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Hans Kelsen's Political Realism HANS KELSEN’S POLITICAL REALISM 66520_Schuett.indd520_Schuett.indd i 226/11/206/11/20 11:50:50 PPMM 66520_Schuett.indd520_Schuett.indd iiii 226/11/206/11/20 11:50:50 PPMM HANS KELSEN’S POLITICAL REALISM Robert Schuett 66520_Schuett.indd520_Schuett.indd iiiiii 226/11/206/11/20 11:50:50 PPMM Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © Robert Schuett, 2021 Edinburgh University Press Ltd The Tun – Holyrood Road, 12(2f) Jackson’s Entry, Edinburgh EH8 8PJ Typeset in 10/12.5 Adobe Sabon by IDSUK (DataConnection) Ltd, and printed and bound in Great Britain. A CIP record for this book is available from the British Library ISBN 978 1 4744 8168 7 (hardback) ISBN 978 1 4744 8170 0 (webready PDF) ISBN 978 1 4744 8171 7 (epub) The right of Robert Schuett to be identifi ed as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988, and the Copyright and Related Rights Regulations 2003 (SI No. 2498). 66520_Schuett.indd520_Schuett.indd iivv 226/11/206/11/20 11:50:50 PPMM CONTENTS Introduction 1 CHAPTER 1 KELSEN’S ENEMIES 8 1 The FBI 8 2 Realists versus Kelsen 13 3 Imaginary Foe 22 4 There Is No Utopia 27 5 A Most Misunderstood Man 34 CHAPTER 2 KELSEN’S MILIEU 36 6 The k. u. k. War Ministry 36 7 Dante and Philosophy 43 8 Freud and Economics 48 9 Generals and Governments 55 10 A Most Realistic Man 63 CHAPTER 3 KELSEN’S FREUDIAN MOMENT 66 11 Speaking Truth to Power 67 12 Law and State 73 13 Coercion and Politics 79 14 Roots of Authority 85 15 A Most Realistic State 92 CHAPTER 4 KELSEN’S FOREIGN-POLICY REALISM 94 16 The Kellogg–Briand Pact 95 17 Anarchy and War 101 18 Democracy and Peace 109 19 Nationalism and the World State 114 20 A Most Realistic World Politics 119 66520_Schuett.indd520_Schuett.indd v 226/11/206/11/20 11:50:50 PPMM HANS KELSEN’S POLITICAL REALISM CHAPTER 5 KELSEN’S STYLE OF POLITICAL THINKING 123 21 Kelsen and Popper 124 22 Win Some, Lose Some 127 23 The National Interest 131 24 . and Other Myths 137 25 Concluding Remarks on a Man and a Method 142 Notes 146 Bibliography 152 Index 187 vi 66520_Schuett.indd520_Schuett.indd vvii 226/11/206/11/20 11:50:50 PPMM INTRODUCTION ‘We are intellectual streetfi ghters’ Hans J. Morgenthau (1969) One way to situate this book is to see two problems. The fi rst is how we call the bluff of today’s strongmen in a new era of nationalist populism and competition between the great powers. The second is how we reconcile foreign-policy realism with a progressive politics. Yet a third way to look at it is to judge Hans Kelsen’s Political Realism on its ability to resuscitate this iconic man as a political thinker who helps us solve these challenges with new confi dence. To the specialist as much as to the general reader, Hans Kelsen ranks as one of the best twentieth-century jurists. In a beautiful piece written for The New York Times in 1999, former law professor and author of The Reader, Bernhard Schlink, suggested that this ‘modest Old World gentleman’ was the best of them all. He was a pleasant man – and sharp as a razor’s edge. ‘You not only kill your opponent, but you leave their bodies neatly dissected on the place of the battle,’ as Hans Morgenthau (1948b) wrote in a letter to his mentor and friend of forty years. Little wonder that Carl Schmitt – ‘the most evil man alive’ (Morgenthau 1984a [1977]: 16) – hated Kelsen, and that today’s decisionists still fear being unmasked by Pure positivists. Make no mistake, Hans Kelsen is my favourite political philosopher, and for more than a decade I have explored Kelsenian themes and ideas (Schuett 2007, 2011, 2015, 2018). In the theory and practice of international politics, 1 66520_Schuett.indd520_Schuett.indd 1 226/11/206/11/20 11:50:50 PPMM HANS KELSEN’S POLITICAL REALISM I am a Kelsenian. What, then, is Hans Morgenthau, one of the last century’s fi nest foreign-policy realists, doing at the head of an introductory chapter to a book ostensibly about a so-called idealistic jurist? The whole of this book must be the full explanation. What matters at this point is to say where I am coming from, and in light of the book’s method and tone, to sketch where I am headed with what really is my Kelsenian style of political thinking: that is to say, all errors are mine, not Kelsen’s. Taking a fresh look at his life and thought from the point where I stand, I aim to set out a progressive vision of political realism, developed within a specifi c intellectual context: it is the ideal of the open society, made distinct by Karl Popper and his student George Soros, which allows me in this book to reach back, and to recruit Kelsen as a new and important ally in the battle against Schmittians old and new. Loved or loathed – there was never much in between – the project of a Pure theory of law, state and international legal order was ground-breaking. No one in the West could ignore what was coming out of Vienna via Kelsen’s pen and typewriter. And while, to this day, his political thinking is nowhere near as known as his writings on norms and international law, over the last ten years or so there has been a resurgence of interest in this iconic Austrian–American émigré on the part of political and international relations (IR) theorists who work in the twilight zone where philosophy, law and world politics meet. His Pure Theory of Law (1967 [1934a]) is still a go-to treatise of modern legal positivism. His wartime book, Peace through Law (1944a), contributing though it does to the many misperceptions of Kelsen as a naïve idealist, is a surgical take on the causes of war and the problems of a Kantian peace. Kelsen’s The Essence and Value of Democracy (2013 [1929b]) is a classic in terms of what makes democracy. And what is more, his 1952 Berkeley farewell lecture, ‘What is Justice?’, is one of the fi nest statements in the history of modern liberalism (Kelsen 1952a, 1957a).1 To me, in this book, Hans Kelsen and his thought are calm and clear, gentle and bold, realistic and progressive. Not only a man of Pure theory, he was also a man of pure action. He had seen it all. He dedicated his life to the pursuit of knowledge, but was not purely ivory-tower. There was drama too: lots of it, but nothing could really bring him down.2 He survived the horror that befell Europe during the age of extremes. He experienced how fragile political systems are, and how international orders are contingent products of history, not any natural law. In his role as legal advisor to the de facto last k. u. k.3 War Minister, he was there when imperial Austria–Hungary fell to pieces – and then, only a few days later, Kelsen’s new task inside the State Chancellery was to work on a defi nitive Constitution for what was to become a new Austria. He had real access to the corridors of real power; and years later, once he was in the United States, he was to work for American foreign intelligence. 2 66520_Schuett.indd520_Schuett.indd 2 226/11/206/11/20 11:50:50 PPMM INTRODUCTION Hard to believe he was a reluctant jurist. He quickly climbed the academic ladder, becoming full Professor of Constitutional and Administrative Law in Vienna at the age of thirty-seven. In the early 1930s, Harvard Law Dean Roscoe Pound (1934: 532) called him ‘the leading jurist of the time’. And Charles E. Merriam, one of America’s most prominent political scientists, tried to lure Kelsen to Chicago (Boyer 2008). But his heart lay elsewhere. He loved philosophy and literature. He wrote the occasional poem and had three published in a Viennese newspaper, while realising, with a wink, that he was not as talented as he had hoped. His fi rst book was on Dante. He was friends with Otto Weininger. A classmate of Ludwig von Mises. The best man at Joseph Schumpeter’s second wedding. The uncle of Peter Drucker. He holidayed with Sigmund Freud. And being quite a networker, he helped an unknown Karl Popper meet F. A. Hayek in mid-1930s London, paving the way for the philosopher’s later success. One might say he was already living the open society ideal, soon to be made famous by Popper and Soros, which is not to say that Kelsen pre-empted these men and their ideas, but rather that he was an intellectual streetfi ghter for a set of ideas that make an open society: rule of law, human rights and individual freedom (see Soros 2019: 26–7). And even though it is early days in the book to explore this – and this goes out to the Schmittians – an open society does not shy away from using state power in domestic and foreign affairs; what it does do is ‘broaden the understanding of self-interest in the use of power’ (Breyfogle 2018: 565; Schuett 2015).
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