Hans Kelsen on Dante Alighieri’s Political Philosophy

Hans Kelsen’s first book was a thorough investigation of Dante’s The Monarchia. Why did Kelsen become interested in medieval political theory? This article deals with Kelsen’s treatment of Dante’s political philosophy and asks what one can infer from Kelsen’s reading of Dante for the intellectual development of the young Kelsen and his further research interests and philosophical convictions. It may be surprising that Hans Kelsen’s first book deals with a subject he never took up again: medieval political theory. Is it incidental that Kelsen’s first scholarly work is a study on Dante and his political theory? In this article, I will discuss the origins of Kelsen’s book: why did he write it; what attracted him in Dante; does he represent Dante correctly; and what do we learn from this book about Kelsen, the formation of his intellectual universe and his research agenda? 1 The Genesis of Kelsen’s Book on Dante Originally, Kelsen did not want to become a lawyer. Under the influence of Viennese modernism and with a mature judgment for the intellectual developments that later brought him in contact with the Wiener Kreis, he intended to study philosophy, mathematics and physics.1 Deficient employment prospects made him reconsider. As he * Professor for Public Law, University of Bayreuth, Bayreuth, Germany, 2015–2016 fellow at the Institute for Advanced Study, Konstanz, Germany. Email: oliver.lepsius@uni-bayreuth.de. A German variant of this article appeared in 37 Zeitschrift für Neuere Rechtsgeschichte (2015) 80. Translation by Angela Whale and Oliver Lepsius. This essay was supported by funds made available by the Center of Excellence in the Cultural Foundations of Social Integration at the University of Konstanz, which was established in the framework of the German Federal and State Initiative for Excellence. 1 See Jabloner, ‘Objektive Normativität: Zu einem Bezugspunkt von Reiner Rechtslehre und Wiener Kreis’, in R. Walter, W. Ogris and T. Olechowski (eds), Hans Kelsen – Leben – Werk – Wirksamkeit (2009) 169; also in C. Jabloner, Methodenreinheit und Erkenntnisvielfalt (2013) 337. On the intellectual climate in Vienna around 1900, see A. Janik and S. Toulmin, Wittgenstein’s Vienna (1973); C. Schorske, Fin de Siècle Vienna: Politics and Culture (1979); on the political situation, see J.W. Boyer, Political Radicalism in Late Imperial Vienna (1981). Kelsen’s friendship and acquaintance with Ludwig von Mises, Otto Weininger 1154 EJIL 27 (2016), 1153–1167 knew lawyers from among his parents’ friends and envisaged to become a judge at some point in time, he eventually enrolled in the Faculty of Law.2 Yet, in his first semesters, being compelled to attend rather tedious lectures on legal history, Kelsen was not attracted to law. In his reminiscences, he rather discloses an articulate interest for ancient culture, for contemporary social issues and, of course, for philosophical questions.3 It was Kelsen’s curiosity that made him write the study ‘Die Staatslehre des Dante Alighieri’, which was published in the Viennese series on the theory of the state in 1905.4 The topic was self-selected and original in every respect.5 It is not Kelsen’s dissertation since a doctorate in law at the University of Vienna only required the completion of a degree programme and an oral doctoral examination and did not include a written dissertation, as was also common at that time at southern German universities. Kelsen first became aware of Dante’s legal philosophy, specifically The Monarchia, first published in 1310–1320,6 during a class taught by Leo Strisower (1857–1931). Strisower was a financially independent Privatdozent, who had just been appointed associate professor at the University of Vienna after working as a lecturer for 20 years.7 After Kelsen had independently deepened his interest in The Monarchia and determined that no monograph dealt with Dante’s political philosophy, he turned his attention to Strisower in the search for an account of Dante’s political philosophy in the context of the philosophical theory of Dante’s time. Strisower, however, advised against the study, given the overabundance of literature on Dante and recommended that Kelsen and Sigmund Freud is mentioned by Walter, ‘Nachwort’, in H. Kelsen (ed.), Was ist Gerechtigkeit? (2000) 59, at 63. 2 Kelsen, ‘Autobiographie (1947)’, in M. Jestaedt (ed.), Hans Kelsen Werke (HKW) (2008), vol. 1, 29, at 34. See also, referring to the autobiography, R.A. Métall, Hans Kelsen: Leben und Werk (1969), at 4–5. On Kelsen’s life and work, see also R. Walter, Hans Kelsen: ein Leben im Dienste der Wissenschaft (1985), at 11ff; H. Dreier, Rezeption und Rolle der Reinen Rechtslehre (2001), at 17–35, with further references. 3 Cf. Kelsen, supra note 2, at 34. 4 H. Kelsen, Die Staatslehre des Dante Alighieri (1905), E. Bernatzik and E. von Philippovich (eds), Wiener Staatswissenschaftliche Studien, series 6, vol. 3), also in HKW, supra note 2, vol. 1, 134–300. The book was reprinted in the USA three times between 2010 and 2013. On origin and context, see HKW, supra note 2, vol. 1, at 598–601. 5 Kelsen, however, had already access to German translations of The Monarchia. He lists three German translations, see Kelsen, supra note 4, at 49 (also in HKW, supra note 2, vol. 1, at 193–194): ‘There are three translations of The Monarchia. The first is by Herold zu Basel 1559, the second by J Kannegiesser and finally the already mentioned version by Oskar Hubatsch.’ After an earlier translation of The Monarchia by C. Sauter (1913), we now have the study edition. Imbach and Flüeler, ‘Introduction and Commentary’, in D. Alighieri, The Monarchia (1989). This translation is also used as a basis in this essay. 6 Kelsen, supra note 4, at 48–49, assumes 1318 as the date of origin, following F.X. Kraus. This is consistent with recent research, which mostly dates The Monarchia between 1316 and 1321; the exact date is disputed. Currently, it is assumed that it was composed after Henry VII’s Italian campaign. On dating between 1308 and 1313, see Bezzola and Ringger, ‘Article Dante Alighieri’, in Lexikon des Mittelalters (1986), vol. 3, at 549; J. Miethke, De potestate papae (2000), at 156, n. 450. 7 Kelsen, supra note 2, at 35; Métall, supra note 2, at 6, 43. For Strisower, see HKW, supra note 2, vol. 1, at 35, n. 35; Kunz, ‘In Memoriam Leo Strisower’, 7 Revue de Droit International (1931) 419. Strisower is also from Brody/Galicia, the birthplace of Kelsen’s father. Hans Kelsen on Dante Alighieri’s Political Philosophy 1155 first complete his doctorate.8 Kelsen did not follow this advice, and his treatment of the political philosophy of Dante was published before he even completed his doctorate. At that time, Dante’s political philosophy was rarely dealt with outside Italy, and work on it in Italy itself was limited because The Monarchia had been seized by the Papal Index in 1881. Kelsen rediscovered Dante for the field of political philosophy.9 Nevertheless, German political philosophy still marginalized Dante’s The Monarchia.10 One exception is Hermann Conrad, who later engaged with Dante as no other German lawyer has.11 In German studies dealing with 14th-century political philosophy and political philosophy, it is rather customary to focus on the Munich heroes Marsilius of Padua and William of Ockham. This position is fully justified because their writings address perfectly the conflict between emperor and pope.12 At the end of his inquiry, Kelsen also emphasizes the importance and clarity of Marsilius’ Defensor Pacis and acknowledges that it is only the Divine Comedy that keeps alive the memory of the author of The Monarchia.13 What stimulated Kelsen so intensively to deal with a text that he himself did not fully assess positively? My thesis is that Kelsen’s first work demonstrates his interest for jurisprudential questions in a concrete social and political context. The Monarchia 8 Kelsen, supra note 2, at 35–36; Métall, supra note 2, at 7. 9 Meanwhile, interest in The Monarchia has naturally and greatly increased. Recent literature includes: F. Cheneval, Die Rezeption der Monarchia Dantes bis zur Editio princeps im Jahre 1559 (1995); R. Imbach, Dante, la philosophie et les laics: Initiation à la philosophie médiévale (1996); A. Cassell, The Monarchia Controversy (2004); Miethke, supra note 6, at 156–161. 10 See also E.-W. Böckenförde, Geschichte der Rechtsund Staatsphilosophie (2002), at 289; previously W. Fikentscher, Methoden des Rechts in vergleichender Darstellung (1975), vol. 1, at 300, 379, 389–390; vol. 2, at 18–19, 29. See also Bielefeldt, ‘Von der päpstlichen Universalherrschaft zur autonomen Bürgerrepublik. Aegidius Romanus, Johannes Quidort von Paris, Dante Alighieri und Marsilius von Padua im Vergleich’, 104 Zeitschrift für Rechtsgeschichte Kanonistische Abteilung (1987) 70, at 94–101; overviews can be found in Rheinfelder, ‘Dante Alighieri 1265–1321’, in H. Rausch (ed.), Politische Denker I (6th edn, 1987) 69; Herde, ‘Dante als Sozialphilosoph’, in E. Mock and G. Wiland (eds), Rechtsund Sozialphilosophie des Mittelalters (1990) 83; Lüddecke, ‘Dantes Monarchia als politische Theologie’, 37 Der Staat (1998) 547; see also Schmidt, ‘Dante und die strafrechtliche Praxis seines Zeitalters’, 9 DanteJahrbuch (1936) 52. 11 H. Conrad, Dantes Staatslehre im Spiegel der scholastischen Philosophie seiner Zeit (1946); revised edition published in 27 Deutsches Dante-Jahrbuch (1948) 43; H. Conrad, Deutsche Rechtsgeschichte: Frühzeit und Mittelalter (1954), at 329–330, 384; Conrad, ‘Dante’, in Görresgesellschaft (ed.), Staatslexikon (6th edn, 1958), vol. 2, at 534–537; Conrad, ‘Recht und Gerechtigkeit im Weltbild Dante Alighieris’, in C. Bauer et al. (eds), Speculum Historiale, Festschrift Johannes Spörl (1965) 59; Conrad‚ ‘Der Reichsgedanke bei Dante und Nikolaus von Kues’, in H. Conrad, H. Friedrich and B. Haussler, Dante: Der Dichter des Abendlandes (1969) 21. For Conrad’s interpretation