HANS KELSEN: WHAT IS JUSTICE? JUSTICE, LAW & POLITICS IN THE MIRROR OF SCIENCE

BOOK REVIEWS
What Is Justice? By Hans Kelsen. Berkeley: University of California Press,
1957.
Hans Kelsen’s farewell address as an active member of the University of
California Faculty is a fitting introductory chapter to the collection of fifteen
essays which comprise his latest book. In keeping with his persistent legal
positivism he answers the question “What Is Justice?” by advising his colleagues and students that a rational definition is not to be had by men. The
book is indeed, as is appropriate for one deeply imbued with the Kantian
critical spirit, dominantly an essay criticising earlier attempts to find such a
definition; Kelsen analyses the failures, as he sees them, of such attempts in
the Scriptures, in Plato, Aristotle, and both the classical and modern “dynamic” formulations of natural law. In significant contrast with Kant, Kelsen
occupies the first half of his book with the “negative” (Kant would say, the
“dialectical”) aspect of the discussion-the refutation of the claims of “pure
reason.” All of the rational attempts to find a satisfactory account of Justice
commit, in one way or another, the fallacy-“metaphysical” or “naturalistic”‘
-of arguing from what Is to what Ought to Be. Were this influence possible,
Kelsen contends, a rational account could be achieved, for one then could
appeal to the “facts.” But any such inference from “is” to “ought” is unsound.
Ultimately, one must rest his normative position on a preference directly felt.
One’s ultimate norm of conduct must be, Kelsen insists, subjective and nonrational.
The last eight essays might be grouped under the title “The Study of Law
within the Bounds of Pure Science Alone”; they include such essays as
“Value Judgments in the Science of Law” and “The Law as a Specific Social
Technique” and define with precision and care that “pure” study of law
which it has been Professor Kelsen’s special concern to promote. Clearly the
refinement and clarification of that theory is as pleasant to Professor Kelsen
as it is congenial to his great faculties of analysis and learning. Yet it must
be noted that one of the new essays in the volume bears the title “Why
Should the Law Be Obeyed?” (Pp. 257-65.) Kelsen is not content in this
summary volume to leave unconsidered the problem of how the “scientific”
study of law may touch upon the “normative” assessment of the law’s relation
to conduct. If, like a modern critical philosopher, he starts off by rejecting