The nature of G. Kelsen's legal views

Gorban Vladimir Sergeevich Doctor of Law Head of the Department of Philosophy of Law, History and Theory of State and Law, Head of the Center for Philosophical and Legal Studies, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 gorbanv@gmail.com Other publications by this author

Gruzdev Vladimir Sergeevich Doctor of Law Chairman of the Board, All-Russian Non-Governmental Organization “Association of Lawyers of Russia”; Chief Researcher of the Department of Philosophy of Law, History and Theory of State and Law of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 vsgruzdev@yandex.ru Other publications by this author

The views of the Austrian lawyer G. Kelsen occupy a strong position in the history of legal thought of the second half of the twentieth century and are also in great demand in modern literature.

Biographical features make it possible to more accurately understand and explain the content, nature and orientation of G. Kelsen's legal representations. 

G. Kelsen was born on October 11, 1881 in Prague, which was then part of Astro-Hungary. By birth he was a Jew, in 1905 he changed his religion and became a Catholic. Then many people did this to make a career for themselves. We can give a similar example of E. Ehrlich, who not only changed his religion, but also his name (he was Ilya from birth, and became Eugene in honor of the commander Eugene of Savoy). Mr. Kelsen's father's name was Adolf. He came from the town of Brody in Galicia, then lived in Prague, and in Vienna was a manufacturer, engaged in the manufacture of chandeliers and lamps. G. Kelsen's mother is Augusta Levy, originally from Bohemia.

G. Kelsen has lived in Vienna since childhood, where he graduated from the academic gymnasium in 1900. He then studied at the University of Vienna at the Faculty of Law, from which he graduated in 1906 with a PhD in Law (Dr. jur.). In 1911, at the age of 30, he received the degree of Doctor of Law (habil.) in the same place at the University of Vienna. The dissertation was entitled "The main problems of the doctrine of state law, developed on the basis of the doctrine of the legal situation" ^[15]. The essay turned out to be very voluminous (709 pages). It should also be noted that the word "legal position" or "Rechtssatz" is used in the essay, which can be translated into Russian as "legal norm". But in scientific usage, the authors of the period of G. Kelsen tried to distinguish between the terms "legal status" and "legal norm".      

In this essay, as noted in the literature, he attempted, under the influence of neo-Kantianism, to substantiate an original critical version of the logic of legal positivism, which considers only positive law as a subject of jurisprudence, understood as a normative order that is valid and subject to description from the side of jurisprudence. For a long time it has been a traditional topic and problematic of the German philosophy of law and theory of law.  

Since 1917, G. Kelsen became an extraordinary professor at the University of Vienna, and in 1919 an ordinary. He taught at the University of Vienna until 1930 . He formed a circle of students, which is often referred to as the "Vienna School" of Legal Theory. They were, first of all, Adolf Merkle (he is often confused with the famous German lawyer of the XIX century. By Adolf Merkel) and Alfred Ferdross. This school arose around the neo-positivist "Vienna circle", the central figure of which was R. Carnap.

Mr. Kelsen was very zealous about his ideas. V.A. Tumanov rightly noted that Mr. Kelsen "was intolerant of attempts by his own supporters and followers to make any significant changes to the system. For this, he mercilessly excommunicated from school. Meanwhile, it was not at all about bringing the system closer to social reality, but only about attempts to update it with the help of some philosophical concepts more fashionable than neo-Kantianism, for example, phenomenology" ^{[4, p. 168]}.

G. Kelsen took an active part in the work on the Austrian Constitution of 1920, especially on the section on the Constitutional Court. Until 1929, he was also a judge of the Austrian Constitutional Court.

From 1930 to 1933, G. Kelsen taught at the University of Cologne, then from 1933 to 1938 in Prague and in Geneva. In 1940, he emigrated to the United States, where he taught law at Harvard, at the University of California, Berkeley.  

First of all, he is considered as an exponent of one of the types of legal positivism, which is called normativism or logical positivism. More precisely, he made an attempt to philosophically substantiate neo-positivism, relying primarily on the idea of interpretation, which has become the main one for a whole trend in modern philosophy. In German and Austrian literature, the name normological positivism is more often used when it comes to describing the nature of G. Kelsen's legal representations. For example, the famous German legal scholar of the last quarter of the twentieth century, A. Kaufmann, mentioning the views of G. Kelsen, often emphasized their connection with the Kantian idea of form, namely that only form is the proper object of cognition, in contrast to impermanent experience ^{[8, S. 56]}. Therefore, G. Kelsen, as well as a number of other comparable, mainly German, lawyers, such as K. Bergbom, R. Birling, who emphasized the formal side of law, A. Kaufmann called neo-Kantians ^{[8, S. 57]}. On closer examination, the work of G. Kelsen reveals both the features of the Kantians, especially those who developed numerous "pure" doctrines about law at the end of the XVIII and early XIX centuries, and the features of later neo-Kantians, especially R. Stammler ^[18]. 

The main opponents of G. Kelsen's logical legal positivism, comparable in time, were various sociological teachings on law, for example, M. Weber, E. Ehrlich, F. Liszt, F. Yeruzalem. It should be noted that during the period of National Socialism in Germany, in particular, the sociologically oriented legal views of K. Schmitt became dominant, although there were some competitors, primarily in the form of neo-Hegelianism. Therefore, the post-war literature especially emphasizes the fact that the Germans were too carried away by the rejection of rationalistic dogmatics and the search for "right law", proclaiming, in fact, the sociology of law for the period up to the middle of the twentieth century. the actual "science" of law ^{[8, S. 123]}. Therefore, in the second half of the twentieth century, interest in the works of G. Kelsen was dictated by the search for alternative versions that emphasize the meaning of logic and legal concepts. The work of G. Kelsen became noticeable for the so-called world science only during this period. And the interest in G. Kelsen is primarily Western European and Soviet legal science. In the USA, where he emigrated, his ideas did not have such popularity and influence as in Europe. The fascination with the logical legal neo-positivism of G. Kelsen was the same extreme as the previous fascination with the sociology of law.

Representatives of the Vienna neo-positivist school (R. Carnap, G. Kelsen) proceeded from the fact that only that can be rationally comprehended and understood, which can be "verified" logically. Therefore, various metaphysical judgments about, for example, values or norms are, in their opinion, meaningless. These are categories of feelings, not logical thinking.

At the same time, the authorship of the so-called "pure doctrine of law" is attributed to G. Kelsen. He is certainly the author of a work with a similar title. However, it should be noted right away that there were many works with a similar name or calling for "pure" theories of law even before G. Kelsen. In the philosophical and legal literature at the end of the XVIII-XIX centuries, the doctrine of law of I. Kant and its derivatives were called "pure". Since I. Kant, like no one else before him, most clearly showed the differences between cognition as a logical-epistemological and real-psychological phenomena, the dreams of many supporters of Kant's philosophy were repeatedly embodied in various versions of the interpretation of the "purity" of legal knowledge and simply appeals to it. A truly scientific study of G. Kelsen's work should begin with I. Kant and the substantial works of various German lawyers and legal philosophers available in a fair abundance. Normativism as a special and popular topic in German - language literature was actively developed in 1870-1880 . First of all, in the fundamental works of R. Iering, A. Merkel, E. Birling, A. Ton and many others. By the end of the XIX century, a whole doctrine of normativism was formed, developed in great detail, various theories of legal norms. Already in 1820, a new version appeared in place of the "pure doctrine of law" – the "doctrine of normal law", by which it was proposed to understand the so-called philosophical law or the philosophy of law in general, considered as "an obligatory basis for the entire legal sphere" ^{[9, 10]}.

The modern literature on G. Kelsen and in general about the history of the legal-positivist understanding of law as compulsory norms still contains many white spots that require critical and in-depth research. So, traditionally, the understanding of law as norms secured by state coercion is attributed to R. Iering. This is not true. Firstly, R. Iering called the definition of law as compulsory norms commonplace. And before the famous work of R. Iering "The Goal in Law" (Volume 1, 1877) ^[11] there were works in German literature in which similar definitions were already given (for example, in the work of his contemporary R. Birling ^{[6, 7]}). In the work of R. Iering, the moments of norm and coercion receive a new reading, accompanied by more detailed and related explanations. Secondly, R. Iering devoted only part of his work to this aspect of the concept of law, and the second part of the same work was devoted to the content of the concept of law, and this part remained for a long time without sufficient attention. Therefore, to assert that R. Iering understood law as a system of compulsory norms would be only half the answer, which would eventually lead to significantly inaccurate explanations of R. Iering's legal views.       

What has been said does not detract from certain merits of G. Kelsen, who only continued and to some extent interpreted well-known ideas and methods of cognition in his own way. Hyperbolization of the uniqueness of G. Kelsen's views and his influence only distorts the actual meaning and nature of his teaching on law, mythologizes the essential aspects of his legal ideas. A kind of myth is being created, which is used for a very peculiar separation of right from wrong, i.e. "elements alien to it". The requirement of "purity" in the teachings of G. Kelsen is very contradictory. In the beginning, he does not know at all what to call his teaching. Already on the first pages of his work "The Pure Doctrine of Law" ^[12], G. Kelsen was completely lost in the titles. He used almost all possible variants for typological characterization of his system of views: "the doctrine of law", "theory of positive law", "general doctrine of law", "theory of interpretation", "jurisprudence", "science of law". And all these names are used by him as synonyms. This kind of disorder can hardly serve to clarify the understanding of the nature and place of his teaching. According to its content, it should more precisely be called the theory of interpretation of law as a system of compulsory norms. The scientist directly identified the names and concepts of "general doctrine of law" and "interpretation". In his book, in particular, it says: "It [the pure doctrine of law] is a general doctrine of law, and not an interpretation of special national or international legal norms" ^{[12, S. 21]}. In his other work, he insisted that his "pure doctrine of law" is "a genuine theory of legal positivism" ^{[12, S. 153]}. And even compared his theory of law with dogmatic theology.

In addition, G. Kelsen wrote the definition of "pure" exclusively with a capital letter, so this feature gives his teaching an unusual designation. It is a kind of almost "purest", or "pure", but always majestic with a capital letter. It seems to be a textual trifle, but it shows that many stereotypes associated with the work of the Austrian lawyer need clarification and clarification. In Russian, one could write the title of his essay "Pure Doctrine of Law". This technique was used in general literature by symbolists, emphasizing the special sacred and mystical meaning of words and expressions. Something similar is contained in the title of the book by G. Kelsen. The Kantians, on the contrary, wrote the definition of "pure" with a small letter. It is no coincidence that in some foreign studies parallels are drawn between the religious philosophical scholasticism of F. Aquinas and the "pure" ideas of G. Kelsen about law ^{[8, S. 125]}. This also explains the rather contradictory thoughts of G. Kelsen about the state, which for some reason is declared a "powerful macroanthropos", although he strongly demanded to abandon all metaphors that complicate the understanding of the state and law. He was proud of the fact that, as it seemed to him, his teaching fundamentally overcomes dualism in the understanding of the state and law, that it is the same from the point of view of his teaching (neo-Kantian monism). But then the right must also be a kind of super-being. No less strange is his repeated demand that his teaching be called "organic" ^{[12, S. 344-345]}. He also proposed to distinguish between "static" and "dynamic" theories of law ^{[12, S. 140]}. Accordingly, two large sections on legal statics and legal dynamics appeared in his book. In the first case, law is studied in a "state of rest", and in the second - law in its movement" ^{[12, S. 140]}. These are physical concepts that came from mechanics. They were actively used in both sociology and psychology. However, in the "pure" doctrine of the law of G. Kelsen, they occupy one of the central places. The concept of law as a (social) mechanism is the subject of reflection of many trends in the philosophy of law, sociology of law. The topic of social mechanics was one of the epochal in the XVII century. ^{[2, 3]}

G. Kelsen proposed to "purify" jurisprudence from a strictly defined set of "alien" elements, but not from all of them, which, according to his proposed logical scheme, could be included in the corresponding list. In his opinion, sociology, psychology, political theory and ethics are considered superfluous ^{[12, S. 21-22]}. However, for example, he completely bypasses the economy, which has been actively influencing the social sciences since a certain time. He clearly shows the type of thinking that was set by the Marxist distinction between the economic basis and the superstructure, and then underwent "correction from the inside" in the version of the neo–Kantian R. Stammler, who put forward the principle of social monism, according to which the economic basis (social economy - R. Stammler) and the superstructure (social form or form of social life – in R. Stammler) should be understood as sides of the same object, but as something genetically or causally opposed to each other ^[19]. G. Kelsen also started from such a "systematic" or "theoretical" approach. Therefore, it is quite enough for him to formally understand the law, which is not causally separated from the social economy. According to R. Stammler and G. Kelsen, it is a form (normative order) of social economy, and for the cognition of such an order (social form) in line with neo-Kantianism and the logical neo-positivism of G. Kelsen that arose, including on its basis, it is enough to focus on pure forms of thinking about law or, as in G. Kelsen, interpretations. Accordingly, neither R. Stammler nor G. Kelsen are interested in the question of what constitutes a substantive right. Both argued that there is simply no other right other than positive. In essence, these are reflections on why we call certain events law, i.e. the projection of subjectivism, which characterizes an influential, but only one of the directions ^[1]. In the second half of the twentieth century, one of the obvious opponents of G. Kelsen's formal teaching on the interpretation of law as norms was the Marxist interpretation. German legal scholar E. Wolf tried to propose an alternative version, to show that law can be understood not only in the spirit of subjectivism, but also in the spirit of realism. In particular, he developed the "real doctrine of law" ^[20].

G. Kelsen fundamentally distinguished between what is and what is due in law, i.e. he followed the so-called methodological dualism. Accordingly, the sociology of law or the psychology of law, as a science of facts, referred to them as descriptive and therefore could not claim to be a proper science of law, since the doctrine of law, according to his conviction, should be prescriptive, i.e. based on a normative way of considering its subject problems. From this he concluded that the theory of legal positivism should deal only with the logical elements of legal norms, without paying attention to their content. According to the scientist, the issues of justice are not essential for legal science, since he believed that justice is "a beautiful dream of mankind" ^{[12, S. 43]}.

The problem of values in law, which was extremely popular in the literature of 1920-1930, is connected with G. Kelsen's teaching on law. He himself recognized the importance of only formal logical elements in the concept of law. Due, which he focused on in his reflections on law, is also of a logical nature, is not an ethical or legal value. In other words, it is a kind of Hegelian logical necessity. There is an opinion that G. Kelsen, thus renouncing values, allegedly wanted to avoid using the doctrine of law as a cover for political and ideological manipulations ^{[8, S. 125]}, which, however, led more than once to the opposite effect.

G. Klenner, considering that according to Kelsen's theory of legal positivism, a norm can have meaningless content – the main thing is only that the necessary logical structures are present – called his teaching "the emptiness of law" ^[16].

The teaching of G. Kelsen was not essential for practice, but had a significant impact on the theory of law, especially in terms of the development of categories of law.  

Subsequently, in 1960, G. Kelsen repeatedly tried to revive interest in his ideas, which in America was extremely low, and in Europe experienced different periods, including a decline in attention to neo-Kantianism. He changed the doctrine of the operation of norms. He has the concept of "reckoning". The scientist has already explained the legal norm differently, as a hypothetical judgment, as a causal relationship. In literature, he was even reproached for having moved away from the "Kelsenianism" of the 1930s. He constantly made some changes to the "pure doctrine of law", especially with numerous translated editions in other languages, which even became an occasion for compiling some comparative tables of changes.    

A significant role in the fact that G. Kelsen's normativism proved popular in the second half of the twentieth century was played by the fact that the "legal" theory of National Socialism was based on a vulgar sociological interpretation of law, including that proposed by K. Schmitt. In post-war literature, German authors often reproached themselves with the fact that disregard for conceptual certainty led them to National Socialism and the horrors and tragedies associated with it. Under these conditions, Kelsen's normativism, which did not and could not have great popularity in the USA, becomes a kind of ray of light in the dark kingdom. The impressive and voluminous layers of G. Kelsen's predecessors in the legal-positivist field were forgotten. German authors were not the lot. It was impossible to refer to them. One can give an example of autobiographical comments by the famous lawyer and sociologist G. Shelsky, who explained in detail how the occupation with legal classics was perceived in post-war Germany ^{[17, S. 7]}.

So G. Kelsen is just a notable milestone in the history of legal thought of the twentieth century . He owns some original judgments about the meaning of law and the state, the key concepts of legal theory. Many of the ideas expressed by G. Kelsen were developed earlier, including the idea of the basic norm, the understanding of law as a system of compulsory norms, the idea of pure knowledge of law, the need to study only positive law, etc., and the idea of the structure of the rule of law goes back even to medieval scholasticism: the logos or objective idea is now replaced by the basic norm. And this idea as a theoretical problem was developed in the works of the Kantians of the turn of the XVIII–XIX centuries, and in the works of R. Birling in 1870, and then in 1890 in the multi-volume work "The Doctrine of the Principles of Law" ^[5]. G. Kelsen worked on very prepared and fertile soil.