The legal conceptions of hans kelsen and eugen ehrlich: weighting human rights and sovereignty

AutorMikhail Antonov
CargoAssociate professor at the Law Faculty at the National Research University 'Higher School of Economics' in Saint Petersburg (Russia)
Páginas39-73
Rev. direitos fundam. democ., v. 20, n. 20, p. 39-73, jul./dez. 2016.
ISSN 1982-0496
Licenciado sob uma Licença Creative Commons
THE LEGAL CONCEPTIONS OF HANS KELSEN AND EUGEN EHRLICH:
WEIGHTING HUMAN RIGHTS AND SOVEREIGNTY
1
AS CONCEPÇÕES JURÍDICAS DE HANS KELSEN E EUGEN EHRLICH:
PONDERAÇÃO ENTRE DIREITOS HUMANOS E SOBERANIA
Mikhail Antonov
Associate professor at the Law Faculty at the National Research University “Higher
School of Economics” in Saint Petersburg (Russia).
Resumo
Este artigo considera a relevância das concepções jurídicas de Eugen
Ehrlich e Hans Kelsen para os debates contemporâneos sobre
direitos humanos e seus limites. Afirma-se que as concepções de
Ehrlich e Kelsen reforçam uma abordagem multifacetada do Direito e,
ao mesmo tempo, asseguram a autonomia humana e a liberdade em
face das "grandes narrativas" e das intervenções governamentais.
Essa perspectiva abre uma variedade de oportunidades para uma
melhor compreensão do equilíbrio entre os interesses individuais e
coletivos, entre o significado dos direitos e a soberania. Ambas as
concepções são ainda atuais para os debates nos campos do Direito
Internacional, do Direito Constitucional e da Filosofia do Direito sobre
os limites dos direitos humanos e sobre as condições epistêmicas de
identificação destes direitos, de compreensão de como esses direitos
são e, ao mesmo tempo, podem reivindicar um caráter universal,
permanecendo culturalmente incorporados. O princípio e o valor da
relatividade que sustentam a Teoria Pura do Direito de Kelsen e a
Sociologia do Direito de Ehrlich são de particular importância para a
discussão da “universalidade relativa” dos direitos humanos.
Palavras-Chave: Constitucionalização. Convenções Sociais. Direitos
Humanos. Eugen Ehrlich. Hans Kelsen. Normatividade. Teoria Pura
do Direito. Sociologia do Direito.
1 The present research has been conducted thanks to financial support under a grant from the Russian
Fund of Humanities No.15-03-00345.
MIKHAIL ANTONOV
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Rev. direitos fundam. democ., v. 20, n. 20, p. 39-73, jul./dez. 2016.
Abstract
This paper considers the relevance of the legal conceptions of Eugen
Ehglich and Hans Kelsen for the contemporary debates on human
rights and on their limits. It is asserted that the conceptions of Ehrlich
and Kelsen enhance a multifaceted approach to the law and, at the
same time, such philosophical perspective that secures human
autonomy and freedom from “great narratives” and governmental
interventions. This perspective opens a variety of opportunities for
better understanding of the balance between individual and collective
interests, between the significance of rights and sovereignty. Both
conceptions are still actual for the debates in the fields of international
or constitutional law, and legal philosophy about the limits of human
rights and about epistemic conditions for identifying these rights, for
understanding how these rights are the same time can claim for a
universal character and remain culturally embedded. The principle
and the value of relativity that underpins the Pure Theory of Law of
Kelsen and the legal sociology of Ehrlich are of particular importance
for discussing the “relative universality” of human rights.
Key-words: Constitutionalization. Eugen Ehrlich. Hans Kelsen.
Human Rights. Legal Sociology. Normativity. Pure Theory of Law.
Social Conventions.
1. INTRODUCTION
In the debates about human rights referring to the conceptions of Hans Kelsen or
Eugen Ehrlich sometimes is taken as eccentric or even ridiculous, because these
thinkers and their ideas are considered to be obsolete and of no value for the
contemporary legal problems.
2 Naturally, neither of these two thinkers (Ehrlich died in
1922 and Kelsen in 1973) could anticipate the future development of societies and
the legal problems arising in this development. We take these two conceptions (leaving
aside other thinkers whose works can be of no lesser importance) as the most
illustrative for the positivist approach to law in the first half of the XXth century and as
still influential nowadays (at least, in the continental jurisprudence). Our objective is to
demonstrate that the both conceptions offer a rich potential for discussing limits of
human rights, although indirectly through particular methodological ideas favouring
autonomy and freedom of individuals.
Even if these legal scholars diverged significantly on some points, and represent
two different legal theories (analytical jurisprudence and sociological jurisprudence),
2 See detailed accounts on such views: TREVINO, 2013, p. 26-47; SOMEK, 2007, p. 4 09-451.
THE LEGAL CONCEPTIONS OF HANS KELSEN AND EUGEN EHRLICH...
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Rev. direitos fundam. democ., v. 20, n. 20, p. 39-73, jul./dez. 2016.
there are two major dimensions that bring these them together. Their conceptions were
formulated to meet the same epistemic challenges that legal science faced in the first
decades of the XXth century, and both Kelsen and Ehrlich sought to work out such a
pluralistic understanding of law that would take a better account of relativity of legal
knowledge. This led Kelsen and Ehrlich to methodological pluralism which was reflected
in value pluralism to which both legal scholars adhered. Substantially, such pluralism
favoured personal choice both in the epistemic and axiological aspects, and promoted
democracy where human beings were considered to be autonomous authors of the
rules by which is governed their behaviour. For both thinkers the law is created not by
the state or any metaphysical instances, but by human beings themselves: for Kelsen it
is judges and lawyers who create legal rules, and for Ehrlich it is members of various
social communities that bring about the real legal regulation. From this vantage point,
Kelsen’s Pure Theory of Law and Ehrlich’s sociology of law are not hostile to human
freedom and, on the contrary, empirical facts (for sociological jurisprudence) or formal
normativity (for analytical jurisprudence) can have more beneficent effect than eloquent
diatribes about such ideal dimensions of the law as justice or proportionality. After
analyzing the main challenges to legal knowledge and the responses Kelsen and
Ehrlich tried to formulate to meet these challenges, we will assess the main points at
which the intellectual legacy of these legal thinkers can be important for the
contemporary debates about correlation between human rights and sovereign rights of
states.
2. PROBLEMATIZING THE HUMAN RIGHTS ISSUE IN LEGAL SOCIOLOGY AND IN
NORMATIVISM
Human rights are one of the most controversial and the same time stimulating
topics for the contemporary legal philosophy. In the scope of the on-going debates
some thinkers tend to assert the supreme value of these rights which are supposed to
be independent on any authoritative enactment and to serve as ultimate criteria for
assessing validity of legislation.(HAAS, 2008) Some thinkers, on the contrary, may
admit that there are no rights before their positivation in statutes and international
treaties, or even if such rights are existent, their effect is weak, unsatisfactory and
dependent on political arrangements.(POSNER, 2014) There are a variety of
intermediate conceptions searching for a solution of this issue in-between these two

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