Hans Kelsen and the Right to Resistance

   As most people will admit, Allan Janik & Stephen Toulmin's Wittgenstein's Vienna is one of the best works on the intellectual history of the fin de siècle and the early twentieth century Vienna, in which Hans Kelsen's name was only cursorily referred to  (hence its omission in the index).  According to the authors, after World War I, existentially minded intellectuals, facing the striking discontinuity, diagnosed the situation with utmost seriousness.   On the other hand, there were people who had "little doubt that values could be practical."  One of the examples of the latter was Hans Kelsen, who, without any scruples, tackled the new job of framing the Constitution and establishing the parliamentary system. (p.241)

   It is true that Kelsen seems to have faced the postwar reality with less shock than his contemporaries such as Stefan Zweig.  However, in my view, the reason for his relative coolness has more to do with the continuity of his academic pursuit rather than pragmatism.  In his preface to Das Problem der Souveränität (1920), he explained what had been the focus of his interest in those years.  In Hauptprobleme (1911) and other writings, he avoided the problem of sovereignty, which was for him the focal point of legal theory, only in order to discuss it intensively in relation to the theory of international law as his next task.  He began to write about this topic in 1915, which he almost completed in 1916.  His life was dedicated to science even amidst the confusion of the war and the defeat.  This can be described as ein Leben im Dienste der Wissenschaft (a life dedicated to science), as Robert Walter formulated in the title of his book.  However, as a person, he had to live in this world as a man of practice.  Here I shall explore his attitude about human life and his own principle of practice.

I once lived in an apartment in the suburb of Tokyo.  Every day I had to cross a street near my residence in which the duration of the red light for pedestrians was unreasonably long, while the car traffic was often quite sparse.  Sometimes I ignored the red light at my own risk.

   One day, I crossed the street with my younger friend while ignoring the signal.  "It is my right to resist against an unreasonable law," I said.  "Is there any room for the right to resist within the Kelsenian legal positivism?" he asked me.  "Of course there is," was my answer.  The following was my explanation:

 Kelsen said, "man kann nicht mit zwingenden Argumenten eine Haltung nicht widerlegen, wie etwa die des theoretischen Anarchismus, der es ablehnt, dort wo Juristen von Recht sprechen, etwas anderes zu sehen als nur nackte Macht." (Reine Rechtslehre, p.36) (Theoretical anarchists reject to see anything but naked power where lawyers talk about legal norms.  We cannot refute them with irrefutable logic.)

  First, we must ask who are the "theoretical"  anarchists?  They are the persons who support anarchism theoretically.  They can be contrasted to the anarchists in the practical sense, who adopt anarchism as their principle of action.  There are, however, two kinds of “theoretical anarchism.”  If we define morality in the widest sense as a normative system other than the positive law, we can distinguish moral anarchism and a-moral anarchism.  The former is an idealist position which denies the validity of any positive legal order from the viewpoint of a "higher morality," which rejects the coercion by human beings against each other. The latter, on the other hand, rejects any normative discourse and category of "ought." 

The idealist anarchists (in the practical sense) behave only in accordance with their moral conviction, and in disregard of the positive law.  But to disregard is one thing, while to disobey is another.  One cannot survive if one always behaves contrary to the positive law.  If only with regard to practical convenience, one must sometimes behave in compliance with the positive law.  If one desires to drive a car, one must obtain a drivers' license with the promise to obey regulations, and drive in accordance with traffic rules. 

If they are theoretically oriented persons, they must formulate principles to which they can distinguish when one shall act in accordance with the positive law and when not to.  Such a principle is a kind of sub-norm to their moral systems, like norms of private international law.  Through these sub-norms, norms of positive law are introduced into their moral systems, probably on the condition that they are not in conflict with the essential principles of the moral systems in which they have adopted.  Religions have formulated their attitude towards positive law.  For example, there are some religious codes which order their believers to be obedient to all the "earthly authorities," and to act accordingly to any positive law.  Many, on the other hand, justify the positive law with some reservations.  If their moral norms and the norms of positive law conflict with each other, they may choose their moral norms, acting contrary to the norms of positive law, which are introduced into their moral systems as inferior norms.  Then, they may find the justification of their behavior in the concept of the moral right to resist the positive law.

Indeed, according to Kelsen's view, there is no natural right to resistance, because he denies the existence of natural law.  The concept right is, however, a corollary of any normative system.  A normative system with relative validity can also have a concept of right as its corollary, including a relative right to resist.

A person's moral conviction can be held consciously, sub-consciously, or unconsciously.  In any case, it includes sub-norms which determine the place of the positive law therein.  We can imagine a person whose moral conviction happens to be just the same as the norms of the positive law, but the existence of such a person must be a very rare phenomenon.  As often as the law changes, he must change his moral conviction.  Such an attitude is contrary to the ordinary meaning of the word "conviction."  The moral system which ordinary people adopt as their principles of behavior must be more or less different from the positive law.  Then, their situations are similar to the idealist anarchists depicted above.  They have their own moral systems to behave in accordance with.  If a conflict occurs between their moral convictions and the positive law, there comes into play the situation of the right to resist, because any normative system must have a concept of (moral) right within the system.

Kelsen says that the validity of any normative system is hypothetical.  The basic norm of any normative system "may or may not be accepted." (What Is Justice? p.263)  Robert Walter also said: Weil die Reine Rechtslehre die Grundnorm voraussetzt, beantwortet sie die -von keiner Wissenschaft beantwortende- Frage, ob man einer effektiven Ordnung gehorchen oder ob man gegen sie revoltieren, nicht (The Pure Theory of Law only presupposes the Basic Norm, but it (and any science) cannot answer the question whether one shall obey or revolt against the effective order). ("Hans Kelsens Reine Rechtslehre," 30 Jahre Hans Kelsen-Institut, p.82)

Then, what is the principle of action for Kelsen as a man in action? He says, "I may fight and die unconditionally for freedom democracy is able to realize." The words "fight" and “unconditionally” imply an action in defiance of positive law, to "die" a moral martyrdom defying the positive law.  He adds, Joseph Schumpeter quite correctly says, “to realize the relative validity of one's convictions and yet stand for them unflinchingly is what distinguishes a civilized man from a barbarian.” (“Foundations of Democracy,” Ethics LXVI, p.4)  This is what he adopts or accepts as his principle of action.  From this principle, whose validity is relative, the relative right to resistance is deduced.