Hans Kelsen (1881–1973)

Kelsen è stato uno dei più raffinati giuristi del secolo scorso. In questo volume il Mulino propone i tre principali lavori dell’intellettuale cecoslovacco, “Essenza e valore della democrazia”, “Il problema del parlamentarismo” e “I fondamenti della democrazia”. Le considerazioni di Kelsen hanno sicuramente permeato il dibattito politico nell’ultimo secolo e la loro attualità è insita nella formazione ricevuta da buona parte della classe dirigente internazionale. Il tentativo di Kelsen di cercare nel buon funzionamento del Parlamento le garanzie per il corretto funzionamento della democrazia si interseca con il desiderio di tenere come finalità ultima dello Stato la libertà dei propri componenti. Kelsen scandaglia la società moderna nei suoi vari aspetti per cercare di dare una piena lettura ad una società sicuramente complessa. Democrazia e filosofia, democrazia e religione, democrazia ed economia sono diversi approcci per verificare un unico aspetto che è il sistema pubblico di garanzia dei diritti individuali. Le pagine sulla figura del Parlamento, sulla funzione legislativa sono di un’attualità sconcertante. Un testo fondamentale.… (meer)

I read this book as part of my "update". along with other books about Kelsen, first in Italian (as I needed to pick up quotes in Italian), but currently I found and I going to re-read the English version (as, anyway, the Italian version is based upon the English version)

Actually, the motivation was that in a Yale course available online that I followed in the early 2010s, Kelsen was quoted, along with Schmitt and others (I shared in the past my reviews on other books on the same theme).

Why now?

Because currently I am living in Italy, and as the Fall of the Berlin Wall in 1989 resulted eventually in a re-arrangement of the country that still has to be settled (the so-called "Seconda Repubblica"), this unsettled status after the re-assuring cocoon of the Cold War is being again questioned.

Reasons? While many in Italy live the Brexit debate as something not directly affecting Italy or, at the other extreme, as a business opportunity (as Italy weren't part of the EU), in reality Brexit is yet another instance of those opportunities to apply the "Monnet" and jump forward or, at least, radically restructure, within the EU integration.

The Italian issue is that, by adopting an inward-looking approach, we risk being "neither"- neither outside, nor inside, simply "in between", and considered at best an opportunistic ally and market to use.

Rethinking the structure and cohesive elements of the State implies also rethinking the concept of law in a country where it seems that creating a new law or regulation, and associated bureaucratic infrastructure, is always the solution.

Only to discover, somewhat later, that that resulted in yet another "self-regulated bureaucratic tribe" that does as it pleases, notably cutting corners whenever feels that it is either right or useful to do so.

Tinkering with a Constitution is never wise, but tinkering by simply "taking loans" from those of others is irresponsible- unless somebody is so detached from reality to assume that a country can be a bit German on this, a bit French on that, a bit British on that, while having or refusing to "harmonize" any behavior that contradicts those cultural frameworks.

Being Italian, I use Italy as a discussion point- but due to its influence, and, as I said, the current rethinking of Europe as well as international institutions, instead of looking at writing laws and treaties, considering the underlying philosophy and "teleology" matters.

Moreover, when, as some already started doing, there are proposal to offload tribunals by "automating" some lower impacts (i.e. higher volume, lower per-unit-value) cases.

Which, incidentally, as the cases that define the "spirit" of social cohesion and civility.… (meer)

Hans Kelsen had an unusual theoretical aptitude. His theory of law is so general, in an Aristotelian way, that one can imagine someone reading it with keen interest even a thousand years from now. However, I didn’t quite enjoy this book as much as his General Theory of Law and State. At times his theoretical purity becomes a burden which restrains his thought too much. His arguments make sense, but the explanatory step from premise to conclusion is so short that every part of the argument is quite self-evident, and therefore not very interesting.

The author frequently emphasizes that his pure jurisprudence, which has quite misleadingly been translated as ”science” of law in this English translation, is independent of the ”political” aspects of law. This is somewhat disappointing from a philosophical point of view, because it means that the author disavows any considerations that have to do with legitimacy and illegitimacy. According to him, a ”valid” constitution can be put in force by any revolutionary victor, no matter how absurd and unfair its content may be. Dictators across the world could quote the Pure Theory of Law to prove that their coercion is based on ”valid” grounds.

The English translation of this book also seems a bit wobbly at times. The real meaning of some sentences has clearly been lost in translation, others are just overly complicated. I liked the chapters on the state and international law most, but the book mentioned above is a much broader analysis of these subjects. The concluding chapter on legal interpretation was also nice, but very short. Overall this is a book for the ages, but only for a very narrow community of legal scholars. Let's hope they won't serve dictatorial governments. The audience of this book could have expanded significantly if the theory had been a little bit less ”pure”.… (meer)