01 October 2012

PoMo Kelsen?

'Hans Kelsen in Post-Modern International Legal Scholarship' by Jörg Kammerhofer in International Legal Positivism in a Post-Modern World (Cambridge University Press, 2013) edited by Jean d’Aspremont & Jörg Kammerhofer comments -
 Can we call Hans Kelsen’s Pure Theory of Law an example - or even the epitome - of post-modern international legal positivism? The Pure Theory of Law’s radical programme rivals that of many other critical scholarly projects; as a ‘down-to-earth’ critical enterprise, its deconstructive arguments hit orthodox doctrine harder than those of most post-modernists. Moreover, it also contains a constructive side. This chapter first and foremost aims to show that the Pure Theory can be an attractive approach for international legal scholars, but it does not assert its inevitability. 
The chapter’s main line of argument is developed through four topics, grouped in pairs. In the first set of topics, two key features of the Pure Theory of Law are introduced, developed and discussed. Section 2 outlines the Pure Theory’s radical programme for a science of law. Its dramatic departure from the orthodox opinions of the day - through the purification of legal scholarship - is still with us today. One of the key dualities of the Pure Theory’s approach is explored in Section 3. The two conceptual poles of ‘normativism’ and ‘positivism’ may look like thesis and antithesis, but they are united in synthesis in the legal theory of Kelsen and his followers; they do not constitute two extremes on an oscillating - and irreconcilable - pendulum. 
The second set of topics map the structural analysis provided by the Pure Theory of Law onto the sources of international law. Section 4 discusses the Kelsenian Grundnorm and contrasts it with Hart’s Rule of Recognition, before assessing this debate in connection with the origins and foundations of the formal sources of international law. Finally Section 5 focuses attention on one of the least ‘positivist’ sources: the ‘general principles of law recognized by civilized nations’ (Article 38(1)(c) ICJ Statute).
Roger Cotterrell takes a less positive view of Kelsen in 'Socio-Legal Studies, Law Schools, and Legal and Social Theory', which
argues initially that socio-legal studies are important for legal education and juristic inquiry, and it outlines problems facing social studies of law in law schools. It claims that legal theory is necessary for practical legal studies but that legal philosophy's purportedly timeless theories about the nature of law have largely failed to meet this need. They have often been relatively unconcerned with social variation and historical change and so have not adequately reflected the varieties of possible legal experience. Juristic theory must be sociologically informed. But, equally, socio-legal studies must examine the nature of law as ideas as well as focusing on behaviour in legal contexts. Legal ideas need sociological interpretation. Social theory is essential to inform legal inquiries, and the long tradition of social theories of law is important. Alongside recent theories, the classics of socio-legal theory give deep perspective for studies of present-day law in society.
Cotterrell goes on to comment that -
I am optimistic that socio-legal theory can do what legal philosophy has failed to do; that it can be relevant in the law school world in ways that perhaps some legal philosophy is not. But I’m also aware of obstacles. Legal theory – theory aimed as explaining the nature of law – depends on empirical socio-legal research to keep it grounded in experience and sensitive to social variation. And most academic lawyers in Britain still have relatively limited awareness of or exposure to empirical socio-legal research, except perhaps where it relates directly to their legal specialism and where they have the sort of favourable conditions for wide-ranging scholarship that the best law schools allow. 
American legal scholars have sometimes claimed that ‘We are all legal realists now’ (Singer 1988: 467; Schlegel 1995: 2) and it might be tempting to say ‘We are all socio-legal scholars now.’ It seems true that legal scholars in the English-speaking world are often reluctant today to label themselves as ‘black letter lawyers’. What once was a label of pride to denote single-minded, rigorous and precise analysis and systematisation of legal doctrine, now more often gets treated as an admission of myopia, which no one wants to make. But socio-legal research cannot be said to have invaded the law school. In this country, unlike some continental countries, it is surely generally viewed sympathetically by academic lawyers of most persuasions. But socio-legal research has not modified the most basic patterns of legal thinking. It has not much disturbed the jurists. 
Its value certainly does not depend of whether it has influence in the lawyers’ world of doctrinal argument, dispute processing and practical regulatory design, but its long-term security probably does, to some considerable extent. In recent years, in Britain, posts in socio-legal research have been created in law schools, and part of the motivation for this – apart from any intellectual arguments – may have been that SLS is seen in some university environments as a promising focus for attracting external grants to support research. Funding from sources other than the usual state higher education support (for example, from charities, industry or European institutions) is increasingly valued in British universities for its own sake, quite apart from its financial value, as a mark of external recognition and esteem. In such a climate, support for socio-legal research in research-active law schools may make good practical sense. Yet this is a fragile foundation for the development of SLS inlaw schools, because external funding opportunities can disappear and fashions in academic planning can change. SLS remains vulnerable unless it becomes more clearly integrated with doctrinal law teaching and research. That means that it must engage with the idea of law as doctrine directly. 
Insofar as SLS focuses on law it has to compete with juristic studies of law and in some way impose itself upon them. Hans Kelsen’s (1945: 175-7) famous claim to relegate sociology of law to the periphery of legal concern as a dependent study should have outlived its relevance, yet it still haunts us. As Kelsen saw, if sociology of law does not find space to address the meaning of law in something like a ‘juristic sense’ – that is, as ideas and doctrine – it has no central concept of law except insofar as it borrows this from lawyers. No one can really believe that a concept such as – to use Donald Black’s (1976) term – ‘governmental social control’ captures the full meaning many people attach to the idea of law. So the intellectual situation seems parallel to that in criminology. ‘Crime’ seems to be what law says it is; and ‘law’ seems to be what the state and the lawyers say it is. 
So where do the social scientists stand in relation to concepts of crime and law? Are they just bystanders waiting for the lawyers to clarify founding concepts of their intellectual field? The way out of this problem is surely to admit that SLS has to engage seriously with theoretical ideas about the nature of law, it has to take its own stand theoretically on the nature of law as ideas, practices and experiences; and that theory must take careful account of (but certainly not be limited by) juristic legal theory. Juristic theory provides part of the ‘raw’ material (indicators of legal experience and legal practice) available for empirical socio-legal theory to work with.