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    I’m no Fuller aficionado, but the role he played in Harvard’s refusal to hire Kelsen seems to be wildly overstated…

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Berlin and Hart, now Fuller and Kelsen

Brian Leiter

I was teaching Kelsen last year (a big chunk of the 2nd edition of the Pure Theory), and while doing background research I came across this remarkable story (that called to mind Isaiah Berlin’s infamous “recommendation” of H.L.A. Hart). Roscoe Pound at Harvard Law School had, correctly, identified Hans Kelsen as the preeminent figure in jurisprudence in the world, but he was unable to secure a permanent appointment for him at Harvard Law School in the 1940s due to the opposition of Lon Fuller, the contracts scholar and famously muddled dabbler in jurisprudence. Kelsen, who had lost his job in Cologne when the Nazis fired all the Jews from the civil service, eventually found an appointment in the political science department at Berkeley.

(For those outside legal philosophy, Fuller made two contributions: the wonderful “Case of the Speluncean Explorers,” which is a very nice tool for teaching questions of statutory interpretation and judicial role; and articulating the principles of legality, i.e., what has to be true of any system of guidance by rules (e.g., rules must be clear, public, non-retroactive etc.). From the latter, he drew all kinds of mistaken conclusions (as Hart, among others, showed). His debate with Hart in the pages of the Harvard Law Review in the 1950s, alas, is one of the more embarrassing public debates in jurisprudence [for Fuller, not Hart–Fuller was just clueless]. Kelsen, by contrast, was, with Hart, one of the two most important legal philosophers of the 20th-century, whose influence throughout the civil law world remains huge to this day. Hart, Raz, and many others engage with Kelsen, seriously albeit critically.)

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4 responses to “Berlin and Hart, now Fuller and Kelsen”

  1. Mathieu Carpentier

    I’m no Fuller aficionado, but the role he played in Harvard’s refusal to hire Kelsen seems to be wildly overstated by Kelsen’s Wikipedia page. From his letters, as well as some of his work, we know that Fuller disagreed vehemently with Kelsen, and that he also thought Kelsen was not a very good lecturer, in part due to his lack of proficiency in English (see Olechowski biography of Kelsen, p. 685). But I have not found any evidence that his opposition to Kelsen—assuming he ever expressed it publicly at the time—played any concrete role in the University’s decision.

    From Kelsen’s 1947 autobiography and Thomas Olechowski’s book, it appears that the decision not to renew Kelsen’s lectureship for a third year was due to the lack of support from Dean Landis, and blatant xenophobia on the part of Harvard Corporation Secretary Jerome D. Greene and, possibly, Harvard President James Conant (whose “true reasons” are alluded to by Kelsen in his Autobiography)… Appointing Kelsen to a permanent position at Harvard was never the plan, so there was no reason for Fuller, or anyone else, to oppose it.

    (See Olechowski, p. 709 for a truly astonishing letter from Greene to the Rockefeller Foundation on why they should not fund Kelsen’s lectureship for another year).

    Reply
    1. Brian Leiter

      I had not looked at either of those sources, thanks for the pointers. I take it you’re suggesting that anti-semitism was also a factor?

      Reply
      1. Mathieu Carpentier

        I don’t know about antisemitism. I think it is more generally a kind of contempt for European exiles (most of whom Jewish, of course) trying to find jobs at American law schools. For instance, in his letter to the Foundation, Greene points out that “none of these European exiles are career men”, which Olechowski interprets as meaning: “men with promising careers—and in whom it would therefore be worth investing”. (NB I am translating Olechowski’s German translation back to English, so I don’t know the exact phrasing Greene chose). Giving them one- or two-year lectureships felt like charity, but they should not feel entitled to anything more.

        In his autobiography, Kelsen also reflects on why he was kind of a mismatch for American law schools at the time: “Amerikanische Law Schools haben kein besonderes Interesse an einer wissenschaftlichen Theorie des Rechts. Sie sind training schools – Rechtsgewerbeschulen; ihre Funktion ist Vorbereitung für den praktischen Beruf eines Rechtsanwalts…. Das Recht als Gegenstand wissenschaftlicher Erkenntnis gehört vielleicht wirklich mehr an eine philosophische, historische, oder sozialwissenschaftliche Fakultät.” (HKW 1, p. 90)

        Reply
        1. Brian Leiter

          Kelsen was certainly right about U.S. law schools in the 1940s and for a couple of decades thereafter. By the 1970s, that started to change. “Jurisprudence” was mostly a hobby for doctrinal professors.

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