Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence

363 Pages·2016·5.16 MB·English

by  D.A. Jeremy Telman (eds.)

Law and Philosophy Library 116
D.A. Jeremy Telman Editor
Hans Kelsen in America
- Selective Affi nities
and the Mysteries of
Academic Infl uence
Law and Philosophy Library
Volume 116
Series editors
Francisco J. Laporta
Department of Law, Autonomous University of Madrid , Madrid , Spain
Frederick Schauer
School of Law, University of Virginia , Charlottesville , Virginia, U.S.A.
Torben Spaak
Department of Law, Stockholm University, Stockholm, Sweden
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D.A. Jeremy Telman
Editor
Hans Kelsen in America -
Selective Affi nities and the
Mysteries of Academic
Infl uence
Editor
D.A. Jeremy Telman
Valparaiso University Law School
Valparaiso , USA
ISSN 1572-4395 ISSN 2215-0315 (electronic)
Law and Philosophy Library
ISBN 978-3-319-33128-7 ISBN 978-3-319-33130-0 (eBook)
DOI 10.1007/978-3-319-33130-0
Library of Congress Control Number: 2016943466
© Springer International Publishing Switzerland 2016
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Contents
1 Introduction: Hans Kelsen for Americans ............................................ 1
D. A. Jeremy Telman
Part I Hans Kelsen and American Legal Philosophy
2 Kelsen in the United States: Still Misunderstood ................................. 17
Brian H. Bix
3 Marmor’s Kelsen ..................................................................................... 31
Michael S. Green
Part II Hans Kelsen and the Development of Public International Law
4 The Kelsen-Hart Debate: Hart’s Critique of Kelsen’s
Legal Monism Reconsidered .................................................................. 59
Lars Vinx
5 Peace and Global Justice through Prosecuting the Crime
of Aggression? Kelsen and Morgenthau on the Nuremberg
Trials and the International Judicial Function .................................... 85
Jochen von Bernstorff
6 Hans Kelsen, The Second World War
and the U.S. Government ....................................................................... 101
Thomas Olechowski
Part III Kelsen in Unexplored Dialogues
7 Arriving at Justice by a Process of Elimination:
Hans Kelsen and Leo Strauss ................................................................. 115
Elisabeth Lefort
8 Kelsen and Niebuhr on Democracy ....................................................... 135
Daniel F. R ice
v
vi Contents
9 Hans Kelsen’s Psychoanalytic Heritage—An Ehrenzweigian
Reconstruction ......................................................................................... 161
Bettina K. Rentsch
10 A Morally Enlightened Positivism? Kelsen
and Habermas on the Democratic Roots of Validity
in Municipal and International Law ..................................................... 175
David Ingram
Part IV Kelsen’s Legacies
11 The Neglect of Hans Kelsen in West German Public
Law Scholarship, 1945–1980 .................................................................. 217
Frieder Günther
12 Philosophy of Law and Theory of Law:
“The Continuity of Kelsen’s Years in America” .................................. 229
Nicoletta Ladavac
13 Pure Formalism? Kelsenian Interpretative
Theory between Textualism and Realism ............................................. 249
Christoph Bezemek
14 Cognition and Reason: Rethinking Kelsen
in the Context of Contract and Business Law ...................................... 265
Jeffrey M. Lipshaw
15 Kelsen’s View of the Addressee of the Law:
Primary and Secondary Norms ............................................................. 297
Drury D. Stevenson
16 Kelsen, Justice, and Constructivism ...................................................... 319
Joshua W. Felix
Part V Conclusions
17 In Defense of Modern Times: A Keynote Address ............................... 331
Clemens Jabloner
18 The Free Exercise Clause and Hans Kelsen’s
Modernist Secularism ............................................................................. 343
D. A. Jeremy Telman
Index ................................................................................................................. 363
About the Authors
Christoph Bezemek i s an associate professor at the Institute for Austrian and

European Public Law at the Vienna University of Economics and Business. He is
the editor-in-chief of the V ienna Journal on International Constitutional Law and
the author of D ie Geschäftsgrundlage im österreichischen Zivilrecht – Strukturfragen
und Synopse (Springer 2009), F reie Meinungsäußerung – Strukturfragen des
Schutzbereichs im Rechtsvergleich zwischen dem Ersten Zusatz zur US Verfassung
und Artikel 10 EMRK (Verlag Österreich, 2015), and numerous law review articles
and book chapters on aspects of Austrian and comparative constitutional law.
Brian H. Bix is the Frederick W. Thomas professor of law and philosophy at the

University of Minnesota. Professor Bix’s published books include J urisprudence:
Theory and Context (6th ed., Sweet & Maxwell, 2012); C ontract Law: Rules,
Theory, and Context (Cambridge, 2012); Oxford Introductions to U.S. Law: Family
Law (Oxford, 2013); A Dictionary of Legal Theory (Oxford, 2004); and Law,
Language, and Legal Determinacy (Oxford, 1993). Among his 100 articles is
“Kelsen and Normativity Revisited,” which will appear in Carlos Bernal & Marcelo
Porciuncula (eds.), Festschrift for Stanley L. Paulson (Marcial Pons, Forthcoming).
Joshua W. Felix is a doctoral candidate in philosophy at Binghamton University.

His dissertation concerns distributive justice and contemporary debates in egalitari-
anism. His research interests include justice, equality, practical reason, and
jurisprudence.
Michael Steven Green i s the Woodbridge professor of law at the College of

William and Mary. He clerked for Judge Richard A. Posner on the US Court of
Appeals for the Seventh Circuit and practiced law at Paul, Weiss, Rifkind, Wharton
& Garrison in New York City. His publications include Nietzsche and the
Transcendental Tradition (2002) and numerous articles and essays, including pub-
lications in the Duke Law Journal, the Michigan Law Review, the Northwestern
University Law Review, the O xford Journal of Legal Studies , and the V irginia Law
Review .
vii
viii About the Authors
Frieder Günther i s the author of Ideas of the State: West-German Scholars of

Public Law Between Decision and Integration 1949–1970 (Munich: Oldenbourg,
2004), which was awarded as one of the fi ve best books of the year 2004 by the
German law journal N eue Juristische Wochenschrift , and H euss on Journeys. The
International Representation of the Federal Republic of Germany by Its First
President (Stuttgart: Franz Steiner, 2006). Currently, he is working as a research
associate at the Institute of Contemporary History in Berlin, Germany. His articles
have appeared in such journals as V ierteljahrshefte für Zeitgeschichte, Jahrbuch zur
Liberalismus-Forschung , and Damals as well as in numerous edited books.
David Ingram i s professor of philosophy at Loyola University of Chicago. He is

the author of L aw: Key Concepts (Bloomsbury, 2006) and several books on rights,
Group Rights: Reconciling Equality and Difference (University Press of Kansas,
2000) and R ights, Democracy, and Fulfi llment in the Era of Identity Politics
(Rowman and Littlefi eld, 2004). He has also published several books on critical
theory, including H abermas (Cornell University, 2010), H abermas and the Dialectic
of Reason (Yale University, 1987) , C ritical Theory and Philosophy (Paragon House,
1990), and R eason, History, and Politics (SUNY, 1995). He is currently writing a
book on human rights and global justice.
Clemens Jabloner is the Hans Kelsen Professor at the University of Vienna, which

is also where he studied law. He then served in the Austrian Federal Chancellery
from 1978 until 1991. From 1993 to 2013, he served as president of the Austrian
Supreme Administrative Court. Since 1993, he has also served as director of the
Hans Kelsen Institute. From 1998 to 2003, he chaired the Commission of Historians
dealing with issues of looting of property in Austria during the Nazi regime. He has
published broadly in the areas of legal theory, public law, and legal history.
Nicoletta Ladavac studied philosophy and law in Milano, Italy, and earned her

Ph.D. in Catania, Italy, with a dissertation on Hans Kelsen’s federalism. In 1995,
she founded Thémis, Centre d’Etudes de Philosophie du droit, de Sociologie du
droit et de Théorie du droit, an institute for research in philosophy of law, sociology
of law, and theory of law in Geneva. From 1997 to 2001, she served on the executive
board and as secretary of the Swiss section of the Internationale Vereinigung für
Rechtsphilosophie and, in 2005, as its vice president. She has been an international
correspondent of the Hans Kelsen Institute in Vienna since 2002. Her current
research focuses on legal positivism, legal sociology, Hans Kelsen, Norberto
Bobbio, Theodor Geiger, and Niklas Luhmann.
Elisabeth Lefort i s a doctor of philosophy from the University of Luxembourg

and the University of Louvain-la-Neuve. Before that, she studied at the University
of Lorraine and at the Ecole Normale Supérieure in Lyon with a double bachelor’s
degree in philosophy and French literature. Her current research deals with the rela-
tionship between moral philosophy, politics, and legal positivism in Hans Kelsen.
About the Authors ix
Her teaching at the University of Luxembourg includes courses on the philosophy
of law, on aesthetics, and on Schopenhauer.
Jeffrey M. Lipshaw is professor of law at the Suffolk University Law School in

Boston. He has also been a visiting professor at the Wake Forest and Tulane law
schools. Before becoming a full-time academic in 2007, Professor Lipshaw spent
26 years as a lawyer and business executive, both in private practice, and as the
senior legal offi cer of two multinational businesses. He is a 1976 graduate of the
University of Michigan and a 1979 graduate of the Stanford Law School.
Thomas Olechowski s tudied law at the University of Vienna and earned his habil-

itation there with “Die Entwicklung des Preßrechts in Österreich bis 1918” (“The
Development of Press Law in Austria till 1918”). Since 2003, he has been an associ-
ate professor at the University of Vienna, and since 2004, he has also been a lecturer
at the Pan-European University in Bratislava. In 2008, he was chosen as a member
of the Austrian Academy of Sciences, and since 2011, he has served as a director of
the Hans Kelsen Institute. He has published fi ve monographs and edited or co-
edited numerous volumes on legal history and constitutional history in the nine-
teenth and twentieth centuries.
Bettina K. Rentsch e arned law degrees from the University of Freiburg (2013)

and the University of Geneva (Certifi cat de Droit Transnational, 2010). She cur-
rently holds a Ph.D. researcher’s position at the Institute for Private International
Law and International Commercial Law, University of Heidelberg. Her Ph.D. thesis
reevaluates the role of connecting factors in European confl ict of laws, taking into
account their regulatory function and drawing on, inter alia, Albert Ehrenzweig’s
lex fori approach.
Daniel F. Rice is professor emeritus of philosophy and religious studies at the

University of Wisconsin-Eau Claire. Cambridge University Press recently pub-
lished Professor Rice’s book, R einhold Niebuhr and His Circle of Infl uence (2013).
He is also the author of Reinhold Niebuhr and John Dewey: An American Odyssey
(SUNY, 1993) and the editor of R einhold Niebuhr Revisited: Engagements with an
American Original (Eerdmans, 2009).
Drury D. Stevenson is the Hutchins research professor at South Texas College of

Law in Houston, TX, and a Baker Institute scholar at the James A. Baker III Institute
at Rice University. He graduated magna cum laude from the University of
Connecticut School of Law, where he served as an editor of the Connecticut Law
Review. He earned his master of laws (LL.M.) from the Yale Law School in 2002
and became an assistant attorney general for the state of Connecticut until leaving
to accept his position at South Texas. Professor Stevenson’s publications cover top-
ics ranging from criminal law to civil procedure, with an emphasis on the intersec-
tion of law with economics and linguistic theory.