelsenian project of a legal science of positive law appears to result in the formulation of a set of statements about the main issues of law which involve a simplification of the character of law.125 3.4 How Kantian is the Pure Theory of Law? The apparent affinity with Kant derives from the Kelsenian attempt to ­elaborate universally valid principles determining a theory of law detached from the specific character of any particular legal system. The similarity is merely apparent, however, as upon more detailed analysis significant differences become evident which place into question the capacity to designate Kelsen’s Pure Theory of Law as Kantian in any meaningful sense. At several points Kelsen refers to the idea of “ought” as a “relative a priori.”126 “Ought” is in this respect a priori, for it constitutes an object, namely, the norm as the meaning of an act of will, and with it the positive law. Thus, he tries to apply Kant’s transcendental method, as he understands it, to a theory of ­positive law.127 However, Kelsen does not aim at any material principles of practical reason as developed by Kant in the Metaphysics of Morals. Kelsen rejects these efforts. Rather, he is orientated by the question, “what is positive law – as an object of knowledge, as an object of jurisprudence – and thus: how can it be possible.”128 Hence, whilst Kant is interested in law as obligation, Kelsen ­confines his interest to the demarcation of law as positive law. The consideration of the Kelsenian project on the Kantian terrain of the theoretical reason – the domain of the Critique of Pure Reason – is not a shift which confers a comparative solidity to the Kantian foundations of the Pure Theory. For, the 124 Hart, Concept, 33–35. 125 For greater detail, see Stefan Hammer, “Braucht die Rechtstheorie einen Begriff vom subjektiven Recht?,” in Hans Kelsen. Staatsrechtslehrer und Rechtstheoretiker des 20. Jahr­ hunderts, eds. Stanley L. Paulson and Michael Stolleis, (Tübingen: Mohr Siebeck, 2005): 176–190, 183–188 using (subjective) rights as an example. 126 Cf. Kelsen, RR1, 23; for further analysis see Alexy, “Hans Kelsens Begriff des relativen Apriori.” 127 Hans Kelsen, “The Pure Theory of Law, ‘Labandism,’ and Neo-Kantianism. A Letter to Renato Treves,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 169–175, 171–172. 128 Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, 66: “Wie ist positives Recht – als Gegenstand der Erkenntnis, als Objekt der Rechtswissenschaft, - und sohin: wie ist diese möglich.”

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potential for the Kelsenian assertion of an addition to Kant’s table of categories immediately confronts the explicit Kantian declaration of its completeness.129 Nevertheless, there is a fundamental difference between t­heoretical reason, as a precondition for the knowledge of nature, and practical reason under the idea of freedom. “Ought,” obligation, norms – those are not objects of “empirical knowledge.”130 Kelsen was conscious of this difference, but it results in a resolute rejection of practical philosophy. In this context, it is interesting to ask why Kelsen calls the a priori “relative” – almost as if he had not trusted his own concept. The interpretation of the “empirical material”131 as law, Kelsen argues, implies the basic norm. In other words: for Kelsen, the “ought” remains forever relative, because it cannot claim – as a legal “ought” – absolute binding force while, in contrast, the categorical imperative – as a proper “ought” – follows necessarily from reason. The relativization leads to another problem. Kelsen defines the basic norm as a “transcendental-logical precondition,”132 as a transcendental premise for the knowledge of law in its normativity. Paulson has shown that transcendental premises work only if they are necessary. This is the case only if one can prove that every other substantiation is excluded.133 The very notion of a relative a priori cannot be a transcendental premise, for one can consider the matters differently, for example, by stating material principles for the validity of law from a natural law position. From this analysis, it becomes evident that the Pure Theory of Law encounters significant difficulties in maintaining the attribution Kantian. The e­ xplicit rejection of Kantian practical reason is accompanied by the incapacity of legal cognition to establish a fundamental coherence with Kantian theoretical 129 Kant, KrV, aaiii, B 105–106. 130 Cf. I. Kant, Kritik der praktischen Vernunft (1788), in: Kants Gesammelte Schriften, edited by the Königlich Preußischen Akademie der Wissenschaften. First Division, Volume 5, (Berlin: Georg Reimer, 1913): 1, 65–66. See also, Stefan Hammer, “A Neo-Kantian Theory of Legal Knowledge in Kelsen’s Pure Theory of Law,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 177–194, 186; Gerhard Luf, “On the Transcendental Import of Kelsen’s Basic Norm,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 221–234, 227–232. 131 Kelsen, RR1, 66. But there are other interpretations, for example, if one describes the Shari’ah in Iran from Hart’s external point of view (Concept, 89–91) without accepting its legitimacy. 132 Kelsen, RR2, 203–209. 133 See Stanley L. Paulson, “Lässt sich die Reine Rechtslehre transzendental begründen?,” Rechstheorie 21 (1990): 155–179, 168–179; “The Great Puzzle: Kelsen’s Basic Norm,” 51–52.

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reason. However, if the Kantian glitter is removed from the Pure Theory of Law, this is not in itself a failure of the Kelsenian project. One who wishes to preserve the specific normativity of the law to justify its validity cannot be ­satisfied by confining the notion of normativity to the recognition and observance of the law by legal officials.134 In addition, and as an integral element, the application of the law as a mere fact is accompanied by the belief in its legitimacy. Not only “that’s the way it is,”135 but this is the distinctiveness of law. However, the statement that someone thinks he has to obey a rule is not identical with the “ought” of the norm.136 For the latter, the reference to the basic norm is essential. The “relativity” follows from the material itself, the positive law. For knowledge of positive law – the positive law itself – the basic norm is an a priori category. The further task of differentiating between positive law and “just” law remains. The Kelsenian project, as a legal science of positive law, is unable to establish the necessity for the limitation of jurisprudence to positive law. 4

A Plea for the Coexistence of Positive Law and Natural Law

As the comparison between Kant and Kelsen shows, each takes up a different concept of law. For Kelsen, the restriction to positive law is clear, for his doctrine of “purity” serves to reject every species of morality. Without any material requirements imposed on the law, all that is left is the positivistic species of the act of law-making, which Kelsen completes with normativity via his doctrine of a basic norm. Conversely, Kant in his Metaphysics of Morals elaborates the theory of just law in a republican, constitutional state. A state that reflects the rule of law cannot be thought of as a casual, contingent product of human lawmaking.137 Rather, its inner values are essential. How can this discrepancy be solved? Is there just one “correct” concept of law? 134 Cf. Hart’s “internal point of view” (Concept, 51–61). 135 The phrase is taken from the track of Monty Alexander Live in Holland, recorded 10 March 1977 at “De Boerenhofstede,” Laren, Holland. Monty Alexander (piano), John Clayton (bass), Jeff Hamilton (drums). 136 The question, however, is whether both aspects can be combined, perhaps in the form of a “legal point of view,” cf. Joseph Raz, “The Purity of the Pure Theory,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski-Paulson, (Oxford: Clarendon Press, 1998): 237–252, 242–249. 137 Remarkably, Kelsen as well emphasizes the importance of a constitution (see “Die Funktion der Verfassung,” in Die Wiener Rechtstheoretische Schule, eds. Hans R. Klecatsky, René Marcic and Herbert Schambeck [Stuttgart: Franz Steiner Verlag 2010], Vol. ii, 1615–1622), and seeks to defend the primacy of a constitutional court against the primacy accorded to

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For a number of reasons, I seek to emphasize the pertinence of a complementarity relationship between positive law and natural law. First, a practiceorientated argument: Under a democratic constitution the legislative body enacts the laws. However, the apparent primacy of the legislative body is qualified by the operation of the courts in their determination of the content of a law in every single case. Ronald Dworkin ­defined the position of the courts concisely as an “interpretive concept.”138 However, the courts not only interpret the law but also establish its constitutionality. In the end, the supreme court decides what is valid – and legally ­binding, for every case must come to an end. One who adds to the validity of laws a constraint according to natural law is confronted with the following dilemma: either the legislation or the final verdict of the highest court is always subject to this reservation and, therefore, never really come into force – then the law remains unclear and legal certainty is rendered problematic. Alternatively, the constitutional court is considered to provide the definitive definition of natural law – then the critical impetus of natural law as a ­regulative idea is lost.139 There is simply no standard by means of which the legislator or the courts can be criticized. In the end, such a position is ideologically suspect. Moreover, it is inconsistent, for the validity of natural law per definitionem does not depend on the lawgiver or a court, whether or not they recognize the content of this law. From this initial dilemma: Any application of laws in a state cannot be but positive. Even if natural law is “positivized” in a constitution, at its core it remains intangible.140 Thus, a legal system usually claims that its rules are just. However, it cannot, beyond the mere capacity to assert this claim, satisfy the further demands of this claim for justification.

the position of the president in response to Carl Schmitt (“Wer soll der Hüter der Verfassung sein?” in ibid., pp. 1533–1574). However, from a legal relativism, such as Kelsen’s, there is no possibility to differentiate different legal systems. Apparently, Kelsen hoped that his Pure Theory of Law was elaborated within a coherent, legitimate constitution framework – even though he could not provide a justification for this from the premises of this legal theory. 138 Ronald Dworkin Law’s Empire, (Cambridge/London: Harvard University Press, 1986): 410. 139 Considering a possible progress of knowledge which relinquished all connection with the Stammlerian notion of natural law with changing content – “Naturrecht mit wechselndem Inhalt” (Rudolf Stammler, Wirtschaft und Recht nach der materialistischen Geschicht­ sauffassung, (Leipzig: Verlag von Veit & Comp., 1896): 185). 140 This does not seem to be problematic for Ronald Dworkin (Taking Rights Seriously, [Cambridge: Harvard University Press, 1977]). However, his trick is the omniscient judge Herkules who per definitionem is always right and in this way “la bouche qui prononce le paroles de la loi naturel” (referring to a phrase by Montesquieu).

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An additional consideration is directed to constitutional law and is dogmatic in character. The concept of basic rights and human rights is an integral part of the self-image of modern liberal constitutional societies. Every individual is entitled to these rights – in virtue of being human. They are not the result of benefits bestowed benignly by the authorities. They were not created by the state, but are grounded conceptually and are legally recognized.141 In other words: The juridical person exists before the state – while for Kelsen, as we have seen above, it is positive law which is the sole basis for the determination of the legal person. Put differently: the liberal constitutional state finds its legitimation in accordance with fundamental principles that exist in relation to positive legislation as ethical standards. These standards form a distinct position which enable one to have recourse to them in order to criticize the legal order.142 Whilst Kelsen also developed a theory of the constitution,143 and had a most significant influence upon the elaboration of the Austrian constitution of the First Republic (Bundesverfassung) in 1920, both were orientated by a positivist framework which consciously desisted from specifying fundamental, invariant ethical principles for a constitution. Finally, the idea of natural law itself resists its transformation and implementation into positive law. Positive law is contingent; statutes constantly change. By contrast, the principles of natural law claim timeless validity.144 What can change is human knowledge. This aspect is important. The criticism of the positive law based on natural law criticism of legal positivism gains its practical significance in connection with unjust states. Now it is easy to posit a duty of resistance for subjects from a protected external perspective. After a change of system, coming to terms with an unjust regime is not excluded

141 Cf. art. 1 of the Virginia Declaration of Rights (1776): “All men are by nature equally free and independent, and have certain inherent rights”; art. 2 of the Déclaration des Droits de l’homme et du citoyen (1789): “Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme.” 142 For a similar approach, see Finnis Natural Law. 143 Cf. Kelsen, „Verfassung- und Verwaltungsgerichtsbarkeit im Dienste des Bundesstaates nach der neuen österreichischen Bundesverfassung vom 1. Oktober 1920“, Zeitschrift für Schweizerisches Recht N.F. 52 (1923/24): 173–217; “Die Lehre von den drei Gewalten oder Funktionen des Staates”, Archiv für Rechts- und Sozialphilosophie 17 (1924): 374–408; “Wesen und Entwicklung der Staatsgerichtsbarkeit,” in Die Wiener Rechtstheoretische Schule, eds. Hans R. Klecatsky, René Marcic and Herbert Schambeck, (Stuttgart: Franz Steiner Verlag 2010), Vol. ii, 1485–1532. 144 See Justice Story, in the landmark case United States v. La Jeune Eugenie, 26 Fed. Cas. 832 (Case No. 15.551, c.c.d. Mass., 1822) on criminal liability for slave trade according to international law.

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by a “soft” positivism.145 It is the role of the legislator and not of the courts to state an exception to the prohibition of ex post facto laws.146 This does not seem to raise a problem for the Pure Theory of Law. If any content can be law, the legislative authority can change the prohibition of ex post facto laws as it wishes. Since Kelsen rigidly rejects a material justification of culpability owing to the fact that it would count as natural law, the concept of punishment as the infliction of an evil for a committed crime147 is lost. Remarkably, Kelsen legitimated the Nurenberg Trials against leading representatives of the Third Reich by means of a moral argument: “Justice required the punishment of these men, in spite of the fact that under positive law they were not punishable at the time they performed the acts made punishable with retroactive force.”148 This argument is inconsistent with the purity-claim of his theory. One may argue, with Kelsen,149, that international law which is, as we have seen, prior to national law, can constitute individual responsibility for such illegal acts as starting a war. However, the claim that international law does not know a general rule forbidding laws with retroactive force, whether or not this is true, does not solve the problem but rather shifts it. The concepts of guilt and of punishment are thereby effectively relinquished. By contrast, from the point of view of natural law, this is not retroactive criminal legislation, for a crime against natural law has always been a malum per se which can be determined solely by reason.150 The state is free on the question of whether, and to what extent, it prosecutes such crimes.151 The perpetrator is also not in a position to complain 145 One who focuses on the factual enforcement of law can only argue for a strict positivism which, for logical reasons, cannot allow an exception of the prohibition of ex post facto laws. See, for example, e.g. Günther Jakobs, “Untaten des Staates – Unrecht im Staat,” Goltdammer’s Archiv für Strafrecht 141 (1994): 1, 16–19. 146 Cf. Hart, Concept, 211–212. An example of such a law is art. 7 § 2 echr. 147 See Hobbes, Leviathan, 240 (Chap. 28): “Harme inflicted for a Fact done before there was a Law that forbad it, is not Punishment, but an act of Hostility.” 148 Hans Kelsen, “Will the Judgement in the Nuremberg Trial Constitute a Precedent in International Law?,” The International Law Quaterly 1, no. 2 (1947): 153–171, 164–165; see also Hans Kelsen, “The Rule against Ex Post Facto Laws and the Prosecution of the Axis War Criminals,” The Judge Advocate Journal 2, no. 3 (1945): 8–12. 149 Hans Kelsen, “Collective and Individual Responsibility in International Law with Particular Regard to Punishment of War Criminals,” California Law Review 31, no. 5 (1943): 530–571, 543–544. 150 Cf. Alexander Gottlieb Baumgarten Initia Philosophiae Practicae. Primae Acroamatice (Halae Magdeburgiae, 1760), § 36: “ACTIONES PER SE BONAE, vel MALAE dicuntur, quae cognosci possunt, ut tales, abstrahendo ab omni arbitrio eas vel has, vel illas esse volente.” 151 Cf. Hugo Grotius, De Jure Belli ac Pacis. Libri tres, editio nova, (Amsterdam, 1680), lib. ii cap. xx; for details see Dominik Recknagel, Einheit des Denkens trotz konfessioneller Spaltung, (Frankfurt am Main: Peter Lang, 2010): 208–213.

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about a punishment. It does not, however, appear to be such problematic and difficult situation for the coexistence of positive law and natural law that the democratically authorized legislator has to make this decision. 5

Concluding Remarks

The predominant orientation of this analysis is practice-orientated in character and, as such, it extends beyond the parameters of the Kelsenian project. For Kelsen, positive law is not a pragmatic phenomenon and judicial status is not a requirement of reason. Rather, it simply exists as efficacious and normative – and the reconstruction of this normativity or, in other words, the foundation of legal practice is a topic which merits the attentive focus of a theoretical legal discussion. These Kelsenian parameters, however, provide no convincing reason for limiting the consideration to the analysis of legal orders in force. Of course, they are to be acknowledged as social facts. However, the question ­remains whether the laws in force are laws which are just. Insofar as the natural law or rational law of Kantian provenance entails a claim to concurrent ­validity, it will nevertheless fail to prevail against power which has reduced legal forms to mere instruments of its direct expression. However, after a change in the political system, the old potentates cannot complain about being ­subject to a higher justice. The constitution and application of these principles of this justice is also a question which can and must be disputed scientifically – notwithstanding the capacity of human reasoning to leave the principles of natural justice unacknowledged. Bibliography Aichele, Alexander. “Von der Fiktion zur Abstraktion, Nikolaus Hieronymus Gundling über mögliche Urteilssubjekte am Beispiel seiner Auseinandersetzung mit Dadino Alteserras Begriff der persona ficta,” Archiv für Rechts- und Sozialphilosophie 96 (2010): 516–541. Aichele, Alexander. “An sich kein Ding: Nietzsches Wirklichkeiten.” In Wirklich. Wirklichkeit. Wirklichkeiten. Nietzsche über “wahre” und “scheinbare” Welten, edited by R. Reschke, 139–162, (Oldenburg: Akademie-Verlag 2013). Alexy, Robert. Begriff und Geltung des Rechts, (Freiburg/München: Alber, 1994). Alexy, Robert. “Hans Kelsens Begriff des relativen Apriori.” In Neukanianismus und Rechtsphilosophie, edited by. Robert Alexy, Lukas H. Meyer, Stanley L. Paulson and Gerhard Sprenger, 179–202, (Baden-Baden: Nomos, 2002).

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Kelsen, Hans. Reine Rechtslehre. 2nd edn., (Wien: Franz Deuticke, 1960b). Kelsen, Hans. „Die Funktion der Verfassung“ (1964). In: Die Wiener Rechtstheoretische Schule, edited by Hans R. Klecatsky, René Marcic and Herbert Schambeck, Vol. ii, 1615–1622, (Stuttgart: Franz Steiner Verlag 2010). Kelsen, Hans. Allgemeine Theorie der Normen, (Wien: Manz, 1979). Kelsen, Hans. Die Illusion der Gerechtigkeit. Eine kritische Untersuchung der Sozialphilosophie Platons, (Wien: Manz, 1985). Kelsen, Hans. “The Pure Theory of Law, ‘Labandism,’ and Neo-Kantianism. A Letter to Renato Treves.” In Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski-Paulson, 169–175, (Oxford: Clarendon Press, 1998a). Kelsen, Hans. “Sovereignty.” In Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski-Paulson, 525–536, (Oxford: Clarendon Press, 1998b). Kersting, W. “Neukantianische Rechtsbegründung. Rechtsbegriff und richtiges Recht bei Cohen, Stammler und Kelsen.” In Neukantianismus und Rechtsphilosophie, edited by Robert Alexy, Lukas H. Meyer, Stanley L. Paulson and Gerhard Sprenger, 23–68, (Baden-Baden: Nomos, 2002). Krijnen, Christian. “Tiere ohne Rechte und Menschen mit Pflichten.” In Tiere ohne Rechte, edited by Jan C. Joerden and Bodo Busch, 83–99, (Berlin et al.: Springer, 1999). Krijnen, Christian. “Kants Kategorien der Freiheit und das Problem der Einheit der Vernunft.” In Kants Kategorien der Freiheit, edited by Stephan Zimmermann, Berlin (forthcoming). Luf, Gerhard. “On the Transcendental Import of Kelsen’s Basic Norm.” In Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski-Paulson, 221– 234, (Oxford: Clarendon Press, 1998). Lundstedt, Anders V. Die Unwissenschaftlichkeit der Rechtswissenschaft. Vol. i, (Berlin: Rothschild, 1932). Maitland, F.W. The Forms of Action at Common Law, (Cambridge: Cambridge University Press, 1962). Mill, John Stuart. On Liberty, (London: John W. Parker and Son, 1859). Olivecrona, Karl. Law as Fact, (Copenhagen: Einar Munksgaard/London: Milford, 1939). Paulson, Stanley L. “An Empowerment Theory of Legal Norms,” Ratio Juris 1 (1988): 58–72. Paulson, Stanley L. “Lässt sich die Reine Rechtslehre transzendental begründen?” Rechstheorie 21 (1990): 155–179. Paulson, Stanley L. “Die unterschiedlichen Formulierungen der ‘Grundnorm.’” In Rechtsnorm und Rechtswirkichkeit. Festschrift für Werner Krawietz zum 60. Geburtstag, edited by Aulis Aarnio, Stanley L. Paulson, and Ota Weinberger, 53–74, (Berlin: Duncker & Humblot, 1993).

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Paulson, Stanley L. “Four Phases in Hans Kelsen’s Legal Theory? Reflections on a Periodization,” Oxford Journal of Legal Studies 18, no. 1 (1998): 153–166. Paulson, Stanley L. “Arriving at a Defensible Periodization of Hans Kelsen’s Legal ­Theory,” Oxford Journal of Legal Studies 19, no. 2 (1999): 351–364. Paulson, Stanley L. “The Weak Reading of Authority in Han’s Kelsen’s Pure Theory of Law,” Law and Philosophy 19, no 2 (2000): 131–171. Paulson, Stanley L. “Zwei Wiener Welten und ein Anknüpfungspunkt: Carnaps Aufbau, Kelsens Reine Rechtslehre und das Streben nach Objektivität.” In Logischer Empirismus und Reine Rechtslehre, edited by Clemens Jabloner and Friedrich Stadler, 137–190, (Wien/New York: Springer, 2001). Paulson, Stanley L. “Die Zurechnung als apriorische Kategorie in der Rechtslehre Hans Kelsens.” In Zurechnung als Operationalisierung von Verantwortung, edited by Matthias Kaufmann and Joachim Renzikowski, 93–120, (Frankfurt am Main: Peter Lang, 2004). Paulson, Stanley L. “Das Ende der Reinen Rechtslehre?” Zeitschrift für Rechtsphilosophie 11 (2013a): 16–37. Paulson, Stanley L. “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law? Rejoinders to Robert Alexy and Joseph Raz.” In Institutional Reason. The Jurisprudenz of Robert Alexy, edited by Mattheis Klatt, 61–111, (Oxford: Oxford University Press, 2013b). Paulson, Stanley L. “The Great Puzzle: Kelsen’s Basic Norm.” In Kelsen Revisited: New Essays on the Pure Theory of Law, edited by L. Duarte d’Almeida, John Gardner and Leslie Green, 43–62, (Oxford: Hart Publishing, 2013c). Pawlik, Michael. Die Reine Rechtslehre und die Rechtstheorie H.L.A. Harts, (Berlin: Duncker & Humblot, 1993). Rawls, John. A Theory of Justice. rev. edn., (Oxford: University Press, 1999). Raz, Joseph. Practical Reason and Norms, (Oxford: Oxford University Press, 1975). Raz, Joseph. “Kelsen’s Theory of the Basic Norm.” In Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski-Paulson, 47–67, (Oxford: Clarendon Press, 1998a). Raz, Joseph. “The Purity of the Pure Theory” In Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski-Paulson, 237–252, (Oxford: Clarendon Press, 1998b). Recknagel, Dominik. Einheit des Denkens trotz konfessioneller Spaltung, (Frankfurt am Main: Peter Lang, 2010). Ripstein, Arthur. “Beyond the Harm Principle,” Philosophy & Public Affairs 34, no. 3 (2006): 216–246. Ripstein, Arthur. “Hindering a Hindrance to Freedom,” Jahrbuch für Recht und Ethik 16 (2008): 227–250.

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Ross, Alf. “Validity and the Conflict between Legal Positivism and Natural Law.” In Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited. Stanley L. Paulson and Bonnie Litschewski-Paulson, 147–163, (Oxford: Clarendon Press, 1998). Rothhaar, Markus. “Menschenwürde qua Autonomie und Anerkennung: Kant und Fichte.” In Menschenwürde und Medizin, edited by Jan C. Joerden, Eric Hilgendorf and Felix Thiele, 73–97, (Berlin: Duncker & Humblot, 2013). Schröder, Jan. “‘Naturrecht bricht positives Recht’ in der Rechtstheorie des 18. Jahrhunderts?” In Staat, Kirche, Wissenschaft in einer pluralistischen Gesellschaft: Festschrift für Paul Mikat, edited by Dieter Schwab, Dieter Giesen, Joseph Listl and Hans-Wolfgang Strӓtz, 419–433, (Berlin: Duncker & Humblot, 1989). Stammler, Rudolf. Wirtschaft und Recht nach der materialistischen Geschichtsauffassung, (Leipzig: Verlag von Veit & Comp., 1896). Starke, Joseph. “Monism and Dualism in the Theory of International Law.” In Normativity and Norms: Critical Perspectives on Kelsenian Themes Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski-Paulson, 537–552, (Oxford: Clarendon Press, 1998). Stone, Christopher D. “Should Trees Have Standing? – Toward Legal Rights for Natural Objects,” California Law Review 45 (1972): 450–501. Thomasius, Christian. Fundamenta juris naturae et gentium, (Hallae et Lipsiae, 1705). Vaihinger, Hans. Die Philosophie des Als Ob: System der theoretischen, praktischen und religiösen Fiktionen der Menschheit auf Grund eines idealistischen Positivismus. 7./8. edn, (Berlin: Reuther & Reichard, 1922). Walter, Robert. “Der gegenwärtige Stand der Reinen Rechtslehre,” Rechtstheorie 1 (1970): 69–95.

Chapter 7

Grounding the Normativity of Law: The Role of Transcendental Argumentation in Kelsen’s Critique of Natural Law Theory Ana Dimiškovska Abstract In this paper, an attempt is made to analyze the argumentative aspects of Kelsen’s critique of Natural Law Theory, as developed in the relevant segments of his Pure Theory of Law, in the framework of the general problem of grounding the normativity of law. This critique is based on the idea that the main limitation of Natural Law Theory is its search for the foundation of validity and justification of the legal order in a transcendent value (justice, peace etc.) or meta-legal authority (God, nature, etc.). On the contrary, according to Kelsen, such foundation could be established only in a transcendental way, that is, by exploring the necessary condition of possibility of existence of that order as a system of objectively valid legal norms describable as the rules of law. The analysis of the role that transcendental argumentation of Kantian (or Neo-­ Kantian) type plays in Kelsen’s critique of Natural Law Theory is undertaken in ­accordance with the thesis that Kelsen’s argumentative strategy involves two successive steps. The first aims at establishing the status of the “basic norm” (Grundnorm) as transcendental-logical presupposition of the normative interpretation of law, emphasizing its ­epistemological and hypothetical character. Then, the second step consists in applying the concept of the basic norm in the reconstruction of a “logically correct” Natural Law Theory, in order to demonstrate the inherent limitations of its absolutist, “metaphysical” pretensions and the necessity of their relativisation.

1 Introduction1 The opposition of the theories of legal positivism and natural law as both explanatory and justificatory paradigms in the theoretical approach to legal 1 The author wishes to thank the editors of this volume for their very valuable and helpful comments on the previous version of this chapter.

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­ henomena has been present in Western legal thought from ancient times unp til today. The twentieth-century legal and philosophical discussions gave new impetus to this old debate, by further elaborating and refining the theses and arguments of positivism as well as those within the tradition of Natural Law. In that theoretical context, Kelsen’s Pure Theory of Law could be seen as an extremely important development of the positivist stance, enriched by specific philosophical, logical, and argumentative elements that had not been deployed in the earlier versions of legal positivism. This concerns, in particular, two novel aspects of Kelsen’s approach: on the one hand, the emphasis he placed on the systematic and normative character of law, as opposed to previous positivist preoccupation with the coercive force of a sovereign power, and, on the other hand, the methodological influence of Kant’s and Neo-Kantian transcendental philosophy that Kelsen has incorporated in his own theory of law. In this chapter, an attempt is made to analyze the argumentative aspects of Kelsen’s critique of Natural Law Theory, as developed in the relevant sections of his magnum opus, Pure Theory of Law.2 This critique is based on the idea that the main limitation of Natural Law Theory is its seeking the foundation of validity and justification of the legal order in a transcendent value (justice, peace etc.) or meta-legal authority (God, nature, etc.), inaccessible to comprehension, beyond a merely subjective belief, in the form of objective, scientific knowledge. On the contrary, according to Kelsen, such foundation could be established only in a transcendental way, that is, by exploring the necessary condition of possibility of existence of that order as a system of objectively valid legal norms describable as the rules of law. The analysis of the role that transcendental argumentation of Kantian (or Neo-Kantian) type plays in Kelsen’s critique of Natural Law Theory is undertaken in accordance with the thesis that two central steps in Kelsen’s argumentative strategy are the following: first, establishing the status of the “basic norm” (Grundnorm) as a transcendental-­logical presupposition of the normative interpretation of law, and, second, applying the concept of the basic norm in the reconstruction of a “logically correct” Natural Law Theory, in order to demonstrate the inherent limitations of its absolutist, “metaphysical” pretensions, and the necessity of their relativization. The analysis presented in the chapter is organized into four sections. The first section is devoted to the elaboration of the fundamental problem shared by both the Natural Law and positivist approach to legal phenomena: the p­ roblem of the grounding of the normativity of law, i.e., explaining and ­justifying the binding 2 As a source for citations and paraphrases from Kelsen’s Pure Theory of Law, throughout the paper, I use the English translation made by Max Knight (Clark, New Jersey: The Lawbook Exchange, 2005), based on the second, revised and enlarged German edition of 1960, of the original work of 1934.

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force of legal norms as forms of potentially coercive regulation of human behaviour. The second section briefly surveys the main Kantian and neo-Kantian leitmotifs incorporated in Kelsen’s theoretical approach, with the purpose of exploring the specific way in which the transcendental perspective has been applied in Kelsen’s Pure Theory of Law. The implications of this particular methodological stance, adopted by Kelsen for his critique of N ­ atural Law Theory, are the object of analysis in the third section of the chapter. Finally, in the fourth section, an attempt is made to assess the merits and the theoretical fecundity of Kelsen’s approach, but also to indicate certain of its limitations. 2

The Grounds of Legal Normativity

Why ought we to behave in the way prescribed by legal norms? How can the law as a system of norms confer rights, impose duties, obligations and sanctions and determine the course of action of human subjects at all? These questions concerning the specific characteristics of law, while initially appearing to be capable of a simple, undemanding response, demarcate the field of a complex controversy centered upon the phenomenon of the normativity of law. This controversy pertains to numerous attempts to explain the binding force that legal norms have for the behavior of human individuals in a social context, as well as the normative import of the fundamental legal concepts, as “right”, “duty”, “obligation”, etc.3 For Spaak the problem of law’s normativity is “the problem of accounting for the nature of the legal ought, the law’s normative force, or (…) the nature of legal reasons for action”.4 Explaining the nature of law’s normativity has been one of the central elements in the perennial confrontation between Natural Law and legal positivism. The conception of normativity of law developed in the framework of legal theories of natural law derives legal normativity from moral normativity. Consequently, this conception of legal normativity can be defined as “the moral conception of law’s normativity”,5 which is based on the idea that “having a

3 See Torben Spaak, “The Normativity of Law,” 83–97 (84) (http://www.jura.uni-freiburg.de/ institute/rphil/rphil/de/downloads/spaak-text). Accessed July 31 2016. 4 Torben Spaak, “Kelsen and Hart on the Normativity of Law,” in Perspectives on Jurisprudence: Essays in Honour of Jes Bjarup, ed. Peter Wahlgren, (Stockholm: Stockholm Institute for Scandinavian Law, 2005), 397–414 (398). See, also, Andrei Marmor, “The Pure Theory of Law”, Sect. 3, in The Stanford Encyclopedia of Philosophy (Spring 2016 Edition), ed. Edward N. Zalta. http://plato.stanford.edu/archives/spr2016/entries/lawphil-theory/. Accessed July 31, 2016. 5 Torben Spaak, “Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification”, Ratio Juris Vol. 16, no. 4 (2003): 469–485 (479); see, also Spaak, “Kelsen and Hart”, 400.

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legal right or obligation is having a special kind of moral right or obligation”.6 According to the notion that prevails in the Natural Law tradition, the binding force of legal norms stems from their essential connectedness with certain fundamental moral values, such as, justice, equity, the common good etc. As D’ Entrèves emphasizes, natural lawyers conceive of law as a means to achieve the values that are not merely the expression of “the standards of a particular group or society” but are believed to be universal standards based upon an invariant or absolute value.7 The theoretical foundation of this conceptualization of law’s normativity originates in the fundamental principles on which Natural Law Theory is based. One of the central ideas of this theory (at least in its traditional form8) is that there is a “higher” or “ideal” law: an independent, objective standard for assessing the quality of the normative content of positive law, in order to determine its degree of fulfillment of the essentially moral demands of these fundamental principles. According to d’Entrèves, [n]o assessment of that theory [i.e., the theory of natural law] would, however, be complete without taking into account what may well be said to constitute its most constant feature all through the ages: the assertion of the possibility of testing the validity of all laws by referring them to an ultimate measure, to an ideal law which can be known and appraised with an even greater measure of certainty than all existing legislation. Natural law is the outcome of man’s quest for an absolute standard of justice.9 The idea of the essential connectedness between law and morality, which, beyond the significant historical and conceptual differences between the ­different forms of the Natural Law theory, is one of the central principles common to them, can be summarized in the so-called “morality thesis”.10 The thesis 6

Ibid. For Spaak, the “moral conception of law’s normativity”, in a contemporary context, is developed in the work of Ronald Dworkin, Lon Fuller, Aleksander Peczenik and other contemporary authors. 7 See Alessandro Passerin d’Entrèves, Natural Law: An Introduction to Legal Philosophy, 2nd Edition (London: Hutchinson University Library, 1970), 79. D’Entrèves further illustrates this shared belief of adherents of Natural Law theory through “randomly chosen” quotations from the works of natural lawyers from different historical periods, such as ‘Law is the furtherance of what is good and equitable’. ‘There is no law unless it be just’. ‘The end of all political association is the preservation of the natural and imprescriptible rights of man’. (Ibid.). 8 See below, and fn.11–13. 9 D’Entrèves, Natural Law, 93. 10 Stanley L. Paulson, Introduction, in Stanley L. Paulson and Bonnie Litschewski Paulson, eds. Normativity and Norms: Critical Perspectives on Kelsenian Themes, (Oxford: Oxford

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is encapsulated in the requirement that “law is to comport with morality”; but the determination of the exact nature of this accordance of law and m ­ orality is, according to Paulson, “a critical question – indeed, so critical that competing natural law theories can arguably be distinguished from one another in terms of their respective answers”.11 This remark is particularly instructive for determining the difference between the traditional and the modern forms of natural law theory. Thus, as ­Brian Bix argues, the traditional natural law theorists (Cicero, Aquinas, Grotius, Pufendorf, Suarez, Hobbes and Locke, together with their modern ­representative in the work of Finnis) are mainly concerned with the status of morality, its origin and consequences for human action in the social and legal context,12 as well as with the implications of the existence of the “higher law” (understood in different manners by different authors), especially in the situations when it enters into potential conflict with the positive law.13 Modern approaches14 to natural law, on the other hand, are more concerned with the “proper understanding of law as a social institution or a social practice”,15 holding that “moral evaluation of some sort is required in describing law in general, particular legal systems, or the legal validity of individual norms”.16 For the purpose this c­ hapter, however, the distinct conceptualizations of the relationship between law and morality within the Natural Law tradition will not be the primary focus of attention, and the “morality thesis” will be considered, without internal differentiation, as one of the central elements of the Natural

11 12 13 14

15 16

University Press, 1998), xxxi; Stanley L. Paulson, “On the Puzzle Surrounding Hans Kelsen’s Basic Norm”, Ratio Juris, Vol. 13, no. 3 (2000): 279–293 (280), referring to Alexy’s Verbindungsthese. Paulson, “On the Puzzle”, 280. Brian Bix, “Natural Law Theory”, in A Companion to Philosophy of Law and Legal Theory, ed. Dennis M. Patterson, 2nd ed. (Oxford: Blackwel Publishers, 2010), 211–227 (219). Ibid., 211. Ibid., 218. By “modern” set of approaches to natural law Bix understands the theories that derive mainly from the 1958 Hart-Fuller Debate in the Harvard Law Review (H.L.A. Hart, “Positivism and the Separation of Law and Morals”, Harvard Law Review Vol. 71 no. 4, 593– 629; Lon L. Fuller, “Positivism and Fidelity to Law – A Response to Professor Hart”, Harvard Law Review Vol. 71 no. 4: 630–672 (1958)). According to Bix, whilst Hart, in his restatement of legal positivism, pleads for a conceptual separation of law and morality, Fuller opposes the sharp separation of these two phenomena, but in a manner that significantly differs from the traditional natural law theories. For Bix, other prominent representatives of modern approach to natural law, in addition to Fuller, are Ronald Dworkin, Michael S. Moore, Lloyd Weinreb, Ernest Weinrib, Deryck Beyleveld and Roger Brownsword and Mark Murphy (see, ibid., 221–226). Ibid., 218. Ibid., 219.

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Law conception, indispensable for the understanding of Kelsen’s critique of Natural Law Theory.17 In contradistinction to the determinant position accorded to morality in this conception of law’s normativity, the positivist approach to law develops a radically different, “strictly legal”18 conception of the normative character of law. The radical difference is introduced through the separation of the “is” question (“What is the law?”), concerned with factual identification of law and permitting its scientific and analytic study, from the “ought” question (“What law ought to be?”) concerned with the normative evaluation of the existing law according to certain independent standards or criteria (procedural and/or substantive). Legal positivists, generally, consider only the first, “is” question as expressing the legitimate preoccupation of the theoretical study of law. Consequently, the authors that share the positivist orientation (especially contemporary proponents19) develop a concept of “legal right or obligation sui generis”20 that is not reducible to a form of moral obligation, but is essentially dependent on the existence of legal rules or norms and their ­application. This ­conception 17

18 19

20

However, not all authors associated with the contemporary conception of natural law accord a central position to considerations of morality in the account of law’s normativity and its capacity to provide reasons for action. Thus, for example, Mark C. Murphy formulates the central claim of natural law jurisprudence without any explicit reference to moral evaluation of law. For Murphy, “[t]he central claim of natural law jurisprudence is that there is a positive internal connection between law and decisive reasons for action: law is backed by decisive reasons for action”. (Mark C. Murphy, Natural Law in Jurisprudence and Politics, (Cambridge: Cambridge University Press, 2009), 1). Indeed, in the subsequent elaboration of this claim he includes what he calls a moral reading of the natural law thesis, on which “a norm’s moral authoritativeness is in part constituted by its being backed by decisive reasons for compliance”; however, Murphy rejects this reading from the outset, “because of its extreme lack of interest”. He accords primacy, instead, to two other readings of the natural law thesis: the strong reading, according to which “a norm’s legal validity is in part constituted by its being backed by decisive reasons for compliance”, and the weak reading, according to which “a norm’s legal non-defectiveness is in part constituted by its being backed by decisive reasons for compliance” (2–3). Spaak, “Legal Positivism”, 479–480; “Kelsen and Hart”, 400. In a similar manner to the division of natural law theories into “traditional” and “modern”, conceptions of legal positivism can be divided into a “classical” conception, developed by Jeremy Bentham and John Austin, in which the concept of a sovereign power and its coercive force plays a central role, and a “contemporary” conception, represented mainly by Herbert L.A. Hart and Hans Kelsen, in which the concept of command is substituted by the concept of norm or rule, and the systematic character of law is strongly emphasized. (Spaak, “Legal Positivism”, 472). See, also, Jules L. Coleman and Brian Leiter, “Legal Positivism,” in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson, 2nd ed. (Oxford: Blackwell, 2010), 228–248. In addition to Kelsen and Hart, Coleman and Leiter include also Jozeph Raz as one of the most important twentieth-century adherents of legal positivism (228). Spaak, “Legal Positivism”, 479–480; “Kelsen and Hart”, 400.

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of the normativity of law is held to be founded upon an entirely distinct ­conception of the relationship between law and morality. Thus, the general positivist stance towards the “law and morality” issue is usually summarized in the so-called “separation thesis”21 or “separability thesis”.22 This thesis, in its general form, asserts that there is no fundamental, conceptual r­ elatedness of law and morality, and that, consequently, the questions c­ oncerning legality and those concerning morality should be kept separate in the study of legal phenomena. In the context of contemporary legal positivism, however, the “separation thesis” is subject to different interpretations, which introduce further differentiation of its adherents into “exclusive” and “inclusive” legal positivists. ­Exclusive legal positivists tend to exclude all connection between law and morality in their determination of law and its validity.23 Inclusive positivists, on the other hand, consider that there is merely no necessary connection between law and morality and thus, that legal positivism can acknowledge a potential legal system or law as one in which its validity is determined by morality.24 One of the main theoretical reasons for shaping the positivist conception epitomized in the “separation thesis” arises from the insight that the rival, moral conception of normativity of law is confronted with serious conceptual problems. Amongst them, of particular importance is the problem generated by the fact that deriving legal from moral normativity presupposes the noncontestable status of moral normativity itself. However, the determination of moral normativity and its binding force is a difficult theoretical task. For it is susceptible to many different, non-definitive solutions, as indicated by the plurality of definitions of normative morality within the framework of traditional and contemporary theories of ethics and law. Hence, to shift the focus 21 22 23

24

Paulson, “On The Puzzle”, 280. Spaak, “Legal Positivism”, 473. See, for example, Andrei Marmor, Positive Law and Objective Values, (Oxford: Oxford University Press, 2001); Joseph Raz, Practical Reason and Norms, (Oxford: Oxford University Press, 1999); Joseph Raz, Ethics in the Public Domain: Essays in Morality, Law and Politics, (Oxford: Oxford University Press, 1996); Scott J. Shapiro, Legality, (Cambridge, MA.: Harvard University Press, 2011). See, for example, Wilfrid J. Waluchow, Inclusive Legal Positivism, (Oxford: Oxford University Press, 1994); Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory, (Oxford: Oxford University Press, 2001); Matthew H. Kramer, Where Law and Morality Meet, (Oxford: Oxford University Press, 2004). This internal division within contemporary legal positivism is itself the result of the interpretation of H.L.A. Hart’s The Concept of Law, (Oxford: Oxford University Press, 1994, 2nd edition) – in particular Chapter ix, entitled “Law and Morals” (185–212) where the specific Hartian rule of recognition acknowledges the possibility that a particular rule of recognition would, in addition to the social facts which it identifies as law, contain reference to morality.

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to the normative force of human morality, does not resolve but, rather, further ­complicates the question of the basis upon which to justify legal normativity. From this overview of contemporary legal positivism, it is evident that both inclusive and exclusive legal positivism resist an immediate and direct connection between law and morality. The Kelsenian position, as a legal science of positive law, insists upon the separation of law and morality through a ­sustained critique of the doctrine of natural law.25 The critique is distinguished by its combination of three central elements. The first one is closely connected with the Natural Law theorist’s search for moral grounds as the justificatory basis of the positive legal order. That search, according to Kelsen, necessarily leads to the presupposition of one universally valid moral order that enables the determination of the content of the purported universal and immutable principles of natural law in an objective, system-independent manner. This search, however, immediately confronts the challenge of relativism, asserting the irreducible difference of human conceptions of values – including the legal values of justice, equity, common good, etc. – which renders it very difficult, if not impossible to speak of universal moral and legal principles, identified, by a process of rational discovery, as an integral aspect of a single, all-encompassing conception of law.26 The relativist argument as the initial objection to the doctrine of natural law is closely connected to the second objection that Kelsen raises which concerns the metaphysical character of natural law. For, the search for an invariant moral foundation is revealed to find the source of this invariance of legal normativity in transcendent entities, inaccessible to a method of objective, scientific knowledge – such as, “God” or “nature”, and, consequently, results in the interpretation of the content of these purported precepts in a manner which is irreducibly different and arbitrary.27 Finally, from the variable, arbitrary content accorded to the precepts of natural law the third main objection arises to Natural Law Theory. This concerns the possibility of its ideological instrumentalization, in which its justificatory 25

26 27

For a detailed analysis and systematization of types of arguments that Kelsen develops against the Natural Law Theory, and the critical reactions to Kelsen’s criticisms by Edgar Bodenheimer (from the position of traditional natural law theory) and Robert P. George (from the position of the new natural law theory), see Pierluigi Chiassoni, “Kelsen on Natural Law Theory: An Enduring Critical Affair”, Revus – Journal for constitutional theory and philosophy of law, 23 (2014): 135–163. Hans Kelsen, Pure Theory of Law, 64–65; see, also, Hans Kelsen, “The Natural-Law Doctrine Before the Tribunal of Science”, The Western Political Quarterly, Vol. 2, no. 4 (1949): 481–513 (484). Hans Kelsen, Pure Theory, 221; Hans Kelsen, “The Natural-Law Doctrine”, 481–482.

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pretensions – i.e., its ambition to evaluate the normative quality of positive law according to the standard of a “higher law” is open to be (ab)used in order to legitimate, in an uncritical way, the existing legal order, claiming its conformity to superior principles derived from the source of postulated supreme, transcendent authority.28 The fundamental character of this critique, which reveals Natural Law Theory as an inherently problematic attempt to provide a moral ground for the normativity of law, returns the focus to adequacy of the traditional positivist position.29 If one isolates the Kelsenian critique of the doctrine of natural law from the wider Kelsenian project, then the task of explaining the phenomenon of law’s normativity is particularly challenging for the adherents of legal positivism. For, once the idea of its moral grounding is rejected, it becomes ­difficult to explain how the law generates specifically legal obligations or provides ­reasons for action of human individuals at all – action which is not merely socially or psychologically, but stricto sensu, normatively justified. It is precisely on this point that the importance and the innovativeness of Kelsen’s approach compared to the traditional versions of legal positivism becomes evident. According to Paulson,30 Kelsen de facto opens the possibility of a new systematization of the possible theoretical approaches to law and enlarges the body of central tenets of classical legal positivism with an 28 29

30

Hans Kelsen, Pure Theory, 69; Hans Kelsen, “The Natural-Law Doctrine”, 513. Here I have in mind the British tradition of legal positivism represented by Jeremy Bentham (An Introduction to the Principles of Morals and Legislation, (Oxford: Clarendon Press, 1907, republished by Dover, 2007); Deontology, together with A Table of the Springs of Action and The Article on Utilitarianism, ed. Amnon Goldworth, (Oxford: Clarendon Press), 1983) and John Austin (The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble, (Cambridge: Cambridge University Press), 1995). Note, though, that Kelsen only discusses this tradition explicitly, very briefly, in his final, posthumously published work, The General Theory of Norms, (translated by Michael Hartney, (Oxford: University Press, 1991), originally published in German under the title Allgemeine Theorie der Normen, (Vienna: Manz, 1979)). Here, Kelsen argues that, despite Bentham’s intention to eliminate Ought from ethics, he cannot himself avoid the use of this concept in his Deontology. According to Kelsen, the fact that “an ought-sentence can be founded, if at all, only on another ought-sentence” represents a “logical necessity, and is no reason for eliminating Ought from ethics” (72–73). Stanley L. Paulson, Introduction, in Paulson and Paulson, Normativity and Norms, xxxi– xxxii; Paulson, “On The Puzzle”, 280–283. The following paragraphs are based on Paulson’s ideas developed in these two cited works, and represent a condensed summary of his position regarding Kelsen’s original contribution to the problem of normativity of law. For a problematization of the attribution of the concept of “justified normativity” to Kelsen’s approach, see Stanley L. Paulson, “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law?”, in Institutionalized Reason: The Jurisprudence of Robert Alexy, ed. Matthias Klatt, (Oxford: Oxford University Press, 2012), 61–111.

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additional thesis, which is referred to as the “normativity thesis”. In addition to the traditional law/morality issue, that resulted in the formulation of the pair of opposing theses – the naturalist “morality thesis” and the positivist “separation thesis” – Kelsen’s approach focuses on another axis of articulation of the relationship between the fundamental elements of the legal phenomenon: the relation between law and fact (most probably, as Paulson suggests, under the influence of South-West Neo-Kantian distinction of fact and value31). Thus, as a result of considering the law/fact relation, another pair of opposite theses obtains: on the one hand, the “facticity thesis”, which claims the inseparability of law and facts and, maintaining that law is a matter of social facts, represents an element of positivist approaches to law; on the other hand, the “normativity” thesis, which claims the “conceptual separability of law and fact”, and – maintaining that the normative dimension of law cannot be reduced to mere social facts – is, at least implicitly, close to the spirit of classical natural law theory. On the basis of these distinctions, the root of the theoretical opposition between the classical versions of Natural Law Theory and the positivist t­ heories of law can be seen in the fact that Natural Law Theory is founded on the combination of the morality thesis (“law and morality are inseparable”) and the normativity thesis (“law and fact are separable”), whilst the so-called “factbased” or “empirico-positivist” legal theories are based on the combination of the separation thesis (“law and morality are separable”) and the facticity thesis (“law and fact are inseparable”).32 In relation to this framework, Kelsen is critically oriented toward both groups of theories – not only towards the natural law theories, but also towards the empirico-positivist theories, because neither of these two groups ­allows the combination of fundamental theses that is, central to understanding the peculiar nature of legal phenomena. As it is convincingly argued by Paulson, the specificity of Kelsen’s own position consists precisely in the (unusual) combination of both the separation thesis, i.e., the idea that legal and moral elements are entirely distinct and should be kept strictly separated in the study of law and the normativity thesis – the idea that the normative import of law cannot be reduced to its factual dimension. Consequently, on Paulson’s interpretation, the Kelsenian project is “a defense of the normativity thesis without the morality thesis, and a defense of the separation thesis without the facticity thesis”.33

31 32 33

Stanley L. Paulson, Introduction, xxxi. See the scheme in Paulson, “On the Puzzle”, 281. Paulson, “On the Puzzle”, 282.

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Thus, the methodological purpose of the first aspect of Kelsen’s project – the “defense of the normativity thesis without the morality thesis” – is the striving to account for the normativity of law and the legal “ought” in a rational, scientific manner, without recourse to metaphysical, meta-legal or other types of entities inaccessible for objective, scientific knowledge. The methodological interest of the first aspect is then complemented by its second aspect – the “defense of the separation thesis without the facticity thesis” – as the effort to maintain the strict separation of law and morality, without relapsing into vulgar reductionism and sociologism, which are unable to conceive of a genuine legal normativity distinct from the bare facts of empirically regulated social life. Thus, the basic methodological maneouvre performed by Kelsen would consist in an ingenuous attempt to avoid the potential resurgence of either a metaphysical or irrationalist grounding of law’s normativity or of its reductionist denial. The further reflection upon, and evaluation of, the coherence and plausibility of the Kelsenian project does not eliminate the impression that Kelsen’s attempt to connect, develop and systematically integrate the separation thesis and the normativity thesis into a coherent theoretical whole, introducing a distinct normative orientation to legal positivism, is an original and challenging intellectual enterprise. One of the most prominent features of this enterprise is the fact that it indicates a path by which to overcome the impasse created by the irreconcilable duality of classical natural law theories and the empiricopositivist legal theories. In a manner analogous to the structure of Kant’s attempt, in the Critique of Pure Reason, to overcome the confrontation of empiricist and rationalist approaches to the problem of knowledge by introducing the transcendental perspective, Kelsen also presents a transcendental instead of transcendent or transcendence-invoking ground for law’s normativity. Within the framework of Kant’s categorical apparatus, the term “transcendent” designates the realm that is inaccessible to our senses or other cognitive capacities, lying beyond the boundary of any possible knowledge. In contrast, the concept of “transcendental” is located in the field of (theory of) knowledge, and, according to Kant, applies to all cognition “that is occupied not so much with objects but rather with our mode of cognition of objects insofar as this is to be possible a priori”.34 34

Immanuel Kant, Critique of Pure Reason, trans. and ed. Paul Guyer and Allen W. Wood, (Cambridge: Cambridge University Press, 1998), B25, 149. As Ferrarin emphasizes, the importance of Kant’s change in formulation of this later ‘B’ version of the Preface, is the restriction of “its reference to objects of experience, i.e., to schematized concepts with the exclusion of ideas”, which had been included within the original ‘A’ version (A11) (Alberto Ferrarin, The Powers of Pure Reason: Kant and the Idea of Cosmic Philosophy, (Chicago: Chicago University Press, 2015), 272).

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Thus, the analogous Kelsenian transcendental approach to legal phenomena would essentially consist in exploring the necessary conditions of possibility of the existence of law as a normative system through determination, amongst others, of the a priori categories of legal cognition. The further evaluation of this character of the Kelsenian project is required to be preceded by a more detailed examination of the specific application of the Kantian and Neo-Kantian transcendental perspective in the construction of a legal science of positive law.35 3

Kantian Themes in Kelsen’s Legal Philosophy: The Transcendental Approach in the Study of Law

The importance of the general transcendental perspective opened by Kant is clearly reflected in the theoretical foundations of Kelsen’s legal thought.36 35

36

The approach to the relationship between Kelsen and Kant presented in this chapter, as a critical reconstruction, differs from the recent attempt by Kletzer to present an essential compatibility between the Kelsenian and Kantian approaches in the framework of the conception of “absolute positivism” attributed to Kelsen, based on the idea that both Kant’s and Kelsen’s solutions to great intellectual impasses that preceded their theories have not been “conciliatory, but radical”. (Christoph Kletzer, “Absolute Positivism”, Netherlands Journal of Legal Philosophy, Vol. 42, no. 2 (2013): 87–99, (88)). Consequently, according to Kletzer’s interpretation, Kelsen’ s Pure Theory, in fact, never attempted to “steer a middle way between reductivist realism and natural law theory” (87). On the contrary, it aspired to develop a new approach to the understanding of the law and its validity, and to offer a philosophically satisfactory formulation of “absolute positivism” which “tries to understand the validity of the law as resting in the law itself” (89), or, in other words, “solves the problem of the validity of law by declaring that this problem has already been solved by the law itself” (96). Although many aspects of Kletzer’s reading of Kelsen’s Pure Theory are promising, innovative and well-argued, the main problem of this interpretation lies in the fact that whilst, on the one hand, it tries to defend “the Pure Theory against the charge of inconsistency”, on the other hand, it cannot escape the internal inconsistencies that are characteristic of the “absolute positivism” itself as a theoretical stance. These problematic aspects of the position of the absolute positivism are, in fact, very well summarized by Kletzer himself: “Absolute positivism is thus aware that it is a philosophical doctrine about philosophy, about the limits of philosophy. As such a philosophical doctrine about the limits and incompetence of philosophy, absolute positivism to a certain extent has to be both a reflexive and also an anti-philosophical doctrine”. (98). See, for example, Kelsen’s remarks in the Foreword to the second edition of the Hauptprobleme of 1923 where the influence of Hermann Cohen’s interpretation of Kant is acknowledged (Hans Kelsen, “‘Foreword’ to Main Problems in the Theory of Public Law”, in Normativity and Norms: Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski Paulson, (Oxford: Oxford University Press, 1998), 15–16) and the discussion of Kant in the 1928 essay, “Natural Law Doctrine and Legal Positivism”

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Thus, in a letter dating from August 1933, written to Renato Treves, Kelsen ­himself emphasizes the depth of Kant’s influence on the method and basic ideas and concepts of his Pure Theory of Law. According to Kelsen, “the philosophical foundation of the Pure Theory of Law is the Kantian philosophy”, which ultimately inspires his attempt “to apply the transcendental method to a theory of positive law”.37 At the same time, however, Kelsen offers the further precision that his principal methodological paradigm is the interpretation that Kant’s philosophy “has undergone through Cohen”,38 the leading Neo-Kantian from the Marburg School. This claim, on the one hand, indicates one of the main aspects of the NeoKantian influence on Kelsen, i.e., the widening of the transcendental horizon by its application to the analysis of areas of social and cultural phenomena.39 However, on the other hand, it immediately opens the main area of Kelsen’s disagreement with Cohen, which centers upon the objection that Cohen “was not in a position to overcome the natural law theory”.40 For Kelsen, this essential limitation of the Cohennian legal philosophy arises from ­interpretative reticence or timidity. Cohen “lacked the courage to draw from the Kantian transcendental philosophy ultimate conclusions in the field of social reality, that is with reference to existing social systems: the existing state, the positive law, the prevailing morality”.41 Cohen, Kelsen continues, was unable the forgo the assumption of a contentually constituted, materially determined a priori. With reference to those positive norms determining social life, he could not rest content with purely formal categories of a priori validity. For that would inevitably have led to ethical relativism, something that Cohen – exactly like Kant on this point – was not prepared to accept, if only because of his religious convictions.42 (Hans Kelsen, “Natural Law Doctrine and Legal Positivism”, in Hans Kelsen, General Theory of Law and State (Appendix) translated by Wolfgang Herbert Kraus, (New Jersey: Transaction Publishing, 2006), 391–446, 444ff.). 37 Hans Kelsen. “A Letter to Renato Treves”, in Normativity and Norms: Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski Paulson, (Oxford: Oxford University Press, 1998), 169–175, 171. 38 Ibid. 39 Stefan Hammer, “A Neo-Kantian Theory of Legal Knowledge in Kelsen’s Pure Theory of Law?”, in Normativity and Norms: Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski Paulson, (Oxford: Oxford University Press, 1998), 177– 194, 179. 40 Kelsen, “Letter”, 173. 41 Ibid. 42 Ibid.

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This passage suggests that Kelsen’s theoretical ambition vis-à-vis Cohen’s transcendental philosophy is to apply its method more consequently than Cohen himself, that is, to draw (what Kelsen perceives to be) its ultimate logical consequences that, in last analysis, require the rejection of the doctrine of natural law. As far as the original Kantian transcendental philosophy is concerned, it may be remarked that Kelsen’s interpretation of Kant’s approach to social theory is developed along similar, “ambivalent” lines as his interpretation of Cohen’s Neo-Kantian position. On the one hand, Kelsen wholeheartedly endorses Kant’s anti-metaphysical orientation, the “ban on transcendence” in Kantian critical philosophy. Thus, as Kelsen explains in the same letter to Treves, “just as Kant’s transcendental philosophy energetically opposes all metaphysics, so the Pure Theory of law takes aim at the natural law, which, in the field of social reality generally, and in the field of positive law in particular, corresponds exactly to metaphysics”.43 But, on the other hand, Kelsen emphatically rejects the “practical” part of Kant’s philosophy that contains theories of ethics and law, claiming that “Kant himself was not sufficiently consistent to extend the splendid idea of his transcendental philosophy also to cognition of the state, the law and morality – that is, to social theory…”.44 According to Kelsen, in these areas of Kant’s thought, essentially connected to the idea of practical reason “metaphysics survives”, the same metaphysics that Kant “had completely surmounted in the field of cognition of nature”.45 Consequently, Kelsen argues that his Pure Theory of Law is a “more faithful custodian of Kant’s intellectual legacy than any other legal philosophies that draw on Kant”.46 It applies, in Kelsen’s view, the Kantian general transcendental approach with more rigour and consistency – at least in relation to the study of law – than the original philosophy of Kant,47 thus being the first theory that “made the Kantian philosophy really fruitful for the law by developing it further rather than clinging to the letter of Kant’s own legal philosophy”.48 Besides the general importance of the transcendental method for Kelsen’s legal philosophy, another prominent Kantian leitmotif in Kelsen’s Pure Theory of Law is the emphasis upon the crucial role of legal cognition for ­establishing 43 Ibid., 172. 44 Ibid., 173. 45 Ibid. 46 Ibid., 172. 47 For a solid critique of the Kelsenian position which holds that Kant abandoned the standpoint of the critical method in his practical philosophy, which includes the areas of ethics and of legal philosophy, see Gerhard Luf, “On the Transcendental Import of Kelsen’s Basic Norm”, in Paulson and Paulson, Normativity and Norms, 221–234. 48 Ibid.

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the systematic and normative character of law. Kant’s introduction of the concept of transcendental at the centre of philosophical reflection meant a ­radical shift from classical ontological and metaphysical questions towards epistemological questions as the primary focus of theoretical interest. Hence, a similar type of “epistemological turn” has been performed in the framework of Kelsen’s approach to the study of law. Thus, instead of a traditional naturalistic preoccupation with moral or other extra-legal grounds of legal normativity, Kelsen places the question of the knowledge of positive law at the centre of his theoretical investigations. This approach, according to Kelsen, confers the scientific status upon his theory, defining it as an autonomous science of law, devoid of all political content. This scientific theory of law, the Pure Theory of Law, is intended to be pure and critical in a sense which, if not identical with that of Kant, retains the Kantian inspiration: pure in the sense that it is free from any empirical material, i.e., from psychological, sociological, ethical or political elements, and critical, in the sense that it is concerned with a reflection “on the mode of thought, with the aim of maximizing the mode’s capacities”49 – in this context, the legal mode of thought. This “epistemological turn”, in the approach of both Kant and in Kelsen, is based on the fundamental presupposition of the constitutive role of the process of cognition in shaping its purported “objects”. In the further elaboration of the specific manner in which the science of law “creates” its object,50 49 50

Iain Stewart, “The Critical Legal Science of Hans Kelsen”, Journal of Law and Society Vol. 17, no. 3 (1990): 273–308 (277). For the controversy concerning the question whether legal science does indeed constitute law as its object or the relevant act of constitution is localized not in legal science but in the law itself, see Christoph Kletzer, “Kelsen, Sander, and the Gegenstandsproblem of Legal Science”, German Law Journal, Vol. 12, no. 2 (2011): 785–810. This article demonstrates the importance of the Gegenstandsproblem (the “problem of being an object of cognition in general”) of legal science, in the perspective of the critical debate between Hans Kelsen and his student Fritz Sander on this issue. According to Kletzer’s analysis, the important idea that “legal process produces judgments which synthesize given facts by employing spontaneously produced concepts into legally relevant facts” which, in turn, implies that “it is the legal process itself, and not legal science, which is analogous to the process of cognition in the Kantian architectonic” (793) was first developed by Sander. Subsequently, in a quite controversial way, it was partially integrated into Kelsen’s own work through three stages: “confusion, rejection and incorporation” (797). Thus, the main point on which Kelsen finally agrees with Sander is the idea that that “it is the law itself which is constitutive of legal facts”; however, this constitutive function, for Kelsen, is made possible by its “schematizing interpretation (i.e., by allowing it to understand something as something)” (801). For Kletzer, the Gegendstandsproblem is of central importance for understanding the “purity” of the Pure Theory, as well as the relation of law to both sociology and morality (805 ff.).

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a­nalogously to the Kantian constitution of “nature”, as a unified system, through the cognition of natural science, Kelsen is eager to emphasize the essentially e­ pistemological character of this type of “creation”: …according to Kant’s epistemology, the science of law as cognition of the law, like any cognition, has a constitutive character – it “creates” its object insofar as it comprehends the object as a meaningful whole. Just as the chaos of sensual perceptions becomes a cosmos, that is, “nature” as a unified system, through the cognition of natural science, so the multitude of general and individual legal norms, created by legal organs, becomes a unitary system, a legal “order”, through the science of law. But this “creation” has a purely epistemological character. It is fundamentally different from the creation of objects by human labor or the creation of law by the legal authority.51 In the Critique of Pure Reason, one of the fundamental aspects in which the constitutive role of cognition manifests itself is the role of categories as “pure concepts of understanding”.52 With these categories, the category of causality is particularly important, creating the ground on which it is possible to establish the relation of cause and effect in the course of natural events.53 From this central position of the category of causality in the Kantian approach, combined with the omnipresence of the principle of causality in the area of scientific knowledge and explanation, it could be expected that Kelsen’s attempt to construct a scientific as opposed to ideological approach to law would offer a formulation of an analogous fundamental principle in the domain of law. However, the essentially normative nature of law and legal science, in contrast to a normatively-neutral natural science, entails that if there is a basic a priori category of legal cognition at all, it will significantly differ from the category of causality in the science of nature. Adopting the methodological dualism developed by South-West Neo-Kantians and insisting upon the irreducible distinctness of the physical world and of the normative, ideal sphere, to the point of claiming the existence of an unbridgeable gap between Sein and Sollen, “is” and “ought”, Kelsen introduces a specific category, that of imputation, which is to serve, as Paulson puts it, as “the a priori category of legal cognition in his Pure Theory of Law”.54 51 Kelsen, Pure Theory of Law, 72. 52 See, Kant, Critique of Pure Reason, A80-81, B106-107. 53 See, Kant, Critique of Pure Reason, A80, B106; A144, B183; A189, B232; A243, B301. 54 Stanley L. Paulson, “Hans Kelsen’s Doctrine of Imputation”, Ratio Juris Vol. 14, no. 1 (2001): 47–63, 47. Paulson also provides a detailed analysis of Kelsen’s doctrines of “central” and

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Accentuating the difference between “causal science” and “norm science”, and “limiting the science of law to the cognition and description of legal norms and to the norm-constituted relations between the norm-determined facts”,55 Kelsen claims that imputation is “[the] principle, different from causality, that we apply when describing a normative order of human behavior”.56 Imputation, understood in the Kelsenian sense, establishes the fundamental link, constitutive for the very form of law – the link between legal conditions and legal consequences. This kind of link is articulated in the form of paradigmatic legal rules, as, for example: “If an individual commits a crime, he ought to be punished”, or “If an individual does not pay his debt a civil execution ought to be directed into his possessions”, or, in the general formulation adduced by Kelsen, “Under conditions determined by the legal order a coercive act, determined by the legal order ought to take place”.57 The difference between the manner in which cause and effect are ­connected by the principle of causality and the manner in which legal conditions and corresponding legal consequences are connected by the principle of imputation in law is explained by Kelsen in the following way: The rule of law does not say, as the law of nature does: when A is, “is” B; but when A is, B “ought” to be, even though B perhaps actually is not. The reason for the different meaning of the connection of elements in the rule of law and in the law of nature is that the connection described in the rule of law is brought about by a legal authority (that is, by a legal norm created by an act of will), whereas the connection of cause and effect is independent from such human interference.58 The irreducible difference of “is” and “ought” invoked by Kelsen in the explanation of the principle of imputation is essentially connected to one of the main purposes of the Pure Theory of Law: explaining the ground of the normative authority of legal orders. The notion of the validity of a norm that refers to human behaviour implies its having binding force, which according to Kelsen, entails that “an individual ought to behave in the manner determined by the norm”. However, as Kelsen also continually emphasizes, “peripheral” imputation. See, also, Paulson, “A ‘Justified Normativity’ Thesis”, 102 ff., and Peter Langford and Ian Bryan, “Hans Kelsen’s Concept of Normative Imputation”. Ratio Juris, Vol. 26, no. 1, (2013): 85–110. 55 Kelsen, Pure Theory of Law, 75. 56 Ibid., 76. 57 Ibid. 58 Ibid., 77.

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why a norm is valid, why an individual ought to behave in a certain way, cannot be answered by ascertaining a fact, that is, by a statement that something is; (…) the reason for the validity of a norm cannot be a fact (…) The reason for the validity of a norm can only be the validity of another norm.59 The consequent pursuit of the chain of validity-conferring relation between norms to its very foundation leads to “the last reason of validity” of a certain normative order – the basic norm of this order (Grundnorm). According to Kelsen, “it is the basic norm that constitutes the unity in the multitude of norms by representing the reason for the validity of all norms that belong to this order”.60 The central methodological position and importance accorded to the role of the concept of basic norm in Kelsen’s theory of law is immediately evident.61 In this chapter, however – as indicated in the Introduction – only one aspect of the conception of basic norm will be analyzed: its function in Kelsen’s critique of the central elements of the doctrine of natural law, by an implicit use of what initially appears to be capable of description as a form of transcendental argumentation.

59 60 61

Ibid., 193. Ibid., 195. The importance of the concept of basic norm and its different formulations in different periods of development of Kelsen’s thought generate large number of conflicting interpretations and theoretical perplexities. In Paulson’s words, “[t]he basic norm, far and away the most notorious of the notions in Kelsen’s conceptual répertoire, is indeed poorly understood, and every effort to come to terms with this bête noire is welcome”. (Stanley L. Paulson, “Christian Dahlman’s Reflections on the Basic Norm”, Archiv für Rechts- und Sozialphilosphie, Vol. 91, no. 1, (2005): 96–108 (97)). Here Paulson undertakes a critique that, although focused upon Dahlman’s article (Christian Dahlman, “The Trinity in Kelsen’s Basic Norm Unravelled”, Archiv für Rechts- und Sozialphilosphie Vol. 90, no.2, (2004): 147–162), has wider pertinence for certain enduring misconceptions of the position and function of the basic norm in Kelsen’s Pure Theory. For an enhanced understanding of the complexity of the problematic of the basic norm in Kelsen’s theory, it is also useful to take into account Paulson’s separation of seven different groups of characterizations of this concept, related to: (1) empowerment and legal validity, (2) normativity (3) the unity of the legal system, (4) definitions of the law, (5) meaningfulness and ‘normative consistency’, (6) the actual process of cognizing positive law (7) the attempt to establish, in a transcendental manner, the objective validity of positive law. See Stanley L. Paulson, “A ‘Justified Normativity’ Thesis”, 86.

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Basic Norm, Transcendental Argumentation and Kelsen’s Critique of Natural Law Theory

In a familiar, widely cited passage of the Pure Theory of Law Kelsen draws another explicit parallel between the fundamental questions that underlie Kant’s epistemological project of the Critique of Pure Reason and his own project of constructing a “pure” theory of law, which invokes the basic norm as one of the central aspects of this methodological process of construction. Thus, according to Kelsen, Kant asks: “How is it possible to interpret without a metaphysical hypothesis, the facts perceived by our senses, in the laws of nature formulated by natural science?” In the same way, the Pure Theory of Law asks: “How it is possible to interpret without recourse to meta-legal authorities, like God or nature, the system of objectively valid legal norms describable in rules of law?” The epistemological answer of the Pure Theory of Law is: “By presupposing the basic norm that one ought to behave as the constitution prescribes (…)”. The function of this basic norm is to found the objective validity of a positive legal order (…).62 In the Kelsenian project, the “basic norm” is accorded a rather peculiar nature, function and status. It is clearly neither a material norm with self-evident content, nor a positive norm created by custom or by an act of some legal organ. It is also not a procedural norm or “product of free invention”.63 Instead, in its specific, Kelsenian definition it is a “presupposed starting point of a procedure: the procedure of positive law creation”.64 The basic norm always “refers directly to a specific constitution, actually established by custom or statutory creation, by and large effective and indirectly to the coercive order created according to this constitution and by and large effective”.65 In this manner, “it furnishes the reason for the validity of the constitution and of the coercive order created in accordance with it”.66 In fact, Kelsen describes the basic norm as a “transcendental – logical presupposition” that makes it possible to i­nterpret the subjective meaning of the constitution-creating act (and of the acts established 62 Kelsen, Pure Theory of Law, 202. 63 Ibid., 201. 64 Ibid., 199. 65 Ibid., 201. 66 Ibid.

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according to the constitution) “as their objective meaning, that is, as objectively valid legal norms”.67 In Kantian terms, the presupposition of the basic norm is the “transcendental logical condition” of such an interpretation. For an adequate understanding of Kelsen’s conception of basic norm as transcendental-logical presupposition, it is of particular importance to take into account the distinction between “positing” and “presupposing” a norm. This distinction is based on the nature of law as a dynamic normative order, in which there is a hierarchical relation of higher and lower norms. In this hierarchical structure lower norms derive their validity from higher norms. Norms that belong to a given positive order are created by legal authorities. However, the norm-creating competence of these authorities must be conferred by another norm, located at a higher level within the legal system than that of the norms issued by these particular legal authorities. Thus, the norms of positive law are “posited” in the sense that they are created by a competent authority, i.e., an authority whose competence rests on a higher, valid norm. However, the last and highest norm that founds the validity of entire system of norms – i.e., the basic norm – cannot be posited in that sense, because there can be no authority made competent to create it by a still higher norm. Consequently, it is impossible to derive the validity of this final norm from a higher norm, and that is why its validity cannot be placed into question. Thus, in Kelsen’s terms, the basic norm must be “presupposed”, as a common reason for the validity of all other norms that constitute a legal order. The definition of the basic norm as a transcendental-logical presupposition of the cognition of a legal order as a system of objectively valid legal norms suggests that Kelsen’s process of conceptualization could be represented as a form of Kantian transcendental argument. Although the term “transcendental argument” is not itself systematically employed in Kant’s work, the elaboration and deployment of transcendental argumentation has its source in the basic framework and method of Kant’s philosophy. In Stern’s formulation, transcendental arguments involve the claim “that X is a necessary condition for the possibility of Y”; thus “Given that Y is the case, it logically follows that X must be the case too”.68 From this definition, the essence of ­transcendental ­argumentation 67 Ibid. 68 Robert Stern, “Transcendental Arguments”, in The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), edited by Edward N. Zalta. http://plato.stanford.edu/archives/ sum2015/entries/transcendental-arguments/, Section 1. Accessed August 2, 2016. In Robert Stern, Transcendental Arguments and Scepticism: Answering the Question of Justification (Oxford: Oxford University Press, 2004), 6, the concept of transcendental argument is defined in the following way: “[t]ranscendental arguments are usually said to be distinctive in involving a certain sort of claim, namely that ‘For Y to be possible,

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is to establish the necessary conditions for the possibility of the existence of certain phenomena as such, starting from the presupposition that these phenomena are already given to us as facts or content of our experience.69 The question of the more detailed explanation and representation of Kelsen’s use of the form of transcendental argumentation has received divergent interpretations. Paulson emphasizes the important differences that appear in the structure and function of a paradigmatic transcendental argument depending upon whether it is conceived of in a Kantian or in a neo-Kantian position (more precisely, in a Cohennian way).70 If one proceeds by adopting the structure of what Paulson defines as the “regressive version” of the juridico-­ transcendental argument à la Kant, the underlying structure of Kelsen’s ­conception of the basic norm as transcendental-logical presupposition of legal cognition of norms as such – i.e., as legally binding ought-statements – could be represented in the following way: 1. We have cognition of legal norms as ought-statements (statement of cognition as given). 2. Cognition of legal norms as ought-statements is possible only if the category of normative imputation, and, consequently, the basic norm is presupposed71 (transcendental premise).

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70 71

X must be the case’, where Y is some indisputable fact about us and our mental life (e.g. that we have experiences, use language, make certain judgements, have certain concepts, perform certain actions, etc.), but where it is left open at this stage exactly what is substituted for X”. The problem related to the definition, basic logical structure and function of transcendental arguments is a complex theoretical issue extensively discussed in a voluminous, relevant literature (see, for example, Peter F. Strawson, Individuals: An Essay in Descriptive Metaphysics, (London: Methuen, 1959); Barry Stroud, “Transcendental Arguments”, The Journal of Philosophy, Vol. 65, no. 9 (1968): 241–256; Anthony L. Brueckner, “Transcendental Arguments i”, Noûs, Vol. 17, no. 4 (1983): 551–575; Anthony L. Brueckner, “Transcendental Arguments ii”. Noûs, Vol. 18, no. 2 (1984): 197–225; Charles Taylor, “The Validity of Transcendental Arguments”, Proceedings of the Aristotelian Society, New Series, Vol. 79 (1978–1979): 151–165; Eva Schaper and Wilhelm Vossenkuhl eds., Reading Kant: New Perspectives on Transcendental Arguments and Critical Philosophy, (Oxford: Blackwell, 1989)). Due to limitations of space it is impossible to treat this issue at length in the context of this chapter. Here, I refer to the most general understanding of the concept of transcendental argument, limiting it to the minimal content that can be utilized for the argumentative purposes of the chapter. These differences, together with other details of Paulson’s interpretation on this point, will be discussed in greater detail in the fourth section of the paper. In Paulson’s original formulation, what is presupposed in this form of argument, in both the transcendental premise and in the transcendental conclusion, is merely the category of normative imputation, i.e., there is no explicit reference to the “basic norm” in either of these statements. In my opinion, however, given the constitutive role of the concept

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3.

Therefore, the category of normative imputation and, consequently, the basic norm is presupposed (transcendental conclusion).72 In addition to the other important theoretical consequences which derive from ascertaining the transcendental status of the basic norm (as a norm that is “presupposed” instead of being “posited”) this conception of the basic norm can be understood to occupy a central role in shaping the form and the content of Kelsen’s argument directed against Natural Law Theory. This is e­ xemplified in a section of the Pure Theory of Law entitled “Basic norm of Natural Law Theory”,73 in which the presupposition of the basic norm is also held to be indispensable to a “logically correct” form of Natural Law Theory, namely, if the doctrine of natural law is to realize one of its main goals – to judge the validity of a positive law on the basis of its conformity with the precepts of natural law. For Kelsen, a logically correct natural-law theory cannot deny that a positive law, conforming with natural law, can be interpreted as valid only if the norm is presupposed that says: “One ought to obey the commands of nature”. This is the basic norm of natural law.74 In order to reconstruct, in conformity with the Kelsenian approach, the “logically correct” form of Natural Law Theory, which establishes the validity of a positive law on the basis of its conformity with the natural law, recourse is made to the basic structure of the normative syllogism. In this structure, a of basic norm for the status and the cognition of legal norms as legally binding oughtstatements, this extension does not seem to distort the general sense of the argument represented in the form suggested by Paulson. 72 See, Paulson, “On the Puzzle”, 288. Kelsen’s use of Kantian or Neokantian transcendental argument as an attempt to support the “third way”, dismissing both fact-based legal positivism and natural law theory, is also analyzed in Paulson’s article “A ‘Justified Normativity’ Thesis”, 61–111. Here, the reconstruction of the argument is centered around the possibility of the objective validity of legal norms and takes the following form: (1) These legal norms, together representing a legal system, are objectively valid (given). (2) The objective validity of these norms is possible only if the category of imputation is presupposed (transcendental premise). (3) Therefore, the category of imputation is presupposed (transcendental conclusion). (74). The focus on the concept of validity in this formulation is important because, as Paulson suggests, validity (at least on one reading of the concept) is at the centre of the “justified normativity thesis”, and the attribution of this thesis to Kelsen is one of the main targets of Paulson’s critique in this article. For a short summary and comment on this critique, see infra, note 94. 73 Kelsen, Pure Theory of Law, 219–221. 74 Ibid., 220.

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­ ormative conclusion is derived from the combination of the major normative n premise and the minor factual premise: 1. (x) (Ax → OBx) (normative premise; “For all x, if x is commanded by the normative authority A, it is obligatory that x is done by the subject B”) 2. Aa (factual premise; “a is commanded by the normative authority A”) 3. OBa (normative conclusion; “a should be done by the subject B”).75 Then, the reconstruction of the paradigmatic form of the Natural Law argument, interpreted from the Kelsenian perspective, has the following form: 1. The precepts of the “higher law” must be obeyed. This is the major premise of the syllogistic argument – the normative, ought-statement, as Kelsen expresses it, “conditio per quam” of the argument. It is accorded the role of the higher norm from which the lower norm contained in the conclusion is derived. In this formulation, the expression “higher law” is used in order to refer to both the predominant theological and secular variants of Natural Law Theory. Thus, the precepts of “higher law” may be interpreted, depending on the context, as “commands of God” or “commands of nature”. 2. The “higher law” commands that B. This is the minor premise of the syllogistic argument – the factual, isstatement. It is accorded the role of “conditio sine qua non” of the argument constituting the link between the normative premise and the conclusion. 3. B should be done. This is the conclusion of the syllogistic argument – the normative, oughtstatement, lower norm. Its validity is derived from the higher norm formulated in the first, normative premise by means of the second, factual premise.76 On this reconstruction of a paradigmatic form of the Natural Law argument, Kelsen’s critique of the fundamental ideas of Natural Law Theory consists in the following demonstration. The first, normative premise of the argument (“The precepts of “higher law” must be obeyed”) is formulated in a categorical 75

See, Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Translated by Ruth Adler and Neil MacCormick, (Oxford: Oxford University Press, 1989), 222. This representation is based on the structure of the scheme of “internal justification” (Alexy’s Die interne Rechtfertigung), closely connected with the form of traditionally interpreted “legal syllogism”, or, more generally, “normative syllogism”. For the concept of normative syllogism see, for example, Neil MacCormick. “Notes on Narrativity and the Normative Syllogism”. International Journal for the Semiotics of Law, Vol. 4 no. 2 (1991): 163–174. 76 Kelsen, Pure Theory of Law, 193–194.

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manner, without questioning its validity. This, in turn, implies that its validity was not – and, in fact, cannot be – established by a syllogistic procedure; for, if it was to be established in a syllogistic manner, it should have been derived from an even higher norm, which is made impossible by the very claim of the supreme authority of the “higher law” invoked (law of God, nature, etc.). ­Consequently, according to Kelsen, it must be presupposed as a basic norm in the sense of the Pure Theory of Law. However, in that case, this normative premise necessarily has a transcendental-logical character (established as the crucial feature of the basic norm) and not a substantive, material character. In other words, the “basic norm of natural law”, formulated as “One ought to obey the commands of nature” (or, mutatis mutandis, of God, in the theological version) is a hypothetical norm with a transcendental function, capable of providing, for Kelsen, “only a conditional answer to the question as to the reason for the validity of positive law”.77 Thus, the effect of Kelsen’s critique, in this respect, is the essential relativization of the normative pretensions of Natural Law Theory. This concerns, in particular, the attempt by Natural Law Theory to establish a “reliable criterion by which positive law may be judged as just or unjust – most of all: justified as just”, which could be undertaken only “if the norms of the natural law presented by that theory (…) have the absolute validity they claim to have”.78 And this, according to Kelsen, is not possible, not only because of the fact that different natural law theories proclaim “different natural laws conflicting with each other” but also because, from a logical point of view, the form of reasoning on which Natural Law Theory is based is revealed to be similar to that of the positivist theory of law. For Natural Law Theory situates the origin of the validity of positive law in an order established by nature, as the highest authority, situated above the human legislator. Hence, Kelsen emphasizes, “natural law, too, is ‘posited’”, however, not by a human but by a super-human authority. This ­distinction notwithstanding, for Kelsen, the internal logical and argumentative structure of Natural Law Theory becomes capable of analysis in the same manner as that of theories of positive law. The demonstration of the common field of analysis, as shown by the application of the method of the Pure Theory of law, dissolves the absolutist and objectivist claims of the Natural Law Theory. If this interpretation of the Kelsenian argumentative structure is correct, then it becomes apparent that the critique of the reasoning underlying Natural Law Theory, exemplified in the Pure Theory of Law, has a two-part (or, rather, two-step) structure. It adopts a specific combination of transcendental ­reasoning and classical syllogistic normative reasoning. In the first step, it 77 78

Ibid., 221. Ibid., 220.

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c­ onsists of the use of the “juridico-transcendental argument” in order to establish the transcendental-logical character of the basic norm, revealing its status as a “simply relative, hypothetical presupposition for legal cognition”,79 or, in the Cohennian sense of the concept of “Hypothesis”, as a foundation (Grundlage) that is the laying of a foundation (Grundlegung).80 In the second step, however, the classical form of normative syllogism undertakes a central role. Here, Kelsen performs, in fact, an effective assimilation of the paradigmatic form of the natural law argument with the general structure of the normative syllogism that also applies to the positivist theories of law, in order to show that the major, normative premise of the syllogism must, in both types of theories, be presupposed as basic norm with hypothetical, conditional status. Thus, it demonstrates that the natural law argument can neither provide an unconditional, absolute ground for the normativity of law nor for the validity and justification of a given order of positive law, which are both presupposed by Natural Law Theory. However, even on the assumption that this interpretation is one which is faithful to Kelsen’s position in the reconstruction of the structure of the critique of Natural Law Theory, the question of the overall success of his critique of Natural Law Theory in the context of the larger project of the Pure Theory of Law still remains open. In the next section of the chapter, this question will be broached through an analysis of some of the most relevant critical objections that, in contemporary discussion, are raised in respect of Kelsen’s ambitious intellectual enterprise. 5

Merits and Demerits of Kelsen’s Approach to the Problem of Normativity of Law

In the first part of this chapter, it was suggested that Kelsen’s attempt to avoid both the metaphysical grounding of law’s normativity and the reduction of normative phenomena to simple social facts was a promising path to follow in order to resolve the conflicting duality of the approaches of Natural Law and positivism to law and, in particular, to its normative status. This path, however, immediately confronts serious obstacles that potentially impede the attainment of the proclaimed goal. Thus, some of the most important contemporary 79 80

Stefan Hammer, “A Neo-Kantian Theory of Legal Knowledge in Kelsen’s Pure Theory of Law?”, in Paulson and Paulson, Normativity and Norms, 177–194, 184. Cited in Geert Edel, “The Hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen”, in Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, (Oxford: Oxford University Press, 1998), 195–219, 209.

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critiques of Kelsen’s project emphasize at least two weaknesses in the general methodological construction of this path. The first concerns Kelsen’s use of transcendental argumentation in the process of methodological construction, and the second concerns the implicit reductionism present in Kelsen’s position as a consequence of his profoundly relativist stance. The first weakness is elaborated, in a detailed manner, by Stanley L. Paulson, who suggests that Kelsen’s programme of establishing the basic norm by a form of Kantian transcendental argument leads to a kind of “predicament”, in the sense that the use of either a progressive or a regressive version of Kant’s argument proves “unworkable” for the realization of Kelsen’s goal.81 The first, “progressive version” of the Kantian transcendental argument, intended to “trap the skeptic”, starting from the weak premises concerning the data of consciousness (as an uninterpreted experience) that he can lend his assent to, and gradually leading to the acceptance of the corresponding Kantian category, does not serve Kelsen’s purpose. For, in legal context which, by definition, includes, in Kelsen’s words, “interpretation of subjective meaning of constitution-creating act (and of the acts established in accordance with the c­ onstitution) as their objective meaning”, the initial premise of the juridico-transcendental progressive argument cannot keep the data “beneath the threshold of interpreted experience” in order to provide the assent of the skeptic. This premise necessarily contains a specific interpretation of acts of will and, consequently, constitutes a piece of interpreted experience. And, as Paulson emphasizes, “the skeptic will have no compelling reason to assent to a juridico-normativist interpretation of this experience, much less to a juridico­normativist interpretation along the lines suggested by Kelsen”.82 In fact, Kelsen’s explicit r­ ecognition that a skeptical position on normativist legal theory (for example, the anarchist’s position) represents a tenable alternative to his own view provides an additional argument for the conclusion that Kelsen is not following “the progressive version of the transcendental argument”.83 This conclusion, however, does not entail that the inverse, regressive form of the juridico-transcendental argument – that does not commence, as in the ­progressive version, from the data of consciousness but, instead, with an already given cognition and formulates its conditions of possibility – can be ­utilized by Kelsen without difficulty. In this form of transcendental argument, a­ ccording to Paulson, what is essentially problematic is precisely the 81

The section that follows relies on Paulson’s article “On the Puzzle Surrounding Hans Kelsen’s Basic Norm” and summarizes some of his main theses. Of course, for any possible misinterpretation the responsibility is entirely mine. 82 Paulson, “On the Puzzle”, 287. 83 Ibid.

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second, transcendental premise, which claims the necessity of the category of normative imputation for the cognition of legal norms taken as the starting point of the argument. For here we face a dilemma: on the one hand, it is theoretically possible to devise many other, competing theories that determine the c­ onditions of possibility of our cognition of legal norms in a different manner from that of the Kelsenian theory, and the number of such alternative theories is by no means exhaustive.84 On the other hand, Paulson continues, the attempt to exhaust the possibilities of alternative theories would require a demonstrative argument that, in turn, would amount to using the progressive version of the transcendental argument; but that version has already been shown to be inadequate for the attempt to ground the normativity of law. Finally, another possible interpretation of the Kelsenian use of transcendental argumentation – namely, that he uses the neo-Kantian version of the regressive argument-form (especially in the Cohennian version) – is also ­rejected by Paulson as inadequate, because, as he indicates, if “Kelsen employs the regressive argument-form of the neo-Kantians, he is not arguing transcendentally at all. The regressive argument-form sans the Kantian transcendental component is a mere scheme of analysis”.85 As a conclusion, Paulson argues that Kelsen’s transcendental approach, although providing promising critical perspectives against the reduction of legal theory to fact-based theories of law, does not succeed in formulating arguments for the rejection of Natural Law Theory and the morality thesis which is its theoretical foundation. However, the plausibility of the claim that the Kelsenian transcendental approach is unable to provide any argument for rejecting Natural Law Theory is open to further reflection. For, on the interpretation elaborated in the previous section of the chapter, the claim can be accepted only on the basis of the interpretative condition that we limit our consideration to the first step of the Kelsenian argumentative strategy. Once the analysis extends to the second step, it becomes evident that he offers an explicit argument against Natural Law Theory, in which he integrates the claims established by the transcendental method into another argumentative structure – that of the normative syllogism – aimed precisely at showing the untenability of the reasoning that underlies Natural Law Theory and its absolutist and justificatory pretensions. Thus, it 84

85

See, also, Paulson, “A ‘Justified Normativity’ Thesis”, 77, note 77, where Paulson emphasizes the fact that “Kelsen’s introduction of a distinct species of legal philosophy alongside and at the same level of abstraction as the traditional approaches in fact generates six possible species of legal philosophy (…) Kelsen has made no effort to rule out these various species of legal philosophy, which is to say that there are possible alternatives to his own legal philosophy, and this in turn undermines the transcendental argument”. Paulson, “On the Puzzle”, 291.

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seems that in evaluating the soundness of Kelsen’s argumentation, the question of the legitimacy of his general argumentative strategy should be distinguished from the question of the acceptability of its first step, which includes that which was reconstructed as a “regressive juridico-transcendental argument”. Of course, if Paulson is correct in his critique, the dysfunctionality of this first step would have destructive consequences for the final outcome of Kelsen’s argumentation, but it seems that the final decision on that matter requires further investigation and analysis that is unable to be undertaken within the scope of this chapter. However, even if we accept the thesis of the initial plausibility of Kelsen’s argumentative strategy against Natural Law Theory, it appears to generate an even deeper problem for Kelsen’s approach – an inherent problem that jeopardizes its goal to account for the normativity of law in a non-reductionist way. The adoption of transcendental argumentation, with all the controversies s­ urrounding its application, served a very important purpose in Kelsen’s conception: the purpose of establishing the hypothetical character of the basic norm, as an expression of its, as Hammer expresses it, “epistemologicotranscendental character in contradistinction to a metaphysico-transcendent character”.86 This move, however, has problematic consequences. Following Hammer’s definitional distinction, those consequences could be described as the “definitive orientation of the transcendental theory of knowledge in the direction of positivistic relativism”.87 This point is, moreover, explicitly ­acknowledged by Kelsen himself, in his claim that “Positivism and (epistemological) relativism belong together just as much as natural law theory and (metaphysical) absolutism”.88 Yet relativism, as Marmor would say, “comes with a price”.89 The fact that Kelsen’s Pure Theory of Law presents the objective validity of positive law only as conditional implies that the status of the basic norm itself is only “optional”, rendering it relevant only for those who already accept the normative validity of the law.90 Thus, the position of complete rejection of the normative validity of law, as in an anarchist position, is also a legitimate position, and that is explicitly admitted by Kelsen himself; consequently, the scope and function of the basic norm, within the perspective of Pure Theory of Law, confines itself to the space of legal validity that remains, by default, unquestioned. Thus, the concept of the basic norm becomes synonymous with an existing, generally 86 87 88 89

Hammer, “A Neo-Kantian Theory”, 185. Ibid., n.31. Cited in ibid. Andrei Marmor, Philosophy of Law, (New Jersey: Princeton University Press, 2011), 22; see, also, Andrei Marmor, “The Pure Theory of Law”, Sect. 2. 90 Marmor, Philosophy of Law, 21.

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effective legal order, and the validity of basic norm becomes conditional on its efficacy. This, in turn, entails that the Kelsenian foundation of the content of the basic norm is governed by a methodology that is inevitably reductionist whereby the basic norm reflects a set of already existing social facts related to the “actual conduct, beliefs/presuppositions and attitude of people”.91 On Marmor’s interpretation, [t]he normative relativism that is inherent in Kelsen’s conception forces him to ground the content of the basic norm in the social facts that constitute its content – the facts about actions, beliefs and attitudes entertained by the population in question. And this makes it very questionable that reductionism can be avoided.92 Metaphorically speaking, the subtle “revenge of relativism”, within the larger framework of Kelsen’s Pure Theory of Law consists in the capacity of the relativistic position in regard to values and norms, whose critical potential was central to the Kelsenian critique of the Natural Law, to turn against the Kelsenian project. For, it leads, in ultima linea, to the reductionist conclusions that, from the outset, the project had strived to avoid, by seeking to reconstruct, and thereby demonstrate, the autonomous, irreducibly normative aspect of law. Hence, it becomes apparent that, even assuming that Kelsen’s approach to the problem of the normativity of law, which includes recourse to transcendental elements, presents a coherent critique of Natural Law Theory, the initial intention of providing a non-reductionist explanation of law’s normativity cannot be fully realized.93 6

Concluding Remarks

From the detailed analysis of the status and operation of transcendental argumentation, it appears that notwithstanding the carefully constructed, 91 92 93

Ibid., 23. Ibid., 23–24. Note, however, that in a recent article (“Marmor’s Kelsen”, forthcoming, as Chapter 3, in Hans Kelsen in America – Selective Affinities and the Mysteries of Academic Influence, ed. Jeremy Telman, (Dordrecht: Springer, 2016)), Michael S. Green offers a critical analysis of Marmor’s reading of Kelsen, arguing “that Marmor fundamentally misreads Kelsen’s legal theory in three (interconnected) ways”, related to the “doctrine of the unity of law”, the relevance of efficacy “to the adoption of the basic norm of the unitary legal system” and the “Neo-Kantian dimensions of Kelsen’s thought”. (61) For Green, a proper understanding of Kelsenian Neo-Kantianism, could make it clear “why Kelsen can be both a relativist and an antireductionist about the law”. (ibid.).

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impressive systematic framework of the Pure Theory of Law, the Kelsenian project of presenting a novel foundation for the normativity of law, by surpassing the limitations of the traditional forms of both Natural Law theories and empirico-positivist theories, reveals a deep internal conflict. This conflict is generated by the different basic principles and methodological postulates involved in its construction – principles and postulates that are, in some respects, irreconcilable. The conceptual tensions in the very foundation of Kelsen’s legal thought arise, on the one hand, from the clash of his relativist and his normativist view, and, on the other hand, from the clash of the positivist methodological monism related to the “scientific” aspect of his theory and the neo-Kantian dualism by which it is profoundly inspired. Thus, his relativism in respect to values renders it impossible to avoid the ultimately reductive grounding of normativity in the factual sphere of social reality; consequently, his transcendental argument is unable to establish legal normativity in strong, categorical, legitimizing/justifying sense but only in a weak, hypothetical, epistemological sense. Normative validity comprehended in that sense cannot be system-independent, but only system-dependent, representing a kind of “etiolated”, “pallid” normativity,94 which leaves open one of the fundamental questions concerning normativity in general and, in particular, legal normativity: the question of distinguishing the sociological from stricto sensu justified normativity.95 94 95

James W. Harris, “Kelsen’s Pallid Normativity”, Ratio Juris, Vol. 9, no. 1 (1996): 94–117. It is important to note, however, that, contra Raz and Alexy, Paulson does not think that “anything as ambitious as justified normativity can be attributed to Kelsen”, and points out to the problems associated with transcendental arguments as one of the main sources of this doubt. (“A ‘Justified Normativity’ Thesis”, 65). For Paulson, the form of normativity thesis that can arguably be attributed to Kelsen as a viable effort to provide an alternative to both psychologism and naturalism prominent in European legal science by the end of nineteenth century, is the so-called “nomological normativity thesis”, which profoundly differs from the “justified” or “contentual” normativity thesis. In the framework of nomological normativity thesis, the category of (peripheral) imputation retains its central place, providing the necessary relation between act and liability in legally relevant human action that is analogous to the necessity with which the cause and effect are linked by the law of nature. This relation constitutes the core of nomological normativity thesis: it “is nomological in being necessary or law-like, and it is normative in being non-causal” (109). Interpreted in this way, Kelsen’s peripheral imputation is conceptualized in a manner that significantly differs from its previous treatment qua category in the context of transcendental argumentation; now, it represents a “methodological form, specifically, the methodological form peculiar to legal science” (ibid.). Paulson himself emphasizes that the notion of methodological form is drawn from the work of the Baden Neokantian Heinrich Rickert. This fact strengthens the impression that the attempted reconstruction of Kelsenian legal theory in this article is performed on the basis of the theoretical perspective of the Baden School, i.e., that Paulson’s earlier demonstration of the difficulties

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Kelsen’s methodological ambition to apply Kant’s method, in the Critique of Pure Reason, more consequently than Kant himself – that is, to extend the approach suitable for the philosophical comprehension of the cognition of natural phenomena to the comprehension of legal phenomena, limiting the function of reason to the theoretical sphere of cognizing the given – also contributes to a normativity weakened by a tendency towards reductionism. For the field of law, in contrast to that of nature and its phenomena, is always already axiological; implicit value choices, global social outlooks and collective experiences inevitably underlie every existent normative order. Consequently, the “neutral”, positivist, scientifically-orientated theoretical grid, which consciously excludes the central elements of value-based and reasons-based individual and collective action, cannot develop a non-reductive conception of legal normativity. In fact, Kelsen’s final posthumously published work – The General Theory of Norms – whilst reconsidering the relationship between legal norms and logic, and, in particular, the continued pertinence of the syllogism to encapsulate the specific normativity of legal norms, reaffirms its rejection of practical reason in both its Aristotelian and Kantian forms.96 Thus, insisting upon the irreducible difference of Sein and Sollen and, at the same time, dismissing altogether the idea of “practical reason” creates basic conceptual difficulties in the Kelsenian approach, which impede the full realization of the initial impetus for his project. Bibliography Alexy, Robert. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Translated by Ruth Adler and Neil MacCormick, (Oxford: Oxford University Press, 1989). Austin, John. The Province of Jurisprudence Determined, edited by Wilfrid E. Rumble, (Cambridge: Cambridge University Press, 1995). Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation, (Oxford: Clarendon Press, 1907) (republished by Dover, 2007).

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in Kelsen’s approach is now accompanied by a move from the Marburg School to the Baden School. In his Introduction to Kelsen’s The General Theory of Norms, Michael Harney remarks that “[r]eason always had a very subordinate role in Kelsen’s conception of the normative realm, since judgments of absolute value were irrational. atn [Allgemeine Theorie der Normen] simply draws the final consequences of Kelsen’s earlier inclinations, and expels reason completely from the normative realm”. (Michael Harney, “Introduction: The Final Form of The Pure Theory of Law” in Hans Kelsen, The General Theory of Norms, translated by Michael Hartney, ix–liii, liii, (Oxford: University Press, 1991)).

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Hart, Herbert L.A. The Concept of Law. 2nd edition, (Oxford: Oxford University Press, 1994). Kant, Immanuel. Critique of Pure Reason. Translated and edited by Paul Guyer and Allen W. Wood, (Cambridge: Cambridge University Press, 1998). Kelsen, Hans. “A Letter to Renato Treves”. In Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 169–175, (Oxford: Oxford University Press, 1998a). Kelsen, Hans. “‘Foreword’ to Main Problems in the Theory of Public Law”. In Normativity and Norms: Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie Litschewski Paulson, 15–16, (Oxford: Oxford University Press, 1998b). Kelsen, Hans. “Natural Law Doctrine and Legal Positivism”. In Hans Kelsen, General Theory of Law and State (Appendix). Translated by Wolfgang Herbert Kraus, 391– 446, (New Jersey: Transaction Publishing, 2006). Kelsen, Hans. Pure Theory of Law. Translated by Max Knight. Clark, New Jersey: The Lawbook Exchange, 2005). (Originally published: Berkeley: University of California Press, 1967). Kelsen, Hans. The General Theory of Norms. Translated by Michael Hartney, (Oxford: University Press, 1991) (originally published in German under the title Allgemeine Theorie der Normen, Vienna: Manz, 1979). Kelsen, Hans. “The Natural-Law Doctrine Before the Tribunal of Science”. The Western Political Quarterly, Vol. 2, no. 4 (1949): 481–513. Kletzer, Christoph. “Absolute Positivism”. Netherlands Journal of Legal Philosophy, Vol. 42, no. 2: 87–99 (2013). Kletzer, Christoph. “Kelsen, Sander, and the Gegenstandsproblem of Legal Science”, German Law Journal, Vol.12, no. 2 (2011): 785–810. Langford, Peter and Ian Bryan. “Hans Kelsen’s Concept of Normative Imputation”. Ratio Juris, 26, no. 1, (2013): 85–110. Luf, Gerhard. “On the Transcendental Import of Kelsen’s Basic Norm”. In Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 221–234, (Oxford: Clarendon Press, 1998). MacCormick, Neil. “Notes on Narrativity and the Normative Syllogism”. International Journal for the Semiotics of Law, Vol. 4, no. 2 (1991): 163–174. Marmor, Andrei. Philosophy of Law, (New Jersey: Princeton University Press, 2011). Marmor, Andrei. Positive Law and Objective Values, (Oxford: Oxford University Press, 2001). Marmor, Andrei. “The Pure Theory of Law”. In The Stanford Encyclopedia of Philosophy (Spring 2016 Edition), edited by Edward N. Zalta. Accessed July 31, 2016. http://plato. stanford.edu/archives/spring2016/entries/lawphil-theory/.

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Murphy, Mark C. Natural Law in Jurisprudence and Politics, (Cambridge: Cambridge University Press, 2009). Paulson, Stanley L. “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law?: Rejoinders to Robert Alexy and Joseph Raz”, in Institutionalized Reason: The Jurisprudence of Robert Alexy, edited by Matthias Klatt, 61–111, (Oxford: Oxford University Press, 2012). Paulson, Stanley L. “Christian Dahlman’s Reflections on the Basic Norm”. Archiv für Rechts- und Sozialphilosphie, Vol. 91, no. 1, (2005): 96–108. Paulson, Stanley L. “Hans Kelsen’s Doctrine of Imputation”. Ratio Juris Vol. 14. no. 1 (2001): 47–63. Paulson, Stanley L. “On the Puzzle Surrounding Hans Kelsen’s Basic Norm”. Ratio Juris, Vol. 13, no. 3 (2000): 279–293. Paulson, Stanley L. and Bonnie Litschewski Paulson, eds. Normativity and Norms: Critical Perspectives on Kelsenian Themes, (Oxford: Oxford University Press, 1998). Raz, Joseph. Ethics in the Public Domain: Essays in Morality, Law and Politics, (Oxford: Oxford University Press, 1996). Schaper, Eva and Wilhelm Vossenkuhl, eds. Reading Kant: New Perspectives on Transcendental Arguments and Critical Philosophy, (Oxford: Blackwell, 1989). Shapiro, Scott J. Legality, (Cambridge, MA.: Harward University Press, 2011). Spaak, Torben. “Kelsen and Hart on the Normativity of Law”. In Perspectives on Jurisprudence: Essays in Honour of Jes Bjarup, ed. Peter Wahlgren, 397–414, (Stockholm: Stockholm Institute for Scandinavian Law, 2005). Spaak, Torben. “Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification”. Ratio Juris, Vol. 16, no. 4 (2003): 469–485. Spaak, Torben. “The Normativity of Law”. 83–97. Accessed July 31, 2016. http://www. jura.uni-freiburg.de/institute/rphil/rphil/de/downloads/spaak-text. Stern, Robert. “Transcendental Arguments”, In The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), edited by Edward N. Zalta. Accessed August 2, 2016. http:// plato.stanford.edu/archives/sum2015/entries/transcendental-arguments/. Stern, Robert. Transcendental Arguments and Scepticism: Answering the Question of Justification, (Oxford: Oxford University Press, 2004). Stewart, Iain. “The Critical Legal Science of Hans Kelsen”. Journal of Law and Society, Vol. 17, no. 3 (1990): 273–308. Strawson, Peter F. Individuals: An Essay in Descriptive Metaphysics, (London: Methuen, 1959). Stroud, Barry. “Transcendental Arguments”. The Journal of Philosophy, Vol. 65, no. 9 (1968): 241–256. Taylor, Charles. “The Validity of Transcendental Arguments”. Proceedings of the Aristotelian Society, New Series, Vol. 79 (1978–1979): 151–165. Waluchow, Wilfrid J. Inclusive Legal Positivism, (Oxford: Oxford University Press, 1994).

Part 3 Kelsen, Neo-Kantianism and Schmitt

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Chapter 8

Hans Kelsen and Southwest German Neo-Kantianism on Natural Law: Transcendental Philosophy beyond Metaphysics and Positivism Christian Krijnen Abstract This chapter argues that Kelsen’s discussion and conception of the foundations of law misunderstands essential aspects of the foundations of normativity. Kelsen seems to miss the point of Kant’s transcendental turn in conceiving philosophical foundations, so important for the development of the philosophy after Kant, not least for the neoKantians. The main schools of neo-Kantianism have their central, common feature in stressing and rejuvenating exactly Kant’s transcendental turn. This emphasis on the transcendental turn is prevalent in much of the Southwest neo-Kantian remarks on natural law. Kelsen, however, repeatedly presents Kant as a metaphysical thinker. This distinguishes Kelsen from the leading schools of neo-Kantianism, who consider Kant a post-metaphysical philosopher. The influence of neo-Kantianism, especially that of the Southwest School, on Kelsen should be seen, therefore, in an instrumental rather programmatic sense. Accordingly, the chapter will apply essentials of Kantian and neo-Kantian philosophy to Kelsen’s analysis of law. From this, it will be argued that the hypothesis of law which underlies Kelsen’s legal positivism is an inadequate ­expression of the idea of law.

What is Right? This question may be said to be about as embarrassing to the jurist as the well-known question, “What is Truth?” is to the logician. It is all the more so, if, on reflection, he strives to avoid tautology in his reply, and recognizes the fact that a reference to what holds true merely of the laws of some one country at a particular time, is not a solution of the general problem thus proposed. It is quite easy to state what may be right in particular cases (quid sit iuris), as being what the laws of a certain place and of a certain time say or may have said; but it is much more d­ ifficult to determine whether what they have enacted is right in itself, and to lay down a universal criterion by which right and wrong © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004390393_010

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­(iustum et iniustum) may be recognized. All this may remain entirely hidden from the jurist until he abandons his empirical principles for a time, and searches in pure reason for the sources of such judgments, in order to lay a real foundation for actual positive legislation. In this search his empirical laws may, indeed, furnish him with excellent guidance; but a merely empirical doctrine of right is, like the wooden head in the fable of Phædrus, that may be beautiful but unfortunately has no brain.1 immanuel kant

Remarks on natural law are rather scarce in Southwest neo-Kantianism. They mostly appear in the context of remarks concerning metaphysics as an ­opposite standpoint to transcendental philosophy. For the neo-Kantians, transcendental philosophy is programmatically inaugurated by Kant. For Kelsen, however, Kant’s philosophy is itself metaphysics, hence, Kant’s philosophy of law is a part of the tradition of natural law theory.2 Against this tradition, Kelsen develops his pure theory of law as a theory of the validity of positive law. This theory is supposed to be a sublimated form of positivism – and therefore a position which Kant and the neo-Kantians reject in principle. What is going on here, as Kelsen claims to integrate important aspects of transcendental philosophy? How should we understand the rejection of Kelsen’s option by transcendental philosophy? Indeed, it is my thesis that Kelsen’s discussion and conception of the ­foundations of law misunderstands essential aspects of the foundations of 1 Immanuel Kant, Kants gesammelte Schriften i–xxvi, ed. Königlich-Preußische Akademie der Wissenschaften (Berlin: de Gruyter, 1910 ff.), vol. vi, 229 f. – Concerning the question “What is truth?”; cf. ibid., vol. v, KrV, B 82, and Christian Krijnen, “Vom Abbild zum Begriff: Wahrheit als Übereinstimmung des Denkens mit sich,” in Bild, Abbild und Wahrheit: Von der Gegenwart des Neukantianismus, ed. Tomasz Kubalica, (Würzburg: Königshausen & Neumann, 2013), 41–58 for a discussion of the matter also in relation to neo-Kantianism. 2 For this study, I particularly relied on Kelsen’s essays concerning natural law and positivism (the main line of thought and important elements are, however, also contained in his Reine Rechtslehre). As far as my subject is concerned, it seems that any stylistic prudency present in Kelsen’s earlier texts concerning the Kantian tradition is fully given up in the later ones, which confirms the thesis defended in my essay. In his early “Die Rechtswissenschaft als Norm- oder Kulturwissenschaft (1916),” in Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl und Alfred Verdross, ed. Hans Klecatsky, René Marcic and Herbert Schambeck (Vienna [et al.]: Europa, 1968), 37–93, however, it becomes very obvious that Kelsen repudiates the essential elements of Southwest neo-Kantianism. The view that, in his early work, Kelsen was much more orientated by neo-Kantianism, while, in the later work, primarily by that of positivism, as, propounded, for example, by Wolfgang Schild, Die reinen Rechtslehren, (Vienna: Manz, 1975), 9ff., rests upon the neglect of significant programmatic differences, as will become clear in the present text.

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­ ormativity. Kelsen seems to simply miss the point of Kant’s transcendental n turn in conceiving philosophical foundations, so important for the development of the philosophy after Kant, not least for the neo-Kantians. The main schools of neo-Kantianism have their core common feature in stressing and rejuvenating Kant’s transcendental turn. It is exactly this emphasis on the transcendental turn, which is prevalent in much of the Southwest n ­ eo-Kantian ­remarks on natural law too. Therefore, it is of no surprise that Kelsen time and again presents Kant as a metaphysical thinker. Already this very important matter distinguishes him from the leading schools of neo-Kantianism. For these variants of neo-Kantianism, Kant is a post-metaphysical philosopher, if not the most radical post-metaphysical thinker, as Heinrich Rickert states: the “philosopher of modern culture,”3 or, to speak in terms of Cassirer’s essay on natural law and its distinction between pre-modern and modern natural law theory: Modern natural law theory adheres to the “Platonic Thesis” that there is a law “beyond” the “sphere of mere power and will,” having its foundation in “pure reason” as the “original statutory” (ursprünglich-setzende) factor.4 Hence, influences of neo-Kantianism, especially those of the Southwest School, on Kelsen should primarily be taken in an instrumental sense, not in a programmatic sense. Consequently, the discussion between Kelsen and neoKantianism should also take the shape of a discussion between different types of philosophy: of an internal philosophical debate. At least it will in the following deliberations. That Kelsen conceives of his Reine Rechtslehre through “analogy with Kant’s theory of knowledge” as a “transcendental-logical justification of the validity of positive law”5 is nothing but a malapropism. 3 Cf. Heinrich Rickert, Kant als Philosoph der modernen Kultur: Ein geschichtsphilosophischer Versuch, (Tübingen: Mohr Siebeck, 1924). All translations from German texts are mine. 4 Ernst Cassirer, “Vom Wesen und Werden des Naturrechts,” Zeitschrift für Rechtsphilosophie in Lehre und Praxis 6 (1932), 8. Cassirer makes an argument for the modern idea of natural law, i.e., a transcendental conception of the foundations of law against, among others, positivism. For him, one should not simply engage in a cursory examination of natural law, as the “selfconfidence” and “self-satisfaction,” characterizing “positivism of the nineteenth century,” has been forfeited (ibid., 21). Cassirer also emphasizes that, in the seventeenth and eighteenth century, the doctrine of natural law was of highly practical relevance, not an “unworldly speculation” (ibid., 19), and not a doctrine propounding a (then, of course, superfluous) “double-world conception” of natural and positive law (as, we can add, suggested by Kelsen). In conformity with the idea of rational foundations which typify transcendental philosophy, for Cassirer, law is not some type of “contingent” creation, originating from the animal nature of men, but it is “constitutive for humans, a necessary precondition of the ‘humanitas ipsa’” (ibid., 23). Positive law, then, does not satisfy the inescapable urge for “unwritten laws” (ibid., 27). 5 Hans Kelsen, “Vom Geltungsgrund des Rechts (1960),” in Die Wiener rechtstheoretische Schule, 1417–27, 1427. Cf. Hans Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und

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In contrast to this self-understanding of Kelsen’s, Kant scholars have rightly conceived of Kelsen as a non-Kantian positivist – though as a positivist in a consequent and sublimated form – and with his philosophical position as one that fails to conceptualize the foundations of law adequately.6 These foundations do not only concern the process of law-making and with that the positive validity of law – i.e., Kelsen’s focus – but also the validity of a positive system of law itself and the law-making process it results from. The latter concerns the Kantian questio iuris and thereby a dimension that cannot be treated by referring to positive law-making. Positive law-making presupposes such a nonpositive concept of law, enabling positive law: it presupposes the issue of an a priori approach to law, an issue at stake in the natural law tradition (taken in the broad sense). Kelsen’s basic norm (Grundnorm) only concerns a formal dimension of law-making, excluding the content of its result, hence, essentially differing from Kant’s project of transcendental foundations. Transcendental foundations concern, non-naturalistically, the conditions positive law-making has to fulfil formally and materially in order to be true law, and not merely the formally correct establishment of injustice through positive law. Law founded on Kelsen’s basic norm does, expressly, not guarantee this. Indeed, it is an essential feature of legal positivism that it refrains from material criteria for p ­ ositive des Rechtspositivismus (1928),” in Die Wiener rechtstheoretische Schule, 281–350, 339, and Hans Kelsen, Reine Rechtslehre, 2. vollst. neu bearb. und erw. Aufl. (Wien: Deuticke, 1960), 208 note, cf. 204 f. 6 See, for example: Hariolf Oberer, “Praxisgeltung und Rechtsgeltung,” in Lehrstücke der praktischen Philosophie und der Ästhetik, ed. Gerd Wolandt and Karl Bärthlein, (Basel/Stuttgart: Schwabe, 1977), 87–111; Otfried Höffe, “Naturrecht ohne naturalistischen Fehlschluß: ein rechtsethisches Programm,” in Den Staat braucht selbst ein Volk von Teufeln, (Stuttgart: Reclam, 1988), 24–55; Otfried Höffe, Politische Gerechtigkeit: Grundlegung einer kritischen Philosophie von Recht und Staat, (Frankfurt am Main: Suhrkamp, 1987), 118 ff; Otfried Höffe, Kategorische Rechtsprinzipien, (Frankfurt am Main: Suhrkamp, 1995), 63 ff. Both Oberer and Höffe also refer to the neo-Kantian background of Kelsen’s approach. Unfortunately, however, this reference to neo-Kantianism only concerns Hermann Cohen’s often criticized “theoretical” interpretation and appropriation of Kant’s practical philosophy, leading to a philosophy of law as a “logic” of law. This is not the path guiding the ‘practical’ philosophy of the Southwest neo-Kantians; they follow a different approach. The extent of the lack of knowledge of neo-Kantian philosophy, by contemporary German Kant scholars, which less than a century ago dominated philosophy, in particular, German philosophy, becomes evident when Höffe, (“Der kategorische Rechtsimperativ,” in Immanuel Kant, Metaphysische Anfangsgründe der Rechtslehre, ed. Otfried Höffe, (Akademie Verlag, 1999), 41–62, 46), without any hesitation, qualifies Kelsen as a “neo-Kantian.” At least in this respect, Gustav Boehmer, Grundlagen der bürgerlichen Rechtsordnung: Zweites Buch. Erste Abteilung: Dogmengeschichtliche Grundlagen, (Tübingen: Mohr Siebeck, 1952), 143, is correct, designating (in his otherwise rather uneven work on the Foundations of the Civil Legal Order) the Vienna School of Law as “Vienna School of neo-Kantianism” in the sense of a “deformed variation” (Abart) of neo-Kantianism.

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law-making, whereas Kant and, as we will see, Southwest neo-Kantianism are concerned exactly with such trans-positivist material criteria. According to Gustav Radbruch, a thinker thought to be part of the neo-Kantian philosophical movement, it belongs to the concept of correct law (richtiges Recht) to be both positive and materially correct,7 hence, making an anti-Kelsenian and a pro-transcendental statement. Apparently, the anti-naturalistic stance of Kelsen, leading him to a determinate, though positivist, concept of normativity that is certainly inspired by neo-Kantianism, can in no way bridge the indicated immense programmatic gap concerning the foundations of normativity. One of the basic ideas of neo-Kantianism, especially of its Southwest School (Wilhelm Windelband, Heinrich Rickert, Emil Lask, Bruno Bauch, Jonas Cohn, et al.), is that philosophy is philosophy of values, i.e., of determining factors of human orientation. As a comprehensive philosophy of values, philosophy turns out to be a philosophy of culture; philosophy determines the foundations of culture. This conception of philosophy stems from a Fichte-inspired creative interpretation and appropriation of Kant’s transcendental philosophy, rejuvenating his Copernican turn in order to deal with problems the ­neo-Kantians were facing in their time. In order to comprehend the concept of natural law and its transcendental transformation, I will first sketch the essential elements of the neo-Kantian idea that philosophy is a foundational theory of culture and, as such, a ­philosophy of values and their validity. From this it will become clear, in section 1, the manner in which we are dealing with a post-metaphysical and non-positivistic philosophy.8 This sketch provides relevant background­ 7 Gustav Radbruch, Rechtsphilosophie, 8th ed., eds. Erik Wolf and Hans-Peter Schneider, (Stuttgart: Koehler, 1973), 169. 8 This overview is orientated differently from that of Paulson in his recent “general characterization of neo-Kantianism” (cf. Stanley L. Paulson, “Hans Kelsen und Gustav Radbruch: Neukantianische Strömungen in der Rechtsphilosophie,” in Marburg versus Südwestdeutschland: Philosophische Differenzen zwischen den beiden Hauptschulen des Neukantianismus, eds. Christian Krijnen and Andrzej Noras, (Würzburg: Königshausen & Neumann, 2012), 141–162, 141–145). Paulson, of course, has addressed Kelsen’s relationship to Marburg and South-West neo-Kantianism in many respects. His aim is not so much to defend as to understand Kelsen. In addition, see, Stanley L. Paulson, “Konstruktivismus, Methodendualismus und Zurechnung im Frühwerk Hans Kelsens,” Archiv des öffentlichen Rechts 124, no. 4 (1999) 631–657; “Der fin de siècle Neukantianismus und die deutschsprachige Rechtsphilosophie,” in Neukantianismus und Rechtsphilosophie, ed. Robert Alexy et al. (Baden-Baden: Nomos, 2002), 11–21; “Faktum/Wert-Distinktion, Zwei-Welten-Lehre und immanenter Sinn: Hans Kelsen als Neukantianer,” in Neukantianismus und Rechtsphilosophie, 223–251; “Der Normativismus Hans Kelsens,” Juristenzeitung 61 (2006) 529–536; “Konstitutive und methodologische Formen: Zur Kantischen und neukantischen Folie der Rechtslehre Hans Kelsens,” in Kant im Neukantianismus: Fortschritt oder Rückschritt?, eds. Marion Heinz and Christian Krijnen, (Würzburg:

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information. However, it is without direct reference to Kelsen. In c­ ontrast, section 2 will apply results from Part one to Kelsen’s analysis of law: I will discuss the concept of natural law and its transcendental transformation in the philosophy of leading figures of the Southwest School,9 taking Kelsen’s analysis of law, especially of natural law into account. This leads to insights into Kelsen’s philosophical relationship with the Southwest School of neoKantianism, a relationship much more extrinsic than Kelsen’s terminology of “being” versus “ought,” “reality” versus “values” or “norms” and the like would suggest. From the perspective of the Southwest School of neo-Kantianism, Kelsen is not a neo-Kantian, but a dogmatic philosopher of law, who fails to address the question of the foundations of law in an objective sense: Kelsen’s reference to a first historical law and his focus on generating methodologically correct laws proceeding on that basis presupposes the objective criterion of law. This objective criterion is at stake in a Kantian and neo-Kantian determination of law; it concerns law in its objective validity, i.e., the famous and far-reaching Kantian and neo-Kantian questio iuris, which in this case is about the cultural phenomenon of law. From his own perspective, of course, Kelsen Königshausen und Neumann, 2007), 149–165. For a discussion of Paulson’s work, focusing on Rickert, see Christian Krijnen, “The Juridico-Political in South-West neo-Kantianism: Methodological Reflections on its Construction” in The Foundation of the Juridico-Political: Concept Formation in Hans Kelsen and Max Weber, eds. Ian Bryan, Peter Langford and John McGarry, (Abingdon: Routledge, 2016) 61–76. 9 For a discussion of Kelsen and the Marburg School of neo-Kantianism, see the previously mentioned texts of Paulson as well as: Geert Edel, “The Hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen,” in Normativity and Norms: Critical Perspectives on Kelsenian Themes, eds. Stanley L. Paulson and Bonnie L. Paulson, (Oxford/New York: Clarendon Press; Oxford University Press, 1998), 195–219; Helmut Holzhey, “Die Transformation neukantianischer Theoreme in die Reine Rechtslehre Kelsens,” in Hermeneutik und Strukturtheorie des Rechts, eds. Michael W. Fischer, Erhard Mock and Helmut Schreiner, (Wiesbaden: Steiner, 1984), 99–110; Holzhey, “Kelsens Rechts- und Staatslehre in ihrem Verhältnis zum ­Neukantianismus,” in Untersuchungen zur Reinen Rechtslehre, eds. Stanley L. Paulson, Robert Walter and Stefan Hammer, (Wien: Manz, 1986), 167–192; Holzhey, “Rechtserfahrung oder Rechtswissenschaft – eine fragwürdige Alternative. Zu Sanders Streit mit Kelsen,” in Reine Rechtslehre im Spiegel ihrer Fortsetzer und Kritiker, eds. Ota Weinberger and Werner Krawietz, (Vienna/New York: Springer, 1988), 47–75. Aspects of Kelsen’s conception such as shaping the philosophy of law as a logic of the science of law or holding that foundations are subject to changes, partly fit in with the Marburg School but do not, for the most part, fit with the Southwest School. In recent years, the influence of South-West neo-Kantianism on the philosophy of law in the early twentieth century has been addressed in the PhD studies of Sascha Ziemann, Neukantianisches Strafrechtsdenken: Die Philosophie des Südwestdeutschen Neukantianismus und ihre Rezeption in der Strafrechtswissenschaft des frühen 20. Jahrhunderts, (Baden-Baden: Nomos, 2009) and Friederike Wapler, Werte und das Recht: Individualistische und kollektivistische Deutungen des Wertbegriffs im Neukantianismus, (Baden-Baden: Nomos, 2008). Both authors correctly identify that Kelsen was influenced by the Marburg and the South-West school, but was not a typical representative either one of them.

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transcends positivism proper as, for Kelsen, law conceptually rests on the foundational norm (Grundnorm) as the ultimate “hypothesis” of law. According to the standards of transcendental philosophy, however, this hypothesis turns out to be an inadequate expression of the idea of law, i.e., the foundation of law. 1

Philosophy as Philosophy of Culture and Values

1.1 The Problem of Foundations and Validity In order to grasp neo-Kantianism as a philosophical movement, it is important to see that neo-Kantianism primarily understands philosophy as a science of foundations. As such, neo-Kantianism underscores the basic intention of metaphysics to address fundamental questions concerning our understanding of the world and ourselves.10 From a historical point of view, Plato is important here for the neo-Kantians:11 Plato showed that we can only understand the foundations of both things and our knowledge of them if we assume ideas that transcend sensible experience. The neo-Kantians thus agreed with Plato that philosophy should be idealism. However, although Plato tried to understand ideas as principles for all that is, his classical metaphysical position insufficiently differentiates between being and knowledge, ontology and logic. He understands ideas as themselves a type of being, i.e., a general, transcendent, non-sensible and proper being. Kant’s project of transcendental philosophy brought to an end such a ­reification of ideas. The domain of philosophical foundations, “the transcendental” so to speak, is discovered to be a domain of principles that are the ground for the validity of thought and action as such. These principles should not be ­understood as a type of being, but rather as a whole of principles of validity. That is, they must be seen as conditions that first enable and direct our thought and action. Thus, principles are to be conceived of as preceding experience without losing their intimate relation to experience. Put in more general terms, any putative ontology presupposes a transcendental logic.12 10 11

12

For a more extensive consideration, see Christian Krijnen, Nachmetaphysischer Sinn: Eine problemgeschichtliche und systematische Studie zu den Prinzipien der Wertphilosophie Heinrich Rickerts (Würzburg: Königshausen & Neumann, 2001), Chapters 1–3. Cf. on Plato and neo-Kantianism e.g. Helmut Holzhey, “Platon im Neukantianismus: Einleitung und Überblick,” in Platon in der abendländischen Geistesgeschichte: Neue For­ schungen zum Platonismus, eds. Theo Kobusch and Burkhard Mojsisch, (Darmstadt: Wiss. Buchges., 1997), 227–240, and Karl-Heinz Lembeck, Platon in Marburg: Platon-Rezeption und Philosophiegeschichtsphilosophie bei Cohen und Natorp, (Würzburg: Königshausen & Neumann, 1994). Cf. on Kant and neo-Kantianism: Heinz and Krijnen, Kant im Neukantianismus.

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For Kant, knowledge has its ground in the cognitive relation which is ­defined in terms of the a priori conditions that make knowledge and the objects of knowledge first possible. The objective validity of these conditions lies in their function to enable possible experience, not in their relation to a supersensible world. 1.2 The Spiritual Background This systematic link to the history of philosophy is only one aspect of neoKantianism. Another aspect concerns the fact that a philosopher never operates in a cultural vacuum, but is also always imbued with the spirit of his own age. Neo-Kantianism also reacts to its cultural context and must be understood from this perspective. The cultural or spiritual context of neo-Kantianism is a complex one. I will highlight one important line of influence. This line starts with Hegel’s death as a historical date that has symbolic meaning for the history of philosophy: German Idealism had lost its leading spiritual position in Germany. Henceforth, natural science, a more historical orientation, realism, the general “loss of illusions” gradually came to dominate intellectual culture. This provoked a kind of post-idealistic identity crisis.13 With Hegel’s death his philosophy and the Hegelian conception of the unity of facticity and meaning, of reason and reality, had also faded. As a ­result, not only the influential theme of “worldview” (Weltanschauung), suggesting a situated perspective on totality, could spring up and grow popular, but also all kinds of naturalism and scientific reductionism, evoking loss of meaning, of the r­ ichness and depth of life, sprouted. The ghost of nihilism, of a ­metaphysical void dawned. This spiritual background points already to neo-Kantianism: ­ NeoKantianism tries to overcome the above-sketched post-idealistic gap between “is” and “ought.” The situation becomes even more complex, as the empirical ­sciences appeared to be emancipated from philosophy and became wholly ­independent. Hence, the question arose: what is the purpose of philosophy? 1.3 Neo-Kantianism as Epistemology By the middle of the nineteenth century, marking out and making sense of the field of distinctively philosophical investigations had become problematic.14 13 14

Cf. the analysis of Herbert Schnädelbach, Philosophie in Deutschland 1831–1933, (Frankfurt am Main: Suhrkamp, 1983). Cf. for the neo-Kantian view on this, for example, Heinrich Rickert, System der Philosophie: Erster Teil: Allgemeine Grundlegung der Philosophie, (Tübingen: Mohr Siebeck, 1921), Chap. 1; Ernst Cassirer, Das Erkenntnisproblem in der Philosophie und Wissenschaft der neueren Zeit. Teil 4, Nachdr. d. 2. (Darmstadt: Wiss. Buchges., 1994), 19–26; or the

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This problem leads us directly to the beginning of neo-Kantianism. In reaction to the identity crisis of philosophy, neo-Kantianism, both in its early and its mature forms, makes a case for the rehabilitation of philosophy. This rehabilitation starts with a clear commitment to epistemology (Erkennt‑ nistheorie) as the ultimate foundational discipline of both philosophy and the other sciences.15 To be sure, this does not at all imply a reduction of ­philosophy to epistemology. Neo-Kantian philosophy is about culture in the broad sense, not just about knowledge and science in the narrow sense. With respect to the rehabilitation of philosophy, the neo-Kantians, as the epithet suggests, return to Kant. Of course, many regard neo-Kantianism as primarily an epistemological Kantian movement. There are plenty of reasons for doing so. Widespread ­topical and methodological uncertainty in the universities led philosophers, such as Eduard Zeller, and scientists, like Hermann von Helmholtz, to attempt to provide philosophy with its own topic and its own method, while at the same time discussing the methods and principles of the non-philosophical sciences, which were developing ever so rapidly in their time. Such attempts led to what at the end of the 1870s became known as the Marburg and Southwest Schools of neo-Kantianism. Fairly soon these schools came to dominate the epistemological debates of the nineteenth century. It is therefore not entirely untrue to see neo-Kantianism as primarily an epistemological movement. However, more recent research on neo-Kantianism suggests that this view is responsible for much confusion about neo-Kantianism. In particular, the cultural-philosophical nature of neo-Kantianism as a reaction to a crisis has, as a result, been insufficiently acknowledged. At present, it is emphasized that questions regarding worldviews were in fact the primary orientation behind the “logical” preoccupations of the neo-Kantians.16 Despite the many differences in neo-Kantian theories,17 it is a modern philosophy of culture that

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s­ ubsequent views of Alwin Diemer, ed., Beiträge zur Entwicklung der Wissenschaftstheorie im neunzehnten Jahrhundert, (Meisenheim am Glan: Hain, 1968) and Schnädelbach, Philosophie in Deutschland, 88, 118. In this respect, Eduard Zeller’s “On the meaning and the task of epistemology” (Eduard Zeller, “Über Bedeutung und Aufgabe der Erkenntnistheorie (1862),” in Vorträge und ­Abhandlungen ii (Leipzig: Fues, 1877), 479–496) has become one of the famous founding texts. Cf., for example, the initial contributions of Homann, Orth, Malter, Tenbruck in Helmut Holzhey and Ernst W. Orth, eds., Neukantianismus: Perspektiven und Probleme, ­(Würzburg: Königshausen & Neumann, 1994), to which a larger body of work has subsequently been added. Cf. on differences between the Marburg School and the South West School: Krijnen and Noras, Marburg versus Südwestdeutschland.

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unites the Marburg and Southwest neo-Kantians. The interpretation of Kant’s philosophy is equally part of this goal. 1.4 Philosophy as Worldview (Weltanschauung) The concept of “worldview” serves as an abbreviation for the problem of the validity of values and, hence, points to the dispute about how culture is to be shaped. Nihilism, the loss of faith in the rationality of the world and the values assumed to be valid, is not only a major challenge to neo-Kantianism, but also a concern of many other scientists and thinkers towards the end of the nineteenth century, for example Bergson, Sorel, Durkheim, Dilthey, Weber, Simmel, Michels, Mosca, Pareto. To understand neo-Kantianism properly, however, it is important that the emphasis on the cultural-philosophical aspect does not lead one to disregard the specific way in which the neo-Kantians put culture on the philosophical agenda. Not just that neo-Kantianism can be understood as a philosophy of culture and that it understands itself as such, but also how it is to be seen as a philosophy of culture is what makes up the peculiar nature, unity, the relation to Kant and the argumentative potential of neo-Kantianism. 1.5 “Back to Kant” The labels “neo-Kantianism” or “Critical philosophy” (Kritizismus) are best restricted to the Marburg School – whose main representatives are Hermann Cohen, Paul Natorp and Ernst Cassirer – and the Southwest German School, also called the Baden School or Heidelberg School – whose protagonists were, in particular, Windelband, Rickert, Lask and Bauch. Both schools are formed at the end of the 1870s. They represent the mature theories of neo-Kantian philosophy.18 The famous dictum “back to Kant,” originating with Otto Liebmann,19 one of the pathfinders for neo-Kantianism, encapsulates in a concise and programmatic way the determined recourse to Kant of the leading neo-Kantians. 18

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Of course, broader conceptions of neo-Kantianism exist. Some identify as many as seven sub-schools. Recently a discussion has arisen concerning the question of whether the division of neo-Kantianism proper should consist of three schools: the mentioned two and a type of neo-Kantianism called “realist critical philosophy” (realistischer Kritizismus). The latter includes philosophers like Alois Riehl, Otto Liebmann, Richard Hönigs‑ wald and Bruno Bauch. See on this subject, the dispute between Krijnen and Zeidler in Christian Krijnen and Kurt W. Zeidler, eds., Wissenschaftsphilosophie im Neukantianismus, (Würzburg: Königshausen & Neumann, 2014). In his book Kant und die Epigonen: Eine kritische Abhandlung (1865) ed. Bruno Bauch, (Berlin: Reuther & Reichard, 1912) in which he compared the German idealists, Herbart, Fries and Schopenhauer with the Critical philosophy of whose “absoluteness” and

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­ owever, Kantian motives can be found not only in neo-Kantianism, but in H almost every philosophical school of thought in the nineteenth and twentieth century (at least in the continental tradition).20 Therefore, an additional feature marking out neo-Kantianism is needed. Windelband formulated a dictum not less famous than that of Liebmann: “To understand Kant rightly means to go beyond him.”21 For the leading figures of neo-Kantianism this dictum means that the return to Kant is not a mere reproduction of his historical position; to understand Kant means to further the development of philosophy with the help of Kant. However, not even the tendency to advance philosophy by Kantian means is specific to neo-Kantianism. Already German idealists such as Fichte and Hegel were committed to this goal. Again, an additional feature is needed to determine the specific nature of neo-Kantianism. 1.6 The Problem of Validity At the centre of the efforts of the neo-Kantians, as indicated earlier, is the problem of validity (Geltung, Gültigkeit). Taking the validity of our theoretical and non-theoretical – practical, aesthetic, religious – endeavours as its theme constitutes the core of neo-Kantian philosophy. For neo-Kantianism, philosophy is the theory of validity, as insinuated in the above remarks on Plato and Kant. In developing a theory of validity, the neo-Kantians not only follow Plato’s conviction that philosophy can only succeed as idealism, but at the same time emphasize a fundamental aspect of Kant’s critical philosophy, namely, that the determinacy of human endeavours, being products of reason, is to be established by means of a determination of the principles of their validity. Neo-Kantians, thus, especially appreciate Kant’s insight into the problem of validity (cf. paradigmatically the quid iuris issue in Kant’s Transcendental Deduction of the categories).22 At the same time, they find it important to

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“certainty” (ibid, 13) he was convinced, Liebmann wrote at the end of each chapter: “Hence, we must return to Kant.” For example, in post-Kantian German Idealism, in the work of Fries, Herbart, Lotze, Laas, Avenarius, Mach, Dilthey, Jaspers, Heidegger, the Frankfurt School, the transcendental pragmatics of Apel, and even in postmodern philosophers like Lyotard and Foucault. Cf. Wilhelm Windelband, Präludien: Aufsätze und Reden zur Philosophie und ihrer Geschichte, 5th ed., 2 vols. (Tübingen: Mohr Siebeck, 1915), Vol. i, iv. On the occasion of the hundredth anniversary of Kant’s death, Windelband posed the question “how to understand Kant correctly in order to go beyond him?” (Windelband, “Nach hundert Jahren (1904),” in Präludien i, 147–167, 148). The terminology used is, in this respect, only of secondary relevance. Terms like validity (Geltung, Gültigkeit), value (Wert), meaning (Sinn, Bedeutung, Gehalt), justification

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d­ evelop further Kant’s concept of philosophy, rather than resort to metaphysical speculation as did, according to their opinion, the German idealists or regard the method of philosophy in terms of a positivistic approach to the nature of validity. Neo-Kantians therefore do not only reactivate Kant’s contribution to philosophy; their aim is to renew it in the light of a different constellation of philosophical problems from Kant’s. Against post-Kantian German Idealism, neo-Kantians stress that ­philosophy should not study things qua their being, but focus on the validity of thinking things qua their being.23 In some respects one could see Hegel’s logic as a development of Kant’s transcendental logic. On this reading, Hegel’s analysis of the determinations of thought leads to a fundamental set of a priori conditions. For the neo-Kantians, however, Hegel’s logical system is not just a ­totality of logical conditions for the validity of thought; they reproach him for having conceptualized thought as itself a metaphysical reality of spirit. In their view, Hegel contaminates the radical foundations of modernity with classical metaphysics, hence departing from the framework of Kantian transcendental philosophy.24 Anxious not to take the conditions of validity of thought of reality again as itself a reality, the neo-Kantians discriminate sharply between validity and being. Hence, they try to correct the assumed metaphysical position of Hegel by harking back to Kant’s critical arguments. According to the neo-Kantians, ­validity and being are related to each other in such a way that, following Kant, being has its foundation in validity, and, thus, ontology in epistemology. ­According to their understanding of Kant’s transcendental philosophical

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(Rechtfertigung), foundation (Grundlage, Grundlegung, Begründung) specify the general problem of validity. Cf., for example, the famous statements of Hermann Cohen, Kants Begründung der Ethik: Nebst ihren Anwendungen auf Recht, Religion und Geschichte, 2nd ed., (Berlin: Cassirer, 1910), 27 f. and Ernst Cassirer, Das Erkenntnisproblem in der Philosophie und Wissenschaft der neueren Zeit. Teil 2, Nachdr. d. 3., (Darmstadt: Wiss. Buchges., 1994), 662. Cf. on Hegel and neo-Kantianism, recently, Christian Krijnen, Philosophie als System: Prinzipientheoretische Untersuchungen zum Systemgedanken bei Hegel, im Neukantianismus und in der Gegenwartsphilosophie, (Würzburg: Königshausen & Neumann, 2008); and from the older literature: Werner Flach, Negation und Andersheit: Ein Beitrag zur Problematik der Letztimplikation, (München; Basel: Schwabe, 1959); Helmut Holzhey, “Hegel im Neukantianismus: Maskerade und Diskurs,” il cannocchiale. rivista di studi filosofici, 1/2 (1991) 9; Heinrich Levy, Die Hegel-Renaissance in der deutschen Philosophie, (Charlottenburg: Pan, 1927); Siegfried Marck, Die Dialektik in der Philosophie der Gegenwart, 2 vols, (Tübingen: Mohr Siebeck, 1929–31); Wolfgang Marx, Transzendentale Logik als Wissenschaftstheorie: Systematisch-kritische Untersuchungen zur philosophischen Grundlegungs‑ problematik in Cohens ‘Logik der reinen Erkenntnis’, (Frankfurt am Main: Klostermann, 1977), 133 ff.

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method, philosophy has as a point of departure the given, i.e., a concrete ­experience, or the fact (Faktum) of culture in order to establish its principles, as Kant would put it: the conditions of its possibility. 1.7 Pure Subject versus Empirical Subject For the neo-Kantians, as presumed successors of Kant, philosophy does not take as its theme the world in terms of a direct relation to objects, as do the non-philosophical sciences. They do not assume the “I” or “consciousness” to be an empirical phenomenon, nor do they take the relation between such empirical phenomena and the world to be a philosophical topic. Rather, philosophy aims at determining the validity structure of experience. Time and again, neo-Kantians criticize all kinds of metaphysical, psychological, physiological and what nowadays is called (neo-)structuralist and evolutionary-biological conceptualizations of epistemology, or, more comprehensively, of the philosophy of culture. Such attempts understand knowledge (and other human endeavours) as an ontic relationship. According to the neo-Kantians, these deficient conceptualizations, including their agnostic and relativistic implications, deprive epistemology of its fundamental theme: the validity of knowledge. Neo-Kantians exclude the empirical subject and its anthropological and metaphysical connotations from study insofar as they primarily focus on a “pure subject.” This subject, in the sense of the whole of the principles of validity (a priori structures, values, etc.), is understood as the foundation of all that can be valid and hence as the ground for the possibility of objectivity. By means of this strategy, which discriminates sharply between, on the one hand, a “pure” subject as a foundation of objectivity and, on the other, an “empirical” subject which is grounded on that normative foundation, the neo-Kantians seek to overcome what they consider to be certain exaggerated positions or naïve, objectivist worldviews whether they are called, for example, naturalism, materialism, psychologism, empiricism, positivism, logicism, fideism, historicism, Lebensphilosophie or nihilism. 1.8 Philosophy of Culture As in theoretical philosophy, the relation between the unconditional norm of the pure subject and its conditional fulfilment by the empirical subject has an equally central role in the philosophy of culture. This proportional relation of validity makes clear that the duality of facticity and meaning, of reason and reality, of “is” and “ought,” elaborated on in the section on the “spiritual background,” is grounded on premises that turn out to be false.

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We may illustrate this through Heinrich Rickert’s concept of “meaning.” Meaning is conceptualized as the recognition by the finite rational being called “man” of unconditionally valid theoretic and non-theoretic values. The reciprocal relation of implication and the one-sided relation of foundation between the norm and that for which the norm is, absolute demand and finite fulfilment, principle and the concrete, entails of course that the human production of meaning is characterized by finitude. Therefore, the neo-Kantians deny that the common duality of subject and object as between an empirical subject and an inner or outer world is fundamental to epistemology. They develop another kind of relationship that not only turns out to be more fundamental, but also proves to be of great importance to the development of a philosophy of culture. Starting the philosophical analysis with given cultural phenomena, spheres of culture containing objective validity claims, does not imply that the premise of the analysis is a Faktum that is stipulated dogmatically as valid.25 Rather, the analysis takes such “facta” as problematic, as a validity claim that is in need of philosophical determination and evaluation. According to the neo-Kantians’ understanding of the method of transcendental philosophy, the original determinacy of the different spheres of culture is to be known via an oblique, validity-reflexive disclosure of the constituents of meaning of those spheres of culture, i.e., of the principles of validity of those claims.26 1.9 The Primacy of “Ought” Like Kant, in order to provide a conceptual account of “the world of man,” the neo-Kantians take their standpoint in culture in terms of a system of meaning. With this they aim to show reason itself to be the governing principle of our world, of culture. Take the case of the Southwest School of neo-Kantianism. Unlike the ­Marburg School, the Southwest School does not fall victim to the “intellectualistically narrow”27 focus of Cohen, who initially restricted philosophical 25 26

Cf. for the neo-Kantian doctrine of the Faktum Krijnen, Philosophie als System, 1.3. Heinrich Rickert, Wilhelm Windelband, 2. erw. (Tübingen: Mohr Siebeck, 1929), 17, for example, holds that the conception of Wilhelm Windelband and that of the “school of Hermann Cohen and Natorp” are connected not only by the “reference to Kant” and the “rejection of a metaphysics of ‘things in themselves,’” but also by the endeavour to develop a “comprehensive philosophy of culture, hence, not to restrict oneself to epistemology.” 27 “Intellektualistische Verengung,” Helmut Holzhey, “Die Marburger Schule des Neukantianismus,” in Erkenntnistheorie und Logik im Neukantianismus: Eine Textauswahl, ed. Werner Flach and Helmut Holzhey, (Hildesheim: Gerstenberg, 1980), 15–33, 19.

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analysis predominantly to the cultural fact of scientific knowledge, although, in a later phase, Natorp and Cassirer broadened the scope of philosophy. From the start, the Southwest School takes culture in its widest sense, striving for its philosophical comprehension. The Southwest School conceives of culture as determined by values. From a philosophical point of view, what is called theoretical culture (“knowledge”) has a logical and a systemic primacy. Already in theoretical philosophy, it turns out that theoretical culture rests on a system of theoretical values (a priori structures, principles), which determine the validity of theoretical endeavours.28 The values that comprise the value “truth” ought to be normative for the thoughts of empirical subjects in order to assure that their thought truly is knowledge of objects, i.e., that thought is objective. This logical relation within the realm of theoretical culture is then transported to other spheres of culture: these too consist of subjects who acknowledge values. In this sense the Southwest School neo-Kantians propagate the primacy of “ought” (Sollen), a primacy of practical reason in its most radical, and not just in its practical sense, namely, in the sense that it encompasses all dimensions of reason.29 They propagate a philosophy of values as a philosophy of culture. Numerous historical and systematic studies of the first decades of the ­twentieth century make clear that the Southwest School is to be seen as a comprehensive philosophy of values. But they also make clear that the concept of value is a fundamental concept: philosophy is essentially about values. The idea of living through a metaphysical crisis fits well with this systematic p ­ erception. After all, the exploration of values should contribute to the overcoming of the post-German-idealist divide between values and reality that threatened to make human orientation both practically impossible and

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In contemporary philosophy such values are called epistemic values, cf., for instance, Adrian Haddock, Alan Millar and Duncan Pritchard, eds., Epistemic value, (Oxford/New York: Oxford University Press, 2009). Cf. for the “primacy of practical reason” e.g. Heinrich Rickert, Fichtes Atheismusstreit und die Kantische Philosophie, (Berlin: Reuther & Reichard, 1899), 44; Rickert, “Zwei Wege der Erkenntnistheorie: Transcendentalpsychologie und Transcendentallogik,” Kant-Studien 14 (1909), 215ff.; Rickert, Der Gegenstand der Erkenntnis: Einführung in die Transzendentalphilosophie, 6. verb. Aufl., (Tübingen: Mohr Siebeck, 1928), vii, 309 ff., 437; Wilhelm Windelband, “Kulturphilosophie und transzendentaler Idealismus (1910),” in Präludien ii, 279–294, 287. Cf. on this doctrine Christian Krijnen, Nachmetaphysischer Sinn, 7.2.3.1. and Krijnen, “Anerkennung, Wirklichkeit und praktische Vernunft im Neukantianismus,” in Das Wirklichkeitsproblem in Metaphysik und Transzendentalphilosophie: Heinrich Barth im Kontext, ed. Christian Graf, (Basel: Schwabe, 2014), 15–51.

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t­ heoretically i­ ncomprehensible. The philosophy of values acts against the culture of nihilism by showing that there are values that are objectively valid. Hence, the concept of “value” – and closely related concepts like “­ meaning,” “ought,” “validity” – has a meaning that goes far beyond its methodological function in the constitution of the subject matters of arts and humanities. It points to the aforementioned metaphysical dimension that contains the grounds of our thoughts and action. The debate is thus not so much about the validity and status of some traditional values. Rather, against the background of the post-idealist conception of reality as value-free and without meaning, the debate focuses primarily on the foundations of our understanding of the world and ourselves. Values traditionally treated by metaphysics, such as truth and morality, unity and plurality, value and reality, function as a framework to enable our understanding of, and dealings with, the world. Hence, the philosophy of values operates against the background of nihilism and aims at elucidating the principles of human existence and the world that humans live in. In conclusion: The main schools of neo-Kantianism take the basic problem of philosophy to be that of the validity of our theoretical and ­non-theoretical endeavours. This problem is to be solved through a determination of the ­principles of validity. These principles are what make up the sphere of the “transcendental.” The transcendental domain, therefore, is not to be confused with the psychology of an empirical subject or with the metaphysics of an absolute reality. Far from declaring the world we live in to be meaningless, the ­neo-Kantians aim to bring to light its philosophical foundations. Hence, they try to understand the rationality of our world and its meaning. The concept of culture functions as a universal and fundamental framework, a framework that was once occupied by metaphysics. This framework is now freed from ontological premises yet is still able to counteract nihilism. 2

Philosophy of Values and the Concept of Natural Law

What does all this mean for the concept of natural law and for the relationship between Kelsen and the Southwest School of neo-Kantianism? First, I will show that it is the transcendental turn concerning foundations of normativity that is prevalent as soon as discussions of natural law arise in the Southwest School. Already here, important differences between these neo-Kantians and Kelsen emerge. Second, I will show that Kelsen identifies reason with God and metaphysics, hence missing the point of the transcendental turn of the leading Southwest neo-Kantians. Kelsen takes Kant’s philosophy not as a radical new

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post-metaphysical way of thought, but as a type of metaphysics. He therefore fails to acknowledge both the material component of reason, so important for Southwest neo-Kantianism, and the distinction between two dimensions of foundations of normativity: a subjective and an objective dimension (in the sense of the Southwest School). Southwest Neo-Kantians on Natural Law: Heading for Transcendental Philosophy That the transcendental turn is relevant for discussing the relationship ­between Southwest neo-Kantianism and Kelsen is evident if we look at the scattered remarks about natural law of neo-Kantians like Windelband, ­Rickert, Bauch, Lask and Cohn – they focus on the natural law doctrine as a model of foundational thought that has to be sublated by the transcendental model, doing justice to its Platonic impetus including the distinction between an ideal and an empirical (positive) realm, while at the same time transforming the supersensible ideal realm into a realm of validity grounds (Geltungsgründe). To begin with, I will show the prevalence of the turn towards a transcendental approach. Then, I will illustrate this prevalence in greater depth on the basis of Bruno Bauch’s essay on “the problem of law in the philosophy of Kant.” In his Einleitung in die Philosophie, Wilhelm Windelband emphasizes – in a way that is partly in agreement with Kelsen’s analysis of the natural law ­tradition – that the opposition between natural law and positive law arose ­rather late, i.e., especially in the Renaissance.30 Modern philosophy, striving for general knowledge with a timeless validity and orientated towards the natural sciences, was eager to develop also “law” from nature, at least from human nature, by means of pure thought, resulting in an opposition between two dimensions of law, as Windelband puts it ironically: the law of jurisprudence and the law of the professor.31 Still, for Windelband this holds for the other disciplines of philosophy too. Hence, Kelsen’s criticism seems to have a good point. However, in conformity with his appropriation of Kant’s transcendental philosophy, for Windelband, philosophy should not attempt to erect ideals, i.e., ideas in individuo,32 but concern itself with the positive, with real phenomena. What distinguishes philosophy from other preoccupations with reality is its 2.1

30 31 32

Wilhelm Windelband, Einleitung in die Philosophie, 3rd ed., (Tübingen: Mohr Siebeck, 1923), 321. Ibid., 322. Kant, KrV, B 596.

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“perspective”; it is only because of this different perspective that philosophy is itself a meaningful undertaking.33 According to the doctrine of the factum as a starting point for philosophical analysis, positive law functions for Windelband as a set of validity claims which has to be acknowledged. However, jurisprudence “presupposes” positive law in its manifold historical appearances as a “given.” For Cassirer in his essay on natural law, as for Windelband, too, the further investigation of this presupposition is the “legitimate side of the conception of the former natural law doctrine.” Its legitimacy is due to the validity problem intrinsically related to human endeavours – the fact that in society and jurisprudence we “assess” law is positive too. Making such assessments “objectively and universally valid,” “justifying them scientifically,” belongs to the “principle” of the “old natural law”; “hence, the philosophical perspective is here too that of a universally valid assessment of the value” (Wertbeurteilung, i.e., in this case: the assessment of the value of law).34 With this result, Windelband has reached the view typical for the neoKantian philosophy of values: philosophy as the “universally valid assessment of value.” For him, in conformity with the overarching criticism of metaphysics in neo-Kantianism, exactly this aspect was “anticipated and intended, but ­accomplished completely mistakenly.” Windelband, whose position in this ­respect prefigures that of Kelsen here, criticizes such erroneous metaphysical thinking which erects “a timeless valid ideal,” utilized for “measuring ­positive law.” The alternative of the Southwest school to this metaphysical aberration is – as indicated in the section about neo-Kantianism – to replace the “ideal” by a “purpose and task”: by the purpose and task law has to fulfil, the purpose and task of which the meaning of law is itself comprised. From this v­ alidity-functional analyses of the meaning of law, the means for realizing law cannot be “deduced logically,” i.e., the “error of the former natural law doctrine.”35 ­Instead, for Windelband, this task of realizing can only take shape as a “­criterion for 33 Windelband, Einleitung in die Philosophie, 323. Quotes without reference refer to the last quoted page. 34 Ibid., 324. 35 From Wilhelm Windelband, Lehrbuch der Geschichte der Philosophie, 17. Aufl., unv. Nachdr. d. 15., durchges. u. erg. Aufl., ed. Heinz Heimsoeth, (Tübingen: Mohr Siebeck, 1980), 370 f., it becomes clear, that Windelband here, in a similar manner to Cassirer in his essay on natural law, has in mind the so-called geometrical method (cf. on this and its problems for determining philosophical foundations: Krijnen, Philosophie als System, Chap. 0), so important for Grotius, Hobbes, Pufendorff, Thomasius, Wolff and others. Kant, then, as the opening sentence of Windelband’s chapter on Kant states, integrated the various motives of the Enlightenment and transformed them into a “fully new conception of the task and the method of philosophy” (Windelband, Lehrbuch der Geschichte der Philosophie, 456.). Cf. Krijnen, Nachmetaphysischer Sinn, 2.4.2, for Windelband’s view on this new method.

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positive law.”36 It should be emphasized that this p ­ hilosophical assessment of positive law does not concern the technical functionality or practicability of the system of positive law, law-making, the administration of justice etc.: this is the domain of jurisprudence – such “empirical” matters are not a theme of philosophy. Philosophy deals with the “purpose of law” in a different perspective – the perspective of “justice” (Gerechtigkeit). Philosophy of law is not empirically about the purpose of positive law, but about what the purpose of positive law should be: it is about what Windelband calls the “ethical purpose of law.”37 In dealing with the natural law tradition, Windelband presents an ­un-Kelsenian, non-positivist, non-metaphysical but transcendental conception of law. The same focus, but accentuating aspects from the philosophy of s­cience, is to be found in Rickert’s Grenzen der naturwissenschaftlichen ­Begriffsbildung. Here, Rickert makes some exemplary remarks on natural law and its relation to historical, i.e., positive, law.38 He emphasizes that the term natural law easily leads to metaphysical misunderstandings, taking the content of natural law as the “absolute reality,” hence, “hypostatizing” the concept of generalities.39 For Kelsen, as for Rickert, natural law mistakenly assumes the shape of the “truly real” law, that appears only “fouled and tarnished” in historical, positive law, leading to the effort to purify positive law as ­“appearance” via thought in order to re-establish its “metaphysical essence.” In a similar manner to Windelband, Rickert criticizes rationalistic types of philosophy for falling victim to this: “only rationalist thought can believe in a ‘natural’ law” – a law that only contains “metaphysical hypostatized general concepts.”40 Rickert, therefore, on the one side is, for methodological reasons, very critical about the natural law tradition. He asserts the necessity for a “complete turning away from rationalistic and naturalistic thinking in favour of historical thinking” in order to overcome concept realism (i.e., hypostatizing concepts). On the other side, however, as for Cassirer and Windelband, the question “which lies behind the discussions about the relevance of natural law” remains equally at stake for Rickert. Moreover, it now is possible to really get to “the problem of the philosophy of law”: is it possible “to confront the mere 36 Windelband, Einleitung in die Philosophie, 324. 37 Ibid., 325. 38 Heinrich Rickert, Die Grenzen der naturwissenschaftlichen Begriffsbildung: Eine logische Einleitung in die historischen Wissenschaften, 5. verb. u. erw. Aufl., (Tübingen: Mohr Siebeck, 1929), 721 ff. 39 Ibid., 722. 40 Ibid., 723.

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historical law […] with a universally valid or ‘normative’ law”?41 Hence, Rickert indicates the problem of the validity of positive law itself. Against the ­metaphysical tradition, focused on a supersensible reality, following the path of Kant’s transcendental turn, law becomes, for Rickert, the “concept of a value” (Wertbegriff);42 it also remains necessary to form a “valid concept of the value of law.” This concept can, as for Windelband and Cassirer, only be “formal” (in the transcendental sense);43 and it is equally the case for these t­hinkers, as for Rickert, that such a concept of law – in contrast to metaphysics of natural law – is compatible with positive law as it determines “what d­ eserves the name law.” Hence, as Plato introduced the supersensible world of ideas in order to understand the sensible world and Kant the sphere of the transcendental to understand that of the empirical, Rickert introduces the concept of value. The philosophical problem of law for him is the quest for the principles of the validity of law as such. This surpasses the natural law tradition: according to Rickert, philosophy of law is not a natural law doctrine, but a “doctrine of the normative valid law.” Striving philosophically for a materially fulfilled law – see Kelsen’s reproach of a double order of a natural and a positivist law44 – is reducible to the pursuit of a “phantom.” Instead, philosophy should reflect transcendentally on the principles of validity of law as it occurs in history. As a result of such an intrinsic reflection on the meaning of law, philosophy develops the “formal concept of law.” The same concern animates Emil Lask, who explicitly refers to Windelbands’s “fundamental principle of philosophical investigations,” separating a philosophical, value perspective on reality and an empirical, positive perspective on reality.45 His essay on Rechtsphilosophie contains a relatively ­extensive discussion, perhaps even the most extensive discussion by one of the main figures of South-West neo-Kantianism, of the natural law tradition. Here too, immediately, the transcendental point of view is brought in: Lask starts with 41 42 43 44

45

Ibid., 723 f. Ibid., 724. Not in abstraction from the content, but in relation to it; hence in the sense of a formality that defines the objectivity of the material, a material formality. See, on this, the last section of this chapter. Cf. paradigmatically Hans Kelsen, “Naturrecht und positives Recht (1927/28),” in Die Wiener rechtstheoretische Schule, 215–244. This essay is organized around the discussion of positive law and natural law as two systems of norms that cannot be valid at the same time. Another fine example of his criticism is contained in Hans Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” 301 ff. Emil Lask, “Rechtsphilosophie,” in Gesammelte Schriften, ed. Eugen Herrigel, vol. i, (Tübingen: Mohr Siebeck, 1923), 275–332, 287.

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distinguishing between philosophy of law as a “metaphysics of natural law” and a “critical philosophy of law”; both address the “absolute meaning of law and justice,” but they differ “fundamentally” as far as the relationship between the absolute value and empirical reality is concerned; hence, Lask distinguishes sharply between “natural law and a non-metaphysical philosophy of law.”46 Also for Lask, a critical philosophy of values overcomes the Platonic “dual world theory,” typical of a metaphysics of law, by a “juridical one world theory”; this leads to the further distinguishing of the perspective of theory ­formation into two methods: a “philosophical and an empirical method,” the philosophical method dealing with reality in its “absolute value content.”47 Critical philosophy of law is not concerned with a “superempirical law,” rather, it is concerned with the “superempirical meaning of empirical law” and, therefore, with “assessing, evaluating” empirical law in its “ultimate legitimacy.”48 It thematizes the “ultimate formal goals of law, its place in the realm of cultural values, its relevance for life; it determines the transcendental place of law.”49 For Lask also, the natural law doctrine falls victim to “hypostasizing” values into a supersensible reality: it is “metaphysical rationalism, hypostasizing v­ alues of law into realities of law.”50 Before focusing systematically on methodological aspects of the science of law,51 Lask examines the formal and material variants of the natural law doctrine, its deficiencies, and a philosophy of law proper, as well as the way in which the value of law in the system of values is conceived of in contemporaneous philosophy of law. In conformity with this outline of the path of thought of the Southwest School, Jonas Cohn, in his voluminous Wertwissenschaft, devotes only a few words to natural law. For him, law has to be determined in terms of the system of values.52 This “law of reason,” then, functions as a criterion to “assess” “valid” law, i.e., state-made law. In accordance with the transcendental turn in conceptualizing the foundations of normativity, for Cohn, the idea of a law of reason establishes a set of norms for assessing positive law from within itself, as a set of enabling conditions (for outer actions),53 hence, not, as in Kelsen’s theory, as a methodological rule (for law-making).

46 47 48 49 50 51 52 53

Ibid., 279, cf. 286. Ibid., 279 f. Ibid., 280. Ibid., 86. Ibid., 280. Ibid., 306 ff. Jonas Cohn, Wertwissenschaft, (Stuttgart: Fromanns, 1932), 350. Ibid., 351.

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Within the Southwest School, Bruno Bauch devotes an essay to Das Rechts‑ problem in der Kantischen Philosophie.54 This essay underlines the emphasis on the transcendental turn in thinking about law. Indeed, Bauch’s essay essentially concerns the “demonstration of the problem of law” and its “place” in the “system of critical philosophy.”55 Bauch immediately turns towards the relevance of the “questio iuris, what is valid (rechtens),” in contrast to the “questio facti.”56 The questio iuris is supposed to be the truly “critical” one, and also encompasses the “method of critical philosophy (Kritizismus).” Following the orientation of the Southwest School, including its Kant interpretation, the focus of philosophy is upon the normative foundation of cultural phenomena, their “validity and value.” The specific question of a philosophy of law, then, is the questio iuris concerning “law itself.”57 Bauch sharply distinguishes between the factual recognition of positive rules – validity as the fact of “subjective” recognition – and the “objective” meaning of validity: a notion of the validity of rules which is independent from their factual recognition.58

54

55 56 57 58

Bauch was rather influential within the philosophy of law too. From 1912, he was a coeditor of the journal Zeitschrift für Rechtsphilosophie in Lehre und Praxis. His pupils in the realm of philosophy of law extend from Julius Binder to Fritz Münch and Hans Welzel (as noted by Sven Schlotter, Die Totalität der Kultur: Philosophisches Denken und politisches Handeln bei Bruno Bauch, (Würzburg: Königshausen & Neumann, 2004), 114 f., notes 449 and 451). Although Lask gives a fine historically oriented South-West neo-Kantian description of the formal and material relevance of a ‘critical’ philosophy of law, of course acknowledging the idea of a system of absolute values (ibid., 289 f.), systematically he focuses on the ‘methodological’ profile of a theory of law, the ‘logic of the science of law’ (ibid., 306 ff.). Bruno Bauch, “Das Rechtsproblem in der Kantischen Philosophie,” Zeitschrift für Rechts‑ philosophie in Lehre und Praxis 3 (1921),1, 2. Ibid., 3. Ibid., 4. Cf. also Bruno Bauch, Immanuel Kant, 3rd ed., (Berlin; Leipzig: de Gruyter, 1923), 356, where Bauch distinguishes a doctrine of law containing a set of empirical propositions from a “philosophical doctrine of law,” applying Kant’s questio iuris to the ius itself. Bauch, “Das Rechtsproblem in der Kantischen Philosophie,” 4 f. Also, in his article on ethics, Bauch develops the problem of law starting with the distinction between a subjective and an objective meaning of validity. Here it again becomes clear that, for Bauch, law is a timeless valid “value,” having its place in a “system of values” (Bruno Bauch, “Ethik,” in Die Kultur der Gegenwart, ed. Paul Hinneberg, 3rd ed. Teil i, Abt. 6, (Berlin; Leipzig: Teubner, 1924), 239–275, 268 and 259 f.; cf. on this also Christian Krijnen, “Entstellter Kantianismus? Zum Problem der Konkretisierung des Guten in Bruno Bauchs Ethik,” in Philosophie und Zeitgeist im Nationalsozialismus, eds. Goran Gretić and Marion Heinz, (Würzburg: Königshausen & Neumann, 2006), 251–268). Justice, then, turns out to be a relationship between ‘is’ and ‘ought,’ value and reality, and hence, law and justice are, for Bauch, intrinsically related to each other – unlike in Kelsen’s positivism.

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Misunderstanding this distinction leads to a result we can find in Kelsen’s work: in conformity with the methodological impetus of his basic norm, ­“valid law” (positive law) is “correct law” (richtiges Recht), incorrect law a ­contradiction. For a Kantian type of philosophy, the question about valid law in the positivist, Kelsenian, sense is not the true philosophical one, because it is a questio facti: it concerns subjective validity. Philosophy should deal with the questio iuris, the objective validity of law, with the objective value of law which ought to be recognized subjectively.59 This objective dimension of law is “presupposed” in order to be able to determine any historically existing social-psychological fact as “law”; this determination presupposes the “objective validity” of law as an “objective criterion” – i.e., the proper problem of a philosophy of law.60 Hence, from this outline of the Kant interpretation of the Southwest neo-Kantian perspective, Kelsen’s recourse to a methodology of law-making on the basis of a historical first constitution is nothing but a dogmatic type of reasoning, failing to do justice to the capacity of reason and, consequently, to understand and account for the normative claims entailed in law. For Bauch, this objective law is not the historical, positive law, but the “idea” of law.61 This idea is presupposed in qualifying any factual appearance as an appearance of law, presupposed in any discussion of the development, progress or decline of law, presupposed also in the process of distinguishing ­between law and injustice (Unrecht) etc. The idea of law concerns law in terms of tasks and purposes. Realizing the idea of law is an infinite task for subjects. On the one side, Kelsen is not a primitive positivist in the sense that for him all subjectively valid law is law: Kelsen’s basic norm is a non-positivist foundation of law. Kelsen himself even sees here a certain familiarity between his Reine Rechtslehre as a “theory of legal positivism” and the natural law tradition.62 On the other, more important side, however, for Kelsen’s positivism the “validity” of positive law does not depend on its “content,” but on its being generated a­ ccording to the basic norm. Kelsen rejects any higher, “unconditional,” “moral-political,” “fix” criterion for assessing positive law.63 Hence, he does not accept the idea of law as a normative set of values formally determining the content of law. Kelsen’s basic norm is not an equivalent for the neo-Kantian idea of law. According to the neo-Kantians, law founded on this idea is positive 59 60 61 62 63

Bauch, “Das Rechtsproblem in der Kantischen Philosophie,” 6. Ibid., 6 f. Ibid., 8 f. Cf. for Bauch’s concept of the idea Krijnen, Philosophie als System, 5.3.2 f. Hans Kelsen, “Vom Geltungsgrund des Rechts,” 1426 f. Ibid., 1425, 1427. See, on this, the next section.

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law: subjective recognition of norms is based upon objective law. Of course it could be that a specific law generated according to Kelsen’s basic norm fulfils the objective conditions of law – but Kelsen’s subjective, positivist, factual orientation hinders the further determination of this ultimate foundation of law itself, leaving it implicit and only operative in the background instead of making it explicit philosophically. Bauch stresses that Kant’s “rational philosophy of law” and pre-Kantian “rationalism” are really two worlds apart from each other; for him, Kant’s transcendental philosophy integrates fruitfully the historical development of positive law in a transcendental, non-metaphysical conception of the idea of law.64 2.2 Reason versus God as Source of Normativity Already the programmatic impetus of Kant’s transcendental philosophy, ­going beyond metaphysics and empiricism, sheds light on the overarching and ­decisive aspect of Kelsen’s philosophy of law as a sublated, consequent and prominent form of positivism: the concept of reason. As we have seen, pre-Kantian metaphysics holds that grounds for the objective validity of human e­ ndeavours are secured by supersensible, “transcendent” beings. Empiricists conceive of such grounds as being guaranteed by “immanent” (sensible) b­ eings, making it, however, incomprehensible as to how truly human, ­self-determined and at the same time intersubjectively valid orientation is possible. Against both metaphysics and empiricism, Kant paradigmatically holds and shows what it means to approach the subject of foundations (principles, validity qualifications) philosophically. According to what is historically known as his historical Copernican turn, and what is called from a philosophical point of view his transcendental turn of the foundational project of p ­ hilosophy, certainty with regard to the validity of human endeavours can only be reached by the transcendental route. On this route, to use the usual (though non-Kantian) term, “subjectivity” turns out to be the principle of “objectivity,” of possible relations to objects, hence the ground for validity. Subjectivity here stands for the entirety of the faculties of the subject; an entirety of faculties that can neither be naturalized nor culturalized in the sense of a mere multicultural ­plurality.65 In another terminology, such subjectivity is called reason (Vernunft). Transcendental knowledge of human endeavours leads to a set of grounds for v­ alidity, a set of values (as a transcendental 64 65

Bauch, “Das Rechtsproblem in der Kantischen Philosophie,” 12. This philosophy of subjectivity is, therefore, also not to be confused with a kind of egology: subjectivity as a set of principles of validity is conceived of as a “general” subjectivity, binding all “human subjects” as it defines what it means to be human.

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­ hilosophy of ­values would express it), which cannot be understood by referp ring to s­ omething outside the structure of these endeavours themselves, i.e., by the reference to some kind of a being as in metaphysics or empiricism. It can only be understood by reference to the validity claim and validity structure of human endeavours themselves.66 Kelsen, however, surprisingly enough and based on a number of basic misunderstandings, time and again presents Kant as a metaphysical thinker, i.e., as representative of the natural law tradition67 as conceived by Kelsen.68 Moreover, and from a programmatic point of view, what is both central and striking is that Kelsen, in his discussion of the natural law tradition without further ado continuously identifies (objective)69 reason as a source of normativity with God. Natural law is not an artificial product, established (gesetzt) by humans,

66

67

68

69

With this reference to the claim of human endeavours themselves, transcendental knowledge is about humanity, about what makes us human, about the humanum: the normative dimension of human thinking and acting. The fundamental factors guiding concrete subjects, therefore, are no longer metaphysical entities, but values which are defining aspects of humanity itself. They are valid categorically, “transcendent” in the sense that their validity does not depend on their factual recognition; on the contrary, they should be recognized because they contain what it means to be human, hence to think and act at all. They immediately determine the validity of such thinking and acting, and, with that, the thinking and acting subject. As their categorical validity is part of the validity claims of that subject itself, they are at the same time “immanent”: the subject forms itself by being determined by values which belong to its own status as a subject. The harsh critique that the philosophy of values falls short because of its dogmatic “realism of values,” falls short itself. For Kelsen, Kant’s Metaphysik der Sitten even counts as the “most perfect expression of the classical natural law doctrine”, (Hans Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” 349); in sum, he writes, Kant’s ethics ends where Aquinas left it five hundred years before (Hans Kelsen, “Die Grundlagen der Naturrechtslehre (1963),” in Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, ­Adolf Merkl und Alfred Verdross, eds. Hans Klecatsky, René Marcic and Herbert Schambeck (Wien [et al.]: Europa, 1968), 869–912, 907). Cf. Hans Kelsen, “Naturrecht und positives Recht,” 236, 242 ff. Kelsen, “Die philosophi‑ schen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” 348 ff. Kelsen, “Die Grundlagen der Naturrechtslehre,” 905 ff. Kelsen, “Zum Begriff der Norm (1965),” in Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl und Alfred Verdross, eds. Hans Klecatsky, René Marcic and Herbert Schambeck, (Wien [et al.]: Europa, 1968), 1455–1468, 1463. In contrast to “subjective” reason as “human reason, as it is simply given” (Hans Kelsen, “Die Idee des Naturrechts (1927/28),” in Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl und Alfred Verdross, eds. Hans Klecatsky, René Marcic and Herbert Schambeck, (Wien [et al.]: Europa, 1968), 245–280, 247 f.).

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but has as its ground of validity “Nature, or God, or Reason.”70 Finally, this all boils down to the thesis that the foundation of the natural law doctrine is a religious based conception of the source of normativity: the “belief in […] God,” hence a belief not based on “rational arguments,”71 a source resulting from a transgression of “logical-rational thought,” of the “empirical reality” towards a “transcendent, metaphysical” realm, an advancement “from man to God, from science or philosophy to theology.”72 On the basis of the above sketch of neo-Kantianism and its appropriation of Kant, we can clearly see that Kelsen’s interpretation of Kant concerning the source of normativity is diametrically opposed to that of the neo-Kantians. For them, reason is conceived of as nonmetaphysical, as subjectivity in terms of a set of values, ideas or principles that functions as a ground of validity or objectivity. Kelsen, by contrast, only has a subjective notion of reason or rationality,73 leading him, among others, to his positivist idea of constructing law, the hypothetic validity of norms and the scientific renunciation of justice as the ­content of law. Because of his subjective conception of human reason, he ­exactly ­misses the objective meaning of reason leading the Southwest neo-Kantians in their determination of law (and other forms of normativity). As mentioned, the neo-Kantians follow Kant’s idea of transcendental logic as a material logic, i.e., a logic not of forms in abstraction from the content, but in relation to objects.74 The formal character of transcendental logic is a material formality, a formality defining the material, the object in its objectivity, leading to a primacy of logic instead of a primacy of ontology. Indeed, for the 70

Cf. the various formulations in Hans Kelsen, “Naturrecht und positives Recht,” 215, 235, 241. Kelsen, “Die Idee des Naturrechts,” 247 ff. Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” 283. Kelsen, “Die Grundlagen der Naturrechtslehre,” 875, 905. Cf., too, Kelsen, Reine Rechtslehre, 365 f. with 368–374 and 415 ff. 71 Hans Kelsen, “Die Grundlagen der Naturrechtslehre,” 869, 873. 72 Ibid., 873. Kelsen, then, tries to show the “theological character” of the natural law doctrine via historical analyses, esp. addressing Aristoteles, Acquinas, the Stoa and Kant (ibid., 875 ff.). Cf. Hans Kelsen, “Vom Geltungsgrund des Rechts,” 1421, 1425. Kelsen, “Die Idee des Naturrechts,” 257. Kelsen, Reine Rechtslehre, 404 ff. 73 Even terminologically, Kelsen distinguishes reason as an “objective” (divine, metaphysical) reason from reason as “human reason,” favouring this “subjectivist turn” (Hans Kelsen, “Die Idee des Naturrechts,” 248.). See, also, for example, Kelsen, “Naturrecht und positives Recht,” 215: Here he speaks of the classical source of normativity (God, nature, reason) being an “objective principle,” in contrast to norms which are valid because they are made by a certain human authority, hence by humans; the latter is qualified as a “formal” ground for validity or principle, the first as a “material” ground for validity or principle. Cf. Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” § 3, and Kelsen, “Die Idee des Naturrechts,” 249. 74 Kant, Kants gesammelte Schriften, KrV, B 79 ff.

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neo-Kantians “forms” are not just “formal” in abstraction from the content, but have a material meaning: in a validity functional sense of the word they make up the foundations of possible objects; they are formal because they consist of the validity functional structure of objects, i.e., they are the principles of objectivity – as demonstrated by the Southwest School, especially Rickert in the course of his so-called “heterology of thought” and Bauch in his deliberations on the validity functional meaning of concepts have shown.75 As far as law is concerned, transcendental foundations also concern, non-naturalistically, the conditions positive law-making has to fulfil formally and materially to be truly law and not mere formally correct established legal injustice. By contrast, Kelsen’s basic norm is qualified by a formal type of rationality which abstracts from the content: any content can be law, provided the law-making process is correct. Kelsen is, of course, concerned with the formal conditions of valid law-making. Yet, the foundations of law require more than these types of conditions: to its necessary conditions belongs the content too, a content which is part of reason in the objective, transcendental sense, determining the objectivity of law. The determination of the principles of law as law are a result of a process of philosophical reflection, of an immanent reflection on the meaning claimed positively, of a transcendental deduction taking its ­starting point in the factual claim of factual law systems and aiming to show, determine and justify the principles of the claimed validity in the mode of philosophical scientific knowledge, hence in terms of necessarily valid ­knowledge of necessary conditions.76 75

76

Cf. Krijnen, Nachmetaphysischer Sinn, 5.3.4.3. Following Kant’s concept, the neo-Kantians take logic in its function for our knowledge of objects and their determination, hence they develop an understanding of logic which is knowledge functional and in that sense objective: logic is an “epistemological,” hence an “objective” logic. Cf. ibid.: regarding Windelband, cf. 2.4.2, esp. note 81, regarding Rickert cf. Chap. 4, regarding the Marburg School, Husserl and later transcendental philosophy cf. p. 292, note 78. This idea of philosophical justification of normative foundations should also be distinguished from the idea that the origin of law is “invisible,” as William E. Conklin, The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition, (Dordrecht/Boston: Kluwer, 2001) holds, or even “mystical” and itself without ground, as Jacques Derrida, “Force of Law: The Mystical Foundation of Authority,” Cardozo Law Review 11 (1990), 920 thinks. Although contemporary fiction theory has a point in interpreting Kelsen’s basic norm in terms of a “fiction” – in his final works Kelsen does so himself, referring to Vaihinger’s Philosophy of As-If (cf. on this the recent discussions in Torben Spaak, “Kelsen and Hart on the Normativity of Law,” Scandinavian Studies in Law 48 (2005), 398, 405 f., and Uta Bindreiter, Why Grundnorm? A Treatise on the Implications of Kelsen’s Doctrine, (The Hague/London: Kluwer, 2002), 36 ff.), from the point of view of a Kantian, neo-Kantian transcendental philosophy, necessary presuppositions are not fictions, but objectively valid determinations. Cf. Olaf J. Tans, “The Imaginary Foundation of Legal Systems – a

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Kelsen’s hierarchy of legal norms culminates in a hypothetical basic norm that orders the members of society to behave in conformity with the norms that ultimately derive their validity from the constitution, to be more precise: the basic norm is the final authorization (Ermächtigung) of legal norms. The constitution is the origin of the legal order, surmounted by the hypothetical basic norm only to make the highest ordering acts intelligible as acts in conformity with a norm. Hence, we clearly see: the hypothetical basic norm replaces the objective foundation of the natural law tradition Kelsen criticizes continuously – God, Nature, Reason – as most fundamental level of the hierarchy. The problems of a substantive order are eliminated. Whatever power establishes ­itself effectively in a society is the law-making power, and under its hypothetical norm, whatever rules it makes are the law. The basic norm is a norm for generating positive law and in this sense purely formal. The classic question of the philosophy of law, the question of just and unjust orders, does not belong to the science of law and its philosophy (not even to science at all).77 Kelsen repeatedly discusses not only the presupposition of a hypothetically (relatively) valid ultimate norm, but also the elimination of justice as the content and v­ alidity criterion of positive law.78

Mimetic Perspective,” Law & Literature 26, no. 2 (2014), 127 for an attempt to discuss the “invisible” foundations of law in terms of fictions. Indeed, the transcendental option of dealing with philosophical foundations does not play a systematical role here (although Tans suggests that because foundations are “inaccessible, or invisible, or transcendental, or purely hypothetical” they may be called “imagination […], or fiction” (§ 1)). In Tans’ approach too, the perspective of the subject, its experience of foundations, becomes central, and not the objective validity of the foundation itself. 77 For a critique of this agnostic claim, also held by contemporaries like Simmel, Weber, Jaspers and others, see Christian Krijnen, Nachmetaphysischer Sinn, 7.3.2.3 and Krijnen, “Rational Foundations of Knowledge and Values,” in Metaphysical Foundations of Knowledge and Ethics in Chinese and European Philosophy, eds. Guo Yi, Sasa Josifovic, and Asuman Lätzer-Lasar, (Paderborn: Fink, 2014), 177–191. 78 Kelsen’s Reine Rechtslehre follows this conception of law: here too, the basic norm makes up the foundation of the validity of positive law (Kelsen, Reine Rechtslehre, 8.). This norm is not generated (posed) itself, but presupposed (ibid, 47). Though the ultimate ground of the legal order, its validity remains only hypothetical (ibid). It functions as a rule for generating a system of positive laws and therefore is purely formal (ibid,199). The basic norm delegates the law-making power to a certain legal authority, without binding it concerning the content, “any content can be law,” its validity relies solely on its construction in conformity with the basic norm: justice is not the criterion of the validity of law (ibid, 201, cf. 199 ff., cf. 50 f.). See, for the basic norm as foundation of positive law, also: Hans Kelsen, “Die Idee des Naturrechts,” 255 ff. Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” §§ 3 f., 9 f., 35 ff. Kelsen, “Vom Geltungsgrund des Rechts,” 1421 ff., 1427.

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2.3 Subjective and Objective Foundations of Law With this, finally, we can carve out again an essential and programmatic ­difference between Kelsen and the Southwest school of neo-Kantianism: the difference and relatedness between a subjective and an objective foundation of normativity. In this respect, Rickert famously and paradigmatically distinguished two ways of philosophical investigations.79 According to Rickert, human endeavours as such have the structure of taking an alternative position towards values. Values are, from the perspective of the subject, the point of orientation for its endeavours; a subject recognizes values, namely, that for a subject values are the determining factors of its ­actions. Hence, the subject subjects itself to an “ought” and with that amends its criteria for determination from factors of reality to factors of validity. Having taken this into consideration, it is now possible to grasp the twofold character of culture, and with that of reason, much discussed in the Southwest school. For Rickert, neo-Kantian philosophy always deals with the validity (measure, criterion) of human endeavours. These have to be determined with regard to two aspects: (a) They concern or relate to an object: the objectivity of endeavours is at stake here. (b) Human endeavours are endeavours of a subject: the subjectivity of ­endeavours is at stake here. Any formation of meaning, hence culture, has the structure of a subject that is related to values guiding its actions. By recognizing values it shapes culture. All philosophical disciplines, then, treat values and their actualization by subjects; i.e., philosophy has a noematical (objective) focus and a noetical (subjective) one. Normativity is characterized by a reciprocal relationship between a subjective, validity-noetic dimension concerning intentionality, and an objective, validitynoematic dimension concerning the content.80 This reciprocal relationship, 79

80

See, for his doctrine, especially: Heinrich Rickert, “Zwei Wege der Erkenntnistheorie.” Rickert, “Urteil und Urteilen,” Logos 3 (1912), 230. Rickert, Der Gegenstand der Erkennt‑ nis. This theme is extensively discussed in Krijnen, Nachmetaphysischer Sinn, Chap. 6, and, among others, in “Gegenstandskonstitution bei Husserl und in der klassischen deutschen Philosophie: eine problemgeschichtliche Deutungslinie,” in Husserl und die klassische deutsche Philosophie, eds. Faustino Fabbianelli and Sebastian Luft, (Springer, 2014), 115–131. Nota bene, this use of the terms “subjective” and “objective” is not to be confused with Kelsen’s use of subjective and objective meaning. Kelsen’s (widespread) usage only concerns a difference in Rickert’s sense of the objective dimension, i.e., it concerns the validity of norms in their noematical dimension. Cf. on this Krijnen, Nachmetaphysischer Sinn, 499 ff., Christian Krijnen, “Bedeutung,” in Handbuch Kulturphilosophie, ed. Ralf Konersmann, (Stuttgart; Weimar: Metzler, 2012), 279–287.

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however, is only the one side. The other side is that normativity contains a primacy of the objective dimension. It can be shown that this is also the case in Kant’s and Hegel’s philosophy, in contrast to philosophies which grant a primacy to the subjective dimension: phenomenology, Lebensphilosophie, philosophical anthropology, speech-act theory, discourse theory and any other approach understanding normativity from the point of view of the subject, its actions, constructions etc. Kelsen’s positivism and its conception of the validity of positive law apparently is an instance of a philosophy giving the primacy to the subject, versus the “objective” principle of the natural law doctrine. The problem of such a primacy, however, is, as Rickert has clearly shown (but in their own fashion Kant and Hegel too), that it rests on a petitio principii:81 Indeed, explaining normativity from the noetic point of view presupposes an objectivity in relation to which the subject, its actions and results are determined. Hence, the subjective approach draws upon normativity in the objective sense; otherwise the phenomenon in question would not even concern a phenomenon of meaning, of normativity, but at the most a natural process. It should be emphasized that the problem is not so much that the noetic approach presupposes objectivity, but that it cannot justify this presupposition itself. Hence, it requires, as its necessary compliment, a validity-noematic approach, determining objectivity or normativity not from the perspective of or in its relation to the subject, but in itself. The merely presupposed objectivity makes the philosophical determination of the subjective dimension of normativity itself possible. In that sense, the subjective approach has a dogmatic character. It is the distinctive shape of this dogmatic character of a presupposed objectivity in Kelsen’s philosophy of law which will form the final focus of this chapter. As far as Kelsen and his focus on positive law as a human construction is concerned, the presupposed objectivity evidently has to be linked to the doctrine of the basic norm. From a scientific point of view, the first false premise of this doctrine is its appeal to a first historical legal order as a necessary presupposition of law. This first historical legal order is the most fundamental point of origin of the further hierarchical development of the legal order. We could call it an axiom, even a dogma as it requires no further foundation. Yet, it is exactly because of this dogma that law obtains its intersubjective validity, i.e., it formally replaces the notion of justice. For Kelsen, the 81

Heinrich Rickert, “Zwei Wege der Erkenntnistheorie,” 190 ff. Rickert, Der Gegenstand der Erkenntnis, 245 ff. 292.

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normativity of law is always relative and hypothetical; it is not based on an objective principle, but results from human actions, following a generative method of law-making. The value of this method itself is only “hypothetically” “presupposed”:82 If it is presupposed that a certain institution is authorized as law-maker, then correct law is law made by this institution. This presupposition of a highest legal authority, established by the basic norm, is the validity ground of the norms of a legal system. Within the realm of positive law, however, the validity of this presupposition of a highest legal authority remains “unjustified and unjustifiable.” That Kelsen criticizes the alternative, i.e., a “material” justification of law as intended by the natural law doctrine, for introducing “metaphysics” into experience, seems rather ironical, as his own unjustified and unjustifiable presupposition is itself a fine example of metaphysics. For, at least in relation to the dogmatic character of the presupposition there is no essential difference. Kelsen specifies this most fundamental presupposition from which all legal norms ultimately derive their validity in terms of a “historical first constitution.”83 It is presupposed by jurisprudence that this first historical fact has, indeed, the normative meaning of being a constitution. This is presupposed as, otherwise, the normative character of this first historical fact would be lacking.84 Of course, this presupposition cannot be justified by any e­ mpirical 82

83 84

See, for this and the following sentences, Hans Kelsen, “Die Idee des Naturrechts,” 256 f. Cf., too, Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” § 4; Kelsen, “Vom Geltungsgrund des Rechts,” 1421 ff; Kelsen, “Die Rechtswissenschaft als Norm- oder Kulturwissenschaft,” 75. Remarkably, Kelsen himself accepts the criticism that there is a certain “similarity” between the natural law doctrine and his own pure theory of law regarding the fact that positive law has its foundation in a non-positivist norm (Kelsen, “Vom Geltungsgrund des Rechts,” 1426 f.). Kelsen replies to this criticism by stressing the differences between both theories. Such a reply, however, leaves the accusation of a non-positivist foundation fully intact! In terms of Southwest neo-Kantianism: of an only presupposed, hence dogmatic objectivity. See, for the doctrine of the historical first constitution: Hans Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” § 4; Kelsen, “Vom Geltungsgrund des Rechts,” 1422 f; Kelsen, Reine Rechtslehre, 47, 203, 242. Cf., too, Hans Kelsen, “Vom Geltungsgrund des Rechts,” 1423 f.: other interpretations of human relationships are possible, for example, that they are nothing but relations of power; a “normative-juridical interpretation” presupposes the basic norm. I have pointed out elsewhere, through discussion of the work of Paulson, that in the course of the neoKantian transcendental argumentation, alternative interpretations of the factum with which philosophical analysis commences necessarily reveal themselves as inferior; hence transcendental argumentation has to show its superiority and with that its exclusivity (cf. Krijnen “The Juridico-Political in South-West neo-Kantianism” note 25).

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(historical) investigation, as it still would remain presupposed that the empirical findings are indeed law. Not without reason Kelsen stresses that it concerns the most basic norm, a norm which can only be “thought”; a norm which is in no way “posed” but “presupposed” – unfortunately, we should say, “only” presupposed.85 On this basis, for Kelsen the law-maker has a “carte blanche” concerning the “content” of the laws made. Clearly, such a constellation is a rather precise translation of the ­petitio principii belonging to the subjective approach described above into the ­foundations of Kelsen’s philosophy of the normative realm called law. Law, as conceptualized by Kelsen, draws its own normativity from an objective dimension it cannot account for within itself, i.e., within Kelsen’s approach; hence, Kelsen’s determination of law lives parasitically. It is obvious, too, that the programmatic differences between Kelsen and the Southwest neo-Kantians must lead to, and will be accompanied by, further differences. For sure, these would cover, among others, the idea of a system, its openness, closedness, static and dynamic character.86 For the thesis presented and defended above, however, going into to this is not necessary. Apparently, Kelsen’s partial appropriation of elements of Southwest neo-Kantianism takes place within a different, non-transcendental programmatic setting. Kelsen clearly recognizes that the normativity of positive law must, in addition, be considered in regard to its positive validity. Kelsen, however, fails to recognize that this validity can only be thematized sufficiently within the framework of a non-positivist philosophy of validity.87 The challenge would be to reconcile both – a challenge neither Kelsen nor the Southwest neo-Kantians really ­succeeded to cope with.88

85 86 87

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Ibid., 1423. Cf., on the concept of a philosophical system, Krijnen, Philosophie als System. In his early, lengthy and very critical article on the Southwest School, discussing main figures as Rickert and Lask, Kelsen concentrates on the philosophy of science, hence, the scientific profile of the science of law. Yet, already in this context, Kelsen needs to reject the idea of an “absolute” value and to bring in his own concept of a “relativistic stance,” including the “formal” character of the value of positive law and the elimination of justice as the validity criterion of positive law (cf. Kelsen, “Die Rechtswissenschaft als Normoder Kulturwissenschaft,” 76–80, 86, 93.). At least in this respect the criticism of Hans Welzel, Naturrecht und materiale Gerechtigkeit, 4th ed., (Göttingen: Vandenhoeck und Ruprecht, 1962), 190, that the neo-Kantian philosophy of law falls short, not because of its formalism, but because of its retention and stabilization of the positivist concept of law, seems to retain its continued pertinence. To elaborate it would involve another study going into the doctrinal aspects of neo-Kantian philosophy of law.

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Hans Kelsen & Southwest German Neo-Kantianism on Natural Law 323 Kant, Immanuel. Kants gesammelte Schriften: Bd. I–XXVI, edited by KöniglichPreußische Akademie der Wissenschaften, (Berlin: de Gruyter, 1910) ff. Kelsen, Hans. Reine Rechtslehre. 2. vollst. neu bearb. und erw. Aufl, (Wien: Deuticke, 1960). Kelsen, Hans. “Die Grundlagen der Naturrechtslehre (1963).” In Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl und Alfred Verdross, edited by Hans Klecatsky, René Marcic and Herbert Schambeck, 869–912, (Wien [et al.]: Europa, 1968). Kelsen, Hans. “Die Idee des Naturrechts (1927/28).” In Die Wiener rechtstheoretische Schule, 245–280. Kelsen, Hans. “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus (1928).” In Die Wiener rechtstheoretische Schule, 281–350. Kelsen, Hans. “Die Rechtswissenschaft als Norm- oder Kulturwissenschaft (1916).” In Die Wiener rechtstheoretische Schule, 37–93. Kelsen, Hans. “Naturrecht und positives Recht (1927/28).” In Die Wiener rechtstheoretische Schule, 215–244. Kelsen, Hans. “Vom Geltungsgrund des Rechts (1960).” In Die Wiener rechtstheoretische Schule, 1417–1427. Kelsen, Hans. “Zum Begriff der Norm (1965).” In Die Wiener rechtstheoretische Schule, 1455–1468. Kelsen, Hans, Adolf J. Merkl, and Alfred Verdross. Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl und Alfred Verdross, edited by Hans Klecatsky, René Marcic, and Herbert Schambeck, (Wien [et al.]: Europa, 1968). Kobusch, Theo and Burkhard Mojsisch, eds. Platon in der abendländischen Geistesgeschichte: Neue Forschungen zum Platonismus, (Darmstadt: Wiss. Buchges., 1997). Konersmann, Ralf, ed. Handbuch Kulturphilosophie, (Stuttgart/Weimar: Metzler, 2012). Krijnen, Christian. Nachmetaphysischer Sinn: Eine problemgeschichtliche und systematische Studie zu den Prinzipien der Wertphilosophie Heinrich Rickerts, (Würzburg: Königshausen & Neumann, 2001). Krijnen, Christian. “Entstellter Kantianismus? Zum Problem der Konkretisierung des Guten in Bruno Bauchs Ethik.” In Philosophie und Zeitgeist im Nationalsozialismus, edited by Goran Gretić and Marion Heinz, 251–268, (Würzburg: Königshausen & Neumann, 2006). Krijnen, Christian. Philosophie als System: Prinzipientheoretische Untersuchungen zum Systemgedanken bei Hegel, im Neukantianismus und in der Gegenwartsphilosophie, (Würzburg: Königshausen & Neumann, 2008). Krijnen, Christian. “Bedeutung.” In Handbuch Kulturphilosophie, edited by Ralf Konersmann, 279–287, (Stuttgart/Weimar: Metzler, 2012).

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Hans Kelsen & Southwest German Neo-Kantianism on Natural Law 325 Oberer, Hariolf. “Praxisgeltung und Rechtsgeltung.” In Lehrstücke der praktischen Philosophie und der Ästhetik, edited by Gerd Wolandt and Karl Bärhtlein, 87–111, (Basel/ Stuttgart: Schwabe, 1977). Paulson, Stanley L. “Konstruktivismus, Methodendualismus und Zurechnung im Frühwerk Hans Kelsens.” Archiv des öffentlichen Rechts 124, no. 4 (1999): 631–657. Paulson, Stanley L. “Der fin de siècle Neukantianismus und die deutschsprachige Rechtsphilosophie.” In Neukantianismus und Rechtsphilosophie, edited by Robert Alexy et al., 11–21, (Baden-Baden: Nomos, 2002a). Paulson, Stanley L. “Faktum/Wert-Distinktion, Zwei-Welten-Lehre und immanenter Sinn: Hans Kelsen als Neukantianer.” In Neukantianismus und Rechtsphilosophie, edited by Robert Alexy et al., 223–251, (Baden-Baden: Nomos, 2002b). Paulson, Stanley L. “Der Normativismus Hans Kelsens.” Juristenzeitung 61 (2006): 529–580. Paulson, Stanley L. “Konstitutive und methodologische Formen: Zur Kantischen und neukantischen Folie der Rechtslehre Hans Kelsens.” In Kant im Neukantianismus: Fortschritt oder Rückschritt?, edited by Marion Heinz and Christian Krijnen, 149– 165, (Würzburg: Königshausen und Neumann, 2007). Paulson, Stanley L. “Hans Kelsen und Gustav Radbruch: Neukantianische Strömungen in der Rechtsphilosophie.” In Marburg versus Südwestdeutschland: Philosophische Differenzen zwischen den beiden Hauptschulen des Neukantianismus, edited by Christian Krijnen and Andrzej Noras, 141–162, (Würzburg: Königshausen & Neumann, 2012). Paulson, Stanley L. and Bonnie L. Paulson, eds. Normativity and Norms: Critical Perspectives on Kelsenian Themes, (Oxford/New York: Clarendon Press; Oxford University Press, 1998). Paulson, Stanley L., Robert Walter, and Stefan Hammer, eds. Untersuchungen zur Reinen Rechtslehre, (Wien: Manz, 1986). Radbruch, Gustav. Rechtsphilosophie. 8th ed., edited by Erik Wolf, and Hans-Peter Schneider, (Stuttgart: Koehler, 1973). Rickert, Heinrich. Fichtes Atheismusstreit und die Kantische Philosophie, (Berlin: Reuther & Reichard, 1899). Rickert, Heinrich. “Zwei Wege der Erkenntnistheorie: Transcendentalpsychologie und Transcendentallogik.” Kant-Studien 14 (1909): 169–228. Rickert, Heinrich. “Urteil und Urteilen.” Logos 3 (1912): 230–245. Rickert, Heinrich. System der Philosophie: Erster Teil: Allgemeine Grundlegung der Philosophie, (Tübingen: Mohr Siebeck, 1921). Rickert, Heinrich. Kant als Philosoph der modernen Kultur: Ein geschichtsphilosophischer Versuch, (Tübingen: Mohr Siebeck, 1924). Rickert, Heinrich. Der Gegenstand der Erkenntnis: Einführung in die Transzendentalphilosophie. 6. verb. Aufl, (Tübingen: Mohr Siebeck, 1928).

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Chapter 9

Hans Kelsen’s and Ernst Cassirer’s Conception of Natural Law Pellegrino Favuzzi Abstract This chapter provides the first comprehensive reconstruction of Hans Kelsen’s and Ernst Cassirer’s conceptions of natural law as a case-study for a broader comparative exploration of their contributions in legal theory and philosophy of law. The first part focuses on Kelsen’s critique of the idea of natural law, in particular, that elaborated between 1926 and 1928, tracing its genesis in his previous work as well as presenting its main arguments in relation to the contemporaneous cultural and political context. The second part then considers Cassirer’s understanding of natural law, providing a genealogical reconstruction of this question which includes different stages of the ­development of his philosophy, and revealing the background of both his criticism of a particular modern natural law tradition and his rehabilitation of rational law as a basic norm to regulate social reality. The introductory and concluding remarks outline, from an historical-intellectual and theoretical perspective, the relationship between Kelsen and Cassirer as well as the main convergences and divergences between their approaches, emphasizing the relevance of a comparative investigation.

1 Introduction1,2 In an article of 1921 entitled Das Verhältnis von Staat und Recht im Lichte der Erkenntniskritik Kelsen emphasized the convergence between a pure theory of law, the natural sciences, and recent developments in the theory of k­ nowledge, 1 Abbreviations: Matthias Jestaedt, ed., Hans Kelsens Werke, (Tübingen: Mohr, 2007–) (=hkw); Hans Klecatsky, René Marcic, and Herbert Schambeck, eds., Die Wiener rechtstheoretische Schule: Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl, Alfred Verdross, (Vienna/ Frankfurt am Main/Zürich: Europa, 1968) (=wts); Birgit Recki, ed., Ernst Cassirer: Gesammelte Werke, (Hamburg: Meiner, 1998–2008) (=ecw); Christian Möckel et al., eds., Ernst ­Cassirer: Nachgelassene Manuskripte und Texte, (Hamburg: Meiner, 1995–) (=ecn). 2 In this chapter, all quotations from the texts are my own translation, unless otherwise indicated.

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claiming that legal science must “transform” its notions “from substantial to pure functional concepts”, as Cassirer had “masterfully” showed for “atom, ether, matter, force, mind” in his work Substanzbegriff und Funktionsbegriff of 1910.3 For the first time, the work of the Marburg Neo-Kantian thinker was discussed as a part of a strategy adopted by Kelsen from the beginning of the First World War to elucidate and to improve the philosophical framework of his ­legal theory, whose most significant results were presented in the preface to the second edition of the Hauptprobleme der Staatsrechtslehre of 1923.4 But this interest in Cassirer was neither episodic nor confined to those writings at the ­beginning of the 1920s: not only the well-known opposition between substance and function remained relevant at least in the so-called Neo-Kantian phase, as evidenced by the famous letter to Treves of 1933,5 but also C ­ assirer’s philosophy of myth played a role by Kelsen’s research in sociology of law ­between the 1930s and the 1940s.6 From a biographical point of view, the philosopher and the jurist shared the same odyssey and in a certain way a similar intellectual background. Born into a middle-class, German-speaking Jewish family in Prague in 1881, and raised in the declining Habsburg Vienna, so impressively portrayed by Stefan Zweig

3 Hans Kelsen, “Das Verhältnis von Staat und Recht im Lichte der Erkenntniskritik”, Zeitschrift für öffentliches Recht 2, (1921): 464–467. In addition to Ernst Cassirer, Das Erkenntnisproblem in der Philosophie und Wissenschaft der Neueren Zeit, (Berlin: Bruno Cassirer, 1906–1907) and Ernst Cassirer, Substanzbegriff und Funktionsbegriff: Untersuchungen über die Grundlagen der Erkenntniskritik, (Berlin: Bruno Cassirer, 1910), Kelsen examined Hans Vaihinger’s, Richard ­Avenarius’s, Joseph Petzold’s, and Fritz Sander’s theories. In the mentioned formulation, there is also an echo of the criticism of substantial concepts developed within legal science since the beginning of the century, such as by Julius Binder, Das Problem der juristischen Persönlichkeit, (Leipzig: Deichert, 1907): 51: “Philosophy has long recognized as its task to ­convert thing-like concepts into relational concepts, in order to solve the fundamental epistemological problems rooted in the corporeal world”. 4 See: Hans Kelsen, “Die Rechtswissenschaft als Norm- oder als Kulturwissenschaft: Eine methodenkritische Untersuchung”, Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reiche 40 (1916): 1181–1239; Hans Kelsen, “Zur Theorie der ­juristischen Fiktionen: Mit besonderer Berücksichtigung von Vaihingers Philosophie des Als Ob”, Annalen der Philosophie 1 (1919): 630–665. 5 See: Hans Kelsen, “Reine Rechtslehre, ‘Labandismus’ und Neukantianismus: Ein Brief an ­Renato Treves”, in Stanley L. Paulson, ed., Hans Kelsen, Renato Treves: Formalismo giuridico e realtà sociale, trans. Agostino Carrino, (Naples: Edizioni Scientifiche Italiane, 1992): 59. 6 As an example see: Hans Kelsen, “Die Entstehung des Kausalgesetztes aus dem Vergeltungsprinzip”, Erkenntnis. The Journal of Unified Science 8 (June 1939): 70, 79; Hans Kelsen, Society and Nature: A Sociological Inquiry, (Chicago: The University of Chicago Press, 1943): 3.

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in Die Welt von Gestern,7 Kelsen studied law in the capital city with Eduard Bernatzik and Adolf Menzel, as well as in Heidelberg and Berlin with Georg Jellinek and Gerhard Anschütz. In 1911, he began his scientific cursus onorum at the Viennese University, obtaining a chair of public and administrative law only in 1919, with the creation of the Austrian Republic, where he contributed to design the constitution and acted as a member of the Constitutional Court for almost ten years. After the escalation of internal disputes within the Viennese Faculty of Law as well as public controversies arising from the Constitutional Court’s decision on the question of divorce, Kelsen accepted an a­ ppointment as a professor from 1930 in Cologne, but he decided after a few years to leave Germany having been dismissed from his University position because of the Nazi regime’s anti-Semitic legislation. The annexation of Czechoslovakia in 1938, which interrupted a troubled cooperation with the University of Prague, and then the outbreak of the Second World War convinced Kelsen to leave his position at the Graduate Institute of International Studies in Geneva and to emigrate definitively to the United States, moving firstly to Boston at the Harvard Law School, and then to Berkeley at the University of California, where he lived and prolifically worked till his death in 1973, having found “a final resting place”.8 America was for Cassirer too the last destination of a “long odyssey”.9 Born in 1874 into a prominent family of Jewish extraction and grew up in Wrocław (formerly known as Breslau), he began his academic formation in law, literature and psychology at the Universities of Berlin, Leipzig, Heidelberg, and Munich. In 1896, Cassirer resolved to study philosophy and natural sciences in Marburg, the small but culturally vibrant city where Hermann Cohen and Paul Natorp had initiated one of the most influential school at that time.10 As Marburg Neo-Kantian and Jewish philosopher, Cassirer obtained his habilitation in 1906, not without obstacles and almost seven years after his doctorate, he served then for thirteen years as Privatdozent at the University of Berlin, 7

8 9 10

See: Stefan Zweig, Die Welt von Gestern: Erinnerungen eines Europäers, (Frankfurt am Main: Fischer, 1942). The following Kelsen’s biographical sketch is based on: Rudolf A. Métall, Hans Kelsen. Leben und Werk, (Wien: Franz Deuticke, 1969); Hans Kelsen, “Selbstdarstellung”, (1927) in hkw 1: 19–27; Hans Kelsen, “Autobiographie”, (1947) in hkw 1: 29–91; Robert Walter, ed., Hans Kelsen: Leben, Werk, Wirksamkeit: Ergebnisse einer internationalen Tagung am 19.-21. April 2009, (Wien: Manz, 2009). Kelsen, “Autobiographie”, 91. See: Charles W. Hendel, “Ernst Cassirer”, in Paul A. Schilpp, ed., The Philosophy of Ernst Cassirer, (New York: Tudor, 1949): 56. See: Helmuth Holzhey, Cohen und Natorp, (Basel/Stuttgart: Schwabe, 1986), and Ulrich Sieg, Aufstieg und Niedergang des Marburger Neukantianismus: Die Geschichte einer philosophischen Schulgemeinschaft, (Würzburg: Königshausen und Neumann, 1994).

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and only with the creation of the Weimar Republic he was offered a professorship at the newly established University of Hamburg. This phase culminated in his engagement as rector and prorector of the University in the years of crisis 1929–1931, but the accession of the National Socialists to power in 1933 marked a similar irrevocable turning point in Cassirer’s biography, who was also dismissed from his academic appointment and decided to leave Germany without return. The first position in exile was at Oxford, then a second longer stay in Göteborg in 1935–1939 was interrupted by the outbreak of the Second World War. In common with many other European intellectuals, he spent his last years in America, being firstly appointed in Yale and then at the Columbia University in New Work, where he died 1945 leaving unfinished his political masterpiece The Myth of the State.11 As already mentioned, Kelsen approached Cassirer’s studies in philosophy of science between the late 1910s and early 1920s, probably stimulated by Fritz Sander’s references to Das Erkenntnisproblem and Substanzbegriff und ­Funktionsbegriff, as the “enfant terrible” was still, at this juncture, close to his academic mentor.12 In a reply to Bernard Stark of 1918, Sander had outlined the relevance of the “young Austrian school of legal science” within the ­context of the Neo-Kantian culture, particularly emphasizing the areas of affinity with the Marburg School’s exponents such as Cohen, Natorp, Stammler and Cassirer, their interpretation of Kant and his transcendental method.13 Not surprisingly, in the article of 1921, and one year later in Der juristische und ­soziologische 11 12 13

On Cassirer’s biography see: Toni Cassirer, Mein Leben mit Ernst Cassirer, (1950, reprint, Hamburg: Meiner 2004); Thomas Meyer, Ernst Cassirer, (Hamburg: Ellert & Rickert 2007); John M. Krois, “Ernst Cassirer (1874–1945): Eine Kurzbiographie”, in ecn 18: xxi–xlii. This expression comes from Stanley L. Paulson, “The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law”, Oxford Journal of Legal Studies 12, no. 3 (1992): 322. See: Fritz Sander, “Rechtswissenschaft und Materialismus: Eine Erwiderung auf Starks ‘Die jungösterreichische Schule der Rechtswissenschaft und die naturwissenschaftliche Methode’”, Juristische Blätter 47, no. 29/30 (20/07/1918): 333–335, and no. 31/32 (11/08/1918): 350–352. Other relevant contributions are: Fritz Sander, “Das Faktum der Revolution und die Kontinuität der Rechtsordnung”, Zeitschrift für öffentliches Recht 1 (1919): 132–164; Fritz Sander, “Die transzendentale Methode der Rechtsphilosophie und der Begriff des ­Rechtsverfahrens”, Zeitschrift für öffentliches Recht 1 (1920): 468–567. All the relevant ­materials are collected in Stanley L. Paulson, ed., Die Rolle des Neukantianismus in der Reinen Rechtslehre: Eine Debatte zwischen Sander und Kelsen, (Darmstadt: Scientia Verlag Aalen, 1988). On the controversy between Kelsen and Sander see: Axel-Johannes Korb, Kelsens Kritiker: Ein Beitrag zur Geschichte der Rechts- und Staatstheorie, (Tübingen: Mohr 2010). For a criticism devoted to Erich Cassirer’s book on natural law, which presented many references to Ernst Cassirer’s insights in political and legal philosophy, see: Fritz Sander, review of Natur- und Völkerrecht im Lichte der Geschichte und der systematischen Philosophie, by Erich Cassirer, Zeitschrift für öffentliches Recht 1 (1919): 345–351.

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­Staatsbegriff, Kelsen examined the problem of “critical idealism and the dissolution of the concept of the state” on the basis of both Cassirer’s and Sander’s theories,14 according the second, even in 1923, the credit for ­“discovering an analogy between the substantial concept of the natural sciences, and the concept of the state” within an unrigorously founded theory of law.15 Conversely, Cassirer’s relationship with Kelsen’s legal theory is apparently less easy to assess, but the problem here is not his alleged lack of interest in political, social and legal philosophy, as has been the enduringly predominant interpretation. Although Cassirer did not write a comprehensive treatise on these issues, the concepts of law, community, and state played a significant role in his thinking, which is evident from his early Leibniz’ System in seinen wissenschaftlichen Grundlagen of 1902, through his cosmopolitan interpretation of German and European culture in Freiheit und Form of 1916, until his posthumous investigations on modern political myth.16 Rather, Kelsen is simply 14

15

16

See Hans Kelsen, Der soziologische und der juristische Staatsbegriff: Kritische Untersuchungen des Verhältnisses von Staat und Recht, (Tübingen: Mohr, 1922): 211–218; the essay “Das Verhältnis von Recht und Staat im Lichte der Erkenntniskritik” was included in this book with minimal changes. Hans Kelsen, “Vorrede zur zweiten Auflage”, in Hauptprobleme der Staatsrechtslehre: ­Entwickelt aus dem Lehre vom Rechtssatz, (Tübingen: Mohr, 19232): xxii. Kelsen and his circle had already approached the Marburg School’s philosophy in the first half of the 1910s, particularly Cohen and Natorp. See: “Alfred Verdross”, in Nikolaus Grass, ed., Österreichische Rechts- und Staatswissenschaften der Gegenwart in Selbstdarstellungen, (Innsbruck: Wagner, 1952): 201. Apparently, the trigger had been a remark on the convergence between Kelsen’s and Cohen’s concept of will made by Oscar Ewald, “Die deutsche Philosophie im Jahre 1911”, Kant-Studien 17 (1912): (398), according to the same: Kelsen, “Vorrede zur zweiten Auflage”, xvii, and Kelsen, “Autobiographie”, 22. However, from an historical point of view, the first philosophical sources of Kelsen’s pure theory of law are to be found not in Marburg Neo-Kantianism, but rather in other schools or authors such as Wilhelm Windelband, Max Weber, Georg Simmel, Edmund Husserl, Wilhelm Wundt, and Ernst Mach. In this direction see: Stanley L. Paulson, “Kelsen and The Neo-Kantian Problematic”, in Alfonso Catania and Mariapaola Fimiani, eds., Neokantismo, sociologia e diritto, (Naples: Edizioni Scientifiche Italiane, 1995): 84–90. More generally, on Kelsen and NeoKantianism, see: Helmuth Holzhey, “Kelsens Rechts- und Staatslehre in ihrem Verhältnis zum Neukantianismus”, in Stanley L. Paulson and Robert Walter, eds., Untersuchungen zur Reinen Rechtslehre, (Vienna: Manz, 1986): 167–192; Manfred Pascher, Einführung in den Neukantianismus, (Munich: Fink, 1997): 152–172; Robert Alexy et al., eds., Neukantianismus und Rechtsphilosophie: Interdisziplinäre Studien zu Recht und Staat, (Baden-Baden: ­Nomos, 2002); Agostino Carrino, Das Recht zwischen Reinheit und Realität: Hermann Cohen und die philosophischen Grundlagen der Rechtslehre Kelsens, (Baden-Baden: Nomos, 2011). In the last thirty years, there have been a rediscovery of Cassirer’s political and legal thought within and beyond philosophical studies. See: David Lipton, Ernst Cassirer: The Dilemma of a Liberal Intellectual in Germany 1914–1933, (Toronto: University of ­Toronto Press, 1978); John M. Krois, Symbolic Forms and History, (New Haven: Yale ­University Press,

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never explicitly mentioned among the numerous legal theorists he addressed in his writings such as Johann Caspar Bluntschli, Otto von Gierke, Hermann Rehm, Georg Jellinek, Hermann Heller, Erich Kaufmann, and Axel Hägerström. For an eclectic author such as Cassirer, this silence is certainly curious, and made even more interesting by several clues confirming he knew Kelsen’s work and more generally the Vienna School, as the existence of a copy of Sander’s Kampfschrift of 1923 in his private library,17 his direct references to the discussion taking place in Munster in 1926 at the conference of the “Vereinigung der Deutschen Staatsrechtslehrer”18 or to Hägerström’s extensive ­review of Kelsen’s Allgemeine Staatslehre19 as well as an unpublished letter to Felix Kaufmann of June 1922, in which Cassirer reported his “cursory” but already “informative” reading of the recently released Logik und Rechtswissenschaft, expressing the desire to deepen his understanding of “the important writings of Kelsen and his school”.20 In this outline there is only a general sense of the possible intersections and historical-intellectual coordinates which form the basis for a c­ omparative 1987); Barbara Henry, Libertà e mito in Cassirer, (Naples: Edizioni Scientifiche ­Italiane, 1986); Enno Rudolph and Bernd-Olaf Küppers, eds., Kulturkritik nach Ernst C ­ assirer, (Hamburg: Meiner, 1995); Enno Rudolph, ed., Cassirers Weg zur Philosophie der Politik, (Hamburg: Meiner, 1999); Dirk Lüddecke, Staat, Mythos, Politik: Überlegungen zum politischen Denken bei Ernst Cassirer, (Würzburg: Königshausen & Neumann, 2003); Christian Möckel, “Ernst Cassirers Philosophie der Politik. Rationalität, Unveräußerlichkeit natürlicher Rechte, ethisches Primat”, in Mirko Wischke, ed., Erster Jahresband des Deutschsprachigen Forschungszentrums für Philosophie Olomouc, (Olomouc: Naklad, 2005); Deniz Coskun, Law as Symbolic Form: Ernst Cassirer and the Anthropocentric View of Law (Dordrecht: Springer, 2007); Markus Winkler, “Symbolische Prägnanz und Produktive Interpretation: Ansätze zu einer Theorie des Rechts bei Ernst Cassirer,” Rechtstheorie, 44 (2013): 219–239; Dirk Lüddecke and Felicia Englmann, ed., Das Staatsverständnis Ernst Cassirers, (Baden Baden: Nomos, 2015). For a full literature review on Cassirer’s political philosophy see: Pellegrino Favuzzi, “Cultura e stato. Fonti e contesto del pensiero politico di Ernst Cassirer” (PhD diss., University of Padua/Humboldt University of Berlin, 2013), urn:nbn:de:kobv:11-100212219, 11–46. 17 See: Ernst Cassirer’s Private Library: File Transcription of the books purchased by Ruth Barcan Marcus, The University Library, University of Illinois at Chicago (uic), Box 8198, Chicago. 18 See: Ernst Cassirer, “Vom Wesen und Werden des Naturrechts”, Zeitschrift für Rechtsphilosophie vi (1932), reprint, ecw 18: 225–226. 19 See: Ernst Cassirer, Axel Hägerström: Eine Studie zur schwedischen Philosophie der Gegenwart, (Göteborg: Göteborgs Högskolas Ärsskrikt, 1939), reprint, ecw 21: 102, footnote no. 32, and the reference to Axel Hägerström, “Hans Kelsen: Allgemeine Staatslehre: Besprechung”, Litteris 5 (1928): 24. 20 Ernst Cassirer, letter to Felix Kaufmann, June 12, 1922, in ecn 18 (not published in print, but available on the corresponding dvd).

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i­ nvestigation of Kelsen and Cassirer. Such a research should particularly ­focus upon their attempt to apply the transcendental method to new domains of ­experience, their criticism of all forms of naturalism, substantialism, anthropomorphism, and conceptual hypostatization, and, finally, their common ­interest in the role of ‘primitive’ mentality, myth and religion in the genesis of legal and social concepts. This analysis would enable an assessment of the compatibility or incompatibility between Kelsen’s idea of a pure theory of law and Cassirer’s conception of law as symbolic form, including their fundamental meta-­theoretical, ethical, and anthropological assumptions, as well as an exploration of the possibility for the integration of their approaches, and, in particular, to what extent a philosophy of culture provides an adequate ­framework for legal science and, conversely, whether a pure theory of law confirms and concretizes a transcendental understanding of culture.21 A comprehensive examination of all these questions exceeds the purpose and limits of the present investigation of Kelsen’s and Cassirer’s conception of natural law, which aims, rather, to lay the foundations of such a research, by ­focusing on a specific, promising stage of their activity between the second half of the 1920s and the beginning of the 1930s. Indeed, in times of political crisis and tumultuous cultural transformations, perhaps in the most intense phase of their public engagement as intellectuals, both Kelsen and Cassirer devoted crucial contributions to natural law, which are certainly to be understood in the light of the broader developments of their theories, but, at the same time, represent a textual constellation with a striking relevance within and beyond legal theory and philosophy. The first part of this paper, thus, reconstructs Kelsen’s understanding of natural law between 1926 and 1929, tracing it back to his previous writings, presenting his main argument, and indicating the role of his criticism in the 21

While the significance of the relationship between Kelsen and Cassirer is generally a­ ccepted within legal and philosophical studies, a comprehensive investigation of this issue is still a desideratum. Some remarks in this direction are those of: Lipton, The ­Dilemma of a Liberal Intellectual in Germany, 13–16, 96–98, 108–109; Krois, Symbolic Forms and History, 162–165; Roberto Racinaro, “Cassirer e Kelsen”, in Catania, Fimiani, Neokantismo, sociologia e diritto, 99–110; Hans Lindhal, “Authority and Representation”, Law & Philosophy 19, no. 2 (2000): 223–246; Angelo Bolaffi, “Una disputa tra neokantiani”, ­Micromega 2 (2001): 71–90; Coskun, Law as Symbolic Form, 229–332; Johannes Saurer, “Das Recht als symbolische Form und Gegenstand der praktischen Philosophie: Zur Rechtsund Staatsphilosophie Ernst Cassirers”, Archiv für Rechts- und Sozialphilosophie 95 (2009): 490–509; Michael Moxter, “Recht als symbolische Form?”, in Birgit Recki, ed., Philosophie der Kultur, Kultur des Philosophierens: Ernst Cassirer im 20. und 21. Jahrhundert, (Hamburg: Meiner, 2012): 627; Gregory B. Moynahan, Ernst Cassirer and the critical science of Germany, (London: Anthem, 2013): 193–208.

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light of its context, as well as regarding the attempt to establish a pure theory of law as the purifying of legal science from any sociological, political, ethical or ideological evaluation. The second part then considers Cassirer’s idea of natural law between 1928 and 1932, providing a genealogy of this problem through reference to his previous contributions, and reconstructing the background of both his criticism of a certain modern natural law tradition and his rehabilitation of rational law as a pure normative doctrine, in order to adopt a public stance in defence of the constitution of the Weimar Republic. The third and final part outlines a comparison between Kelsen’s and Cassirer’s conception of natural law theory, considering that Kelsen rejected natural law also in terms of rational law, but, at the same time, recognized an affinity with the functional epistemology Cassirer utilized to reintroduce an idealistic concept of natural law. In a similar manner to Kelsen’s explicit divergence from Cohen’s return to natural law theory despite a positive reception of his transcendental method, this involves the problem of either the apparent inconsistency in the combination of Kelsen’s natural law criticism with his epistemology, or that in Cassirer’s reconsideration of natural law, as well as finally the question of the compatibility between both their perspectives. 2

Hans Kelsen’s Conception of Natural Law

The critique of theories of natural law is not confined to a particular period of Kelsen’s work, but, rather, represents one of its more distinctive and persisting features.22 Although at the beginning his main objective was to “fight against 22

On Kelsen and natural law see: Edgar Bodenheimer, “The Natural-Law Doctrine before the Tribunal of Science: A Reply to Hans Kelsen”, Western Political Quarterly 3 (1950): ­335–363, and Edgar Bodenheimer, “The Case against Natural Law Reassessed”, Stanford Law Review 17, no. 1 (1964): 39–54; Ernst Topitsch, “Einleitung”, in Aufsätze zur Ideologiekritik, (Neuwied a.M./Berlin: Luchterhand, 1964): 11–27; Kazimierz Opałek, “Kelsens Kritik der Naturrechtslehre”, in Werner Krawiet, Ernst Topitsch, and Peter Koller, eds., Ideologiekritik und Demokratietheorie bei Hans Kelsen, (Berlin: Duncker & Humblot, 1982): 71– 86; Walter Preiss, Hans Kelsens Kritik am Naturrecht: Die Naturrechtslehre, eine vergebliche Suche nach absoluter Gerechtigkeit, (Frankfurt am Main: Peter Lang, 1993); Jeffrey BrandBallard, “Kelsen’s Unstable Alternative to Natural Law: Recent Critiques”, The American Journal of Jurisprudence 41 (1996): 133–164; Robert P. George, “Kelsen and Aquinas on The Natural-Law Doctrine”, Notre Dame Law Review, 75, no. 5 (1999–2000): 1625–1646; Horst Dreier, “Naturrecht und Rechtspositivismus: Pauschalurteile, Vorurteile, Fehlurteile”, in Wilfried Härle, eds., ‘Vom Rechte, das mit uns geboren ist’: Aktuelle Probleme des Naturrechts, (Freiburg: Herder, 2007): 129–131, 140–152; Pierluigi Chiassoni, “Kelsen on Natural

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fictions”, through a redefinition of all legal concepts purified from ­sociological and psychological elements,23 a critical discussion of natural law is clearly recognizable from his early writings. As Kelsen stated, a pure theory of law has to move between the Scylla of naturalistic reductionism, and the Charybdis of natural law as an ethico-political influenced understanding of legal reality, for the former neglects legal normativity, by explaining legal obligation through natural causality, the latter disregards legal positivity, as positive law is not recognized as “the sole exclusive reference basis” for a rigorous legal science.24 In this sense, even by remaining in the background or not being a central object of investigation, natural law doctrines were the focus of Kelsen’s criticism since the first edition of the Hauptprobleme der Staatsrechtslehre, when the design of a general “critique of pure legal reason” was articulated.25 At this stage, he explored some natural law assumptions affecting the jurisprudence of his time, testing arguments he would resume on the basis of the further elaboration of his legal theory. More specifically, the common features of all natural law theories were recognized in the heteronomous foundation of the validity of positive law by means of “non-legal principles”, such as those originating from “reason” or “the nature of things”,26 in the confusion between moral and legal normativity, resulting from the adoption of “the postulates of morality, customs, religion, culture” for legal science,27 and in the “material justification of the state legal order instead of its purely formal construction”.28 From this position, for Kelsen, natural law doctrines share premises that are not only similar to those of some “primitive phases of the social development”, but are also not clearly detached from those originating in a “theological conception”, which determines law as “the will of a supernatural power beyond the state” and, thus, elaborates both concepts as expressions of substantial

Law Theory: An Enduring Critical Affair”, Revus 23 (2014): 135–163. Dreier’s and Chiassoni’s studies represent two comprehensive and diverging ways of giving an account of Kelsen’s reflections on natural law. 23 Hans Kelsen, “Vorrede zur ersten Auflage”, in Hauptprobleme der Staatsrechtslehre: Entwickelt aus dem Lehre vom Rechtssatz, (Tübingen: Mohr, 19111, reprint, hkw 2.1): 55–56. 24 Kelsen, “Vorrede zur zweiten Auflage”, V. Although he distanced himself from this two legal paradigms, Kelsen shared with natural law theories the normativity thesis, i.e., the “separability of law and facts”, as pointed out by Paulson, “The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law”, 312. 25 Franz Weyr, “Über zwei Hauptpunkte der Kelsenschen Staatsrechtslehre”, Zeitschrift für das Privat- und Öffentliche Recht der Gegenwart 40 (1914): 178. 26 Kelsen, Hauptprobleme der Staatsrechtslehre, hkw 2.1, 84. 27 Kelsen, Hauptprobleme der Staatsrechtslehre, hkw 2.2, 454–455. 28 Ibid., 509–510.

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realities.29 Accordingly, as natural law theories cannot provide a scientific understanding of law, i.e., an objective, systematic and verifiable knowledge of its actual validity, but only “a critique” or even “under circumstances a negation of positive law”, they are, in fact, not theories of “legal norms” at all, but only accounts of certain “norms of morality, of religion, or other social powers”, pretending to be valid as positive law.30 The need for a “reaction” in times of “an absolute police state” as well as the desire to compensate for “extensive personal restriction” with the reaffirmation of a sphere of individual freedom explain the “eminent ethical-political character of the natural law doctrine”.31 Kelsen’s criticism is directed, in particular, against the ideas of social contract and of subjective rights, insofar as both epitomize this confusion between legal and ethical-political premises. On the one hand, he argues that contractualism derives the mandatory character of law from a prior historical, psychological, or even merely logical act of individual acceptance; legal validity is, therefore, based on the assumption that an individual can be obligated only through his own spontaneous “self-obligation”, which ultimately presupposes the metaphysical hypothesis of the “natural liberty of man”.32 On the other hand, he suggests that the belief in human rights “existing independently from the legal order” arises from a misunderstanding concerning the meaning of a subjective right as a simple “paraphrase” of “an existing legal obligation” and, thereby, from the “erroneous” hypostatization of “the material side” of the objectively valid norm.33 These remarks demonstrate Kelsen’s early interest for this complex of problems,34 but the project of a comprehensive critique of natural law emerged only around the mid-1920s, as an opportunity to reaffirm his pure theory of law in opposition to the assertion of validity by an alternative conception of normativity and, above all, to take a stance on issues of an increasingly scientific and political significance in a turbulent “historical-intellectual situation”.35 29 Kelsen, Hauptprobleme der Staatsrechtslehre, hkw 2.1, 191. 30 Ibid., 85. 31 Kelsen, Hauptprobleme der Staatsrechtslehre, hkw 2.2, 722–723. In this regard, he agreed with some remarks on “the practical-political reasons for development and propagation of the theory of natural law and reason-law” of Karl Bergbohm, Jurisprudenz und Rechts­ philosophie, (Leipzig: Duncker & Humblot, 1892): 204–212. 32 See: Kelsen, Hauptprobleme der Staatsrechtslehre, hkw 2.2, 509–511. 33 Ivi, 720–725. 34 Further observations on natural law doctrines are included in: Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beiträge zu einer reinen Rechtslehre, (Tübingen: Mohr, 1920), and Hans Kelsen, Allgemeine Staatslehre, (Berlin: Springer, 1925). 35 Hans Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, (Berlin-Charlottenburg: Heise, 1928, reprint, wts i): 350.

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As his colleague and disciple, Adolf Merkl, reflected retrospectively, the First World War had marked an epochal transformation which extended to the fields of jurisprudence and legal philosophy, and the resulting social and cultural crisis seemed to delegitimize the hegemony of legal positivism, favouring a revival of law conceptions based on strong metaphysical or ethical-political assumptions.36 In this regard, an impressive representation of the changing intellectual landscape was certainly offered by the conferences of the “Vereinigung der Deutschen Staatsrechtslehre” and the following controversy over legal method, which included Kelsen among its central protagonists.37 It was, in particular, in Munster, in 1926, that the discussion on the classic issue of equality under the law rapidly became a polemical assessment of the aims and methods of jurisprudence. This shift followed from the presentation of Erich Kaufmann, for whom legal positivism was to be considered as “finished”, because of “the war, the collapse, the revolution, the Treaty of Versailles”, and who, on the contrary, endorsed “the belief in a supra-positive legal order” as well as its ­inevitability.38 In support of Hans Nawiasky’s and Anschütz’s replies, Kelsen intervened with a heartfelt defence of legal positivism, expressing his concerns regarding the generalized “appeal to metaphysics” and the chaotic emergence of “­opposing” natural law conceptions, each asserting their complete and exclusive normative authority and, therefore, neutralizing each other. The character of his polemical response was shaped by a predominantly sociological relativisation of this “turn to metaphysics and natural law”: the idealization of a ­natural legal order, as Kelsen argued, contains a “political meaning”, and in the demand to “overcome positivism” is embedded the ambition to “replace 36

37

38

Adolf Merkl, “Neue Naturrechtssysteme im heutigen Deutschland als Ausdruck der Krise des gesetzten Rechtes: Vortrag gehalten in der Wiener Juristischen Gesellschaft am 7. Dezember 1950”, Juristische Blätter 3 (1951): 60–62. On the natural law renaissance after the First World War see: Historisches Wörterbuch der Philosophie, eds. Joachim Ritter, Karlfried Gründer, Gottfried Gabriel, (Basel: Schabe, 1971–2007), vol. 6 (1984): 607–609, s.v. “Naturrecht”; Peter Goller, Naturrecht, Rechtsphilosophie oder Rechtstheorie? Zur Geschichte der Rechtsphilosophie an Österreichs Universitäten 1848–1945, (Frankfurt am Main: Peter Lang, 1997): 167–168, 292–300. For a short account of the historical-political context of Kelsen’s critique see: Preiss, Hans Kelsens Kritik am Naturrecht, 22–24. Michael Stolleis, Der Methodenstreit der Weimarer Staatsrechtslehre: Ein abgeschlossenes Kapitel der Wissenschaftsgeschichte?, (Stuttgart: Steiner, 2001): 15–17; Martin Schulte, “Hans Kelsens Beitrag zum Methodenstreit der Weimarer Staatsrechtslehre”, in Stanley L. Paulson and Michael Stolleis, eds., Hans Kelsen: Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts, (Tübingen: Mohr, 2005): 248–263. Erich Kaufmann, “Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung”, in Verhandlungen der Tagung der Deutschen Staatrechtslehrer zu Münster am 29. und 30. März 1926, (Berlin/Leipzig: De Gruyter, 1927): 2–3.

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one positivism by another one” in periods of rapid and dramatic social change and discontinuity.39 However, almost one year later, in the April issue of the Zeitschrift für öffentliches Recht, the editor-in-chief and Kelsen’s former disciple, Alfred Verdross, welcomed the “decisive turning point in legal thought”, announcing the publication of some works on “the objectivity of values and their cognoscibility”, as the new “critical theory of values” was facilitating the path towards an innovative “synthesis between the dogmatic natural law doctrine and the historical-positive legal school”.40 This brief editorial remark introduced an essay on natural law by Johannes Sauter,41 and shortly afterwards the journal published papers by Erich Voegelin, Edgar Tatarin-Tarnheyden, and Barna Horvàth as well as reviews of Max Scheler’s and Nicolai Hartmann’s central works, written by both Sauter and Verdross.42 It was in this context that Kelsen published, in 1928, in the January issue of this journal, a first study entitled Die Idee des Naturrechts,43 which was followed by a second paper on Naturrecht und positives Recht: Eine Untersuchung ihres gegenseitigen Verhältnisses,44 and, finally, by a monograph length study, entitled Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, which incorporated the two previous essays with the lecture on Die erkenntnistheoretische Bedeutung der Naturrechtslehre held in February of 1928, in Berlin, at the Kant Society.45 39

Hans Kelsen, “Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung”, in ibid., 53–55. 40 (Alfred Verdross), “Anmerkung der Schriftleitung”, Zeitschrift für öffentliches Recht 6, no. 3 (1927): 381. 41 Johannes Sauter, “Das Naturrecht im Idealismus des Mittelalters”, Zeitschrift für öffentliches Recht 7, no. 3 (1927): 381–404. See Johannes Sauter, review of Wesen und Formen der Sympathie, by Max Scheler, Zeitschrift für öffentliches Recht 7, no. 3 (1927): 465. 42 Erich Voegelin, “Zur Lehre von der Staatsform”, Zeitschrift für öffentliches Recht 6, no. 4 (1927): 572–608; Edgar Tatarin-Tarnheyden, “Rechtspositivismus und modernes Naturrecht in ihrer methodologischen Berechtigung”, Zeitschrift für öffentliches Recht 7, no. 1 (1927/1928): 22–44; Johannes Sauter, review of Die Formen des Wissens und der Bildung, by Max Scheler, Zeitschrift für öffentliches Recht 7, no. 1 (1927/1928): 144; Alfred Verdross, ­review of Ethik, by Nicolai Hartmann, Zeitschrift für öffentliches Recht 7, no. 2 (1928): 311–313; Barna Horvàth, “Die Idee der Gerechtigkeit”, Zeitschrift für öffentliches Recht 7, no. 4 (1928): 508–544 (including a critical discussion of Kelsen’s contributions on natural law). 43 Hans Kelsen, “Die Idee des Naturrechts”, Zeitschrift für öffentliches Recht 7, no. 2 (1928): 221–250, reprint, Topitsch, Aufsätze zur Ideologiekritik, 73–112. 44 Hans Kelsen, “Naturrecht und positives Recht: Eine Untersuchung ihres gegenseitigen Verhältnisses”, Internationale Zeitschrift für Theorie des Rechts 2 (1927/28): 71–94, reprint, wts i: 215–244. 45 Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, 281.

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The broader character and considered commitment of this intervention, at a decisive juncture in European intellectual history, becomes evident once one places into a constellation these three, almost simultaneous central works on natural law, the revised edition of Vom Wesen und Wert der Demokratie in 1929, two lectures devoted to Demokratie and to Wesen und Entwicklung der Staatsgerichtsbarkeit, respectively in 1926 and in 1929, and finally the reply to Carl Schmitt included in Wer soll der Hüter der Verfassung sein?.46 The three studies on natural law revealed a programmatic unity, as elements of a project to affirmatively rework and restate the tradition of legal positivism. Indeed, these contributions not only resumed the early critique of natural law, transposing it into the framework of the pure theory of law developed by the Vienna School in the preceding fifteen years, but also presented an innovative analysis of natural law which integrated logical-theoretical, intellectual-historical and philosophical perspectives, opening a distinctive perspective in relation to the history and sociology of law. The initial element of this position is articulated in Die Idee des Naturrechts through an ideal-typical characterization of natural law and a scrutiny of the conditions of its applicability. Kelsen defines natural law as a “non-artificial” order of norms, a system resulting not from human actions but, rather, founded upon the existence of absolute, unconditioned, independent entities, such as God, nature, reason, which determine or condition human will. From this ‘naturality’ follow all features of a legal system, including its absolute-material principle of validity and the immutability and self-applicability of its norms. For Kelsen, natural law dispositions are valid solely “thanks to their inner content”, as they claim, on the basis of an “absolute-material justification”, to ­embody an eternal and objective principle of justice. Moreover, these norms 46

Hans Kelsen, Vom Wesen und Wert der Demokratie, (Tübingen: Mohr, 19201, 19292); Hans Kelsen, “Demokratie”, in Verhandlungen des fünften deutschen Soziologentages vom 26. bis 29. September 1926 in Wien: Vorträge und Diskussionen in der Hauptversammlung und in den Sitzungen der Untergruppen, (Tübingen: Mohr, 1927): 37–68 (conference presentation); 113–118 (conclusion); Hans Kelsen, “Wesen und Entwicklung der Staatsgerichtsbarkeit”, in Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Wien am 23. und 24. April 1928, (Berlin/Leipzig: De Gruyter, 1929): 30–88 (conference presentation); 117–123, 222–225 (discussion); Hans Kelsen, Wer soll der Hüter der Verfassung sein?, (Berlin: Rothschild, 1931). On Kelsen’s intellectual engagement see: Ernst Topitsch, “Hans Kelsen: Demokrat und Philosoph”, in Werner Krawietz and Ernst Topitsch, eds., Ideologiekritik und Demokratietheorie bei Hans Kelsen, (Berlin: Duncker & Humblot, 1982): 14–21; Carlos M. Herrera, “Kelsen als Demokrat und Freiheitsdenker”, in Nikitas Aliprantis and Thomas Olechowski, eds., Hans Kelsen: Die Aktualität eines großen Rechtswissenschaftlers und Soziologen des 20. Jahrhunderts: Ergebnisse einer internationalen Tagung an der Akademie von Athen am 12. April 2013 aus Anlass von Kelsens 40. Todestag, (Manz: Wien, 2014): 95–107.

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must be considered immediately effective, i.e., they “do not require coercion to be implemented”, because their mandatory character is for the individual so evident and irresistible as the one of its “logical rules”. Hence, even if the obligations of natural law obligations have the form of a “hypothetical judgment”, as with every normative assertion, connecting a “certain circumstance” with its corresponding “consequence” by means of an “ought (Sollen)”, they bind without implying or requiring third parties or, more generally, the organized use of force, and, in this sense, they are paradoxically the reflection of an “anarchic order”, “totally free from coercion and state”.47 In this perspective, the Kelsenian delineation of natural law is set within a specific legal-philosophical framework, corroborating ex negativo the main features of a positive legal system as determined by his pure theory, including: the formal-relativistic foundation of its validity, the mutability of its c­ ontents, the social institutionalization of force recognizing the identity between law and state, the distinction between causality and normativity, and, finally, the coercion as an integral part of legal obligation. More specifically, Kelsen’s critical analysis is guided by the form of a reductio ad absurdum, i.e., assuming the existence, validity and cognoscibility of natural law as a normative system fully in force, to reveal it as contradictory. Thus, the critique proceeds from the inherence, within every “normative order”, of a process of “concretization” and “individualization” of general norms. The possibility of natural law is placed into question exclusively through the focus upon its capacity to apply its general prescriptions to particular cases, and in a manner entirely different from, and irreducible to, positive law.48 Kelsen’s critical effort consists, therefore, in demonstrating that natural law must inevitably utilize, thorough the necessity of “concretization”, positive law (if not transform itself into a system of positive law), in order to achieve effectiveness through compulsion, and, thus, revealing itself, as a strategy to legitimize a particular legal order of positive law, by appealing to its alleged ‘naturality’.49 On the one hand, Kelsen’s refusal of legal subsumption as a “merely logical function”, and the resulting conception regarding any concretization of norms as the human act of “generating law (Rechtserzeugung)”, are the central determinants of his assessment of natural law reliability. Indeed, if all normative systems depend on human actions to be implemented, then natural law, purporting to be a normative system, depends upon “human thinking, feeling and

47 48 49

Kelsen, “Die Idee des Naturrechts”, 75–81. Ibid., 87. Ibid., 112.

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will” for all that concerns its “achievement (Realisierung)”, but this contradicts the supposedly obvious, instantaneous implementation of its prescriptions.50 On the other hand, Kelsen focuses on the anthropological background of natural law, particularly the assumption that every individual is capable of acting in accordance with natural law as an objective principle of justice, because the complete, unhindered ability to know and will the ethical truth makes ­impossible any “real conflict”. In this case, the counterargument extends ­beyond the framework of Kelsen’s legal theory, revealing an equally strong anthropological assumption: such a “utopian” conception of human nature should be “dropped”, because it is in “clear contradiction with all experience”, which, on the contrary, teaches the “inadequacy (Unzulänglichkeit) of the ­human being, who can make mistakes or simply be evil”.51 Commencing from a vision of political realism and negative anthropology, Kelsen maintains that what is in question basically is not justice, but peace, and law serves only to end or prevent conflict through sanction or deterrence, regulating the interactions between individuals “who cannot be regarded as perfect”.52 Hence, he concludes that, as natural law has “inevitably” to became positive law in its application, and as it remains “unproven” and “unprovable” that the legislative authority is in possession of a complete understanding of truth and justice, the idea of natural law is ultimately, at best, a misunderstanding of social reality, at worst, a method to “stabilize an autocratic-­aristocratic form of state”, obscuring the relativity of its provisions with a ­façade of sacredness.53 In the essay on Naturrecht und Positives Recht, this line of argument is reiterated in terms of a comparative analysis of natural and positive law as ­respectively “static” and “dynamic” types of normative systems; a distinction reflecting two different forms through which an individual norm is conferred with validity from the basic norm. As Kelsen emphasizes, a natural law system is supposed to be based entirely on a “thinking operation” without connection to any “act of human will”, for each concrete norm is inferred from a general one only through a cognitive process of analytical judgment. On the contrary, a positive law system establishes a “basic norm”, from which no specific content can be derived, and which exclusively “authorizes a certain human will to 50 51 52 53

Ibid., 91–94. Kelsen’s theory of the continuous generation of law represents one of the possible points of affinity with Marburg Neo-Kantianism, and, in particular, with ­Cassirer’s epistemology. Ibid., 97–99. Ibid., 108. Ibid., 112–113.

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establish norms” under variable circumstances.54 Again, Kelsen’s objective is to demonstrate that only one of the two systems can be valid and effective, i.e., positive law, while a normative system of natural law is either impossible, or it is possible only by transforming itself into a system of positive law, thereby contradicting its claim to independent validity and revealing its “ideological” character.55 To further support this thesis, Kelsen integrates his theoretical analysis with a historical-intellectual examination of representative natural law doctrines, combined with a critical assessment of the familiar image of natural law as a reform-orientated, if not revolutionary, legal theory. As he observes, natural law theorists, contrary to what one might expect from a consistent understanding of their theoretical framework, do not consider natural law as the sole valid normative system, and, consequently, do not demote positive law to the level of a merely historical-empirical or psychological facticity. On the contrary, they claim the “absolute necessity” of positive law as a parallel and s­ imultaneously valid normative system, and they even actively oppose any conception of such a statement as either “superfluous” or “detrimental” for natural law, or simply “logically impossible”. Assuming such an ideal-type of natural law as parameter to reconstruct and evaluate the history of legal thought, Kelsen propounds an only apparently paradoxical conclusion: natural law thinkers did not represent or, in effect, ceased to reflect the idea of natural law, which had been expressed in its essential character, rather, by radical anarchist or socialist movements; a contradiction due actually to the non-theoretical “reasons lying behind the theory itself”.56 On this basis, assuming that “it is wrong to identify natural law and natural law doctrine”,57 Kelsen challenges the predominant understanding of natural  law as an inherently progressive movement, thereby reconsidering the initial i­nterpretation in his earlier work.58 Indeed, the prevalence of this interpretation is the result of a skilful cultural-political reconceptualization, ­implemented by the German historical school in the age of European 54 55 56 57 58

Kelsen, “Naturrecht und positives Recht”, 217. This opposition has some thematic s­ imilarities with Cassirer’s understanding of substantial and functional conceptuality. Ibid., 224. Ibid., 227–228. The authors whom Kelsen cites are Melanchthon, Johann Laurentius Holderider, Pufendorf, and Winkler. Ibid., 237. Even if still converging in the Hauptprobleme der Staatsrechtslehre with Bergbohm’s classical interpretation, Kelsen underlined, in all his subsequent work, the predominantly conservative character of the natural law, deepening, thereby, the considerations of Adolf Menzel, Naturrecht und Soziologie, (Wien/Leipzig: Fromme, 1912), a book he had reviewed in Archiv für die Geschichte des Sozialismus und der Arbeiterbewegung 5 (1915): 225–229.

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­ estoration: in order to ­oppose the persisting hegemony of natural law theR ories, and to delegitimize their potentially subversive character, Rousseau, ­Jacobinism, and the violent turn of the French Revolution were held to exemplify the entire natural law tradition, and its inevitable historical-political consequences. Nevertheless, and this is the most controversial aspect of Kelsen’s reconstruction, such an intellectual struggle should have not been understood to involve two opposing and radically different legal paradigms, but, rather, as one which occurred on the common ground of natural law, as the German historical school should have embodied, in fact, a revival of its historically older, predominantly “conservative” aspect, which reclaimed, in a new guise, its traditional stabilizing ­function, as the “absolute legitimation of positive law and the existing state”.59 The progression of this element of Kelsen’s critique culminates in an ­assessment of the philosophical fundaments of natural law theory, undertaken in Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus. In this work, the history of legal thought, particularly the struggle ­between natural law and positive law, is understood as an exemplification of history of human knowledge, which is characterized by a confrontation ­between metaphysics and science in their different figures. In a manner analogous to his preceding criticism of all reifications within legal science,60 Kelsen recognizes the essential feature of every metaphysical conception in “dualism” as a tendency to hypostatize reality by questioning what is behind the phenomena, and attributing to this ‘behind’ an existence which is independent from the phenomena themselves. In the case of the knowledge of the natural world, this means a “reproductive theory”, while, in the case of the knowledge of “values and norms”, this leads to a quest for entities transcending the norm themselves, and founding their absolute, unconditioned validity. Thus, Kelsen argues that all natural law theories are affected by the same fallacy of a dualistic-metaphysical understanding of norms, for they do not regard law as the “free creation of the human legislator or judge”, but only as a reproduction of the “natural order” existing absolutely “in itself” and “behind” positive law.61 This assumption is illustrated through a phenomenology of the dualistic interpretation of natural and social reality, which focuses on the different historical-intellectual, social-political, psychological frameworks underlying natural law theories. Combining his early reflections with the work of Cassirer and Freud, Kelsen reconstructs these developments examining, firstly, 59 Kelsen, “Naturrecht und positives Recht”, 241. The references are to Bergbohm and Stahl. 60 See: Kelsen, Der soziologische und der juristische Staatsbegriff, v, 205–212. 61 Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, 317–318.

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the mythical-primitive mentality, then describing some ancient and modern figures of metaphysical-religious dualism such as those of the “pessimistic”, the “optimistic”, and the “resigned”, and, finally, describing the modern “overcoming of metaphysical dualism”.62 Although Kelsen underscores the non-progressive meaning of this succession, his definition of the last stage in terms of a “critical-scientific world view”, referring to Kant’s thought and converging on the notion of social science, in the sense of Max Weber and Neo-Kantianism, offers a decisive indication of the ideal direction of this process as well as a further insight into the broader motivations underling his criticism of natural law.63 In the context of a “renaissance” of metaphysics and the paradigm of natural law, as Kelsen explicitly states in his concluding remarks, and in periods of political-cultural struggle and conflict between “groups of interests”, each invoking an absolute idea of “justice” to “impose its claims”,64 it becomes appropriate to reaffirm the sober, anti-ideological attitude of a legal science based on systematicity, value-freedom, and “political indifference”.65 The next stages of Kelsen’s intellectual biography suggest that, in 1928, he did not regard this task as completed. As he recollected in his autobiography, the plan of a “systematic theory of legal positivism in close relationship with a critique of the natural law doctrine” evolved into a wider critical-genealogical inquiry into the history and sociology of law, dealing with the development of the idea of justice, and, in particular, concentrating upon the primitive mentality, as the “epicenter of all metaphysics”, as well as religion, poetry, and philosophy in Greek and Roman civilization.66 The systematic conclusions of this 62

63 64 65 66

See: ibid., 319–348. From this specific position, Kelsen’s reconstruction has a degree of affinity with Cassirer’s philosophy of culture, in which the idea of human knowledge is considered as an infinite task, whose history is defined by a struggle between substantial-metaphysic and functional-idealistic understanding of reality, or the idea of an ideal succession of myth, religion, and science, as different forms of human culture. Kelsen refers particularly to Ernst Cassirer, Philosophie der symbolischen Formen: Zweiter Band: Das mythische Denken, (Berlin: Bruno Cassirer, 1925), but the Erkenntnisproblem is also implicitly taken into account. As concerns Freud, and, in particular, his sociological studies in Totem und Taboo, in an article published in the same period Kelsen equated the mythological-primitive mentality with an understanding of reality in terms of substanceconcepts, referring thereby indirectly to Cassirer. See Hans Kelsen, “Der Staatsbegriff und die Psychoanalyse”, in Almanach für das Jahr 1927, (Vienna: Internationaler Psychoanalytischer Verlag, 1927): 135–141, reprint, wts i, 212. See: Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, 334–345. Ibid., 350. Ibid., 336–340. Kelsen, “Autobiographie”, 81–84. In the following years were published: Hans Kelsen, “Die hellenisch-mazedonische Politik und die ‘Politik’ des Aristoteles”, Zeitschrift für

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research were afforded in the 1940s in Vergeltung und Kausalität,67 in the same period, in which Kelsen reprinted his previous study on the philosophical foundations of natural law and legal positivism as an appendix to the English translation of his General Theory of Law and State of 1945.68 As a prominent European scholar, appointed in the usa after the dramatic events of the Second World War, he was preparing himself to engage in a new confrontation with metaphysical-religious thinking and natural law, which, again, had been ­gaining ground “as a result of two world wars and of the reaction against nationalism, fascism, and particularly communism”.69 It is not possible to follow the further developments of Kelsen’s critique of natural law in the 1950s and in the 1960s, analysing continuities and discontinuities of his conception with regard to the crucial transformations of his theory of law, from the first edition of the Hauptprobleme der Staatslehre to his posthumously published Allgemeine Theorie der Normen.70 However, ­despite the

67

68 69 70

­Öffentliches Recht 13 (1933): 625–678; Hans Kelsen, “Die platonische Gerechtigkeit”, KantStudien 38 (1933): 91–117; Hans Kelsen, “Die platonische Liebe”, Imago: Zeitschrift für psychoanalytische Psychologie, ihre Grenzgebiete und Anwendung 19 (1933): 34–98, 225–255; Hans Kelsen, “L’âme et le droit”, Annuaire de l’Institut International de Philosophie du Droit et de Sociologie Juridique 2 (1935–1936): 60–82. Besides that, it is important to mention the title of other published and unpublished papers of the same period, such as “Naturrecht der Griechen”, “Die Idee der Gerechtigkeit in der Religion und Dichtung der Griechen”, “Die Illusion der Gerechtigkeit: Eine kritische Untersuchung der Sozialphilosophie ­Platos”, “Sozialphilosophie Aristoteles”, as well as the manuscripts concerning a “Soziologie des Seelenglaubens”. On this, see Clemens Jabloner and Klaus Zeleny, “Kelsen und die griechische Philosophien: Eine Einführung”, in Rober Walter and Clemens Jabloner, Griechische Philosophie im Spiegel Hans Kelsens: Ergebnisse einer internationalen Veranstaltung in Wien am 2. Dezember 2005, (Wien: Manz, 2006): 1–13. Hans Kelsen, Vergeltung und Kausalität: Eine soziologische Untersuchung, (The Hague/ Chicago: W.P. van Stockum & Zoon/The University of Chicago Press, 1941). The book was already concluded in 1940, and should have been published in the book series “Library of Unified Science” directed by Otto Neurath, but the war had delayed its publication. In the meantime, in 1943, it had been released in an English translation entitled Society and Nature. A Sociological Inquiry. Hans Kelsen, “Appendix: Natural Law Doctrine and Legal Positivism”, trans. by Wolfgang Herbert Kraus, in General Theory of Law and State, trans. by Anders Wedberg, (Cambridge ma: Harvard University Press, 1945): 389–446. Hans Kelsen, “La Doctrina del Derecho Natural y el Positivismo Juridico”. Revista Juridica de Buenos Aires 4 (1961), 7–45, reprint, Naturrechtslehre und Rechtspositivismus, wts i, 821. In the following three decades, there appeared further significant studies on natural law theory, including: Hans Kelsen, “The Natural-Law Doctrine before the Tribunal of Science”, The Western Political Quarterly 2, no. 4 (December 1949): 481–513; Hans Kelsen, What is Justice? Justice, Law and Politics in the Mirror of Science, (University of California Press: Berkley/Los Angeles/London, 1957; the volume contains twelve articles published between 1937 and 1957 in a revised version, and three new essays); Hans Kelsen, Reine

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modifications which occurred over a period of seventy years, there remains an essential continuity which does not place into question the basic features and the radicality of Kelsen’s critique of natural law.71 The Kelsenian critique should be comprehended as situated at the distinctive intersection between scientific and public engagement, in the light of historical phases in which ­legal theory had become a site of political-ideological conflict. As Kelsen symbolically concluded in 1926 in Münster, “whoever lifts the veil of natural law and does not close his eyes, stares towards the Gorgon of the political power”.72 3

Ernst Cassirer’s Conception of Natural Law

An overall consideration of Cassirer’s writings reveals his enduring interest in philosophy of law and state, as well as the significant role played in his thought by the idea of natural law in its historical-systematic relationship with positive law and legal science. On the one hand, natural law is for Cassirer no matter of legal or political philosophy, but rather an issue in philosophy of culture, which has to be understood as a comprehensive form of that systematic thinking, distinguishing philosophy from all other forms of knowledge. On the ­other, Cassirer refers, and actively contributes, to a historical-intellectual narrative ­concerning formation and change within the natural law tradition, which not only has an intrinsic scientific meaning, but assumes also a strategic ­relevance to the adoption of a stance in cultural-political discussions, such as those which ­occurred during the First World War, the crisis of the Weimar Republic, or in the years of European totalitarianism.73

71 72 73

Rechtslehre: Mit einem Anhang: Das Problem der Gerechtigkeit, (Deutlicke: Wien, 1960), in particular the two annex chapters on Die Normen der Gerechtigkeit and Die Naturrechtslehre: 357–444; Hans Kelsen, “Grundlage der Naturrechtslehre”, in Franz-Martin Schmölz, ed., Das Naturrecht in der politischen Theorie: Internationales Forschungszentrum für Grundfragen der Wissenschaften in Salzburg: Erstes Forschungsgespräch, (Wien: Springer, 1963): 1–37 (Conference Presentation), 118–131, 141, 144, 147–162 (Discussion). Without denying the significance of the writings between of 1927–1928, Opałek recognized Kelsen’s contributions on natural law after the Second World War as more complete and consistent (see Opałek, “Kelsens Kritik der Naturrechtslehre”, 71–72). Kelsen, “Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung”, 55. On Cassirer’s systematic perspective and its developments in the context of Neo-Kantian philosophy of culture, see: Ursula Renz, Die Rationalität der Kultur: Zur Kulturphilosophie und ihrer transzendentalen Begründung bei Cohen, Natorp und Cassirer, (Hamburg: Meiner, 2002); Pellegrino Favuzzi, “Die Kulturphilosophie in den frühen Schriften Ernst Cassirers”, in Christian Krijnen, Massimo Ferrari, and Pierfrancesco Fiorato, eds., Kulturphilosophie: Probleme und Perspektiven des Neukantianismus, (Würzburg: Königshausen & Neumann, 2014): 255–277; Sebastian Luft, The space of culture: Towards a Neo-Kantian P­ hilosophy of

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Cassirer combines a static examination of the framework of the natural law with a dynamic assessment of its historical-intellectual transformations, in ­order to investigate the possibility of a pure normativity operating as a regulative function by determining the facts of positive legislation in the strict sense of the critical-transcendental idealism. Thus, he particularly focuses on system-relevant developments and the most representative figures within the history of legal science and philosophy, including the natural law tradition, indicating the emergence of a ‘functionalist’ orientation for legal thinking in its struggle against all ‘substantial’ understandings of law and social reality, which, although distinguished by a multiplicity of potentially divergent objectives and contents, are purportedly united by their origin in a ‘dogmatic’ form of knowledge. From this perspective, Cassirer’s book on Leibniz’s System in seinen wissenschaftlichen Grundlagen (1902) is particularly significant, as it includes a first attempt to provide such an idealistic reassessment of natural law as the moral standard for positive law. Referring to Cohen’s and Natorp’s transcendental philosophy of culture, this early work provides a full reconstruction of Leibniz’s philosophy, recognizing its significance in the foundation of all forms of knowledge, including legal and political science. In this sense, Cassirer interprets the monad as symbolic expression of the correlation between universality and individuality, guaranteed by a deontologized version of the harmony principle, or, in other words, as a logical-transcendental function founding phenomena, particularly all forms of individual reality objectified in the ­corresponding sciences.74

74

Culture: Cohen, Natorp, and Cassirer, (Oxford: Oxford University Press, 2015). On Cassirer’s legal and political philosophy, offering an account also of its underlying continuity and natural law conception, in addition to Henry, Libertà e mito, Lüddecke, Staat, Mythos, Politik, Coskun, Law as symbolic form, Favuzzi, Cultura e stato, and Moynahan, Ernst Cassirer and the critical science of Germany, see: Massimo Ferrari, “Zur politischen Philosophie im Frühwerk Ernst Cassirers”, in Rudolph, Cassirers Weg zur Philosophie der Politik, 43–62; Peter Müller, Der Staatsgedanke Cassirers, (Würzburg: Königshausen & Neumann, 2003); Gerard Raulet, Das Zwischenreich der symbolischen Formen: Ernst Cassirers Erkenntnistheorie, Ethik und Politik im Spannungsfeld von Historismus und Neukantianismus, (Frankfurt am Main: Peter Lang, 2005); Stefan Kirste, “Ernst Cassirer’s Concept of Law and its Relation to Neo-Kantian Philosophies of Law”, in Josep J. Moreso, ed., Legal Theory: Legal Positivism and Conceptual Analysis: Proceedings of the 22nd ivr Word Congress in Granada 2005, (Stuttgart: Steiner, 2007): 232–245; Andrea Bindig, Humanitäres Völkerrecht als symbolische Form: Zur Normativität humanitären Völkerrechts im Spiegel der Philosophie der symbolischen Formen Ernst Cassirers, (Tübingen: Mohr Siebeck, 2015). On Cassirer’s Leibniz in the context of the Marburg School of Neo-Kantianism see: Helmuth Holzhey, “Die Leibniz-Rezeption im ‘Neukantianismus’ der Marburger Schule”, in A. Heinekamp, ed., Beiträge zur Wirkungs- und Rezeptionsgeschichte von Gottfried

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Within this framework, Cassirer considers Leibniz’s reflections upon law to be orientated by the resolution of the problem of individual reality in the sciences of spirit by means of a “foundation of ethics” as a pure, rational science.75 This is undertaken, firstly, by situating legal science as the appropriate ‘point of departure’ for such a transcendental analysis; secondly, determining the formal validity of a purely normative, a priori “ought”, independent from and, if necessary, in opposition to social-historical “being”;76 finally, deriving the content of this ought from the correlation between universality and particularity in their moral dimension, i.e., from the relationship between “the ­ethical concept of personality” and an “ethical community” defined as a Kantian ‘Kingdom of Ends’ to which each individual structurally belongs.77 This interpretative position shapes Cassirer’s approach to Leibniz’s legal philosophy, aiming at a redefinition of natural law as a notion of rational law (Vernunftrecht) propelled by moral reason, and characterized by a fundamental identity of morality and legality, which constitute the shared field of a pure and objective knowledge of norms.78 This is combined with the applicability, to this specific domain of normative knowledge, of the same functional principle permeating all domains of the system of scientific forms: the transcendental “turn” from the matter of facts to pure “rational concepts”, as long as these ideal

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­Wilhelm Leibniz, Studia Leibnitiana: Supplementa no. xxvi, (Stuttgart: Steiner, 1986): 289–300; Massimo Ferrari, Il giovane Cassirer e la scuola di Marburgo, (Milan: Franco Angeli, 1988): 181–253; Enno Rudolph, “Von der Substanz zur Funktion: Leibnizrezeption als Kantkritik bei Ernst Cassirer”, in Enno Rudolph and Hans-Jörg Sandkühler, eds., Symbolische Formen, mögliche Welten: Ernst Cassirer, (Hamburg: Meiner, 1995): 85–95; Jean Seidengart, “Cassirer: Reader, Publisher and Interpreter of Leibniz’ Philosophy”, in Ralf Krömer and Yannick Chin-Drian, eds., New Essays on Leibniz Reception: In Science and Philosophy of Science 1800–2000, (Basel: Springer, 2012): 129–143. On the relevance of Cassirer’s interpretation of Leibniz for philosophy of politics and law see: Henry, Libertà e mito, 38–45; Raulet, Das Zwischenreich der symbolischen Formen, 135–147; Pellegrino Favuzzi, “Der Staat als sittliche Idee: Die Rezeption des Marburger Neukantianismus im politischen Denken Ernst Cassirer am Beispiel von ‘Leibniz’ System in seinen wissenschaftlichen Grundlagen’”, in Lüddecke and Englmann, Das Staatsverständnis Ernst Cassirers, 47–74; Christoph S. Widdau, Cassirers Leibniz und die Begründung der Menschenrechte, (Wiesbaden: Springer vs, 2016). Ernst Cassirer, Leibniz’s System in seinen wissenschaftlichen Grundlagen, (Marburg/Lahn: N.G. Elwert’sche Verlagsbuchhandlung, 1902), reprint, ecw 1: 381, 385–386. Ibid., 382–383. Ibid., respectively 380 and 395. See: ibid., 381 and the corresponding annotation no. 129: “the concept of law comprehends the whole ethical sphere”. In this chapter, Cassirer refers particularly to some legalphilosophical considerations in Gottfried W. Leibniz, “Juri et aequi Elementa”, in Georg Mollat, Mittheilungen aus Leibnizens ungedruckten Schriften, (Leipzig: Haessel, 1893): 21–22.

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r­ elations are always held to precede the real elements they c­ ontain.79 The resulting “analogy” between moral-legal and logical-­mathematical k­ nowledge arises because of the pure validity of their notions as “conditional”, ideal-­hypothetical rules, which do not require an external confirmation to be valid.80 Consequently, the validity of these moral-legal prescriptions, as legitimate rules with intrinsic binding force, is not based on “the content of changing reality”, but exclusively on pure thought.81 This is held to accord with the Leibnizian critique of all attempts to provide a ‘heteronomous’ foundation to law by referring to any external authority, divine or human, as different manifestations of the same “misunderstanding of the true relationship between ‘being’ and ‘ought’”.82 Hence, for Cassirer, Leibniz’s ethics, as pure knowledge of legal norms, has to confront the central challenge of any idealistic conception, purifying all concepts of any empirical or extrinsic contents, but at the same time reaffirming their mandatory character for the social-empirical reality. The more these norms are “free from any appeal to a particular experience” as regards “their origin and foundation”, the more they “can be made effective for the empirical world (für die empirische Welt zur Wirksamkeit gebracht werden)”:83 such an apparently paradoxical statement is to be understood in the light of the “true meaning of a priori” Cassirer identifies within Leibniz’s idealism, namely, that “regulative” function of pure thought to bring forth the scope of experience by ideally anticipating its possibility, i.e., by setting the general condition of validity and applicability of knowledge to a certain circumstance.84 79 Cassirer, Leibniz’ System, 383. 80 Ibid., 381. 81 Ibid., 382–383. 82 Ibid., 405. In this regard, Cassirer underlines Leibniz’s criticism of the Cartesian and Lockean idea of a divine sanction of law as well as that of the Hobbesian foundation of law in political authority. A rigorous demarcation from both religion and anthropology had been already identified by Cohen as a methodological condition to provide a foundation for ethics as pure rational science in: Hermann Cohen, “Einleitung mit kritischem Nachtrag”, (18961), in Friedrich Albert Lange, Geschichte des Materialismus und Kritik seiner Bedeutung in der Gegenwart, (Leipzig: Baedecker, 18965): lii–lx. 83 Cassirer, Leibniz’ System, 383–384. Referring to Leibniz, Natorp had already emphasized that critical idealism does not consist in an “invention through ideas” (Erdichten aus Ideen), but aims to provide a scientific understanding of reality in the different manners of its expression, criticizing at the same time metaphysics, naive realism, and skepticism. See: Paul Natorp, “Leibniz und der Materialismus: Probevorlesung, gehalten am 24. Oktober 1881”, ed. Helmuth Holzhey, in Studia Leibnitiana xvii (1985): 7. 84 Cassirer, Leibniz’ System, 406. Cassirer develops his ‘transcendentalist’ reading from the following passage from Leibniz, “Méditation sur la notion commune de la justice”, in Mollat, Mittheilungen, 47: “C’est justement ce qu’on fait, en fabriquant les sciences nécessaires et démonstratives qui ne dépendant point de faits, mais uniquement de la raison, comme sont la logique, la métaphysique, l’arithmétique, la géométrie, la science des mouvements

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From this interpretative position, Leibniz’s understanding of natural law as a ‘rational’ law has the precise sense of a transcendental reason: social reality is determined a priori by a system of norms, which are valid regardless of their effectiveness or transposition into actual legislation, and constitute the regulative instance that “has to direct the creation of positive law”; accordingly, the law (Recht) as “ideal principle” cannot be reduced to the rule (­Gesetz) as “its ­empirical expression”, and, in a similar manner, a notion of “right” ­(Gerechtigkeit), as an objective principle of justice, remains independent from all ­subjective forms of “power” (Macht).85 In this regard, Leibniz’s idea of a “Kingdom of Spirits” embodies the idealistic relationship between the “empirical society (empirische Gesellschaft) bounded by positive legal rules” and the “ethical community (ethische Gemeinschaft) ruled by objective and universally valid norms”,86 as Cassirer argues in continuity with the Marburg School’s social philosophy and, in particular, with Cohen’s, Natorp’s and Rudolf Stammler’s reflections on ‘ethical socialism’.87 This vision was developed and transposed into a broader intellectual-­ historical background during the First World War in Freiheit und Form: Studien zur deutschen Geistesgeschichte (1916), a work that represents not only Cassirer’s contribution to the heated political-cultural discussion concerning the so-called ‘ideas of 1914’, but also a central turning-point in his philosophy of culture, enhancing the scope of his previous investigations in the Erkenntnisproblem (1906–1907) and Substanzbegriff und Funktionsbegriff (1910) with a consideration of all forms of cultural expressions.88 Indeed, in the final chapter et aussi la science de droit, qui ne sont point fondées sur les expériences et faits et servent plutôt à rendre raison des faits et à les régler par avance”. 85 Cassirer, Leibniz’ System, 406. See Cohen’s well-know and oft misunderstood definition of ethics as “mathematics of the spritual sciences” and as “doctrine of the principles of the philosophy of law and state” in Hermann Cohen, Ethik des reinen Willens, (Berlin: Bruno Cassirer, 1904): vii. 86 Cassirer, Leibniz’ System, 395. 87 From this perspective, the relevant texts are those of Paul Natorp, Religion innerhalb der Grenzen der Humanität: Ein Kapitel zur Grundlegung der Sozialpädagogik, (Freiburg: Mohr, 1894); Cohen, “Einleitung mit kritischem Nachtrag”, lxv–lxviii; Rudolf Stammler, Wirtschaft und Recht nach der materialistischen Geschichtsauffassung: Eine sozialphilosophische Untersuchung, (Leipzig: Veit, 1896); Paul Natorp, Sozialpädagogik: Theorie der ­Willenserziehung auf der Grundlage der Gemeinschafts, (Stuttgart: Frommann, 1899). On Cassirer’s early philosophy in the context of the ethical Neo-Kantian socialism, see: ­Ferrari, Il giovane Cassirer e la scuola di Marburgo, 148–151; Favuzzi, “Der Staat als sittliche Idee”, 23–28. 88 On Freiheit und Form’s philosophical and political relevance, see: Lipton, The Dilemma of a Liberal Intellectual, 44–69; Ferrari, “Zur politischen Philosophie im Frühwerk Ernst Cassirers”, 46–52; Favuzzi, “Die Kulturphilosophie in den frühen Schriften Ernst Cassirers”, 269–277; Favuzzi, Cultura e stato, 117–171; Moynahan, Ernst Cassirer and the Critical Science

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on Freiheitsidee und Staatsidee, Leibniz is situated in a pivotal position within a wider reconstruction of the problem of the state in modern political history and philosophy, and Cassirer refers to its social philosophy in order to criticize the early modern natural law doctrines of social contract and to elaborate a genealogical account of the idea of human rights as a rational normativity for ­social-political reality. The logic of early natural law is characterized by Cassirer as an “application” to the moral and legal sphere of the same “general methodology” used by ‘dogmatic’ rationalism to determine “all contents of knowledge” by means of their “genetic derivation” in the sense of a copy-theory, driven by the principle of ­abstraction. Accordingly, in early modern contractualism, the existence and legitimacy of the political body is analytically deduced from an original act of aggregation of preexisting unrelated individual wills, without having undertaken the preliminary demonstration of the possibility of the unity between these atomized subjectivities.89 Therefore, for Cassirer, who assumes, as a criterion of ‘true’ modernity, the capacity to functionalize the conceptual forms for combining and holding together the different ways of being and ought in their specificity, these natural law doctrines are modern only from an historical point of view, but never fully attain the sense of a critical-transcendental idealism.90 As a Platonic Renaissance, the tradition of truly modern legal thought culminating in Kant’s and Fichte’s work was then not initiated by Machiavelli, Hobbes or Locke but, rather, was prefigured by Nicholas of Cusa, and established by Leibniz.91

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of Germany, 159–192. On the cultural-intellectual context of the First World War, see: Hermann Lübbe, “Die philosophischen Ideen von 1914”, in Politische Philosophie in Deutschland: Studien zu ihrer Geschichte, (Basel: Schwabe, 1963): 273–278; Kurt Flasch, Die geistige Mobilmachung: Die deutschen Intellektuellen und der Erste Weltkrieg: Ein Versuch, (Berlin: Fest, 2000); Steffen Bruendel, Volksgemeinschaft oder Volksstaat: Die ‘Ideen von 1914’ und die Neuordnung Deutschlands im Ersten Weltkrieg, (Berlin: Akademie Verlag, 2003); Peter Hoeres, Krieg der Philosophen: Die deutsche und britische Philosophie im ­Ersten Weltkrieg, (Padeborg: Schöningh, 2004); Elena Alessiato, L’impolitico: Thomas Mann tra arte e guerra, (Bologna: Il Mulino, 2011). Ernst Cassirer, Freiheit und Form: Studien zur deutschen Geistesgeschichte, (Berlin: Bruno Cassirer, 19161), reprint, ecw 7: 329. In this text, there are no references to exponents of this natural law doctrine, but in a preparatory manuscript, entitled “Allgemeine Charakteristik der naturrechtlichen Methode”, Malebranche, Hobbes, Spinoza, Tschirnhaus, and Pufendorf are mentioned. See: Beinecke Rare Book and Manuscript Library, Ernst Cassirer’s Papers, gen mss 98, Series ii, Box 53, Folder 1075, f. 39r, partially published in: Ernst Cassirer, “Staatsbegriff”, in: ecn 9: 231–244. On Cassirer’s critique of early modern natural law tradition see: Müller, Der Staatsgedanke Cassirers, 50–70. For Cassirer’s historical-philosophical reconstruction of this tradition of modern legal and political idealism, see the last chapter of Cassirer, Freiheit und Form, 327–366, and its preliminary version, given as a presentation at the Lehranstalt für die Wissenschaft des Judentums in Berlin on March 13, 1916, entitled “Der Deutsche Idealismus und das

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As in his book of 1902, in Freiheit und Form Cassirer interprets Leibniz’s idea of a “‘state of reason and God’ (Vernunft- und Gottesstaat)” as a purely rational, moral-legal system of norms. Thus, the aporias of a natural-law driven contractualism are overcome, for each individual, as a spiritual monad and rational being, originally belongs to this “‘intelligible’ constitution (Verfassung)”, which provides a stable, methodologically determined principle for “deduction and legitimation of the real political formations (empirische Staatsgebilde)”.92 Moreover, according to Cassirer, from Leibniz’s transcendental, rational-law conception derives the irredeemably limited character of political power, that is the illegitimacy of any claim to absolute representation of that regulative ideal of political constitution, which, as its necessary corollary, entails the ­validity of inalienable human rights as the content of a normative system of legal reason.93 The dynamic inherent in the origin and development of this idealistic foundation of individual rights leads Cassirer, in 1916, to emphasize the role of Wolff’s writings on natural law as the systematization and dissemination of Leibniz’s ideas. Cassirer distanced himself, thereby, from Georg Jellinek’s interpretation of natural rights, moving in the same direction as Otto von Gierke’s and Hermann Rehm’s accounts of the history of legal and political thought.94 Despite their “verbosity” and “dryness”, even representing a philosophical ­involution from a rigorous critical-idealistic perspective, Wolff’s reflections are considered to have profoundly influenced William Blackstone’s Commentaries on the law of England, and were transferred into the North American Bill of Rights and, finally, returned to Europe, by La Fayette, in the Déclaration des droits de l’homme et du citoyen.95 Hence, for Cassirer, the Leibnizian and Wolffian position represents an integral part of the intellectual framework which forms the common basis of both the American and French revolutions.96 This recognition of the role of the German Enlightenment and Classical ­Idealism within European political history is to be understood not only as a contribution to that intense debate on the historical-intellectual genealogy Staatsproblem”, in ecn 9: 3–28. For a full analysis of this issue see: Favuzzi, Cultura e stato, 173–222. 92 Cassirer, Freiheit und Form, 330. 93 Ibid. On the impossibility of an exhaustive historical-empirical representation, as well as on the foundation of human rights see, respectively, Cassirer, Leibniz’ System, 400 and 411. 94 See Georg Jellinek, Die Erklärung der Menschen- und Bürgerrechte: Ein Beitrag zur ­modernen Verfassungsgeschichte, (Munich: Duncker & Humblot, 1895); Hermann Rehm, Allgemeine Staatslehre, (Freiburg: Mohr, 1899): 247; Otto von Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien: Zugleich ein Beitrag zur ­Geschichte der Rechtssystematik, (Breslau: Marcus, 19022): 346, no. 49. 95 Cassirer, Freiheit und Form, 331. 96 See: Cassirer, “Der Deutsche Idealismus und das Staatsproblem”, 12–13.

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of human rights in the first two decades of the 20th century, but also as the ­adoption of a stance in the cultural-political debate in the First World War. In a period in which German intellectuals and professors argued overwhelmingly for the incompatibility between the ‘ideas of 1789’ and the ‘ideas of 1914’, between the Western democratic constitutionalism and the German political form, Cassirer expressed the strong belief that human rights, as the essential leitmotiv of the modern republican revolutions in the Age of Enlightenment, originated and spread within and outside Europe as a consequence of L­ eibniz’s and Wolff’s philosophy.97 A similar interplay between the public commitment of the intellectual and the establishment of a distinctive philosophical perspective characterized Cassirer’s approach to natural law between the late 1920s and early 1930s. In this crucial historical-political conjuncture, Cassirer’s reflections on law and state, initiated in Marburg and developed in Berlin during the First World War, formed the basis both for confronting novel, dramatic societal challenges, and their integration in the new, broader philosophy of symbolic forms. Appointed as professor at the University of Hamburg, a new institution established under the auspices of political reform and scientific rebirth, Cassirer’s engagement acquired increasing significance. Firstly, in his role as a member of the Academic Senate in 1926, successively as rector and vice-rector of the University in the years 1929–1931, he adopted a public stance for academic freedom, contrasting the growing attempts to ‘politicize’ the scientific and teaching institutions, and this position was an integral aspect of a wider conception of the university and its integration in the republican system as an independent ‘judiciary’ of science. As epitomized by his efforts to establish, in 1930, an official festival to celebrate the Weimar constitution and the end of the Allied occupation of the Rhineland, Cassirer was confronted with professors and students of national-conservative or, in some cases, national-socialist orientation, experiencing first-hand the rapid changes in the political, cultural and scientific landscape in Germany.98 In this context, contributions, such as the speeches on Die Idee der republikanischen Verfassung (1928) or Wandlungen der Staatsgesinnung und der ­Staatstheorie in der deutschen Geistesgeschichte (1930), lectures entitled on 97 Cassirer, Freiheit und Form, 331. 98 See the archival materials “Verfassungsfeiern”, Staatsarchiv Hamburg, 364–365 Universität i, A 170 8.2 as well as the biographical remarks by Toni Cassirer, Mein Leben mit Ernst Cassirer, 182–208, and Meyer, Ernst Cassirer, 174–180. Cassirer expressed his concerns, for example, in a dispute over the obligatoriness of physical education and in the controversy over the German-Jewish philosopher Theodor Lessing (see the archival materials: “Protokolle der Sitzungen des Universitätssenats in gebunden Ausgaben iv (1926–1927)”, Staatsarchiv Hamburg, 364–365 Universität i, C 20.4.1).

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Idee der Demokratie (1929–1931) or Die Idee des Rechts und ihre Entwicklung in der modernen Philosophie (1931–1932), as well as the well-known studies, Die Platonische Renassiance und die Schule von Cambridge (1932), Das Problem Jean Jacques Rousseau (1932), Philosophie der Aufklärung (1932) and Von ­Wesen und Werden des Naturrechts (1932), can be read as an attempt to reaffirm the ­legitimacy of the Weimar republic and, more generally, to articulate the public role of the idealistic philosophy. This is exemplified, in particular, in his speech for Constitutional Day at the invitation of the Hamburg Senate, on 11th August 1928, in which Cassirer intended to demonstrate the “lively interaction” ­between ethical-political ideas and social reality with regard to the specific case of the “natural-law and constitutional-law conceptions within German Classic Idealism”.99 Provocatively, he argued that the idea of a human right based on constitutional republicanism cannot be understood as “a foreign concept” or an “intruder from outside” for German political and philosophical culture, for it grew, on contrary, “from its own ground”.100 However, at the beginning of the 1930s, Cassirer not only reasserted, but also enhanced that narrative based on the previous idealistic understanding of natural law.101 Even if Leibniz was still defined as “the first European thinker” supporting the “principle of inalienable fundamental rights”,102 which had culminated in Kant’s redefinition of the social contract as a “rational idea” with regulative function for positive legislation and normative character for s­ ocial reality as an ethical imperative,103 such a dynamic reconstruction was no ­longer focused on a single author or a specific national tradition, but attributed with a broader ‘world-historical’ significance. Thus, Cassirer traced the history of legal thought from the mythical-religious origin of law and its progressive ‘rationalization’ by means of Heraclitus’ primeval philosophy and Euripides’ tragic poetry, passing through the clash in the Antiquity between Sophistic and Socratic schools or in early Modernity between dogmatic and criticalidealistic factions within the natural law tradition, until the ­controversy inside 99

Cassirer, Ernst, Die Idee der republikanischen Verfassung: Rede zur Verfassungsfeier am 11. August 1928, (Hamburg: Friederichsen, 1929), reprint, ecw 17: 291. 100 Ibid., 307. On the public relevance of Cassirer’s reassessment of natural law see Raulet, Das Zwischenreich der symbolischen Formen, 134–158. 101 A further aspect concerned the development of a complementary emotional element to the idealistically conceived concept of state and law. See: Pellegrino Favuzzi, “Das Pathos der Vernunft: Cassirers Philosophie zwischen Demokratie und Politischem Mythos”, in Tobias Endres, Pellegrino Favuzzi, and Timo Klattenhoff, eds., Philosophie der Kultur- und Wissensformen: Cassirer neu lesen, (Frankfurt am Main: Peter Lang, 2016): 183–212. 102 Cassirer, Die Idee der republikanischen Verfassung, 295–297. 103 Ibid., 301–303.

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the contemporary philosophy of law between legal positivism and natural law doctrines, vividly exemplified in the Munster Conference of the ‘Vereinigung der Deutschen Staatsrechtslehrer’. For Cassirer, the history of legal thought represented an eternal struggle between two distinct and opposed conceptions of law and social reality: on the one hand, metaphysics and realism, on the other, critical idealism and transcendental philosophy, which embody respectively a ‘substantialist-heteronymous’ and ‘functional-autonomous’ paradigm to determine the validity and normativity of law.104 Cassirer’s reassessment of natural law results, thereby, from his broader critical-transcendental methodology and its main assumptions: since “each facticity” has generally “to refer to a pure ideality”, and “each time-bound and time-determined element refers to an unconditional validity”, then, in the specific case of social reality, “particular legal rules” have to find “their legitimacy in universal principles of law”.105 Nonetheless, between the 1920s and 1930s, this task was accorded an additional meaning within the envisioned philosophy of symbolic forms as a system of the expressions of cultural productivity and their principles of formation.106 Legal phenomena were, together with language and myth, religion, art and technology, placed into question as a problem for a philosophy of culture, which sought to provide a comprehensive account of the unity of cultural forms in their diversity. In particular, the challenge consisted in the integration of law in such a system as one direction in the activity of spiritual objectivation and subjectivation or, in other words, in defining law as symbolic form.107 104 This ‘dialectic’ process found its prototypical representation in the classic contrast between positive law and natural law, i.e., between the idea of law as result of a “mere act of statuition” (bloße Satzung) and as “expression of the actual power relations” on the one hand, and the assumption that “besides and beyond the changing law” there exists, on the other hand, “another law, immutable, unshakable, resting in itself”, as Cassirer stated in the manuscript “Die Idee des Rechts und ihre Entwicklung in der modernen Philosophie”, (1931–1932), in ecn 9: 114–115. 105 Ernst Cassirer, “Wandlungen der Staatsgesinnung und der Staatstheorie in der deutschen Geistesgeschichte”, (1930), in ecn 9: 89–90. 106 As Cassirer in the early 1920s claimed, “the notion of the transcendental (…) become applicable everywhere it is possible to recognize forms of spiritual lawness (Formen geistiger Gesetzlichkeit), from which follow an objective view and an objective construction (Aufbau) of ‘reality’”. See: Ernst Cassirer, “Goethe und die mathematische Physik”, in Ideen und Gestalt: Fünf Aufsätze: Goethe, Schiller, Hölderlin, Kleist (Berlin: Bruno Cassirer, 1920), reprint, in ecw 9, 302. 107 For a comprehensive historical and philosophical research on this issue see: Coskun, Law as symbolic form, 245–298. In addition, see: Saurer, “Das Recht als symbolische Form” and Moxter, “Recht als symbolische Form?”. On natural law as an integral part of ethics as symbolic form see: Krois, Symbolic forms and history, 142, 158–160.

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In order to tackle this emerging problem, Cassirer referred to his previous understanding of natural law as a transcendental idea, making possible social experience by means of its a priori regulation.108 In this sense, natural law, as a system of rules transcendentally determined, should configure the framework of signification for social interaction under principles of legal normativity, performing, thereby, the function of the symbolic formation of social reality. From this point of view, a decisive step in this direction was made in Wesen und Werden des Naturrechts, a lecture held at the ‘Juristische Gesellschaft Hamburg’ in February 1932.109 Significantly, Cassirer recalled at the very beginning those fragments of Leibniz on the analogy between logic-mathematical and legal knowledge considered in his early book of 1902,110 reconstructing, on this ground, the history of the problem of legal knowledge in modern philosophy and science of law, and focusing, in particular, on the emergence of the criticalidealistic paradigm within the natural law tradition. In this manner, Cassirer aimed to demonstrate the concrete effect of this apparently abstract and formalistic understanding of law on social and political reality, particularly in the Age of Enlightenment and its associated notions of human rights and liberal constitutionalism, but without ceasing to have contemporary relevance even in years of Notverordnungen such as those of the late Weimar Republic.111 According to Cassirer, the postulation of an analogy between mathematical and legal theory, as formulated by natural law thinkers such as Grotius or Pufendorf, implies neither a similarity in the structure of their objects nor an affinity in their methods.112 The reference to mathematics, as a “symbol for a universal spiritual function”, expresses rather the logical demand to recognize human reason and “the pure rational activity” as a “whole”,113 and epitomizes, thereby, the fundamental claim that law is also an essentially spiritual power, i.e., one of the functions shaping the human world as a space of culture. Consequently, even postulating a “law in a very primary and original sense” without reference to any positive legislation, this concept of natural law does 108 On this ‘logicisation of natural law’ see Moynahan, Ernst Cassirer and the critical science of Germany, 65–66. 109 An important complement to this lecture is represented by the chapter “Recht, Staat, Gesellschaft” in Ernst Cassirer, Die Philosophie der Aufklärung, (Tübingen: Mohr, 1932), reprint, ecw 15: 245–287. 110 Cassirer, “Vom Wesen und Werden des Naturrechts”, 203–204. 111 Ibid., 218–221. For a critique of Cassirer’s allegedly formalistic approach see Lipton (1978), p. 163. 112 Cassirer, “Vom Wesen und Werden des Naturrechts”, 206. 113 Ibid. Both mathematics and law, despite all their radical diversity and irreducibility, testify to “the self-legislation and spontaneity of human spirit” (ibid., 208). On the relevance of a correct understanding of this analogy see: Kirste, “Ernst Cassirer’s Concept of Law”, 234–237.

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not ­denote an original substance commanding the allegedly right content of particular positive rules, “all what is set (der Inbegriff der Gesetzten)” as merely “ordo ordinatus”. On the contrary, natural law as rational law represents the basic norm and function determining the ideal conditions of concrete legislation, being, in other words, “what originally set them” (das ursprünglich ­Setzende)” as their “ordo ordinans”.114 But in Wesen und Werden des Naturrechts this feature receives a further, decisive anthropological significance, representing an actual point of transition between the animal and the specifically ­human form of social life. In Cassirer’s view, this difference does not concern, namely, sociality as such, which men share with other complex animal species, but rather its quality. The human experience of social interaction presents the unique and irreducible characteristic of a “stable and durable form”, which is given by law as the idea of a “binding and mandatory norm” represented by pure thought and articulated by language.115 In this precise connotation, law cannot be deduced from a positive or historical act, as its foundation is to be sought in the whole set of structures through which the cultural formation of human reality is made possible. Thus, with regard to Grotius’s characteristic “union of legal and humanistic spirit”, Cassirer concluded that law has to be “considered and defined as constitutive for men and a necessary precondition of the humanity in itself”.116 An account of the development of Cassirer’s conception of natural law in the second half of the 1930s and in the 1940s is beyond the scope of the present investigation, but an analysis of this last phase of his philosophy of culture would confirm, in this regard, a fundamental continuity of philosophical purpose. Thus, in the book on Axel Hägerström’s philosophy, Cassirer criticized Scandinavian positivism through recourse to his concept of law as symbolic form in close connection with the wider conception of other cultural forms such as mythos and language,117 whilst in The Myth of the State he recognized in the idea of the rational state and the rule of law, based on a paradigm of human rights determined by natural law, the historical-intellectual counterpart 114 Cassirer, “Vom Wesen und Werden des Naturrechts”, 209. See as a pendant: Cassirer, Die Philosophie der Aufklärung, 251–252. In the same years, in order to understand technology as symbolic forms, Cassirer referred to the similar contraposition between “forma formata” and “forma formans”. See: Ernst Cassirer, “Form und Technik”, in Leo Kestenberg, ed., Kunst und Technik, (Berlin: Wegweiser Verlag, 1930), reprint, reprint, ecw 17: 142. This expression derives from Cassirer’s interpretation of the classical polarization between natura naturata and natura naturans, as exemplified in the manuscript of Ernst Cassirer, “Zur Metaphysik der symbolischen Formen”, (1928), in ecn 1: 17–18. 115 Cassirer, “Wesen und Werden des Naturrechts”, 223. 116 Ibid., 224. 117 Ernst Cassirer, Axel Hägerström, 3–116.

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and ethical-teleological goal of the eternal struggle of rational politics against mythical-regressive forces.118 For a final time, in a new critical juncture, Cassirer referred to natural law, in the light of his critical-transcendental and broader philosophical-cultural understanding, in order to challenge the realty of ­political myths utilized within contemporary European totalitarianism. In this manner, until his posthumously published contributions, Cassirer continued to reaffirm the initial conviction he had summarized in a classical article on the “Enlightenment” written in 1931 for the Encyclopaedia of the Social Sciences: “positive law, which is based exclusively on custom and which can accordingly be altered or annihilated by mere custom, is subordinated to the totality of those legal precepts which are of necessary and immutable validity and are the same for all times and all individuals”.119 4

Concluding Remarks

Kelsen and Cassirer are widely acknowledged as two leading figures within the 20th century science and culture, and the attribution of this status rests upon their respective innovations in the fields of jurisprudence and philosophy as well as upon their repeated movement beyond these disciplinary fields: the former challenged questions emanating from social and political sciences in classical contributions devoted to the theory of justice and democracy as well as to the history and sociology of law; the latter, assuming the indissoluble unity of historical and systematic thought, established an inherently transdisciplinary philosophy of culture, which aimed to understand the forms of human activity, to identify their immanent rules, and to situate them within a system of processes of cultural symbolization. However, beyond the remarkable similarities of their intellectual biographies, a comparison between Kelsen’s and Cassirer’s conception, in particular, focusing on the idea of natural law, appears to confront substantial challenges and difficulties. Even if one situates both Kelsen and Cassirer as proponents of a ‘critique of natural law reason’ as an analysis of the conditions of possibility and existence of natural law as a normative system, Kelsen propounds a unambiguously radical-destructive position, whilst Cassirer’s approach leads to an 118 Ernst Cassirer, The Myth of the State, (New Haven: Yale University Press, 1946), reprint, ecw 25: 163–186 (more specifically on early modern natural law tradition). 119 Ernst Cassirer, “Enlightenment”, in Encyclopedia of the Social Sciences, eds. Edwin Seligman and Alvin Johnson, (New York: Macmillan Publishers, 1930–1967), vol. 5 (1931): 547–552, reprint, ecw 17: 405.

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integrative-constructive conclusion. Kelsen considered natural law either as logically impossible or as a political-ideological constructed ‘fetish’ of positive law, and, in contrast, Cassirer elevated natural law, reinterpreted as the original ‘true’ form of rational legality, as a transcendental norm regulating positive legislation. Furthermore, performing an intellectual-historical genealogy of classical and modern natural law doctrines, Kelsen endeavoured to systematically unmask the allegedly logical mistakes, psychological assumptions or social-­political intentions, underlining the development of the natural law tradition and ­reflected in the variety of its doctrines. On the contrary, Cassirer assumed the dialectical, structurally problematic character of the history of legal thought, and recognized not in legal positivism but, rather, in an ‘idealized’ paradigm of natural law, both the pole of attraction and the focal point of that never ending process of the emergence of a truly ‘modern’ critical-transcendental idealism in the understanding of law and social reality, from Plato via Leibniz to Kant. Hence, Kelsen opposed all attempts to rehabilitate and to reinstate natural law theories or assumptions within legal theory or public discussion in order to legitimate or to supplement current or alternative forms of political constitution. In Cassirer’s view, conversely, the natural law tradition, in particular ­within the history of German legal and political culture, represented a continuing source of guidance in periods of the establishment or development of certain political orders as well as in times of crisis and social conflicts, as is ­evident from his contributions supporting the Weimar idea of a republican constitution or deconstructing the intellectual presuppositions of the ­totalitarian forms of political life. These divergences are neither accidental, nor fully explicable in relation to the undeniable diversity of those intellectual, social-historical, political ­contexts, in which Kelsen and Cassirer acted, but they refer, rather, to some significant points of disagreement at the basis of their respective positions, as is exemplified by the role of compulsion and enforcement in the definition of the conditions of the effectiveness of legal norms or prescriptions. Kelsen’s well-known understanding of coercion as an integral part of the concept of law has no immediate equivalent in Cassirer’s philosophy, in which the mandatory character of norms, rather, derives only from their degree of conformity to ­morality, and the use of force or coercion epitomizes the insuperable limitation of all historical-empirical implementation or application of those ideal models of normative systems. Consequently, Kelsen’s identification of the ­legal and the state order as well as his thesis that natural law is impossible as a law in the strict sense, deviate from Cassirer’s effort to functionalize and to i­ dealize the notion of political power in a cultural concept of state purified in its ­logical

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d­ etermination from all natural elements, including force and v­iolence, as well as form his effort to understand the moral relevance of legal normativity through the reference to a critical-transcendental idea of rational law. From the perspective of a history of philosophical culture, this contrast is to be interpreted as an episode in the dispute over the Kantian legacy.120 Commencing from Cohen’s criticism of Kant’s legal theory as well as his ­reinterpretation of Kantianism within the framework of an “ethicisation of human culture”, Cassirer minimized the element of coercion in his philosophy of law, in order to overcome the distinction between morality and legality.121 Conversely, in his polemic against Cohen and Kant, particularly the allegedly inconsistency in their application of the transcendental method, and the ­resulting persistence of metaphysical, ethical and religious elements within its parameters, Kelsen emphasized the “loyal administration of Kant’s intellectual heritage” pursued by the pure theory of law, implying the existence of analogous difficulties in Cassirer’s philosophy as “one of the best Kantians, when he was still a Kantian”.122 At the level of the construction of a theoretical system, Cassirer’s adherence to the fundamental cognoscibility of moral norms and the possibility of an ethics as a science determining forms and contents of objective moral prescriptions with legal significance, is entirely divergent from Kelsen’s critique of all attempts to provide an apparently exhaustive, content-determined solution to the problem of justice, namely, the objective description of the ­individual and social good, in order to establish the ‘right’ legal-political order.123 Here, whilst Cassirer’s definition of men as an animal symbolicum, participating in culture as a “process of progressive self-liberation” through the symbolic forms,124 led to the acknowledgement and inclusion of law as one of these forms of culture, i.e., as a spiritual tool to shape and to orient social reality as a moral task, Kelsen’s realistic understanding entails that the purposes and limits of the pure theory of law are less ambitious: because “for men the truth 120 On the relevance of this historical-philosophical reference, see Bolaffi, “Una disputa tra neokantiani”, 73–75. 121 See Hermann Cohen, Kants Begründung der Ethik: Nebst ihren Anwendungen auf Recht, Religion und Geschichte, (Berlin: Bruno Cassirer, 19103): respectively 9 and 399; Cohen, Ethik des reinen Willens, 268. On Cohen’s and Cassirer’s reassessment of Kant’s legal theory see Lüddecke, Staat, Mythos, Politik, 29–305. 122 See Hans Kelsen, “Reine Rechtslehre, ‘Labandismus’ und Neukantianismus. Ein Brief an Renato Treves”, 57–58. 123 On this distinction see Krois, Symbolic forms and history, 162–165, in particular the ­corresponding footnote no. 48. 124 Ernst Cassirer, An Essay on Man: An Introduction to a Philosophy of Human Culture, (New Haven: Yale University Press, 1944), reprint, ecw 23: 244.

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is out of reach”, the goal is “to end the conflict” through the establishment and the enforcement of an “order of peace” and security.125 Nevertheless, these differences and distinctions do not undermine the possibility and the significance of a comparison, which enables the exploration and revelation of convergences and opportunities for a productive interaction between Kelsen’s and Cassirer’s thought. In particular, as is evident from a close reading of their work at the end of the 1920s, there is a specific need to differentiate the scope of the analysis in the light of the semantics and the pragmatics of central concepts such as natural law or positive law, which a­ ppear not to be coextensive, when taken symmetrically as a target of, or a criterion for, criticism; on the other hand, this concerns the strategies adopted by Kelsen and Cassirer to challenge opposing conceptions, which reveals, to a certain degree, a similarity of goals, arguments, and structures. Kelsen and Cassirer are, thus, in accord in their critique of all forms of naturalism, anthropomorphism, substantialism, hypostatization of concepts and metaphysical dualism, combined with the rejection of any representational or copy-theory of knowledge. The slight divergence, within this broad concordance, relates to Kelsen’s attribution of these elements as a distinctive ­feature of natural law doctrines, in contrast to Cassirer’s consideration of these ­elements as a characteristic of positive law as a form of dogmatic understanding of norms. However, as a result of this convergence at least in relation to the pars destruens of their methodology, both Cassirer’s and Kelsen’s approach articulated important arguments against natural-law orientated theories of social contract, with a particular focus upon those variants propounding a ­realistic or analytical foundation for subjective rights and a state c­ onstitution, as well as against the reduction of the validity of law to a mere historicalempirical variable. In this sense, Cassirer’s effort to provide an anti-dualistic, purely functional redefinition of natural law, as a transcendental idea ruling social ­experience, escapes from the strongest, most radical aspects of Kelsen’s critique; his emphasis on the oxymoron of a ‘natural law of reason’ configures even a type of basic norm, situated as a purely formal, a priori foundation of positive legislation, although its moral determination and, thus, concern with content, would continue to represent a persisting aporia in Kelsen’s view.126 Furthermore, by refusing any ‘heteronomous’ foundation of law derived from non-legal or extra-legal principles for the validity of either the form or content of legal norms, Kelsen and Cassirer shared a common ground: the ­acknowledgment of an essential difference between ‘being’ and ‘ought’, in 125 Kelsen, “Die Idee des Naturrechts”, 97. 126 For Racinaro, “Cassirer e Kelsen”, 260–261, this need for a content-determinedness of legal reason represents an “insuperable gap” between Kelsen and Cassirer.

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­ articular, between natural causality and legal normativity; the recognition p of the epistemic autonomy of law as a peculiar form of knowledge and culture; the irreducibility of the legal sphere, in the strict sense, to other forms of science or experience, such as those of psychology, sociology, metaphysics, religion or politics. This notable convergence on the pars construens of a pure theory of law has promising implications for the development of a coherent concept of validity (Geltung), which ensures the mandatory character of legal norms beyond the Scylla of empirical reductionism and the Charybdis of a relapse into metaphysics. For both Kelsen and Cassirer, the object of such a specific analysis is, thus, not the existence of law as an actual, psychological, social or historical phenomenon but, rather, its ideal existence as a meaningful ‘ought’, i.e., as a specific form of signification, which has an impact on the other, corresponding form of reality by virtue of its prescriptive meaning but, at the same time, cannot be reduced to any aspect of its causal-empirical constitution. While the present study, focusing in particular on natural law, has revealed the complexity of a comparative analysis and evaluation of the respective conceptions of Kelsen and Cassirer, the opportunity to understand legal normativity through a philosophy of culture exemplifies the potential of such an investigation. Kelsen’s pure theory of law might offer a comprehensive integration of that critical-transcendental and cultural-philosophical approach to understanding law as symbolic form of culture, which Cassirer outlined in its main features, but did not render more concrete. On the other hand, Cassirer’s philosophy, in particular his theory of symbolization and signification, might provide a broader foundational framework to understand Kelsenian legal normativity, as long as law represents only one of the modalities and applications of those symbolic functions giving meaning to a determinate sphere of reality, and, thereby, shaping human experience, from a well-defined perspective, as a meaningful system. Bibliography Alessiato, Elena, L’impolitico: Thomas Mann tra arte e guerra, (Bologna: Il Mulino, 2011). Alexy, Robert, Lukas H. Meyer, Stanley L. Paulson, Gerhard Sprenger, eds., Neukantianismus und Rechtsphilosophie: Interdisziplinäre Studien zu Recht und Staat, (BadenBaden: Nomos, 2002). Bergbohm, Karl, Jurisprudenz und Rechtsphilosophie, (Leipzig: Duncker & Humblot, 1892). Binder, Julius, Das Problem der juristischen Persönlichkeit, (Leipzig: Deichert, 1907).

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Kelsen, Hans, Reine Rechtslehre: Mit einem Anhang: Das Problem der Gerechtigkeit, (Deutlicke: Wien, 1960). Kelsen, Hans, “La Doctrina del Derecho Natural y el Positivismo Juridico”. Revista ­Juridica de Buenos Aires 4 (1961), 7–45, reprint, Naturrechtslehre und Rechtspositivismus, WTS i, 817–865. Kelsen, Hans, “Grundlage der Naturrechtslehre”, in Franz-Martin Schmölz, ed., Das Naturrecht in der politischen Theorie: Internationales Forschungszentrum für Grundfragen der Wissenschaften in Salzburg: Erstes Forschungsgespräch, (Wien: Springer, 1963): 1–37 (Conference Presentation), 118–131, 141, 144, 147–162 (Discussion). Kelsen, Hans, “Reine Rechtslehre, ‘Labandismus’ und Neukantianismus: Ein Brief an Renato Treves”, in Stanley L. Paulson, ed., Hans Kelsen, Renato Treves: Formalismo giuridico e realtà sociale, trans. Agostino Carrino, (Naples: Edizioni Scientifiche Italiane, 1992): 55–59. Kirste, Stefan, “Ernst Cassirer’s Concept of Law and its Relation to Neo-Kantian Phi­ losophies of Law”, in Josep J. Moreso, ed., Legal Theory: Legal Positivism and Conceptual Analysis: Proceedings of the 22nd IVR Word Congress in Granada 2005, ­(Stuttgart: Steiner, 2007): 232–245. Klecatsky, Hans, René Marcic, and Herbert Schambeck, eds., Die Wiener rechtstheoretische Schule: Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl, Alfred Verdross, (Vienna/Frankfurt am Main/Zürich: Europa, 1968). Korb, Axel-Johannes, Kelsens Kritiker: Ein Beitrag zur Geschichte der Rechts- und Staats­ theorie, (Tübingen: Mohr 2010). Krois, John M., “Ernst Cassirer (1874–1945): Eine Kurzbiographie”, in ECN 18: XXI–XLII. Krois, John M., Symbolic Forms and History, (New Haven: Yale University Press, 1987). Lübbe, Hermann, “Die philosophischen Ideen von 1914”, in Politische Philosophie in Deutschland: Studien zu ihrer Geschichte, (Basel: Schwabe, 1963): 273–278 Lüddecke, Dirk, Staat, Mythos, Politik: Überlegungen zum politischen Denken bei Ernst Cassirer, (Würzburg: Königshausen & Neumann, 2003). Lüddecke, Dirk, and Felicia Englmann, ed., Das Staatsverständnis Ernst Cassirers, (Baden Baden: Nomos, 2015). Luft, Sebastian, The space of culture: Towards a Neo-Kantian Philosophy of Culture: ­Cohen, Natorp, and Cassirer, (Oxford: Oxford University Press, 2015). Menzel, Adolf, Naturrecht und Soziologie, (Wien/Leipzig: Fromme, 1912). Merkl, Adolf, “Neue Naturrechtssysteme im heutigen Deutschland als Ausdruck der Krise des gesetzten Rechtes: Vortrag gehalten in der Wiener Juristischen Gesellschaft am 7. Dezember 1950”, Juristische Blätter 3 (1951): 60–62. Métall, Rudolf A., Hans Kelsen. Leben und Werk, (Wien: Franz Deuticke, 1969). Meyer, Thomas, Ernst Cassirer, (Hamburg: Ellert & Rickert 2007). Möckel, Christian, “Ernst Cassirers Philosophie der Politik. Rationalität, ­Unveräußerlichkeit natürlicher Rechte, ethisches Primat”, in Mirko Wischke, ed.,

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Erster Jahresband des Deutschsprachigen Forschungszentrums für Philosophie ­Olomouc, (Olomouc: Naklad, 2005). Möckel, Christian, Klaus C. Köhnke, John M. Krois, Oswald Schwemmer, eds., Ernst Cassirer: Nachgelassene Manuskripte und Texte 14 volumes, (Hamburg: Meiner, 1995–2018). Moxter, Michael, “Recht als symbolische Form?”, in Birgit Recki, ed., Philosophie der Kultur, Kultur des Philosophierens: Ernst Cassirer im 20. und 21. Jahrhundert, (Hamburg: Meiner, 2012): 623–649. Moynahan, Gregory B., Ernst Cassirer and the critical science of Germany 1899–1919, (London: Anthem, 2013). Müller, Peter, Der Staatsgedanke Cassirers, (Würzburg: Königshausen & Neumann, 2003). Natorp, Paul, “Leibniz und der Materialismus: Probevorlesung, gehalten am 24. Oktober 1881”, ed. Helmuth Holzhey, in Studia Leibnitiana XVII (1985): 3–14. Natorp, Paul, Religion innerhalb der Grenzen der Humanität: Ein Kapitel zur Grundlegung der Sozialpädagogik, (Freiburg: Mohr, 1894). Natorp, Paul, Sozialpädagogik: Theorie der Willenserziehung auf der Grundlage der ­Gemeinschafts, (Stuttgart: Frommann, 1899). Opałek, Kazimierz, “Kelsens Kritik der Naturrechtslehre”, in Werner Krawiet, Ernst Topitsch, and Peter Koller, eds., Ideologiekritik und Demokratietheorie bei Hans Kelsen, (Berlin: Duncker & Humblot, 1982): 71–86. Pascher, Manfred, Einführung in den Neukantianismus, (Munich: Fink, 1997): 152–172. Paulson, Stanley L., ed., Die Rolle des Neukantianismus in der Reinen Rechtslehre: Eine Debatte zwischen Sander und Kelsen, (Darmstadt: Scientia Verlag Aalen, 1988). Paulson, Stanley L., “The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law”, ­Oxford Journal of Legal Studies 12, no. 3 (1992): 311–332. Paulson, Stanley L., “Kelsen and The Neo-Kantian Problematic”, in Alfonso Catania and Mariapaola Fimiani, eds., Neokantismo, sociologia e diritto, (Naples: Edizioni Scientifiche Italiane, 1995): 81–98. Preiss, Walter, Hans Kelsens Kritik am Naturrecht: Die Naturrechtslehre, eine vergebliche Suche nach absoluter Gerechtigkeit, (Frankfurt am Main: Peter Lang, 1993). Racinaro, Roberto, “Cassirer e Kelsen”, in Alfonso Catania and Mariapaola Fimiani, eds., Neokantismo, sociologia e diritto, (Naples: Edizioni Scientifiche Italiane, 1995): 99–110. Raulet, Gerard, Das Zwischenreich der symbolischen Formen: Ernst Cassirers Erkennt­ nistheorie, Ethik und Politik im Spannungsfeld von Historismus und ­Neukantianismus, (Frankfurt am Main: Peter Lang, 2005). Recki, Birgit, ed., Ernst Cassirer: Gesammelte Werke, (Hamburg: Meiner, 1998–2008) (=ECW). Rehm, Hermann, Allgemeine Staatslehre, (Freiburg: Mohr, 1899).

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Renz, Ursula, Die Rationalität der Kultur: Zur Kulturphilosophie und ihrer transzendentalen Begründung bei Cohen, Natorp und Cassirer, (Hamburg: Meiner, 2002) Rudolph, Enno, “Von der Substanz zur Funktion: Leibnizrezeption als Kantkritik bei Ernst Cassirer”, in Enno Rudolph and Hans-Jörg Sandkühler, eds., Symbolische Formen, mögliche Welten: Ernst Cassirer, (Hamburg: Meiner, 1995): 85–95. Rudolph, Enno, ed., Cassirers Weg zur Philosophie der Politik, (Hamburg: Meiner, 1999). Rudolph, Enno, and Bernd-Olaf Küppers, eds., Kulturkritik nach Ernst Cassirer, ­(Hamburg: Meiner, 1995). Sander, Fritz, “Rechtswissenschaft und Materialismus: Eine Erwiderung auf Starks ‘Die jungösterreichische Schule der Rechtswissenschaft und die naturwissenschaftliche Methode’”, Juristische Blätter 47, no. 29/30 (20/07/1918): 333–335, and no. 31/32 (11/08/1918): 350–352. Sander, Fritz, “Das Faktum der Revolution und die Kontinuität der Rechtsordnung”, Zeitschrift für öffentliches Recht 1 (1919): 132–164. Sander, Fritz, review of Natur- und Völkerrecht im Lichte der Geschichte und der systematischen Philosophie, by Erich Cassirer, Zeitschrift für öffentliches Recht 1 (1919): 345–351. Sander, Fritz, “Die transzendentale Methode der Rechtsphilosophie und der Begriff des Rechtsverfahrens”, Zeitschrift für öffentliches Recht 1 (1920): 468–567. Saurer, Johannes, “Das Recht als symbolische Form und Gegenstand der praktischen Philosophie: Zur Rechts- und Staatsphilosophie Ernst Cassirers”, Archiv für Rechtsund Sozialphilosophie 95 (2009): 490–509. Sauter, Johannes, “Das Naturrecht im Idealismus des Mittelalters”, Zeitschrift für öffentliches Recht 7, no. 3 (1927a): 381–404. Sauter, Johannes, review of Wesen und Formen der Sympathie, by Max Scheler, Zeitschrift für öffentliches Recht 7, no. 3 (1927b): 465. Sauter, Johannes, review of Die Formen des Wissens und der Bildung, by Max Scheler, Zeitschrift für öffentliches Recht 7, no. 1 (1927c): 144. Schulte, Martin, “Hans Kelsens Beitrag zum Methodenstreit der Weimarer ­Staatsrechtslehre”, in Stanley L. Paulson and Michael Stolleis, eds., Hans Kelsen: ­Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts, (Tübingen: Mohr, 2005): 248–263. Seidengart, Jean, “Cassirer: Reader, Publisher and Interpreter of Leibniz’ Philosophy”, in Ralf Krömer and Yannick Chin-Drian, eds., New Essays on Leibniz Reception: In Science and Philosophy of Science 1800–2000, (Basel: Springer, 2012): 129–143. Sieg, Ulrich, Aufstieg und Niedergang des Marburger Neukantianismus: Die Geschichte einer philosophischen Schulgemeinschaft, (Würzburg: Königshausen und Neumann, 1994). Stammler, Rudolf, Wirtschaft und Recht nach der materialistischen Geschichtsauffassung: Eine sozialphilosophische Untersuchung, (Leipzig: Veit, 1896).

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Stolleis, Michael, Der Methodenstreit der Weimarer Staatsrechtslehre: Ein abgeschlossenes Kapitel der Wissenschaftsgeschichte?, (Stuttgart: Steiner, 2001). Tatarin-Tarnheyden, Edgar, “Rechtspositivismus und modernes Naturrecht in ihrer methodologischen Berechtigung”, Zeitschrift für öffentliches Recht 7, no. 1 (1927/1928): 22–44. Topitsch, Ernst, ed., Aufsätze zur Ideologiekritik, (Neuwied a.M./Berlin: Luchterhand, 1964). Topitsch, Ernst, “Hans Kelsen: Demokrat und Philosoph”, in Werner Krawietz and Ernst Topitsch, eds., Ideologiekritik und Demokratietheorie bei Hans Kelsen, (Berlin: Duncker & Humblot, 1982): 11–27. Verdross, Alfred, review of Ethik, by Nicolai Hartmann, Zeitschrift für öffentliches Recht 7, no. 2 (1928): 311–313. Voegelin, Erich, “Zur Lehre von der Staatsform”, Zeitschrift für öffentliches Recht 6, no. 4 (1927): 572–608. Walter, Robert, ed., Hans Kelsen: Leben, Werk, Wirksamkeit: Ergebnisse einer internationalen Tagung am 19.–21. April 2009, (Wien: Manz, 2009). Weyr, Franz, “Über zwei Hauptpunkte der Kelsenschen Staatsrechtslehre”, Zeitschrift für das Privat- und Öffentliche Recht der Gegenwart 40 (1914): 175–188. Widdau, Christoph S., Cassirers Leibniz und die Begründung der Menschenrechte, ­(Wiesbaden: Springer VS, 2016). Winkler, Markus, “Symbolische Prägnanz und Produktive Interpretation: Ansätze zu einer Theorie des Rechts bei Ernst Cassirer,“ Rechtstheorie 44 (2013): 219–239. Zweig, Stefan, Die Welt von Gestern: Erinnerungen eines Europäers, (Frankfurt am Main: Fischer, 1942).

Chapter 10

Nomos or Law? Hans Kelsen’s Criticism of Carl Schmitt’s Metaphysics of Law and Politics Gerhard Donhauser Abstract This article deals with controversial positions of Carl Schmitt and Hans Kelsen on ­nature, concept and validity of law. The two mentioned writers seem to represent fundamentally controversial positions in these issues. Consistently, their positions lead to seriously different views on what law can or should be, and which legal and political consequences can be deduced from the answers given. Even though the outlined controversy took place many centuries ago, it seems to be of current interest, not least in view of recent discussions on governmental authorization to prevent alleged or real threats using almost any device. For being able to appraise these discussions in a critical way, it can be helpful to ask where law derives from, either from the will of human beings or from natural, divine or other nonhuman sources. It seems that Schmitt and Kelsen have thought this antagonism through paradigmatically.

1

The Object of Inquiry

Carl Schmitt (1888–1985) can be recognized as one of the most prominent and powerful representatives of the twentieth century natural law tradition, primarily from the development of that tradition within German-speaking countries.1 Schmitt’s conception of legal theory and political philosophy indicates 1 This understanding of Schmitt’s work considers the presence theological sources and references to constitute an essential orientation for his position. Hence, it shares an affinity with the interpretative approaches of Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters On The Distinction Between Political Theology And Political Philosophy, (Chicago: Chicago University Press, 2011); Christian Kierdorf, Carl Schmitts Idee einer politischen Theologie, (Berlin: Dunker and Humblot, 2015); Jürgen Manemann, Carl Schmitt und die Politische Theologie: Politischer Anti-Monotheismus, (Münster: Aschendorff, 2002); Alfons Motschenbacher, Katechon oder Grossinquisitor?: Eine Studie zu Inhalt und Struktur der Politischen Theologie Carl Schmitts, (Marburg: Tectum, 2000); Ruth Groh, Arbeit an der Heillosigkeit der Welt. Zur politisch-theologischen Mythologie und Anthropologie Carl Schmitts, (Frankfurt am Main:

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a radical divergence from, and opposition to, the theory of legal positivism represented by Hans Kelsen (1881–1973). As well known, Kelsen and Schmitt were also rivals at the University of Cologne in the early 1930s, a competition which was brought to an abrupt end, in 1933, when Kelsen was banned from his occupation by the National Socialist government.2 This was the prelude to Schmitt’s formal adherence to the National Socialist party, on one hand to improve the prospects for his academic career, and, on the other hand, as a further development of his legal and political thought, prefigured, in the 1920s, by his authoritarian concept of law and state and his increasingly overt anti-Semitic resentment. For Schmitt, law is and always remains a product of ­political will, a quite metaphysical category with religious or, rather, theological connotations. In contrast, according to Kelsen, law is always the creation of human beings, namely, within the bounds of procedures established between the levels of the framework of positive law. Kelsen’s criticism of Carl Schmitt’s metaphysics of law is mostly expressed indirectly,3 but in a late work, Secular Religion (completed in 1964, published posthumously in 2011),4 Kelsen makes his objections quite obvious. In this book, Kelsen defines Schmitt’s theory of sovereignty as “a theological concept”. This chapter will show, drawing upon the critique of Schmitt contained in Kelsen’s oeuvre, with particular reference to Secular ­Religion, the metaphysical or, rather, theological implications of Schmitt’s legal theory, and, in this connection, the appropriateness of its classification as a part of the natural law tradition.

Suhrkamp, 1998) and Ruth Groh Carl Schmitts gnostischer Dualismus: Der boshafte Schöpfer dieser Welt hat es so eingerichtet, (Berlin: Litt, 2014), in contrast to the interpretative approach, exemplified by William E. Scheuermann, Carl Schmitt and the End of Law, (Rowman & Littlefield, 1999), which separates the Schmittian project from political theology and its associated conception of natural law. 2 On the both the personal and philosophical antagonism between Kelsen and Schmitt, see, for example, Horst Dreier “The Essence of Democracy – Hans Kelsen and Carl Schmitt Juxtaposed”, in Hans Kelsen and Carl Schmitt. A Juxtaposition, eds. Dan Diner and Michael Stolleis, (Gerlingen: Bleicher, 1999), 71–79 and Raphael Gross, “‘Jewish Law and Christian Grace’ – Carl Schmitt’s Critique of Hans Kelsen”, in Hans Kelsen and Carl Schmitt. A Juxtaposition, eds. Dan Diner and Michael Stolleis, (Gerlingen: Bleicher, 1999) 101–109. 3 See, Hans Kelsen, Reine Rechtslehre, 2nd Edition 1960, (Vienna: Manz, 2000), 72, 204 ff., 219; Gerhard Donhauser, Türhüter. Wie Recht wird, was es ist, (Vienna: New Academic Press, 2013), 49 f., 57–61 (with further references). 4 Hans Kelsen, Secular Religion: A Polemic against the Misinterpretation of Modern Social Philosophy, Science and Politics as “New Religions”, edited from the estate of Hans Kelsen by Robert Walter, Clemens Jabloner and Klaus Zeleny, (Vienna: Springer, 2012).

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Schmitt’s Conception of State and Law

2.1 Preliminary Considerations Carl Schmitt can be considered as one of the most famous metaphysicians or theologians of law in the twentieth century. From this theoretical position, his work has significantly influenced contemporary theories of law and constitutionalism in Germany between the 1920s and the 1970s. The theoretical work was produced as a university professor and then, because of his response to, and discredit from, his support for the Nazi-regime,5 his withdrawal from the German university system and continued work as an “independent scholar”. His influence upon constitutional theory in the Federal Republic of Germany extends to assessment and wording of the constitution as well as the determination of the jurisdiction of the Federal Constitutional Court at Karlsruhe.6 It also reappeared in the discussions of a “fortified” state under the rule of law (wehr­ hafter Rechtsstaat) in relation to the emergence of the extra-parliamentary

5 Schmitt joined the nsdap in May 1933, thus, just after the political “takeover” (Machtergreifung) of the Nazis, almost “at the last time” (in May 1933 the nsdap stopped further admissions; cf. Ian Kershaw, Hitler. 1889–1936 (Munich: Pantheon, 2002), 606). Schmitt then became a member of the Prussian Privy Council and full professor of law in Berlin (see, Reinhard Mehring Carl Schmitt zur Einführung, (Hamburg: Junius, 1992), 188). During the early 1930s, Schmitt devoted himself intensively to legitimating the “Third Reich” theoretically and juridically (cf. e.g., Schmitt, 1933a, 455; Schmitt 1934a, 691; Schmitt 1934b, 945; Schmitt 1934c, 713). On this period, see, in particular, Joseph Bendersky Carl Schmitt. Theorist for the Reich, (New Jersey: Princeton University Press, 1983) and Bernd Rüthers, Carl Schmitt im Dritten Reich. Wissenschaft als Zeitgeist-Verstärkung? 2nd Edition, (Munich: C.H. Beck, 1990). 6 It is, for instance, possible to prohibit political parties on the basis of Art 21, Abs 2 Grund­ gesetz (see Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 20th Edition, (Heidelberg: C.F. Müller, 1995), 714ff.). Generally “militant democracy” means forms of “pre-emptive and constructive protection of the constitution”. The German ­Federal Constitutional Court considers this concept in principle valid; see Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 714ff. On Schmitt in the context of legal thought in the Federal Republic of Germany, see Dirk van Laak, Gespräche in der Sicherheit des Schweigens. Carl Schmitt in der Geistesgeschichte der frühen Bundesrepublik, 2nd Edition, (Berlin: Akademie, 2002), esp. 179ff., 240ff.; Jan-Werner Müller, Ein gefährlicher Geist. Carl Schmitts Wirkung in Europa, (Darmstadt: Wissenschaftliche Buchgesellschaft, 2007), 212ff. and Reinhard Mußgnung, “Carl Schmitts verfassungsrechtliches Werk und sein Fortwirken im Staatsrecht der Bundesrepublik Deutschland”, in Complexio Oppositorum. Über Carl Schmitt. Vorträge und Diskussionsbeiträge des 28. Sonderseminars 1986 der Hochschule für ­Verwaltungswissenschaften Speyer, ed. Helmut Quaritsch, (Berlin: Duncker and Humblot, 1988), 517–528. For an indication of the significance of Schmitt’s continued influence, see Hans Barion, Ernst-Wolfgang Böckenförde, Ernst Forsthoff and Werner Weber, (eds.), ­Epirrhosis. Festgabe für Carl Schmitt zum 80. Geburtstag. 2 Vols, (Berlin: Duncker and Humblot, 1968).

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left after 1968 and the question of the limits of legitimate protest.7 This Schmittian position is also prevalent in the field of political science. The proponents of this concept insinuate, in an often overtly polemical manner, that this state is continually endangered “from outside” – wherever this might be located and whoever might compose it.8 The effects of Schmittian conceptual framework have, in the context of the so-called “war against terror/ism”, passed beyond the borders of German-speaking lands. The path of Schmitt’s thought and engagement from political Catholicism to National Socialism and then a return to a conservative position after World War ii indicates two constants: a form of juridical and political reflection centred upon a very restrictive idea of order and an overt form of anti-Jewish and anti-Semitic prejudice.9 2.2 A Constituent Power? For Schmitt, “law” continued, throughout the different periods and orientations of his work, to be distinguished and detached from its potential reduction to the “legality of the bare law”. Hence, there was no intention to equate “law” and “positive law”. The approach adopted in the 1920s, in order to install and maintain this distinction, is, with the Verfassungslehre (Theory of the Constitution) of 1928, centred upon the conceptual pair pouvoir constituent/pouvoir constitué. The origin of this conceptual pair is in the work of Sièyes, but ­receives a particular Schmittian reinterpretation.10 According to Schmitt, law as the totality of generally compulsory rules would need some kind of authority (outside itself) to create and preserve it. What Schmitt calls constituent power is not part of the system of law but appears – in Schmitt’s words – as a “political will, whose power or authority is capable of making the general decision on kind and way of the own political existence”. This kind of decision would be “as such 7

8 9

10

See, for example, the critical discussion in Hans Dahs, “Das “Anti-Terroristen-Gesetz” – eine Niederlage des Rechtsstaats”, Neue Juristische Wochenschrift, 29 (1976): 2145–2151 and Hans Dahs, “Wehrhafter Rechtsstaats und freie Verteidigung – ein Widerspruch?”, Zeitschrift für Rechtspolitik, 10, no.7 (1977): 164–169. See Otto Depenheuer, Selbstbehauptung des Rechtsstaats, 2nd Edition, (Paderborn: Schöningh, 2007). See, Joseph H. Kaiser, “Konkretes Ordnungsdenken”, in Complexio Oppositorum. Über Carl Schmitt. Vorträge und Diskussionsbeiträge des 28. Sonderseminars 1986 der Hochschule für Verwaltungswissenschaften Speyer, ed. Helmut Quaritsch, (Berlin: Duncker and Humblot,1988), 319–331, and, for a condensed summary, Raphael Gross, Carl Schmitt und die Juden. Eine deutsche Rechtslehre, (Frankfurt: Suhrkamp 2000), 382 ff. The conceptual pair is to be found in Sieyes Qu’est-ce que le tiers état? of 1789. On this relationship between Sieyes and Schmitt, see Stefan Breuer, “Nationalstaat und pouvoir constituant bei Sieyes und Carl Schmitt”, Archiv für Rechts- und Sozialphilosophie Vol. 70, No. 4 (1984), 495–517.

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[…] qualitatively different from the constitutional rules based on them”. The “decisions” of this political will were “as such […] in a qualitative way different from norms of constitutional law based on them”.11 This “will” would continue to “maintain [itself] beside and above the constitution”.12 In relation to this will, it is “the state” which becomes its bearer: “[t]he state as the decisive political unit has concentrated an enormous authority: the possibility to wage war and so to have the decision over people’s lives at its disposal […]”.13 The imposition of this will operates “to cause a complete pacification […] within the state […] and to create a normal situation in this way” as “a precondition” for the possibility “that legal norms may be valid at all”.14 2.3 Friends and Enemies Schmitt’s concept of sovereign decision is closely linked to an idea of politics explicitly orientated to a certain type of social conflict. For Schmitt, the “specific characteristic” of “politics” (as a theologically prefigured construction15), “[t]he specific political distinction, on to which political acts and motives may be attributed”, is based on the “distinction of friend and enemy”.16 The distinction marks the extreme degree of intensity of a union or a separation, of an association or a dissociation …. The political enemy need not be morally evil, nor ugly in an aesthetic sense; he does not have to appear as a rival in economic matters, and may even be profitable to make deals with him.17 To describe his “nature”, it would be sufficient to say, “that he is something different and strange in a particularly intensive sense”.18 Hence, that in an extreme case conflicts with him are possible, which are neither decidable by a general standardized norm determined in advance nor by the arbitration of an ‘uninvolved’ and therefore ‘impartial’ third party.19 11 Carl Schmitt Verfassungslehre, (Berlin: Duncker and Humblot, 1928), 75ff. 12 Ibid. 13 Carl Schmitt, Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien, 3rd Edition, (Berlin: Dunker and Humblot, 1991), 46. 14 Ibid. 15 Heinrich Meier, Die Lehre Carl Schmitts. Vier Kapitel zur Unterscheidung Politischer Theologie und Politischer Philosophie, 2nd Edition, (Stuttgart et al.: Metzler 2004), 48–105. 16 Schmitt, Der Begriff des Politischen, 26ff. 17 Ibid., 27. 18 Ibid. 19 Ibid.

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The “enemy” is, thus neither “the rival or opponent in general” nor (and least of all) “the private opponent hated with feelings of antipathy”.20 Rather, the term should denote “public enemy” in the sense of an “at least perhaps, that is a­ ccording to a real possibility, one fighting totality of people, confronts ­another such totality”.21 Thus, for Schmitt, the “public enemy” (polémios/hotis) is always “the other one, the stranger”.22 Hence, Schmitt’s dichotomy of friend and enemy assumes at least two ­collectivities, each of them characterized by a specific “nature” and involved in a conflict which can only be resolved through recourse to violence. This ­conception of the relationship between state and society is elaborated in d­ irect opposition to, and, as an effective counter-model to a pluralistic c­ onception of this relationship.23 2.4 Political Will and Sovereignty For Schmitt, political will can be equated with sovereignty. A person or ­authority is “sovereign” if it is empowered to “decide on the state of e­ mergency (Ausnahmezustand)”.24 The Schmittian connection of political will and ­sovereignty, through the exception, is introduced through a reference to “[a] Protestant theologian” – Kierkegaard: The “exception” would explain “the ­general and itself”.25 And if one wants to study the general correctly one has only to look for a real exception. It reveals everything much more clearly than the general itself. […] The exception is conceiving of the general with intense passion.26 20 Ibid. 21 Ibid. 22 Schmitt, Der Begriff des Politischen, 29, 27. 23 Ibid., 41ff. This friend-enemy-model is central to Schmitt’s theory of the state, as ­emphasized in the analysis of Ernst-Wolfgang Böckenförde,“Der Begriff des Politischen als Schlüssel zum staatsrechtlichen Werk Carl Schmitts”, in Complexio Oppositorum. Über Carl Schmitt. Vorträge und Diskussionsbeiträge des 28. Sonderseminars für Verwaltungswissenschaften Speyer, ed. Helmut Quaritsch, (Berlin: Duncker and Humblot, 1988), 283–299. 24 Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität 7th Edition, (Berlin: Dunker and Humblot, 1996), 21. 25 Ibid. 26 See, Sören Kierkegaard, “Die Wiederholung. Ein Versuch in der experimentierenden Psychologie von Constantin Cornelius (1863)”, in Die Wiederholung. Die Krise und eine Krise im Leben einer Schauspielerin, Sören Kierkegaard, ed. Liselotte Richter, (Hamburg: Europäische Verlagsanstalt, 1991), 5–83 (80). Here, in the version according to Schmitt, this quotation is attributed to an unnamed “Protestant theologian” who had “proved” the “capability of theological reflexion to deal with vital interests, also in the 19th century” (Politische Theologie, 21).

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To “ignore” the specific question of the “state of emergency” “in a rationalistic” way is, for Schmitt, the corollary of the positivist, Kelsenian conception of a norm or legal order which can “establish itself”, but is unable to understand its capacity to “suspend itself”.27 However, this “juristic problem” extends beyond the “state of emergency”.28 For, the Schmittian focus is upon the question of [f]rom where does the law draw this power and how is it – from a logical point of view – possible that a norm is valid except for one concrete certain case which it cannot factually determine in any definitive manner?29 The Schmittian response is to introduce a distinction between two types of “juristic scientific thought” which are differentiated on the basis of their recognition of the “normative status of the legal decision”.30 In this manner, Schmitt interweaves the concepts “state of emergency” and “sovereignty”, through the adoption of a particular interpretation of Hobbes as the origin of this conferral of normative status on the decision: Auctoritas, non veritas facit legem.31 The “radical and precise” Hobbesian contrast between autoritas (authority) and veritas (truth) provides the basis for a specifically juristic form of thought which comprehends the legal form as “the concrete decision, one that emanates from a particular authority”.32 It is this Hobbesian origin which then forms the point of transition to the discussion of political theology.33 2.5 Political Theology As the title of Schmitt’s book, Politische Theologie [Political theology], suggests, Schmitt elaborates a type of alternative “theocratic” position against what he 27 Schmitt Politische Theologie, 20. 28 Ibid. 29 Ibid. 30 Ibid., 39 ff. 31 Ibid., 39, 55. 32 Ibid., 40. 33 A more complete understanding of Hobbes’ statement is achieved by referring to the quotation in its entirety: In Civitate constitua, Legem Naturae Interpretatio non a Doctoribus & Scriptoribus Moralis Philosophiae dependet sed ab Authoritate Civitatis. Doctrinae quidem verae esse possunt; sed Authoritas non Veritas facit Legem. (See, Thomas Hobbes, Leviathan, edited by Noel Malcolm, (Oxford: Oxford University Press, 2012), 431.) Hobbes states here not that jurisprudential criteria should be relevant for the truth or correctness of legal interpretation, but only the authority that has enacted the law (See Gerhard Donhauser, Angst und Schrecken. Beobachtungen auf dem Weg vom Ausnahmezustand zum Polizeistaat in Europa und den usa, (Vienna: New Academic Press, 2015), 267). The question of the correctness of this idea is something entirely distinct from Schmitt’s appeal to authority as the opposite, counter concept of truth (whatever the latter might be).

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defines as the “romantic” conception of “perpetual discussion”: a characteristic sign of the liberal state.34 This theocratic position is then derived from the Roman Catholic tradition of political theology, as a counterrevolutionary philosophy of the State, which emerges in opposition to the French Revolution and extends into the ­nineteenth century. The tradition is constituted, for Schmitt, by Joseph de Maistre, Bonald and Juan Donoso Cortès.35 De Maistre’s position, in particular, the connection between infallibility and sovereignty, was, for Schmitt, the identification of the centrality of “decision” as an act which established and maintained political authority without reference to “perpetual discussion”. For Schmitt, the concrete content of that “decision” was accidental, because only “the decision […] of an authority” as an end in itself was “precious” for him.36 The continuation of this tradition by Bonald and Cortès involves the reconfiguration of this tradition in opposition to the emergence, in the nineteenth

34

35

36

On the “theocratic” approach, see Günther Maschke,“Die Zweideutigkeit der ‘Entschei­ dung’ – Thomas Hobbes und Juan Donso Cortes im Werk Carl Schmitts”, in Complexio Oppositorum. Über Carl Schmitt. Vorträge und Diskussionsbeiträge des 28. Sonderseminars 1986 der Hochschule für Verwaltungswissenschaften Speyer, ed. Helmut Quaritsch, (Berlin: Duncker and Humblot, 1988), 193–221 (199, footnote 2). Schmitt’s criticism in Political Romanticism is mainly directed at so-called “romantic occasionalism” whereby “god” would be “subjectified”, and the “isolated” individual would take the place of the “the absolute” (Carl Schmitt Politische Romantik 3rd Edition, (Berlin: Duncker and Humblot, 1968), 119 ff, 140 f.). On “perpetual discussion”, see Schmitt, Politische Romantik, 28, 192 ff and Carl Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität 7th Edition, (Berlin: Duncker and Humblot, 1996), 59, 66. On the wider relationship between Schmitt and German Roman Catholicism, see Manfred Dahlheimer, Carl Schmitt und der deutsche Katholizismus 1888–1936, (Paderborn Schöningh, 1998). See Schmitt, Politische Theologie, 57ff.; Quaritsch 1995, 26. On de Maistre (1753–1840) see, Isaiah Berlin, “Joseph de Maistre und die Ursprünge des Faschismus”, in Das krumme Holz der Humanität. Kapitel der Ideengeschichte 2nd Edition, ed. Henry Hardy and translated by Reinhard Kaiser, (Frankfurt: S. Fischer, 1992), 123–221. On Donoso Cortès (1809–1853), see Herfried Münkler, “Juan Donoso Cortès und der spanische Katholizismus”, in Pipers Handbuch der politischen Ideen, Vol. 4 Neuzeit. Von der Französischen Revolution bis zum europäischen Nationalismus, ed. Iring Fetscher and Herfried Münkler, (Munich: Piper, 1986), 277–287. On political Catholicism during the 1920s and 1930s, see, in particular, John Cornwell, Hitler’s Pope. The secret history of Pius xii (,1999), 80ff.; Ernst Hanisch, Die Ideologie des politischen Katholizismus in Österreich 1918–1938, (Vienna/Salzburg: Geyer, 1977); August B. Hasler, Wie der Papst unfehlbar wurde. Macht und Ohnmacht eines Dogmas, (Munich/ Zurich: Ullstein, 1979), 13ff., 15ff., 235ff. For Schmitt’s own position, see Schmitt Römischer Katholizismus und politische Form, (Munich: Theatiner, 1925), 53 where the idea of “atheistic socialism”, exemplified by the figure of Bakunin, is evoked as the concept of an enemy. See Schmitt, Politische Theologie, 61.

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c­ entury, of liberal constitutionalism. For Cortès, the notion of discussion is now embedded in the wider liberal constitutional framework of freedom of speech and freedom of the press in which [t]he essence of liberalism is negotiation, a cautious half measure, in the hope that the definitive dispute, the decisive bloody battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion.37 The Schmittian recourse to the tradition of political theology centres upon its analogy between jurisprudence and theology. In general, this enables Schmitt to state that “[a]ll succinct concepts of the modern Theory of the State” are “secularized theological concepts”.38 Thus, “[n]ot only according to their historical development, because they were transferred into Theory of State […], but also to their systematic structure […]”.39 For Schmitt, “[t]he state of emergency” had an “analogous meaning for jurisprudence as the miracle for theology”, and “the metaphysical opinion a certain age forms about the world” would have “the same structure as the image that makes immediate sense to it as the form of its political organization”.40 The title, Political Theology, is, therefore, a deliberately polemical one, which emphasizes the overt elaboration and development of a type of “theocratic”41 concept against the “romantic” idea42 of “eternal discussion” and its continuation within the framework of the liberal state. The critique of liberal constitutionalism continues with the more specific Schmittian interrogation of the principles of parliamentarism. From this interrogation, Schmitt postulated (already in 1923) the separability of liberalism and democracy, and indicated the possibility for a form of “democracy”, marked by an “identity” of the rulers and the ruled, of “law and will of the people”. This “democracy” would be homogenous and willing to “cut out” or “defeat” 37 Ibid., 67. 38 Ibid., 43. 39 Ibid. 40 See Schmitt, Politische Theologie, 43, 51. On the relevance of theological concepts for Schmitt’s conceptualization of notions of the State and law, see Ruth Groh, Arbeit an der Heillosigkeit der Welt. Zur politisch-theologischen Mythologie und Anthropologie Carl Schmitts, (Frankfurt am Main: Suhrkamp, 1998). 41 See, Maschke “Die Zweideutigkeit der “Entscheidung””, 199, note 26. 42 Schmitt’s criticism of “Political Romanticism” aims at what he calls “romantic occasionalism”: the “isolated” individual would displace the “absolute” or, in Schmitt’s words, “[g]od”, (Schmitt 1968, 119 ff., 140ff.).

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any type of “heterogeneity”. For Schmitt, the absence of these elements in the “mass democracy” of the 1920s was revealed as a formidable defect. Democracy, as an “empirically” observable phenomenon was engaging in its own abolition through “the problem of decision-making”: the incapacity to reconcile the principles of parliamentarism with decision-making. The profound difficulties of the maintenance of the principles of parliamentarism are accompanied by the emergence of Bolshevism and Fascism which have dissolved the connection between democracy and liberalism. This dissolution cannot, for Schmitt, simply be ignored, because “Bolshevism and fascism […] like any other dictatorship” would be “indeed antiliberal, but not necessarily antidemocratic”.43 The initial indications of, and possibility for, Schmitt’s later argument, that the “order of the leader [Führer]” would be a “primary and immediate source of law”,44 are, arguably, prefigured in Die geistesgeschichtliche Lage des heutigen Parlamentarismus, of 1923. These indications also emphasize the continued presence, in the post World-War ii work, of the question of the reference to an “act of legitimacy”, “which gives”, according to Schmitt, “in the first place sense to the legality of the mere law”.45 This discussion continues, in a modified way, debates on “legitimate” power in terms of “God-given” power which originate in the Middle Ages. In the nineteenth century, they were reactivated at the Congress of Vienna as an attempt to reassert the political form of monarchy. In relation to this tradition and, in particular, its revival in the nineteenth century, Schmitt can be considered to maintain the question while furnishing a response which has relinquished the political form of monarchy. The initial break with the political form of monarchy is articulated in Politische Theologie, and is then provided with a more p ­ rofound rearticulation in Der Nomos der Erde where Schmitt prefers, through a particular philological derivation, introduces a purportedly essential 43 44

45

See, Carl Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus 4th Edition, (Berlin: Dunker and Humblot, 1969), 35, 14, 37, 22. See, Schmitt 1933b, 676. A similar trend can be seen in Schmitt’s remarks on the massacre of SA-members, ordered by Hitler on 30th June 1934: “The leader protects the law from worst abuse if he creates law in a moment of danger by virtue of his leadership. […] The true leader is always judge, too. Judicature derives from leadership. […] In reality the leader’s deed was true jurisdiction. She is not subordinated to judiciary but she was highest judiciary herself”, (Schmitt 1934b, 945ff.) The same idea of “leadership”, as “judicature”, was also expressed by Roland Freißler, when he was appointed President of the “People’s Court (Volksgerichtshof)”. See his inaugural letter to Hitler from 15th October 1942 in: Bundesministerium der Justiz 1994, 210. Carl Schmitt Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, 3rd Edition, (Berlin: Dunker and Humblot, 1988), 42.

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s­ emantic difference between nomos and law. Schmitt presumed “the nomos in an original sense” as “the entire immediateness of a legal force not interfered with by laws […]”.46 Here, the particular Schmittian conception of a law “behind” the law appears in its final representation, and is one which has ceased to be concerned with the notion of monarchy, as it has become a question, in this later work, of a global order. An essential continuity in the Schmittian oeuvre, concerns the continued opposition to the central idea of legal positivism that law is something made by human beings, not something predetermined, given by nature, a transcendent authority or a certain tradition that is not open to question. For Schmitt, the idea of law as positive law – an arbitrary, contingent human product – and its corollary of the concept of the state transformed into juridical category was completely unbearable. The Schmittian position insists upon the retention of the foundation of law upon a supra-legal authority, which Schmitt initially connected with the state.47 The question of the “implementation” or “application” of law is, thus, also detached from the positivist conception of a generally unproblematic process of rendering a general norm concrete. The process, therefore, retains a recognition of the continuous possibility of a violence which is other than the positivist notion of norm and sanction. For the state, which rests upon the idea of a “monopoly of power”,48 opens the question of how the relation between 46 Ibid. 47 Schmitt, Politische Theologie, 66. In this respect, the equation of Kelsen’s concept of the people, as the “authorized agent of legislation”, with the pouvoir constituent, as proposed by Oliver Lepsius, “Kelsens Demokratietheorie”, in Hans Kelsen. Eine politikwissenschaft­ liche Einführung, ed. Tamara Ehs, 67–89, (Baden Baden/Vienna: Nomos, 2009), 67–89 (72), appears difficult to substantiate. The initial or original theological consideration of this question still remains in existence, as is evident, for example, on the occasion of a speech by Joseph Ratzinger (as pope Benedict xvi; Josef Ratzinger, Rede Papst Benedikts xvi. im deutschen Bundestag am 22. September 2011, http://www.bundestag.de/kulturundgeschichte/geschichte/gastredner/benedict/rede.html [11.03.2013]) to the German Parliament (“Bundestag”) in 2007, in which is to be found the statement: “From the view of the deity” is to be “decided what is legal among men”. 48 On the “monopoly of power”, see Catherine Colliot-Thélène, “Carl Schmitt versus Max Weber: Juridical Rationality and Economic Rationality” in The Challenge of Carl Schmitt, edited by Chantal Mouffe, (London: Verso), 138–154. See, also, for a contemporaneous acknowledgement, Walter Benjamin, “Zur Kritik der Gewalt”, in Aufsätze, Essays, Vorträge, eds. Rolf Tiedemann and Hermann Schweppenhäuser, (Frankfurt am Main: Suhrkamp, 1991), 179–203. The relationship between Benjamin and Schmitt is rendered more complex by the correspondence between Benjamin and Schmitt, in which Benjamin acknowledges the influence of Schmitt on his earlier work, The Origin of The German Play of Lamentation (Ursprung des deutschen Trauerspiels). See, on this, Horst Bredekamp,

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law and political force can or should be defined, and the identification of the “purposes” of a legally-based violence together with the determination of both the necessity and form of obedience to law. At the level of the State, the Schmittian response, is to appropriate the distinction, originally propounded by Sièyes, between a “constituent” and a “constituted power”.49 In this appropriation, law becomes a product of certain (historical) developments, and if we consider the historical modes of this distinction more precisely, we may entertain the suspicion that the distinction is itself one which, through redescription, confers central importance upon violently effectuated radical political transformation. The distinction enables Schmitt to transpose an “exterior of the law” inside the law itself, and this transposition enables “sovereign dictatorship”50 to be accorded the status of type of rule which remains within the parameters of law. This type of rule would not only suspend “an effective constitution by act of constitutional law”, but also “try to create a situation enabling a constitution it can regard as the true constitution”.51 To strive “to bring about a constitution” may not be reduced, for Schmitt, to a “mere matter of power”. Rather, it would concern, and remain a juridical question, as a power which is, without being constitutionally established, nevertheless related to any existing constitution in that way, that it appears as the constituting power, even though it will never be captured by any existing constitution itself.52 This juridical theory entails that the “constituent power” could never be “negated […] by an existing constitution”, and this becomes the Schmittian conception of “the meaning of the pouvoir constituent”.53 This should be about more than a “mere matter of power”? Probably only insofar as the pouvoir constituent obviously shall be brought into the sphere of numinous phenomena. “From Walter Benjamin to Carl Schmitt, via Thomas Hobbes”, Critical Inquiry, 25, 2, (1999): 247–266; see also Agamben, Giorgio: Ausnahmezustand, (= Homo sacer ii.1; Frankfurt am Main: Suhrkamp 2004), 64–77. 49 See, Stefan Breuer, “Nationalstaat und pouvoir constituant bei Sieyes und Carl Schmitt”Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy, 70, 4 (1984): 495–517. 50 See, Agamben, Ausnahmezustand, 43. 51 Ibid. 52 Carl Schmitt, Die Diktatur, 7th Edition, (Berlin: Dunker and Humblot, 2006), 137. 53 Schmitt, Die Diktatur, 137.

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The political writings of Emmanuel de Sièyes deal especially with the problem of how the idea of human rights and the democratic principle of sovereignty of the people can be realized in one and the same constitution. Sièyes was convinced that the true guarantee of natural rights depends not so much on a special declaration of these rights but on the constitution in an organizational sense; therefore the system of separated powers seems to be the crucial point in every constitution. In his early writings, Sièyes propounds a strictly ‘vertical’ model for the separation of powers that does not divide sovereignty but reserves it for the legislature whereas the executing powers are strictly subordinated to command of the legislature. In 1795, reacting to the Grande Terreur, Sièyes advocated a new model of separated powers in order to counteract anarchy as well as despotism. This “Système naturel” mixes the powers without abolishing their functional diversification including legislative supremacy.54 Schmitt leaves the further development of Sièyes thought completely unexamined. For the “guardian of the constitution” could never be a court, but only a strong president (or another type of political “leader”), political decisions, and especially laws, should not be made by parliaments but only by strong decision-makers. The term Schmitt uses to describe this, is “sovereign dictatorship”.55 3

Kelsen’s Positions as Critique

3.1 Preliminary Considerations In general, theories of legal positivism commence from the idea that law is made or determined by human beings. Thus, law, as positive law, is an entirely human creation, and this presupposition represents, despite other differences, that which is common to all variants of legal positivism. The term “legal ­positivism” itself derives from the Latin verb ponere and, in particular, its perfect participle (positus, -a, -um), as set, put or place.56 From this, follows a fundamental opposition to the Schmittian theoretical framework. The legal 54 55 56

Ulrich Thiele, “Volkssouveränität – Menschenrechte – Gewaltenteilung im Denken von Sieyes”, Archiv für Rechts- und Sozialphilosophie 86, 1 (2000): 48–69. Here, I acknowledge my thanks to Peter Langford for this (and other) very valuable advice. See, Carl Schmitt: Der Hüter der Verfassung. 3rd Edition, (Berlin: Duncker and Humblot, 1985), especially 132 ff.; Schmitt, Die Diktatur, especially 127–149. See also, Donhauser, Angst und Schrecken, especially 111 ff. See, for example, Menge-Güthling, Langenscheidts Großwörterbuch Latein, Teil i: Lateinisch-deutsch. Unter Berücksichtigung der Etymologie von Prof. Dr. Hermann Menge, 25th Edition, (Berlin: Langenscheidt, 1996), 578.

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positivism of Hans Kelsen’s legal theory reflects this opposition in two central elements: on the one hand, in his concept of a Pure Theory of Law and, on the other hand, in a conception of ideological criticism specifically orientated against the Schmittian position. 3.2 The Pure Theory of Law as a Non-metaphysical Concept57 3.2.1 Is and Ought In the critical engagement with theories of Natural Law, Hans Kelsen made a rigorous attempt to completely decouple law from politics (as well as from ethics and morality). For Kelsen, “[t]he science of law endeavours to comprehend its object ‘legally’, namely from the viewpoint of law”.58 Kelsen’s Pure Theory of Law originates from the (Kantian59) fundamental distinction between “is” (Sein) and “ought” (Sollen).60 The “statement that something is”, has a “completely different meaning […] than the statement that something ought be”.61 Kelsen thereby stresses the “logical dualism of is and ought”: “hence something is” does not implicate, “that something ought to be or ought not to be” – and vice versa.62 3.2.2 Norms For Kelsen, “the legal order” is “a system of norms regulating human behaviour”.63 “Norms” command “that something ought to be or ought to happen”.64 They are “created by human acting […], whether […] by willful ­settlement in a formalized process or in respect of custom”.65 From Kelsen’s 57 58 59 60 61 62 63 64 65

For the following considerations, see the initial developments in Gerhard Donhauser, Türhüter. Wie Recht wird, was es ist, (Vienna: New Academic Press, 2013), 49–61. Hans Kelsen, Pure Theory of Law. Translated from the Second (Revised and Enlarged) ­German Edition by Max Knight, (New Jersey: Clark, 2005), 70. (German original 1960). Hereinafter refered to as Pure Theory of Law (1960). See, Immanuel Kant, Kritik der reinen Vernunft (KrV), 2 Vols. (= Kant, Immanuel, Werkausgabe, Vols. iii and iv, edited by Wilhelm Weischedel; 12th Edition; Frankfurt am Main: 1992), 325. Hans Kelsen, Pure Theory of Law (1960), 5–7. Ibid., 5. See, Hans Kelsen, Reine Rechtslehre, 2nd Edition 1960, (Vienna: Manz, 2000), 19 (note), 196. See, Hans Kelsen, Pure Theory of Law (1960), 4. See also Gabriele Kucsko-Stadlmayer, “Rechtsnormbegriff und Arten der Rechtsnormen”. In Schwerpunkte der Reinen Rechts­ lehre, edited by Robert Walter, (Vienna: Manz, 1992), 21ff. See, Kelsen, Pure Theory of Law (1960), 4. Rudolf Thienel, “Der Rechtsbegriff der Reinen Rechtslehre – Eine Standortbestimmung”. In Staat – Verfassung – Verwaltung. Festschrift anlässlich des 65. Geburtstages von Prof. DDr. Dr. h.c. Friedrich Koja Schäffer, edited by Heinz Berka, Walter Stolzlechner, Harald Werndl, Josef: 161–200, (Vienna/New York: Springer, 1998), 181.

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position, “law” or “legal order” is inseparably bound to the idea of the state and the “state” is, as its necessary corollary, “a Legal Order” and equated with “the State Governed by Law (Rechtsstaat)”.66 Kelsen presents norms as “acts of will”, contained “in the form of an indicative statement”.67 These “rules of law to be formulated by the science of law can only be ought-statements”.68 Thus, these descriptive sentences are part of a descriptive language of legal norms, and are not legal norms themselves. This, in turn, entails that “the ‘ought’ in the rule of law has only a descriptive character”.69 In this respect, Kelsen’s terminological distinction appears disconcerting, because of its apparent divergence from conventional (linguistic as well as philosophical) language.70 In relation to this divergence, the initial disconcertion dissolves once one focuses upon the Kelsenian distinction between “legal norm” and “rules of law”. The distinction is based upon the latter’s essentially neutral, descriptive purpose which “do not impose obligations nor confer rights to anybody”, while the former, as legal norms “enacted by the legal authority”, are “imposing obligations and conferring rights upon the legal subjects”.71 Thus “[t]he statements formulated by the science of law […] may be true or false”, while “norms enacted by the legal authority […] are neither true nor false, but only valid or invalid”.72 The concept of “Ought” is used here both in its relationship to legal norms as such and in its relationship to the descriptive statements of the science of law. To clarify the problem, Kelsen has explained that “the norm as well as the statement about the norm is formulated as ought-statements, but [they] have different meanings”. It is only if the sentence, “Thieves are ought to be p ­ unished by prison sentence”, is “laid down by the legislator”, that a “norm” is constituted. Thus, “[t]he ought has a prescriptive meaning”. If the same sentence is found as a statement about the norm in a textbook or manual on criminal law, it is also an ought-sentence, but the “ought does not have a prescriptive ­meaning” in 66

See, Kelsen, Pure Theory of Law (1960), 286 ff., 312ff.; see, also Katharina Groh, Demokratische Staatsrechtslehrer in der Weimarer Republik, (Tübingen: Mohr, 2010), 119ff. and Jan Vollmeyer, Der Staat als Rechtsordnung, (Baden-Baden: Nomos, 2011), 73 ff. 67 Kelsen, Pure Theory of Law (1960), 7. 68 Ibid. 69 Ibid., 79. 70 See, for example Edgar Morscher, “Die Sein-Sollen-Dichotomie im Logischen Empirismus und im Rechtspositivismus”. In Logischer Empirismus und Reine Rechtslehre. Beziehungen zwischen dem Wiener Kreis und der Hans Kelsen-Schule, edited by Clemens Jabloner and Friedrich Stadler, 45–116, (Vienna/New York: Springer, 2001), 59, 61. 71 Kelsen, Pure Theory of Law (1960),73. 72 Ibid.

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this case.73 In this respect, “an ought-sentence may be as well a norm as statement about a norm”.74 This Kelsenian approach and terminological distinction raises a number of logical questions, because it remains indefinite concerning which kind of sentence is specifically reserved for a norm. According to Kelsen, the sentence is less important than the author in determining the answer to this question. From Kelsen’s position, “norms” are not only acts of the will of a legal authority, but also the legal “meaning of empirical facts”.75 And how should “meaning” be thought to be unlike an “effect” of the “movement of language [Sprachbewegung]”?76 Indeed, this idea is considered also within the Pure Theory of Law, by defining “the norm” as a “scheme of interpretation”.77 Thus, [t]he judgment that an act of human behaviour, performed in time and space, is ‘legal’ (or ‘illegal’), is the result of a specific, namely normative, interpretation.78 This, in turn, requires a specific concentration upon one aspect of norms, namely, that of validity. For Kelsen, the specific ought of “norms” is based on their ­creation by a “legal authority”, a “legislator”. It is, “[b]y the word ‘validity’” that Kelsen “designate[s] the specific existence of a norm”.79 This “‘existence’ of a positive norm […] is not the same as the existence of the act of will. A norm can be valid, even if the act of will whose meaning the norm is, no longer exists”.80 A legislative norm, e.g., a law, is passed, in order that the members of the l­ egislative institution “turn in their decisions to the regulation of other affairs”.81 For Kelsen, “the validity of a norm is an ought and not an is”, and “the validity [Geltung] of a norm” has to be distinguished “from its effectiveness [Wirksamkeit]”.82 Kelsen defines a norm as effective if it is “actually applied and obeyed”.83 73 74

See, Hans Kelsen, “Recht und Logik”, Forum 12, no.143 (1965): 495–500, (498). Hans Kelsen, Allgemeine Theorie der Normen, eds., Kurt Ringhofer and Robert Walter, (Vienna: Manz, 1979), 121. 75 See, Kelsen, Reine Rechtslehre, 61 (note). 76 See, also, referring to Jacques Lacan, Wolfgang Welsch, Vernunft. Die zeitgenössische Vernunftkritik und das Konzept der transversalen Vernunft, (Frankfurt am Main: Suhrkamp, 1995), 283. 77 Hans Kelsen, Pure Theory of Law (1960), 4. 78 Ibid. 79 Kelsen Pure Theory of Law (1960), 10. 80 Ibid. 81 Ibid. 82 Ibid.; Kelsen, Reine Rechtslehre, 9 ff. 83 Kelsen Pure Theory of Law (1960), 11.

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From the Kelsenian position, validity and effectiveness coincide only i­ nsofar as “[e]ffectiveness is a condition in the sense that effectiveness has to join the positing of a legal norm if it is not to lose its validity”. In other words: “A minimum of effectiveness is a condition of validity”.84 3.2.3 The “Basic Norm” The Kelsenian concern centres upon the reponse to the question “why is a norm valid, what is the reason for its validity?” The response, in which such a “reason for the validity of a norm” could “only be the validity of another norm” not a fact,85 results from Kelsen’s fundamental separation of the realms of ‘is’ and ‘ought’. In contrast to theorists of natural law, but also in relation to an important representative of the preceding tradition of legal positivism, Georg Jellinek (1851–1911), the so-called “normative power of the factual”, is not at the origin of the Kelsenian investigation of the reason for normative validity. For Kelsen, “[a] norm which represents the reason for the validity of another norm is figuratively spoken of as a higher norm in relation to a lower norm”.86 On this basis, it is possible to develop a graduated hierarchy of norms, but this contains the immediate difficulty of the potential possibility that “the search for a reason of a norm’s validity” could “go on indefinitely”.87 To avoid the possibility of such an infinite regress, it becomes necessary to presuppose a “highest norm”: It must be presupposed, because it cannot be ‘posited’, that is to say: ­created, by an authority whose competence would have to rest on a still higher norm. This final norm’s validity cannot be derived from a higher norm, the reason for its validity cannot be questioned.88 This “highest norm” is, in Kelsenian terminology, called the “Basic norm” (Grundnorm), and it is situated as the origin of a system of positive law: “[a]ll norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order”.89 To presuppose such a “Basic norm” seems to be indispensable from a logical point of view, if one “consider[s]

84 Ibid. 85 Ibid., 193. 86 Ibid. 87 Ibid., 194. 88 Ibid., 195. 89 Ibid.

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as law exclusively positive law”, and refuses to base the validity of norms “upon a higher, meta-legal norm” superior to the framework of positive law.90 The status of the “basic norm” – the ‘origin’ revealed by the methodology of the Kelsenian legal science of positive law – determines the relationship between a legal science and the existing systems of positive law. The relationship commences from the constitution of the autonomy of legal science from politics and its rejection of a reduction to the formulation of prescriptions of legal policy. It is, thus, a “general legal theory, not an interpretation of particular national or international norms”.91 Kelsenian legal science concerns the operation of legal cognition and its focus is upon “norms that confer on ­certain material facts the character of legal (or illegal) acts, and that are themselves created by way of such legal acts”.92 Hence, “[t]he problem of the Pure Theory of Law is the specific autonomy of a realm of meaning” in relation to which the “basic norm” can be interpreted as form of Kantian “regulatory hypothesis” or even as hypothetical precondition, a constitutive principle.93 Therefore, to pose the question of the content of the “basic norm” is immediately to situate oneself outside the parameters of a legal science of positive law. The “basic norm” is limited to authorize a norm-creating authority, it is a rule according to which the norms of its system ought to be created. […] The basic norm supplies only the reason for the validity, but not at the same time the content of the norms constituting the system.94 The Pure Theory is resolute in its methodological refusal “to evaluate the positive law”.95 It confines itself to the comprehension of the structure of positive law in which “the legal norm belong[s] to the legal order whose norms are created according to” the “basic norm. Therefore any kind of content might be law”.96 From this position, the Pure Theory prevents “legal science from either passing off the positive law as a higher system or justifying the positive law on the basis of a higher system”.97 90 Ibid., 205. 91 Kelsen, Pure Theory of Law (1934), transl. by Bonnie Litschewski Paulson and Stanley Paulson, (Oxford: Oxford University Press, 1992), 6. 92 Kelsen, Pure Theory of Law, (1934), 11. 93 See, also, Hans Kelsen, Allgemeine Theorie der Normen, 206 ff. 94 Kelsen, Pure Theory of Law (1960), 197. 95 Ibid., 18. 96 Ibid., 199. 97 Kelsen, Pure Theory of Law (1934), 36.

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3.3 Critique of Ideology A central aspect of Kelsen’s critique of ideology also finds expression in the Pure Theory of Law: a fundamental distinction between scientific categories and those of ethics and morality. This distinction is present in many of Kelsen’s works, but it finds a condensed and exemplary expression in the posthumously published and edited book Secular Religion. It is with particular emphasis, in this book, that Kelsen insists on the independence of modern science, as a rational undertaking operating with arguments instead of definitive answers and truths. This insistence is one which establishes modern science, against its respective characterization by Eric Voegelin, in the New Science of Politics: An Introduction,98 as a form of Gnosticism, and by Crane Brinton, in A History of Western Morals,99 as a re-divinization of reality, as, on the contrary, intrinsically atheological: without the intention to displace theology and occupy its former position.100 For Kelsen, modern science is the only branch of modern civilization that can escape imputation of theological elements or identification with religion and especially with mystic Gnosticism. For its development is entirely the result of emancipation from theology, religion and mysticism; it constitutes the most radical de-divinization of the world as the object of cognition.101 In contrast, religious or theological positions are based on dogmas which are accorded the status of unquestioned truths. The potential intertwining of theology and science, which extends to the notion of science as a secular religion, is the continued concern for Kelsen. The intertwining dissolves the distinctiveness of modern science – “an objective cognition of reality, free from metaphysical presuppositions”102 – and enables the disqualification of science by all forms of Christian theology. Secular Religion thus responds, to a particular theoretical development of the 1950s and 1960s,103 and, as part of this response, to the attempt, by Eric Voegelin (1901–1985) to combine science and religion through its ­origin

98

Eric Voegelin, The New Science of Politics. An Introduction, (Chicago: Chicago University Press, 1952). 99 Crane Brinton, A History of Western Morals, (New York: Harcourt and Brace, 1959). 100 Kelsen, Secular Religion, 251, 253, 255. 101 Ibid., 251. 102 Ibid., 255. 103 See, Jabloner/Zeleny/Donhauser, “Einleitung”, xi–xiii in Kelsen, Secular Religion.

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in ­belief.104 The response, beyond the critique of Voegelin, extends to Schmitt, and the specific Schmittian attempt to combine juridical science and theology. In Secular Religion, Kelsen focuses, in particular, upon Schmitt’s Political Theology. The central Schmittian insistence, in this text, that “[a]ll important concepts of the modern theory of the state are secularized theological concepts”105 is, for Kelsen, confined to “the concept of sovereignty”.106 With this reduction of the field analogical demonstration, there is a concomitant reduction of the notion of “sovereignty” to the competence to establish “a state of emergency”.107 This reduction flows from the shape of “a certain analogy” Schmitt establishes “between the sovereignty of the state […] and the omnipotence of God”.108 This “theological concept” is unable to recognise or to distinguish differences between both categories, at least from a scientific, i.e., non-religious perspective. If “the omnipotence of God” is to be defined as “unlimited”, in a theological sense, this cannot be applied immediately, and without qualification, to the “legislator”, because “the so-called omnipotence of the legislator means only his competence to make and unmake positive law”.109 This insistence upon the separability of the theologico-political and the scientific definition of the concepts of the modern theory of the state assumes the continued pertinence of a legal science of positive law. It seeks to counter an approach that facilitates the introduction of theological concepts into legal theory: the misuse of “the method of a comparative theory of culture”.110 For his argument that “sovereignty” may not be reduced to the power “[t]o establish a state of emergency”, Kelsen also returns to Bodin, and criticizes the violence of the Schmittian appropriation and interpretation of this author.111 This interpretative violence is also evident, for Kelsen, in the Schmittian presentation and use of the Hobbesian formulation with regard to authority and law. Kelsen places into question the Schmittian approach to Bodin in which “the right to annul the positive law” is “the proper mark of sovereignty and 104 Eric Voegelin, The New Science of Politics. An Introduction, (Chicago: Chicago University Press, 1952). 105 Schmitt, Politische Theologie, 43. 106 Kelsen, Secular Religion, 18. 107 Ibid. 108 Ibid. 109 Ibid. 110 Ibid., 19. 111 Ibid.

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therefore tries to derive all the other marks from it”.112 In contrast, for Kelsen, Bodin’s definition of “sovereignty as the power to make and unmake the law”,113 reveals the violence of the Schmittian interpretation as the reflection of a certain ideological or political position. This philological exactitude – the demand for interpretative fidelity to the text – appears, initially, as interpretative pedantry or the denial of the polysemic character of a text. However, this philological position is the expression of a more fundamental concern. For Kelsen, it is the preservation of a sphere of law and democracy, and their associated freedoms, from the interpretative practices of political theology. The insistence on philological exactitude is the methodological constraint upon a conceptual transformation, undertaken by political theology, in its Schmittian and Voegelinian variants, orientated by anti-liberal and anti-democratic world-views. The dissolution of these methodological constraints enables the articulation of a conceptual linkage as the restoration or renewal of the connection between politics and theology. This conceptual framework which, in its Schmittian variant, installs the concept of an enemy,114 furnishes the possibility for the persecution of minorities or members of otherwise defined groups of people as well as repressive structures for whole societies. Kelsen is, thus, particularly attuned to the potential danger of such developments: the extension of the political to encompass the juridical – to occupy the legal system. The Kelsenian insistence upon the severance of the juridical and the political from the theological – the assertion of a secular reason – requires that one confine oneself to a response to the Schmittian challenge which is that of rendering it inoperative. However, if one proceeds beyond the Kelsenian position to that developed by the Egyptologist Jan Assmann, then, while “political theology” continues to postulate “a non-secular basis”,115 the Schmittian challenge is capable of receiving a more complex response. This, in turn, requires a reconsideration, through the return to the Egyptian origin of monotheism, of both the Kelsenian and Schmittian notions of the secular and the process of secularization.

112 Kelsen, Secular Religion, 19, with reference to Schmitt’s Politische Theologie, 1920, 11. See, also, Schmitt Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 7th Edition, (Berlin: Dunker and Humblot, 1996), 15. 113 Kelsen, Secular Religion, 18. 114 See, also, Reinhart Koselleck, “Zur historisch-politischen Semantik asymmetrischer Gegenbegriffe”, in Vergangene Zukunft. Zur Semantik geschichtlicher Zeiten, 3rd Edition, (Frankfurt am Main: Suhrkamp, 1995), 211–259. 115 See, Jan Assmann, Herrschaft und Heil. Politische Theologie in Altägypten, Israel und Europa, (München / Wien: Hanser, 2000), 20 ff.

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Chapter 11

The Trouble with Nature Mariano Croce Abstract This chapter offers a contrastive analysis of Hans Kelsen’s and Carl Schmitt’s troubled relations with “nature” and the effects that this relation exerts on their conceptualisation of law. By examining the enduring polemical relationship between Kelsen and Schmitt from this position, it provides an analysis that differs in many respects from prevailing approaches. For it centres on a period in which the polemic between the two authors was no longer direct, since Kelsen had fled into exile from, and Schmitt was compromised with, the Nazi regime. Consequently, the chapter juxtaposes two texts published in the same year, 1934, Kelsen’s Reine Rechtslehre and Schmitt’s Über die drei Arten rechtswissenschaftlichen Denkens, to make the claim that a specific a­ nalysis of these works is conducive to a sounder understanding of Kelsen’s and Schmitt’s ­conception of the interrelationship of nature, society and the law.

1 Introduction This chapter intends to offer a contrastive analysis of Hans Kelsen’s and Carl Schmitt’s troubled relations with what I will refer to as “nature” and the effects that this relation exerts on their conceptualisation of law. By examining the enduring polemic between Kelsen and Schmitt from this position, I aim to provide an analysis that differs in many respects from prevailing approaches. For, I will not investigate classical topoi, such as their dispute over the question of the definition of the guardian of the constitution,1 the role of the legislator in 1 On this, see, Lars Vinx, ed. and trans., The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, (Cambridge: Cambridge University Press, 2015), for the English translation of the relevant texts of the debate. For further analysis, see ­Olivier Beaud et al., eds., La controverse sur “le gardien de la Constitution” et la justice constitutionnelle. Kelsen contre Schmitt, (Paris: Editions Panthéon-Assas, 2007); Heiner Bielefeldt, ­“Deconstruction of the ‘Rule of Law’: Carl Schmitt’s Philosophy of the Political”, Archiv für Rechts- und ­Sozialphilosophie 82, no. 3 (1996): 379; Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar, (Durham/London: Duke University Press, 2004); Reinhard Mehring, ­“Staatsrechtslehre, Rechtslehre, Verfassungslehre: Carl Schmitts Auseinandersetzung mit

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the liberal regime,2 nor, the broader questions emerging from the complex and fraught political conditions which confronted both the Weimar Republic and the Austrian Republic. In addition, their distinctive and opposed positions, at the level of international law and the system of international relations, will also be left unexamined. Instead, I will focus on a subsequent period, in which the polemic between the two authors was no longer direct, since Kelsen had already fled into exile from, and Schmitt was already compromised with, the Nazi regime. Rather, I will be specifically concerned with two texts published in the same year, 1934, Kelsen’s Reine Rechtslehre (hereafter Pure Theory)3 and Schmitt’s Über die drei Arten rechtswissenschaftlichen Denkens (hereafter The Three Types).4 I will claim that a specific analysis of these works is conducive to a sounder understanding of Kelsen’s and Schmitt’s conceptions of the interrelationship of nature, society and the law. As a preliminary step, however, it is worth explaining what I mean by n ­ ature within the parameters constituted by the present inquiry. I will understand nature not as a metaphysical or superhuman entity situated behind and/or beyond human beings. Rather, I will assume a definition of nature, derived from the German tradition of philosophical anthropology, as the set of pragmatic problems that human beings encounter resulting from the limited ­resources of their specifically human constitution. In other words, nature will be ­understood as the initial environment in which human beings are located Hans Kelsen”, Archiv für Rechts- und Sozialphilosophie (1994), 80, 2, 191–202; Mónica GarcíaSalmones Rovira, The Project of Positivism in International Law, (Oxford: Oxford University Press, 2013), 309–315; Augustin Simard, La Loi désarmée. Carl Schmitt et la controverse légalité/ légitimité sous Weimar, (Paris: Editions de la Maison des sciences de l’homme, 2009). 2 See, for example, Michael Salter, Carl Schmitt: Law as Politics, Ideology and Strategic Myth, (Abingdon: Routledge, 2012), 76–78; William E. Scheuerman, Carl Schmitt: The End of Law (Lanham/London: Rowman & Littlefield, 1999). On Schmitt’s conception of the relationship between law, state and politics, see Carlo Galli, Genealogia della politica. Carl Schmitt e la crisi del pensiero politico moderno, (Bologna: Il Mulino, 2010); Jan-Werner Müller, “Carl Schmitt, Hans Freyer and the radical conservative critique of liberal democracy in the Weimar republic”, History of Political Thought (1991) 12, 4, 695–715; Volker Neumann, Schmitt als Jurist, (Tübingen: Mohr, 2015); Rüdiger Voigt, ed., Mythos Staat: Carl Schmitts Staatsverständnis, (Baden-Baden: Nomos, 2015). 3 Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law, trans. Bonnie Litshewski Paulson and Stanley L Paulson, (Oxford: Oxford University Press, 1992). Hereinafter I will refer to Kelsen’s overall jurisprudential project of the 1930s as Pure Theory, while the italics Pure Theory will specifically denote Kelsen’s book. In the decision to concentrate upon the Pure Theory, the later, explicit thematization of the relationship between law and nature, contained in Kelsen’s ­Society and Nature: A Sociological Inquiry, of 1943, is also left unexamined. 4 Carl Schmitt, On the Three Types of Juristic Thought, trans. Joseph Bendersky, (Westport, ct: Praeger, 2004).

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and from which, due to their inherent, instinctual deficiencies, they engage in a process of detachment and differentiation. This understanding of nature invites one to regard human practical life as an ensemble of activities that human beings undertake to forge a distinct environment in which they are to be located, and to develop the “second nature” of culture. This underlying notion of nature of the German tradition of philosophical anthropology, through such prominent thinkers as Helmuth Plessner and Arnold Gehlen, emerged at the same period as the work of Schmitt and Kelsen, but centred upon academic fields other than legal theory. From this conception of nature, the main question I will address, by examining these particular works of Kelsen and Schmitt, will concern whether the activity of human beings within their environment has, or should have, an impact on the contents of the legal order. I will claim that the manner in which one conceives the distinct realms of nature and human action affects the manner in which one conceives the relationship among them. Hence, that the legal theories of these two central representatives of twentieth-century legal thinking are founded upon two different, and generally incompatible, understandings of the nexus between law (as a central sphere of society) and nature.5 2

Physical Events and Legal Meaning

In order to commence the analysis, two passages, which consider the relationship between legal norms and the type of conduct that these are meant to regulate or discourage will be cited: What makes certain human behaviour illegal […] is neither some sort of immanent quality nor some sort of connection to a metalegal norm, to 5 For an alternative approach to the relationship between Plessner and Schmitt, see Rüdiger Kramme, Helmuth Plessner and Carl Schmitt. Eine historiche Fallstudie zum Verhältnis von Anthropologie und Politik in der deutschen Philosophie der zwangler Jahre, (Berlin: ­Duncker & Humblot, 1989). Kramme’s approach is subjected to critique in Axel Honneth, “Rez. zu. Rüdiger Kramme’ Helmut Plessner und Carl Schmitt”, Kölner Zeitschrift für Soziologie und Sozialphilosophie 43 (1991): 51–58; and J.-W. Müller, “The Soul in the Age of Society and ­Technology: Helmut Plessner’s Defensive Liberalism”, in Confronting Mass Democracy and Industrial Technology, ed. J.P. McCormick, (Durham: Duke University Press, 2002), 139–162. On the German tradition of philosophical anthropology, see Joachim Fischer, Philosophische Anthropologie: Eine Denkrichtung des 20. Jahrhunderts, (Freiburg: Karl Alber, 2015). On the alternative transformation of philosophical anthropology into a philosophy human culture, see Gerald Hartung, Das Maß des Menschen – Studienausgabe: Aporien der philosophischen Anthropologie und ihre Auflösung in der Kulturphilosophie Ernst Cassirers, (Weilerswist:Velbrück 2006).

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a moral value, a value transcending the positive law. Rather, what makes certain behaviour a delict is simply and solely that this behaviour is set in the reconstructed legal norm as the condition of a specific consequence, it is simply and solely that the positive legal system responds to this behaviour with a coercive act.6 Normatively, the set legal norm is confirmed by sentencing the murderer to death through application of the valid penal statute; the crime, however, is not disorder, but rather mere “fact-type” […] Normativity and facticity are “completely different planes”: the ought lies outside of the is and, according to the normativist thought, retains its own inviolable sphere, while in concrete reality, all distinctions between right and wrong, order and disorder, normatively seen, are transformed into the material basis for the application of norms.7 These two passages attest to an irreconcilable disagreement concerning what can be referred to as “the ontology of legal life”. In brief, while Kelsen considers the law as an artificial technique, designed to connect a conditioning event with a conditioned one by way of imputation, Schmitt understands the legal order as the selection and protection of a pre-existing concrete order. While, for Kelsen, there is no necessary connection between social and legal normativity (at least from the perspective of a purified theory of law), to the extent that any conduct or practice could potentially operate as a condition in the reconstructed legal norm, for Schmitt, the connection between social and legal normativity is a necessary condition for the emergence and reproduction of a legal order. The central focus of this chapter is the divergence between Schmitt and Kelsen, and, in particular, to identify the specific basis upon which Schmitt articulates so dismissive an approach to Kelsen’s conception of “the ontology of legal life”. Schmitt’s articulation of this critique of Kelsen will also be traced in terms of its modification or alteration between the 1920s and the 1930s. In short, while in his most famous works of the 1920s,8 Schmitt wants to bring out the hidden political character of Kelsen’s positivism, which the latter staunchly denies, in the 1930s Schmitt’s critical analysis will be based

6 Kelsen, Introduction to the Problems of Legal Theory, 26. 7 Schmitt, On the Three Types of Juristic Thought, 53–54. 8 Particularly representative of this position of the 1920s are Carl Schmitt, The Concept of the Political, trans. George Schwab, (Chicago: University of Chicago Press, 1996); Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab, (Chicago: University of Chicago Press, 2005); Carl Schmitt, Dictatorship, trans. Michael Hoelzl and Graham Ward, (Cambridge: Polity Press, 2014).

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on a sounder ­ontology of legal life, ­rooted in a more refined understanding of nature and humans’ practical activity.9 However, in order to initiate this process of comparison, it is necessary to provide an outline of (my reading of) Kelsen’s conception of law. In his theoretical framework of a legal science of positive law, law appears first and foremost as a technique of signification. Legal norms confer meaning on specific types of conduct that the legislator seeks to prohibit, and are characterised by the fact that a sanction ought to follow the occurrence of what is prohibited by the particular norm. Hence, a norm is an artificial relationship established between two material events. This relationship can be portrayed as an attribution of meaning to something that has no meaning of its own. What is the task that legal meaning is meant to perform? In short, it turns a specific instance of conduct, naturally devoid of legal significance, into a legally significant condition for a sanction to be applied. In effect, Kelsen makes it clear that what occurs in the social realm has no legal significance per se: “external circumstances” are events “perceptible to the senses” and “governed by causal laws”.10 In other words, material events are nothing but a set of natural events ruled by the laws of mechanics, with no legal import. If this holds true, then there are no good actions, good models of conduct, or good principles that, as such, by or of their essential, invariant nature ­deserve to be encapsulated and enforced by legal norms. All actions, models, and principles are mere chains of causes and effects that can be said to be neither legal nor illegal, since the characteristic of being legal or illegal is not intrinsic to social events. “Rather” – Kelsen argues – “what makes such an event a legal act is its meaning, the objective sense that attaches to the act”.11 This also suggests that any act or event may become legal, that is to say, may be given a legal meaning that renders it into a legal act or event. For Kelsen: There is an act perceptible to the senses, taking place in time and space, an external event, usually an instance of human behaviour. And there is a specific meaning, a sense that is, so to speak, immanent or attached to the act or event […] The specifically legal sense of the event in question, its own peculiarly legal meaning, comes by way of a norm whose content refers to the event and confers legal meaning on it.12 9

In addition to the The Three Types, particularly representative of this position of the 1930s are the preface to the second edition of Political Theology, written in November 1933, and Carl Schmitt, State, Movement, People: The Triadic Structure of the Political Unity, trans. Simona Draghici, (Corvallis, or: Plutarch Press, 2001). 10 Kelsen, Introduction to the Problems of Legal Theory, 10. 11 Ibid. 12 Ibid., 8–10.

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Based on these theoretical presuppositions, Kelsen believes the norm to function as a scheme of interpretation.13 Thus, he claims a norm can derive its own validity neither from the fact that a given action has been performed nor from the fact that people generally refrain from doing what the norms qualify as delicts. For, in place of these potentially reductive psychological and empirical approaches, the validity of a legal norm rests the boundaries constituted by a hierarchy of normative validity in a chain of validity. The distinctiveness of Kelsen’s account rests upon constructing the normative hierarchy upon the ­basis of a cognitive process in which a basic norm (Grundnorm) represents nothing other than a hypothetical assumption: “Given the presupposition that the basic norm is valid, the legal system resting on it is also valid”.14 Yet, the basic norm eventually reveals itself to be an authorising act that must be effectively in force. Paradoxically, the origin of such a chain of validity, which should be scrutinised with no recourse to empirical data, is based upon a thoroughly empirical fact, that is, the existence of an effective constitution. For Kelsen, if one asks about the basis of the validity of the criminal code, one a­ rrives at the state constitution, according to whose provisions the criminal code was enacted by the competent authorities in a constitutionally ­prescribed procedure. If one goes on to ask about the basis of the validity of the constitution, on which rest all statutes and the legal acts stemming from those statutes, one may come across an earlier constitution, and finally the first constitution, historically speaking, established by a single usurper or a council, however assembled.15 Hence, [w]hat is valid as a norm is whatever the framers of the first constitution have expressed as their will – this is the basic presupposition of all cognition of the legal system resting on this constitution. Coercion is to be applied under certain conditions and in a certain way, namely, as determined by the framers of the first constitution or by the authorities to 13

Ibid., 10. On this aspect, see Andrei Marmor, Philosophy of Law, (Princeton: Princeton University Press, 2011), 11–20. 14 Kelsen, Introduction to the Problems of Legal Theory, 58. 15 Ibid., 57.

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whom they have delegated appropriate powers – this is the schematic formulation of the basic norm of a legal system (a single-state legal system, which is our sole concern here).16 The presence of history in the Pure Theory of Law, and the Kelsenian use of the term “historically” merely designate an aspect of the “schematic formulation of the basic norm of the legal system”.17 The notion of history and the historical are unconcerned with, and, therefore, exclude the particular manner in which a constitution was instituted. This methodological exclusion is the corollary of the insistence upon the Basic norm (Grundnorm) as the sole condition of possibility for the separation between “Is” (Sein) and “Ought” (Sollen) which, in turn, transforms the conception of the position or role of the first legislator and the first constitution. For Kelsen, The basic norm confers on the act of the first legislator – and thus on all acts of the legal system resting on the first act – the sense of ‘ought’, that specific sense in which legal condition is linked to legal consequence in the reconstructed legal norm, the paradigmatic form in which it must be possible to represent all the data of the positive law.18 Thus, the constitution or first legislator is displaced as the origin of a theory of law and substituted by a methodology which identifies the origin in the “transcendental logical conditions” of positive law.19 In this displacement, the further determination of the historical character and distinctiveness of a constitution or first legislator has ceased to be that with which a legal theory should be concerned. Such an analysis falls outside the ambit of the Pure Theory, since it is the subject matter of an empirical analysis of causal relations among facts and events.20 16 Ibid. 17 Ibid. 18 Ibid., 58. 19 Ibid. 20 It is this explicit marginalisation of history (which is also a marginalization of politics), in the Pure Theory, which Schmitt already reveals, in Constitutional Theory (1928), as an inherent tendency in Kelsen’s previous work from the Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatz (1911) to the Allgemeine Staatslehre (1925). In the Pure Theory, the overt characterization of the project of Kelsenian legal science, as one which “is not aiming to inaugurate a new method of jurisprudence” (Pure Theory, 58), is intelligible, for Schmitt, as the essential continuity of the Kelsenian theory of the state with “the bourgeois theory of the Rechtstaat (Carl Schmitt, Constitutional Theory, trans. and ed. J. Seitzer, (Durham/London: Duke University Press, 2008), 65): its “final product” (ibid.).

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Schmitt’s Criticisms: Before and After Institutionalism

Schmitt has always situated Kelsen as a central, polemical target.21 In Political Theology (1922) – a work which precedes the period I am specifically concerned with – he advances a sharp, meta-theoretical critique of the Neo-Kantian ­tradition of legal and political theory. Kelsen, as its exemplary figure, articulates the idea of a methodology of theoretical purity, which becomes sheer apolitical rationalism in which a “jurisprudence concerned with ordinary dayto-day questions has practically no interest in the concept of sovereignty”.22 For Schmitt, the marginalization of the concept of sovereignty is the reflection of the primacy accorded, by Kelsen, to the norm and normality over the exception and the decision. This primacy is dependent upon, and maintained by, the introduction of a radical disjunction between jurisprudential and sociopolitical inquiries in which “the exception has no juristic significance and is therefore ‘sociology’”.23 This obscures a, if not the central element of law and a legal order, through its incapacity to acknowledge that the exception “is principally unlimited authority, which means the suspension of the entire existing order”;24 and that this suspension remains “within the framework of the juristic”.25 It is here that Schmitt lays the foundation for the development of a critique that will have a pivotal role in the works of the 1930s. For Schmitt: Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. The norm requires a homogeneous medium. This effective normal situation is not a mere “superficial presupposition” that a jurist can ignore; that situation belongs precisely to its immanent validity. There exists no norm that is applicable to chaos.26 Hence, it repeats the transformation of the “political being or becoming of the state unity and order” […] into that which merely functions, the opposition of the being and the normative is constant mixed up with that of substantial being and legal functioning” (ibid., 65). 21 On the important position which polemic, as polemos, occupies in relation to the notion of polémios (enemy) in Schmitt’s conceptual framework, one has to return to its “origin” in Schmitt’s earlier rejection of political romanticism of 1919 (Carl Schmitt, Political Romanticism, trans. G. Oakes, (Cambridge: mit Press, 1991)) and the concomitant adoption of an overtly confrontational orientation to the formation and expression of juridico-political concepts. 22 Schmitt, Political Theology, 12. 23 Ibid., 13. 24 Ibid., 12. 25 Ibid., 13. 26 Ibid., 13.

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In the 1920s, however, Schmitt assigns normality a minor role vis-à-vis the e­ xception, which he deems to be the essential source or origin of the legal order. He maintains that the possibility of normality is itself a juridical situation or condition which is created by a sovereign whose decision defines both normality and its suspension in the exception. For Schmitt, the sovereign, the one who decides on the state of exception, is the unquestionable ­foundation of law, and the presence and exercise of this sovereignty guarantees the ­effectiveness of the legal order. This conception, and its associated reorientation of the position of the jurist, furnishes the position from which to undertake a polemic against a theory of law that deliberately leaves this central aspect unthematized. Schmitt’s profound opposition to the conception of law as one which establishes itself is a central element of the radical rejection of the theoretical project of Kelsenian positivism. The critique articulated in Political Theology centres upon a jurisprudential methodology which results in the incapacity to acknowledge the effective condition of the possibility and existence of law. The counterpart of this critique is, however, the extension of jurisprudence to encompass a political understanding of the legal phenomenon and its source, as he considers Kelsen and his epigones to have displaced the centrality of the state of exception and the sovereign who decides on it. The transition from the Schmittian position in Political Theology to that of the Three Types is explicitly acknowledged in the Preface to the Second Edition of Political Theology in 1934. Here, Schmitt reaffirms the continued pertinence of the notion of political theology while introducing a number of further ­precisions. Beyond the reconsideration of the “major problem concerning the individual stages of the process of secularization” to which Schmitt refers to his subsequent “The Age of Neutralization and Depoliticization” of 1929, there is the question of replacing the former two types of juridical thinking (normativism and decisionism) with three. The third, distinct from both normativism and decisionism, is institutionalist: it is a form of legal theory which “unfolds in institutions and organizations which transcend the personal sphere”.27 On the interpretation offered in this chapter, The Three Types represents a stronger Schmittian attack on positivism, that seriously undermines and discredits the Kelsenian project of a Pure Theory. For my purposes, it is important to note that this attack is no longer of a meta-theoretical type, but concerns the socio-ontological understanding of social life and the misleading 27

Ibid., 3. Schmitt refers in a footnote in this section of the Preface to his work State, Movement, People of 1933 as exemplifying the distinctively Schmittian approach to this third type of juridical thought.

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c­ onception of it that underlies positivist jurisprudence. In this regard, what in other ­contexts I call “Schmitt’s institutional turn”, led to a transformation of his theoretical project in which the previous conception of normality is significantly modified and the role played by social practices in the construction of a legal order is reappraised. In The Three Types the concept of normality is situated at the centre of Schmitt’s theory. The concept of normality which is developed in this text is defined as a set of widespread and generally accepted standards of conduct that are produced by members of social institutions in everyday life. This, in turn, is the conceptual foundation for the new orientation of the Schmittian critique. It has ceased to be determined by its concern with Kelsen’s deliberate and hasty dismissal of the decisionist origin of the legal order. The focus is now upon Kelsen’s barren understanding of social life and the chasm which the Kelsenian approach wrongly envisages to exist between legal and social normativity. Schmitt’s new institutional critique is composed of two criticisms which indicate, on the one hand, the spurious nature of positivism as a legal theory and, on the other, the idea of society which it presupposes. In relation to the first aspect of the critique, which appears far less compelling than the second, Schmitt defines positivism as “the rejection of everything ‘extra-legal’”. The rejection reveals an internal inconsistency within legal positivism. For, while positivists consider the source of law is a social fact that furnishes the possibility for the existence of a legal system, this concrete, factual origin is effectively concealed by the employment of a purely legal language that is detached from all reference to the concreteness of social events. This methodological approach inevitably results in the creation of internal inconsistency – a theoretical deadlock – as the law is effectively accorded the capacity to produce itself, without the requirement for the presence of the creative action of anyone: [O]ne had first of all to adhere to the will of the lawgiver; then, in order not to fall into subjective and psychological analyses, appear to have spoken objectively the will of the law; finally, one had to declare only the law itself, as a sufficient norm, to be authoritative.28 Initially, also in this context, Schmitt’s contention appears to concern the ­assertion of “pureness” of legal theory which explicitly denies, but effectively conceals, a decisionist presupposition. This inherently ambiguous attitude of positivism to something that it simultaneously presupposes and denies, 28 Schmitt, On the Three Types of Juristic Thought, 67.

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­ ndermines the veracity of its methodological insights and reveals the essenu tially spurious character of its jurisprudential insights: [t]he positivist is not autonomous and therefore not an eternal type of jurisprudential thinker. He subjected himself – decisionistically – to the decision of whichever current legislator possesses state power […]. But, at the same time, the positivist demands in addition that this decision have a firm and inviolable value as norm, that is, that the state legislator himself also be subjected to the very same statute.29 However, despite the seeming analogy with the criticism advanced in Political Theology, this subsequent criticism is not primarily characterised by theoretical or methodological concerns. This can be deduced by the second element of Schmitt’s attack upon Kelsen. The second element is characterized by a primary concern with the all too easy separation that positivists, and normativists in general, believe to exist between the legal and the extra-legal domains. Positivists, in Schmitt’s perspective, seek to vindicate the existence of a stable, bounded sphere – the legal – which then enables its portrayal as “objective”, “firm”, “inviolable”, “secure” and “calculable”. This sphere, positivists contend, is comprised of pre-designed fact-types (such as homicide, manslaughter, kidnapping, rape, theft, fraud, and so on) that are never affected by the transient happenings of social life. These pre-designed fact-types are endowed with an ought-to nature. The Schmittian divergence from this portrayal of legal norms commences from profound disagreement with the methodological detachment created by the positivist position. For legal norms are considered to incorporate intellectual constructs, produced by a legislator, which officials are required to take into account when they use legitimate force. This presents law as a special mirror of reality, one that reflects an altered image of the latter. Law is wrongly considered to impose upon reality meaning that reality does not possess itself. Law is, thereby, methodologically confined to a technique of description, which filters social reality in a very special manner. Fact-types, understood as the material content of this technique, are wrongly believed to be intellectual, juristic descriptions of something that might or might not occur in reality, and to remain valid even though they do not correspond to anything in reality. Accordingly, legal norms, from the methodological presuppositions of normativism, are dissociated from the task of representation, definition, maintenance or reproduction of social reality. They are, rather, orientated to provide legal officials with intellectual ­instruments for the e­ xternal 29 Ibid.

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c­lassification of existing forms of social interaction and the repression of those forms of conduct that the legislator has classified as ­detrimental. It is in this context that Schmitt avers that “The crime […] is not disorder, but mere ‘fact-type’”.30 To obtain an enhanced comprehension of the underlying perspective of the Schmittian critique, the objective can be defined as the radical rejection of two basic presuppositions of any type of normativism and, in particular, of positivist normativism. The first presupposition is that legal norms and social normativity have no ontogenetic relationship, and are, thus, situated in two separate realms or fields. Legal norms are situated in the self-contained realm of legal normativity and are independent from, and unaffected by, the internal dynamics of the social realm. The second presupposition is that legal norms confer meaning on social reality, and this meaning is derived exclusively from within the legal sphere and is, therefore, entirely independent of social normativity. Hence, legal norms generate a type of meta-language, which enables the designation and description of reality in a special manner that is in conformity with the set of fact-types that are produced by the legislator. Schmitt disagrees that legal norms inhabit a distinct, self-contained and ­insulated sphere, unaffected by social normativity. On the contrary, laws are situated in a relationship of mutual determination with the social practices that they are designed to regulate: The cohabitation of spouses in a marriage, family members in a family, kin in a clan, peers in a Stand, officials in a state, clergy in a church, comrades in a work camp, and soldiers in an army can be reduced neither to the functionalism of predetermined laws nor to contractual regulations.31 The Schmittian conception is predicated upon this form of interrelationship without which laws are held to be unable to regulate social practices. In fact, a legal norm would fail to regulate concrete situations if it becomes “abnormal”, or rather, when it is too distant from the normal case. Norms that are insensitive to concrete situations fall short of their task, because of their detachment from the specific dynamics of social reality. A general rule should certainly be independent from the concrete individual case and elevate itself above the individual case, because it must regulate many cases and not only one individual case; but it elevates itself 30 31

Ibid., 52. Translation partially revised. Ibid., 54.

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over the concrete situation only to a very limited extent […]. If it exceeds this limit, it no longer affects or concerns the case which it is supposed to regulate. It becomes senseless and unconnected.32 Schmitt, therefore, indicates that normativists (and this, obviously, applies to Kelsen) fail to acknowledge that legal norms do not create, but are designed to reflect, pre-existing models of conduct and relationships within social institutions. Legal norms accord a formal recognition to a pre-existing normative web. They demarcate a set of prescriptions by drawing upon widespread patterns of conduct. Hence, effective legal norms are necessarily based on a previous normality or normativity produced within institutions. From this position, normality constitutes at one and the same time a standard and an exemplary case. The exemplary case is provided by the standard: there is a typical way of performing duties and undertaking tasks that establishes itself as a guideline for all those who, within an institution, are subsequently required to perform the same duties and to undertake the same tasks. For Schmitt, it is the law which has to collect and incorporate these pre-existing forms of normativity and, through this process, to operate as a filter between social and legal normativity.33 In this manner, Schmitt overturns the two basic presuppositions which typify normativism. Firstly, legal normativity is not merely the continuation, but effectively the stabilisation of social normativity. Legal fact-types are not juristic constructs, but the outcome of a careful activity of selection that filters social conduct and practices. Such a process of legal selection emphasizes, and accords with the force of law, those forms of social conduct and practices that are the basic framework of those social institutions constituting the essential substance of the community. As a consequence, the second presupposition of 32 33

Ibid., 56. The rejection of decisionism is not the result of a sudden change of perspective, but a gradual shift from an intermediate phase to a full-fledged institutionalism. In Constitutional Theory of 1928, Schmitt still conceives the State as a unifying and homogenous entity: “The modern state is a closed political unity, and it is, by its nature, the status. In other words, it is a total status, which renders relative all other forms of status inside of itself” (Carl Schmitt, Constitutional Theory, 211). Here, Schmitt continues to acknowledge the seriousness of the problem of sub-state institutions, but this is accompanied by an insistence that the State retains unquestionable pre-eminence. In The Three Types, the State is invested with weaker demiurgic powers, whereby it seems to be “forced” to accept and recognise the normativity of social institutions. Every legislator, and anyone who applies the law, has to face the dilemma of “either to accept and apply the given concrete legal concepts of the institution or to destroy the institution” (Schmitt, On the Three Types of Juristic Thought, 54).

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the positivist conception is also discredited, as legal norms confer no meaning on social reality. Instead, they reinforce and objectify the pre-existing meaning of institutional practices that have already emerged and developed. 4

On the Nature of Social Normativity

On the basis of this analysis, it is now possible to return to the main ­subject of this chapter, that is, the relationship of nature, society and the law. In ­conformity with the distinction between the world of “the real” and that of “the ideal”, Kelsen posits the existence of an unbridgeable chasm between the real, explained in terms of causal relations, and the ideal, which is the sphere of meaning.34 Therefore, the determinate difference between natural and social events is situated in the fact that social actions are the result of self-interpretation and social actors can always, at least in principle, provide an interpretation of the actions they perform (unlike a plant, Kelsen remarks, which cannot say anything about itself to the botanist35). Such a gap cannot be bridged. The world of law – the system of norms of positive law – remains completely separate and autonomous from the world of nature, where actions obey causal laws: When a judge establishes a given concrete material fact (say, a delict), his cognition is directed first of all simply to something existing in nature. His cognition becomes legal at the point at which he brings together the material fact he has established and the statute he is to apply; that is to say, his cognition becomes legal when he interprets the material fact as “theft” or “fraud”.36 Schmitt’s rejection of this perspective, in The Three Types, is not merely the reflection of his enduring hostility to the abstractness of Kelsenian legal positivism. For, the institutional revision of his previous position, enables the conclusion that Schmitt’s novel critique of positivism was significantly influenced by his subsequent encounter with two forms – legal and socio-anthropological – of institutionalism. On the one hand, the legal type of institutionalism developed by scholars who Schmitt himself explicitly referred to as his elder

34 Kelsen, Introduction to the Problems of Legal Theory, 8. 35 Ibid., 9. 36 Ibid., 11.

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brothers, namely, Maurice Hauriou and Santi Romano;37 on the other hand, the socio-anthropological type of institutionalism elaborated by prominent exponents of the German school of philosophical anthropology, in particular, Helmuth Plessner and Arnold Gehlen.38 The French tradition of legal institutionalism, and Hauriou’s work in particular, provided Schmitt with a complex and sophisticated theory of law whose conceptual resources furnished the basis for overcoming certain difficulties of his earlier decisionism. More precisely, Schmitt’s concrete-order thinking (which is the specifically Schmittian definition of his own institutional theory) appropriates a number of Hauriou’s fundamental concepts, such as the project-idea of social action (idée directrice), the formation of a structuring power, and the notion of superlegality. The process of appropriation is accompanied by a radicalization of Hauriou’s original framework, a politicisation of institutionalism in which the notion of the state is accorded the position of a meta-institution which operates to recognize and regulate the activity of all other institutions.39 However, there are other central aspects of his institutional theory that Schmitt appropriated from the German school of philosophical anthropology. The most relevant for the present analysis are the idea of human nature and the conception of social life that, in the original framework of philosophical anthropology, were meant to bridge the gap between nature and culture, and that Schmitt employs to rethink the dichotomy between “is” and “ought”. It is arguable that Schmitt’s appropriation concentrated upon certain of the main conclusions of this school derived from their wider reflections upon human nature. In particular: 1. Normativity is not an ideal property attributed to conduct by an act of signification. The normatively binding character of conduct is, rather, the result of the success of an action determined by the success of its implementation over a number of previous applications. 37 Maurice Hauriou, Principes de droit public. Paris: Sirey, 1910 and Santi Romano, L’ordinamento giuridico, (Florence: Sansoni, 1977) (originally published in 1918). 38 For example, Arnold Gehlen, Theorie des Willensfreiheit, (Berlin: Junker and Dünnhaupt, 1933); Arnold Gehlen, Die Staat und die philosophie, (Leipzig: Meiner, 1935); Helmut Plessner, Grenzen der Gemeinschaft. Eine Kritik des sozialen Radicalismus, (Bonn: Friedrich Cohen, 1924); Helmuth Plessner, Die Stufen des Organischen und der Mensch. Einleitung in die philosophische Anthropologie, (Berlin/Leipzig: Walter de Gruyter, 1928); and Helmuth Plessner, Macht und menschliche Natur. Ein Versuch zur Anthropologie der geschichtlichen Weltansicht, (Berlin: Junker and Dünnhaupt, 1931). 39 On the complex issue of the relationship between Hauriou’s and Schmitt’s theory, see Mariana Croce and Andrea Salvatore, The legal Theory of Carl Schmitt, (Abingdon: Routledge, 2014) Chap. 6.

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2. Norms are not co-terminus with prohibition, compulsion or coercion. Rather, they provide continuous, non-contingent guidance for conduct when individual human actors are placed in a position where they confront a problem or problems that other actors have already solved in past occurrences. Thus, norms are primarily carriers of knowledge. This view of normativity bridges the gap between “is” and “ought” insofar as the “is” becomes transformed into an “ought” in the here and the now of concrete experience where people develop and structure their own institutions. The legal ought has to encapsulate and re-enforce the norms that are produced in the preceding concrete experience of day-to-day activity. The relationship between the social ought and the legal ought is close and direct. It behoves the law to preserve social institutions and to favour their stable reproduction. One of the most interesting elements of Schmitt’s institutional turn is precisely his reconception of norms, and within this, the central focus upon what is now held to be the distinctive feature of norms: the provision of cognitive guidance.40 Norms are inherently bound up with social roles (e.g., father, judge, soldier), and the institutional framework within which roles are to be performed. In this framework, norms emerge as objectified meanings that explain to the incumbent of a particular role how, in particular circumstances, to orientate action and decision-making. Norms function to ensure the survival and continued vitality of the normality derived from these pre-existing frameworks of social practices, as they facilitate the intergenerational transmission of knowledge. The norm is a specific, objective form of knowledge: a repository of knowledge concerning the orientation of action within a framework of institutions.41 40

41

A clarification is necessary: while Schmitt mainly considers legal norms, the German school of philosophical anthropology generally utilizes the broader notion of social norms. Whether or not these two types of norms can be assimilated in general – and it is, of course, beyond the scope of this chapter to engage in this vexed question – it can be argued that Schmitt and the exponents of philosophical anthropology share a basic institutionalist conception of norms, which minimizes their coercive aspect and emphasizes their nature as specific, cognitive instruments or forms for the organization of society. It should be emphasized that Schmitt’s analysis of normative structures is only indicative or prefigurative of a potentially more complex institutionalist approach. The absence of further, explicit development in Schmitt’s work derives from the dependence of this normative analysis upon a theoretical project animated by other theoretical and academic interests.

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It is this novel conception of norms that prompts Schmitt to amend and strengthen his previous criticism of positivism. If in the 1920s Schmitt’s critique of Kelsen centred upon the resolute and intentional occlusion, by Kelsenian legal science, of the source of the legal order, i.e., the decision to impose the state of exception, Schmitt’s institutional turn prompts a revision of this earlier critical approach. This is one of Schmitt’s felicitous theoretical amendments of the 1930s, as he provides a new critique of enhanced complexity of the presumed neutrality of state law. For Schmitt, legal rules inevitably incorporate, maintain and reproduce previously existing models of human action that the legislator selects as exemplary cases in order to direct and orientate society through the determination of the boundaries of normality. If norms are not only forcible constraints – a legal order as an order of constraint – but, rather, and perhaps primarily, are bearers of knowledge, then they provide instructions as to the pertinent framework of action within the existing circumstances of a particular society. This is the kernel of Schmitt’s most compelling criticism of positivism in The Three Types. It emphasizes that the positivist conception of legal rules distorts their nature. The positivist considers legal rules as essentially arbitrary, mutable and artificial products of the legislator. Against this prevailing artificiality of legal positivism, Schmitt presents legal rules as rules which are subsequently enacted, and which are derived from pre-existing standards within the normative framework of social institutions. This is the interpretative background against which we should understand the quotation with which the first section of this chapter began. Normativity and facticity cannot be conceived as located on “completely different planes”, whereby the “ought” is supposed to lie outside the “is”, and in which the latter occupies an autonomous, and inviolable sphere. The Schmittian opposition to this positivist dichotomy is predicated upon its effective erosion of the necessary connection between the legally wrong and the socially wrong. 5 Conclusion In this chapter I contended that the initial basis for Schmitt’s criticism of Kelsen was centred upon legal positivism’s inability to offer a coherent presentation of the legal order, in that it neglected the basic source of both law and normality. This was then displaced, in the 1930s, by a more compelling criticism which was addressed to the idea of social life and social practices that underpinned Kelsen’s theory of legal positivism. The later critique was based

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on a more sophisticated understanding of both institutions and the normality which they produce. From this presentation of the development of Schmitt’s critique, the question then becomes that of the consequences for comprehension of the polemical relationship between Kelsen and Schmitt. Kelsen considers that the law, as positive law, is nothing but the instrument through which legitimate force is exercised, a special technique exercised by officials who promulgate rules and enforce them in accordance with specific procedures. While this methodological approach is potentially conducive to a highly artificial view of law as the instrument through which social order is secured, in this ­regard, as I have maintained elsewhere,42 it is nonetheless possible to consider a reconciliation between the Schmittian and Kelsenian understanding of the purpose and function of law. The aversion of Schmitt to the attribution of coercion as the central element of the legal order is, however, to be tempered by the acceptance of law as a specialised technique, accorded to officials, for the ­selection of certain types of conduct to be presented as binding on an entire population. The conception of legal norms serves as a filter which separates friends from enemies – which Kelsen would presumably dismiss as untenable or irrelevant from the viewpoint of the Pure Theory – may, nevertheless, represent a consistent socio-political reading of Kelsen’s conceptualisation of law. Hence, the essential divergence between Schmitt and Kelsen is to be sought elsewhere. The orientation of this chapter is to situate the point of radical divergence in the conceptualization of the manner in which legal criteria are produced. Kelsen’s insistence, flowing from the methodological purification of a legal science of positive law, upon a separation between law and morality entails that every type of human conduct has the potential to be assigned a legal meaning, that is, to be attributed with a specified sanction. In other words, the inherent malleability and openness of a system of positive law, provides, at least in principle, the capacity to include any type of human conduct as a component of a valid and effective legal order. Schmitt, in direct contrast, emphasizes that it is thoroughly misleading to maintain that any social ­conduct could in principle be accorded a legal meaning and attributed with an accompanying sanction. This divergence arises from in Schmitt’s later institutional conception, whereby legal rules are not the result of an act of

42

Mariano Croce, Self-sufficiency of Law: A Critical-institutional Theory of Social Order, (Dordrecht: Springer, 2012).

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creation: legal rules are the subsequent stabilisation of something which has already enabled the social order to emerge, that is, the rules that are already operative within social institutions prior to their legal recognition. From this theoretical perspective of institutionalism, the Kelsenian insistence upon the separation between social and legal normativity is effectively overturned. This divergence only becomes apparent in The Three Types in which Schmitt (whether directly or indirectly) presents and addresses this basic ­element of disagreement. Only in this slim, but highly condensed book is there an ­elaboration of the appropriate theoretical attitude to be adopted toward the role of normal conduct and normal concepts, which, he insists, are the product of history and tradition. From this more nuanced conception of human practical life, Schmitt furnishes himself with a more theoretically comprehensive and robust framework with which to reject the idea of Kelsenian legal positivism that law produces itself and, therefore, can occupy a self-contained and autonomous sphere, separated from the factuality of material events. The critique of the 1930s is, thus, more “adequate”, because, while in Political Theology and other texts of the 1920s, his critique was mainly directed at the positivists’ own blindness to the essentially political nature of their (allegedly) pure theorising, now the ground of his critical analysis is derived from a more complex view of the relationship between social and legal normativity. This understanding leads, however, to an extremely conservative perspective. Law is the guarantor of the existent and has to ward off the perilous emergence of both internal criticism and external pluralism.43 This is evidence that Schmitt cannot be considered to be a conventional representative of the natural law tradition: Schmittian law has lost the naturalness of natural law. The new anthropology underpinning his legal institutionalism envisages, in place of the natural law tradition, an essential continuity between naturalness and artificiality. In particular, law, for Schmitt, is an instrument for concreteorder-maintenance. Officials – civil servants and judges – have to undertake the sensitive task of the identification and selection of the most widespread and relevant institutions of a given community and, from this selection, to accord the standards produced within these institutions the support of state law. In Schmitt’s institutional view, it is not the sovereign who is invested with

43

See, Mariano Croce and Andrea Salvatore, “After Exception: Carl Schmitt’s Legal Institutionalism and the Repudiation of Exceptionalism”, Ratio Juris, 29, 3 (2016): 410–426 (418ff).

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this task, but a set of officials loyal to her/him. This is why Schmitt cites with ­approval the words of Roland Freisler, State Secretary of the Reich Ministry of Justice, concerning the manner in which the concrete order of National Socialism had to be safeguarded and enhanced: “‘[N]o reform of justice but reform of jurists’ […] it all depends precisely on the breed and the type of our judges and civil servants”.44 The installation and operation of reliable guidelines are the central element in ensuring that the actions of state officials, who are ­expected to operate as a perpetual normative sieve and filter in relation to the configuration of wider society, maintain and reproduce a truly homogenous, ethnic community.45 Despite the overt theoretical connection with, and participation in, the ­National Socialist regime, the Schmittian institutional theory of law contains the potential to exceed any necessary or exclusive identity with National ­Socialism. This potential, which also furnishes its enduring critical potential, arises from the conception of the manner in which law operates as a selective tool, which safeguards the boundaries of normality and lends itself to protecting the social status quo. This essentially protective function encompasses a conception of law as open to the possibility of, and operation as, an instrument for social change. The openness is, however, always selective as, in those instances of change, law operates as a selector and a filter of social practices. It is this critical potential of the Schmittian approach to the relationship of nature, society and the law which appears more tenable, both heuristically and critically, than that of the Kelsenian conception. 44 Schmitt, State, Movement, People, 50. Italics in original. 45 Overt tensions in Schmitt’s position in State, Movement, People should not be overlooked. This flows from the rejection of “objectivity” and its corollary of an abstract “person” of liberal-democratic thought and its replacement with “the commitment to the people and the ethnical identity of every man entrusted with the exposition, interpretation and application of the German law” (Ibid., 50). For this confronts Schmitt with the continuous potential for the dissolution of the specifically legal position of the civil servant and the independence of the judge: “[n]evertheless, we must and will hold onto the legally secured position of the German civil servant as much as onto the independence of the judge, in particular. Hence out of necessity, we demand their commitment without which all the guarantees and freedoms, all the independence of the judges, and above all, that “creativity” would be but anarchy and an especially noxious source of political dangers” (Ibid., 51). However, the retention of these two essential elements of legality has now to be achieved from within the very ethnic identity which is simultaneously acknowledged as the potential for their dissolution.

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Bibliography Beaud, Olivier, Pasquale Pasquino, Olivier Lepsius, Michel Troper, eds. La controverse sur “le gardien de la Constitution” et la justice constitutionnelle. Kelsen contre Schmitt, (Paris: Editions Panthéon-Assas, 2007). Bielefeldt, Heiner. “Deconstruction of the ‘Rule of Law’: Carl Schmitt’s Philosophy of the Political”. Archiv für Rechts- und Sozialphilosophie 82, no. 3 (1996): 379–396. Croce, Mariano. Self-sufficiency of Law: A Critical-institutional Theory of Social Order, (Dordrecht: Springer, 2012). Croce, Mariano and Andrea Salvatore. The legal Theory of Carl Schmitt, (Abingdon: Routledge, 2014). Croce, Mariano and Andrea Salvatore, “After Exception: Carl Schmitt’s Legal Institutionalism and the Repudiation of Exceptionalism”, Ratio Juris, 29, no.3 (2016): 410–426. Fischer, Joachim. Philosophische Anthropologie: Eine Denkrichtung des 20. Jahrhunderts, (Freiburg: Karl Alber, 2015). Galli, Carlo. Genealogia della politica. Carl Schmitt e la crisi del pensiero politico moderno, (Bologna: il Mulino, 2010). García-Salmones Rovira, Mónica. The Project of Positivism in International Law, (Oxford: Oxford University Press, 2013). Gehlen, Arnold. Theorie des Willensfreiheit, (Berlin: Junker and Dünnhaupt, 1933). Gehlen, Arnold. Die Staat und die philosophie, (Meiner, Leipzig 1935). Hartung, Gerald. Das Maß des Menschen – Studienausgabe: Aporien der philosophischen Anthropologie und ihre Auflösung in der Kulturphilosophie Ernst Cassirers, (Weilerswist: Velbrück 2006). Hauriou, M. Principes de droit public, (Paris: Sirey, 1910). Honneth, Axel. “Rez. zu. Rüdiger Kramme’ Helmut Plessner und Carl Schmitt”. Kölner Zeitschrift für Soziologie und Sozialphilosophie 43 (1991): 51–58. Kelsen, Hans. Hauptprobleme der Staatsrechtslehre: entwickelt aus der Lehre vom Rechtssatze, (Tubingen: Mohr, 1911). Kelsen, Hans. Allgemeine Staatslehre, (Berlin: Springer, 1925). Kelsen, Hans. Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Translated by Bonnie Litshewski Paulson and Stanley L Paulson, (Oxford: Oxford University Press, 1992). Kelsen, Hans. Society and Nature. A Sociological Inquiry, (Chicago: University of Chicago Press, 1943). Kennedy, Ellen. Constitutional Failure: Carl Schmitt in Weimar, (Durham/London: Duke University Press, 2004).

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Kramme, Rüdiger. Helmuth Plessner and Carl Schmitt. Eine historiche Fallstudie zum Verhältnis von Anthropologie und Politik in der deutschen Philosophie der zwangler Jahre, (Berlin: Duncker & Humblot, 1989). Mehring, Reinhard. “Staatsrechtslehre, Rechtslehre, Verfassungslehre: Carl Schmitts Auseinandersetzung mit Hans Kelsen”. Archiv für Rechts- und Sozialphilosophie 80, no. 2 (1994): 191–202. Müller, Jan-Werner. “Carl Schmitt, Hans Freyer and the radical conservative critique of liberal democracy in the Weimar republic”, History of Political Thought 12, no. 4 (1991): 695–715. Müller, Jan-Werner. “The Soul in the Age of Society and Technology: Helmut Plessner’s Defensive Liberalism”. In Confronting Mass Democracy and Industrial Technology, edited by John P. McCormick, 139–162, (Durham: Duke University Press, 2002). Neumann, Volker. Schmitt als Jurist, (Tübingen: Mohr, 2015). Plessner, Helmut. Grenzen der Gemeinschaft. Eine Kritik des sozialen Radicalismus, (Bonn: Friedrich Cohen, 1924). Plessner, Helmut. Die Stufen des Organischen und der Mensch. Einleitung in die philosophische Anthropologie, (Berlin/Leipzig: Walter de Gruyter, 1928). Plessner, Helmut. Macht und menschliche Natur. Ein Versuch zur Anthropologie der geschichtlichen Weltansicht, (Berlin: Junker and Dünnhaupt, 1931). Romano, Santi. L’ordinamento giuridico, (Florence: Sansoni, 1977). Salter, Michael. Carl Schmitt: Law as Politics, Ideology and Strategic Myth, (Abingdon: Routledge, 2012). Scheuerman, William E. Carl Schmitt: The End of Law, (Lanham/London: Rowman & Littlefield, 1999). Schmitt, Carl. Political Romanticism. Translated by Guy Oakes, (Cambridge: MIT Press, 1991). Schmitt, Carl. The Concept of the Political. Translated by George Schwab, (Chicago: University of Chicago Press, 1996). Schmitt, Carl. State, Movement, People: The Triadic Structure of the Political Unity. Translated by Simona Draghici, (Corvallis, OR: Plutarch Press, 2001). Schmitt, Carl. On the Three Types of Juristic Thought. Translated by Joseph Bendersky, (Westport, CT: Praeger, 2004). Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Translated by George Schwab, (Chicago: University of Chicago Press, 2005). Schmitt, Carl. Constitutional Theory. Translated and edited by J. Seitzer, (Durham/London: Duke University Press, 2008). Schmitt, Carl. Dictatorship. Translated by Michael Hoelzl and Graham Ward, (Cambridge: Polity Press, 2014). Simard, Augustin. La Loi désarmée. Carl Schmitt et la controverse légalité/légitimité sous Weimar, (Paris: Editions de la Maison des sciences de l’homme, 2009).

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Vinx, Lars, ed. and trans. The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, (Cambridge: Cambridge University Press, 2015). Voigt, Rüdiger, ed. Mythos Staat: Carl Schmitts Staatsverständnis, (Baden-Baden: ­Nomos, 2015).

Part 4 Kelsen’s Natural Law

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Chapter 12

Natural Law and the Vienna School: Hans Kelsen, Alfred Verdross, and Eric Voegelin Franz Leander Fillafer and Johannes Feichtinger Abstract Hans Kelsen’s critique of natural law remained a guiding theme of his oeuvre from the 1920s to the 1960s. This chapter combines an analytical exploration of the epistemic and political dimensions of Kelsen’s critique with a multi-layered reconstruction of its historical contexts. It first traces how Alfred Verdross elaborated his endorsement of natural law and his theory of international law in critical response to his mentor Kelsen. The second part of the chapter is devoted to Kelsen’s conflict with another one of his erstwhile students, with Eric Voegelin. The third, last part of the piece r­ ecovers the natural law revival in Austria after 1945 and shows its significance for the obliteration of the Pure Theory of Law in Austrian jurisprudence. Kelsen’s disavowal of natural law, leading to his trenchant exposure of its flaws and inconsistencies, was not merely based in his disagreement with natural law’s philosophical tenets. The critique of natural law lay at the centre of a broad array of concerns that animated Kelsen’s work. According to Kelsen, natural law destroyed the separation between society and nature that had made modern law and modern science possible. To Kelsen it was no coincidence that the proponents of natural law reasserted its salutary and comforting effects in Cold War academia as it promised access to an absolute standard by which to measure human conduct. Yet, as Kelsen pointed out in his dialogue with Verdross and Voegelin, this consolation was highly deceptive, even dangerous. The appeal to ostensibly “natural” fundamental and universal truth jeopardised the free, open-ended pursuit of democracy and science.

De iure natura multa fabulamur1 Natural law was one of the central objects of the Kelsenian critique. Kelsen argued repeatedly that the lofty, sanctimonious talk of natural law and natural rights had camouflaged repression and atrocities throughout history. Despite the dynamic development of Kelsen’ theoretical oeuvre, a continuity 1 Martin Luther, Werke. Kritische Gesamtausgabe 56, (Berlin–Weimar: Böhlau, 1883), 355. © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004390393_014

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can be observed in the continual reaffirmation of the critique of natural law. It is imperative to note here that Kelsen’s continued commitment was shaped by controversies of the 1920s and 1930s which resurfaced after 1945. Already in the 1930s Kelsen’s brand of legal positivism had been denounced as a relativist menace that destroyed the values upon which social and political life was predicated, and thereby paved the way for Nazism.2 This chapter seeks to isolate the central elements of Kelsen’s critique of natural law from the 1920s to the 1960s. It begins by focusing on Kelsen’s conflict with his former student, the eminent expert in international law, Alfred Verdross. Then, the subsequent trajectory of Kelsen’s critique of natural law is traced into the period after 1945. The chapter thereby throws into relief why Kelsen’s critique of natural law remained at the core of his oeuvre. It places Kelsen’s theoretical and political proclivities in the context of the post-war revival of natural law. The chapter then proceeds to reconstruct the transatlantic dimension of the natural law revival by analysing Kelsen’s exchange with Eric Voegelin, another of his erstwhile students from Vienna who had also emigrated to the US. The final section shifts the focus to postwar Austria and, in particular, to Alfred Verdross’s role in the reassertion of Catholic natural law in Austrian academia. Here, the analysis recovers the political functions of the natural law revival and the resistance it provoked among scholars of different stripes who subscribed to basic tenets of Kelsen’s work. August M. Knoll, another of Kelsen’s Viennese disciples from the 1920s, and Ernst Topitsch, a young intellectual steeped in the anti-metaphysical logical empiricism of the Vienna Circle figure prominently here. Kelsen’s critique of natural law flows from his theory of democracy and science: The transcendentalist pretension to absolute and eternally valid norms cut against the grain of modern science and of popular sovereignty alike whose truths are provisional and open to transformation. Hence, for Kelsen, natural law rendered legal science impossible: it suspends the distinction between ­society and the realm of nature. According to Kelsen, it was society’s separation from nature which gave rise to law as a man-made order of coercion and to legal science pursued as the study of procedurally enshrined and democratically negotiable norms that structured this very order.

2 Matthias Jestaedt, and Oliver Lepsius, “Der Rechts- und der Demokratietheretiker Hans Kelsen – Eine Einführung,” in Hans Kelsen. Verteidigung der Demokratie: Abhandlungen zur Demokratietheorie, eds. Matthias Jestaedt, and Oliver Lepsius, (Tübingen: Mohr Siebeck, 2006), xii–xxix.

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427

Verdross and Kelsen

Alfred Verdross, born as Knight of Drossberg in 1890, came from a distinguished family of civil servants and military officials which belonged to the functionary elite of the Habsburg empire.3 After secondary education in Rovereto and Meran, Verdross moved to Vienna, and later, to Munich to study with some of the most renowned scholars of his age. Verdross combined a thorough study of the basic branches of jurisprudence with an interdisciplinary curriculum which ranged from philosophy to national economy. In Vienna, Verdross attended the lectures and seminars of Edmund Bernatzik, Eugen Böhm-Bawerk, and Friedrich von Wieser; in Munich he studied with Franz Brentano. Verdross soon became acquainted with the two other main representatives of what was later to become the Vienna School of legal theory: Adolf Merkl, who began his studies in the same year as Verdross introduced him to Hans Kelsen, then Privatdozent at the University of Vienna. At this period, Kelsen assembled a salon-like regular weekly meeting in his private home in the Wickenburggasse 23 in Vienna’s eighth district.4 This private seminar was to become the hotbed of the later Vienna School.5 Here, Kelsen invited his colleagues and students to discuss the cutting-edge products of neo-Kantian philosophy, in particular the work of Hermann Cohen and Paul Natorp.6 In 1919, in the newly established Austrian First Republic, Hans Kelsen become full professor of state and administrative law, and he was Verdross’ mentor when the latter submitted his Habilitationsschrift on Die völkerrechtswidrige Kriegshandlung und der Strafanspruch der Staaten in 1920. Verdross’s soaring academic career began in 1924 when he was awarded an extra-ordinary professorship of international law at the University of Vienna,

3 Kamila Staudigl-Ciechowicz, and Thomas Olechowski, “Allgemeines und österreichisches Staatsrecht, Verwaltungslehre und österreichisches Verwaltungsrecht – Alfred VerdroßDroßberg,” in Die Wiener Rechts- und Staatswissenschaftliche Fakultät 1918–1938, eds. Thomas Olechowski, Tamara Ehs, and Kamila Staudigl-Ciechowicz, (Göttingen: V&R unipress, 2014), 533–538. 4 Clemens Jabloner, “Kelsen and his Circle: The Viennese Years,” European Journal of International Law 9 (1998): 375. 5 Robert Walter, Clemens Jabloner, and Klaus Zeleny, eds., Der Kreis um Hans Kelsen. Die ­Anfangsjahre der Reinen Rechtslehre, (Vienna: Manz, 2008). 6 Johannes Feichtinger, “Intellectual affinities: Ernst Mach, Sigmund Freud, Hans Kelsen and the Austrian anti-essentialist approach to science and scholarship,” in The Foundation of the Juridico-Political. Concept Formation in Hans Kelsen and Max Weber, eds., Ian Bryan, Peter Langford, and John McGarry, (New York: Routledge, 2016), 117–139.

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closely followed by his 1925 appointment as professor ordinarius.7 Hans Kelsen became, in addition to his academic position, the architect of the Austrian Constitution of 1920. He implemented his model of a Constitutional Court and became one of its judges,8 thereby establishing an institution that did not exist in the German Weimar Constitution. In 1929, the Christian Socialist government of Ignaz Seipel introduced a revision of the Constitution which accorded more prerogative powers to the Federal President, and changed the nomination mode for the members of the Constitutional Court: the original constitutional framework had required their election through a vote in the Austrian parliament, while the new system involved the direct appointment of these judges by the government. Both initiatives prompted Kelsen to resign from his post as a judge of the Constitutional Court.9 These ‘reforms’ which, for Kelsen, were symptoms of a drift towards authoritarianism in Austria, prompted him to give up his professorship at the University of Vienna and to leave Austria for the University of Cologne, in Germany, where he had been offered a professorship in international law. In common with the majority of the Austrian academics at that time, Alfred Verdross managed to smoothly combine his Catholic convictions with a sense of pan-German identity.10 Verdross found it easy to align his views with the dominant political Catholicism of the 1930s, which culminated in the anti-Nazi

7

8

9 10

“Univ. Prof. Dr. Alfred Verdroß (Wien)” [Selbstdarstellung], in Österreichische Rechtsund Staatswissenschaften der Gegenwart in Selbstdarstellungen, ed. Niklaus Grass, (Innsbruck: Universitätsverlag Wagner, 1952), 204–205; Jürgen Busch, “Alfred Verdross – Ein Mann des Widerspruchs? 1: Verdross im Gefüge der Wiener Völkerrechtswissenschaft vor und nach 1938,” in Vertriebenes Recht – Vertreibendes Recht. Zur Geschichte der Wiener Rechts- und Staatswissenschaftlichen Fakultät zwischen 1938 und 1945, eds., FranzStefan Meissel, Thomas Olechowski, Ilse Reiter-Zatloukal, and Stefan Schima, (Vienna: Manz, 2012), 150. On the question of the Kelsenian origin of the Constitution of the First Austrian Republic see Thomas Olechowski, “Der Beitrag Hans Kelsens zur österreichischen Bundesverfassung,” in Hans Kelsen: Leben – Werk – Wirksamkeit, eds., Robert Walter, Werner Ogris, and Thomas Olechowski, (Vienna: Manz, 2009), 211–230. Hans Kelsen, “Autobiographie (1947),” in Hans Kelsen Werke 1: Veröffentlichte Schriften 1905–1910 und Selbstzeugnisse, ed. Matthias Jestaedt in Kooperation mit dem Hans KelsenInstitut, (Tübingen: Mohr Siebeck, 2007), 70–77. Gernot Heiss, “Zwischen Wissenschaft und Ideologieproduktion – Geschichte an der Universität Wien 1848 bis 1965,” in 650 Jahre Universität Wien – Aufbruch ins neue Jahr‑ hundert 4: Reflexive Innensichten aus der Universität. Disziplinengeschichten zwischen Wissenschaft, Gesellschaft und Politik, eds., Karl Anton Fröschl, Gerd B. Müller, Thomas Olechowski, and Brigitta Schmidt-Lauber, (Göttingen: V&R unipress, 2015), 311–324; J­ ulie Thorpe, Pan-Germanism and the Austrofascist State, 1933–38, (Manchester. Manchester University Press, 2011).

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and anti-Bolshevik Austrofascist dictatorship from 1933–1938.11 Although Verdross sympathised with Austrian Fascism, this identification was coupled with opposition to the violation of the Constitution.12 The Nazi seizure of power in Austria, in 1938, led to a brief period in which Verdross was dismissed, but he was sufficiently versatile to have himself reinstalled as a professor. However, Verdross was only allowed to resume his university professorship in international law on the condition that he would cease to teach legal philosophy.13 When Kelsen left Austria, in 1930, his colleague Verdross did not fail to send a ‘letter of farewell’. In this essay, originally published in the Juristische Blätter, Verdross praised Kelsen lavishly as a brilliant theoretician and dogmatist: After having provided a fair and sympathetic appraisal of Kelsen’s work, commencing from the Hauptprobleme of 1911, Verdross managed to advertise his normative convictions in the concluding section of his eloge, where he gently recom­mended that Kelsen should relinquish one of the basic elements of his theory, namely “the neo-Kantian prejudice that the method creates the object of enquiry”.14 As we shall see in Section four of this chapter, this was not the last time that Austrian jurists paid homage to Kelsen only to suggest that he should abandon his key principles. In the following, second part of our analysis, we focus on Verdross’s reworking of Kelsen’s theory which will be situated in its interwar context. 2

Natural Law and the Law of Nations in Interwar Vienna

What permeates Verdross’s work, from the 1930s, is an increasingly critical ­engagement with the epistemological foundations and theoretical oeuvre of 11

12

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14

Emmerich Tálos, Das austrofaschistische Herrschaftssystem: Österreich 1933–1938, 2nd e­ dition, (Vienna–Berlin: Lit, 2013); Werner Bischof, Anton Pelinka, and Alexander L­ assner, eds., The Dollfuß/Schuschnigg Era in Austria: A Reassessment, (New Brunswick–London: Transaction, 2003). Verdroß‚ “Univ. Prof. Dr. Alfred Verdroß (Wien)” [Selbstdarstellung], 207; Thomas Olechowski, and Kamila Staudigl-Ciechowicz, “Die Staatsrechtslehre an der Universität Wien 1933–1938,” in Österreich 1933–1938. Interdisziplinäre Annäherungen an das Dollfuß-/ Schuschnigg-Regime, eds., Ilse Reiter-Zatloukal, Christiane Rothländer, and Pia Schölnberger, (Vienna–Cologne–Weimar: Böhlau, 2012), 232–239. Staudigl-Ciechowicz, and Olechowski, “Allgemeines und österreichisches Staatsrecht,” 537–538; Busch, “Alfred Verdross,” 157–161; Antony Carty, “Alfred Verdross and Othmar Spann: German Romantic Nationalism, National Socialism and International Law,” ­European Journal of International Law 6 (1995): 78–97. Alfred Verdross, “Die Rechtstheorie Hans Kelsen’s” [1930], in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans R. Klecatsky, René Marcic, and Herbert Schambeck, (Stuttgart: Franz Steiner Verlag, 2010), 1069.

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his mentor Hans Kelsen. This dissociation can be subdivided into three elements: first, Verdross came to reject Kelsen’s neo-Kantian groundwork under the initial impact of both neo-Aristotelian philosophers such as Nicolai Hartmann, and champions of phenomenology such as Edmund Husserl. Seeking to sustain law’s reliance on “natural” value-orientations, Verdross however did not espouse the phenomenological science of the subjectivist consciousness of values but, instead, turned to Aristotelian and scholastic sources.15 Verdross was guided by an interest in the discovery and substantiation of an objective ethical dimension for both national and international law. This desire for ­objectivity, for a preexisting ethical order of hierarchical ends and means of legal life, made him renounce the Neo-Kantian presupposition that science constituted its objects of enquiry by means of its methodological operations and choices.16 Verdross, on the contrary, was convinced of the existence of a preexisting ethical cosmos directed by a divinely preordained purpose. For Verdross, jurisprudence was capable of grasping and formalising these foundations. This led him to the second decisive shift in his relationship with Kelsen, to his advocacy of natural law. In the interwar period, Verdross’s partisanship for natural law was something of a minority phenomenon among the members of the Viennese school, although some other students of Kelsen, such as Josef Laurenz Kunz, partially subscribed to Verdross’s doctrine.17 It would be no overstatement to claim that Verdross’s early rediscovery of natural law was decisive for its triumph after the collapse of Nazism, it would propel Verdross into his position as one of the power brokers of Austrian jurisprudence in the decades after 1945. Verdross’s 15 Gerhard Luf, “Naturrechtsdenken im Banne Kelsens. Erwägungen zum Verhältnis von Kelsen und Verdross,” in Grundlagen der Rechtskultur. Festschrift für Werner Ogris zum 75. Geburtstag, eds., Thomas Olechowski, Christian Nerschwara, and Alina Lengauer, (Vienna–Cologne–Weimar: Böhlau, 2010), 245; Oskar Kraus, “Die aristotelische Werttheorie in ihren Beziehungen zu den Lehren der modernen Psychologenschule,” Zeitschrift für die gesamte Staatswissenschaft 61 (1905): 537–592. 16 Oliver Lepsius, Die gegensatzaufhebende Begriffsbildung: Methodenentwicklungen in der Weimarer Republik und ihr Verhältnis zur Ideologisierung der Rechtswissenschaften unter dem Nationalsozialismus, (Munich: Beck, 1994), 304–341; Oliver Lepsius, “Erkennt‑ nisgegenstand und Erkenntnisverfahren in den Geisteswissenschaften der Weimarer ­Republik,” Ius Commune: Zeitschrift für Europäische Rechtsgeschichte 22 (1995): 283–310; Sibylle Hofer, “Schwierige Vielfalt [Review of Oliver Lepsius, Die gegensatzaufhebende Begriffsbildung],” Rechtshistorisches Journal 15 (1996): 122–125. 17 Jörg Kammerhofer, “Josef L. Kunz,” in Der Kreis um Hans Kelsen. Die Anfangsjahre der ­Reinen Rechtslehre, eds., Robert Walter, Clemens Jabloner, and Klaus Zeleny (Vienna: Manz, 2008), 253–256; Adolf J. Merkl, “Zum Interpretationsproblem” [1918], in Adolf J. Merkl, Gesammelte Schriften I/1: Grundlagen des Rechts, eds., Dorothea Mayer-Maly, Herbert Schambeck, and Wolf-Dietrich Grussmann, (Berlin: Duncker & Humblot, 1993), 63–83.

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turn toward natural law was predicated on his intense engagement with the thought of Thomas Aquinas and the school of Salamanca, the so-called second scholastics, represented by Francisco Suárez and Franciso de Vitoria.18 Kelsen’s critique of natural law maintained that the attempt to ground the validity of positive law within a system of natural jurisprudence was futile.19 The discourse of natural law had been used to legitimise various forms of government, be they democratic or authoritarian and, on the level of material law, it was invoked to justify slavery, warfare and other repellent atrocities.20 According to Kelsen, the virtue usually ascribed to natural law, namely, that it provided a foundation for justice which superseded the empirical positive legal order, was a dangerous illusion. Alfred Verdross, instead, maintained that there remained a path through which to substantiate the validity of natural law, and his critical stance emphasized a fundamental gap in Kelsen’s theory: Kelsen restricted the sources of international law to contract and customary law and obstinately refused to recognise pristine and universal moral principles.21 Kelsen insisted upon the exclusivity of positive law, but failed to engage with the material conditions and aims of the legislation beyond the parameters of the content of norms and sanctions: with the behaviour of norm ­addressees the legal order sought to mould, affect, or countervail. Kelsen’s stubborn reticence to theorise “justice” was, in this sense, exemplary for Verdross: Kelsen fleshed out the structural requirements of legal security (renunciation of force, the state’s monopoly of force, dispute resolution before regular courts) and vaguely alluded to the desirability of a peaceful order. For Verdross, these apparently technical issues cut to the very heart of the validity of law abidance and moral obligations in society. Kelsen emphasised the indefeasible autonomy of the individual conscience vis-à-vis the coercive legal order and stressed every citizen’s right to resistance, but he failed to specify under what conditions such resistance or disobedience was in fact legitimate.22 18

19 20 21 22

Alfred Verdross, “Vierhundert Jahre Völkerrechtswissenschaft,” Stimmen der Zeit. Monats‑ schrift für das Geistesleben der Gegenwart 125 (1933): 36–41; Alfred Verdross, Abendländische Rechtsphilosophie. Ihre Grundlagen und Hauptprobleme in geschichtlicher Schau, (Vienna: Springer, 1958), 65–79, 85–92. Hans Kelsen, Introduction to the Problems of Legal Theory. A Translation of the 1st edition of the Reine Rechtslehre or Pure Theory of Law [1934], trans. B.L. Paulson and S.L. Paulson, (Oxford: Oxford University Press, 1992), 7–14, 21–36. Hans Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus, (Berlin–Charlottenburg: Heise, 1928). Alfred Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, (Tübingen: Mohr Siebeck, 1923), 120. Alfred Verdross, “Die Erneuerung der materialen Rechtsphilosophie” [1957], in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross eds. Hans

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Kelsen’s purism was a self-delusion because, as Verdross strove to demonstrate, it implicitly presupposed material definitions of lawfulness and legal order which it failed to disclose.23 Verdross’s deftly summarised these points in his 1930 ‘letter of farewell’. When Kelsen left for Cologne, Verdross invoked the genius loci of Kelsen’s destination, and the manes of Albertus Magnus, the thirteenth century renovator of Aristotelianism, in particular: Only the return to material philosophy which we currently witness in a plethora of fields can liberate law from its isolation, and prompt us to appreciate it again as a link in the cosmos of values. Then also the deep desire of Kelsen for an ought-validity (Sollgeltung) will be fulfilled. Also his entire oeuvre will gain additional merit, because his categories, albeit with certain modifications, can be transformed from mere thought categories into object-categories (Gegenstandskategorien). We wholeheartedly wish Hans Kelsen that he may liberate his great, deeply thought system from the carapace of Neo-Kantianism in the city of Albertus Magnus and that he may thereby bring it to full fruition.24 Natural law remained a subject of contention, and in grappling with this vexatious legacy both Verdross and Kelsen grafted their arguments through recourse to arguments from Graeco-Roman, Christian, and Western European intellectual history. Neither of them utilized the conceptual resources of the Habsburg natural law tradition that had flourished until 184825 prior to effective obliteration with the university reforms of the 1850s that established the study of Roman law, in the vein of the German pandectist school, and German legal history as chief subjects of scholarship and of the law curriculum.26 The only exception here is the German legal philosopher, Heinrich Ahrens, appointed to a chair in Graz in 1850, to whom Verdross payed homage for imparting the Kantian bonum commune with religiously grounded concrete definitions of felicity,

23 24 25 26

R. Klecatsky, René Marcic, and Herbert Schambeck, (Stuttgart: Franz Steiner Verlag, 2010), 601–602; Luf, “Naturrechtsdenken”, 243. Luf, “Naturrechtsdenken”, 244. Verdross, “Die Rechtstheorie,” 1069. Franz Leander Fillafer, “Franz von Zeiller und der Kantianismus in der Rechtswissenschaft,” in Umwege: Annäherungen an Immanuel Kant in Wien, Österreich und Osteuropa, ed. Violetta L. Waibel, (Göttingen: V&R unipress, 2015), 83–94. Werner Ogris, “Die österreichische Schule der Zivilistik” [1969], in Elemente europäischer Rechtskultur: Rechtshistorische Aufsätze aus den Jahren 1961–2003, ed. Thomas Olechowski, (Vienna–Cologne–Weimar: Böhlau, 2003), 345–400.

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social welfare, and a purpose-guided “good life”.27 Yet, the essential theoretical and philosophical orientation of Verdross was derived from the School of Salamanca and the Aristotelian-Thomist heritage, with occasional deference paid to the Church Fathers, particularly to Gregory of Nyssa and Lactantius.28 Modern jurisprudence needed to distinguish between so-called “primary” or “static” natural law, on the one hand, and “positive” or “dynamic” natural law on the other.29 With this distinction, Verdross sought to expose the fundamental error of the Kelsenian critique of natural law: Kelsen whittled away the extrinsic, malleable doctrines of natural law, but he failed to properly appreciate its dogmatic core: the eternal stipulations of human dignity and liberty. This brings us to the third area in which Verdross’s theory came to diverge from Kelsen’s, to the field of international law. It is here that we can distinguish clearly how Kelsen and Verdross conceptualised the universal validity of law in fundamentally different ways: To Kelsen the unity of the legal order consisted, on the one hand, in its hierarchical architecture of norms (Stufenbau), on the other hand, in the addressees scope of its norms. For Verdross, the CatholicAristotelian foundation of law stipulated the existence of values that could be objectively acquired, attained, and realised (a life κατά φύσιν/ secundum naturam was possible).30 Hence, Verdross conceptualised the basis of the universal validity of law in an entirely different manner: According to the scholastic view of human nature, man was endowed with the capacities to recognise and realise a just, divinely ordained framework by means of ­human reason.31 The truths of Christian revelation were compatible with the demands of r­eason. 27 28 29

30

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Verdross, “Die Erneuerung”, 611–612; Peter Goller, Naturrecht, Rechtsphilosophie oder Rechtstheorie? Zur Geschichte der Rechtsphilosophie an Österreichs Universitäten (1848–1945), (Frankfurt am Main: Peter Lang, 1997), 46–54. Verdross, Abendländische Rechtsphilosophie, 53–59. Alfred Verdross, “Primäres Naturrecht, sekundäres Naturrecht und positives Recht in der christlichen Rechtsphilosophie” [1959], in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans R. Klecatsky, René Marcic, and Herbert Schambeck, (Stuttgart: Franz Steiner Verlag, 2010), 643–650; Alfred Verdross, “Dynamisches Naturrecht” [1965], ibid., 765–770. Erhard Mock, “Die Erschließung der materialen Rechtsphilosophie durch Alfred Verdross,” in Ius Humanitatis. Festschrift zum 90. Geburtstag von Alfred Verdross, eds., Herbert Miehsler, Erhard Mock, Bruno Simma, and Ilmar Tammelo, (Berlin: Duncker & Humblot, 1980), 18–22. Merio Scattola, “Eine innerkonfessionelle Debatte: Wie die Spanische Spätscholastik die politische Theorie des Mittelalters mit Hilfe des Aristoteles revidierte,” in Politischer Aristotelismus und Religion in Mittelalter und Früher Neuzeit, eds., Alexander Fidora, Johannes Fried, Matthias Lutz-Bachmann, and Luise Schorn-Schütte, (Berlin: Akademie Verlag, 2007), 139–162; Theodor W. Köhler, “Gleiche Menschennatur – naturgegebene soziale Unterschiede: Die Rezeption der aristotelischen Lehre vom physei doulos,” ibid., 47–64.

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When it came to the scope of revelation, Verdross vacillated but then concluded that the foundations of the main world religions suggested similar ethical precepts. However, Verdross also operated with a model of different cultural stages, from primitive and advanced cultures, which was also a necessary prerequisite for the distinction between civilised and uncivilised states so ­important in international law (the “legal conscience of civilised nations”, later rephrased as les principes généraux de droit reconnues par les nations civiliseés).32 It is important to note that Kelsen and Verdross both repudiated the older German school of state law positivism which had translated Hegelian individualism into a notion of entelechetic state wills and state entities.33 Yet, Kelsen’s and Verdross’s break with the Heglian tradition led them to different solutions to the post-Kantian predicament: While Kelsen adopted neo-Kantian epistemology as the guiding principle for the Pure Theory of Law, Verdross strove to realise material guarantees for a peaceful coexistence of states, not dissimilar to Kant’s Weltbürgerrepublik (foedus amphyctionum). The former creatively ­appropriated South-Western neo-Kantianism34 when elaborating his method, whereas the latter sought to realise Kant’s doctrine of cosmopolitan right as a scheme for international politics. Verdross’s universalism prompted him to accord primacy to international law over state law. Kelsen also was an ardent supporter of the idea of a Weltrechtsordnung (world legal order). In contrast to Verdross, Kelsen did not presuppose that the foundation of this order rested on universal natural law. I­ nstead, it had to be achieved by a new stage of social consciousness that reached beyond state boundaries. So, although Kelsen maintained that the question of the primacy of the international legal system over the state law lay beyond the purview of a positive science of law,35 he enumerated basic premises for such a system: 32

33 34 35

Bruno Simma, “The Contribution of Alfred Verdroß to the Theory of International Law,” European Journal of International Law 1995 6: 33–54; Marc Pauka, Kultur, Fortschritt und Reziprozität: Die Begriffsgeschichte des zivilisierten Staates im Völkerrecht, (Baden-Baden: Nomos, 2012); Miloš Vec, “Warten auf die Barbaren. Angst vor dem Fremden: Marc Pauka schreibt die Begriffsgeschichte des ‘zivilisierten Staates’ im Völkerrecht,” Frankfurter Allgemeine Zeitung, August 15, 2013. Simma, “The Contribution”, 41; Klaus-Ekkehard Bärsch, “Der Gerber-Laband’sche Positivismus.”, in Staat und Recht: Deutsche Staatslehre im 19. und 20. Jahrhundert, ed. Martin J. Sattler, (Munich: List, 1972), 43–71. See Krijnen, Kelsen and South-West German Neo-Kantianism on Natural Law. Transcendental Philosophy beyond Metaphysics and Positivism, in the present volume. According to Kelsen, the demonstration of the primacy of international law can only ­occur within the boundaries of a legal science, i.e., it can only demonstrate the superior logical plausibility of a legal monism which accords primacy to international law. The ­passage from logical plausibility to the development of international law is the p ­ assage from a

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It would determine the jurisdiction of states; it would make them organs of international law; it would rest on a gapless sequence of deducible norms; and it would entrust permanent international courts with deciding whether a given norm was applicable to the respective case.36 Verdross became the chief theorist of the ius cogens in international law, postulating that neither interstate treaties37 nor customary law could subvert the general principle on which international law rested.38 This general ­principle

36 37 38

science of positive law to politics, the separation between mind and will. The possibility of this passage is acknowledged by Hans Kelsen in his: “Les rapports de système entre le droit interne et le droit international public,” Recueil des cours de l’Académie de droit international 14/4 (1926): 231–331, as well as in his Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre, (Tübingen: Mohr 1920). Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, (Cambridge: Cambridge University Press, 2004), 246. Alfred Verdross, “Forbidden Treaties in International Law: A Comment on Professor Garner’s Report on ‘The Law of Treaties’,” The American Journal of International Law 31 no. 4 (1937): 573. It is an eloquent testimony to the internal rifts and disjunctions which permeate the natural law “tradition” – whose coherence can only be presupposed by someone as ­eager to dismantle it as Kelsen was – that Verdross repudiated eighteenth-century natural jurisprudence. Verdross argued that the belief in the legitimacy and binding normative value of interstate treaties was, in fact, an aftereffect and shallow replica of the subjectivist interpersonalism of the eighteenth century (der “getreue Abklatsch […] des ‘zwischenmenschlichen’ Individualismus” (Alfred Verdross, “Die gesellschaftswissenschaftlichen Grundlagen der Völkerrechtstheorie” [1924/1925], in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans R. Klecatsky, Rene Marcic, and Herbert Schambeck, (Stuttgart: Franz Steiner Verlag, 2010), 1712). Carty, “Alfred Verdross”, 84). These doctrines made the state arise from a social contract among the citizens (pactum subjectionis, appetitus societatis, οίκείωσις), Verdross castigated this subjectivist-secularist programme which was blended with the etiamsi daremus-strand of late scholasticism and recycled the thought of the fourteenth-century occasionalists to subvert the divinely ordained character of natural law. See Hans Kelsen, “Die Grundlagen der Naturrechtslehre,” in Das Naturrecht in der politischen Theorie, ed. Franz-Martin Schmölz, (Vienna: Springer, 1963), 31; for Verdross’s argument against William of Ockham see „Die Erneuerung“, 610, c.f. Michael Stolleis, Lorraine Daston, eds., Natural Law and the Laws of Nature in Early Modern Europe, (Aldershot: Ashgate, 2008). On the malleability and constant refashioning of “traditions”, see J.C. Heesterman, “India and the Inner Conflict of Tradition,” in The Inner Conflict of Tradition. Essays in Indian Ritual, Kingship, and Society, ed. J.C. Heesterman, (Chicago: Chicago University Press, 1985), 10–25, on the remaking of natural law’s key tenets regarding the primordial treaties that constituted the state, see Jan Rolin, Der Ursprung des Staates: Die naturrechtlich-rechtsphilosophische Legitimation der Staatsgewalt im Deutschland des 18. und 19. Jahrhunderts, (Tübingen: Mohr Siebeck, 2005). Verdross’ stance was also anti-pandectist in that it shed doubt on the tenability of the Roman law approach to treaty obligation which had to be concluded among members of a predefined legal community in order to be binding (Verdross, “Die ­gesellschaftswissenschaftlichen Grundlagen”, 1710–1711); see Gerhard Hammerstein, Die

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was predicated on natural law, to be more precise on a shared legal conscience (Rechtsbewusstsein). In this context, Verdross employed Kelsen’s term “basic norm” (Grundnorm), the methodological foundation of Kelsen’s theory, but creatively twisted its meaning. The basic norm was a formal, methodological prerequisite of the internal coherence and objective validity of the law, which itself contained no determinate content nor specifications about the “just” or “unjust” nature of the law: “Only the validity, not the content of a legal order can be derived from the basic norm.”39 Verdross inflected Kelsen’s term, filling the basic norm with concrete normative substance,40 that is: with the preservation of human liberty, dignity and basic standards of inviolability.41 The gulf that separated Kelsen’s and Verdross’s approaches becomes e­ vident in the way both thinkers conceptualised the position and purpose of international courts: Verdross, who was one of the architects of the Permanent International Court of Justice installed by the League of Nations, maintained that the court should adhere to and objectify “general principles of law”, and was not completely free in determining its findings. For Verdross, neither customary law42 nor interstate treaties were deemed a sufficient basis for international law, the courts had to objectify the general principles of international justice derived from international law. Kelsen rejected all recourse to natural law as sufficiently vague to legitimise the very horrific crimes against humanity it purported to ban, but he retained an affinity with Verdross in the call for permanence in the work of international courts of justice such as in his essay on the Nuremberg War Crime Trials (“Will the judgment in the Nuremberg Trial constitute a precedent in international law?” (1947). According to Kelsen, it did not.)

39 40

41 42

Entwicklung des Naturrechtsgedankens in der katholischen Rechtsphilosophie des neunzehnten Jahrhunderts, PhD thesis, Albert-Ludwigs-Universität Freiburg im Breisgau, 1950; Heinrich Rommen, Die ewige Wiederkehr des Naturrechts, 2nd edition, (Munich: Kösel, 1947). Hans Kelsen, Pure Theory of Law [1967], trans. M. Knight from the 2nd revised and ­expanded German edition, (Clark, NJ: The Law Book Exchange, 2005), 217; Hans Kelsen, Introduction. Robert Walter, “Die Rechtslehren von Kelsen und Verdroß unter besonderer Berücksichtigung des Völkerrechts,” in Hans Kelsen und das Völkerrecht, eds., Robert Walter, Clemens Jabloner, and Klaus Zeleny, (Vienna: Manz, 2004) 42; Walter Rudolf, Völkerrecht und deutsches Recht. Theoretische und dogmatische Untersuchungen über die Anwendung völkerrechtlicher Normen in der Bundesrepublik Deutschland, (Tübingen: Mohr Siebeck, 1967), 137–150; Alfred Kleinlein, “Alfred Verdroß as a Founding Father of International Constitutionalism?,” Goettingen Journal of International Law 4, no. 2 (2012): 385–416. Simma, “The Contribution”, 49. Alfred Verdross, “Das Problem des freien Ermessens und die Freirechtsbewegung,” ­Österreichische Zeitschrift für öffentliches Recht 1 (1914): 616–644.

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Verdross’s outspoken advocacy of the supremacy of international over ­ ational law has become clear from the skeletal outline of his argument pren sented above. It is not surprising that, for Kelsen, the question is not one of a necessary priority, but of the more limited methodological demonstration of logical primacy. Hence, it was not a necessary element of a legal science of positive law,43 but, rather, the subject of extra-legal, political choice.44 Clearly this theory of political choices impinged on the respective definitions of basic determinants of sovereignty, and it is within these parameters that Kelsen’s exchange with Verdross was particularly fertile: In Kelsen’s accounts from the 1920s, it was still directly deducable from the hypothetical basic norm without positive-legal interpositions,45 while later on – arguably under Verdross’s ­influence – Kelsen came to define sovereignty as the “[…] legal authority of the States under the authority of international law […] Consequently, the State’s sovereignty under international law is its legal independence from other States.”46 Also, Kelsen’s exposition of the reason for the distinct, conflictual possibilities of the primacy of either international or national law is explicitly shaped by political predilections: Kelsen stated that “subjectivist imperialist ideologies” tended to opt for the primacy of national law, whereas objectivist pacifist ideologies sustained the primacy of international law.47 We have already alluded to Kelsen’s and Verdross’s common rejection of German fin-de-siècle public law positivism with its doctrines of state wills and self-sufficient state entities. It is quite intriguing that Verdross would refract his disagreement with his former mentor precisely by accusing Kelsen of perpetrating the very Hegelian individualist fallacy they both rejected: Verdross defined his overarching position as “a battle against voluntarist legal positivism”.48 Thus, Kelsen is credited with a voluntarist world 43 44 45 46 47

48

Walter Pauly, “Concepts of Universality – Hans Kelsen on Sovereignty and International Order,” in Hans Kelsen and Carl Schmitt: A Juxtaposition, eds., Dan Diner and Michael Stolleis (Gerlingen: Bleicher, 1999), 46. Compare e.g. Josef L. Kunz, Völkerrechtswissenschaft und reine Rechtslehre (Leipzig– Vienna: Deuticke, 1923), 82; and Alfred Verdross, Die völkerrechtswidrige Handlung und der Strafanspruch der Staaten (Berlin: Engelmann, 1920). Kelsen, „Les rapports“, 251, 256. Hans Kelsen, “The Principle of Sovereign Equality of States as Basis for International ­Organization,” Yale Law Journal 53, no. 2 (1944): 208; Alfred Rub, Hans Kelsens Völkerrechts‑ lehre: Versuch einer Würdigung (Zurich: Schulthess, 1995), 418. Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu ­einer reinen Rechtslehre, 2nd edition (Tübingen: Mohr Siebeck, 1928); Kelsen, Introduction, 111–125; Hans Kelsen, Principles of International Law (New York: Rinehart, 1952), 446–447. “Univ. Prof. Dr. Alfred Verdroß (Wien)” [Selbstdarstellung], 204; Verdross, “Zwei ­empirische Begründungen”, 147.

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view,49 but this is an unfounded accusation: Kelsen conceptualised the notion of free will in a constructivist manner. The principle of imputation, according to Kelsen, does not rest on the presupposed free will of the individual, but, ­instead, the individual is made free by becoming subject to imputation. The underlying theme of German public law positivism resurfaced again when Kelsen maintained that Verdross’s dualism between the positive law and the higher divine, or rational order surreptitiously replicated the very dualisms Kelsen rejected (subjectivist – objectivist, public – private). In nineteenth century German legal positivism, the state acted as the embodiment of divine and rational order. Verdross’s theory seemed structurally indebted to this framework, ­installing international law in the place previously occupied by the state.50 Let us pause here to recapitulate the argument of our chapter so far, and to offer some signposts for the following sections. The preceding analysis has revealed three central areas of contestation between Kelsen and Verdross during the 1920s and 1930s, the neo-Kantian analysis of the validity grounds of the law, natural law, and the significance both acquired for the foundations of international law. In the subsequent parts of the chapter, we continue our enquiry into the vicissitudes of natural law legalism, but shift the focus to the decades after 1945. The next section is devoted to Kelsen’s conflict with another of his erstwhile students, the political philosopher Eric Voegelin. This permits us to demonstrate that Kelsen’s critique of natural law was no epiphenomenon: it was pivotal both for his advocacy of democracy and for his philosophy of science after World War ii. Kelsen considered both these pursuits imperilled by a resurgence of natural law legalism and this, in turn, leads to the final part of our chapter. Here, we return to Verdross’s Austria after 1945: we reconstruct 49

Verdross relished teasing out the consequences of Kelsen’s protracted re-statements of the problem of the will, such as in his paper on Johannes Messner and Victor Kraft from 1967, where he gleefully noted that Kelsen had recently come close to William of Ockham’s voluntarism when he maintained that every norm needed an “imperator” (Alfred Verdross, “Zwei empirische Begründungen naturrechtlicher Normen: Eine vergleichende Untersuchung der Ermittlung des Naturrechts durch Johannes Messner und der sozialen Moral durch Viktor Kraft,” in Ordnung im sozialen Wandel: Festschrift für Johannes Messner zum 85. Geburtstag, (Berlin: Duncker & Humblot, 1976), 147): “Since 1963 Kelsen maintains that every norm needs an ‘imperator’, a norm-setting will as necessary prerequisite, therewith he returns to the nominalist foundations of law laid by William of Occam.” See Hans Kelsen,“Zum Begriff der Norm,” in Festschrift Hans Carl Nipperdey, vol. 1 (Munich–Berlin: Beck, 1965a), 57–70; Hans Kelsen, “Law and Logic,” in Philosophy and Christianity. Philosophical essays dedicated to Professor Dr. Hermann Dooyeweerd, (Amsterdam: North Holland Publishing Company, 1965b), 231–238; Ewald Wiederin, “Das Spätwerk Kelsens,” in Hans Kelsen: Leben – Werk – Wirksamkeit, eds., Robert Walter, Werner Ogris, and Thomas Olechowski, (Vienna: Manz, 2009), 358. 50 Kelsen, Introduction, 37–38.

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the circumstances and epistemic core of the natural law revival among Austrian scholars who, in parallel, at the same time sought to ingratiate themselves with their compatriot Kelsen and to bask in the light of his international reputation. 3

The Promise and Perils of Natural Law in the Cold War: Voegelin and Kelsen on Science and Democracy

In 1962, a congress was held at the Archbishop of Salzburg’s very own research institute for the basic questions of the sciences. Hosted in the Edmundsburg, a Baroque palazzo ensconced over the old city on the foothills of the Mönchsberg, the event brought together the crème of German, Austrian, and Italian natural law-theorists. Hans Kelsen who had travelled to Austria, from his home at Berkeley, also figured among the invitees, and so did two of his former students: Alfred Verdross and Eric Voegelin. The workshop conveners’ aim to discuss natural law in political theory can be placed in two contexts: On the one hand, this was a by-product of the natural law-revival in Austria after 1945 whose conditions we analyse in the fourth part of our chapter. On the other hand, and this will be the main theme in the present section, it permits us to survey Kelsen’s engagement with Eric Voegelin, its roots in the academic life of interwar Vienna, and its r­ e-elaboration after 1945 under the conditions of the Cold War. Voegelin studied with Kelsen in the 1920s, he was among his doctoral advisors, but Voegelin’s estrangement from his mentor began fairly early. Like Verdross, Voegelin chided Kelsen for occluding the social and political problems of statehood: Kelsen’s dissection of competing and interlocking norms ignored the mechanisms of symbolic sense-constitution that held political communities together;51 in 1936 Voegelin published The Authoritarian State,52 an apologia for the Austrofascist regime. Here, Voegelin portrayed Kelsen’s desiccated legal positivism as a result of the Central European experience. According to Voegelin the absence of genuine statehood in the old Habsburg Monarchy had spawned an “administrative style”, and Kelsenian positivism was the “logified” consummation of this imperial legacy: a purportedly neutral analysis of a­ ggregations of norms that sorely neglected the guiding p ­ rinciples 51 52

Erich Voegelin, “Reine Rechtslehre und Staatslehre,” Zeitschrift für öffentliches Recht 4 (1924): 80–131. Eric Voegelin, The Collected Works of Eric Voegelin 4: The Authoritarian State: An Essay on the Problem of the Austrian State, ed. Gilbert Weiss, trans. Ruth Hein, (Columbia: University of Missouri Press, 1999 [1936]).

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of ­statehood.53 The content of these “principles” which Voegelin envisaged ­becomes clearer if one considers his 1931 endorsement of Carl Schmitt’s ­defence of the ethnically homogeneous state.54 For Voegelin, true statehood in Austria was established by Austrofascist authoritarianism which had overturned the “imperial” and “administrative style” – and abrogated the republican Constitution Kelsen had co-authored. Voegelin, the supporter of Austrofascism, found his future prospects jeopardised by the subsequent Nazi occupation of Austria. After having been ­deprived of his venia legendi at the University of Vienna,55 due to his sympathies for the previous regime, in April 1938, Voegelin emigrated to the U.S.56 Voegelin’s partisanship for the Austrofascists, and the ensuing war years, brought a long lull in the correspondence between Kelsen and Voegelin. ­Toward the end of 1953, Voegelin, then professor of political science at Louisiana State University in Baton Rouge, approached his former teacher in a courteous letter, and Kelsen expressed interest in Voegelin’s New Science of Politics.57 In February 1954, Kelsen wrote to Voegelin informing him that he had already devoted several weeks to the study of the New Science. Indeed Kelsen would go on to pen an extensive essay on Voegelin’s book.58 Kelsen’s devastating critique permits us to unravel the political subtexts of a broader post-war debate on the foundations of science and democracy. The majority of liberal and conservative Cold War political theorists in the West sought to locate and drain the – allegedly equiprimordial – ­intellectual sources of Nazism and of Soviet communism, increasingly lumping them together under the elusive and inchoately defined umbrella term of “totalitarianism”.59 Voegelin’s aim was to restore society and political theory through the elaboration of a solid transcendental foundation, which was to 53 54 55 56 57 58 59

Johannes Feichtinger, Wissenschaft als reflexives Projekt. Von Bolzano über Freud zu Kelsen: Österreichische Wissenschaftsgeschichte 1848–1938, (Bielefeld: Transcript, 2010), 342–346. Erich Voegelin, “Die Verfassungslehre von Carl Schmitt: Versuch einer konstruktiven Analyse ihrer staatlichen Prinzipien,” Zeitschrift für Öffentliches Recht 11 (1931): 89–109. Staudigl-Ciechowicz, and Olechowski‚ “Allgemeines und österreichisches Staatsrecht”, 601. Johannes Feichtinger, “Transatlantische Vernetzungen. Der Weg Hans Kelsens und seines Kreises in die Emigration,” in Hans Kelsen: Leben – Werk – Wirksamkeit, eds., Robert Walter, Werner Ogris, and Thomas Olechowski, (Vienna: Manz, 2009), 324, 330–334. Michael Ley, and Gilbert Weiss, Voegelin in Wien: Frühe Schriften 1920–1938, (Vienna: ­Passagen, 2007), 116. Hans Kelsen, A New Science of Politics. Hans Kelsen’s Reply to Eric Voegelin’s ‘New Science of Politics’. A Contribution to the Critique ot Ideology [1954], ed. Eckhart Arnold, (Frankfurt am Main–Lancaster: Ontos, 2004), 115. Clemens Vollnhals, “Der Totalitarismusbegriff im Wandel des 20. Jahrhunderts.” Bohemia 49, no. 2 (2009): 385–398; Jan-Werner Müller, “Fear and Freedom: On ‘Cold War ­Liberalism’,” European Journal of Political Theory 7, no. 1 (2008): 45–64.

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be achieved through a dual strategy: a return to natural law cleansed of its Enlightenment accretions, and the exposure of purportedly value-free, areligious modern science as a “political religion” that relied on distorted theological assumptions. In common with Verdross, and in unison with other critics, such as Jacob Talmon and Leo Strauss,60 Voegelin yearned for a brand of nondesecrated and non-vulgarised natural law, for a natural law that had not yet been misappropriated by liberal individualism: Rousseau, in particular, was censured for having inaugurated “totalitarian democracy”, a dictatorship of the majority.61 Kelsen immediately grasped the post-war political thrust which animated Voegelin’s theory. In his “crusade against positivism”, Voegelin engaged in a valiant combat against a construct: Voegelin wrongly accused positivism of conflating different logics and methods of inquiry, and of genuflecting before the “natural sciences”.62 To Kelsen, this accusation of absolute positivist “scientism” barely concealed Voegelin’s central objective – the conceptual revitalization of the “transcendental” and universal foundations of social and legal order. Voegelin’s theory was emblematic of the postwar intellectual climate: Whenever “wars and revolutionary movements” disrupt the “social equilibrium”, Kelsen states in his extended critical review of The New Science of Politics, the desire for “metaphysical speculation” about the “absolute […] justification” of the political becomes ubiquitous.63 Natural law64 is but one symptom of this recrudescence of the “absolute”. Voegelin’s desire for the “absolute” also threatened to impair university education: For Kelsen, who believed that the intersubjective disclosure and functional analysis of value-statements and truth-claims65 was the precondition of scholarly work in general, and of a legal science as a study of norms, Voegelin’s plea for a higher education that instilled “values” was tantamount to indoctrination.66 60

See Gostmann, Kelsen and Strauss: Variants of the post-theological Wager, in the present volume. 61 José Brunner, “From Rousseau to Totalitarian Democracy: The French Revolution in J.L. Talmon’s Historiography,” History and Memory 3 (1991): 60–85; Verdross, Abendländische Rechtsphilosophie, 117–121. 62 Kelsen, A New Science, 13. 63 Kelsen, A New Science, 11. 64 Eric Voegelin, Modernity without Restraint: The Political Religions, The New Science of ­Politics, and Science, Politics, and Gnosticism, ed. Manfred Nenningsen, (New York: Columbia University Press, 2000). 65 Kelsen, A New Science, 11. 66 Kelsen, A New Science, 25; for a succinct statement of Voegelin’s argument see: Eric Voegelin, “The German University and the Order of German Society: A Reconsideration of the Nazi Era” [1966], in The Collected Works of Eric Voegelin 12: Published Essays, 1966–1985, ed. Ellis Sandoz, (Baton Rouge–London: Louisiana University Press, 1999), 26.

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Voegelin’s position was replete with contradictions: He wrongly accused positivism of utilizing the guiding framework of the natural sciences whilst maintaining that scholarship and society should emulate some purported “natural” standard. The concept of nature Voegelin had in mind was opposed to the corresponding concept designed by nefarious “scientism”, yet at the same time Voegelin – again in the vein of Carl Schmitt, this time indebted to his Political Theology (1922) – accused modern science and politics of tacitly replicating the theological dogmas they sought to supplant. Kelsen took up the gauntlet in another lengthy text devoted to “secular religion”, a manuscript he drafted in the years that surrounded the 1962 Salzburg conference. This posthumously published study67 is both a sweeping rejection of Schmitt’s and Voegelin’s reading of modern science and politics, as essentially eschatological and soteriological ideologies of progress, and the interpretive rescue of a long cast of thinkers (ranging from Hobbes over the philosophers of the Enlightenment, the nineteenth-century positivists, to Marx, Nietzsche, and t­ wentieth-century natural scientists) from the clutches of the “theologisers”.68 For our analysis, it is crucial to highlight the paradoxical constellation of three elements Kelsen identified in Voegelin’s work. Voegelin asserts the irreducible, individual belief in transcendence as an important counterweight to the omnipotence of modern science and of the modern state. Voegelin conceives the state as an entity which perpetuates specifically religious, salvational ideologies that were divested of their – to Kelsen dangerously elusive and combustible “humanist” – value substance. Concomitantly, Voegelin views modern science and statehood as saturated with “relativism”, and calls for a return to a form of “transcendental” and “natural” supreme order.69 All this added up to a confused argument: Overbearing modern science and statecraft forced citizens to be relativists. Citizens, if liberated from this double stricture, would freely experience the purity of absolute, transcendental values whose content “nature” generously enables them to grasp. At the Salzburg meeting of 1962, Kelsen restated his excoriating critique of natural law. In his opening lecture, Kelsen defended the distinction ­between “is” and “ought” and the functional analysis of value-statements: These 67 68

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Hans Kelsen, Secular Religion. A Polemic Against the Misinterpretation of Modern Social Philosophy: Science and Politics as ‘New Religions’, eds., Robert Walter, Clemens Jabloner, and Klaus Zeleny, (Dordrecht: Springer, 2012). From the perspective of the history of science, both Voegelin’s and Kelsen’s reconstructions remain essentially polemic, marked by a slipshod and episodic approach. Both ­accounts fail to address the conventions and techniques that reveal the inextricable connectedness of “religious” and “scientific” concerns, particularly in the early modern age; see Steven Shapin, The Scientific Revolution, (Chicago: University of Chicago Press, 1996). Hans Kelsen, Secular Religion, 3, 271.

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v­ alue-statements are always subjective and, if politically negotiable, subject to democratic elaboration and contestation, hence the pretension to the universality and objectivity of “natural law” is fallacious and unscientific.70 Kelsen’s crisp review of postwar natural-law discourse complicated its venerable ancestry: its proponents stressed the smooth transition between Aristotelian and Thomist natural law, thereby draping themselves in the mantle of the classical-Christian heritage. Kelsen undermined this claim: contrary to what postwar natural lawyers suggested the idea that moral principles are ­“divinely ­implanted” did not in fact derive from Aristotelianism, it was a Thomist ­distortion of the Aristotelian doctrine.71 In his Salzburg lecture, Kelsen also contended that the advocacy of natural law inevitably required the belief in a divinely ordered cosmos that was comprehensible to God’s creatures:72 Natural law ineluctably hinges on a ­theonomous worldview. Here, Kelsen reworked a critical framework he had already articulated in the 1920s and 1930s: The flourishing of science required a democratic design of society, and the postwar resuscitation73 of natural law constituted a disavowal of democracy and scientific enquiry, sacrificing both to the pursuit of ostensibly eternal and immutable truths. In contrast he who relies on worldly truth alone, who makes human cognition [Erkenntnis] formulate and direct social goals, cannot justify the inevitable coercion required for their realisation but by consent of at least a majority of those for whose benefit the coercive order is erected.74 70

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Kelsen, “Die Grundlagen der Naturrechtslehre”; Gilbert Weiss, “Repräsentative Mensch‑ lichkeit. Hans Kelsen versus Eric Voegelin in Salzburg,” in Verdrängter Humanismus – verzögerte Aufklärung VI: Philosophie in Österreich 1951–2000, eds., Michael Benedikt, Reinhold Knoll, Franz Schwediauer, and Cornelius Zehetner, (Vienna: Facultas, 1962), 203–214. Hans Kelsen, “Die Grundlagen der Naturrechtslehre,” 30; Panajotis Kondylis, Die neuzeitliche Metaphysikkritik, (Stuttgart: Klett-Cotta, 1990). Hans Kelsen, “Die Grundlagen der Naturrechtslehre,” 35–37. Alfred Verdross, “Die Erneuerung der materialen Rechtsphilosophie” [1957], in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans R. Klecatsky, René Marcic, and Herbert Schambeck, 601–621. Stuttgart: Franz Steiner Verlag, 2010, 614. In this essay from 1957, Verdross rather pointedly speaks of the “mass grave” in which natural law theories had been collectively buried by their late nineteenthcentury detractor, Karl Bergbohm, (Bergbohm 1892). Hans Kelsen, “Vom Wesen und Wert der Demokratie” [1920], in Hans Kelsen. Verteidigung der Demokratie: Abhandlungen zur Demokratietheorie, eds., Matthias Jestaedt, and Oliver Lepsius, (Tübingen: Mohr-Siebeck, 1996), 32; see the superb discussion in: Horst Dreier, “‘Secular Religion’ im Kontext von Kelsens Gesamtwerk,” in Secular Religion: ­Rezeption und Kritik von Hans Kelsens Auseinandersetzung mit Religion und Wissenschaft, ed. Clemens Jabloner, Thomas Olechowski, and Klaus Zeleny, (Vienna: Manz, 201), 1–18. Kelsen, Secular Religion, 265–268, emphasizes that Voegelin’s repudiation of what he

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Open-endedness, reversibility, and falsifiability are the distinctive traits of modern science and democracy, but Kelsen’s critique of the renascence of natural law proceeds even further: In his 1941 book on Causality and Retribution (Kelsen 1941, cf. also the English translation with slight alterations Kelsen 1943), Kelsen trenchantly argued that modern legal science had emerged out of the analytical and ideological separation of society and nature. According to Kelsen, the lawfulness of causational regularities in nature had been modelled after the principle of retribution, hence “natural laws” were a curious inversion of this sociomorphous and socio-normative conception of nature: Now the lawfulness nature had initially been imparted with was by human contrivance, a lawfulness originally modelled after a type of social interaction (retribution), and was invoked to structure society. “Nature” was transformed from a replica of rules of social interaction into a repository for overarching laws society should obey.75 Kelsen’s postwar critique of Voegelin and Verdross has to be read in relation to these backgrounds: Kelsen perceived the natural law-vogue as a ­recrudescence of the “primitive” conflation of nature and society that was inimical to both democracy and scientific enquiry. The subject of legal science, norms, could only emerge once society was recognised as a sphere of human value and truth-statements that was sharply distinct from nature. Hence, Kelsen’s impatience about the churlish and calumnious claim of Voegelin that ­legal positivism advocated the application of natural science-methods to the humanities.

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calls ­“gnostic” secular-religious forms of political life extends to modern liberal-Western ­democracies. Verdross’s advocacy of an “organic” structuring of the internal life of states as well as of the world community was sufficiently pliable to be compatible with a Greater German Christian-völkisch design of political order as well as with the peaceful world ­society protected by an international judiciary he advocated (Busch, “Alfred Verdross,” 156; Inge Marboe, “Teil 2: Verdross’ Völkerrechtstheorie vor dem Hintergrund des ­Nationalsozialsozialismus,” in Vertriebenes Recht – Vertreibendes Recht. Zur Geschichte der Wiener Rechts- und Staatswissenschaftlichen Fakultät zwischen 1938 und 1945, eds. FranzStefan Meissel, Thomas Olechowski, Ilse Reiter-Zatloukal, and Stefan Schima, (Vienna: Manz, 2012) 171–193). In Verdross’s 1937 textbook on international law, National Socialism is portrayed as organic, “anti-imperialist and federalist” (Marboe, “Teil 2”, 185). On Kelsen’s reflections about probability as a way to reconcile the conceptions of lawfulness that obtain in the natural and the social realm, see Wiederin, “Das Spätwerk Kelsens,” 353–354. On Kelsen’s re-elaboration of the distinction between “is” and “ought” on the basis of speech act theory, as illocutionary and perlocutionary functions of utterances that describe (“is”) and prescribe (“ought”) ibid., 354.

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Voegelin and Verdross held that Kelsen ignored the responsibility that had come to weigh heavily on legal science since 1945. This led to Kelsen’s insouciance concerning three problems: the preservation of democracy, the validity sources of international law, and the remarkable success of the social-­ behavioural, economic, and natural sciences in postwar academia that threatened to engulf legal science and political philosophy. Natural law seemed a panacea, providing the desperately needed conceptual resources to tackle these problems. To Kelsen’s postwar detractors, the collapse of the Weimar republic threw the central dilemma into sharp relief: the preservation of d­ emocracies prone to self-annihilation would not be possible with Kelsen’s moral agnosticism, and with his advocacy of equality and participation in an open-ended process that negotiated the constitutional framework of each society.76 Kelsen reiterated his interwar position: to him a democracy that curtailed the freedom of conscience and public debate in order to preserve its “values” cut the ground from under its own feet.77 The establishment of the United Nations, with its international conventions and treaties that banned atrocities, human rights violations, and genocide, made recourse to natural law-arguments.78 “Natural law”, Verdross claimed at the 1962 Salzburg workshop, “is cultural law anchored in the being (Wesen) of man”.79 For Verdross, international law was rooted in the “natural-legal idea of the unity of mankind which not only comprises the […] sovereign peoples organised in states, but is also recognised in the principle of human rights as sanctioned by international law”.80 Kelsen retorted that no absolute and ­uncontested conception of universal moral values could ever be attained, and, therefore, objective insights into the “nature” of universal justice were equally unobtainable: Hence, the conceptual inflation and buttressing of “morality” often concealed ulterior motives and power-interests.81 76 77

Alfred Verdross, „Primäres Naturrecht“, 649. Horst Dreier, “Kelsens Demokratietheorie: Grundlegung, Strukturelemente, Probleme,” in Hans Kelsens Wege sozialphilosophischer Forschung, eds., Robert Walter, and Clemens Jabloner, (Vienna: Manz, 1997), 101. 78 Jochen von Bernstorff, The Public International Law of Hans Kelsen: Believing in Universal Law, trans. Thomas Dunlap, (Cambridge: Cambridge University Press, 2010), 27, 49, 115, 251–252; Kleinlein, “Alfred Verdroß”. 79 Alfred Verdross, “Dynamisches Naturrecht,” 770. 80 Alfred Verdross, “Der Einfluß der Naturrechtslehre auf Theorie und Praxis der ­internationalen Beziehungen,” in Das Naturrecht in der politischen Theorie, ed. FranzMartin Schmölz, (Vienna: Springer, 1963), 116. 81 Jochen von Bernstorff, The Public International Law of Hans Kelsen, 253.

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The final area of contestation concerned the politics of the disciplines: ­ odernisation theory thrived in postwar U.S. higher education, and its inM creasing success was to trigger conflicts of distribution. Once academia was awash with behaviourist, social-psychological, and political-economical models,82 the prestige of a distinctive socio-normative legal and political theory seemed shattered. Voegelin’s argument from nature sought to repel the invasion of modernisation theory in the U.S. humanities83 and, in Austria, Verdross’s s­ tudents and colleagues invoked natural law in order to p ­ revent the establishment of political science as an autonomous discipline with its own infrastructure.84 Voegelin and Verdross targeted the conflation of social and natural ontologies: They regarded the new regimes of quantifiable evidence derived from predictable human behaviour and the manipulation of citizens’ choice architectures as the products of a new, culturally illiterate, immoral expertocracy that supplied leadership techniques for enhanced governance. Yet, Verdross’s and Voegelin’s contention that Kelsenian “positivism” bore ­intellectual responsibility for the rise of these “naturalist” epistemologies is fundamentally flawed. Kelsen trenchantly observed that Voegelin’s and Verdross’s appeals to a natural order of human life, their “renaturalization” of legal ­theory, effectively undermined the distinction between the social realm and the natural world and, thereby, threatened both democracy and science. Kelsen’s critique was prescient, as the knowledge about the regularities of ­putative “human nature”, and the processing of policy-relevant data on ­citizens’ natural ­inclinations and susceptibilities, have come to assume a prominent position in the c­ onfiguration of current law-making and legislative procedures in Western democracies. Hence, Kelsen’s critique is validated to the effect that these arguments from nature, whether articulated by metaphysical theorists and “theologisers”, or by behaviourists, legal realists, and advocates of “law and 82

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Wolfgang Knöbl, “Aufstieg und Fall der Modernisierungstheorie und des säkularen ­Bildes ‘moderner Gesellschaften’,” in Moderne und Religion: Kontroversen um Modernität und Säkularisierung, eds., Ulrich Willems, Detlef Pollack, Helene Basu, Thomas Gutmann, and Ulrike Spohn, (Bielefeld: Transcript, 2013), 75–116. Barry Cooper, and Jodi Bruhn. Voegelin Recollected: Conversations on a Life, (Columbus, Missouri: University of Missouri Press, 2008), 231; David Ricci, The Tragedy of Political Science: Politics, Scholarship, and Democracy, (New Haven: Yale University Press, 1984), 217; James Farr, “The new science of politics,” in The Cambridge History of Twentieth-Century Political Thought, eds., Terence Ball, and Richard Bellamy, (Cambridge: Cambridge University Press, 2003), 443–444. Thomas König, “Vom Naturrecht zum Behavioralismus und darüber hinaus. Konzeptionelle Grundlagen der Disziplin Politikwissenschaft in Österreich,” Österreichische Zeitschrift für Politikwissenschaft 41, no. 4 (2012): 419–438.

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economics”, both ­destroy the very identity of law as a coercive and normative order: if law is supposed to adjust to the purported order of nature, how can it continue to act as a system of man-made norms, and as a regulatory order that counteracts “natural” inclinations?85 4

The Renascence of Catholic Natural Law in Austria after 1945

In 1967, another festive occasion was held in Salzburg: The newly established Paris Lodron University conferred its honorary doctorate upon the three main representatives of the Austrian school of legal theory, namely, to Hans Kelsen, Adolf Merkl, and Alfred Verdross. This celebration testifies that the bonds between Verdross, Merkl, and Kelsen had never been severed. What is more remarkable, however, is another aspect. Balduin Schwarz, the Dean of the Faculty of Philosophy of Salzburg, closed his laudatory speech on Kelsen with a piece of good advice that effectively repeated the suggestion from the 1930 essay in which Verdross bid farewell to Kelsen. Schwarz addressed Kelsen with the following exhortation: “I wonder whether […] the separation of ought and is, the thesis of the hypothetical character of the basic norm, and the purely subjective character of the concept of justice should not better be abandoned.”86 The conferral of the Salzburg honorary degree was part of Verdross’s compensation strategy, of a programme of “moral indemnification” for his erstwhile mentor Kelsen. This strategy of moral indemnification was fine-tuned with the wider project of Austrian self-exculpation after 1945 which presented Austria as Hitler’s first victim.87 After the demise of the Third Reich, 85 86 87

See Franz Leander Fillafer, and Małecka, Magdalena, “What Nature, What Law?”, Max Weber Programme Newsletter 9, Summer 2015. Florence: European University Institute [https://blogs.eui.eu/maxweberprogramme/2015/07/16/what-nature-what-law/]. Balduin Schwarz, “Laudatio,” in Philosophie huldigt dem Recht. Hans Kelsen, Adolf J. Merkl. Alfred Verdross. Ehrendoktoren der Universität Salzburg. Erinnerungsband zum 1. Juni 1967, (Vienna–Frankfurt am Main–Zurich: Europa Verlag, 1968) , 40. Busch, “Alfred Verdross,” 164. Verdross remained in close contact with Kelsen and, in 1957, even asked him to revise the account of legal positivism in his forthcoming Occidental Legal Philosophy (Verdross, Abendländische Rechtsphilosophie). Kelsen rewrote the passage in a very conciliatory tone, stressing that the question of the justice or injustice of positive law was beyond the remit of his legal theory: “K.’s legal doctrine […] is also not irreconcilable with natural law […] when it comes to the validity grounds of positive law. K. gives a conditional answer to this question; he says: a positive order of law is valid as it is actually enacted […], if one presupposes the existence of a basic norm according to

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­ erman and Austrian academia were marked by power-bargaining and the G retrofitting of scholars’ previous Nazi sympathies. The old interwar charge that Kelsenian relativism and subjectivism had enfeebled democracy was ­revived in this context, now the Nazi seizure of power was conveniently added to positivism’s ­register of sins.88 In Austria and Germany, the critique of Kelsen was articulated by scholars who worked for the local “renascences of natural law.”89 In Austria, Johannes Messner, rémigré from England and professor of ­theology in Vienna, was the primary proponent90 and Alfred Verdross, who had become the uncrowned king of Austrian jurisprudence after 1945, was among Messner’s coadjutors. This reassertion of natural law was situated within a more extensive alibi: Many scholars who had been embroiled in Nazism retained their interwar epistemologies and animosities, in particular their ­anti-modernism and anti-liberalism. Yet, by a creative twist of argument, these intellectuals managed to gloss over that they had welcomed Nazism just a few years before as the triumphant destroyer of relativism. Now, they chose to portray Nazism as the result of the very relativism they had always rejected, as the consequence of value-free science and of the rise of the masses.91 In Germany and Austria, this process of self-disculpation often came in the guise of natural law-based “humanism”.

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which everybody shall act in compliance with the constitutional provisions […]. With this hypothetical formula K. merely characterises the condition of a positivist account of the law [Rechtsbetrachtung]. K. sharply insists on the premise that the basic norm can, but must not be accepted as a guiding assumption.” (Busch, “Alfred Verdross,” 164). For U.S. refractions of these themes, see e.g. Franz Neumann, Behemoth: The Structure and Practice of National Socialism (Oxford: Oxford University Press 1944), 46; Leo Strauss, ­Natural Right and History (Chicago: Chicago University Press, 1953), 5; William Scheuerman, “Professor Kelsen’s Amazing Disappearing Act,” in Émigré Scholars and the Genesis of International Relations: A European Discipline in America?, ed. Felix Rösch (Hounds‑ mills, Basingstoke: Palgrave-Macmillan, 2014), 87. Lena Foljanty, Recht oder Gesetz: Juristische Identität und Autorität in den Naturrechtsdebatten der Nachkriegszeit (Tübingen: Mohr-Siebeck, 2013). Johannes Messner, Social Ethics: Natural Law in the Modern World, trans. J.J. Doherty (St. Louis–London: Herder, 1949); Johannes Messner, Das Naturrecht. Handbuch der Gesellschaftsethik, Staatsethik und Wirtschaftsethik ( Innsbruck–Vienna: Tyrolia, 1950); Johannes Messner, “Aktualität des Naturrechts,” Österreichische Zeitschrift für öffentliches Recht 27, no. 1–2 (1976): 43–66. Franz Leander Fillafer, “The Enlightenment on Trial: Reinhart Koselleck’s Interpretation of Aufklärung,” in The Many Faces of Clio. Cross-Cultural Approaches to Historiography, eds., Franz L. Fillafer, and Q. Edward Wang (Oxford, New York: Berghahn, 2007), 322–345.

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The revival of natural law lends itself particularly well to surveying the intellectual climate of the postwar Austrian Republic, and for exploring the  ­post-1945 restoration of interwar theories. There were two significant exceptions to this general tendency of revival and reassertion: Kelsen’s Pure Theory of Law was effaced, and this fate was shared by the logical empiricism of the Vienna Circle. Adherents of both had been forced to leave Austria since the 1930s, and none of them was to return. However, clear reverberations of both schools’ theoretical tenets can be detected in the postwar conflict over Catholic natural law. Ernst Topitsch, a young Viennese intellectual, merits ­attention here as m ­ ediator and multiplier of both strands.92 Topitsch had studied with Victor Kraft, the only adherent of logical positivism to survive with a professorial chair in Austria, Topitsch also was an avid reader and editor of Hans Kelsen’s work.93 Topitsch launched a vitriolic attack on Verdross’s claim that Catholic natural law was the sole effective safeguard of liberty and dignity in the battle against totalitarianism, be it Nazism or Communism. In a central essay of 1950, published also as a rejoinder to Messner’s Naturrecht, Topitsch emphasized the problem that the adherents of the natural law revival purposefully avoided to discuss: the “natural-legal tendencies under National Socialism”.94 In post-1945 Austria, the renascence of Catholic natural law fulfilled the double function of exonerating scholars whose political involvement in the Nazi era was effectively obscured, and of securing the postwar predominance of right-wing scholarship. It fulfilled the former function because these intellectuals maintained that they were value-oriented Christian 92

Franz Leander Fillafer, “Ernst Topitsch und Kant,” in Umwege: Annäherungen an Immanuel Kant in Wien, Österreich und Osteuropa, ed. Violetta L. Waibel, (Göttingen: V&R unipress, 2015b), 95–102; Ernst Topitsch, Erkenntnis und Illusion. Grundstrukturen unserer Weltauffassung, 2nd edition, (Tübingen: Mohr Siebeck, 1988); Ernst Topitsch, Die Sozialphilosophie Hegels als Heilslehre und Herrschaftsideologie. Hans Albert zum 60. Geburtstag, 2nd edition, (Munich: Piper, 1981); Ernst Topitsch, “Die ‘Himmelsstadt’ des Jürgen Habermas. Ein Kapitel zur politischen Theologie,” in Im Irrgarten der Zeitgeschichte: Ausgewählte Aufsätze, ed. Ernst Topitsch, (Berlin: Duncker & Humblot, 2003), 95–96, 99, 103. 93 Hans Kelsen, Staat und Naturrecht: Aufsätze zur Ideologiekritik, ed. Ernst Topitsch (Neuwied–Berlin: Luchterhand, 1964). 94 Ernst Topitsch, “Das Problem des Naturrechts,” Wiener Zeitschrift für Philosophie, ­Psychologie, Pädagogik 3, no. 1 (1950): 136; Michael Stolleis, Recht im Unrecht: Studien zur Rechtsgeschichte des Nationalsozialismus. Mit einem neuen Nachwort (Frankfurt am Main: Suhrkamp, 1994), 32; Karl Larenz, “Rechts- und Staatsphilosophie der Gegenwart. A ­ uszug,” in Rechtfertigungen des Unrechts. Das Rechtsdenken im Nationalsozialismus in Originaltexten, eds., Herlinde Pauer-Studer, and Julian Fink, (Frankfurt am Main: Suhrkamp, 2014 [1935]), 185.

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­ umanists and, hence, could not possibly have been Nazis; and it served the h second f­unction because it permitted the adherents of natural law to tar leftist i­ntellectuals as crypto-communists. The conflict over Catholic natural law in Austria reached its peak in 1962 when the left Catholic Viennese professor of sociology August Maria Knoll95 published his book The Catholic Church and Scholastic Natural Law (Katholische Kirche und scholastisches Naturrecht). Knoll’s effort parallels that of Ernst-Wolfgang Böckenförde’s 1960 Hochland ­essay which quashed the myth that natural law had inoculated German Catholics against Nazism.96 Knoll’s was also a pamphlet directed against those turncoat Catholic supporters of Nazism who had reinvented themselves as natural law humanists. The book caused a major stir in postwar Austria with bishops, professors, and journalists castigating the author’s malice and lack of moral responsibility. Knoll, who had studied with Kelsen in the 1920s,97 ­exposed the legitimising and power-preserving character of scholastic natural law: It made the church forget its main duty, the struggle for social equality and individual liberty. Knoll pointedly accused the Catholic church of having forsaken its proper mission, namely “to turn slaves into free men”, ­instead, scholasticism made it content itself “with turning bad slaves into good slaves”.98 The origins of Knoll’s essay lie in a manuscript he submitted to the Festschrift that was to honour Hans Kelsen’s eightieth birthday, a volume ­edited by none other than Alfred Verdross. On June 29 1961, Knoll received 95

96 97 98

Anton Pelinka, “August Maria Knoll,” in Neue Österreichische Biographie: Große Österreicher, eds., Kurt Skalnik, and Heinrich Studer, 19, (Vienna: Amalthea, 1977), 69–77. Knoll’s first book was devoted to the Catholic social movement and its romantic roots. On Knoll’s background in the Christian Young Workers Association of Anton Orel, see, most recently, the recollections by two of Knoll’s former students published on the fiftieth anniversary of his death in 1963, Otto Hausmann, “Zwischen Marx und Ignaz Seipel: Vor fünfzig Jahren starb der katholische Soziologe und Kirchenkritiker August Maria Knoll, dessen Denken und akademisches Wirken mit ideologisch-politischen Zuordnungen schwer zu erfassen ist,” Wiener Zeitung, December 20, 2013; Norbert Leser, “Kirche und soziale Frage. Am Heiligen Abend vor fünfzig Jahren verstarb der Soziologe August Maria Knoll, neben Friedrich Heer und Wilfried Daim einer der Protagonisten des österreichischen Reformkatholizismus,” Die Furche, December 19, 2013. Ernst-Wolfgang Böckenförde, “Der deutsche Katholizismus im Jahr 1933: Eine kritische Betrachtung,” Hochland 53 (1960/61): 215–239. Norbert Leser, “August Maria Knoll,” in id., Grenzgänger: Österreichische Geistesgeschichte in Totenbeschwörungen, 2 vols., i, (Vienna–Cologne–Graz: Böhlau, 1981), 56. August Maria Knoll, Katholische Kirche und scholastisches Naturrecht [1962], 2nd edition, (Neuwied–Berlin: Luchterhand, 1968), 26, c.f. Johannes Messner, “Aktualität des Naturrechts,” Österreichische Zeitschrift für öffentliches Recht 27 (1976): 43–66.

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a terse letter from his friend Verdross, which deserves to be presented in full.99 Most esteemed colleague, Regrettably I have to inform you that your essay does not fulfil the ­demands of a strictly scholarly periodical since it is not written in a calm and matter of fact-manner, but instead adopts a strikingly polemical tone, and that it therefore must be regarded not as a scholarly contribution but as a piece of slander. […] I do hope you will appreciate my m ­ otives after due consideration and realise that the publication would cause you considerable harm. Herewith I return your manuscript. I remain with the best regards Yours A. Verdross 5 Conclusion Our chapter has recovered and reconstructed the origins of Kelsen’s critique of natural law in the 1920s and 1930s, and it has also unearthed its postwar significance. Kelsen eloquently defended democracy against those anti-­relativists who wished to protect its “values” by curbing the liberty of opinion and debate. Appeals to natural law, such as those of Verdross and Voegelin, were accomplices to this baleful absolutist and transcendentalist return to the ‘fundamental’. As we have seen this was no minor squabble: Voegelin and Verdross accused Kelsen of assisting the rise of “scientism”, while he had always stressed the irreducible autonomy of legal science from the study of nature. Kelsen, in response, argued that the natural lawyers shattered the distinction between society and nature that had made modern law, legal science, and majoritarian, participatory democracy possible. Voegelin attacked modern statehood and science as quasi-religious ideologies of salvation that estranged man from eternal moral values, and Verdross appealed to the same universal and immutable realm of “natural” laws. The liberty both promised was warped and faulty: Citizens should be free to obey nature. To Kelsen, this was both unscientific and undemocratic: it transformed science into the servant of metaphysics and it eviscerated democratic society by subordinating its ethics and institutions to eternal truths. 99

Ernst Topitsch, “Naturrecht im Wandel des Jahrhunderts,” Aufklärung und Kritik 1 (1994): 5–6.

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The post-1945 revival of natural law in Austria served the triple purpose of exonerating scholars who had been implicated in the Nazi regime, of blurring the distinction between the Catholic resistance and the Catholic collaboration, and of enhancing the unity of a robust anti-Communist phalanx. The natural law-revival in Austria dovetailed smoothly with broader preoccupations of Cold War theory in the Western hemisphere, in particular, with its critique of potentially totalitarian mass democracy and of positivist relativism. The postwar denigration of Kelsenian legal positivism, accusing it of having caused the crisis of values that made the rise of National Socialism possible, held together an otherwise divergent set of thinkers: conservative metaphysicians and critics of scientism and state omnipotence, such as Voegelin; members of the Catholic resistance in Austria; as well as intellectual fellow-travellers of Nazism who were eager to cover over their recent past. Hans Kelsen never ceased to re-elaborate his theoretical framework, but he did not heed the suggestion made by either Alfred Verdross in 1930 or by Balduin Schwarz, the Salzburg dean, in 1967 that he should abandon the formalist design and premise of his system, the basic norm, although he substantially refashioned its character.100 Natural law remained Kelsen’s bête noire, he reiterated his ardent criticism of natural law until 1973, the year of his death.101 The Austrian Constitution of 1920, whose main architect was Kelsen, and which was re-enacted in 1945, ­excludes any reference to natural law. Its first article reads: “Austria is a democratic republic. Its law derives from the people.”

100 In his last major work, the General Theory of Norms [1979], trans. Michael Hartney, (­ Oxford: Oxford University Press, 1991), Kelsen extended his contention that norms are postulated and established by volition from the domain of legal norms to all norms, ­(Wiederin, “Das Spätwerk Kelsens,” 356). Kelsen replaced his previous definition of the norm as a hypothetical judgment about the oughtness (Gesolltsein) of an order of organised coercion with the concept of norms as (fictional or imputed) imperatives (Befehle); on the problems of delegation and derogation this elicited as well as on Kelsen’s critique of the principle of non-contradiction see Wiederin, “Das Spätwerk Kelsens,” 358–359. Wiederin connects this rejection of the principle of non-contradiction to Kelsen’s curtailing of natural-legal elements from his own theory. The principle of non-contradiction provides a filter that enables legal theory to dispute the rightfulness of laws despite their lawful enactment (Wiederin, “Das Spätwerk Kelsens,” 362–363) which is no less of a natural legalist argument than the denial of the fact that ethically reprehensible law can nevertheless be positively valid law. 101 Wiederin, “Das Spätwerk Kelsens,” 363.

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Rudolf, Walter. Völkerrecht und deutsches Recht. Theoretische und dogmatische Untersuchungen über die Anwendung völkerrechtlicher Normen in der Bundesrepublik Deutschland, (Tübingen: Mohr Siebeck, 1967). Scattola, Merio. “Eine innerkonfessionelle Debatte: Wie die Spanische Spätscholastik die politische Theorie des Mittelalters mit Hilfe des Aristoteles revidierte.” In Politischer Aristotelismus und Religion in Mittelalter und Früher Neuzeit, edited by Alexander Fidora, Johannes Fried, Matthias Lutz-Bachmann, and Luise Schorn-Schütte, 139–162, (Berlin: Akademie Verlag, 2007). Scheuerman, William. “Professor Kelsen’s Amazing Disappearing Act.” In Émigré Scholars and the Genesis of International Relations: A European Discipline in America?, edited by Felix Rösch, 81–102, (Houndsmills, Basingstoke: Palgrave-Macmillan, 2014). Schwarz, Balduin. “Laudatio.” In Philosophie huldigt dem Recht. Hans Kelsen, Adolf J. Merkl. Alfred Verdross. Ehrendoktoren der Universität Salzburg. Erinnerungsband zum 1. Juni 1967, 33–47, (Vienna–Frankfurt am Main–Zurich: Europa Verlag, 1968). Shapin, Steven. The Scientific Revolution, (Chicago: University of Chicago Press, 1996). Simma, Bruno. “The Contribution of AV to the Theory of International Law.” European Journal of International Law 1995 6: 33–54. Staudigl-Ciechowicz, Kamila, and Thomas Olechowski. “Allgemeines und österreichisches Staatsrecht, Verwaltungslehre und österreichisches Verwaltungsrecht – Alfred Verdroß-Droßberg.” In Die Wiener Rechts- und Staatswissenschaftliche Fakultät 1918–1938, edited by Thomas Olechowski, Tamara Ehs, and Kamila StaudiglCiechowicz, 533–538, (Göttingen: V&R unipress, 2014). Stolleis, Michael. Recht im Unrecht: Studien zur Rechtsgeschichte des Nationalsozialismus. Mit einem neuen Nachwort, (Frankfurt am Main: Suhrkamp, 1994). Stolleis, Michael, and Lorraine Daston, eds. Natural Law and the Laws of Nature in Early Modern Europe: Jurisprudence, Theology, Moral and Natural Philosophy, (Burlington: Ashgate, 2008). Strauss, Leo. Natural Right and History, (Chicago: Chicago University Press, 1953). Tálos, Emmerich. Das austrofaschistische Herrschaftssystem: Österreich 1933–1938, 2nd edition, (Vienna–Berlin: Lit, 2013). Thorpe, Julie. Pan-Germanism and the Austrofascist State, 1933–38, (Manchester. ­Manchester University Press, 2011). Topitsch, Ernst. “Das Problem des Naturrechts.” Wiener Zeitschrift für Philosophie, ­Psychologie, Pädagogik 3, no. 1 (1950): 121–140. Topitsch, Ernst. Vom Ursprung und Ende der Metaphysik. Eine Studie zur Weltanschauungskritik, (Vienna: Springer, 1958). Topitsch, Ernst. Hans Kelsen. Aufsätze zur Ideologiekritik, edited and introduced by Ernst Topitsch, (Neuwied–Berlin: Luchterhand, 1964). Topitsch, Ernst. Die Sozialphilosophie Hegels als Heilslehre und Herrschaftsideologie. Hans Albert zum 60. Geburtstag, 2nd edition, (Munich: Piper, 1981).

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Topitsch, Ernst. Erkenntnis und Illusion. Grundstrukturen unserer Weltauffassung, 2nd edition, (Tübingen: Mohr Siebeck, 1988). Topitsch, Ernst. “Naturrecht im Wandel des Jahrhunderts.” Aufklärung und Kritik 1 (1994): 1–13. Topitsch, Ernst. “Die ‘Himmelsstadt’ des Jürgen Habermas. Ein Kapitel zur politischen Theologie.” In Im Irrgarten der Zeitgeschichte: Ausgewählte Aufsätze, edited by Ernst Topitsch, 93–130, (Berlin: Duncker & Humblot, 2003). Vec, Miloš. “Warten auf die Barbaren. Angst vor dem Fremden: Marc Pauka schreibt die Begriffsgeschichte des ‘zivilisierten Staates’ im Völkerrecht.” Frankfurter Allgemeine Zeitung, August 15, 2013. Verdross, Alfred. “Das Problem des freien Ermessens und die Freirechtsbewegung.” Österreichische Zeitschrift für öffentliches Recht 1 (1914): 616–644. Verdross, Alfred. Die völkerrechtswidrige Handlung und der Strafanspruch der Staaten, (Berlin: Engelmann, 1920). Verdross, Alfred. Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, (Tübingen: Mohr Siebeck, 1923). Verdross, Alfred. “Vierhundert Jahre Völkerrechtswissenschaft.” Stimmen der Zeit. Monatsschrift für das Geistesleben der Gegenwart 125 (1933): 36–41. Verdross, Alfred. “Forbidden Treaties in International Law: A Comment on Professor Garner’s Report on ‘The Law of Treaties’.” The American Journal of International Law 31 no. 4 (1937): 571–577. Verdroß, Alfred (“Univ. Prof. Dr. Alfred Verdroß (Wien)”). [Selbstdarstellung]. In Österreichische Rechts- und Staatswissenschaften der Gegenwart in Selbstdarstellungen, edited by Niklaus Grass, 20–210, (Innsbruck: Universitätsverlag Wagner, 1952). Verdross, Alfred. Abendländische Rechtsphilosophie. Ihre Grundlagen und Hauptprobleme in geschichtlicher Schau, (Vienna: Springer, 1958). Verdross, Alfred. “Der Einfluß der Naturrechtslehre auf Theorie und Praxis der internationalen Beziehungen.” In Das Naturrecht in der politischen Theorie, edited by ­Franz-Martin Schmölz, 106–116, (Vienna: Springer, 1963). Verdross, Alfred. “Zwei empirische Begründungen naturrechtlicher Normen: Eine vergleichende Untersuchung der Ermittlung des Naturrechts durch Johannes Messner und der sozialen Moral durch Viktor Kraft.” In Ordnung im sozialen Wandel: Festschrift für Johannes Messner zum 85. Geburtstag, 147–154, (Berlin: Duncker & ­Humblot, 1976). Verdross, Alfred. “Die gesellschaftswissenschaftlichen Grundlagen der Völkerrechtstheorie.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, edited by Hans R. Klecatsky, René Marcic, and Herbert Schambeck, 1707–1720, (Stuttgart: Franz Steiner Verlag, 2010a) [1924/1925]. Verdross, Alfred. “Die Rechtstheorie Hans Kelsen’s.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, edited by Hans R. Klecatsky, René Marcic, and Herbert Schambeck, 1063–1069, (Stuttgart: Franz ­Steiner Verlag, 2010b) [1930].

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Verdross, Alfred. “Die Erneuerung der materialen Rechtsphilosophie.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, ­edited by Hans R. Klecatsky, René Marcic, and Herbert Schambeck, 601–621, (­Stuttgart: Franz Steiner Verlag, 2010c) [1957]. Verdross, Alfred. “Primäres Naturrecht, sekundäres Naturrecht und positives Recht in der christlichen Rechtsphilosophie.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, edited by Hans R. Klecatsky, René Marcic, and Herbert Schambeck, 643–650, (Stuttgart: Franz Steiner Verlag, 2010d) [1959]. Verdross, Alfred. “Dynamisches Naturrecht.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, edited by Hans R. Klecatsky, René Marcic, and Herbert Schambeck, 765–770, (Stuttgart: Franz Steiner Verlag, 2010e) [1965]. Voegelin, Erich. “Reine Rechtslehre und Staatslehre.” Zeitschrift für öffentliches Recht 4 (1924): 80–131. Voegelin, Erich. “Die Verfassungslehre von Carl Schmitt: Versuch einer konstruktiven Analyse ihrer staatlichen Prinzipien.” Zeitschrift für Öffentliches Recht 11 (1931): 89–109. Voegelin, Eric. The Collected Works of Eric Voegelin 4: The Authoritarian State: An Essay on the Problem of the Austrian State, edited by Gilbert Weiss, translated by Ruth Hein, (Columbia: University of Missouri Press, 1999a) [1936]. Voegelin, Eric. “The German University and the Order of German Society: A Reconsideration of the Nazi Era.” In The Collected Works of Eric Voegelin 12: Published Essays, 1966–1985, edited by Ellis Sandoz, 1–35, (Baton Rouge–London: Louisiana University Press, 1999b) [1966]. Voegelin, Eric. Modernity without Restraint. The Political Religions; The New Science of Politics; and Science, Politics, and Gnosticism, edited by Manfred Nenningsen, (New York: Columbia University Press, 2000). Vollnhals, Clemens. “Der Totalitarismusbegriff im Wandel des 20. Jahrhunderts.” Bohemia 49, no. 2 (2009): 385–398. Walter, Robert.“Die Rechtslehren von Kelsen und Verdroß unter besonderer Berücksichtigung des Völkerrechts.” In Hans Kelsen und das Völkerrecht, edited by Robert Walter, Clemens Jabloner, and Klaus Zeleny, 36–49, (Vienna: Manz, 2004). Walter, Robert, Clemens Jabloner, and Klaus Zeleny, eds. Der Kreis um Hans Kelsen. Die Anfangsjahre der Reinen Rechtslehre, (Vienna: Manz, 2008). Weiss, Gilbert. “Repräsentative Menschlichkeit. Hans Kelsen versus Eric Voegelin in Salzburg.” In Verdrängter Humanismus – verzögerte Aufklärung VI: Philosophie in Österreich 1951–2000, edited by Michael Benedikt, Reinhold Knoll, Franz Schwediauer, and Cornelius Zehetner, 203–214, (Vienna: Facultas, 1962). Wiederin, Ewald. “Das Spätwerk Kelsens.” In Hans Kelsen: Leben – Werk – Wirksamkeit, edited by Robert Walter, Werner Ogris, and Thomas Olechowski, 351–365, (Vienna: Manz, 2009).

Chapter 13

Against Natural Law: The Political Implications of Kelsen’s Legal Positivism Sara Lagi Abstract In 1955, Hans Kelsen published an essay, entitled Foundations of Democracy, where he defined his conception of democracy through a critique of the democratic theology of Christian inspiration, represented by three prominent thinkers – Emil Brunner, Karl Niebhur and Jacques Maritain who, for Kelsen, embodied the resurgence of a neojusnaturalism. In response to their theories, posing democracy as a problem of justice and conformity to “superior, universal values”, Kelsen elaborated and defended the interconnectedness between relativism, freedom and a positivist conception of law as the central components of modern, parliamentary democratic systems based upon individual responsibility and the respect for fundamental liberties.

1 Introduction In this chapter, I will address Kelsen’s critique of the Natural Law tradition through the perspective of the history of political thought. This means, therefore, that I will seek to explain the political connotation of Kelsen’s systematic and coherent refusal of any form of natural law, while devoting particular ­attention to the interconnections between such refusal and his theory of democracy. From this perspective, I decided to focus upon Kelsen’s final relevant work devoted to political theory, entitled “Foundations of Democracy”, published in the journal, Ethics, in 1955. This decision to concentrate upon Kelsen’s “American work”, derives from the characterization of this substantial article as the “summa” of his political theory of modern and representative democracy.1 The chapter will be structured into two main sections. The first part will be focused on Kelsen’s critique of Natural Law included in the “Foundations of Democracy”, with a specific concentration, within this critique, upon his 1 Hans Kelsen, “Foundations of Democracy”, Ethics 66, no. 1 (1955): 1–101.

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critical engagement with the so-called “democratic theology”,2 represented by three prominent thinkers: Emil Brunner (1889–1966), Karl Reinhold Niebhur (1892–1971) and Jacques Maritain (1882–1973). In the second part, I will seek to delineate and highlight the interconnections between this aspect of the ­critique and Kelsen’s idea of modern democracy and democratic spirit. The “Foundations of Democracy” – written and published when Kelsen ­already lived in the u.s.a. – represents his last, significant contribution to ­political theory and theory of democracy, a contribution in which he investigated the essence and the ultimate value of democracy. Thus, despite the predominant categorization of this work as distinctly “American”, I think that a perfect continuity does exist between the “Foundations of Democracy” and the work which Kelsen undertook, while in academic positions in Universities in pre-wwii Europe. In the two editions of Vom Wesen und Wert der Demokratie (Essence and Value of Democracy 1920 and 1929) as well as in the “Foundations of Democracy”, Kelsen addressed the meaning of political representation, the persisting divide between “rulers” and “ruled”, the split between “ideal” and “real” democracy, and that between democracy and autocracy, the protection and guarantee of fundamental rights as a prerequisite of every democratic system and the idea of relativism and tolerance as central components of modern democracy.3 From the interpretative framework of the history of political thought, Kelsen’s theory of democracy, as it took shape and developed between the 1920s and the 1950s, was realistic in the sense that he sought to explain the split between political reality and ideology;4 it was procedural because he considered real democracy as a means by which political decisions could be made; it was liberal and pluralistic from the enduring concern to ensure the protection of minorities; tolerant and relativistic from the refusal of every form of ideological, political, religious absolutism.5 If we take into consideration the “American work” on the “Foundations of Democracy”, we can immediately observe 2 This is the term Kelsen used in his “Foundations of Democracy” to indicate Maritain, Niebhur and Brunner. 3 Hans Kelsen, Vom Wesen und Wert der Demokratie, (Tuebingen: J.B.C. Mohr, 1920), 3–38; Hans Kelsen, Vom Wesen und Wert der Demokratie, Zweite, umgearbeitete Auflage, (Tuebingen: J.B.C. Mohr, 1929), vii, 1–119. 4 Here, I am using the term “realistic” with a deliberate reference to the late nineteenth century Italian tradition of realism, embodied and promoted by authors such as Gaetano Mosca, Vilfredo Pareto, and the German, but naturalized Italian, Robert Michels. Kelsen displays evident familiarity with these prominent thinkers, as is indicated by the references to, and quotations from, their work included in both editions of Von Wesen und Wert der Demokratie. 5 Mauro Barberis, “Introduzione”, in Hans Kelsen, La democrazia, (Bologna: Il Mulino, 1998, Italian Translation of Kelsen, Vom Wesen und Wert der Demokratie, 1929) 23.

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that the idea of tolerance and relativism as central characteristics of modern democracy is strongly tied to Kelsen’s discourse on and against natural law. In the first edition of Vom Wesen und Wert der Demokratie, Kelsen criticized Lenin and Bolshevism, in the second edition of the same work he opposed the proto-Fascist reforms of democratic parliamentary and electoral systems. In the “Foundations of Democracy” he continued to attack the Bolshevik-Soviet system, which he considered the most serious threat to modern democracy, while analysing thinkers he personally considered a type of twentieth century version of the Natural Law Tradition: the Christian theologians Emil Brunner, Karl Niebhur and Jacques Maritain.6 Even though these three prominent intellectuals belonged to different Christian denominations, all of them shared, according to Kelsen, the same faith in the principle of justice and the same mistrust toward positive law.7 Here, I exclusively focus on Kelsen’s interpretation of these three authors’ theory of democracy and justice in order to show how and to what extent such interpretation reflects Kelsen’s opposition to natural law and his idea of d­ emocracy. From the viewpoint of the history of political thought, the ­“Foundations of Democracy” was published at period characterized in the U.S (but also beyond it) by an intense debate about the nature of post-wwii democracy, which was inextricably connected to the determination of the moral and p ­ olitical responsibilities for the emergence and development of totalitarianism and the Holocaust.8 In their interventions, Brunner, Niebhur and Maritain ­attributed moral and political responsibilities to the combination of secularism and rationalistic positivism for the emergence of the phenomenon of totalitarianism. For, secularism and positivism entailed the recognition and promulgation of an extreme relativism, which effectively entailed the ­rejection of any principle of justice.9 6 Kelsen, “Foundations of Democracy”, 40–62. 7 Despite this common Christian origin of these theories of natural law, Brunner and Niebhur were both Protestant, with an overtly critical attitude towards Catholicism and the Catholic tradition of Natural Law, whereas Maritain was Catholic. 8 Barberis, “Introduzione”, 23 ff. 9 Emil Brunner, Gerechtigkeit: Eine Lehre von der Grundgesetzen der Gesellschaftsordnung, (Zürich: Zwingli-Verlag, 1943); Karl R. Niebhur, The Children of Light and Children of Darkness: A Vindication of Democracy and a Critique of its Traditional Defense, (New York: Charles Scribner’s Sons 1950); Jacques Maritain, Christianisme et democratie, (Paris: Paul Hartmann, 1947). On the development of Brunner’s protestant theology, see David A. Gilland, Law and Gospel in Emil Brunner’s Earlier Dialectical Theology, (London: Bloomsbury, 2013). On the wider question of the conception of natural law in Brunner, see Ivar H. Pöhl, Das Problem des Naturrechtes bei Emil Brunner, (Zürich-Stuttgart: Zwingli Verlag, 1963). On the question of the relationship between Niebhur’s protestant theology and the conception of human ­nature and history, see Scott R. Erwin, The Theological Vision of Reinhold Niebuhr’s “The Irony of

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To Kelsen, Brunner, Niebhur and Maritain perfectly embodied the Christian natural law tradition applied to politics, and more, particularly, democracy. Kelsen wrote: I intend to present in the following a critical analysis of the main ideas of these writers, not only in order to demonstrate that Christian theology, too, can justify democracy only as a relative value, but also – and in the first place – to examine the claim of theology that it furnishes a foundation for democracy which it attempts to verify by showing that there is an essential connection between democracy and Christian religion.10 Under the “guise” of a neutral-scientific discourse, Kelsen sought to give a political response to Brunner, Niebhur and Maritain in defense of the continued viability and legitimacy of a positivistic and relativistic conception of democracy. 2

Against Christian Natural Law: Kelsen’s Critique of Brunner, Niebhur and Maritain

The first of the three authors Kelsen subjected to critical analysis was the Swiss Protestant Theologian Emil Brunner whose Gerechtigkeit: Eine Lehre von der Grundgesetzen der Gesellschaftsordnung, published in 1943, was orientated by the political objective to establish the superiority of a theory of Christian natural law in comparison to theories of positive law. Kelsen presented Brunners’ conception of justice as one composed of two stages. First, the vague sense of, and demand for, justice which is, to Brunner, present throughout history. It is the systemization of this vague sense, through the application of Christian theology which transforms it into a transhistorical

10

American History”: “In the Battle and Above It”, (Oxford: Oxford University Press, 2013). On the genesis and development of the wider protestant theological movement in which Niebuhr participated, see Heather A. Warren, Theologians of a New World Order: Rheinhold Niebuhr and the Christian Realists, 1920–1948, (Oxford: Oxford University Press, 1997). On the ­connection between Maritain’s interpretation of Catholic theology and politics, see Guillaume de Thieulloy, Le chevalier de l’absolu: Jacques Maritain entre mystique et politique, (Paris: Gallimard, 2005). On the connection between Maritain’s Catholic theology and the conception of modernity, see Michel Bressoulette and René Mougel, eds., Jacques Maritain face à la modernité: Enjeux d’une approche philosophique, (Toulouse: Presses Universitaires du Mirail, 1998). On the position of Maritain in the wider renewal of Catholic thought, in France, originating in the 1930s, see Charles Coutel and Olivier Rota, eds., Deux personnalités en prise avec la modernité: Jacques Maritain et Emmanuel Mounier, (Arras: Artois Presses Université, 2012). Kelsen, “Foundations of Democracy”, 41.

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or eternal principle.11 This, in turn, constitutes the Christian tradition whose collapse and marginalization is, for Brunner, to be located in the nineteenth century with the ascendency of a juridical conception of justice. Kelsen ­inserted this significant quotation from Gerechtigkeit: Eine Lehre von der Grundgesetzen der Gesellschaftsordnung: [It was] the positivism of the nineteenth century, with its denial of the metaphysical and superhuman, which dissolved the idea of justice by proclaiming the relativity of all views of justice. Thereby the idea of j­ustice was stripped of all divine dignity and law abandoned to the v­ agaries of human will. The view that justice is of its nature relative b­ ecame the ­dogma of the jurists.12 After addressing the substantial difference between natural and positive law, Brunner identified natural law as a supreme criterion for politics and positive law. According to Brunner, natural law included the Christian idea of justice which entailed the preservation of individual independence within a system under the rule of God. Submission to God was freedom, and every freedom, so Brunner stated, was derived from the order of divine natural law.13 In response to Brunner, Kelsen observed that conceiving natural law as a criterion for positive law was contradictory for he indicated that the notion of a natural law, as an immutable law, confronted the difficulty of furnishing an eternally e­ nduring criterion for human and social reality which was also subject to continuous change.14 The introduction of contradiction, and, thus, incoherence in the conception of a natural law was accompanied by a critical analysis of Brunner’s idea of freedom. Kelsen considered that all those freedoms which Brunner allegedly deduced from the divine order of creation had to be correctly considered as negative freedoms, constituting restrictions of the government.15 From this classification, Kelsen then proceeds to indicate that the origin of law, in this conception of natural law, is unable to articulate a notion of positive freedom – the “democratic freedom”. For Kelsen, this incapacity and indifference is to be attributed to Brunner’s understanding of democracy, which only acknowledged democracy to exist when the laws which it promulgated and upheld 11

Ibid. Kelsen was quoting from Emil Brunner, Justice and Social Order, (London and ­ edhill: Lutterworth Press, Harper and Bros., 1945), the English translation of Brunner, R Gerechtigkeit: Eine Lehre von der Grundgesetzen der Gesellschaftsordnung, 1943, 15 ff. 12 Brunner, Justice and Social Order, 15, in Kelsen, “Foundations of Democracy”, 41. 13 Kelsen, “Foundations of Democracy”, 50 ff. 14 Ibid. 15 Ibid., 53.

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were the expression and application of principles of justice.16 Kelsen quoted from Gerechtigkeit: Eine Lehre von der Grundgesetzen der Gesellschaftsordnung: The so-called representative of the people should not decide what their electors want, but what is right. And this is precisely what the truly democratic citizens expect of them. The same is true of the government. It has not to do with what the people want but what is right. In actual fact it ought not even to do what the legislative body wants; it has to do justice, to do the right thing. In a genuine democracy with a responsible government, the government does not first consider the will of the people, but the weal of the people, justice.17 For Kelsen, such a definition of democracy was not significantly different from that of Soviet doctrine in which true democracy was a government for the good of the people rather than by the people. This indication of this parallel enabled Kelsen to proceed to demonstrate that: “the only point in which we are interested here is the fact that this doctrine – presented as a result of theological considerations – is neither a theoretical basis nor a political vindication of democracy. It may rather serve anti-democratic tendencies”.18 The second Christian thinker whom Kelsen subjected to critique was Karl Reinhold Niebhur, and in particular, his Children of Light and Children of Darkness. The American Protestant theologian promoted the idea that post-war politics needed to be refounded upon the basis of justice; and he shared, with Brunner, a deep mistrust toward positivism (both legal and political) but, in contrast to Brunner, his form of Protestant theology refused to accord to natural law the status of an absolute value. For, Niebhur’s theology consciously a­ ccepts its presence within a plurality of other approaches.19 Hence, natural law, while comprised of purer principles than those of positive law, because of its ultimate source in Christian religion, is accompanied by the recognition that there is no historical reality, whether it be church or government, whether it be the reason of wise men or specialists, which is not involved in the flux and relativity of human existence; which is not subject to error and sin, and which is not tempted to exaggerate its errors and sins when they are made immune to criticism.20 16 Ibid. 17 Brunner, Justice and Social Order, 191, in Kelsen, “Foundations of Democracy”, 53. 18 Kelsen, “Foundations of Democracy”, 53. 19 Ibid., 55. 20 Niebhur, The Children of Light and Children of Darkness: A Vindication of Democracy and a Critique of its Traditional Defense, 91, in Kelsen, “Foundations of Democracy”, 57.

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The distinctive theological approach of Niebhur, for Kelsen, is undermined rather that strengthened by the recognition of relativism. The effect, for Kelsen, is a theology in which: Niebhur carefully avoids referring to an absolute justice. He does not speak of the justice of natural law in its relation to positive law in terms of superlatives. He says only that the principles of natural law are more immutable and purer than those embodied in the obviously relative positive laws. But if natural law is only more immutable than positive law and hence mutable and not absolutely immutable then it is relative too. And if both are mutable then the question arises why the one is more and the other less mutable and pure; and to this question there is no answer in a relativistic philosophy of justice such as that presented by Niebhur.21 In Niebhur’s theory Kelsen identified a fundamental incoherence arising from a theological juxtaposition of the conception of a natural law as a set of purer principles or criteria which underlie positive law and the refusal of a conception of absolute justice; a juxtaposition which – in Kelsen’s opinion – led to a “relativistic jusnaturalism” which was contradictory per se. For Kelsen: If the only principles of justice or natural law known by man […] are those expressed in historical statements, and if these statements are subject to amendment because subject to error and sin […] then there is no difference between Niebhur’s philosophy and the relativistic moral theory which he rejects for the reason that it does not appeal to natural law as a plausible criterion for positive law.22 This indistinction between Niebhur’s theology and relativism, revealed by Kelsen’s critique, was the logical consequence of a political theory incapable of relinquishing the presupposition that systems of positive law required a “superior” principle or criterion for both their legitimacy and effectiveness.23 As Kelsen emphasized, Niebhur’s theological project extended to establishing a direct connection between tolerance and religion, predicated upon the presumption that if tolerance was one of the central components of democracy, humility was the true point of contact between religion and democracy. In response, Kelsen observed that, if a government adopted a policy of tolerance 21 Kelsen, “Foundations of Democracy”, 58. 22 Ibid. 23 Ibid., 58 ff.

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toward other religions, this decision was not determined by the religious belief in the absolute but by a rational wish to maintain peace. Kelsen, therefore, reveals Niebhur’s attempt to harmonize democracy, religion and tolerance to be one which seeks to elaborate a form of religious relativism anchored in Christianity. Thus, Kelsen’s critique of Niebhur’s democratic theology was double: on the one hand, he considered Niebhur’s theology to represent a political theory which was an “updated”, post-war version of natural law tradition, on the other hand, he rejected the attempt to establish and justify tolerance on a theological foundation because religion, which inevitably expressed absolute values, was incompatible with the spirit of tolerance which was intrinsically relativistic and anti-metaphysical.24 Although the French Catholic, Jacques Maritain, differed in both confessional and political development from Brunner and Niebhur, there was an ­affinity, particularly in relation to Niebhur, through the common orientation to demonstrate the necessary interrelation between Christianity and democracy. In his Christianisme et democratie (Christianity and Democracy) Maritain presented a theological critique of modern democracy, based on the principles of liberalism and secularism. The critique, which characterizes this form of ­democracy as “bourgeois” and “God-less”, situates democracy detached from God, as the precursor to the emergence and development of totalitarian ­regimes. The theological response of the Catholic Maritain, as with the Protestant Niebhur, was to reassert a necessary, intrinsic relation between the principles of Christian religion and democracy. For Maritain, Christianity inevitably leads beyond bourgeois, atheistic democracy to real democracy.25 Jacques Maritain was, for Kelsen, the exemplary representative, from ­Catholicism, of the so-called post-war democratic theology. Kelsen’s approach is, therefore, also distinct from that adopted in relation to Brunner and Niebhur. Thus, Maritain’s acknowledgement of the indifference of Christianity “as a religious belief” to the realm of “political life” – the separation, introduced by Christ between “the things that belong to Caesar and the things that belong to God”26 – is presented as the initial obstacle to the derivation of an essential connection between democracy and Christianity.27 This detachment is continued, for Maritain, rather than resolved by the emergence and actions of the Catholic Church.28 Thus, Maritain proceeds to 24 Ibid., 58–59. 25 Ibid., 62–65. 26 Ibid., 63. 27 Ibid. 28 Ibid.

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seek the connection between Catholic Christianity and democracy beyond “Christianity as a religious creed and a way to eternal life”.29 It is these forms of connection which Kelsen then subjects to critical ­examination. The purported connection based upon “Christianity as a historic energy at work in the world”, and “the ferment of the social and political life of the people and as bearer of the temporal hope of the man”, indicates its ­internal contradiction.30 For, this “historical energy” of Christianity depends upon its explicit formulation as a “religious creed” in order for it to have the capacity to orient political life. However, this political orientation is already denied by the preceding separation between religious belief and political life. The purported connection between democracy and Catholic Christianity predicated upon the notion of the superior efficiency conferred upon a democracy which is Christian is also held to be untenable. This is belied, for Kelsen, by the connection between the pagan religions and the democracy of the Ancient world and the contemporary existence of democracies in non-Christian countries. The demonstration that these purported connections are inconsistent with Maritan’s ­position then reveals the central ground for Maritain’s connection to be a theory of natural law based upon: a relationship between democracy and certain moral-political principles which he supposes to have the character of natural law and which he – without sufficient reason – considers to be in harmony, with the evangelical law (“loi évangélique”) as the specific Christian morality.31 Kelsen then proceeds to analyse the purported connection between d­ emocracy and evangelical law. In this analysis, Kelsen subjects Maritain’s theory to critical questioning predicated upon its capacity to demonstrate a passage ­between the real (democracy) and the ideal (evangelical law). For Kelsen, Christianity is distinguished from other religious systems by a single principle: love – “the new principle of Christian justice”.32 This distinctive principle is, however, incapable of establishing the passage either to democracy or to a system of law as a system of constraint. It was hardly possible to derive a pro-democracy ­attitude from the Gospel, because of the fact that the teaching of Christ did not refer to any form of government. As Kelsen emphasized, the idea of “all men

29 Ibid. 30 Ibid. 31 Ibid., 64. 32 Ibid.

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as children of God and created in His image” contained in the Gospel was not intrinsically democratic.33 The attempt, in place of the principle of love, to establish the passage ­between democracy and the evangelical law rests upon Maritain’s presentation, for Kelsen, of “the idea that men are equal before God, although God has ­created them as different personalities, because all their differences are irrelevant in view of the fundamental difference which exists in the relation between men and God”.34 This principle is incapable of distinguishing between democracy and autocracy, because: Democratic equality, on the one hand, implies the equality that is supposed to exist in relation between those who exercise the government and those who are subject to that government, because the governed partici­pate in the government, because democracy, as political self-­ determination means the identity of the ruled with the rulers. Hence, there is an essential difference between the democratic and the evangelical equality.35 Maritain sought to “revitalize” democracy as a political system through its integral presence within a doctrine composed of Christian principles and, as Kelsen stated, such effort implied the recognition of a basic dichotomy between “true” and “false” democracy. In Christianisme et democratie, Maritain considered a clear connection to exist between relativism and parliamentary-representative democracy and, in its essential atheism, to have repudiated the true foundation of democracy. In order to become a “true” democracy, democracy had to internalize the principles of Christianity, and, thus, to transform itself into a Christian democracy.36 For Kelsen, the underlying form of argumentation is not substantially different from one of its central antagonists – the Soviet doctrine: this is a device somewhat similar to that used by the Soviet doctrine of democracy which also declares that in order to become a real democracy, the merely formal bourgeois democracy must turn into a democracy entirely human. The difference consists in the fact that according to the Soviet doctrine democracy becomes entirely human not by becoming Christian but by becoming socialist.37 33 Ibid. 34 Ibid., 66. 35 Ibid. 36 Ibid., 63. 37 Ibid.

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For Kelsen, Brunner, Niebhur and Maritain were not only three perfect r­epresentatives of democratic theology and, more generally, of a post-war neo-jusnaturalism, but also three authors who, in different ways, posed the problem of democracy in the same manner: as a question of justice. This was combined with the identification of positivism (both legal and political) and relativism as the two sources which enable the emergence of totalitarianism. 3

Kelsen and the Positivist Defence of Modern Democracy

The pertinence of the Kelsenian critique of Niebhur, Brunner and Maritain, from the perspective of the history of political thought, concerns the wider interpretative position of Kelsen in relation to these three prominent thinkers. Within the Kelsenian framework, Brunner, Maritain and Niebhur are situated as natural-law oriented theorists whose consideration of politics, social reality and historic events, such as totalitarianism, is undertaken by theoretical reflection informed by a specifically Christian conception of natural law. The Kelsenian critique of Brunner, Niebhur and Maritain is elaborated at two ­levels: at the first level, the critique seeks to demonstrate the contradictions and logical incoherence of the overarching conception of politics. This is particularly evident in the critical approach to Niebhur and “relativistic jusnaturalism”. At the second level, the critique is centred upon the demonstration of the dependence of the principle of Christian justice, as the basis for the refoundation of the post-war democratic political system, upon the faith in an absolute principle – natural law – which itself is the reflection of a wider absolutist personality. This personality, and its attendant philosophical absolutism, is counterposed to “philosophical relativism”: Philosophical absolutism is the metaphysical view that there is an absolute reality, i.e., a reality that exists independently of human cognition. Hence its existence is beyond space and time to which human cognition is restricted. Philosophical relativism, on the other hand, advocates the empirical doctrine that reality exits only within human cognition […] Absolute existence is identical with absolute authority as the source of absolute values. The personification of the absolute, its presentation as the omnipotent and absolutely just creator of the universe, whose will is the law of the nature as well as of man, is the inevitable consequence of philosophical absolutism. […] This metaphysics has the tendency to identify truth, that is, conformity with reality, with justice, meaning conformity with a value.38 38

Ibid., 16–17.

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Thus, the profound implications of Kelsen’s critique of Brunner, Niebhur and Maritain’s democratic theology become even more evident: the presentation of the legitimacy of democracy as dependent upon conformity to Christian natural law exemplifies philosophical absolutism. The enduring influence of Neo-Kantianism, in particular that of Hermann Cohen, upon the character of this Kelsenian critique is clear in the definition of philosophical absolutism as a belief in an absolute existence independent of human knowledge. The further definition of this Neo-Kantian influence is, however, not the central focus of this analysis of Kelsenian critique but, rather, the relationship which the critique establishes between philosophical absolutism and political ­absolutism. From a political perspective, according to Kelsen, the connection emerges through the appropriation, by autocratic political systems, of the previously distinct development of theories of philosophical absolutism. In this appropriation, these theories are often utilized as an “ideological instrument” whereby philosophical absolutism becomes the theory through which political ­absolutism is justified. Kelsen emphasizes that the autocrat becomes accustomed to justify his absolute power by means of the assertion of the existence of an a­ bsolute truth or by the assertion that his actions are guided by the good – itself absolute – for his people.39 The Kelsenian critique is effectively a meta-critique of Eric Voegelin’s New Science of Politics,40 in which the distinction between the two forms of political representation – “formal” and “existential” – reanimates the distinction between formal and substantial democracy. For Kelsen considers Voegelin’s work indicative of the wider disparagement, reflected in the work of Brunner, Niebhur and Maritain, of the “concept of democracy as the concept of government representing the people in a merely ‘constitutional’ sense”.41 Voegelin initiates the Kelsenian critique in which an intrinsic connection exists between two

39 40

Ibid., 4–6. See Eric Voegelin, The New Science of Politics, (Chicago: The University of Chicago Press, 1952). The extent of Kelsen’s critical engagement with Voegelin, his former student, has only recently been revealed by the posthumous publication of his detailed critique of the New Science. Hans Kelsen, A New Science of Politics, ed. E. Arnold, (Berlin: De Gruyter/Ontos Verlag, 2004) and Hans Kelsen, Secular Religion. A Polemic against the Misinterpretation of Modern Social Phislosophy. Science and Politics as “New Religions”, (Dortrecht: Springer, 2013); Nicoletta Bersier Ladavac, “La controversia di Hans Kelsen con le religioni secolari” (“Hans Kelsen’s controversy with secular religions”), Sociologia del Diritto 3 (2013): 141–147; Francesco Riccobono, “Kelsen e la religione” (“Kelsen and religion”), Rivista di filosofia del diritto, special issue (2013): 121–136. For a wider analysis of the relationship between Voegelin and Kelsen see also Lee Trepanier and Steven F. Mcguire, eds., Eric Voegelin and the Continental Tradition, (Missouri: Missouri University Press, 2011), 152 ff. 41 Voegelin, The New Science of Politics, 27 ff, in Kelsen, “Foundations of Democracy”, 14.

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antagonisms: “autocracy and democracy” and “philosophical absolutism and philosophical relativism”.42 Kelsen was firmly convinced that philosophical absolutism was the origin for those political theories and ideologies which sought to legitimize and support a particular form of government on the basis of values and principles considered absolute, true, objective and immutable.43 It was philosophical absolutism which, for Kelsen, indicated a fundamental analogy between Brunner’s and Maritain’s idea of democracy and that of the Soviet Doctrine: in both cases, the government was supposed to act in the name of a “superior value”, the role played by the people, and the role of representation, as the procedures to elect the rulers became irrelevant, of no importance.44 If, for the Kelsenian critique, philosophical absolutism is situated as the foundation of neo-jusnaturalism and democratic theology, philosophical relativism is presented as the basis for legal and political positivism. While Kelsen’s analysis of Brunner, Niebhur and Maritain specifically acknowledged that their orientation is towards democracy and against autocracy, the theoretical path toward a renewed and vibrant democratic system was not the right one because the theoretical foundations for the conception of democracy were ­revealed to arise from philosophical absolutism.45 The “Foundations of Democracy” can be considered to be a further exposition of the reflection upon, and defense of democracy, in the previous, interwar European writings. The Kelsenian conception of democracy is a method to enact political decisions in which the ruled are accorded the right, through a process of election, to select the rulers, in the form of representatives of ­political parties. In this sense, democracy, as a party democracy, (in contrast to direct democracy which Kelsen rejected), defines itself through procedures which imply rights and freedoms: democracy was a specific procedure presupposing liberalism. Democracy was meant to be a government by the people not a government in the name of the people or in the name of a superior value. It is exactly because democracy was to be a method rather than a content, namely, because, for Kelsen, a true democracy system establishes how to decide and not what to decide, that democracy’s philosophical attitude was intrinsically antiabsolutistic: it was relativist. Democracy, as a political system, according to Kelsen, was not an instrument in the service of any absolute truth or principle, 42 43 44 45

Kelsen, “Foundations of Democracy”, 14. Ibid., 6–10; 14–18. Ibid., 10–14. Ibid., 40–67.

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rather, it was orientated to the ideal of freedom, as the recognition of fundamental rights, among which were freedom of speech, intellectual freedoms, freedom of press, religious freedom etc.46 The further development of the interwar conception of democracy, indicates a degree of detachment, in the “Foundations of Democracy”, from its previous theoretical framework. For this essay, should be situated within the context of the debate on neo-cognitivism, which the journal Ethics, where Kelsen published his essay, was leading at that time. However, this detachment leaves unaffected the explicit attempt to reveal the inner relationship between philosophical relativism and philosophical absolutism, between autocracy and democracy. This revelation, and, in particular, the purported demonstration that political theories founded upon the idea of a natural law are forms of philosophical absolutism, is the Kelsenian defence of the essential connection between positivism, relativism and democracy. It responds to Brunner, Niebhur and Maritain and many others who held the combination of positivism, relativism and traditional liberal-democratic systems to be the origins for the emergence of totalitarian regimes. Kelsen’s position on and against those criticizing positivism, both juridical and political, and relativism becomes even more relevant and consistent with the essential connection between philosophical absolutism and autocracy, on the one hand, and philosophical relativism and democracy on the other. The Kelsenian insistence upon this intrinsic connection is simultaneously the assertion of the resilience and responsibility of human action within a procedural, party political democracy shaped by relativism. This is the Kelsenian response to the resurgence of natural law and its characterization of the connection between positivism, relativism and political democracy as inherently nihilistic: For many people are not able and not willing to accept the responsibility for the decision about the social value to be realized, especially in a situation in which their decision may have fatal consequences for their personal welfare. Therefore they try to shift it from their own conscience to an outside authority competent to tell them what is right and wrong, to answer the question: what is justice? […] this explains the steadily increasing intellectual movement directed against rationalistic positivism and relativism toward religious metaphysics and natural law so characteristic of our time. [And referring to Brunner, Niebhur, Maritain he added] Christian theology, leading this movement, offers a vindication of 46

Ibid., 40.

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democracy which promises to be more effective than the problematical, because conditional, justification implied in a merely scientific theory of legal and political positivism.47 Thus, Kelsen’s critique of natural law, exemplified by the “Foundations of Democracy”, contains a political theory whose defence of a democratic order is predicated upon the demonstration of the interconnectedness of individual responsibility and relativism. Bibliography Barberis, Mauro. “Introduzione”, in La democrazia, Hans Kelsen, (Bologna: Il Mulino, 1998), 7–39. Bersier Ladavac, Nicoletta. “La controversia di Hans Kelsen con le religioni secolari”. Sociologia del Diritto 3 (2013): 141–147. Bressoulette, Michel and René Mougel, eds. Jacques Maritain face à la modernité : Enjeux d’une approche philosophique, (Toulouse: Presses Universitaires du Mirail, 1998). Brunner, Emil. Gerechtigkeit: Eine Lehre von der Grundgesetzen der Gesellschaftsordnung, (Zürich: Zwingli-Verlag, 1943). Brunner, Emil. Justice and Social Order, (London and Redhill: Lutterworth Press, Harper and Bros., 1945). Coutel, Charles and Olivier Rota, eds. Deux personnalités en prise avec la modernité : Jacques Maritain et Emmanuel Mounier, (Arras: Artois Presses Université, 2012). Erwin, Scott R. The Theological Vision of Reinhold Niebuhr’s “The Irony of American History”: “In the Battle and Above It”, (Oxford: Oxford University Press, 2013). Gilland, David A. Law and Gospel in Emil Brunner’s Earlier Dialectical Theology, (London: Bloomsbury, 2013). Kelsen, Hans. Vom Wesen und Wert der Demokratie, (Tuebingen: J.B.C. Mohr, 1920). Kelsen, Hans. Vom Wesen und Wert der Demokratie, (Tuebingen: J.B.C. Mohr, 1929). Kelsen, Hans. “Foundations of Democracy”. Ethics 66, no. 1 (1955): 1–101. Kelsen, Hans. A New Science of Politics. Edited by Eckhart Arnold, (Berlin: De Gruyter/ Ontos Verlag, 2004). Kelsen, Hans. Secular Religion. A Polemic against the Misinterpretation of Modern Social Philosophy. Science and Politics as “New Religions”, (Dordrecht: Springer, 2013). Maritain, Jacques. Christianisme et democratie, (Paris: Paul Hartmann, 1947). Niebhur, Karl R. The Children of Light and Children of Darkness: A Vindication of Democracy and a Critique of its Traditional Defense, (New York: Charles Scribner’s Sons 1950). 47 Ibid.

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Pöhl, Ivar H. Das Problem des Naturrechtes bei Emil Brunner, (Zürich-Stuttgart: Zwingli Verlag, 1963). Riccobono, Francesco. “Kelsen e la religione”. Rivista di filosofia del diritto, special issue (2013): 121–136. Thieulloy, Guillaume de. Le chevalier de l’absolu: Jacques Maritain entre mystique et politique, (Paris: Gallimard, 2005). Trepanier, Lee and Steven F. Mcguire, eds. Eric Voegelin and the Continental Tradition, (Missouri: Missouri University Press, 2011). Voegelin, Eric, The New Science of Politics, (Chicago: The University of Chicago Press, 1952). Warren, Heather A. Theologians of a New World Order: Reinhold Niebuhr and the Christian Realists, 1920–1948, (Oxford: Oxford University Press, 1997).

Chapter 14

Hans Kelsen and Leo Strauss on Naturrecht and the Post-theological Wager Peter Gostmann Abstract This chapter analyzes the relationship between the paths of thought of Hans Kelsen and Leo Strauss through their respective positions concerning the tradition of natural law or natural right. With regard to Kelsen, the analysis concentrates, in particular, upon Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus (1928). In relation to Strauss, the analysis centres, in the main, upon the Walgreen Lectures of 1949, which formed the basis for Natural Right and History. This is combined with an outline of the central stages in the preceding development of Strauss’ thought, such as Philosophie und Gesetz (1935) and Persecution and the Art of Writing (1941). In order to establish an interpretative position outside the conflicting theoretical frameworks of Kelsen and Strauss, the chapter concludes by situating both approaches as post-theological variants of Pascal’s wager.

11 In 1931, Leo Strauss, at that time a staff member of the philosophical section of Akademie der Wissenschaft des Judentums (Academy of the science of Judaism) in Berlin, wrote a preface to a book he had only just begun to work on. The book, entitled The Political Philosophy of Hobbes,2 was first published in 1936. The preface of 1931 was not published with the book, and was never published separately during Strauss’ lifetime, as, even during its completion, he had not sought its publication. In a letter of 16th November 1931, addressed to Gerhard Krüger (whom Strauss had met in the 1920s in Martin Heidegger’s seminar in Marburg), in which he gives an account of the problems he was concerned with, he states that “as a side-line, I am writing a preface (not intended for 1 I wish to thank Peter Langford, Edge Hill University, for his very helpful comments. 2 Leo Strauss, The Political Philosophy of Hobbes. Its Basis and Its Genesis, (Oxford: Clarendon Press, 1936).

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­ ublication) in which I attempt to argue for the desideratum of Naturrecht, p and for its sake, I furthermore attempt to argue for the desideratum of a critical history of Naturrecht.”3 On the first pages of this preface (which has now been published, in the third volume of the German edition of Strauss’ collected works4) Strauss’ considerations are primary concerned with Hans Kelsen’s essay Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus (The fundamental philosophical principles of the natural law doctrine and of legal positivism), an elaboration of a lecture the Kant-Gesellschaft of Berlin had invited Kelsen to deliver, published in 1928.5 The tenor of Strauss’ examination of Kelsen’s essay, finds its condensed expression in another letter Strauss wrote to Krüger, dated 15th October 1931: “Momentarily I am busy reviewing the criticism of Naturrecht offered by our guild jurists. What hair-raising thoughtlessness!”6 So, obviously, Kelsen, as an exponent of contemporary legal theory, is the opponent (or, at the very least, one of the most important of the opponents) whom Strauss admittedly did not want to attack in public (for reasons which remain unclear), but in opposition to whose thoughts on Naturrecht and legal positivism Strauss tried to understand the relevance of Hobbes’ work for the problem he sought to solve: the problem of the best possible society.7 With this, there then arises the question: what made Strauss so annoyed while he was reading Kelsen? I will not seek the answer to this further question through a detailed analysis of the 1931 preface, although I will provide an outline of Strauss’ critique of Kelsen. I seek, rather, to answer it by considering some basic elements of Strauss’ path of thought during the subsequent period of about 20 years, or, more precisely: up to the publication of a book, whose title contains the concept Strauss had been concerned with, at the beginning of the 1930s, which again is accorded the former prominence that it had ceased to be accorded in the period of Strauss’ writings up to the publication of this book: Natural Right 3 Leo Strauss, “Letter to Gerhard Krüger. Berlin-Neutempelhof, November 16th, 1931,” in Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, (Stuttgart: J.B. Metzler, 2008), 396 [translation mine/PG]. 4 Leo Strauss, “Vorwort zu einem geplanten Buch über Hobbes,” in Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, (Stuttgart: J.B. Metzler, 2008), 201–215 [translation mine/PG]. 5 Hans Kelsen, Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus, (Berlin: Pan-Verlag Rolf Heise, 1928). 6 Leo Strauss, “Letter to Gerhard Krüger. Berlin, October 15th, 1931,” in Gesammelte Schriften, Band 3, Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, (Stuttgart: J.B. ­Metzler, 2008), 394 [translation mine/PG]. 7 Strauss, “Vorwort,” 201 [translation mine/PG].

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and History.8 The argument which I will advance is that with the conception of Naturrecht to be found in this book of 1953 we will at once find the final ­answer Strauss gave to a question he had raised 20 years earlier, which had itself emerged from his opposition to Kelsen’s treatment of Naturrecht. From this outline, the first indication emerges of the underlying rationale for Strauss’ opposition to Kelsen’s conceptualisation of Naturrecht. To be more specific, this indication is implied in the hesitation over the translation of the term Naturrecht, when Strauss uses it in his letters to Krüger, as “natural law,” while, in contrast, Strauss remains unaffected by any such hesitation when the term appears in Kelsen’s work. For, we do not know if Strauss, in the period in which he wrote the letters to Krüger, would himself have chosen the term “natural law.” Yet, in relation to the alternative choice of “natural right” to translate the German Naturrecht, the title of Natural Right and History indicates that, occasionally, Strauss preferred to speak of “natural right” instead of “natural law.” In an article, first published, in 1968, in the International Encyclopedia of the Social Sciences, he explicitly discriminates between the two terms “[i]n the light of the original meaning of ‘nature’” established by the ancient philosophers. According to which “the notion of ‘natural law’ (nomos tēs physeōs) is a contradiction in terms rather than a matter of course. The primary question concerns less natural law than natural right, i.e., what is by nature right or just: is all right conventional (of human origin) or is there some right which is natural (physei dikaion)?”9 It will be necessary to proceed through some further stages in order to ­understand the connection between Strauss’ discrimination between “natural law” and “natural right” and his notion of Kelsen’s hair-raising thoughtlessness. Therefore, the structure of the chapter will be to depict Kelsen’s conception of natural law (in connection with legal positivism) to be found in Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus (2), and, subsequently, to provide a condensed summary of the criticism Strauss levels against Kelsen’s conception in the 1931 preface, which was never intended for publication, to the book on Hobbes (3). This will then be supplemented by an outline of the shift in Strauss’ intellectual project during the next two decades. Along with this, I will show that Strauss left the problem of Naturrecht aside, not because he lost interest in it, but because he had to untangle some related problems, before he felt able to reconsider the matter (4). Then, I will summarise 8 Leo Strauss, Natural Right and History, (Chicago: University of Chicago Press, 1953). All ­further references are to the paperback edition of 1965. 9 Leo Strauss, “On Natural Law,” in Studies in Platonic Political Philosophy, (Chicago: University of Chicago Press, 1983), 138.

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Strauss’ re-examination of the problem in Natural Right and History, which entails, more precisely, establishing what Strauss might have argued against Kelsen’s conception in 1928, if he had already solved those problems which remained unsolved until 1953. In order to establish a position outside the theoretical framework of their conflicting intellectual approaches, I will, finally, propose to regard both approaches as post-theological variants of Pascal’s wager (5). 2 How does Kelsen conceptualise natural law in its connection with legal positivism in Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus? In order to understand the criticism Strauss levels against Kelsen’s conception, it is important to note that Kelsen’s aim is obviously to emphasize that, for historical reasons, legal positivism has taken the place formerly occupied by the idea of a natural law, or, more specifically, that legal positivism has taken this place according to a necessity unfolding in the course of history. Kelsen opens his argumentation stating, in a descriptive manner, that it was not u ­ ntil the 19th and early 20th centuries that an increasing tendency developed “to treat socio-theoretical problems in terms of a causal analysis.” that is: “not to investigate how people ought to act, but how they act in accordance with law.”10 Kelsen adds the further clarification that the historical predominance of legal positivism is nothing he adheres to for reasons of superior value. He claims that, on the contrary, the shift from normativity to causal analysis, initiated in the 19th century, is “indifferent to values,” in which “knowledge avoids its genuine object due to the loss of hope to be able to master it, as an effect of thousands of years of abortive attempts.” And Kelsen further specifies that it might be “only now” that legal theory has to declare itself unable to include the question of justice as its genuine object.11 Hence, initially, it is possible to gain the impression that Kelsen is not animated, in principle, by the requirement to abolish the idea of natural law, but merely reflects the contemporaneous downheartedness of the current age. However, despite this initial appearance or, more precisely, in order to 10

11

Hans Kelsen, “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans Klecatsky, René Marcic, and Herbert Schambeck, (Vienna: ­Europa Verlag, 1968), 281–282 [translation mine/PG]. Ibid., 282 [translation mine/PG].

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c­ ontextualise this seeming reticence by indicating the underlying necessity for the emergence of legal positivism, Kelsen in further development of the text, places emphasis upon the deficiency of the idea of natural law – and does not attempt to demonstrate the deficiency of his age, which would have been another potential path according to the argument which is broached in the opening of his text. The first step in the further elaboration of the deficiency of the idea of natural law is the determination of its ideal type (strictly speaking Kelsen does not use the Weberian term “ideal type,” but refers to “the idea of pure natural law” – but, nonetheless, this effectively contains the same meaning).12 He qualifies this ideal type as “perfect anarchism.”13 In contrast, the ideal-typical concept of positive law (or, in the terminology which Kelsen utilizes: “by nature”) is a relatively arbitrary, developed “coercive order” in which “the tendency to organized coercion is immanent.”14 Since such organized coercion is identical with the State, the State, as Kelsen claims, can be regarded as the “perfection of positive law.”15 The ideal in the ideal type of the idea of natural law, or, in other words, the matter or essence which enables the exponents of this idea to distinguish perfect anarchism (although they themselves would probably not utilize this term) from other kinds of anarchism, is, according to Kelsen, that natural law is considered as emanating from (depending on taste) God, nature, or reason. On the contrary, positive law is considered as the product of human will.16 For Kelsen, while the natural law tradition is based on a Grundnorm (basic norm) which is accorded “absolute validity,” the idea of positive law requires a basic norm whose status is only that of a “hypothetical-relative assumption.”17 This basic norm of positive law, Kelsen asserts, is simply an “expression” of the assumption, that a jurist while reflecting upon a legal act, could extend the cognitive parameters of that reflection beyond those of a concrete legal rule or even of the factual constitution – but it would never proceed further than the first constitution ever established by collective human will, which, in 12

13 14 15 16 17

Max Weber, “Objectivity in Social Science and Social Policy,” in Max Weber on The Methodology of the Social Sciences, eds. Edward A. Shils and Henry A. Fich, (Glencoe: Free Press, 1949), 90–92. See, Peter Gostmann, “Intellectual Freedom: On the political Gestalt of Kelsen and Weber or Strauss’ critique on social science revisited,” in The Foundation of the Juridico-Political. Concept Formation in Hans Kelsen and Max Weber, eds. Ian Bryan, Peter Langford, and John McGarry, (London: Routledge, 2016), 97–114. Kelsen, “Die philosophischen Grundlagen,” 284 [translation mine/PG]. Ibid., 283–284 [translation mine/PG]. Ibid., [translation mine/PG]. Ibid., 283. Ibid., 286 [translation mine/PG].

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turn, symbolizes “the normative character of the historical elementary fact,” upon which the jurist’s reflection, as legal cognition, is based.18 In contrast, for Kelsen, the exponents of the idea of natural law maintain that there is something beyond the first historical constitutions. However, the history of the idea of natural law, i.e., “natural law as the doctrine of natural law as it has been presented during the past 2000 years,” has shown that the establishment of each and every concrete natural law doctrine necessarily entails the construction of a relation between natural law and a system of positive law in force. Hence, establishing or articulating a natural law doctrine requires the adaptation of the doctrine of natural law to this positive law in force in order to enter into or appropriate the existing system of positive law.19 As a result of this historical consideration, according to Kelsen, the idea of a natural law is not situated in a perpetually antagonistic relationship with the existing system of positive law, but rather serves as an “ideology supporting, vindicating, absolutizing,” and thereby rendering synonymous, positive law and the authority of the State: “The picture a natural law doctrine typically draws of the world of justice shows in its foreground a substantially uncontested positive law, and behind it, duplicating it in a strange manner, a natural law: a superior order as the source of an all-embracing validity, the function of which is in the main to justify the positive law.”20 One important aspect of this justifying function of natural law, which Kelsen reveals, is that it cannot in itself be dynamic. The dynamism of natural law, is merely an appearance, and is, in fact, the process of applying natural law to concrete human relations. Thus, on closer examination, secretly, natural law is transformed into positive law.21 But – and this insight is important to understand Kelsen’s methodological preference for legal positivism – this kind of dynamisation via law application occurs in the form of the constitution of values (respectively norms), and not in the form of the rationale of the values inherent in the law in force, nor in the form of understanding the available norms.22 It occurs, in short, not in the form of a pure science, which according to Kelsen inescapably involves political indifference, but in the form of uncontrolled ideology. In contrast, legal positivism, is politically indifferent, since it limits its aspirations to the moulding of a historically given material into a methodologically coherent whole or system designated as “law.”23 18 19 20 21 22 23

Ibid., 287–288 [translation mine/PG]. Ibid., 310 [translation mine/PG]. Ibid., 312 [translation mine/PG]. Ibid., 292–294. Ibid., 343. Ibid., 339.

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3 The outline of the main elements in Die philosophischen Grundlagen der Naturrechtslehre und der Rechtspositivismus is sufficient, without further ­detailed e­ xplication, to furnish the basis for the comprehension of the difference ­between Kelsen’s and Strauss’ paths of thought. Thus, the focus can now turn to the question of the impression Strauss received reading Kelsen’s text. On what does he focus in the 1931 preface (not intended for publication) to the book on Hobbes he had just commenced to work on? Strauss is undoubtedly absolutely convinced that positive law in itself cannot be the solution to the problem, and this position and concern, in 1931, ­remained constant and unmodified throughout his later work, not least because he was (and remained) unwavering in his conviction that it is the central purpose of any serious philosophy to consider the best possible manner in which human co-existence could be organized. To substantiate his doubt in the capacity of pure positive law, he refers to what he calls the “prevailing anarchy.”24 A person speaking of anarchy, and living in Berlin in 1931, might have had in mind the “simmering” civil war,25 symbolised in conflicts between National Socialists and Communists at that time. Nevertheless, if this person is a philosopher, for him these conflicts are symbols of a more fundamental anarchy, namely, the apparent weakness and incapacity of the law in force (the Weimar Constitution), and the powerlessness of its exponents against this background. If, furthermore, this philosopher (as was the case for Strauss) has noticed an increasing predominance in intellectual life of a vulgarisation of (the already relatively vulgar) Hegelian historicism, namely, an addiction to the contemporary world, in which the best possible regime could be recognised by synthesising all given opinions in the form of a “bacchanalian whirl,” then, according to this philosopher, in the final analysis, anarchy means the loss of genuine philosophy in favour of opportunist sophistry.26

24 25 26

Strauss, “Vorwort,” 201 [translation mine/PG]. Dirk Blasius, Weimars Ende. Bürgerkrieg und Politik 1930–1933, (Frankfurt am Main: Fischer, 2008), 22–32. Leo Strauss, “Der Konspektivismus,” in Gesammelte Schriften, Band 2. Philosophie und ­Gesetz – Frühe Schriften, (Stuttgart: J.B. Metzler, 1997), 368 [translation mine/PG]. See, Georg Wilhelm Friedrich Hegel, Phänomenologie des Geistes, (Hamburg: Meiner, 1988), 35. A more detailed analysis of Strauss’ criticism of the contemporary “bacchanalian whirl” is to be found in my forthcoming essay “Humanism is not enough.” “Leo Strauss und die Soziologie,” in Peter Gostmann and Peter-Ulrich Merz-Benz, eds. Humanismus und ­Soziologie. Systematische und ideengeschichtliche Analysen.

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For Strauss, the “political indifference” Kelsen postulates may be “necessary for the jurists in terms of their professional obligation”27 – but, the consequences of this theoretical approach entails a methodological reason in which the jurist, by adopting its framework, effectively wears blinkers. The limitations of this methodological reason of a legal science of positive law leads to the designation of the jurist as an inadequate and inappropriate interlocutor for a person who intends to engage in reasoned reflection upon an essential philosophical problem: the organization of human co-existence. This is the consequence Strauss draws from his reading of Kelsen. What is more (and this might be the reason for Strauss to speak of Kelsen in terms of “hair-raising thoughtlessness”), the “pathos of integrity” which is at the foundation of legal positivism, “as it is to be found at the bottom of any positivism,”28 is a methodological position, achieved by the sacrifice of an inquiry into the foundation for this pathos itself. From this, Strauss proceeds to designate the professional obligation of a jurist, in the final analysis, as non-positive: it should be defined as a “natural obligation.”29 Therefore, a legal positivist’s path of argumentation, if it is studied precisely, has to be understood as an indication for rather than against the relevance of the idea of Naturrecht – and it is indicative of an absence of serious philosophical reflection not to consider the matter in this way. Apart from Strauss’ criticism of Kelsen, in particular, and of legal positivism, in general, there is a noticeable failure to characterise Naturrecht in conformity with the form of reasoning he had himself implicitly upheld in this initial criticism. Strauss actually comes to an astonishing, relativist conclusion: The exponents of the doctrine of Naturrecht failed merely according to their standards, because they did not discover the (one and eternal) Naturrecht, but only their age’s ideal of law. But in the light of historical consciousness this discovery means, that they accomplished the single goal that they realistically were able to accomplish.30 And to this accomplishment, that Strauss without further consideration reascribes to a historical series of accomplishments, he refers to as the “historical justification of Naturrecht.”31 Strauss, however, seems to have been aware, how disappointing this historicist line of argumentation is, on condition that one acknowledges historicism 27 28 29 30 31

Strauss, “Vorwort,” 202 [translation mine/PG]. Ibid., 206 [translation mine/PG]. Ibid. [translation mine/PG]. Ibid., 214 [translation mine/PG]. Ibid. [translation mine/PG].

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as a position which is itself an integral element of the problem. This problem of Naturrecht was, thus, displaced as the central focus in order to (as indicated in  the introduction) resolve some problems related to it. In other words, Strauss, in his subsequent work, addresses the same thematic field as that ­addressed in the 1931 preface to the book on Hobbes, in relation to Naturrecht, but from another perspective. This perspective develops from the specific and intensive period of study Strauss devotes to pre-modern scholars concerned with the problem of law, or, more precisely, concerned with a notion of law that, in the 12th and 13th centuries, is commonly understood as a law given in the form of a divine revelation. The authors who are the subject of Strauss’ intensive consideration, in the first half of the 1930s, are Ibn Ruschd (Averroes) and Maimonides. The outcome of this period of study is a book entitled ­Philosophie und Gesetz (Philosophy and Law), first published in 1935.32 4 What Strauss realized, during the intensive study of Ibn Ruschd and Maimonides, is, that they both understood the relationship between philosophy and law as a two-sided affair. Due to the “new situation of philosophising” these philosophers found themselves in, namely “to be bound by revelation,” they did not adapt the common creed, but considered revelation in a ­matter-of-fact way, that is, “as law.”33 On this basis, they acted openly as l­egal s­ cholars seriously studying the law and, since this was undertaken in the manner of speculative philosophy, they consolidated the philosophical way of life.34 For this purpose, Strauss reasons, the works of philosophers like Ibn Ruschd or Maimoinides, should be understood as dealing, on the one hand, with the justification of philosophy laid down in law,35 and, on the other hand, with the philosophical justification of law.36 In the use of the phrase “justification of philosophy laid down in law,” Strauss intends to emphasize that in the teaching of Ibn Ruschd (and of Maimonides 32 33

34 35 36

Leo Strauss, Philosophie und Gesetz. Beiträge zum Verständnis Maimunis und seiner Vorläufer, (Berlin: Schocken, 1935). Leo Strauss, “Philosophie und Gesetz,” in Gesammelte Schriften, Band 2. Philosophie und Gesetz – Frühe Schriften, 47, (Stuttgart: J.B. Metzler, 1997) (It is this version, and my translations, which will be relied upon in the following). The English translation of the text, by Eve Adler, is Leo Strauss, Philosophy and Law. Contributions to the Understanding of Maimonides and His Predecessors, (Albany: State University of New York Press, 1995). Strauss, “Philosophie und Gesetz,” 47. Ibid., 67–86 [translation mine/PG]. Ibid., 87–123 [translation mine/PG].

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as his successor), a philosophy orientated according to the revealed law is not merely allowed, but is literally imperative.37 Philosophy according to the law is free, insofar as these medieval scholars consider that the purpose of philosophy and the purpose of the revealed law, which is to obtain happiness due to the realization of God, are identical. Reason, meaning the ability to think of something in the manner of truth, is a divine gift as is the revelation of the law, so that a clash between both of them is to be treated as essentially impossible. On the one hand, this means that a person philosophising is inescapably bound to some specific doctrines assumed to be true, according to the objection that their truth is unambiguously maintained in the revealed law. For ­example, the creation of the world or the after-life. But on the other hand, the interpretation of the revealed law is free, whenever there seems to be a conflict between law and reason. Because (as we have seen) this conflict is treated as an impossibility, there must be a solution to it – and this solution is the task of philosophy: “If the law is speaking of a thing in a manner distinct from the manner philosophy would speak of it, the law is to be interpreted,” meaning the corresponding passage expressing the law is to be understood not as having literal meaning, but as having a figural one,38 and it is for the philosophers to establish how such figural meanings should be reasonably understood. The determination of reasonable understanding is, however, one in which even the assistance of pagan philosophers shall be allowed.39 By the use of the phrase “philosophical justification of law” Strauss intends to point to an element of the medieval scholars’ teaching corresponding to the former: their prophetology. Now, what according to Strauss’ reading of Maimonides and Ibn Ruschd is the specific quality of a prophet (as the case may be: of a Moses or a Mohammed)? For the purpose of solving the problem of the relation of Naturrecht and positive law (although Strauss does not explicitly refer to this underlying context), it is important to note, firstly, that, as Strauss claims, “the medium by which God is said to fulfil his revelation, is a prophet, which means that the medium is a human person, even if an exceptional and absolutely prominent one”;40 and as equally important is, secondly, that this human person acts through the form of legislation. Hence, the revealed law is both Naturrecht (because it has emanated from God, as an effect of the prophet’s “divination”41) and positive law (because it has been proclaimed by a human person and is addressed to human persons). 37 38 39 40 41

Ibid., 70. Ibid., 71 [translation mine/PG]. Ibid., 69–75. Ibid., 90 [translation mine/PG]. Ibid., 87.

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This law, since it has emanated from God, is to be treated as perfect in itself. Therefore, the prophet can be understood as the “founder of the ideal state.”42 This entails that the prophet has specifically fulfilled, what the first philosophical author (Plato as the successor, in writing, of Socrates as the first genuine, but merely oral philosopher) had demanded.43 Thus, undoubtedly, the prophet himself is to be treated as a person equipped with the qualities of a ­philosopher. This is the cause of the orientation of the teachings of the medieval philosophers towards the law proclaimed by him. However, as the law is to be addressed not only to philosophers, but to all human persons,44 the prophet, while proclaiming the law, had to act not only as a philosopher, but at the same moment as a statesman: he had to address a public sphere most of whose members require the aid of figures, symbols, or emblems, to gain a complete understanding.45 Therefore, despite the fact that the ideal state has yet to be founded, the ­existing character of political life is marked by imperfection. It is not perfect due to the essential mediation of law – its expression is interspersed with figures and symbols and emblems – and, thus, it is open to interpretation and, what is more, to error and misunderstanding. Hence the problem Ibn Ruschd or Maimonides had to confront, according to Strauss, is not the interrelation between Naturrecht and positive law, since both are identical, but the fact of the continuous potential (wittingly or unwittingly) for the misunderstanding of the (revealed) positive law. To state this more precisely (and, at once, to pass over to the next important step in Strauss’ intellectual development, his discovery of the intertwining of esoteric and exoteric elements in pre-modern scholar’s writings46): the problem the medieval scholars confront is the ­conduct of the non-philosophers, in particular, political leaders abusing the law for the sake of the maintenance or seizure of power, and the common people believing a rather unreasonable interpretation of the law merely because it appears to be consistent with their presumptions. This, indeed, (according to Strauss equally for both Ibn Ruschd and Maimonides) creates the problematic situation in which the philosopher finds himself. For in fulfilling his nature, as one “who love[s] to think,”47 he necessarily tends to detect any abuse of the law. 42 43 44 45 46

47

Ibid., 114 [translation mine/PG]. Ibid., 114–118. Ibid., 54–55. Ibid., 91. See, Leo Strauss, “Exoteric Teaching,” in The Rebirth of Classical Political Rationalism. An Introduction to the Thought of Leo Strauss, (Chicago: University of Chicago Press, 1989), 63–71; Leo Strauss, “The Spirit of Sparta or The Taste of Xenophon,” Social Research 6 (1939): 502–536. Leo Strauss, “Persecution and the Art of Writing,” in Persecution and the Art of Writing, (Chicago: University of Chicago Press, 1988), 24. On this text, see, also, H. Bluhm,

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The ­philosopher, by nature (at least potentially), thereby comes into conflict with both the political leaders and with the common people. Strauss’ notorious essay Persecution and the Art of Writing, first published in 1941 (Strauss, at that time, is a lecturer, in the usa, at New York’s New School of Social Research, where Kelsen, too, would spend some of his period in America) is his response to the question of how the philosopher is to confront and gain orientation in relation to this problematic situation. What Strauss adds to his initial exposition and consideration of Ibn Ruschd and Maimonides, in the earlier Philosophie und Gesetz, originates in the fact that, over the intervening years, he has become convinced of two further elements. The first additional element is the presentation of the situation of the philosophers of the 20th century as substantially the same as the situation of the philosophers in the period of Ibn Ruschd and Maimonides lived, as this position is one which is perennially problematic. A philosopher always (at least potentially), while fulfilling his nature, comes into conflict with both political leaders and the common people: “In a considerable number of countries which, for about a hundred years have enjoyed a practically complete freedom of public discussion, that freedom now is suppressed and replaced by a compulsion […] or persecution, on thoughts as well as actions,” while “a large section of the people […] accepts the government-sponsored views as true. […] What is called freedom of thought in a large number of cases amounts to […] the ability to choose between two or more different views presented by a small minority of people.”48 Hence, the philosopher, at any period, is more or less in danger if he, following his nature, expresses something which does not adhere to the view of the government’s or the majority. The second additional element, which develops from the first element, is the comprehension of writers, such as Ibn Ruschd and Maimonides, as engaged in the interpretation of the law not as believers, but as philosophers (which is, inevitably, for Strauss the expression of the internal contradiction of a ­believer49). If, on initial appearance, their considerations of the (revealed) law indicate that they are believers, this is created by the application of a specific technique of writing, namely, the art of writing “between the lines.” Therefore,

48 49

Die Ordnung der Ordnung: Das politische Philosophieren von Leo Strauss, (Oldenbourg: ­Akademie Verlag, 2007), 142ff.; M.S. Kochin, “Morality, Nature, and Esotericism in Leo Strauss’s Persecution and the Art of Writing,” The Review of Politics 64, 2 (2002): 261–284; T. Meyer, “Sphinx with a Secret: Leo Strauss’s ‘Persecution and the Art of Writing,’” in Censorship Moments Reading Texts in the History of Censorship and Freedom of Expression, ed. Geoff Kemp (London: Bloomsbury, 2014), 157–164. Strauss, “Persecution and the Art of Writing,” 22–23. See, Leo Strauss, “Jerusalem and Athens: Some Preliminary Reflections,” in Studies in ­Platonic Political Philosophy, 149–150, (Chicago: University of Chicago Press, 1983).

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one has to distinguish the exoteric dimension of a philosopher’s text, accessible to anyone, and the esoteric dimension, accessible only to those individuals who are able to engage in the precise and thoughtful study of a text. The esoteric dimension is the counterpart of a fundamental dedication to thinking: it is open only to those individuals who are philo-sophoi (lovers of wisdom).50 This art of esoteric writing and of reading between the lines, as the identification and differentiation of the esoteric and the exoteric elements of a philosopher’s text, Strauss claims, is an art which all the great philosophers of the past had mastered, and an art which was progressively lost in the course of modernity, while philosophers accustomed themselves to an almost complete freedom of public discussion. This was accompanied by the mistaken ­understanding that these halcyon days were to endure through the patient and c­ ontinuous engagement of the philosophers, enlightening political leaders and the common people by recourse to the use of reason.51 In place of this path of development and unfolding of public reason, the rise of the totalitarian regimes has proved,52 for Strauss, that the course of history and the continuation of enlightenment are without an essential correlation with each other. Hence, it becomes the first and foremost task of scholars of the twentieth century to retrieve the knowledge of the ancients, namely, to learn (again) to read between the lines of their texts and thereby to understand the “danger” in which those who adopt free reasoning find themselves, because the particularity of the nature which expresses a love of wisdom is also one which contains the universal need for association.53 For Strauss, both the necessity and the possibility to retrieve this knowledge is to be undertaken as the task of a prospective “sociology of philosophy,”54 namely, a specifically modern science which is orientated to the retrieval of this previously hidden sense from the philosophical and literary texts of the ancients. 5 The retrieval of the knowledge of the ancients is the vast interpretative ­project initiated by Strauss in his later period. It extends from The City and 50 51 52 53 54

Strauss, “Persecution,” 35–37. Ibid., 33–34. Ibid., 22–23. Strauss, “Philosophie und Gesetz,” 109–110. Leo Strauss, “Introduction,” in Persecution and the Art of Writing, (Chicago: University of Chicago Press, 1988), 21.

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Man, ­containing the chapters on Aristotle, Plato, and Thucydides,55 through other texts in which Strauss is primarily concerned with the genuine Socratic manner of philosophising,56 and, finally, to the problem of the interrelation of ­Jerusalem and Athens.57 Within this project, the exemplary text in relation to the question of Naturrecht, is the text of 1953 entitled Natural Right and History. Not only does it contain a polemical note on Kelsen’s political naiveté,58 and a detailed critique of the “historical approach”59 that Strauss had already, in the early 1930s, regarded as a symbol of the increasing tendency of the vulgarisation of modern intellectual life, but furthermore it contains a number of distinctive elements which prefigure his later readings of the ancients, ­particularly in the chapter on “Classic Natural Right.”60 In reference to the problem of Naturrecht, the orientation of the central elements of the chapter, preceded by Strauss’ unfolding of his proposition that “nature” as “a term of distinction,” enabling men to discriminate between a “custom” or a “way” and “the quest for the ‘principles’ of all things,” is a “discovery” of philosophy, as “natural right” is, subsequently, a discovery of “political philosophy.”61 On this basis, for Strauss,62 philosophy has to prove 55 56

Leo Strauss, The City and Man, (Chicago: University of Chicago Press, 1978). Leo Strauss, Socrates and Aristophanes, (New York: Basic Books, 1966); Leo Strauss, ­Xenophon’s Socratic Discourse: Interpretation of the “Oeconomicus”, (Ithaca: Cornell University Press, 1970); Leo Strauss, Xenophon’s Socrates, (Ithaca: Cornell University Press, 1972); Leo Strauss, The Argument and the Action of Plato’s Laws, (Chicago: University of Chicago Press, 1975); Leo Strauss, On Plato’s Symposium, (Chicago: University of Chicago Press, 2001). 57 Strauss, “Jerusalem and Athens.” 58 Strauss, Natural Right and History, 4. See, Hans Kelsen, “Foundations of Democracy,” in Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie, (Tübingen: Mohr, 2006), 364–365. 59 Strauss, Natural Right and History, 9–34. 60 Ibid., 120–164. An element of the impetus for Natural Right and History is Strauss’s earlier critical review, in 1946, of John Wild’s book on Plato, entitled, Plato’s Theory of Man. For Strauss, Wild, while elaborating a problematic account of Plato, commences from the correct question: “the legitimacy of the modern approach in all its forms, as distinguished from the classical approach” (L. Strauss, “On a New Interpretation of Plato’s Political ­Philosophy,” Social Research 13, 3 (1946): 326). This further emphasizes the divergence ­between Kelsen and Strauss, as it is Wild’s later book, Plato’s Modern Enemies and the Theory of Natural Law, and Strauss’ Natural Right and History, which Kelsen cites in the opening of his essay of 1963, “Plato and the Doctrine of Natural Law,” as exemplifying “a renewal of the doctrine of natural law,” through “the appeal to Plato’s authority” (Hans Kelsen, “Plato’s Doctrine of Natural Law,” Vanderbilt Law Review 14 (1960): 23), which will be the subject of sustained critique in the essay. 61 Ibid., 81–82. 62 Ibid., 126.

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what Naturrecht is by facts as distinguished from speeches (which marks the distinction of philosophy from sophistry63). In this manner, the philosopher will ­recognise – on the basis that “what distinguishes man from the brutes” is “reason or understanding” – that there is a “hierarchic order of man’s natural constitution,” according to which the demands of the “soul stand higher than” the demands of “the body.”64 Since “man is by nature a social being,” and, thus, he “cannot reach perfection except from society,” he requires, for “the perfection of his nature,” “the social virtue par excellence, justice.” This perfection finds its optimal fulfilment in “a society small enough to permit mutual trust, responsibility and supervision,”65 and, furthermore, “if there is a multitude of independent societies,”66 and if the society is itself directed by individuals who identify “happiness” not merely “with the well-being of the body or the gratification of vanity.”67 “The best possible regime” has to be not only “just,” but also “noble” (since “to pay one’s debts is just, but not noble” – and nobody would speak of the best possible regime solely because every citizen is honouring his debts). It may not have the status of a presumption, but it should be “possible on earth.”68 Strauss, obviously, is convinced that the writings of the ancient philosophers contain a reasonable natural right doctrine, which is based on facts, and not on speculations about emanation (as Kelsen presupposes based on his general conception of the natural law doctrine). Beyond the Straussian presentation of the distinctiveness of classic natural right, the central insight arises from Strauss’ discovery of the precarious situation of the philosopher in society – at any time open to the potential threat or danger of persecution – all knowledge concerning the best possible regime is only meaningful if related to a concrete society and to the situation of the philosopher within it, as the personification of free reasoning. Therefore the knowledge of the best possible regime and of “natural right outside the [concrete] city or prior to it” is relevant only when related to these concrete circumstances. For this reason, “natural right” is to be treated as a “part of political right,” which implies “that all natural right is changeable.”69 Hence, the public versions of natural right (occasionally referred to as to natural law), to which non-philosophers, political leaders and common people adhere, are changeable. The philosopher refers to it exoterically from 63 64 65 66 67 68 69

Ibid., 115–117. Ibid., 127. Ibid., 131. Ibid., 132. Ibid., 134. Ibid., 139–140. Ibid., 157.

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the position of “a partisan of excellence,”70 continually striving to bring the prevailing regime closer to the best possible regime without endangering the essential freedom to philosophise. From this background of the further development of Strauss’ thought, one can then introduce the question of the character of the Straussian response to Kelsen’s critical approach to the conceptualisation of natural law based upon a theory of legal positivism, in terms of the movement of thought he had ­undertaken up to 1953. It is evident that, for Strauss, Kelsen is a typical exponent of modern scholarship, accustomed to an environment of freedom of public discussion, who mistakenly acts and thinks based on the belief that this situation and its perpetual improvement will endure. He confuses the organised, systematic process of technical improvement of the law and its application with the development, beyond law, of society. This confusion renders him a proponent of political ­indifference, while for those who, in contrast, focus precisely upon the development of society, this development removes the possibility for the adoption of a position of political indifference. The fallacy of Kelsen’s is one which exemplifies a wider position predicated upon the methodological presumption of the perpetual progression of knowledge in the course of history, fully unfolding in a multiplicity of fields of knowledge.71 For Strauss, it obscures the possibility for a fundamentally different position: the search for “genuine knowledge.”72 The absence of genuine knowledge constitutive of Kelsenian legal science is revealed by Kelsen’s position with regard to the ‘first’ constitution. For, had Kelsen not only asserted that a jurist, while considering the methodological foundation or origin of a particular system of legal norms, should return to the promulgation of the first constitution, but had this return also been more 70 Strauss, The City and Man, 47. 71 See, Strauss, “Vorwort,” 210. 72 Strauss, “Introduction,” 7–8. In a review of Alfred Verdoss’s book entitled Grundlinien der antiken Rechts- und Staatsphilosophie, Strauss, on comparable basis, criticised ­another member of the Vienna school. Strauss defines Verdross’s orientation as “conventional,” and adds the remark that the “danger” of “conventions [...] lies in the fact that they ­inevitably breed a sense of familiarity with their subject matter,” whereas the “beginning of understanding is a sense of the bewildering or strange character of the subject to be ­understood.” See, Leo Strauss, “Verdross-Drossberg, Alfred. Grundlinien der antiken Rechts- und Staatsphilosophie. Vienna: Julius Springer. 1946,” in What is Political Philosophy? And other Studies, (Chicago: University of Chicago Press, 1988), 296–297. As a consequence of Verdross’ conventional reading of Plato, Strauss proceeds, he “presents Socrates as a teacher of political virtue [...], without mentioning the fact that for Plato ‘political virtue’ is a derogatory term,” and, in conclusion, fails to realise “the legal foundation for the freedom of Socratic philosophy, if not for the freedom of philosophy as such.” See, ibid., 298–299.

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than methodological (which would entail the acknowledgement and engagement with the texts written by other scholars concerned with this problem, for example, those of Ibn Ruschd or Maimonides), he would have understood that to reflect upon the question of the first constitution is to reflect upon the essential entanglement of natural law and positive law. This path would, however, have only been open to Kelsen had he been animated by the precise and thoughtful study of philosophical texts. The methodological framework of Kelsenian legal science is demonstrably uninterested in this orientation, and it thereby becomes apparent that he is not a philo-sophos (lover of wisdom). Since Kelsen is no philosopher, in the Straussian sense, he lacks the understanding that the dynamic character of positive law, occurring in the process of the application of postive law, cannot be an end in itself, but fulfils its purpose only if, as a result of the process, the law in force is brought closer to the best possible regime. The position and force of the Straussian critique becomes comparable to the assertion that Kelsen merely adopts a post-theological modification of the original wager of Pascal Penseés as a substitute for assuming the position of real orientation to knowledge.73 In Section 233 of the Pensées, Pascal, by confounding philosophical and theological figures of thought, alleged that man “must wager” if “God is” or if “He is not.” On this condition, he addressed his reader’s amour propre by arguing that, in the case one wagers for the existence of God, “[i]f you gain, you gain all,” and “if you lose, you lose nothing”: “Wager, then, without hesitation that He is.”74 Without question, Kelsen, while conceptualising natural law in 73

74

Strauss occasionally criticised Pascal’s misleading attempt to refute philosophy. See, Leo Strauss, “Progress or Return?,” in The Rebirth of Classical Political Rationalism. An Introduction to the Thought of Leo Strauss, (Chicago: University of Chicago Press, 1989), 269. However, he let his readers know that, instead of Pascal’s “antiphilosophic intent,” he had performed “the only possible justification of philosophy which, as such, is neither dogmatic nor sceptic, and still less ‘decisionist,’ but ‘zetetic.’” See, Leo Strauss, “Restatement on Xenophon’s Hiero,” in What is Political Philosophy? And other Studies, (Chicago: University of Chicago Press, 1988), 115–116. However, beyond all question it is purely coincidental that, in the same letter to Karl Löwith, where Strauss argues that Pascal is solely a “scientist”, not a philosopher, we find a vilification of Kelsen’s approach. See, Leo Strauss, “Letter to Karl Löwith. Chicago, July 19th, 1951,” in Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, (Stuttgart: J.B. Metzler, 2008), 676. Blaise Pascal, Pascal’s Pensées, (New York: E.P. Dutton, 1958), 66–67. On the position and character of the wager in Pascal, see, also, J. Jordan, ed. Gambling on God: Essays on Pascal’s Wager, (Lanham, MD: Rowman & Littlefield, 1994); A. Hájek, “Blaise and Bayes,” in Probability in the Philosophy of Religion, eds. J. Chandler and V.S. Harrison, (Oxford: Oxford University Press), 167–186; M. Martin, “Pascal’s Wager as an Argument for Not Believing in God,” Religious Studies 19 (1983) 57–64.

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connection with legal positivism, is not interested in the problem if God is or if He is not.75 However, following Strauss’ path of thought, we simply have to replace “God” by “law,” and, consequently, to characterise “gain” not in terms of immortality, but in terms of functionality, to realise that Kelsen’s and Pascal’s arguments are comparable in structure. More precisely, Kelsen, when faced with the option to wager if a pure theory of law exists or if it does not, chose the former. While weighing the gain and the loss of believing that a pure theory of law exists and, equally, of believing that a pure theory of law does not ­exist, he came to the following conclusion. On the one hand, as long as a jurist ­believes that a pure theory of law is possible, the processes of legal interpretation and the application of law will be more functional than it would be, if he did not. On the other hand, if against his conviction, a pure theory of law is not possible, this jurist’s contributions to these legal processes would not be less functional than they would have been if he would not have believed that a pure theory of law is possible. The Straussian response is that, in place of ­wagering, one should philosophize, that is, thoroughly thematize in thought the question of what is by nature right or just.76 However, the question remains if an analogous response could not itself be made to Strauss, once the term “God” (in the case of Pascal) or “law” (in the case of Kelsen) is replaced by that of “genuine knowledge,” and, consequently, characterise “gain” not in terms of immortality or functionality, but in terms of “leaving the cave.” As we have seen, Strauss was deeply convinced of the necessity to win back the knowledge of the ancients, since he considered modern thought as ­helplessly interspersed with theologico-political elements. The profoundly problematic character of modern thought is exemplified by Strauss’s adoption, at the beginning of the 1930s, of the metaphor of a “second cave” located below the cave Plato had introduced in his well-known allegory.77 With this metaphor of the second cave, to surmount the malady of modern thinking meant, for Strauss, to attempt to ascend to the original level of the Platonic 75 76 77

See, Hans Kelsen, “Gott und Staat,” in Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans Klecatsky, René Marcic, and Herbert Schambeck, (Wien: Europa Verlag, 1968), 171–193. Strauss, “On Natural Law,” 138. Strauss seems, for the first time, to have spoken publicly about the second cave on ­occasion of a lecture he delivered in 1930: Leo Strauss, “Religiöse Lage der Gegenwart,” in Gesammelte Schriften, Band 2. Philosophie und Gesetz – Frühe Schriften, (Stuttgart: J.B. Metzler, 1997), 389. See, Leo Strauss, “Letter to Gerhard Krüger. Kirchhain, Februar 27th, 1931,” in Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, (Stuttgart: J.B. Metzler, 2008), 383–384.

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cave. The process of reascent and entry is essential for contemporary scholars if they are to understand the purpose of true philosophizing and, in particular, to have attained an understanding of what is truly just. If one considers this more closely, it seems that Strauss creates the impression that he is himself (even if in his own way) modifying Pascal’s wager in a post-theological manner. This impression becomes apparent in the following manner. While weighing the gain and loss of believing (and, equally, of not believing) that the ancient philosophers had been equipped with genuine knowledge that would also ­enable contemporary men to develop eudaimonia, Strauss decided in favour of the ancients. Since, on the one hand, as long as a lover of wisdom believes that genuine knowledge is possible, his contributions to public dialogue will be less thoughtless (both less sophistic and less theologico-political) than they would be if he does not. On the other hand, if against his conviction, genuine knowledge is not possible, his contributions to public dialogue would not be more thoughtless than they would have been if he would not have believed that genuine knowledge is possible. Thus, if this applicability of the structure of the modified, post-theological Pascalian wager is correct, the potential to discriminate between Kelsen’s and Strauss’ (or other post-theological scholars’) intellectual approaches in a satisfactory manner immediately raises the question of whether it is possible to discriminate between more or less high-minded modes of what can referred to as the post-theological wager. Bibliography Blasius, Dirk. Weimars Ende. Bürgerkrieg und Politik 1930–1933, (Frankfurt am Main: Fischer, 2008). Bluhm, Harald. Die Ordnung der Ordnung: Das politische Philosophieren von Leo Strauss, (Oldenbourg: Akademie, 2007). Gostmann, Peter. “Intellectual Freedom. On the political Gestalt of Kelsen and Weber or Strauss’ critique on social science revisited.” In The Foundation of the JuridicoPolitical: Concept Formation in Hans Kelsen and Max Weber, edited by Ian Bryan, Peter Langford, and John McGarry, 97–114, (London: Routledge, 2016). Hájek, Alan. “Blaise and Bayes.” In Probability in the Philosophy of Religion, edited by J. Chandler and V.S. Harrison, 167–186, (Oxford: Oxford University Press, 2012). Hegel, Georg Wilhelm Friedrich. (1807) Phänomenologie des Geistes, (Hamburg: ­Meiner, 1988). Jordan, Jeff. Gambling on God: Essays on Pascal’s Wager, (Lanham, MD: Rowman & ­Littlefield, 1994).

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Kelsen, Hans. “Plato’s Doctrine of Natural Law.” Vanderbilt Law Review 14 (1960): 23–64. Kelsen, Hans. (1922/23) “Gott und Staat.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, edited by Hans Klecatsky, René Marcic, and Herbert Schambeck, 171–93, (Vienna: Europa, 1968). Kelsen, Hans. (1928) “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus.” In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, edited by Hans Klecatsky, René Marcic, and Herbert Schambeck, 231–88, (Vienna: Europa, 1968). Kelsen, Hans. (1955) “Foundations of Democracy.” In Verteidigung der Demokratie. Abhandlungen zur Demokratietheorie, 248–385, (Tübingen: Mohr, 2006). Kochin, Michael. “Morality, Nature, and Esotericism in Leo Strauss’s Persecution and the Art of Writing.” The Review of Politics, 64, 2 (2002): 261–84. Martin, Michael. “Pascal’s Wager as an Argument for Not Believing in God.” Religious Studies 19 (1983): 57–64. Meyer, Thomas. “Sphinx with a Secret: Leo Strauss’s ‘Persecution and the Art of ­Writing.’” In Censorship Moments Reading Texts in the History of Censorship and Freedom of Expression, edited by Geoff Kemp, 157–164, (London: Bloomsbury, 2014). Pascal, Blaise. Pascal’s Pensées, (New York: E.P. Dutton, 1958). Strauss, Leo. The Political Philosophy of Hobbes: Its Basis and Its Genesis, (Oxford: ­Clarendon Press, 1936). Strauss, Leo. “The Spirit of Sparta or The Taste of Xenophon.” Social Research 6 (1939): 502–536. Strauss, Leo. “On a New Interpretation of Plato’s Political Philosophy.” Social Research 13 (1946): 326–367. Strauss, Leo. (1953) Natural Right and History, (Chicago: University of Chicago Press, 1965). Strauss, Leo. Socrates and Aristophanes, (New York: Basic Books, 1966). Strauss, Leo. Xenophon’s Socratic Discourse: Interpretation of the “Oeconomicus.” (­Ithaca: Cornell University Press, 1970). Strauss, Leo. Xenophon’s Socrates, (Ithaca: Cornell University Press, 1972). Strauss, Leo. The Argument and the Action of Plato’s Laws, (Chicago: University of ­Chicago Press, 1975). Strauss, Leo. (1964) The City and Man, (Chicago: University of Chicago Press, 1978). Strauss, Leo. (1967) “Jerusalem and Athens: Some Preliminary Reflections.” In Studies in Platonic Political Philosophy, 147–173, (Chicago: University of Chicago Press, 1983). Strauss, Leo. (1968) “On Natural Law.” In Studies in Platonic Political Philosophy, 137–146, (Chicago: University of Chicago Press, 1983). Strauss, Leo. (1947) “Verdross-Drossberg, Alfred. Grundlinien der antiken Rechts- und Staatsphilosophie, (Vienna: Julius Springer. 1946).” In What is Political Philosophy? And other Studies, 296–299, (Chicago: University of Chicago Press, 1988).

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Strauss, Leo. (1952a) “Introduction.” In Persecution and the Art of Writing, 7–21, (­Chicago: University of Chicago Press, 1988). Strauss, Leo. (1952b) “Persecution and the Art of Writing.” In Persecution and the Art of Writing, 22–37, (Chicago: University of Chicago Press, 1988). Strauss, Leo. “Restatement on Xenophon’s Hiero.” In What is Political Philosophy? And other Studies, 95–133, (Chicago: University of Chicago Press, 1988). Strauss, Leo. “Exoteric Teaching.” In The Rebirth of Classical Political Rationalism. An Introduction to the Thought of Leo Strauss, 63–71, (Chicago: University of Chicago Press, 1989a). Strauss, Leo. “Progress or Return?” In The Rebirth of Classical Political Rationalism. An Introduction to the Thought of Leo Strauss, 227–270, (Chicago: University of Chicago Press, 1989b). Strauss, Leo. Philosophy and Law: Contributions to the Understanding of Maimonides and His Predecessors, (Albany: State University of New York Press, 1995). Strauss, Leo. (1935) “Philosophie und Gesetz.” In Gesammelte Schriften, Band 2. Philosophie und Gesetz – Frühe Schriften, 1–123, (Stuttgart: J.B. Metzler, 1997). Strauss, Leo. “Der Konspektivismus.” In Gesammelte Schriften, Band 2. Philosophie und Gesetz – Frühe Schriften, 365–76, (Stuttgart: J.B. Metzler, 1997a). Strauss, Leo. “Religiöse Lage der Gegenwart.” In Gesammelte Schriften, Band 2. Philosophie und Gesetz – Frühe Schriften, 377–391, (Stuttgart: J.B. Metzler, 1997b). Strauss, Leo. On Plato’s Symposium, (Chicago: University of Chicago Press, 2001). Strauss, Leo. “Vorwort zu einem geplanten Buch über Hobbes.” In Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, 201–215, (Stuttgart: J.B. Metzler, 2008a). Strauss, Leo. “Letter to Gerhard Krüger. Kirchhain, February 27th, 1931.” In Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, 383–384, (Stuttgart: J.B. Metzler, 2008b). Strauss, Leo. “Letter to Gerhard Krüger. Berlin, October 15th, 1931.” In Gesammelte Schriften, Band 3, Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, 393–395, (Stuttgart: J.B. Metzler, 2008c). Strauss, Leo. “Letter to Gerhard Krüger. Berlin-Neutempelhof, November 16th, 1931.” In Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, 395–396, (Stuttgart: J.B. Metzler, 2008d). Strauss, Leo. “Letter to Karl Löwith. Chicago, July 19th, 1951.” In Gesammelte Schriften, Band 3. Hobbes’ politische Wissenschaft und zugehörige Schriften – Briefe, 675–676, (Stuttgart: J.B. Metzler, 2008e). Verdross-Drossberg, Alfred. Grundlinien der antiken Rechts- und Staatsphilosophie, (­Vienna: Julius Springer, 1946).

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Weber, Max. “Objectivity in Social Science and Social Policy.” In Max Weber on The Methodology of the Social Sciences, edited by Edward A. Shils and Henry A. Fich, 49–112, (Glencoe: Free Press, 1949). Wild, John. Plato’s Theory of Man. An Introduction to the Realistic Philosophy of Culture, (Cambridge: Harvard University Press, 1946). Wild, John. 1953 Plato’s Modern Enemies and the Theory of Natural Law, (Chicago: University of Chicago Press, 1953).

Conclusion: Beyond Legal Positivism and Natural Law? Peter Langford and Ian Bryan Opposition to the natural law tradition, and to its potential re-emergence, forms an integral element of Kelsenian legal positivism. While the conceptual dichotomy between natural law and legal positivism has a discernible historical dimension,1 its substance, subsistence and validity remain of pressing concern in contemporary legal theory. The Kelsenian theoretical framework, together with its emphatic rejection of natural law theories has, over the course of the late twentieth- and early twenty-first century, been increasingly supplanted by a theory of legal positivism originating in the work of Hart.2 In contrast to the radical separation in Kelsenian legal positivism,3 Hartian and Hartianinfluenced legal positivism focuses upon the degree to which law and morality occupy discrete, or, in the alternative, intersecting domains; with, broadly, exclusive legal positivists inclined to complete separation,4 and inclusive (or soft) legal positivists comprehending varying degrees of interconnectedness between law and morality.5 The advent of Hartian and Hartian-influenced 1 See, for example, John Finnis, Natural Law and Natural Rights, (Oxford: Oxford University Press, 1980; 2nd ed., Oxford: Oxford University Press, 2011); John Finnis, ‘The Truth in Legal Positivism’, in Robert P. George, (ed.), The Autonomy of Law: Essays in Legal Positivism, (Oxford: Clarendon Press, 1996), 195–214; and Robert P. George, In Defense of Natural Law, (Oxford: Clarendon Press, 1999). 2 See Herbert. L A. Hart, The Concept of Law, (Oxford: Clarendon Press, 1961; 2nd ed., Oxford: Oxford University Press, 1994). See, also, Herbert L.A. Hart, Law, Liberty and Morality, (Oxford: Oxford University Press, 1962). 3 For recent critical evaluation of Kelsenian legal positivism, see Langford, Peter, Bryan, Ian and McGarry, John (eds.), Kelsenian Legal Science and the Nature of Law, (Dordrecht: Springer, 2017); and Clemens Jabloner, “Die Rechtsbegriff bei Hans Kelsen”, in Stefan Griller and Heinz Peter Rill, (eds.), Rechtstheorie: Rechtsbegriff – Dynamik – Auslegung, (Vienna: Springer, 2011), 21–39. 4 See, for example, Andrei Marmor, Positive Law and Objective Values, (Oxford: Oxford University Press, 2001); Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, (Oxford: Oxford University Press, 2007) and Scott Shapiro, Legality, (Cambridge, MA/ London: Belknap/ Harvard University Press, 2011). 5 See, for example, Wilfred J. Waluchow, Inclusive Legal Positivism, (Oxford: Oxford University Press, 1994); Matthew M. Kramer, In Defense of Legal Positivism: Law without Trimmings, (Oxford: Oxford University Press, 1999); Jules L. Coleman, The Practice of Principles: In Defence of a Pragmatist Approach to Legal Theory, (Oxford: Oxford University Press, 2001); and Kenneth

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004390393_017

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legal positivism, is also accompanied by renewed reflection upon the conceptualization of natural law. The character of this reflection is differentiated by the extent to which it remains informed by the body of work comprising the natural law tradition6 or is shaped by contemporary philosophical thought developed outside that tradition.7 In this context, the contention, maintained by inclusive legal positivists, that natural law and positive law may be reconciled and integrated within a single, unified and internally coherent legal positivism, has led to a re-examination of legal theory’s conceptual demarcations. The rigidity of the designations ‘exclusive’ and ‘inclusive’ legal positivism has, accordingly, begun to dissolve and to be subsumed under the more expansive notion of ‘non-positivism’. This is particularly evident in the development of the work of Joseph Raz.8 The Razian detachment from, or repudiation of, the definitional categories of legal positivism and natural law seeks to free legal theory from its traditional conceptual moorings and to enable reconsideration of the essence, nature and content of law. The conceptual space, projected in Raz’s work for the re-thematization of elementary questions in legal theory, is confronted, through a critical exchange with in Robert Alexy, by an insistence upon the continued significance of the Einar Himma, “Final Authority to Bind with Moral Mistakes: On the Explanatory Potential of Inclusive Legal Positivism”, 24, (1) Law and Philosophy, (2005), 1–45. 6 See, for example, John Finnis, Natural Law and Natural Rights, (Oxford: Oxford ­University Press, 1980, 2nd edition, 2011); John Finnis, Aquinas: Moral, Political, and Legal Theory, (Oxford University Press, 1998); Robert P. George, (ed.), Natural Law Theory: Contemporary Essays, (Oxford: Clarendon Press, 1992); Mark C. Murphy, Natural Law in Jurisprudence and Politics, (Cambridge: Cambridge University Press, 2006). 7 This is indicated, for example, by the distinct approaches of Robert Alexy, The Argument from Injustice, trans. Stanley L. Paulson and Bonnie L. Paulson, (Oxford: Oxford University Press, 2002); Mario A. Cattaneo, Riflessioni sull’umanesimo giuridico, (Naples: Edizioni Scientifiche Italiane, 2004); Sergio Cotta, Il diritto nell’esistenza. Linee di ontofenomenologia giuridica, 2nd Edition (Milan: Giuffrè,1991); Ronald Dworkin, Taking Rights Seriously, (London: Duckworth, 1977); Enrique Dussel, Ethics of Liberation: In the Age of Globalization and Exclusion, trans. Eduardo Mendietta, (Durham: Duke University Press, 2013); Lon L. Fuller, The Morality of Law, (New Haven: Yale University Press, 1977); and Vittorio Hösle, Morals and Politics, trans. Steven Rendall, (Notre Dame: Notre Dame University Press, 2004). 8 This development is apparent through the comparison of Joseph Raz, Practical Reason and Norms, (Oxford: Oxford University Press, 1975, 2nd edition, 1990); Joseph Raz, The Authority of Law: Essays in Morality and Law, (Oxford: Oxford University Press, 1979, 2nd edition, 2009); Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, (Oxford : Oxford University Press, 1994) and Joseph Raz, “The Argument from Justice, or How Not to Reply to Legal Positivism”, in George Pavlakos, (ed.), Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy, (London: Bloomsbury/Hart, 2007), 17–36.

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dichotomy between legal positivism and natural law.9 The respective positions of Raz and Alexy arise, initially, from Raz’s critique of central aspects of Alexy’s The Argument from Injustice: A Reply to Legal Positivism,10 and from Alexy’s response.11 The contemporary applicability of, or dissociation from, not only the designations ‘natural law’ and ‘legal positivism’ but also the parameters of Kelsenian legal positivism, with its concomitant Kelsenian antipathy to natural law theories, is instantiated in the exchange between Raz and Alexy. 1

The Razian Critique

The Razian critique commences from Raz’s hesitation over Alexy’s conception of legal positivism and uncertainty over the proposed addressees of Alexy’s book.12 For Raz, this hesitancy and uncertainty arise from the absence of citation and discussion, in The Argument from Injustice, of “writings in the legal 9

10 11

12

The exchange is articulated in Raz, “The Argument from Justice” and Robert Alexy, “An Answer to Joseph Raz”, in George Pavlakos (ed.), Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy , (London: Bloomsbury/Hart, 2007), 37–55. An earlier opportunity for Raz to engage with Alexy’s position, is presented in Alexy, ‘The Nature of Arguments about the Nature of Law’, in Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge, (eds.), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz, (Oxford: Oxford University Press, 2003), 3–16. This remains unrealized, as in the ‘Comments and Replies’ (ibid. 253–274), Raz expresses himself concerned to avoid “half-argued-for comments on everything” and, thus, confines himself to “reflection on direct criticism of my work, and related points. For this reason, for example, I will not comment on the rich and suggestive paper by Robert Alexy, who surveys the terrain of legal philosophy as a whole”. (ibid., 253). Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism, trans. Stanley L. Paulson and Bonnie L. Paulson, (Oxford: Oxford University Press, 2002). We refer to Raz’s critique of The Argument from Injustice in Raz, “The Argument from Justice”. Alexy, “An Answer to Joseph Raz”. The wider question of the notion of practical reason and its significance in the positions of Raz and Alexy positions remains under- or unexamined in the exchange. This is despite the central position the notion is accorded in both the work of Alexy and Raz. See, for example, Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler and Neil MacCormick, (Oxford: Clarendon Oxford University Press, 1989 /2010); Robert Alexy, Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie, (Frankfurt: Suhrkamp, 1995); Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers, (Oxford: Oxford University Press, 2002/2010); Joseph Raz, Practical Reason and Norms, (Oxford: Oxford University Press, 1975, 2nd edition, 1990); Joseph Raz, The Morality of Freedom, (Oxford: Oxford University Press, 1986); Joseph Raz, Engaging Reason: On the Theory of Value and Action, (Oxford: Oxford University Press, 1999); and Joseph Raz, The Practice of Value, (Oxford: Oxford University Press, 2003). Raz, “The Argument from Justice”, 18.

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positivist tradition [in English] later than Hart’s The Concept of Law 1961”;13 and, thus, the marginalization or neglect of subsequent Anglo-American work in the field. The initial hesitation forms the basis for the further Razian critical engagement, examining the extent to which Alexy’s critique of legal positivism disrupts Raz’s own theoretical position. This enables the apparent absence of attention to Hartian inclined Anglo-American legal positivism in Alexy’s text to furnish the foundation upon which to interrogate Alexy’s delineation of legal positivism and the coherence of elements of Alexy’s critical stance.14 The Razian interrogation seeks to uncover instability in Alexy’s explication of legal positivism in relation to the separation thesis: the separation between law and morality.15 The instability is introduced initially through the demonstration that the constructions of legal positivism in Alexy’s text, commencing from his interpretation of Kelsenian legal positivism, are incorrect and inapposite in relation to Raz’s legal theory.16 The assertion of inappositeness relates to the presence of moral concepts in the elaboration of a Razian legal theory, which urges the dissociation of theoretical reflection upon law from 13 Ibid. 17. 14 Ibid. 15 Hart’s legal positivism has been characterized, or construed, as recommending both the ‘separation thesis’ and the ‘separability thesis’, with inclusive legal positivists disposed to disclaim the former and to accept the latter. For the purposes of the present discussion, however, we place emphasis on the ‘separation thesis’. For consideration of ‘inclusive’ and ‘exclusive’ legal positivists’ perspectives on the parameters and import of the separation and separability theses in contemporary Anglo-American legal theory – and hence the relationship between legality, morality and legal validity – see, for example,; Herbert L.A. Hart, “Positivism and the Separation of Law and Morals”, 71, (4) Harvard Law Review (1958), 593–629; Lon L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart”, 71, (4) Harvard Law Review, (1958), 630–672; Ronald Dworkin, Taking Rights Seriously; Joseph Raz, The Authority of Law: Essays in Morality and Law; Wilfred J. Waluchow, Inclusive Legal Positivism; John Gardner, “Legal Positivism: 5 ½ Myths”, 46, (1) American Journal of Jurisprudence, (2001), 199–227; Tony Honoré, “The Necessary Connection Between Law and Morality”, 22, (3) Oxford Journal of Legal Studies, (2002), 489–495; Leslie Green, “Positivism and the Inseparability of Law and Morals”, 83, (4) New York University Law Review, (2008), 1035–1058. 16 Raz contends (relying upon the second edition of Kelsen’s Pure Theory of Law, 1960/ 1967, §28(a), 114–117), that Alexy misinterprets the Kelsenian position. Alexy’s response (in Alexy, “An Answer to Joseph Raz”), is not examined here as the main elements of the critical exchange between Raz and Alexy are not centred upon Kelsenian legal theory. In addition, the discussion of a ‘bandit system’, within the discussion of the Alexyan correctness thesis, is left aside since it is conducted without reference to Kelsen’s sophisticated treatment of the topic in General Theory of Law and State (Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg. Brunswick, New Jersey: Transaction Publishers, 2005 (Originally published, 1945), 175–177). It is noteworthy, however, that Kelsenian legal theory is marginalized in the exchange between Raz and Alexy.

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the pursuit of a definition of law. For Raz, acknowledgement of the presence of moral concepts, including that “law claims to have legitimate authority”,17 is acknowledgement that law manifests “necessary features”, without the further pretention to elaborate a definition of law. The Razian dissociation of theoretical reflection on law from the pursuit of a definition of law reflects and draws upon Hart. The Hartian position, for Raz, considers theoretical reflection on law, orientated by a definition of law, essentially “unproductive”.18 The denial of centrality to definition is predicated upon the incapacity of definition to determine the essential elements of concepts which enable their practical application. Definitional indeterminacy arises from the character of concepts themselves: they “may admit of more than one definition [and] some concepts do not have definitions, or at least no known definitions of this kind”.19 Hence, for Raz, the primacy accorded by Alexy to the definition of concepts is placed into question, as is the position accorded to moral concepts in the positivist separation thesis.20 From his critique of Alexy’s endeavour to delimit both law and moral concepts, Raz proceeds to an exposition of the separation thesis: “a theory belongs to the legal positivist tradition if and only if it maintains that the necessary features of the law can be stated without the use of any moral concepts”.21 This summation of the separation thesis is, for Raz, also unproductive. The adoption of such an exposition, Raz maintains, is to espouse a methodological rigidity incapable of acknowledging complex features in the relationship between law and morality. For, it is unable to comprehend that “even if all the law’s essential features can be stated without the use of moral concepts it may be the case that that it has those features entails that it has some moral merit”.22 Thus, Alexy’s position, rather than enabling a coherent reformulation of the separation thesis, renders the distinction between natural law and legal positivism nebulous. For Raz, however, while law and morality are distinguishable, legal positivism must, inescapably, incorporate moral necessity and moral limits.23 17

Raz, “The Argument from Justice”, 19, wherein Raz refers to Chapter Five in Raz, Practical Reason and Norms. 18 Ibid., 19. 19 Ibid., 19–20. 20 Ibid., 20. 21 Ibid. 22 Ibid. Here, Raz refers to Chapter Five of Raz, Practical Reason and Norms. 23 This is exemplified, for Raz, in Fuller’s work. As Raz observes: ‘such truth as there is in Fuller’s claims that some of the formal, in themselves non-moral, necessary features of the law, such as its reliance on general standards, restrict its ability to be arbitrary, shows those features to be among those which establish a necessary connection between law,

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Raz’s critique of Alexy’s construction of the separation thesis is the expression of the broadening of Raz’s focus24 from its concentration upon a strict, definitional or classificatory conception of legal positivism to encompass a more expansive notion of “theories in the positivist tradition”.25 With this shift in focus, a stringent and in many respects narrow definitional identity is abandoned and replaced with one of wider compass which, for Raz, is encapsulated in Andrei Marmor’s formulation of the separation thesis: “determining what the law is does not necessarily, or conceptually, depend upon moral or other evaluative criteria about what the law ought to be in the relevant circumstances”.26 The wider breadth of this formulation is suggested not only in Raz’s own delineation of legal positivism – “the identification of law never requires the use of moral arguments or judgements about its merits”27 – but also in his assertion that his delineation diverges from that of Hart and “those who are variously known as inclusive positivists, or soft positivists”.28 For Raz, then, the potency of Alexy’s critique of legal positivism is constrained by the problematic character of the separation thesis. This, in turn, confines the continued pertinence of Alexy’s critique to those elements that promise to “undermine the success” of theories of legal positivism that share a common adherence to Marmor’s formulation.29 The Razian critical analysis proceeds to interrogate the Alexyan distinction between the perspective of the participant in and that of the external observer of a legal system. Raz declares the distinction incapable of effectively isolating the specificity in the ostensibly distinctive participant and observer perspectives; an incapacity which resides in the distinction’s lack of methodological rigor. For Raz, the deficiency in Alexy’s distinction between the viewpoint of the participant as distinct from that of observer is revealed by the comparative sophistication with which social science disciplines employ analogous frameworks. In these disciplines, such frameworks seek to establish a “clear

specified without reference to morality, and morality’, (Raz, “The Argument from Justice”, 21). 24 Raz’s brief discussion of the contingency thesis – ‘whether or not the law of any country taken in general, or each one of its legal rules taken singly, has any moral merit is a contingent matter’ (ibid.) – is not examined here as Raz acknowledges it is without relevance to the consideration of legal positivism and not a feature of Alexy’s critical analysis of legal positivism. 25 Ibid. 22. 26 Ibid. See Andrei Marmor, Positive Law and Objective Values, (Oxford: Oxford University Press, 2001), 71. 27 Raz, “The Argument from Justice”, 22. 28 Ibid. 29 Ibid.

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separation between (a) the subject of inquiry (the rituals of a particular population) and (b) the method of inquiry (explaining the meaning rituals have for the members of the population)”.30 In Alexy’s framework, by contrast, the participant’s and observer’s perspectives are without “content [and the] different methodologies as employed by their practitioners” is undetermined.31 On Raz’s account, therefore, Alexy’s perspectival framework permits differentiation between the two perspectives only on the basis of a presupposition of the separate “subject matter of their inquiry”.32 The incapacity to introduce a tangible, methodological difference is evident in Alexy’s example of this perspectival separation33 and flows from the Razian notion of contradiction. For Raz, the “property of a statement or of propositions” cannot extend to “those who make or express them”.34 Thus, “if [the statement or proposition] contains a contradiction if made from one point of view it does so if made from any point of view”.35 Hence, Alexy’s example, ceases to demonstrate perspectival contradiction, as the two perspectives can be combined to “imply that the officials are flouting the law by the way they treat A”.36 The example, therefore, becomes merely one which the situation is “unfortunate”.37 For Raz, that the two perspectives may, without difficulty, be conjoined or unified militates against their ostensibly dissimilar viewpoints. This, in turn, reveals a common conceptual framework in which “the study of what law is, and the study of how judges deal with cases, can use the same concepts”, which, for Raz, is precondition for the analysis of judicial decisions to be intelligible for those who participate in the legal system.38 Alexy’s attempt to differentiate the perspective of the participant from that of the observer is 30 Ibid., 24. 31 Ibid. 32 Ibid. Raz explicitly indicates the strangeness of this difference through an analogy with the “those interested in physics and those interested in the pay and status of physicists” as one which indicates the difficulty of distinguishing “two perspectives” from “two different subjects” (Ibid.). Raz also explicitly rejects any possible analogy between Alexy’s participant and observer and the Hartian distinction between an internal and an external perspective, as the internal perspective “mark the position of a person who endorses a set of norms or reasons” (Ibid., fn.19). 33 The example: “A has not been deprived of citizenship according to German law, although all German courts and officials treat A as denaturalized … as a statement of an observer contains a contradiction” (Alexy, The Argument from Injustice, 29–30). 34 Ibid., 25. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid.

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unable to be “supported by his own analysis”39 and, therefore, cannot demonstrate a coherent separation thesis.40 The Razian critique continues with a consideration of Alexy’s ‘correctness thesis’: “that law as a whole, and each of its norms and decisions, claim to be correct”.41 The thesis, in its claim to reveal a connection between law and morality, purports to provide the capacity to distinguish between ‘just’ and ‘unjust’ laws. Accordingly, the thesis also facilitates the adoption of Radbruch’s argument from injustice.42 For Raz, however, a reconstruction of the correctness thesis reveals that Alexy’s thesis is confined to a generalised thesis about the character of action and its evaluation.43 The correctness thesis is, therefore, incapable of sustaining its claimed connection between law and morality. The correctness thesis – in virtue of its formalism – becomes a particular instance of a more general claim to correctness expressed through the medium of language. Hence, the assertion of distinctive character of law’s claim to

39 Ibid. 40 Ibid. 41 Ibid., 26, where Raz refers to Alexy, The Argument from Injustice, 35–36. 42 Also characterized as Radbruch’s formula or the Radbruch formula, it is contained in Radbruch’s essay of 1946, “Statutory Lawlessness and Supra-Statutory Law”: “The conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice. It is impossible to draw a sharper line between cases of statutory lawlessness and statutes that are valid despite their flaws. One line of distinction, however, can be drawn with utmost clarity: Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice”. (Gustav Radbruch,“Statutory Lawlessness and Supra-Statutory Law”, Oxford Journal of Legal Studies, 26, 1, (2006), 1–11 (7)). For a consideration of the broader importance of Radbruch’s post-World War ii work, see Stanley L. Paulson, “On the Background and Significance of Gustav Radbruch’s Post-War Papers”, Oxford Journal of Legal Studies, 26, 1, (2006), 17–40; and Nathalie Le Bouedec, “Le rôle de la pensée de Gustav Radbruch dans la refondation de l’Etat de droit démocratique après 1945”, Revue d’Allemagne et des pays de langue allemande, 46 (1) (2014), 83–94. 43 It should be emphasized here that the Razian reconstruction of Alexy’s correctness thesis, even if necessitated by the purported absence of detailed explication in Alexy’s The Argument from Injustice (Raz, “The Argument from Justice”, 26), is outlined in considerable detail, for example, in Alexy’s contribution in Meyer, Paulson and Pogge, (eds.), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (Alexy, “The Nature of Arguments about the Nature of Law”).

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correctness lacks sufficient specificity and simply exemplifies a commonality shared by “all intentional actions”.44 As is evident, the thesis merely means that (a) actions of different kinds are subject to evaluation as actions of those kinds (though perhaps to other evaluations as well), and (b) it is part of the concept of intentional action that one who performs an intentional action is subject to assessment by the standard applying to actions of that kind (the kind under which it is intentional).45 For Raz, the generality and, thus, inapplicability, of the correctness thesis is reinforced by the concession that the thesis is not incompatible with legal positivism.46 In this concession, Alexy effectively acknowledges the incapacity of the correctness thesis to provide a decisive argument against legal positivism.47 It follows, for Raz, that the correctness thesis constitutes an entirely general thesis about the character of action and its evaluation. It, therefore, indicates nothing about the specific character of law and nothing about the necessary connection between law and morality. The difficulties inherent in the Alexyan correctness thesis arise from the attempt to proceed directly from a conceptual thesis to a specific thesis: from the delineation of the character of all purposive activity to the delineation of the specific character of law. Hence, the correctness thesis reveals itself to be of “no specific help in elucidating the nature of law”.48 From this critique of Alexy’s construction of, respectively, the separation thesis and the correctness thesis, Raz proceeds to address Alexy’s reformulation of the Radbruch formula, as a thesis of extreme or gross injustice.49 Alexy identifies a necessary and intrinsic connection, within law, between law and morality, predicated upon “an inherent legal norm instructing courts to refuse to apply all laws which perpetuate gross injustice”.50 The Razian response to the Alexyan assertion of a necessary connection between law and morality, and to the related argument from injustice, has recourse to a conception of positive law which accentuates the possibility, rather than the necessity, of 44 Raz, “The Argument from Justice”, 26. 45 Ibid. 46 Here, Raz relies upon Alexy, The Argument from Injustice, 39: ‘a positivist can endorse the argument from correctness and nevertheless insist on the separation thesis’. 47 Raz, “The Argument from Justice”, 28. 48 Ibid. 49 See Radbruch, supra. fn.42. 50 Raz, “The Argument from Justice”, 29.

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extreme injustice leading to the invalidity of positive law.51 For Raz, the argument from (extreme) injustice, as a possibility, reflects the complete dependence of the argument upon its recognition in positive law, through the existence of a specific legislative enactment. Alexyan necessity and Razian possibility rest, therefore, on the primacy accorded respectively to the proposition of an invariant and universal morality to which positive law is subject or to the proposition of the inherent contingency and mutability of positive law. The mutability of positive law exists, for Raz, in tandem with the general, extra-legal manifestation of morality. The Razian position is, therefore, distinguishable from not only Kelsenian legal positivism, with its stringent separation thesis, but also from the later variant, Anglo-American inclusive legal positivism, predicated upon the incorporation of morality within positive law. In short, the Razian position accentuates positive law in the relationship between law and morality.52 Thus, Raz, while accepting that law and morality occupy discrete domains, situates the two domains in a contingent and fluid interrelationship. This enables the Razian position not only to acknowledge and accommodate, rather than be undermined by, the Alexyan position, but also to provide support for Raz’s assertion that the Alexyan position fails to establish the extreme injustice thesis, beyond the realm of social fact, in the form of specific legislation. The Alexyan construction of the separation thesis, through the distinction it seeks to erect between participant and observer, is, therefore, further destabilized, for Raz, on the basis that, in within a legal system, a legal instrument 51 52

For present purposes, we view the Razian conception of positive law as a composite of the positions articulated in Raz, Practical Reason and Norms; Raz, Ethics in the Public Domain; and Raz, The Authority of Law. The initial Razian divergence from this aspect of inclusive legal positivism is indicated in Raz, The Authority of Law, 48, fn.8, and elaborated upon in Joseph Raz, “Incorporation by Law”, 10, (1) Legal Theory, (2004), 1–17, where Raz concludes: ‘The incorporation thesis claims that moral standards turn into law simply because of their incorporation. It seems to lack the resources to distinguish between law directing us and the courts to follow some foreign law or to obey the rules of some associations, and so on, and the incorporation of morality. In fact it has a special difficulty with the latter, for morality applies anyway, and the incorporation thesis suggests that it applies only if incorporated. The argument of this article has shown that so-called incorporating laws have their point – that their effect is not to incorporate but rather to prevent the exclusion of morality by law. This deprives the incorporation thesis of another possible argument, namely, that it alone can make sense of the existence of laws that appear to incorporate moral standards. On the contrary, it cannot explain their function. Given that morality applies anyway, their function cannot be to incorporate it. None of this proves that the incorporation thesis is false. But it raises serious doubts about it, doubts that its supporters have not yet confronted successfully’ (Raz, “Incorporation by Law”, 17).

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or rule of (potential or actual) extreme injustice is countered by a remedial or protective legal instrument or rule “which directs the court to set aside any rule which is grossly unjust”.53 Thus, where conflict between a legal rule tending to, or resulting in, extreme injustice and a remedial or protective legal rule arises, the rule …instructing courts to disregard grossly unfair laws, directs the court to set aside [the unjust rule]. When doing so the court both makes law, and (by that very act) it also follows law. There is nothing here which cannot be described by either observer or participant.54 A central aspect of Alexy’s critique of legal positivism – that aspect which ­attempts to identify a necessary connection between law and morality – is thereby placed into question, and, as a result, Alexy’s attempt to identify a necessary connection is confined to his correctness thesis. The intimate relationship between the correctness thesis and the argument from (extreme) ­injustice, requires that the correctness thesis is capable of satisfying the ­demands of this argumentative purpose which, on Raz’s reconstruction of its principal elements, remains highly problematic.55 Raz contests the ­presumption of the Alexyan correctness thesis that a claim of law to correctness indicates, or entails, a claim to moral correctness. Rather, the claim of law to correctness remains an instance of the more general and limited claim to correctness contained in “all intentional actions and their products”.56 Indeed, for Raz, to proceed from the general claim to one which postulates the interconnection 53 Raz, “The Argument from Justice”, 30. 54 Ibid. 55 Raz’s rendering of the extreme injustice thesis, which draws upon private communication between Marmor and Raz (Raz, ibid., 31, fn.34), comprises the following elements (with Marmor’s third element omitted): “(1) The law essentially makes a claim to its moral correctness. (2) From the participant’s point of view, this claim to moral correctness forms part of the reasons to follow the law, and in the case of judges, to apply it. (4) Since a grossly unjust law cannot be morally correct (ex-hypothesis), judges ought to interpret the law so that grossly unjust law is rendered invalid. (5) Therefore, from the internal point of view, from the point of view of judges, unjust law is not law” (ibid. 31). As with Raz’s reconstruction of Alexy’s correctness thesis (see supra. fn.26), Raz’s rendering of the extreme injustice thesis, even if held to be required by the purported absence of detailed explication in Alexy’s Argument from Injustice (ibid. 31), the thesis is provided with a detailed explication in Alexy’s earlier, “The Nature of Arguments about the Nature of Law” in Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz, eds. Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge, (Oxford: Oxford University Press, 2003), 3–16. 56 Raz, “The Argument from Justice”, 31.

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of legal with moral correctness requires the deployment of more extensive, forceful argumentation, which Alexy does not provide.57 Raz, accordingly, sets forth his own theory.58 For Raz, positive law articulates a more modest moral claim than that delineated in Alexy’s moral correctness thesis: the claim to legitimate authority. Thus, legal rules of positive law “are binding even if not correct” which entails that “authorities (police, courts, administrative agencies) can be aware both that the rules they apply are morally wrong, and that they are morally binding upon them and on their subjects”.59 The potential for these authorities to change or refrain from applying the law is, however, dependent upon the existence, and authorization, of a specific provision of positive law. Hence, for Raz, only a far weaker, more contingent, connection between law and morality exists, and will never be capable of sustaining the necessity of the claim, of law, to the simultaneous claim to moral correctness posited in The Argument from Injustice. The second element in Alexy’s claim to moral correctness – the claim of moral correctness, from the participant’s perspective, as reason to follow and/ or apply the law60 – is also, Raz maintains, vulnerable to challenge. Here Raz distinguishes the claim that law is to be morally legitimate, the moral claim of law as a claim to legitimate authority, on the one hand, from participants’ perceptions of law as morally legitimate, on the other. The purpose of the distinction is to demonstrate that a legal duty, derived from the authority of a system of positive law and its legal rules, is to be differentiated from a moral duty. Thus, for Raz, the second element in Alexy’s claim to moral correctness thesis is sustainable only if the identification of grossly unjust laws provides the justification, and the necessity, for participants to hold that “no grossly unjust law is law, or that courts have an inherent legal power to set such laws aside”.61 However, the preceding Razian analysis has designated morality as residing in an extra-legal domain, and the identification of grossly unjust laws is the exclusive preserve of that domain, without any necessary import for the legal domain: “officials just like other people may, and should, believe that some laws should be set aside, but it does not follow that they are authorized by law to set them aside”.62 57 58

Ibid. 31–32. The Razian position is based upon a recapitulation of discussions in Raz, Practical Reason and Norms, Raz, Law and Ethics in the Public Domain, and Raz, The Authority of Law. 59 Raz, “The Argument from Justice”, 32. 60 See supra. fn.50. 61 Raz, “The Argument from Justice”, 32. 62 Ibid. 32–33.

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Raz further contends that the separation thesis remains unscathed by the supplementary elements Alexy appends to the thesis of extreme injustice,63 which Raz considers to consist of “conceptual confusions and highly speculative empirical assumptions”,64 incapable of establishing a necessary connection between legal duty and moral duty. The difficulties are exemplified, for Raz, in the Alexyan assumption of an inherent connection between rational justification and knowledge. This assumption, in conceiving the further relationship between rational justification, knowledge and justice, establishes a simultaneous capability to reason logically and to cognize injustice. Raz’s reservations, at the conceptual level, regarding this aspect of Alexy’s supplementary thesis are reinforced when it is considered that the supposed simultaneity appears to expand, growing more pronounced in proportion to the degree of injustice, such that: “the more extreme the injustice the more certain the knowledge of it”.65 The necessity of the Alexyan connection between rational justification and cognition or knowledge of injustice dissolves, for Raz, with the recognition that the relationship between rationality and knowledge is complicated by the presence of the notion of belief. The interrelationship of rationality, knowledge and belief, requires the adoption of the more complex distinction between arguing “rationally to a mistaken conclusion, that is, having reached a false belief (which one arrived at by reasoning) and having irrationally accepted a belief”,66 and also to question whether “knowledge (as distinct from belief) [may be] more or less certain, that is [may] admit of degrees”.67 The Alexyan claim of necessary connection is open to challenge, at the empirical level, by the weight of historical and contemporary practices of injustice.68 The extent of the incidence of unjust practices indicates the enduring absence of the instantaneous connection in Alexy’s extreme injustice thesis between the extremity of injustice and its contemporaneous recognition. The weakness of the Alexyan position when confronted with the weight of evidence of these unjust practices suggests the continued viability of detaching a theory of law from “such arguments”,69 and of Marmor’s construction of the separation thesis.70

63 The elements are outlined at supra. fn.50. 64 Raz, “The Argument from Justice”, 33. 65 Ibid. referring to Alexy, The Argument from Injustice, 52. 66 Ibid. 67 Ibid. 68 Ibid. 69 Ibid. 70 Ibid.

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The continued tenability of the necessary connection between morality and law is then examined by Raz in the final form of Alexy’s argument for universal ‘legal principles’ “whose function … is to instruct courts how to decide case to which conflicting reasons apply”.71 The necessity and universality of legal principles is immediately qualified, by Raz, by their essentially contingent presence within any legal system. The role and influence, if any, of legal principles or standards is an empirical question. Thus, while “it is plausible to suppose that legal systems include legal standards of varying kinds, which are needed for the resolution of practical disputes”,72 the plausibility, or social fact, of ‘legal principles’ is unrelated to and distinct from establishing their inevitable, necessary and universal manifestation in legal systems.73 Once the nonnecessitarian status of Alexy’s legal principles or standards is acknowledged, it becomes impossible to accord them the significance they require to sustain the correctness thesis. Accordingly, while there may be plausibility in the claim as to the role of legal principles – primarily to respond to and to correct moral deficiencies in the normative structure of a legal system – such claims are unable to demonstrate that legal principles form an essential component of all legal systems.74 The Razian critique demonstrates the implausibility of Alexian non-positivism in order to situate Anglo-American positivism beyond the purview of the Alexian critique. Anglo-American positivism is revealed to acknowledge the existence of morality without an assertion of the essential or exclusive moral orientation of a legal system. The general deflationary effect of the Razian critique is the counterpart of the Razian emphasis upon a conception of legal theory which transcends the division between “legal positivism and other accounts of the nature of law”.75 2

The Alexyan Response

Raz’s critique of Alexy’s The Argument from Injustice, orientated by the Anglo-American variant of legal positivism, retains the Hartian separation, or separability,76 thesis and, in Raz’s positivism, incorporates the contention that law has, or claims to have, legitimate authority. The acknowledgement of 71 Ibid. 34. 72 Ibid. 73 Ibid. 74 Ibid. 75 Ibid., 35. 76 See supra. fn.15.

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morality in Razian legal positivism is as a phenomenon which is entirely external to law. In Alexy’s theory, however, law possesses a dual character, namely, both a factual and an ideal dimension. In contrast to the positivist insistence that “the ideal remains essentially external to what the law is”, for Alexy, the factual and the ideal dimensions of law are “internally connected”.77 Raz’s critique seeks, on Alexy’s account, a double dissolution of the ideal dimension of law; namely, in terms of its association with morality and in the more abstract sense as a means of structuring reflection on law. Thus, Raz rejects the putative necessity to define law and confines his theory to the delineation of “certain essential or necessary features of the law or on a list of such features”.78 The Razian challenge to Alexy’s ideal dimension of law also extends to challenge the Alexyan separation thesis. For the continued potential for the inadequacy of any definition of law removes the requirement for systematic exposition and, in turn, minimizes the ideal aspect of law as morality. The effect of the Razian critique is, however, to accept a non-necessitarian connection between law and morality which concedes that the existence of legal and moral obligations “in no way renders legal validity or correctness dependent upon any moral merits or demerits”.79 For Alexy, the separation thesis, and the attendant assertion of a factual and an ideal dimension to law, therefore, remain intact. The separation thesis is an expression of the dual character of law which affirms the separation of “legal validity and legal correctness from any moral merits and demerits”,80 and endorses a non-necessitarian connection between law and morality. Thus, Alexyan non-positivism arises within the field of legal interpretation in which the ideal dimension of is utilized to evaluate the factual or real dimension of law: it opens law to “the possibility of being assessed according to moral criteria [and] entails nothing whatever about the necessary dependence of legal validity or legal correctness on moral merits”.81 The Alexyan dual nature of law shapes the response to the Razian challenge to the distinction between participant and observer of a legal system. The separation thesis situates the participant in a legal system in relation to both the real and ideal dimensions of law. This is in contrast to the position of the observer which is an essentially non-evaluative and descriptive. Thus, for Alexy, it is the adoption of a stance of evaluation – the position of a participant – which transforms the context for the interpretation of a proposition common 77 Alexy, “An Answer to Joseph Raz”, 37. 78 Ibid. 42. 79 Ibid. 43. 80 Ibid. 81 Ibid.

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to both participant and observer. The different interpretative positions, and their respective methodologies, emerge from distinct modes of questioning. The context of the participant is “defined by the question ‘What is the correct legal answer?’” and refers to the methodology of legal argumentation.82 The distinct position of the observer is orientated “by the question ‘How are legal decisions actually made?’”,83 and determined by the methodology of empirical description. While Raz denies that contradictory propositions arise merely on the basis that the proposition results from the adoption of the position of an observer in contrast to that of a participant, Alexy maintains that the dual character of law entails that participant and observer, when referring to the expression “law”, utilize distinct concepts which express a non-positivist and positivist concept of law respectively:84 [I]f the answer of a participant to the question of what law is – a least in cases that cannot be solved by simple subsumption – involves considerations about what the law ought to be, then he has to presuppose a concept of law that includes not only a factual but also an ideal dimension. In contrast to this, the observer’s answer to the question of what law is does not in any case involve considerations of what the law ought to be. If it did, the party would not remain an observer. Therefore, he must be presupposing a concept of law that refers only to the factual dimension of law and excludes the ideal dimension. This is the positivistic concept of law.85 The insistent reaffirmation of the soundness of the participant and observer perspectives is then the basis upon which Alexy proceeds to his “arguments from correctness, from injustice and from principles”.86 Here, Alexy seeks to defend his “correctness thesis” against Raz’s critique that the thesis provides no more than a generalized theory of intentional action and its evaluation. Thus, for Alexy, the claim to correctness rests on law’s claim to objectivity, that 82 Ibid., 46. 83 Ibid. 84 Ibid. 85 Ibid., 48. Alexy adds the precision that “[t]his is not to say, however, that the observer’s considerations cannot include considerations about what participants he observes think that law ought to be. One might call such considerations ‘indirect’ or ‘third ­person’ ­considerations about what the law ought to be by contrast to the direct and first person consideration of the participants” (Ibid., 48, fn46). 86 Ibid.

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is, law’s claim “to be acceptable to all who take the point of view of the legal system in question”.87 The thesis of correctness is thereby situated between the claim to truth – “to be acceptable to all without any further qualification”– of “universalistic morality” and the particular claim – “the complete subjectivity of the purposes at issue” – of “purposeful activity”.88 The further delineation of the thesis of correctness as “a claim to moral correctness”89 arises in situations in which existing positive law cannot provide the basis for “the decision of a normative matter”.90 In these situations, “the authoritative material allows for more than one decision”, and “if it is not to be an arbitrary decision, it must be based upon other normative standards”.91 Within these situations, the extent to which the particular decision concerns “[q]uestions of correct distribution and balance” entails that the decision is informed by “[q]uestions of justice” revealing the claim to correctness as a claim to moral correctness.92 The non-positivist theory of law introduced by the thesis of correctness is extended and reinforced by the Alexyan the thesis of extreme injustice and the thesis of principles. The thesis of extreme injustice elaborates a non-positivist theory of law in relation to a legal system confronted with the exceptional situation of “a statute that is unjust in the extreme”.93 The non-positivist position is one which acknowledges that, in relation to the Razian critique, a thesis of extreme injustice – “no extremely or grossly unjust law is law”94 – is unable to be derived from notions of moral rightness or moral legitimacy. For Alexy, however, the thesis of extreme injustice is established, and the Razian critique evaded, through recourse to two complementary elements: “a theoretical part and a normative part”.95 The theoretical part focuses upon the dual character of law arising from the preceding thesis of correctness which reveals law as both “essentially authoritative and essentially ideal”.96 The dual character extends to the realm of “values or principles”, and establishes legal certainty in relation to the authoritative aspect and justice in relation to the ideal aspect

87 Ibid. 88 Ibid. 89 Ibid., 50. 90 Ibid. 91 Ibid. 92 Ibid. 93 Ibid., 54. 94 Ibid., 52. 95 Ibid. 96 Ibid.

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as its “most abstract value or principle”.97 Thus, law “is part of reality that refers necessarily to the ideal [and] comprises an institutional or authoritative dimension as well as an ideal or critical one”.98 The normative aspect is distinguished through its focus upon extreme injustice from the position of the participant in a legal system. The participant, situated at the intersection of the dual character of law, its real and ideal dimensions, and their two respective principles, legal certainty and justice, generates a form of decision-making shaped by a conscious choice between these two principles. The choice is itself determined by a process of balancing in which the internal connection between the principles of legal certainty and justice, themselves the expression of law’s dual character, are, therefore, embodied in judicial decisions. In this manner, the argument from (extreme) injustice becomes a feature of judicial decision-making, and is reflected in the perpetual process of balancing between the two principles which are themselves the expression of the dual nature of law. The capacity of the balancing process to express the thesis of extreme injustice rests upon the identification of extreme injustice, by the principle of justice, and for this identification to outweigh the principle of legal certainty. The extremity of the injustice causes the balance to be determined by the principle of justice as an exception to the primacy conventionally accorded to the principle of legal certainty – “the moral value and legitimacy of authoritativeness”.99 Extreme injustice replaces the primacy of legal certainty with the primacy of justice; and thus, for Alexy, “the Radbruch formula is vindicated by normative arguments which are embedded in theoretical arguments”.100 The interconnection between theoretical and normative arguments of the thesis of extreme injustice reveals the integral relationship between knowledge and the identification of extreme injustice. The Alexian response reaffirms the claim of the thesis of extreme injustice, and places into question the Razian insistence upon the inherent incapacity of knowledge, as the product of rational deliberation and argumentation, to furnish a comprehension of extreme injustice which determines the nature of law. The Alexian argument from (extreme) injustice is complimented by the more general relationship between law and morality of the argument from principles, which holds:

97 Ibid. 98 Ibid. 99 Ibid., 53. 100 Ibid.

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…first, that all legal systems, beginning at the minimal level of development, necessarily comprise principles; secondly, that the necessary presence of principles in the legal system leads to a necessary connection between law and some morality or another, and, thirdly, that this, together with the claim of correctness, leads to a necessary connection between law and moral correctness.101 Here Alexy eludes the deflationary effect of Raz’s claim that principles are merely an example of one possible element of a legal system by insisting upon the distinctiveness of principles. In response to the Razian reduction of principles to the relationship of empowerment between a provision of positive law and its utilization in the resolution of disputes, Alexy emphasizes the “shift from one concept to another”102 embodied in his argument from principles. The shift is from judicial decision-making as a process of balancing to “the concept of a principle”,103 which requires “some fundamental theses of the theory of balancing” in order to entail the necessity of the “step from the concept of balancing to the concept of principle”.104 In this manner, the final argument of principles reveals the resilience of Alexyan non-positivism situated beyond the distinction within AngloAmerican legal theory between internal and external legal positivism. Alexy displaces the approach typically adopted in Anglo-American positivism to the relationship between law and morality as one of incorporation. The dual character of law, as expressed in the argument from principles, establishes that “morality, by virtue of the nature of law, is already incorporated”.105 Thus Alexyan non-positivism asserts a necessary, internal connection between morality and law, which remains unaffected by the Razian critique. 3

Kelsenian Reflections

The enduring pertinence of the division between legal positivism and nonpositivism, for Alexyan non-positivism, is evident in the reaffirmation of the central elements of The Argument from Injustice in Alexy’s rejoinder to Raz’s critique. It is also evident, from the exchange between Raz and Alexy, that the 101 Ibid. 54. 102 Ibid. 55. 103 Ibid. 104 Ibid. 105 Ibid.

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division is situated in a theoretical framework wherein the separation thesis is detached from Kelsenian legal positivism.106 Thus, the critical engagement between Alexy and Raz centres upon “the relation between the nature and the concept of law [and] the relation between law and philosophy”,107 in which the Kelsenian legal science of positive law has ceased to orientate their respective positions. Indeed, for Alexy’s and Raz’s legal thought, both Kelsenian legal positivism and its constitutive antipathy to the natural law tradition are viewed as having been superseded by more recent developments in contemporary legal theory.108 As a consequence of this supersession, ‘natural law’ has shed its theological foundations and has become reformulated as a question of morality.109 The preference for a conceptual vocabulary derived from ‘morality’, rather than the natural law tradition, is also a corollary of the common salience of ‘practical reason’ for Raz and Alexy. The notion of morality and its relationship to practical reason forms the central focus of reflection in the determination of the parameters of a contemporary legal theory. The prominence accorded to practical reason emphasizes the distance from the methodology of Kelsenian legal positivism in contemporary legal theory.110 106 See Peter Langford, Ian Bryan and John McGarry, (eds.). Kelsenian Legal Science and the Nature of Law, (Dordrecht: Springer, 2017). See also Clemens Jabloner, ‘Die Rechtsbegriff bei Hans Kelsen’, in Rechtstheorie: Rechtsbegriff – Dynamik – Auslegung, edited by Stefan Griller and Heinz Peter Rill, (Vienna: Springer, 2011), 21–39. 107 Robert Alexy, “On Two Juxtapositions: Concept and Nature, Law and Philosophy. Some Comments on Joseph Raz’s ‘Can There Be a Theory of Law?’”, Ratio Juris, 20 (2), (2007), 162–169 (163). 108 Beyond the parameters of this exchange between Raz and Alexy, the degree and character of the critical distance from the Kelsenian project also forms a futher distinction between their legal theories. The difference is exemplified by the comparison of Joseph Raz, “Kelsen’s Theory of the Basic Norm”. In Joseph Raz, The Authority of Law 2nd Edition, (Oxford: Oxford University Press, 2011), 122–145 and Joseph Raz, “The Purity of the Pure Theory”. In Joseph Raz, The Authority of Law 2nd Edition, (Oxford: Oxford University Press, 2011), 293–312; and Robert Alexy, “Hans Kelsen’s Concept of the ‘Ought’”, Jurisprudence, 4, (2) (2013), 235–245. 109 The lack of wider, sustained engagement is reflected in the concentration by Raz and Alexy on the work of John Finnis as the exemplary representative of a contemporary theory of natural law. See, for example, the contrasting approaches to the work of Finnis in Joseph Raz, “The Obligation to Obey: Revision and Tradition”, Notre Dame Journal of Law, Ethics & Public Policy, 1 (1) (1984) 139–155; and in Robert Alexy, “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis”, American Journal of Jurisprudence, 58, (2) (2013), 97–110. 110 This, in turn, marks a further transformation of the theoretical framework of contemporary legal theory in comparison with the critique of practical reason contained in the elaboration of the Kelsenian theory of positive law. This is initially evident, for example, in the discussion of Kant in the concluding section in “Natural Law Doctrine and Legal

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The Kelsenian insistence upon the theory of positive law as a legal science has ceased to represent the necessary prerequisite for the demarcation of a legal theory of positive law.111 The absence of recourse to the methodological notion of science, as the methodological precondition for the conceptualization of positive law, removes the requirement for a theoretical framework rigorously ‘purified’ of non-legal concepts. The internal connection and coherence of the concepts of a legal theory cease to be determined by the primacy accorded to the principle of non-contradiction in the Kelsenian framework. Contemporary legal theory, for both Raz and Alexy, has relinquished the Kelsenian conception of a theory of law as a logical space in which the further demarcation between legal norms is governed by the relationships of subordination and co-ordination. For Razian legal theory, the critical appropriation and surpassing of Kelsenian legal theory112 and the concomitant qualification of the theoretical purpose of a legal theory113 entails the clear passage beyond the Kelsenian project. In contrast, for Alexy, the systematic impulse of Kelsenian legal theory is preserved, but the theoretical foundation is transformed by the insistence upon the inclusion of morality as the dual nature of law. The divergence of Razian and Alexian legal theory – the continued distinction between positivism and non-positivism – is combined with a common detachment from the Kelsenian framework. The prevalent understanding is thus of the apparent disappearance

Positivism” essay of 1928 and the demonstration of the contradictory character and emptiness of the Aristotelian mesotes formula in the “The Philosophy of Aristotle and the Hellenic-Macedonian Policy” essay of 1937; and finds its final, comprehensive formulation in the posthumous General Theory of Norms. For a detailed examination of the Kelsenian critique of practical reason, centred upon the General Theory of Norms, see Francesco Viola, “Hans Kelsen and Practical Reason” in Langford, Bryan and McGarry, Kelsenian Legal Science and the Nature of Law, 121–139. 111 The question of the enduring attribution of a legal science to the Kelsenian project and the attendant question of its periodization is left unexamined here. See, for an extended examination of the final period of Kelsen’s work, Stanley L. Paulson, “Metamorphosis in Hans Kelsen’s Legal Philosophy”, Modern Law Review, 80, (5), (2017), 860–894. 112 See, Joseph Raz, “Kelsen’s Theory of the Basic Norm” and “The Purity of the Pure Theory”. For a critical overview of this Razian approach to Kelsen, see the concluding chapter in Peter Langford, Ian Bryan and John McGarry eds. Kelsenian Legal Science and the Nature of Law, (Dordrecht: Springer, 2017). 113 See, Joseph Raz, “Can There be a Theory of Law?”. In Between Authority and Interpretation. On the Theory of Law and Practical Reason, Joseph Raz (Oxford: Oxford University Press, 2010); and Joseph Raz, “Two Views of the Nature of Law: A Partial Comparison”. In Between Authority and Interpretation. On the Theory of Law and Practical Reason, Joseph Raz, 47–87, (Oxford: Oxford University Press, 2010).

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of Kelsenian legal theory from any significant inherence in either positivist or non-positivist forms of contemporary legal theory. The potential for renewed reflection upon the enduring inherence of the Kelsenian project within contemporary legal theory arises from the notion of qualified rationality attributed to a legal system. The qualified rationality of the Kelsenian project inheres in the structure and operation of a system of positive law revealed by the methodological purification of a pure theory of positive law. The procedure of methodological purification creates a position of legal cognition from which the reconstruction of the relationships between legal norms within a legal system are undertaken.114 The reconstruction presupposes, beyond the distinctive Kelsenian basic norm (Grundnorm), a legal system of positive law which is open to change and describes both the static and dynamic features of the legal norms within it.115 An integral aspect of this Kelsenian reconstruction is the hierarchical structure of a legal system of positive law. The hierarchical structure proceeds from the abstract to the concrete and can be described as both static – the relationship of the levels at a particular moment of description – and dynamic – the hierarchical structure is in a perpetual process of movement from abstract to concrete. The conceptual term for this hierarchical structure of the legal system of positive law – Stufenbaulehre116 – is not merely the division into levels, but a division which generates further relationships of validity and authority or authorization between the levels.117 114 The exemplary Kelsenian text is the Pure Theory of Law (Reine Rechtslehre) 1934. 115 The second edition of the Pure Theory of Law (1960/1967) introduces the terminology of normostatics and normodynamics to structure the reconstruction. 116 The term originates in the work of another member of the Vienna School of legal theory, Adolf Merkel, and is subsequently adopted and inflected in Kelsen’s work after the Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatze of 1911 reaching its first full expression in Pure Theory of Law (Reine Rechtslehre) of 1934. The concept of the stufenbaulehre is developed by Merkel in the following work Adolf Merkl, “Zum Interpretationsproblem”, Grϋnhutsche Zeitschrift fϋr das Privatrecht und öffentliche Recht der Gegenwart, 42, (1916), 535–556; Adolf Merkl, “Das Recht im Spiegel seiner Auslegung”, Deutsche Richterzeitung, 9 (1917) 162, 394, 443–450; Adolf Merkl, Die Lehre von der Rechtskraft entwickelt aus dem Rechtsbegriff (Vienna: Franz Deuticke, 1923), in particular, 277–302; Adolf Merkl, “Justizirrtum und Rechtswahrheit”, Zeitschrift für die gesamte Strafrechtswissenschaft 45, (1) (1925): 452–465; Adolf Merkl, “Prolegomena einer Theorie des rechtlichen Stufenbaues” in Gesellschaft, Staat und Recht. Festschrift fur Hans Kelsen zum 50. Geburstag, edited by A. Verdross, (Vienna: Springer, 1931), 252–294. 117 See, on the concept of the Stufenbaulehre, Martin Borowski, “Concretized Norm and Sanction qua Fact in the Vienna School’s Stufenbaulehre”, Ratio Juris 27, (1) (2014), 79–93; Stanley L. Paulson, “How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law”, Revus, 21 (2013), 29–45 and Ewald Wiederin, “Die Stufenbaulehre Adolf Julius Merkls”, in Stefan

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The Stufenbaulehre is the structural framework within which to consider the specific rationality of positive law. The operation of methodological purification reveals, for Kelsen, an autonomous field of positive law governed by a rationality which includes the possibility of error in the further relationships of validity and authorization. The rationality of positive law is, thus, not exhausted by the question of the status the basic norm (Grundnorm), but is accompanied by a question of proceduralism which arises from the relationship between the levels of a legal system of positive law. For the passage from the abstract to the concrete, as the direction of movement between the levels, is itself produced by the framework of positive law: the regulation of law by law.118 The regulation and creation of law are, therefore, revealed by the pure theory of law to be fundamentally interconnected. The hierarchical structure of a legal system of positive law establishes this interconnection as it contains conditions for the creation of law.119 The movement from abstract to concrete between the levels of the system of positive law, through which legal norms are created and applied, is determined by a process in which the creation of a legal norm is combined with the establishment of the criteria of validity for a legal norm. Thus, the system is predicated upon the capacity for the levels to review the creation of legal norms through recourse to other legal norms established within the legal system of positive law.120 The particular structure created by the combination of creation and review produces a system which maintains its Griller and Heinz Peter Rill (eds.), Rechtstheorie. Rechtsbegriff – Dynamik – Auslegung, (Vienna/New York: Springer, 2011), 81–134. 118 The central Kelsenian texts are those of the 1920s, Hans Kelsen, “Die Lehre von den drei Gewalten oder Funktionen des Staates”, Archiv für Rechts- und Wirtschaftsphilosophie, 17, (3) (1923/24), 374–408; Hans Kelsen, Allgemeine Staatslehre, (Berlin: Springer, 1925); Hans Kelsen, “La garantie juridictionnelle de la constitution (La justice constitutionnelle)”, Revue de Droit Public et de Science Politique en France et à l’Etranger, 45(1928), 197–257, concluding with the polemic between Schmitt and Kelsen over the definition of the guardian of the constitution at the beginning of the 1930s. In comparison, The Pure Theory of Law, in both its versions of 1934 and 1960, in addition to the further consideration of the constitution in the posthumous General Theory of Norms, lack the depth of analysis of the work of the 1920s. 119 The Kelsenian position is an explicit rejection of the preceding tradition of German language legal theory as the interconnection of regulation and creation of law dissolves this tradition’s oppositions between the creation and application of law. See, Hans Kelsen, Introduction to the Problems of Legal Theory (A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law) translated by Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Oxford University Press, 2002), §31 (f), 70. 120 Here, the question of the transition from law to fact, at the most concrete level of the hierarchical system, and the question of the finality of a particular process of review, are left undiscussed.

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validity through the possibility for a legal norm to be subsequently determined to be invalid. The qualified rationality of the Kelsenian legal theory of positive law arises from the recognition of the simultaneous presence of error and the determination of the criteria defining error within the system of positive law. This is encapsulated in the Fehlerkalkül theory in which error becomes an integral aspect of the conception and operation of the system of positive law: a calculus of error. The two complementary alternatives to the presence of error of absolute validity and absolute invalidity are transformed into the presence of error and the capacity for its revision.121 The Kelsenian notion of qualified rationality, predicated upon a theory of positive law which excludes morality, initially appears to be without any direct connection to contemporary legal theory. For morality has become an essential aspect of the theoretical framework of contemporary legal theory which is common to both positivism and non-positivism. The connection becomes apparent once the focus is directed to the conception of the relationship between morality and law exemplified in the work of Alexy and Raz. This reveals a qualified rationality which, although not derived from a ‘purification’ of positive law, results from an insistence upon the limits of morality in the determination of positive law. The limits are reflected in the emphasis upon the character and dynamics of proceduralism internal to a legal system; and upon the status and character of morality. This opens the question of the extent to which the qualified rationality evident in contemporary non-positivism is at variance with the qualified rationality of the Kelsenian theory of positive law. A notion of qualified rationality is evident in Razian legal theory and Razian practical philosophy.122 However, the Razian approach has relinquished the methodological strictures of a general theory of positive law,123 and thereby removed the determination of the static and dynamic elements of Kelsenian legal positivism by the Stufenbaulehre.124 They are, rather, positioned within a 121 For Kletzer, Kelsen seeks “the comprehension of the complexities and the resolution of the paradoxes that surface from the depth of the concept of authorisation in the close scrutiny of all the interfaces, nodes and fractures in the constant legal process, i.e., process of the individualisation of positive law”. (Kletzer, “Kelsen and the Fehlerkalkül theory”, 54–55). 122 See, in particular, Joseph Raz, Engaging Reason: On the Theory of Value and Action; Joseph Raz, Value, Respect and Attachment; Joseph Raz, The Practice of Value; and Joseph Raz, Between Authority and Interpretation: On The Theory of Law and Practical Reason. 123 See, in particular, Joseph Raz, “Can There be a Theory of Law?” in Joseph Raz, Between Authority and Interpretation, 17–46; and Joseph Raz, “Two Views of the Nature of the Theory of Law: A Partial Comparison” in ibid., 47–87. 124 The Razian critique of Kelsen is not discussed here. See, however, Raz, 1975/ 1990; Raz, 1994; and Raz, 1979/ 2009.

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broader notion of conceptual change in which “as the concepts used by legal institutions change, and as the cultural background of their activities changes, the theory of law faces new questions, new challenges”.125 Here, in this process of conceptual change, the continuity with a Kelsenian qualified rationality, is revealed. For, the new questions and challenges accord primacy to the presence of error which is subject to conceptual revision. Thus, the Razian approach creates a middle position in which the process of conceptual change, generated by the revelation of error, is not that of an absolutely valid existing conceptual framework entirely dissolved by the revelation of its absolute invalidity. Rather, the Razian position, as one of qualified rationality, emphasizes conceptual change arising from “the emergence of new questions with the changing concepts and assumptions on which we rely in understanding social and legal phenomena”.126 When juxtaposed with Kelsenian qualified rationality – which denies the pertinence of practical reason and excludes morality, confining it to a radically distinct realm of values – the qualified rationality of Razian practical reason appears, initially, more apposite. The Razian conception of value, in its “complex interdependence of value, reason and the will”,127 demonstrates itself capable of far more extensive and complex reflection than the Kelsenian distinction between the domains of legal cognition and the will and its values. It is in the interrelationship between Razian legal theory and practical reason, created by the notion of the legitimate authority of law, that the Kelsenian notion of qualified rationality remains manifest in Razian thought.128 Whilst in this aspect of Razian thought, Kelsenian legal norms are displaced and replaced with that of rules as reasons for action, insofar as it recognizes the systemic configuration of legal rules, Razian theory is unable to evade Kelsenian qualified rationality. For, Raz’s assertion that the “content of legal rules can be established without resort to moral considerations bearing on the desirability or otherwise of any

125 Joseph Raz, “Introduction”, in Joseph Raz, Between Authority and Interpretation, 1–13 (3). 126 Ibid. 127 Joseph Raz, “Introduction”, in Joseph Raz, Engaging Reason: On the Theory of Value and Action, (Oxford: Oxford University Press, 1999), 1–3 (1). Compare, for example with the discussion in Hans Kelsen, “Science and Politics”, in Hans Kelsen, What is Justice? Justice, Law and Politics in the Mirror of Science, (Berkeley: University of California Press, 1957), 350–375. 128 See, in particular, Joseph Raz, “On the Nature of Law” in Joseph Raz, Between Authority and Interpretation, 91–125; Joseph Raz, “The Problem of Authority: Revisiting the Service Conception” in Joseph Raz, Between Authority and Interpretation, 126–165; and Joseph Raz, “About Morality and Law” in Joseph Raz, Between Authority and Interpretation, 166–181.

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human conduct, or of having any particular legal standards”,129 prompts the question as to the manner in which legal rules are then to be regulated. The Razian notion legitimate authority of law is, therefore, confronted with the determination of the character of invalidity and with the systemic regulation of rules as reasons for action. Alexyan non-positivism, elaborated on the basis of a necessary connection between morality and law, also appears entirely divorced from the Kelsenian project. The Kelsenian methodology of a pure theory of positive law is displaced by the Alexyan reference to the Radbruch ‘extreme injustice’ formula,130 in which a moral concept determines the boundaries of a legal system. The Alexyan theory of law, centred upon the thesis of extreme injustice, replaces the Kelsenian theory of law and state with the question of the relationship between a constitution and a parliamentary legislature centred upon constitutional rights. The distinctive, non-positivist character of Alexy’s theory of law arises from the transformation of the notion of justice into the analysis of the status and dynamics of constitutional rights. Thus, constitutional rights become the expression of principles which require optimization to enable the realization of their normative content.131 The Alexyan position – with its conception of law’s dual character and, hence, law’s capacity to account for necessary connections between constitutional rights and human rights qua positive rights – therefore departs from the Kelsenian normative hierarchy, or Stufenbaulehre, and substitutes a balancing exercise.132 The introduction of constitutional rights reflects a more complex movement in which the unilateral movement from abstract 129 Joseph Raz, “Introduction”, in Joseph Raz, Between Authority and Interpretation, 4. This position was originally developed in Joseph Raz, The Authority of Law: Essays on Law and Morality 2nd Edition, (Oxford: Oxford University Press, 1979). 130 For Alexy, “[t]his formula does not require any sort of complete fit as between morality law and morality. It allows that appropriately issued and socially effective norms are valid law even when they are severely unjust. It is in cases of extreme injustice that it gives preference to material justice over legal certainty. In this way, it builds into law an outermost limit”. (Robert Alexy, “The Nature of Arguments about the Nature of Law”, in Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge, (eds.), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz, 15–16). 131 The central Alexyan text is Robert Alexy, A Theory of Constitutional Rights, translated by Julian Rivers, (Oxford: Oxford University Press, 2010). 132 Here, the question of the connection between rights and legal and human personality together with the Kelsenian concept of imputation is left undiscussed. On the question of imputation in relation to the Alexian critique of Kelsen, see Stanley L. Paulson, “A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law?: Rejoinders to Robert Alexy and Joseph Raz” in Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy, (Oxford: Oxford University Press, ), 61–112.

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to concrete of the Kelsenian normative hierarchy is replaced by a process of balancing between relevant constitutional rights.133 The process of balancing envisages a relationship between the constitution and the parliamentary legislature which ensures that neither achieves predominance. The relationship is, therefore, neither one of pure proceduralism – “the discretion of the legislature [as] substantively unlimited” – nor one of pure substantialism – “all discretion is excluded” by a constitution which “contains a command or prohibition in respect of every conceivable legislative decision”.134 The simultaneous rejection of pure proceduralism and pure substantialism establishes a “substantive-procedural” position in which the constitution is a (non-positivist) juridical form which determines “the ‘sphere of legislative freedom’”.135 The position accorded to the balancing exercise represents the moral regulation of discretion; of the manner in which pertinent constitutional rights, themselves the expression of principles, are recognized. Here a qualified rationality arises since the balancing exercise determines the relative weight that is to be attached to each particular constitutional right, rather than their absolute validity or invalidity. In the further Alexyan elaboration of the balancing exercise as a logic constitutional rights, a potential affinity emerges with the logical space of the Kelsenian theory of positive law and the normative hierarchy and dynamics of the Kelsenian Stufenbaulehre. The initial affinity centres upon the denial of absolute, radical normative conflict in both Alexian logical space of balancing and the Kelsenian logical space of a theory of positive law. The affinity becomes more attenuated in 133 This also entails a distinct position in relation to the Kelsenian work on democracy which, in addition to its absence of a central position accorded to the notion of rights, emphasizes a strict separation between freedom and equality (see, in particular, Hans Kelsen, The Essence and Value of Democracy, (Rowman & Littlefield, 2013)). For the Alexian conception of constitutional rights proceeds beyond “classic defensive rights of the citizen against the state” to encompass “constitutional rights as basic provisions” which “require a positive act on the part of the state and are not limited to requiring state omissions, as are the classic liberties”. (Robert Alexy, “Postscript”, in Robert Alexy, A Theory of Constitutional Rights, translated by Julian Rivers, (Oxford: Oxford University Press, 2010), 388–425 (389)). 134 Ibid., 392. 135 Ibid., 393. For Alexy, “what is commanded and prohibited constitutes the framework. What is left free, that is, neither commanded nor prohibited, is what can be found within the framework. In this way, what is left free defines the discretion of the legislature. This is discretion is a structural one … What matters is that its extent is determined by what legally applies on the basis of constitutional norms. Structural discretion is constituted by the limits of what the constitution definitively commands and prohibits” (Ibid.).

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regard to the Kelsenian insistence that co-ordination and subordination are the sole processes through which the principle of non-contradiction is realized. For the Alexian logical space seeks to retain an openness – the reflection of the character of constitutional rights – which eschews subordination and the associated Kelsenian normative hierarchy. In this eschewal, however, an affinity remains with the notion of co-ordination, although accorded an Alexyan moral inflection, as the process of balancing ensures the continued effectiveness and legitimacy of the relationship between a constitution and a parliamentary legislature. The traces of qualified rationality evident in Alexyan and Razian legal thought reveal that the Kelsenian project subsists as a continued presence in both the legal positivism and non-positivism of contemporary legal theory. Bibliography Alexy, Robert. “Hans Kelsen’s Concept of the ‘Ought’”, 4, (2) Jurisprudence, (2013a): 235–245. Alexy, Robert. “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis”, 58, (2) American Journal of Jurisprudence, (2013b): 97–110. Alexy, Robert. “An Answer to Joseph Raz”. In Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy, edited by George Pavlakos, 37–55, (London: Bloomsbury/Hart, 2007a). Alexy, Robert. “On Two Juxtapositions: Concept and Nature, Law and Philosophy. Some Comments on Joseph Raz’s ‘Can There Be a Theory of Law?’”, 20, (2) Ratio Juris, (2007b): 162–169. Alexy, Robert. “The Nature of Arguments about the Nature of Law”. In Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz, edited by Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge, 3–16, (Oxford: Oxford University Press, 2003). Alexy, Robert. The Argument from Injustice: A Reply to Legal Positivism. Translated by Stanley L. Paulson and Bonnie L. Paulson, (Oxford: Oxford University Press, 2002a) (German original 1992). Alexy, Robert. Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie, (Frankfurt: Suhrkamp, 1995). Alexy, Robert. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Translated by Ruth Adler and Neil MacCormick, (Oxford: Clarendon Oxford University Press, 1989/2010) (German original, 1978).

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Viola, Francesco. “Hans Kelsen and Practical Reason” In Kelsenian Legal Science and the Nature of Law, edited by Peter Langford, Ian Bryan, and John McGarry, 121–139, (Dordrecht: Springer, 2017). Waluchow, Wilfrid J. Inclusive Legal Positivism, (Oxford: Oxford University Press, 1994). Wiederin, Ewald. “Die Stufenbaulehre Adolf Julius Merkls”. In Rechtstheorie. Rechtsbegriff – Dynamik – Auslegung, edited by Stefan Griller and Heinz Peer Rill, 81–134, (Vienna: Springer, 2011).

Index Alexy, Robert 26, 52, 228, 232–33, 235, 247, 250–51, 261, 275, 286, 331, 501–2, 519, 525–27, 530–31 Alighieri, Dante 13–15, 94–95, 97, 99, 105, 107, 116, 169, 179, 184 Althusius, Johannes 16–17, 44, 122, 125, 130, 137, 145, 157–60, 365 Aquinas, Saint Thomas 116, 137, 257, 313, 334, 365, 431, 501, 528 Aristotle 10–13, 16, 49, 53, 57, 59–61, 64–93, 96, 130, 134, 159, 168, 187, 220, 393, 491, 520, 529 authority 5, 12, 17, 33, 38, 43, 60, 77, 102, 105, 121, 145, 147, 149, 172, 192–93, 196, 222, 226–27, 231, 235, 245, 251, 272, 315, 321, 375–79, 388, 391, 404, 437, 475, 483, 511, 520–21, 523–25, 531 absolute 33, 153, 472 human 193–94, 196, 314 legislative 246, 341 legitimate 504, 511, 513 meta-legal 253–54, 271 normative 154, 269, 275 norm-creating 389 public 227 state’s 172 autonomy 2, 4, 9, 68, 70, 112, 130, 144–45, 175, 188, 190–91, 197, 204, 223, 237, 389 basic norm 4, 8, 26–28, 33, 46, 222, 229–37, 242–43, 251, 253–54, 270–74, 276–78, 280–81, 284, 286, 292, 294, 311–12, 315– 16, 318–21, 327, 341, 357, 361, 388–89, 404–5, 436, 447–48, 452, 482, 519–22 Bauch, Bruno 44, 60, 309, 314, 321, 326–28, 331, 337, 340, 342 Böckenförde, Ernst-Wolfgang 34, 374, 377, 393, 450 Bodin, Jean 16, 124, 158, 160 Brunner, Emil 38–39, 44, 462–66, 476–77 Calvinism 16, 44, 126, 160 Cassirer, Ernst 28–31, 45, 51, 172, 291, 296, 298, 300, 327–32, 344, 347–48, 350–51, 353, 355–58, 360, 364–66, 368–70

causality 218, 268–69, 340, 444 natural 335, 362 Christian conception of natural law 472 Christianity and democracy 51, 469 Christian justice 470, 472 civil rights 138, 143, 145 civil society 183, 209, 221 civitas maxima 18–19, 109–10, 161–63, 165–67, 169–70, 173, 176–79, 182–83, 186 coercion 5–7, 25, 139, 165, 340, 359–60, 404, 414, 416, 426 coercive order 5–6, 236, 271, 443, 482 cognition human 443, 472 rational 195, 203 Cohen, Hermann 23, 26, 28, 45–46, 284, 292, 294, 298, 300, 302, 321, 329, 331, 349–50, 360, 427, 473 Cohn, Jonas 28, 293, 309 commonwealth 16, 45, 70, 91, 124–25, 148, 156 community 37, 59, 80–81, 111, 125, 133, 135, 143, 147, 149, 152–54, 191, 194, 207–8, 331, 411 ethical 348, 350 political 82, 203, 208–9, 439 Constant, Benjamin 188, 190, 200, 213 constitution 12, 20, 30, 32, 55, 78–79, 81–82, 84–86, 132, 141, 142, 149, 175, 181, 183, 192, 200–202, 205, 214, 230–31, 235, 243–45, 247, 267, 271–72, 278, 304, 311, 316, 319, 329, 334, 352, 374–76, 383–84, 389, 399, 404–5, 421, 428–29, 482–83, 493–94, 522, 525–27, 529 democratic 11, 86, 244 natural 492 republican 29–30, 359 constitutionalism, liberal 356, 380 constitutional rights 502, 525–28 constitutional state 160, 243 liberal 221, 245

534 democracy 12, 20–22, 29, 31–33, 35, 37–41, 50–54, 59, 62, 80–82, 85–86, 88–89, 166, 188–95, 197–207, 210–13, 358, 373, 380–81, 392, 394, 425–26, 438–40, 443–46, 458, 462–76, 526, 528–29 democratic processes 20, 206 democratic system 463, 474 divine order 216, 466 Dworkin, Ronald 244, 256–57, 501, 503 emperor 15, 97, 110–14 empire 14–15, 52, 97, 114–15, 157 empowerment 235, 238–39, 270, 518 epistemology 60–61, 64, 73, 76, 296–97, 300–302, 334 equality 41, 177–78, 191–92, 226, 337, 445, 471, 507, 526 ethics 10–12, 27–29, 38, 44, 49, 59–60, 64–65, 71–72, 74–76, 78–80, 83, 86, 89, 91, 168, 191, 193, 196, 212, 219, 222, 259, 261, 266, 286, 310, 316, 324, 349–50, 355, 360, 385, 390, 451, 462, 476, 501, 509, 511, 528–29, 531 exclusive legal positivism 259, 500, 503 fictions 166–67, 171–72, 194, 208, 236–37, 315–16, 335 Finnis, John 500–501, 519, 527 force normative 255, 260, 286 retroactive 246 French Revolution 21, 146, 156, 197, 343, 352, 379, 441, 453 Fuller, Lon L. 257, 501, 503 government, representative 189, 199, 212 Grotius, Hugo 10, 19, 69, 163–65, 167, 186, 248, 257, 306, 356–57 Grundnorm 4, 8, 27, 33, 233, 250, 253–54, 270, 292, 295, 315, 321, 388, 404–5, 436, 482, 521–22 Hart, Herbert Lionel Adolphus 83, 107, 248, 251, 255–57, 262, 273–74, 300–302, 331, 516, 519–20, 544, 545 Hegel, Georg Wilhelm Friedrich 32, 50, 299–300, 318, 322, 496

Index Hobbes, Thomas 35, 42, 55, 91, 196, 246, 249, 257, 306, 351, 378, 394, 442, 478, 480, 484, 486, 497 human nature 82, 131, 133–34, 164, 216, 223, 249, 305, 341, 413, 433, 446, 464 human rights 137, 160, 245, 336, 351–53, 356–57, 384, 445, 525, 528 imputation 25, 121–22, 219–20, 230, 237–38, 249, 268–69, 282, 286, 402, 438, 525 normative 269, 273–74, 279, 285 inclusive legal positivism 259, 286, 500–501, 503, 509, 529, 532 injustice 8, 77, 225, 292, 311, 447, 501–2, 506–13, 515, 517, 527 extreme 509–10, 512, 516–17, 525 institutionalism 34, 406, 411–13, 417 institutions 97, 100, 106, 144, 177, 181–82, 202, 319, 353, 407, 411, 413–14, 416–17, 428, 451, 507 political 89, 129 social 257, 408, 411, 414–15, 417 international law 18–19, 32–33, 36–37, 45–46, 53, 60, 63, 90, 94, 108–10, 161, 167–70, 172–84, 186, 234–35, 245–46, 249, 252, 400, 419, 425–31, 433–38, 444–45, 453, 455–56, 459–60 international order 176, 180–81, 183 interpretation, legal 378, 495, 514 juridical 19, 95, 98, 106, 109, 133, 139, 143, 145, 172, 182, 217, 375, 392, 475 juridical categories 115, 177, 179, 382 juridical doctrine 95, 132 juridical forms 33, 181, 526 juridical framework 16, 20–21, 85, 100, 141 juridical justification 172 juridical order 41, 154, 172, 181 juridical science 95, 181, 391 juridical State building 99 juridical systems 107, 109, 124, 154 universal 108–9 juridical theory 9, 12, 37, 383 juridical tradition 103, 107 juridification 99–100, 180, 183 jurisdiction, constitutional 200–201 justice 1, 3, 5, 8, 10, 30, 38–40, 45–46, 49, 76–78, 97, 101–2, 128, 134–37, 163, 183,

Index 186–87, 195, 215, 221, 225, 228, 246–47, 251, 253–54, 256, 260, 305, 307, 309–11, 314, 316, 318, 341, 344–45, 349, 358, 360, 367, 418, 431, 436, 447, 462, 464–68, 472, 475, 481, 483, 492, 501–2, 504–5, 507–8, 510–12, 516–17, 524–25, 529, 531 absolute 8, 228, 232, 468 constitutional 11, 86 elimination of 316, 320 international 436 natural 247 justification 11, 15, 30, 39, 66, 86–88, 126, 147, 156, 190, 233, 244, 253–54, 272, 277, 286, 299, 441, 476, 486, 494, 511 historical 485 rational 224, 512 transcendental-logical 291 Kant, Immanuel 22–25, 47–48, 51, 53, 55, 70, 91, 115, 169, 182, 215–29, 231, 233, 235, 237, 239–43, 245, 247, 249, 251–52, 254, 263–68, 271–73, 278, 283–86, 289–93, 295–306, 308, 310–15, 318, 321–25, 330–31, 338, 344–45, 351, 354, 359–60, 364, 367, 385, 395, 432, 434, 449, 454, 479, 519 Kantian philosophy 24–25, 265–66, 306 Kaufmann, Erich 332, 337 Kelsen, Hans 1–3, 7, 10–11, 13, 17–18, 20–27, 29–30, 32–33, 35, 38–40, 45–55, 59–61, 63, 79–80, 89, 92, 94–95, 99–100, 108, 116, 122–23, 136, 152, 157–58, 160–62, 168–69, 171–72, 174–75, 179–80, 183, 185, 188–93, 195, 197, 199, 201–5, 207–9, 211–14, 216, 223, 229–30, 232, 234–35, 237, 241, 246, 248–49, 251, 257–58, 260–61, 264–65, 267–69, 277, 281, 283–86, 289–95, 297, 299, 301, 303, 305, 307–9, 311, 313–17, 319, 321, 323–25, 327–29, 331–39, 341, 343–47, 349, 351, 353, 355, 357, 359–61, 363, 365, 367–73, 382, 385–87, 389, 394–96, 398–400, 420–21, 425–33, 435–40, 442–43, 445, 447, 449–50, 452–56, 458–63, 473, 476, 478–79, 481–82, 491, 495–97, 500, 503, 519–22, 524–32 king 147–50 kingdom 11, 64, 83, 97, 147, 149 kingship 12, 87–88, 93, 435, 454

535 Lask, Emil 23, 26, 28, 293, 308 law coexistence of positive law and natural 243, 247 constitutional 32, 202, 205, 214, 245, 376, 383, 399, 421 content of 216, 311, 314, 501 creation and application of 4, 17, 522 customary 63, 167, 431, 435–36 definition of 504, 514 doctrine of 137, 310 doctrine of the unity of 281 domains of 133, 135, 268 dual character of 514–18 empirical 290, 309 evangelical 40, 470–71 existence of 264, 362, 407, 509 foundation of 193, 291–92, 294–95, 315, 361, 382 higher 257, 261, 275–76 ideal dimension of 514, 519, 527 knowledge of 232, 234, 242 legitimate authority of 524–25 morality of 63, 501, 528 national 235, 246, 437 natural law and positive 121–22, 139, 228, 305, 343, 494, 501 normativity of 253–55, 257, 259, 261, 263, 265, 267, 269, 271, 273, 275, 277, 279–83, 285–86, 315, 319, 326, 355 objective 238, 311–12 objectivity of 177, 315 origin of 146, 315, 466 philosophical justification of 486–87 philosophy of 260, 280, 284–85, 292, 294, 307–11, 316, 327, 360, 383, 393, 398, 404 pure theory of 7, 24, 29, 50, 74, 79, 91, 151, 170–71, 186, 203, 212, 216, 232, 238, 241–44, 246, 250–51, 253–54, 260, 265–69, 271, 274–77, 280, 282–85, 290, 319, 327, 330, 333–36, 339, 360, 362, 385–87, 389–90, 395, 400, 405, 419, 431, 434, 436, 456, 495, 521–22, 529 rule of 74, 98, 102, 154, 219, 224, 243, 253–54, 269, 271, 357, 374, 386, 399, 419 science of 74, 193, 267–69, 294, 309, 316, 320, 356, 386

536 law (cont.) sociology of 3–4, 27, 64, 92–93, 328, 339, 344, 358 theory of 2–3, 16, 23, 60, 74, 161, 178–80, 183, 241, 254, 271, 284, 310, 335, 345, 405, 407, 413, 512, 519–20, 523, 527, 531 validity of 174, 242, 244, 264, 308, 316, 361, 372 law and morality 1, 49, 79, 256–57, 259–60, 262, 266, 416, 500, 503–4, 507–11, 514, 517–18, 525, 529 law and philosophy 230, 235, 248, 251, 501, 519, 527, 529 law of nations 19, 36, 106, 133, 135, 153, 161–62, 164–67 legal authority 74, 238, 268–69, 272, 316, 386–87, 437 legal cognition 2, 8, 25, 27, 123, 174–75, 177–78, 242, 264, 266, 268, 273, 277, 389, 483, 521, 524 legality 98, 106, 160, 217, 259, 348, 360, 381, 418, 500, 503 legal monism 15, 19, 32, 108, 161, 180–81, 183, 235, 434 legal normativity 25, 255, 260, 263, 267, 282–83, 335, 356, 360, 362, 402, 410–11, 417 legal norms 1–2, 6–9, 20, 25, 63, 74, 121–24, 174–75, 219, 228, 230, 232–33, 235–36, 239, 250, 255, 268–69, 274, 283, 319, 336, 349, 359, 361–62, 376, 386, 388–89, 401–4, 409–12, 414, 416, 493, 508, 520–24 cognition of 273–74, 279 domain of 2, 452 reconstructed 402, 405 legal obligations 215, 228–29, 240, 261, 335, 340 legal order 6, 20, 41, 63, 100, 122–24, 135, 153, 170, 172, 180–81, 194, 203–4, 221, 233–35, 237, 245, 247, 253–54, 261, 269, 272, 316, 318, 335–36, 340, 378, 386, 389, 401–2, 406–8, 415–16, 431–34, 436, 441 international 181–82 national 94, 181–83, 234 positive 123, 203, 215, 260, 271 legal person 25, 219, 238, 240, 245 legal positivism 4, 9, 24, 29, 34, 39, 50, 61, 122–23, 136, 154, 156, 159, 162, 217, 227, 229, 240, 248, 253–55, 257–59, 261, 263–65, 284–86, 289, 292, 315, 321, 337,

Index 344–45, 355, 359, 367, 373, 382, 384, 408, 412, 415, 417, 426, 437, 444, 447, 452, 479–83, 485, 493, 495, 500–505, 508–10, 513–14, 518–19, 523, 527–31 legal reasoning 60, 92, 215 legal rules 74, 132, 258, 269, 415–17, 505, 510–11, 524–25 legal science 2–3, 9, 18, 23, 25, 27, 31, 37, 39, 43, 50, 59, 71, 74, 81, 123, 155, 182–83, 215, 267–68, 282, 285, 328, 330, 333–35, 343–44, 346–48, 389, 405, 415, 426, 434, 441, 444–45, 451, 493–94, 519–20 legal system 1, 27, 41, 99–100, 105, 109–10, 135, 173, 175, 193, 216, 224, 230–32, 234, 241, 244, 257, 270, 272, 274, 281, 315, 319, 326, 339, 392, 405, 408, 505–6, 509, 513–14, 516–18, 521, 523, 525 legal thought 331, 338, 342–43, 354–55, 359, 374, 519, 527 legal validity 134, 175, 232, 257–58, 270, 280, 336, 503, 514 legislation 24, 64, 81, 124, 175, 202, 217, 228, 233, 244, 256, 261, 283, 350, 431, 487, 507, 509 liberty 138, 141, 148, 188–92, 194, 199, 204, 212, 221, 250, 433, 449–51, 500, 528 Maritain, Jacques 38, 40–41, 47, 51, 55, 462–65, 469–77 Merkl, Adolf 7, 174, 186, 290, 313, 323, 327, 337, 368, 427, 429–31, 433, 435, 443, 447, 457, 459–61, 481, 495, 497, 521, 530 methodological foundations 23, 25, 29, 33, 62, 436, 493 Mill, John Stuart 188, 190, 200, 221 modernity 67–68, 96, 101, 104–5, 110, 115, 130, 137, 300, 351, 441, 461, 465, 490 monarchy 11–12, 59, 80, 84–88, 90, 97, 101, 381–82 hereditary 59, 83–84, 86, 88 moral correctness 510–11, 516, 518 morality incorporation of 509 positive 75–76 National Socialism 33, 37, 45, 375, 418, 429, 444, 448–49, 452–53, 458 Natorp, Paul 298, 329, 349–50, 427 natural law 1–5, 7–13, 15–19, 26–30, 36–43, 49, 60, 66, 69, 82, 90, 106, 116, 119, 121–23,

Index 125–27, 129–37, 139–43, 145, 147, 149, 151–55, 157, 159, 161–64, 168–71, 185, 193, 196–98, 212–13, 217–18, 222–23, 226–28, 232–33, 243–47, 252–57, 260–61, 266, 270, 274, 276, 281–82, 284, 289–91, 293– 95, 297, 299, 301, 303–9, 311, 313, 315, 317, 319, 321, 323, 327, 330–31, 333–59, 361–63, 365, 373, 385, 388, 417, 425–27, 429–39, 441–45, 447–53, 455, 457–59, 461–73, 475–76, 478, 480–83, 491–94, 497, 499–505, 507, 509, 511, 513, 515, 517, 519, 521, 523, 525, 527–29, 531 basic norm of 274, 276 classical 10, 12, 136 modern 19, 33, 122, 132 resurgence of 38, 475 natural law and natural rights 248, 425, 500–501, 528 natural law doctrine classical 313 early modern 351 modern 359 natural law tradition eighteenth-century 20, 54 modern 327, 334 neo-Kantianism 23, 26, 28–29, 50, 171–72, 186, 241, 250, 287, 290–300, 302, 304, 306, 314, 317, 331, 344, 347, 432, 473 schools of 26, 28, 289–294, 304–5, 319–20, 347 Niebuhr, Reinhold 38, 40, 53, 464–65, 476–77 nomos 2, 26, 29, 33, 45–46, 50–51, 53, 108, 125, 213, 233, 235, 247, 250, 294, 321, 326, 331–32, 364, 368, 372–73, 375, 377, 379, 381–83, 385–87, 389, 391, 395, 397–98, 400, 421, 434, 458 normative orders 3, 9, 19, 173, 180, 231, 237, 269–70, 283, 340, 388, 447 normative systems 180, 264, 340–42, 352, 358–59 normativity 4, 61, 137, 159, 215–16, 229–32, 235, 242–43, 247, 262, 270, 282–83, 289, 291, 293, 304–5, 309, 314, 317–18, 320, 336, 340, 347, 403, 411, 413, 415, 481 norms 2–3, 5–8, 23, 25–27, 29, 31, 46–47, 50–51, 63, 75, 102, 106, 123, 133–34, 138, 148, 155, 159, 168, 171, 173–76, 185–86, 188, 192–93, 204, 209, 229–32, 234–43, 248, 250–52, 256–59, 261, 264–66,

537 269–70, 272–74, 276–77, 281, 283–86, 294, 302, 309, 312–14, 316, 319–21, 325, 336, 339–43, 348–49, 352, 359, 361, 376, 378, 382, 385–89, 403–4, 406, 408–10, 412, 414–15, 431, 433, 438–39, 441, 444, 447, 452, 455, 483, 501–2, 504, 506–7, 509, 511, 520, 529, 531 basis 232, 236 coercive 235, 239–40 constitutional 526 higher 272, 275–76, 388 hypothetical 276, 316 social 233, 414 superior 154, 230 system of 176, 231, 255, 272, 308, 350, 385, 388 valid 272, 336, 350, 426 validity of 233, 317, 389 obedience 150, 192, 226–27, 232, 383 obligations 17, 20, 33, 45, 74, 84, 132, 141, 142, 145, 152, 164, 172, 178, 180, 217–19, 222–23, 225, 238–39, 241–42, 255–56, 340, 386, 519, 531 parliamentary democracy, constitutional  188–89, 198 Pascal, Blaise 494–96 Paulson, Stanley L. 328, 368 personification 15, 109, 177, 179, 472, 492 Plessner, Helmuth 23, 401, 413, 420 plurality 64, 80, 83, 134–35, 153, 174, 176, 195, 200, 204, 231, 259, 304, 467 political authority 16, 41, 106, 349 political philosophy 11, 21, 32, 43–44, 51, 54, 86, 160, 179, 332, 346–47, 372, 396, 445, 491, 493–94, 497–98, 502, 507, 510, 525, 527, 530–31 political science 105, 125, 131, 347, 358, 375, 440, 446, 458 political system 39–40, 247, 471, 473–74 political theology 13, 32, 34–35, 42, 45, 51, 53–54, 372–73, 378–80, 392, 396, 402–3, 406–7, 409, 417, 420, 442 political theory 11, 32, 35, 59, 83, 92, 123, 152, 159, 197–98, 406, 439–40, 446, 458, 462–63, 468–69, 476 political thought 2, 47, 124, 154, 158, 168, 187, 352, 373, 400, 420, 462–64, 472

538 politics, science of 81, 83 politics and law 17, 41, 104, 125, 137, 146, 348 positive law 2–10, 12, 15–16, 18–21, 25, 27–31, 33, 37, 39, 41, 43, 59, 64, 73–76, 79–82, 89, 100, 108–9, 121–24, 139–40, 149, 151, 161, 167, 169–70, 174, 185, 196, 203, 215–17, 222, 225–29, 232–33, 236, 238–39, 241, 243–47, 256–57, 260–61, 264–66, 270, 272, 274, 276–77, 291–92, 305–9, 311–12, 316, 318–20, 335–36, 340–43, 346–47, 350, 355, 358–59, 361, 375, 382, 384, 389, 391, 402, 403, 405, 412, 416, 431, 435, 437–38, 447, 464–68, 482–85, 487–88, 494, 501, 507–9, 511, 516, 519–20, 522–23, 526 conceptual framework of 161–62 creation and application of 4, 12, 16, 43 dynamic character of 8, 494 framework of 17, 373, 389, 522 knowledge of 243, 267 legal norms of 4–5, 8, 121, 170, 272 legal system of 521–22 legal theory of 236, 520, 523 mutability of 509 objective validity of 270, 280 rationality of 522 validity of 225, 276, 290–91, 308, 316, 318, 335, 431 positivism 60, 63, 90, 193, 195, 223, 246, 254, 257, 277, 280, 284, 289–91, 295, 301, 312, 338, 400, 407–8, 412, 415, 419, 434, 441–42, 446, 464, 466–67, 472, 475, 485, 503, 520, 523, 528–29 power absolute 12, 106, 473 constituent 375, 383 exercise of 146 law-making 316 limited 104, 141 monarchical 100 monopoly of 382 sovereign 102, 254, 258 spiritual 112, 356 state emergency 205 practical philosophy 168, 187, 242, 266, 292, 523 practical reason 23, 218, 223–24, 241–42, 266, 283, 303, 502, 519–20, 523–24, 532

Index principles 6, 14, 19, 41, 59, 70, 82, 92, 96, 105, 108, 121–22, 124, 128, 131–32, 134–35, 149, 152, 170, 180, 188–93, 198–202, 204, 206, 211–12, 216–18, 221–22, 224, 234, 245, 247, 259, 261, 268–69, 282–84, 290, 295, 297, 299, 301–4, 306, 308, 312, 314–15, 350–51, 354–56, 374, 380–81, 403, 412, 416, 437, 440, 444–45, 452, 455, 469–72, 474, 481, 491, 500, 515–18, 520, 525–28 Radbruch, Gustav 293, 325, 507, 530 Ramus, Petrus 16, 126–28, 158 Raz, Joseph 26, 52, 232, 234, 240, 243, 251, 259, 286, 501–3, 507, 509–10, 514, 519–20, 523–25, 527, 530–31 reason 22–25, 42, 55, 62, 69–70, 75, 78, 134–37, 150, 158, 166, 168, 194, 196–97, 206, 215–16, 219, 222–26, 228, 230–31, 239, 242–43, 246–47, 251, 261, 269–71, 276, 278, 283, 290, 296, 299, 301–5, 309, 311–17, 335, 339, 352, 361, 388–89, 433, 437, 467–68, 470, 482, 485, 487, 490, 492, 502, 504, 511–12, 524, 531 human 133, 135, 313–14, 356, 433 relativism 9, 63, 155, 260, 280, 282, 442, 448, 462–64, 468, 471–72, 475–76 Rickert, Heinrich 42–44, 62, 69, 298, 307, 309–310, 312, 314, 318–19, 321, 323–24, 331, 333–34, 336, 341–42, 346, 384 relativist 198, 281–82, 442, 474 Rousseau, Jean-Jacques 20–22, 44–45, 47–48, 52–55, 70, 92, 179, 188, 190–91, 193–98, 205, 210–11, 213–14, 343, 354, 441, 453 Sander, Fritz 22, 35, 328, 330 Schmitt, Carl 20, 31–36, 44–46, 50–52, 54– 55, 200–202, 205, 214, 244, 339, 372–77, 379, 381–84, 393–97, 399–403, 405–6, 411, 413, 419–21, 437, 440, 442, 461 Schreier, Fritz 23, 35 science and politics 30, 35, 50, 373, 395, 442, 456, 473, 476, 524, 529 separation of law and morality 79, 257, 260, 263 Sieyès, Emmanuel 189, 213

Index Smend, Rudolf 109, 207 social contract 20–21, 70, 92, 164–65, 171–72, 179, 191, 196, 198, 205, 213, 239, 336, 351, 354, 361 sociology 3, 64, 267, 362, 406 sovereign 105, 109, 111, 121, 124, 135, 146–47, 153, 169, 196, 227, 377, 407, 417 sovereignty, popular 14, 104–6, 111, 202, 426 Spann, Othmar 36–38, 45, 47, 53, 429, 453 Stammler, Rudolf 244, 350 state 2, 9, 11–15, 18–21, 24, 29–32, 34, 36–38, 41, 45, 50, 53, 60, 64, 69–70, 72, 76, 78, 84–85, 94–100, 102–10, 112–15, 122–23, 129, 137–38, 151, 153, 156, 162–64, 169–73, 175–81, 185, 187–97, 199, 202, 204–8, 212, 221, 225–26, 228, 234–37, 244–46, 249, 265–66, 285, 289, 330–31, 335, 340–41, 343–46, 350–54, 357–59, 364, 367, 373–77, 379–80, 382–83, 386, 391, 400, 403, 405, 407, 410–11, 413, 415, 418, 420, 427, 434–35, 437–38, 442, 444–45, 455, 482–83, 488, 503, 525–26, 529 democratic 207 earthly 96, 108 liberal 379–80 post-absolutist 100, 103 sovereign 146, 178 world 14, 110, 170, 178 state of nature 70, 163–64, 187, 197 state power 110–11, 409 state sovereignty 15, 18–19, 36, 169–70, 178–79, 181, 183 Strauss, Leo 41–43, 51, 55, 155, 441, 448, 478, 480, 484, 486, 488–91, 493–98 Stufenbaulehre 7, 33, 521–23, 525, 528 Suárez, Francisco 36, 46 symbolic forms 29, 331, 333, 347, 353, 355, 357, 360, 362, 364, 368 system of political power and law 43–44 theory of justice 221, 251, 358 transcendental argumentation 25, 253–54, 270, 272–73, 278–82, 319 transcendental logic 25, 295, 314 transcendental method 265–66, 279, 330, 333–34, 360

539 transcendental philosophy 23–24, 223, 266, 289–90, 295, 302, 305, 315, 355, 434 transcendental premise 242, 273–74, 279 universality 7, 224, 347–48, 437, 443, 458, 513 Vaihinger, Hans 171–72, 184, 186, 236, 252, 315, 328 validity absolute 233, 276, 482, 523, 526 chain of 404 foundation of 253–54 ground of 193, 314, 319 normative 280, 282, 388, 404 objective 271, 274, 294, 296, 311–12, 316, 436 positive 292, 320 relationships of 521–22 values 2–3, 24, 60, 71, 75, 89, 103, 122, 124, 134, 154–55, 192–93, 195, 199, 203, 207–9, 231, 256, 260, 262, 281–82, 293–95, 298–99, 301, 303–4, 306, 308–14, 316–17, 319–20, 324, 338, 402, 426, 430, 432–33, 441, 445, 451–52, 472, 474, 483, 502, 523–24, 531 hypostasizing 309 superior 474, 481 transcendent 253–54 Verdross, Alfred 36, 45, 53, 115, 290, 313, 323, 327, 331, 338, 368, 425–29, 431, 433–39, 443–45, 447–48, 450, 452–53, 456, 458–61, 481, 495, 497 Vienna Circle 61–63, 92, 426, 449 Vienna School 7, 22–23, 35–37, 51, 115, 174, 184, 332, 339, 425, 427, 429, 431, 433, 435, 437, 439, 441, 443, 445, 447, 449, 451, 453, 455, 457, 459, 461, 493, 521, 528 violence 13, 33, 176, 360, 377, 382, 391–92 Vitoria, Francisco de 36, 46, 130, 137, 431 Voegelin, Erich 338, 390–91, 425–26, 439–41, 443, 456, 461, 473, 477 Weber, Max 10, 27, 46, 152, 157, 202, 294, 324, 331, 344, 393, 427, 454, 482, 496, 499 Wolff, Christian 18, 109, 161–63, 167, 187 Weimar Republic 29–30, 37, 205, 330, 334, 346, 354, 400, 420, 445