Kelsen, the Enlightenment and Modern Premodernists

(2012) 37 Australian Journal of Legal Philosophy 251-278

30 Pages Posted: 27 Jan 2013 Last revised: 12 Feb 2013

Iain Stewart

Macquarie Law School

Date Written: August 23, 2012

Abstract

A review article on Hans Kelsen, "Secular Religion: A Polemic against the Misinterpretation of Modern Social Philosophy, Science, and Politics as 'New Religions'" (Vienna and New York, Springer, 2012). This book was written, in English, in the early 1960s, but the author withdrew it when already in proof. However, the reasons for his reluctance remain obscure and the Hans Kelsen-Institut in Vienna has decided to make the book available.

Kelsen is best known as the creator of the Pure Theory of Law, but here he barely touches on positive law. He returns to the general objections - philosophical, scientific and political - that motivated the Pure Theory. Centrally in this book, he opposes any belief in transcendence - belief in a non-material reality. He defends modernity, the acquis of the Enlightenment, against those who insist that all science must be imbued with religion. He focuses upon claims, particularly by Voegelin although many others are considered, that those who reject transcendence are themselves assuming it. Thus, it is claimed, when they attack religion, they do so surreptitiously by way of "secular" religion and so are vulnerable to their own objections - albeit that those objections are misguided in any case. Kelsen both attacks the claimants' underlying assumption of transcendence and argues that its modernist opponents are innocent of it.

Kelsen's standpoint resembles that of Popper, but Kelsen defends Marx as a scientific opponent of transcendence. However, Kelsen's conception of critical science owes less to Marx than to Freud, whose circle he had once frequented.

Keywords: Kelsen, Pure Theory of Law, secular religion, transcendence, Enlightenment

Suggested Citation

Iain Stewart, Kelsen, the Enlightenment and Modern Premodernists (August 23, 2012). (2012) 37 Australian Journal of Legal Philosophy 251-278. Available at SSRN: https://ssrn.com/abstract=2207494

Iain M. Stewart (Contact Author)

Macquarie Law School ( email )

NSW 2109
Australia

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