Open Society Realism

 

Review of Robert Schuett, Hans Kelsen’s Political Realism (Edinburgh University Press, 2021)

 

“Make no mistake, Hans Kelsen is my favourite political philosopher…In the theory and practice of international politics, I am a Kelsenian.” So announces Robert Schuett proudly at the opening of his new book on the famed but much misunderstood Austrian-American jurist. Kelsen, who lived through the twentieth century’s major upheavals in a continent-spanning career that took him from Vienna to California, is one of the best-known positivists in the history of legal thought. Architect of the Pure Theory of Law and the 1920 Austrian Constitution, it was seemingly his life’s quest to place the study of law on a scientific basis, examining legal systems as hierarchies of norms forged through human will rather than given by Nature or God. Yet Kelsen, as Schuett shows capably, was much more than that.

 

A “reluctant jurist” (3), Kelsen was from a young age deeply interested in political philosophy. Born in Bohemian Prague to middle-class Jewish parents in 1881, he moved with his family to Vienna at age 3, where he received a broad humanistic education. He chose to attend law school as a pragmatic career choice, but read widely outside his studies, publishing a book on Dante Alighieri’s theory of the state before even completing his Juris Doctor in 1906. Spurred by liberal-cosmopolitan values and the experience of racism and fascism that forced his flight to the United States in 1940, Kelsen would also contribute important theories of democracy and justice.

 

These complexities of Kelsen’s biography, interesting though they are, are not however the focus of Schuett’s study. Instead, its novelty lies in foregrounding the more hard-edged aspects of Kelsen’s political thought, and relating them to his legal and philosophical ideas. Kelsen, Schuett argues, was a “progressive political realist”, a liberal who sought “law with teeth” at the world level, but was no stranger to the struggle for power in domestic and international politics. Moreover, this was a vision grounded in a Freudian view of human nature, much like the classical realists of the post-war discipline of International Relations (IR), with whose lives Kelsen was closely intertwined. The result is a combative account of a neglected figure in the realist tradition of international thought, one Schuett thinks worth recovering to defend “open society ideals” today.

 

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Readers hoping for a meticulously reconstructed intellectual biography will be disappointed by this book. Across five thematic chapters – covering Kelsen’s critics, background and connection to Freud, international theory, and “style of thinking” – Hans Kelsen’s Political Realism yields little majorly new information, relying for its arguments on Kelsen’s published works, secondary literature, and a smattering of correspondence (often previously cited). Nor does Schuett carefully unravel how Kelsen’s thinking developed through time. What he does offer, however, is a counterintuitive interpretation of an array of German and English sources, emphasising and connecting neglected moments in Kelsen’s career that demonstrate a realist theme.

 

The book’s claim to novelty also leans on Schuett’s important earlier work on the psychological roots of IR realism. Here, Schuett detailed how realists in post-war America such as Hans Morgenthau and George Kennan based their theories on a reading of Sigmund Freud’s psychoanalysis. In particular, Morgenthau’s foundational idea that “politics…is governed by objective laws that have their roots in human nature”, namely the animus dominandi or lust for power, was revealed as parasitic on Freud’s libidinal Eros instinct. Seemingly non-ideological, the practical intent of Morgenthau’s insight was to inject a dose of sobriety and ruthlessness into liberalism’s global battle against totalitarianism, with the “national interest” becoming the ethical standard for foreign policy. This was arguably realised in the US policy of “containment” versus the Soviet Union – an “instinctive” country, as Foreign Service official Kennan advised, which was “impervious to logic of reason” but “highly sensitive to the logic of force.”

 

It is against this background that Schuett interprets Kelsen as a realist, too. This is counterintuitive since as far as Morgenthau et al. were concerned Kelsen was the opposite. A professor in Berkeley’s political science department from 1945 until his death in 1973, Kelsen was labelled “utopian” for imagining a world community under international law. As British realist E.H. Carr put it, Kelsen’s cosmopolitanism was “just another distinguished international lawyer’s dream” (19). Yet such criticisms were wide of the mark, Schuett convincingly shows, for two reasons.

 

For one, Kelsen understood the difficulties of transcending power politics, sharing many realist critiques of existing international law and peace projects – largely, indeed, for the same Freudian reasons. In the chapter “Kelsen’s Foreign Policy Realism”, Schuett highlights Kelsen’s criticisms of the 1928 Kellogg-Briand Pact in Peace Through Law (1944), which outlawed war as national policy but without an effective sanctions regime. For Kelsen, the pact placed international law into disrepute and left an enforcement void that was easily exploited by powerful and instinctive nation-states (100). Schuett ties this position to Kelsen’s early philosophical pessimism – evident in Die Staatslehre des Dante Alighieri (1905) – and now well-known engagement with Freud as a young lawyer in Vienna. For Kelsen, cosmopolitanism and realism both pointed toward the need for a federal world state, but separate legal-political systems and nationalist passions rendered it difficult to achieve. Sober diagnosis of reality and reformist political action, aimed at defending constitutional democracy and enlightened national interest amidst totalitarian threats, was often the best option.

 

In making comparisons with other realists (notably Morgenthau), Schuett invites readers to view Kelsen as often more “realistic” than many canonical IR theorists. Engaging with Freud, for example, Kelsen not merely drew upon but enjoyed a serious intellectual exchange with his Viennese contemporary. Like Morgenthau, Kelsen found persuasive the Freudian connection between national and individual psychology. Unlike Morgenthau, however, Kelsen was personally acquainted with Freud and an active member of the Vienna Psychoanalytic Society from 1911. Kelsen’s Pure Theory developed in live conversation with Freudian psychology, taking human nature as it is and posing positive law as the solution to mass irrationality. Following Etienne Balibar, Schuett argues Kelsen’s demystified state may even have spurred Freud to develop his notion of the “super-ego”, a part of the mind that regulates instinct (52). Seen in this light, Kelsen was arguably more Freudian than the exemplary Freudian realist Morgenthau.

 

The second reason to reject the realist caricature of Kelsen is that post-war realists were influenced by him. In particular, Schuett highlights Morgenthau and self-described “realist liberal” John Herz – both émigrés trained as international lawyers in Weimar Germany – as neglected Kelsen protégés. While classical realists were attracted to the national security state, Morgenthau, Herz and others have stood out for recent revisionist historians of IR as embodying what William Scheuerman calls “progressive realism.” Such revisionism has been driven by a desire to destabilise rigidly scientific versions of realism in IR (“neorealism”), which view the states system as a mechanically reproducing power structure. Schuett agrees with the idea of a “progressive” classical realism, while not pushing it very far. He does not recover, for example, a resource for thinking through global governance or racial justice, recent subjects of revisionist literature.

 

Though Herz and Morgenthau were Kelsen critics, Schuett shows they sympathised with his marriage of realism, liberalism and legal positivism. Before arriving in the US in the 1930s, both had been mentees of Kelsen during stints he had spent in Germany and Switzerland. Herz was Kelsen’s doctoral student at Cologne and a one-time pure theorist, while Morgenthau relied on Kelsen’s patronage to pass his Habilitation thesis in Geneva. Across the Atlantic, Kelsen continued to influence and support their careers, even if they did not always acknowledge it. In response to the Cold War threat of nuclear annihilation, Morgenthau and Herz flirted with the idea of world government, seemingly following the logic of Kelsen’s solution to Freudian power politics. At least for Morgenthau, however, who dedicated to Kelsen a set of essays critical of Vietnam-era US policy, what was most valuable was Kelsen’s ability to “speak truth to power” (40). Kelsen at once posed the necessity of law and its connection to human will, unmasking decisionism and natural law as ideology, and urging liberals to supervise it responsibly (89).

 

Yet on this count again, Morgenthau supposedly lacked the realism of his patron. Schuett here slips from his definition of realism as a Freudian theory of politics, claiming that Kelsen’s frequent accommodations with state power qualifies him as a realist. While Kelsen worked conscientiously in the War Ministry of the Austro-Hungarian Empire, helped write the 1920 Austrian constitution, consulted for US intelligence, and signed the anti-Communist California Loyalty Oath, Morgenthau is presented as overly critical of Cold War US policy, a polemicist rather than the “calm yet passionate, measured yet focused” Kelsen (143). Progressive realism, Schuett implies, should balance truth telling with a strong element of conformism against illiberal adversaries.

 

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For this reason, while Schuett makes a robust case for viewing Kelsen as a realist, it is less clear how progressive this realism is. In Schuett’s mind, the battle for Kelsen is an important frontline in an on-going war to defend “open society ideals” from its enemies, including today’s populist strongmen. He notes that from Nazi jurist Carl Schmitt onwards, Kelsen has been a target of the conservative and anti-Semitic right, who disdain his dethroning of absolute sources of law – whether God or Führer. For Schuett, the realist rejection of Kelsen is counter-productive, denying a resource feared by liberalism’s foes.

 

By “open society ideals”, Schuett means values “made distinct by Karl Popper and his student George Soros”: the rule of law, human rights and individual freedom (2-3). Kelsen, who once recommended the Viennese Popper to Friedrich Hayek at the LSE, joins this tradition through his commitment to constitutional democracy and reformist capitalism (12). It apparently continues today in present-day Vienna, where Schuett works as an academic and civil servant, and philanthropist Soros’s Central European University has relocated from Orbánist Hungary. In this context, Hans Kelsen’s Political Realism is best seen as a sharp-elbowed defence of liberal moderation to guard against populist instinct, with special reference to Central Europe’s anti-totalitarian past. Demanding that realism be much more, it seems, is utopian.

 

Photo Credit: Hans Kelsen’s Political Realism [cover], Edinburgh University Press (2021), Fair Use.