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

7

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 simultaneou