Hans Kelsen, the Theory of Law and the International Legal System - A Talk

Norberto Bobbio and Danilo Zolo¹

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1 Meeting Kelsen

D.Z. I believe you met Kelsen only once, in Paris in 1957. Do you remember anything particular about that meeting?

N.B. That's true, the only time I actually met Kelsen was in Paris in 1957. The occasion was an international seminar organized by the Institut International de Philosophie Politique, with René David in the chair and Raymond Polin, the real promoter of the initiative, as secretary. I immediately signed up. I may not have taken part in the first of the meetings, but I did attend all of the later ones, which were held at the Fondation Thiers in Paris. They were fairly restricted seminars, with around twenty people taking part. The proceedings of the meetings were subsequently published in the Annales de philosophie politique, published by PUF Paris. The theme for 1957 was le droit naturel.

D.Z. Did you have any other contacts, for instance by letter, with Kelsen?

N.B. No. I recall only that at the Paris meeting Kelsen showed he appreciated the arguments in my report on natural law. And I recall that in his Allgemeine Theorie der Normen, in the 1979 Vienna edition, he comments, in part critically, on a text I had written before the Paris meeting, namely `Considérations introductives sur le raisonnement des juristes', published in the Revue internationale de Philosophie in 1954. Someone who knew Kelsen better than I, and earlier, was my friend Renato Treves, another disciple of Gioele Solari.

D.Z. Yet it is you who is regarded as the real importer of Kelsenism into Italy.

N.B. In fact it was Renato Treves, who as long ago as 1934 had published a volume, Il diritto come relazione, largely devoted to Kelsen. By contrast my Kelsenism, which has led me to be regarded as the one responsible for Italy's `Kelsenitis', started a few years later. When I was a student, Kelsen, who had already published two important works, the Hauptprobleme der Staatsrechtslehre in 1911 and Das Probleme der Souveränität in 1920, was barely known in Italy. In 1954 I published L'indirizzo fenomenologico nella filosofia sociale e giuridica. In that book, obviously not dedicated to Kelsen, I nonetheless referred to his theses several times. And I dealt with both the critique by Kelsen of Rudolf Smend's theory of the state and with the anti-Kelsen polemic by his ex-pupil Fritz Sander (who died a few years later). In 1954, in the essay `Aspetti odierni della filosofia giuridica in Germania', moreover, I analysed the work of two of Kelsen's pupils, Felix Kaufmann and Fritz Schreier, who had endeavoured to reconcile the criticism of the Marburg school with phenomenology.

D.Z. While you had already read and discussed some of Kelsen's works back in the early 1930s, your decisive encounter with his work does not seem to date back much before the early 1950s. You yourself in a recent article talk of a `conversion' after a more critical phase in relation to Kelsen.

N.B. My first article directly devoted to Kelsen, `La teoria pura del diritto e i suoi critici', appeared in the Rivista trimestrale di diritto e procedura civile twenty years after I started out as a legal philosopher, namely in 1954. But my `conversion' to Kelsenism, to use that term again, had come years earlier. In my lectures at Padoa in 1940-41 there was a section on the step-wise construction of the legal system: the reference was to Kelsen's famous Stufenbau, which fascinated me even then. I may add that in the legal philosophy courses I gave at the University of Camerino in the second half of the 1930s, the lesson plans were structured in three parts: the sources of law, the legal norm and the legal system. This pattern directly reflected my reading of Kelsen. In fact my `conversion' to Kelsen coincided with the violent break with the past that came in our country's history between the second half of the 1930s and the early 1940s. That historical break corresponded to a discontinuity in my intellectual life too, both private and public.

D.Z. Your support for Kelsenism, then, may be seen within an overall framework of revolt against speculative philosophy, especially against idealism?

N.B. I would say so. While the failure of Fascism was becoming evident, we realized that speculative philosophy had offered us very little help in understanding what had happened in Europe and in the world during the World War. We had to start from scratch, embarking on studies of economics, law, sociology, history. Dropping speculative philosophy in favour of `positive philosophy' - in accordance with Carlo Cattaneo's lesson - I understood that the philosophy of law could not but become part of the general theory of law. Accordingly, once I had conceived of the `general theory of law' as a formal theory I found myself very close to Kelsen and his Reine Rechtslehre. And I was impelled to defend Kelsen against his detractors, then numerous in Italy, among both sociologists and natural lawyers and Marxists. I also broke with the idealistic features of Italian philosophy of law, which then concentrated, in the wake of Croce and Gentile, on topics like the `place' that should be assigned to law in the moral sciences. My essays on `La teoria pura del diritto e i suoi critici', which I cited earlier, and `Formalismo giuridico e formalismo etico', which appeared in the Rivista di filosofia in July 1954, put a public stamp, so to speak, on my Kelsenism, even though in fact it dated from several years earlier. I might say that Kelsen was at home, as it were, among us and had been since the 1930s. As long ago as 1932, as you can see, I had his Hauptprobleme der Staatslehre sent to me [Bobbio showed the volume in the original edition, heavily annotated by him, bearing the hand-written date: February 1932].

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1 Interview with Norberto Bobbio by Danilo Zolo, Turin, 1 July 1997. Translated by Iain L. Fraser.

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