Sunday, October 07, 2007

Kelsen, my one paragraph untheoretical take

I have been reading, albeit not too attentively, the discussion on the legacy of the German law theorist Hans Kelsen at Larry Solum's legal theory blog and the links there to Brian Leiter and Michael Green. I am no Kelsen expert; once upon a time, when my German reading skills were much better, I read some bits of him, and back as a philosophy student, I read quite a lot of Kelsen in translation - some of my professors had connections to him at Berkeley (Larry and I were at UCLA). Later on, while involved with the critical theory journal Telos in the 1980s, I had numbers of long discussions that referred to Kelsen and the European literature that arose out of his stuff. And Charles Fried at Harvard had some very interesting comments on Kelsen in the philosophy of law course he gave in the mid 1980s. I agree with Larry that Kelsen can be read in translation, and I also agree with Larry, for whatever it is worth, that his neo-Kantian commitments require pretty heroic assumptions to make it all work. That said, and not being a professional philosopher or a jurisprudentialist, I have found, in my own comparative work, that it is pretty hard to understand where important parts of the mind-set of European law comes from without understanding Kelsen. I wouldn't suggest that it is actually derived from Kelsen, although parts surely are, but that the approach that Kelsen brought to law are very much present in the fundamental structure of the Continental and especially, of course, German approach to law. That seems to me true, for example, when reading this very fine article on German-American comparativism, that Larry also cites in another post. Whatever might or might not be true of Kelsen's work as a jurisprudential project, there is an intellectual history reason to read him, a matter of comparative intellectual history in law. I'm not sure how much that urges one to read of Kelsen, however.