Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

ABSTRACT

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.

Funding

This work was funded by the European Research Council (Grant ID: RESIST).

Notes on contributor

Carlo Invernizzi-Accetti is Assistant Professor of Political Theory at the City College of the City University of New York and Associate Researcher at the Center for European Studies of the Institut d'Etudes Politiques de Paris (Sciences Po). He obtained a PhD in political theory from Columbia University in 2012. His book, Relativism and Religion: Why Democratic Societies Do Not Need Moral Absolutes, was published by Columbia University Press in 2015. He has also published articles in several international journals, including American Political Science Review, Political Studies, European Journal of Political Theory, Philosophy and Social Criticism, The Political Quarterly, Critical Review of International Social and Political Philosophy, Constellations, Raisons Politiques, Droit et Société, and Revue Française de Science Politique.

Notes

1. As Horst Dreier noted in his comprehensive study of Kelsen's work and its intellectual influence, the title “jurist of the century” is “commonly used” in connection with Kelsen's name (Dreier 1986: 16). Similarly, in his introduction to a volume of collected essays by Kelsen published shortly after his death, Ota Weinberger described him as the “towering figure” of 20th century legal and political thought” (1974: 617). On this point, see also Invernizzi-Accetti (2016).

2. Although the existing literature on Kelsen's legal and political philosophy is already very extensive (Ross 1961; Stone 1963; Raz 1979; Carrino 1990; Bobbio 1992; Paulson and Paulson 1998; Vinx 2007; von Bernstorff 2010; Baume 2012), the relationship between his legal positivism and his normative defense of human rights has not yet been the object of much attention. There are at least two reasons for this. First, Kelsen's insistence on the “purity” of his theory of law has made it difficult to square his legal writings with the explicit commitment to liberal democracy he attempts to justify in his political ones. Many commentators have, therefore, been led to treat the normative commitments articulated by Kelsen in his political writings as secondary and “extraneous” with respect to his theory of law (Raz 1979; Troper 1994; Kalyvas 2006). Secondly, the authors who have focused on Kelsen's political theory have generally devoted more attention to the distinctive aspects of his theory of democracy — such as its parliamentarism, the emphasis on the significance of political parties, and the development of a theory of “compromise” — without relating these back to Kelsen's theory of law (Herrera 1998; Lijoi 2011; Mastropaolo 2012; Baume 2012, White and Ypi 2016). The only exception I was able to find is a study by David Ingram (2014), which proposes a comparison between Kelsen's and Habermas' respective conceptions of democracy and human rights but that does not provide a detailed reconstruction of Kelsen's argument for human rights, nor of its link with Kelsen's legal positivism, taking it for granted that he was a defender of a “liberal” conception of democracy.

3. On these points, see Van Hees (2000) and Urbinati and Invernizzi-Accetti (2013).

4. On this methodology of interpretation, see Habermas (1996) and Troper (2011).

5. Indeed, although Kelsen does not make this point explicitly, I would maintain that his conception of relativism is also consistent with the possibility of drawing distinctions pertaining to the “quality” of different moral judgments, on the basis of the “depth” — and therefore the complexity — of the moral reasoning that can be supplied to justify them. Without assuming any kind of absolute justification is possible, this would imply that “good” moral reasons can be distinguished from “bad” ones on the basis of the number of “layers” of argument one can refer to in order to justify them and, therefore, ultimately on the comprehensiveness and internal coherence of the overall chain of justification in which they are inscribed.

6. Here, it may be worth noting that the cogency of Kelsen's argument as I have been reconstructing it depends on the implicit assumption that legal positivism as he understands it is indeed the only possible alternative to natural law doctrines as he defines them. This is not something Kelsen ever establishes explicitly in his writings but rather something he assumed to be implicit in the way he defined these terms. Even if such an assumption could be challenged, however, from what has been stated, it would still be possible to show that there is a conceptual (i.e., not just contingent) link between his philosophical relativism and his theory of legal positivism, albeit perhaps a weaker one than the strictly logical one illustrated above. For, the fact that relativism implies the untenability of natural law doctrines still provides sufficient grounds for maintaining that Kelsen must have developed his theory of legal positivism because he was a philosophical relativist, even if legal positivism as he understands it is perhaps not the only conceptual alternative to natural law theories as he defines them.

7. Before proceeding here, it is worth dispelling another potential misunderstanding that might be thought to invalidate the whole reasoning from the start. In reconstructing Kelsen's conception of relativism above, I suggested it should be understood as a “second-order” meta-ethical standpoint concerning the conditions of validity of “first-order” moral judgments. What I am now effectively suggesting is that this “second-order” standpoint can also function as the philosophical foundation for the justification of a specific set of “first-order” moral principles. This may seem unwarranted, since a “second-order” claim as I have defined it is a retrospective reconstruction of the conditions of validity of “first-order” moral judgments and is, therefore, situated on a different conceptual plane from such judgments themselves. Upon reflection, however, it should emerge that there is nothing unwarranted or even unusual in what I am proposing. For, while it is true that “second-order” moral claims are situated on a different conceptual plane from “first-order” ones, nothing prevents there being a logical relationship between them. For instance, a meta-ethical claim according to which only commandments explicitly contained in the Bible can be considered normatively valid clearly has implications over the specific “first-order” moral judgments that can be considered normatively valid. Analogously, what I want to show in what follows is that the adoption of relativism as a “second-order” meta-ethical standpoint constrains the range of “first-order” moral claims that can be considered normatively valid by undercutting the conditions of possibility of what Kelsen calls “autocracy” and therefore virtually implying a normative commitment to democracy and human rights.

8. As has been pointed out by several commentators (see Lijoi 2011; Baume 2012), the great originality of Kelsen's argument for majority rule lies in the fact that he does not attempt to deduce this principle exclusively from the idea of equality but rather primarily from the idea of freedom as self-government, which constitutes the core of his theory of democracy. To be sure, this deduction of majority rule still depends on the implicit assumption of the abstract equality of individual wills. But that, Kelsen claims, is a logical consequence of the argument for democracy that Kelsen has advanced on the basis of his philosophical relativism, since, as we saw, that is based on the idea that, in the absence of any form of “absolute” moral truth, only actual consent by the individuals submitting to a given decision can make it normatively legitimate (for them). Thus, the primary assumption in Kelsen's normative justification of the principle of majority rule remains the idea of freedom as government by consent, rather than equality — which is in fact an implicit corollary of his conception of freedom.

9. As I pointed out in the introduction, there is a recurrent tendency in the secondary literature on Kelsen's work to either read his juridical writings entirely in abstraction from his political ones, or to maintain that there exists at most a contingent relationship between them. In contrast, the reading I have proposed insists not only on the internal coherence but also on the logical links between his legal and political writings. It can therefore be read as a contribution towards establishing the systematicity of Kelsen's thought as a whole, which in turn lends more plausibility to each of its particular aspects.