On Kelsen’s Phiolosophy and Politics

 

I. Kant and Empiricism

 

If Prof. Paulson presupposes the antithesis “Neo-Kantianism versus empiricism” with regard to Kelsen-Ehrlich controversy, I think it is a mistake.  Kantianism is a kind of empiricism because Kant taught that any substantial knowledge is derived only through experience. 

Kant’s empiricism has three problems:

1.         He thought that pure mathematics, pure logic and pure geometry are synthetic judgments à priori.  At least from the viewpoint of logical positivism, they are only analytical judgments.

2.         He presupposed that the laws of Newtonian physics are synthetic judgments à priori, while in reality they are à posteriori judgments on the structure of this universe.

3.         Kant thought that the categorical imperative is purely formal à priori judgments, into which, in Kelsen’s view, material value judgments are smuggled.

The Kelsenian version of Kantianism can be reconstructed as a pure empiricism which are free of above problems.  Kelsen’s categories of causality and imputation are purely formal schemes of interpretation of empirical data.  From the beginning, Kelsen was an empiricist à la Machian fashion.

Moreover, Kelsen was following the development of twentieth century physics with its criticism of the principle of causality.  He criticized Kant’s Kategorienlehre in Society and Nature and reinterpreted the principles of causality and imputation as Hume’s Denkgewohnheit (Reine Rechtslehre, 2nd ed. p.110).  In a sense, Kelsen changed his philosophy from Kantian empiricism to Humian empiricism since Society and Nature.

Kelsen’s critique of Ehrlich and other legal sociologists focused on their improper (naturalistic) interpretation of legal category and terminology.  Kelsen never denied the possibility of empirical science of law.  It is a mistake to formulate Kelsen-Ehrlich controversy as a controversy between transcendental and empirical approaches to law.  Kelsen is also an exponent of empirical approach.  Kelsen only criticized Ehrlich’s improper understanding of legal category and concepts.

 

II. The Guardian of the Constitution

   Carl Schmitt was not talking non-sense when he asserted that the Reichspräsident was the guardian of the constitution.

   In Kelsen’s view, the conditio sine qua non of the validity of the constitution is its efficacy.  Defense of the constitution can be the defense of its efficacy as well as its validity.  In order to defend its validity within the framework of normal situation, Kelsenian judicial guarantee might be enough.  In a critical situation in which its efficacy is threatened by inner or outer enemies, it must be defended by way of political, diplomatic or military means.

   In p.91 of Hans Kelsen im Selbstzeugnis, the critical situation of Czechoslovakia in the 1930s is depicted.  Eventually, the nation with its efficacy and validity of its constitution was destroyed by the Nazi Germany.  In order to defend it, President Beneš had to have recourse to political, diplomatic or military means (diplomatic means failed because of Chamberlain’s appeasement policy).   In any case, the president had to play the role of the guardian of the constitution at that time (and he tried in vain).

   At the time of Kelsen-Schmitt controversy, the defense of the Weimar regime was at stake.  The Nazis and the Communist Party, who rejected the fundamental values of the constitution, were challenging the regime.  They together had nearly the half of the seats in the Parliament.  The position of Hindenburg at that time resembled that of Beneš.

   We know that, even at that time, Schmitt’s support of the regime was dubious.  His behavior after 1933 was out of question.  If we see, however, what he said rather than what he did, his assertion to prohibit and suppress the two parties by the president using his extraordinary competence was a (though dangerous) possible choice to defend the efficacy and validity of the constitution, although it might be a necessary evil.