Wednesday, March 24, 2010

Why is Kelsen's Work Not - That - Popular in Common Law Legal Education?

...I, of course, do not have an answer to this question. H.L.A. Hart's work is discussed in continental law schools, and so is Dworkin's work - perhaps, the two more influential legal philosophers of the 20th century coming from common law countries. However, Kelsen's work, it seems to me, is less known for law students in common law jurisdictions. Is there something about Kelsen's work that makes it less interesting for law students in common law jurisdictions? Say, is his work less useful to understand the foundations of te common law? Any thoughts on this?


  1. I think some of this must have to do with the style and language. There are a lot of similarities between Kelsen and Hart (though there are important differences as well) and most anglo-american schools prefer Hart to Kelsen.

    Brian Leiter responded to the same question a while ago. See here:

  2. I can't speak with much authority about other common law countries but I have a couple of essays up on SSRN about why Kelsen has had so little impact in the U.S.

  3. As the only German-speaking scholar here (am I?) I might add that I do not believe it has ANYTHING to do with style or language. The opposite. Kelsen´s writing (clear, unpretentious, short sentences) is much much much closer to the way common law scholars write than it is to the more speculative way Germans or Austrians tend to write. I believe the very reason why his works are not very popular in common law countries is that Kelsen opposes (and destroys) virtually everything that is at the very core of the legal philosophies that have been so popular especially in the US. Kelsen opposes the idea of a legal practice, separates vehemently law from politics, from sociology of law, from morals. This, I can tell by my discussions during my time in the US, is very hard to grasp or agree upon for American scholars. It is so beyond what has been taught as decent legal philosophy for the last 150 years.

  4. Viktor, I speak German, although not as a native. Because I write about Kelsen's reception in the United States, I have only read him in translation, but I agree with you that his prose is not especially turgid. Oddly enough, a lot of Kelsen scholarship, which I have read in German, has the qualities one has come to associate with German and Austrian scholarship.

    In any case, I agree with your assessment, but I would supplement it. I explain Kelsen's lack of influence in the United States on four levels, from least to most important:

    1. U.S. legal philosophers reject the Pure Theory of Law and regard H.L.A. Hart as having refuted some of its central theses.

    2. But few people really care much about what legal philosophers think, so I think your point, about the Pure Theory being incompatible with American legal realism is far more important. This incompatibility was important not only as an approach to law. Legal Realism also rejected Kelsen and German legal positivism more generally as politically anemic. During the decades that Kelsen lived in this country, leading American legal scholars regularly argued that legal positivism, through its quietism, paved the way for Nazism. I don't agree with that, but I think it was an important factor in American lack of interest in Kelsen's legal theory.

    3. Kelsen's approach was incompatible with American legal pedagogy, specifically the case law method of teaching. In addition, American legal education is largely professional training and U.S. law students lack either the ability or the desire to think about fundamental legal principles. It's not that U.S. students lack abilities generally, but very few have philosophical training and many, by the time they arrive at law school, have a very practical and pragmatic approach to legal education.

    4. Kelsen's approach to law, because it was incompatible with both the U.S. understanding of what law is and with the U.S. approach to legal understanding, could not -- and still cannot -- be accommodated within the professional cultures of the U.S. legal profession and the U.S. legal academy.

    There, those are my arguments in a nutshell.



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