The Prophetic Tradition of International Law and My Concerns About the Book’s Manichaeism

One of the most interesting jurisprudential aspects of The Power and Purpose of International Law is its explicit use of Hans Kelsen.  I am among those Americans for whom Kelsen is a mostly forgotten figure in jurisprudence – and I realized reading this book that, while I have probably read much more than most American legal scholars of his jurisprudential work, I am almost completely ignorant of his work in international law.  It was therefore quite interesting to read this book, and then do a little searching around to see if more recent stuff had been written on Kelsen in English.

 I had been aware of the blog discussion of Kelsen’s philosophy of law among Michael Green, Brian Leiter, Larry Solum, and some others – an easy way in is via Leiter’s post, and accompanying links.  Green criticizes American scholars for ignoring Kelsen; Leiter (and, largely, Solum) responds:

Somewhat to my surprise, [Green] does not note what is surely the main reason for lack of attention to Kelsen, namely, that it is pretty widely thought that Hart persuasively undermined the two most distinctive features of Kelsen’s jurisprudence, namely:  (1) that the nature of law is essentially tied to its use of sanctions, and (2) that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm.  Contra Kelsen (and Austin), Hart argued that linking law’s nature to the use of sanctions misrepresents law’s normativity; and on the second point, Hart offered an account of law and its apparent normativity in terms that were exclusively psychological and sociological–in terms of what legal officials do and their attitudes towards what they do–that render otiose the need to posit transcendent norms.  

To which Green responds:

Leiter is surprised that I didn’t mention “what is surely the main reason for lack of attention to Kelsen, namely, that it is pretty widely thought that Hart persuasively undermined the two most distinctive features of Kelsen’s jurisprudence.” But one of these two distinctive features turns out to be, as Leiter puts it, Kelsen’s view “that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm.”

Americans side with Hart, Leiter argues, because he offered “an account of law and its apparent normativity in terms that were exclusively psychological and sociological – in terms of what legal officials do and their attitudes towards what they do – that render otiose the need to posit transcendent norms.” Americans don’t like Kelsen, in short, because he took a non-empirical approach to the law.

There is much more back and forth; the posts have the links.  But also very interesting is this brand new paper up on SSRN by D.A. Jeremy Telman, offering a sociological account of the profession of legal academic as an explanation of why Kelsen has been so neglected in the American legal academy.  It is an excellent paper, and valuable, as Telman himself says, not just from the standpoint of Kelsen, but from the standpoint of trying to understand the nature of the intellectual professions:  

The Essay explores the reasons underlying opposition to Hans Kelsen‘s approach to the law within the U.S. legal academy. The vehemence with which legal scholars within the United States rejected Kelsen‘s philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because philosophical and political opposition to Kelsen‘s legal philosophy has been well-explored in earlier articles, this Essay discusses those topics briefly in Part I and then sets out in Part II a sociological model that grounds the academy’s rejection of Kelsen‘s pure theory of law in professionalization processes already well underway when Kelsen arrived in the United States. 

Kelsen had little impact in the U.S. legal academy not only because his brand of legal positivism was uncongenial to a U.S. audience. He also had little impact because he arrived in the United States just as the twin innovations of Legal Realism and the professionalization of the legal academy were solidifying their grips on the U.S. legal community. His mode of legal thought and his approach to legal education could not be accommodated within the newly-created discursive practice of the legal professoriate, and there was thus little possibility that his approach could be accommodated within that realm.

As it happens, I actually met Hans Kelsen (unless my memory has completely run together West Coast German law scholars).  It was not so long before he died (1881-1973), and unfortunately I have nothing further to add about it, because it was sometime around 1970 and I was in junior high school in the college town of Claremont, California, and I was introduced to him by the professor father of one of my friends.  Which is all I recall about it – we shook hands and my friend’s father later told us he was a very important German professor, and I thought that meant professor of the German language.  But as a philosophy undergraduate student at UCLA in the early 1980s, my impression was that – partly being not so far from Kelsen’s home base at Cal – Kelsen was pretty well known, personally and intellectually, by the philosophers of law there.  Herbert Morris discussed him with me on various occasions, as did Jean Hampton.  Later I had discussions about him with Charles Fried and Lloyd Weinreb.

I am, believe me, no expert, but it seems to me that the impression I took of the Grundnorm is quite close to what I understand to be fundamental in Mary Ellen’s jurisprudence of international law: namely, that it is grounded in a transcendental.  The thing that I (likely simply lifting from the analytic philosophers with whom I studied) found to be peculiar about Kelsen’s jurisprudence was the nearly dialectical synthesis of a legal positivism so pure, so abstract, so formal that it became one with an equally pure, abstract, and formal Kantian idealism.  One of my professors – I have no recollection who, but I have taken the point as my own, perhaps unwisely – remarked that Kelsen was, in law, a living example of high German idealism.  But of course, it is peculiar from the perspective of analytic philosophy and even more peculiar from the tradition of British empiricism (“empiricism” here in the special sense of the philosophies of Hume, et al., not in the contemporary sense of factually evidenced based).  

Goldsmith and Posner – Mary Ellen’s targets, though by no means exclusive ones – are indeed heirs to that form of empiricism, and particularly and explicitly so in the case of a consequentialist like Eric Posner.  Even more than with their realism in international law and relations, Mary Ellen’s transcendentalism is incompatible with their empiricist underpinnings.  If you were to ask me what the ground of disagreement is between Mary Ellen’s book and Goldsmith-Posner, it is that she starts from a transcendental premise and they do not.  This is what I understand The Power and Purpose of International Law draws from Kelsen-the-jurisprudentialist (I would not presume to address him as an international law scholar).  

Mary Ellen is not the only scholar who starts, and says the enterprise must necessarily start, from a transcendental premise; Michael Perry is in somewhat the same direction with regard to the grounding of human rights.  But I must say that I am surprised, and not entirely happy, with the way in which The Power and Purpose of International Law moves, first, from a meta-theory of international law (that it must be grounded transcendentally, and not in the tradition of British empiricism that eventually leads (as one of Stendhal’s priests remarked in The Red and the Black) from Hume to utilitarianism renamed ‘rational choice’); second, to a highly specific normative theory of international law that is not simply a natural law theory, but a natural law theory with so very, very many specific normative and methodological commitments, ranging from norm formation to enforcement to sanction; and finally to what I can only call a distinctly manichaean view of the world of the individual figures of international law, good guys and bad guys.  

It is possible that a meta-theory can specify – forcibly drive – all the way through to specific normative theories thence to specific normative judgments and thence clear through to specific normative judgments about specific individuals.  But I always thought Philippa Foot, teacher to me as well as Larry Solum, was rather prudent when she remarked one day that it was a passion “of law professors to believe that their meta-theories could settle outcomes in particular cases, because it is the business of law professors in the first place to settle cases.” But meta-theories, she added, “rarely are able to carry all the way through to specify, or preclude, normative theories, let alone to reach specific normative judgments.”  I am unpersuaded that natural law theory can do all that this book says it can do – and, moreover, seemingly must do.  

Yet I am no realist (as I noted in my own review of Goldsmith-Posner).  If not precisely a full-on natural law theorist, I am some version of idealist, and I therefore worry that if accepted, on the strength of the book’s robust argument, that natural can and must do all these things, it will deprive weaker, and frankly less ambitious versions of natural law theory from having a ground from which to argue.  Since I am one of those who might well like to argue from less ambitious, but still distinctly non-realist, grounds, I am, well, mildly alarmed to be informed that this is what natural law theory entails as a matter of obligation.  I would like to think that it does not commit one, at least in the field of international law, to quite so much a manichean view of the world.

Put quite another way, it seems to me that The Power and Purpose of International Law stands in what we might call “the prophetic tradition of international law.”  It has a long pedigree; nearly all of the theorists of international law praised in Mary Ellen’s book are not just moral idealists about international law – Grotius or Henkin or even, in that peculiarly dialectical way, as Mary Ellen very ably explains, a presumptive legal positivist like Kelsen – they are all evangelizers and prophets.  They, like Mary Ellen, do not just invoke a transcendental premise as a philosophical device, but offer an immanent critique of a fallen and sinful world of lawless sovereign states gradually coming into a state of lawfulness under a natural moral order.  They do battle with a long list of skeptics, realists, cynics, doubters, that includes everyone from Hobbes to Machiavelli to Carl Schmitt and, it turns out, Jack Goldsmith and Eric Posner.  I myself have been reading backwards through this prophetic tradition, in part as a consequence of reading, and writing a disteressingly long review essay of, Paul Kennedy Parliament of Man: it is distinctly a form of platonism.  In The Power and Purpose of International Law, the mood is not Athens but Jerusalem, and the inspiration not, as for Paul Kennedy, Tennyson’s Locksley Hall, but really Isaiah 2:

And they shall beat their swords into plowshares, and their spears into pruninghooks: nation shall not lift up sword against nation, neither shall they learn war any more.

That passage, as we know, is inscribed on the wall at Turtle Bay.  But what goes less remarked is how the writer of Isaiah gives a precise etiology of what leads to that millennial condition among nations:

And it shall come to pass in the last days, that the mountain of the Lord’s house shall be established in the top of the mountains, and shall be exalted above the hills, and all nations shall flow unto it.  And many people shall go and say, Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob; and he will teach us of his ways, and we will walk in his paths: for out of Zion shall go forth the law, and the word of the Lord from Jerusalem.

This, I suppose, is the oldest exposition of the prophetic tradition of international law, the ur-text of prophecy, out of Zion shall go forth the law.  The Power and Purpose of International Law seems to me squarely within that long tradition.  It is an immanent critique of academics-in-apostasy, who are embracing once again doctrines of realism and consequentialism, and forsaking the idealism and natural law of their fathers, Grotius and Henkin et al.; and in their embrace they threaten to lead astray even such parts of the world of international law that are international law in the natural law sense, which is to say, such achievements as international law has achieved.  And seen in this light, the manichaeism is comprehensible; the threat is backsliding from the fragile achievements of international law, undermined by looking at the world differently, and the corruption of the young.  It is not too much of a stretch to say that The Power and Purpose of International Law is a call to repentance phrased in the language of high academic.  Because I don’t think anyone who reads this book can ignore the missionary zeal it carries – and in that regard, it inherits a long tradition within the international law academy.

There is, of course, a question as to why international law, within the academy, has long felt this missionary burden more keenly – seen on a historical time frame – than perhaps any other branch of law.  The realist has a ready answer, and not a very nice one, but that is not really what interests me.  It is, rather, my deep concern that The Power and Purpose of International Law incorporates natural law into the prophetic tradition and leaves no daylight between them.  For someone like me, a natural law idealist in some suitably loose form, for whom this evangelizing zeal has no attraction whatsoever, and even less so the book’s manichaeism, the division of the world into good guys of international law and bad guys, this appropriation is dismaying.  Natural law is not the exactly the same thing; it is possible to hold a far more pluralistic – I am tempted to say ‘polytheistic’ – view of it than The Power and Purpose of International Law does.  More than once it seemed to me that the title of this erudite and scholarly, yet always deeply impassioned, indubitably important book might well have been, The Monotheism of International Law.