Selective Affinities: On the American Reception of Hans Kelsen's Legal Theory

24 Pages Posted: 19 Apr 2006

Date Written: April 6, 2006

Abstract

Hans Kelsen (1881-1973), who lived and taught in the United States for over three decades, was one of those emigre intellectuals whose "style of thinking," as H. Stuart Hughes put it, "withered or barely held [its] own in the new American setting." Kelsen's relative obscurity in the U.S. legal academy continues despite a recent revival of interest in German legal theory among U.S. academics. Oddly enough, that revival of interest, which has been spearheaded by self-described post-Marxists and other progressives seeking to develop a new critique of liberalism, has not focused on Kelsen and his social-democratic critics, instead latching onto the writings of Kelsen's Nazi nemesis, Carl Schmitt. Interest in Schmitt has continued to grow, as reflected in the recent writings of America's leading legal economics and law theorist, Richard Posner. Still, one finds surprisingly little American legal scholarship addressing Kelsen's writings. This Article explores the reasons underlying the rejection by the U.S. legal academy of Kelsen's brand of legal positivism and proposes that Kelsen's theories can assist the American legal academy as it continues to struggle to address the problem of indeterminacy in adjudication.

Keywords: Kelsen, liberal theory, jurisprudence, Schmitt, Weimar, indeterminacy

JEL Classification: K10, K30, K40, Z00

Suggested Citation

Telman, D.A. Jeremy, Selective Affinities: On the American Reception of Hans Kelsen's Legal Theory (April 6, 2006). Available at SSRN: https://ssrn.com/abstract=895561 or http://dx.doi.org/10.2139/ssrn.895561

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/

Register to save articles to
your library

Register

Paper statistics

Downloads
289
Abstract Views
1,687
rank
103,535
PlumX Metrics