Kelsen and fin de siecle Vienna and positivism and geisteswissenschaft

Hans Kelsen is probably the most difficult 20th century jurisprude (I think I coined that word!) for American readers. He is the product of "fin-de-siecle" Vienna with its robust intellectual and cultural life. He also wrote the post WWI Austrian constitution but he was a Jew who, like many others, fell into disfavor with the Nazis and fled to the US in the late 1930s. He was a prolific scholar, writing more than 300 articles and books in his 92 years; he was revamping a substantial portion of his work at his death in 1973. Hence, you could spend your life just unraveling aspects of his thought (I know you believe me!)

He was shaped by the intellectual currents of 19th century Europe, Germany especially, and that is what makes him nearly impenetrable today. I will try to do three things here and in the next essay: explain aspects of his intellectual background, introduce the "pure theory" of law and make reference to the Basic Norm or Grundnorm, which is foundational to his work.

Intellectual Background

Scottish scholar Iain Stewart has expressed the nature of Viennese life at the end of the 19th century well: "Cosmopolitan, bureacratic and rich as its cream cakes, dual-imperial Vienna bestrode Central Europe with a web of laws that a medley of class and ethnic conflicts within and the Great War without would shred....." Political thought ranged from feudalism to constitutional monarchy (the Austro-Hungarian Empire was waning) to liberalism of Western Europe to socialism. Catholicism dominated in religion, though active Protestant and Jewish minorities thrived. "This unstable social variety pressured liberal high culture toward relativism: into neo-Kantianism, logical positivism, empiricocriticism, physical relativity theory, psychoanalysis, tonal music and satire."

Relativism leads to abstract philosophical expression, as scholars try to seek a principle that includes the seemingly corrosive theory of relativism and the diversity of cultures. Combined with growing relativism in Vienna was a deep historical consciousness which is evident from any approach to German scholarship in the 19th century. Thus, when relativism became "historical," it sought a figure to try to give it an abstract expression that would possibly "overcome" the debilitating effects of relativism. This philosopher was Immanuel Kant (d. 1804). However, Kant was not historically-oriented, and the process of wanting to use Kantian categories, combined with a historical understanding, vexed Viennese philosophers.

Kant maintained the distinction between practical and theoretical reason (which goes back to Aristotle), and the modern Enlightenment expression of the problem was a division between the "is" and the "ought." Because the catholic idealism of the time tried to remove the distinction, those who were not interested in that tradition played up the contrast. Therefore, a strong sense of history, combined with an "is" and "ought" distinction (which was also called the "fact" and "value" distinction), led to a powerful debate about the nature of human scientific, philosophical and legal inquiry.

The Neo-Kantians

The Neo-Kantians, of whom Kelsen was one (he never earned a Ph. D. in philosophy, which he always regretted) distinguished between two kinds of sciences: the natural sciences and the "sciences of mind (Geisteswissenschaften)." In terms of its relationship to history, the natural sciences were to be concerned with material facts and the latter with "meanings." Those in natural science, therefore, were to be concerned with description; those in Geisteswissenschaftern with values or "oughts." Kelsen took the view that law was one of the sciences of mind, and therefore it was a system of "oughts."

Yet one of the other traditions that seeped into Vienna at the time was the positivism of Bentham and Austin. The positivists would argue that law was simply a collection of factual statements. Value statements were merely "emotive." This left no room for a positivist for a science of "oughts" or, in fact, for a science of law as a Geisteswissenschaft. If law was possible, therefore, for a neo-Kantian who also was strongly influeced by positivism, it had to take on the challenge of how it could be both a descriptive and a prescriptive discipline, ie., how it could forge a new unity between "is" and "ought."

I guess I will need one more page to try to show what Kelsen did.