Over at Prawfs and Leiter's Legal Philosophy Blog, there is an illuminating and worthwhile discussion of relative neglect of Han Kelsen in the world of Anglophone legal theory. Check out:
Why No Kelsen? by Michael Green.
Why don't American philosophers of law talk about Kelsen? by Brian Leiter with Comments by John Gardner and others.
An alternative theory of Kelsen's neglect - Americans lazy, provincial by Michael Green, again with good Comments.
And I urge you to read Green's Hans Kelsen and the Logic of Legal Systems.
Let's begin by distinguishing four questions:
- Should we study the secondary literature about Kelsen?
- Should we read Kelsen?
- Is Kelsen of sufficient importance that legal philosophers should read him in the original German?
- Should Kelsen be the focal point of contemporary legal philosophy, such that "analytic Kelsenianim" (the reconstruction of Kelsen's arguments using the resources of analytic and post-analytic philosophy) should be the main task of contemporary legal philosophy?
These four questions are obviously nonidentical.
On the first question, it seems to me clear that competent philosophers of law need (at a minimum) a basic acquaintance with Kelsen's theory. One place to start would be Green's paper (cited above), but an even better starting point would be Stanley Paulson's Introduction to Normativity and Norms: Critical Perspectives on Kelsenian Themes, a magnificient anthology now sadly out of print (but still available via the link at Amazon.com). I assume that no one would seriously dispute this point, because of Kelsen's importance in the history of legal philosophy--significant even in the Anglophone Hart-Dworkin-Raz-Finnis tradition and enormous in continental philosophy of law. (A similar point could be made about the more recent work of Niklas Luhmann, e.g., his Law as a Social System.)
On the second question, I think that anyone who works on the what-is-law, what-are-the-necessary-qualities-of-law, nature-of-law debate should have a basic familiarity with Kelsen's work in translation, e.g., with Pure Theory of Law and General Theory of Law And State. Basic familiarity is not mastery. Because Kelsen's writing is abstract, complex, and frequently obscure, mastery would come at a high cost--in my opinion, only through careful study of Kelsen in the original German. (Yes, I really mean this. Quite obviously, anyone who writes a dissertation on Kelsen should read him in German.)
It is when we get to the third and fourth questions (whether we should learn German to read Kelsen in the original and whether reconstructed Kelsenianism should be the focus of our research) that advocacates of affirmative answers will run into heavy resistance. For Kelsen to achieve the level of importance assumed by an affirmative answer to the third or fourth questions, we would need to be convinced either that Kelsen's program is the most promising (or one of small group of very promising) approaches to the nature-of-law question, or, in the alternative that insights gained through study of Kelsen's body of work will be productive of substantially important theoretical insights. As I read the debate between Leiter and Green, this is the true locus of their disagreement.
Michael Green may have argued that Kelsen's work is sufficiently important to warrant both mastery by legal philosophers as at least one of the focal points of contemporary scholarship. For example, the conclusion to his Hans Kelsen and the Logic of Legal Systems contains the following:
[R]igorous legal theory will be possible only by assuming that legal meanings are abstract objects, independent of human beings. Kelsen’s genius was in showing how this approach to legal meaning is compatible with the empiricist’s very legitimate resistance to the supernatural. He shows how formalism can once again be a respectable position in the philosophy of law.
I say "may have argued" because it is not clear from Green's article that he believes that the crucial idea (legal meanings are abstract objects independent of human beings) depends on grasping Kelsen's system. If Green does not believe this, then I believe he would agree that neither mastery of Kelsen in German nor a turn to Kelsen as the central focus of contemporary philosophy of law would be justified. I think Green's article is interesting, illuminating, and well-worth reading, but I do not agree with his conclusion. Nor do I believe this article demonstrates that Kelsen's continued relevance is sufficient to justify a tectonic shift in Anglophone philosophy of law.
What do I think? A caveat first: I have not immersed myself in Kelsen, either in English or German. I've read both of Kelsen's major books, but (with the exception of just a few passages) only in translation (my German is rusty and each paragraph of Kelsen in German takes considerable effort for me). I have only a cursory familiarity with the secondary literature. It is possible that I would change my mind about Kelsen with greater familiarity. But based on what I do know, I am inclined to agree with Leiter and disagree with what may be Green's position. My tenative assessment is that Kelsen's system is entwined with neoKantian commitments that are ultimately indefensible. That is, I am inclined to think that Kelsen's systematic philosophy of law is a failure. In addition, my tentative assessment is that the Kelsen's useful ideas can be digested from translations and the secondary literature, and that many of his most useful insights are found elsewhere in the philosophy of law or in other branches of philosophy.
Perhaps I should emphasize another point. My assessment of Kelsen's importance does not suggest that close study of Kelsen would be unwarranted for philosophers primarily trained in languages where Kelsen's thought has been centrally important to the development of existing literatures. By way of analogy, I would think that any Anglophone legal philosopher who works on the nature-of-law question would read Bentham and John Austin (among others) on legal positivism, in part because of their intrinsic interest, but more urgently because their thought serves as a crucial backdrop to understanding the Hart-Dworkin-Raz-Finnis (and others, of course) line of development. But I am far from sure that I would advise legal philosophers trained in German or Spanish to immerse themselves in Bentham's intricate, complex, and forbidding prose.
Should we study Kelsen? Yes, and perhaps a bit more than we do now. Should we become Kelsenians? No.
