The Reception of Hans Kelsen's Legal Theory in the United States: A Sociological Model

L'Observateur des Nations Unis, Vol. 24, 2008

Valparaiso University Legal Studies Research Paper No. 08-03

25 Pages Posted: 6 Feb 2008  

D. A. Jeremy Telman

Valparaiso University Law School

Abstract

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.

Keywords: Kelsen, professionalization, legal theory, philosophy of law, case method, legal profession

JEL Classification: I21, K19, K30, K39, L84

Suggested Citation

Telman, D. A. Jeremy, The Reception of Hans Kelsen's Legal Theory in the United States: A Sociological Model. L'Observateur des Nations Unis, Vol. 24, 2008; Valparaiso University Legal Studies Research Paper No. 08-03. Available at SSRN: https://ssrn.com/abstract=1090974

D.A. Jeremy Telman (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
219-465-7811 (Phone)
219-465-7872 (Fax)

HOME PAGE: http://www.valpo.edu/law/faculty/jtelman/

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