Hans Kelsen and sociology

Hans Kelsen has had a long-standing reputation as a highly regarded constitutional scholar and legal philosopher, but outside of those two areas his writings have been mostly overlooked. Volume Seven of the Hans Kelsen Works (Hans Kelsen Collected Works/HKW Band 7; Kelsen, 2022) should help change this because it reveals that Hans Kelsen was much more than a legal scholar. This collection shows that he was knowledgeable in a number of different disciplines, including psychology, philosophy, and even theology. ¹ But what should interest sociologists is the lengthy work on sociological and juridical concepts of the state (Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Verhältnisses von Staat und Recht). This work was published in 1922 as a book and then revised for a second edition in 1928. Both volumes were published by the J.C.B. Mohr (Paul Siebeck) firm in Tübingen. Founded in 1801, it was noted for publishing works in law, philosophy, and theology. After the turn of the century, it began publishing works in sociology—Max Weber’s Wirtschaft und Gesellschaft appeared in 1921. This was the same year that Mohr Siebeck published Erich Kaufmann’s Kritik der neukantischen Rechtsphilosophie which contained some biting criticism of Kelsen. The Mohr Siebeck firm was well-acquainted with Kelsen, having published his “Habilitationsschrift” in 1911. That book was focused strictly on the philosophy of law, but during the intervening decade, Kelsen’s scholarly interests continued to expand. Volume Seven of the HKW clearly reveals this impressive range of interests. While each of the essays in that volume will be of interest to Kelsen scholars, it is Der soziologische und der juristische Staatsbegriff that should be of interest to most sociologists.

Kelsen’s work has a brief introduction and four major parts. Part I and Part III are the relevant ones for sociologists; in contrast, Part II will be of interest to legal theorists, and Part IV is likely to appeal to historians of philosophy, but neither of the two will be of much concern for most sociologists and will not be discussed.

The three-page “Einleitung” has a single section: “§ 1. Das Problem” in which Kelsen explained that since “state” (“Staat”) and “law” (“Recht”) are both social phenomena, they are fundamentally the same. ² However, Kelsen insists that they are fundamentally different. “State” is a natural phenomenon because it describes an organized group of human beings. As such it is real and can be studied just like any other social fact. In light of this, the state can be regarded as a legitimate focus for sociology. In contrast, law is a norm and as such it is a “value” (“Wert”). In other words, “state” is an “is” (“Sein”); “law” is an “ought” (“Sollen”). (Kelsen, 2022: 102, 103).

Part I has the title “Der Staat als soziale Realität” (“The State as Social Reality”) and it carries a subtitle in parentheses: “Der soziologische Begriff des Staats” (“The Sociological Concept of the State”). The beginning section is “§ 2. Wechselwirkung” which is a term resistant to translation. The term is found in Kant’s Kritik der reinen Vernunft and is one of the three principles of experience: permanence, causality, and “Wechselwirkung.” What Kant meant by this term is somewhat explained by his claim that all substances that can be perceived are in “thoroughgoing reciprocal exchange” (“durchgängiger Wechselwirkung”) or “dynamic community” (“dynamischer Gemeinschaft”) (Kant 1956: 259, 262; A 211/B 256, A 213/B 259, 260). This term was continued by Georg Simmel in his Soziologie which Kelsen explains is the basis for all social realities, including the state. Kelsen (2022) maintained that human beings do not exist in isolation but are always engaged in affecting effects in other human beings (p. 105). He quotes from Simmel’s Soziologie to the effect that society exists “where multiple individuals meet in reciprocal exchange” (Kelsen, 2022: 106; Simmel, 1908: 6).

The second discussion of Simmel is rather brief and is part of Kelsen’s discussion of the issues regarding the treating sociology as a part of psychology; that is, as a “social object” (“soziale Gebilde”). The issue is that scholars who endorse an “organic theory of the state” (“organische Staatstheorie”) regard the state as an “ensouled body” (“beseelten Körper”); this implies that the state is similar to an individual. The state resembles a person because like the person, the state is composed of integrated parts. But as Kelsen pointed out, there is a fundamental difference in that the corporeal parts function together whereas the individuals in the state frequently work against one another (Kelsen, 2022: 139, 140, note 1).

Immediately after this three-page footnote, Kelsen compliments Simmel for his trenchant observation that any talk of a “people’s soul” (“Volksseele”) is a “sociological doctrine of spirits” (“soziologische Geisterlehre”). In Simmel’s opinion, this is nothing more than mysticism. In this case, it is clear that both Simmel and Kelsen regard mysticism as an inappropriate approach to use in political sociology. Kelsen agrees that to treat the state as an “ensouled body” is to place it in the same category as a triangle, a mammal, and a planet. That is, as an object of study just like the one in geometry, in biology, and in astronomy. This is problematic enough when studying any “social object” but it is particularly troubling when attempting to provide a sociology of the state (Kelsen, 2022: 142; Simmel, 1908: 557). Again, Kelsen praises Simmel for pointing out that it is difficult, if not impossible, to discuss the actual contents of any “social object” and particularly the state. That is because its “contents” include “law, customs, language” (“Recht, Sitte, Sprache”) and these are not real like physical objects but are closer to an ideal. Kelsen concludes this discussion of Simmel by citing Simmel’s insistence that the state as a “social object” lacks a psychological content as well as a logical one; while it lacks content, it possesses a “psychological dynamic” (“seelische Dynamik”; Kelsen, 2022: 144; Simmel, 1908: 558).

Kelsen’s third discussion comes after his brief treatment of Ferdinand Tönnies. Tönnies had famously discussed the differences between community and society in Gemeinschaft und Gesellschaft. He distinguished between the organic unity of “Gemeinschaft” and the artificial combination of “Gesellschaft” where in the first the members are “essentially bound” together like in a family in contrast to the “essentially separated” individuals in the second. For Tönnies, the state is an “ideal mechanical” construct (Kelsen, 2022: 166). The question that Kelsen then attempts to deal with is this contrast between Tönnies insistence that the state is not a unity but a collective with Simmel’s claim that like all social realties, the state is a supra-individual unity. Kelsen refers to Simmel’s claim that there is a restless evolution of societal forms which is the eternal attempt toward unity and totality (Kelsen, 2022: 169; Simmel, 1908: 186–187). Kelsen suggested that this description is problematic on several accounts. It assumes a unity between two opposing individuals; it assumes some higher synthesis; and it assumes that this synthesis can overcome the conflict between the two individuals. There are additional problems when one adopts Simmel’s view to the concept of the state. Kelsen argued that it is to differentiate the practical politics from the theoretical sociological: “How is the social unity to be conceptualized.” (“Wie ist soziale Einheit zu begreifen.”) (Kelsen, 2022: 170). Another problem is the contradiction between the “will of the state” and the will of people; Kelsen placed “Willen des Staates” in quotation marks to emphasize that this is a theoretical abstraction in contrast to the actual will of the human beings. Kelsen concluded with the claim that Simmel’s theory about the state moved from a discussion about the state as being a “reciprocal exchange” to a supra-individual unity. For Kelsen, this is nothing more than to end in something “mystical” (Kelsen, 2022: 173). As long as Simmel remained focused on sociological constructs, he seemed to offer genuine contributions to human interaction. Once he left that for political theory, he no longer had much to add to the sociology of the state. Before one decides that Kelsen did not think very much of Simmel’s sociology of the state, one needs to note that Kelsen contended that Max Weber’s Wirtschaft und Gesellschaft was the greatest contribution to sociology since Simmel’s Soziologie (Kelsen, 2022: 253).

Unlike Kelsen’s three different discussions of Simmel’s sociology as it was related to the concept of the state, his examination of Max Weber’s notion of the state is found in one lengthy discussion. This 14-page investigation is lodged between Kelsen’s discussion of Wilhelm Wundt and Edgar Loening. Wundt was highly respected as a leading authority on “Völkerpsychologie” but was not regarded as a specialist on the concept of the state. In contrast, Loening was the author of the widely read article “Staat” in the Handwörterbuch der Staatswissenschaften (1901). While Kelsen regarded Loening’s article as being one of the best discussions of the state, he complained that Wundt’s writing concluded at the summit of error (Kelsen, 2022: 267, 253). It is evident that Kelsen regarded Weber’s conception to be far closer to that given by Loening than the disaster offered by Wundt.

Although Wirtschaft und Gesellschaft carries a publication date of 1922, the first part appeared in 1921. It is this edition that Kelsen used and it contained four sections and ran just under two hundred pages. Kelsen concentrated on the opening chapter which contained the first thirty pages (Weber, 1922: 1–30). It is entitled “Fundamental Sociological Concepts” (“Soziologische Grundbegriffe”) and most of the 17 sections are definitions. Kelsen is not concerned with each of these, only with the ones relevant to the concept of the state. He suggests that Weber is correct to note that any attempt to determine the “essence” (“Wesen”) of the state from an “extra-juridical” (“außerjuristische”) sociological manner must proceed from the identification between the state and an “order of law” (“Rechtsordnung”). This identification need not be explicit; it may be implicit, but it nonetheless is there. It is, according to Kelsen, to Weber’s credit that he seeks to determine this identification by means of his own special sociology—the sociology of “understanding” (“Verstehenden Sociologie”). Of course, what Weber meant by this is still being debated, but for the purposes here, what only matters is what Kelsen took it to mean. Kelsen believed it to be process of observing human activity and then deriving an “immanent sense” (“immanenten Sinn“) which is a type of understanding. Kelsen pointed out that Weber’s notion of sense or meaning was derived by observing the result and assuming the cause that apparently led to that specific result. Thus, a physicist will use a certain experiment to achieve a particular result just as a merchant will choose certain means to sell his goods. Kelsen reminds us that we cannot know for certain but we can certainly infer from this that the person “meant” or “intended” to do this activity in order to arrive at the result. This is Weber’s “rational purpose” (“zweckrationale”) classification and any irrational cross-purpose activity is pushed to the side. This is an “ideal typical account” which may or may not align with actual determinations (Kelsen, 2022: 253–255; Weber, 1922: 1).

Weber’s sociological approach can be applied to any “social object” (“soziale Gebilde”) such as a state, church, union, marriage, etc. but Kelsen’s concern is with the state. He notes with approval that Weber does not regard these as “things” but as relations; thus, there is no “essence of the state” (“Wesen des Staates”) but there is a specific form of activity. One of Kelsen’s key observations is to note how important the notion of likelihood and probability is for Weber. Kelsen focuses especially on Weber’s frequent use of “Chance.” ³ Kelsen uses the term “Chance” 16 times and he emphasizes Weber’s notion of it as likely or probable. This is important to emphasize for both Weber’s and Kelsen’s conception of the state—it is not some monolithic entity but is a form of social interactions. There are laws but these are unlike the laws of nature; the laws of nature cannot be ignored but there are degrees of likelihood that a person will obey a particular law. If one studies natural objects, one can draw conclusions with almost certainty, but with humans one can only assume certain things. That is why understanding “meaning” or “sense” is so crucial to understanding Weber’s sociology and in particular his sociology of the state.

Kelsen emphasized Weber’s notion of “existence” in part because it had been a tradition for German political thinkers to regard the state as an organic whole. It is similar to Plato’s contention that the state is the soul writ large and Aristotle’s doctrine of substance. Georg Jellinek had argued that the state existed in two ways: a physical one and a metaphysical one; Weber rejected the latter and modified the former. As Kelsen noted, Weber believed that the state “exists” in the same way that the Pythagorean theorem “exists.” But he goes on the clarify that the state differs from the theorem in that it has a probability that the leader’s commands will be obeyed. That is why Kelsen stresses the notion of validity (Kelsen, 2022: 255–257).

Kelsen examines a number of Weber’s definitions, including “Ordnung,” “Verband,” “Betrieb,” “Anstalt,” “Herrschaft,” and “Staat.” Kelsen is careful to recognize how integrated many of them are in Weber’s “verstehenden Soziologie.” Kelsen began with “order” (“Ordnung”) which is a law when the likelihood that it will be obeyed is increased by force or the threat of force. Sociologically speaking, that means that some type of “enforcement office” (“Erzwingungsstabes”) must exist (Kelsen, 2022: 260; Weber, 1922: 17). Kelsen then explained that Weber had two types of “social relations”: open and closed. A social relation was open if there was no specific form of enforcement; it is closed if there is such a form of enforcement. It is obvious from this that a state is a closed form of social relations. In contrast, an “association” (“Verband”) may be either closed or open depending on the type of “association” it is. There are those which are strictly voluntary and then there are those that are not—these latter ones are often formed for some specific economic or political purpose. Hence, there is a need for enforcing the rules of the association (Kelsen, 2022: 261, 262).

“Business” (“Betrieb”) and “institution” (“Anstalt”) are related in that both are organized around the principle of continued purposeful action. But they differ in that the first is more or less regulated in comparison with the second. Another difference is in the form of regulation and enforcement. This leads to the definition of “Herrschaft.” This can mean “authority,” “rule,” or “domination” and the definition often depends upon the context. Following Weber, Kelsen contended that it was matter of obeying a command from a recognized authority. Rather than following Weber’s discussion of the three types of “Herrschaft” (traditional, bureaucratic, and charismatic), Kelsen moved to consider the highest legal order—the state. Kelsen quotes Weber’s definition of the state: “State shall mean a political institutional business if and in so far its administrative staff successfully maintains the claim to the monopoly of legitimate physical compulsion for the insistence of the orders.” (“Staat soll ein politischer Anstaltsbetrieb heißen, wenn und soweit sein Verwaltungsstab erfolgreich das Monopol legitimen physischen Zwanges für die Durchführung der Ordnungen in Anspruch nimmt.”) (Kelsen, 2022: 264; Weber, 1922: 29). Kelsen drew from this the claim that the state is a “legal order” (Rechtsordnung”). He added that “monopoly” is the economic equivalent to the political term “sovereignty” and in the juridical sense it has the exclusive power for ordering. It is “legitimate” or “valid” and as such belongs to the realm of norms. “Legitimate” is regarded at the highest level and serves as a guarantee (Kelsen, 2022: 265). Weber’s concern here is with the modern state so Kelsen emphasizes the “business” and administrative side of the modern conception of the state. But he also points out that the modern state shares with the older notion that the “House Father” (“Hausvater”) had legitimate power over his children and his slaves; even in matters of life and death. This “monopoly character” (“Monopolcharakter”) is a mark of the power of the modern state as much as the character of modern state as a rational institution and as a business (Kelsen, 2022: 265, 266). This led to Kelsen’s view of Weber’s connection between the state and the law—that “the state is a legal order” (“der Staat ist eine Rechtsordnung”) thereby revealing that Weber’s sociology of the state could be regarded from one perspective as a “doctrine of law” (“Rechtslehre”). More than that, he noted that from the other perspective, Weber’s doctrine is a normative one, predicated on the threat of compulsion. He referred to it as a “juridical-normative” one that is shown by the state’s monopoly on force. He added that this is not just a threat of force but a legitimate one (Kelsen, 2022: 266). Kelsen concluded by observing that Weber himself stressed the differences between the juridical approach and the sociological one—the former is a matter of norms—that is, “should” while the latter is a matter of fact—that is, “is. This is the “Sein-Sollen” distinction that Kelsen shared with Weber; along with the contention that the state is regarded “essentially as a normative legal order” (“wesentlich als eine normative Rechtsordnung.”) (Kelsen, 2022: 267).

Kelsen may not have had a complete or correct understanding of Simmel’s thought, but his discussions of his work was sympathetic. Kelsen was even more sympathetic to Weber’s concept of the state because it was one that he largely shared with him. Kelsen’s account does raise one or two issues. First, it was likely that when Kelsen wrote his book, the second and longer part of Wirtschaft und Gesellschaft had not yet been published, so it is understandable that he did not address the major sections on community, on relations, and especially on law that are contained in the second part. But that does not explain why Kelsen ignored some of the relevant sections in the first part that he had access to—specifically the entire third chapter on the types of “Herrschaft” (Weber, 1922: 122–176). Because it is in the first six sections of “Kapitel III” that Weber offers a richer definition of “Herrschaft” and he provides a fuller account of the three types of “Herrschaft.” Finally, it is unclear why Kelsen ignored Weber’s key concept of charisma. This is particularly puzzling because he was fully aware of the importance of “chance” in Weber’s sociology and that people often do not act rationally but are motivated by other, often emotional, factors.

The reader may object to Kelsen’s account and the reader can complain about his complex style, but they should appreciate his scholarly investigations. Legal theorists are more than entitled to follow Stanley L. Paulson and read Kelsen’s Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Verhältnisses von Staat und Recht as a major treatise in legal philosophy. After all, Kelsen spent much of the work criticizing some of the greatest legal scholars of the time, including Georg Jellinek and Erich Kaufmann. However, Kelsen also devoted considerable efforts to exploring the notion of law from a sociological point of view. The fact that he had a surprisingly good understanding of Simmel’s and Weber’s sociology should make sociologists appreciative of Kelsen’s writings. Hans Kelsen will never gain the reverence that sociologists give to Max Weber nor even garner the respect they give to Simmel or Tönnies. Nonetheless, Kelsen took sociology seriously at the time when sociology was still being established in German universities. Perhaps it is time that sociologists start to take his sociological writings seriously, and there may be no better work to begin than with Kelsen’s Der soziologische und juristische Staatsbegriff.