Luke Ford

Cornelius Adrian Comstock Vermeule (born May 2, 1968) is an American legal scholar and constitutional theorist who holds the Ralph S. Tyler, Jr. Professorship of Constitutional Law at Harvard Law School. He came to wide notice as a scholar of administrative law, statutory interpretation, and the design of legal institutions, and he became, after his conversion to Roman Catholicism in 2016, the figure most closely identified with common-good constitutionalism, a theory that draws on the classical legal tradition and on Catholic political thought and that defines itself against both originalism and living constitutionalism. His defenders regard him as a rigorous critic of liberal jurisprudence; his critics regard his program as a justification for illiberal government. By either reading he stands among the more influential and contested legal academics of his generation.

Vermeule was born in Cambridge, Massachusetts, into a family of established academic standing. His father, Cornelius Clarkson Vermeule III (1925-2008), served for decades as curator of classical and ancient art at the Museum of Fine Arts in Boston and ranked among the leading American classical archaeologists of his day. His mother, Emily Vermeule (1928-2001), was a professor of classical philology and archaeology at Harvard and a figure of comparable distinction in her field. His sister, Blakey Vermeule, became a literary scholar and a professor of English at Stanford University. He was raised in the Episcopal tradition, drifted from organized religion during his college years, returned for a time to Anglicanism, and converted to Roman Catholicism in 2016, a passage that would reorganize his public thought.

He graduated summa cum laude from Harvard College in 1990 with a degree in East Asian languages and civilizations, an education in textual reading and tradition that has left visible marks on the cast of his later legal work. He then entered Harvard Law School, where he earned the Juris Doctor magna cum laude in 1993. After law school he clerked for Judge David Sentelle (b. 1943) of the United States Court of Appeals for the District of Columbia Circuit from 1993 to 1994, and then for Justice Antonin Scalia (1936-2016) of the Supreme Court of the United States from 1994 to 1995. The clerkship with Scalia carries a particular irony, since Scalia was the most prominent judicial advocate of originalism in his era and Vermeule became, in time, among the most searching critics of the originalist project.

After a period in practice and early teaching, Vermeule joined the faculty of the University of Chicago Law School in 1998, where he established a reputation as a scholar of constitutional structure and institutional design and held the Bernard D. Meltzer Professorship. He returned to Harvard Law School as a professor in 2006, was named the John H. Watson Professor of Law in 2008, and was appointed the Ralph S. Tyler, Jr. Professor of Constitutional Law in 2016. His standing within the profession was confirmed by his election to the American Academy of Arts and Sciences in 2012, at the age of forty-three, and in 2020 he was appointed to the Administrative Conference of the United States. He has authored or co-authored nine books and a substantial body of articles across constitutional law, administrative law, legislation, and national security law.

The early scholarship took as its premise that legal institutions should be judged by their real capacities and their real limits rather than by the idealized portraits common in constitutional theory. Vermeule argued that courts, legislatures, and agencies each operate under conditions of uncertainty and bounded competence, and that the proper allocation of interpretive authority follows from a candid comparison of those competences rather than from a presumption in favor of judicial supremacy. This institutional orientation set him apart from theorists who organized their accounts around rights or around judicial doctrine, and it supplied the through-line of his first books, among them Judging Under Uncertainty (2006), Law and the Limits of Reason (2009), and The System of the Constitution (2011). In place of the familiar celebration of courts as singular guardians of liberty, these works pressed the inevitability of error, the value of restraint where judges lack comparative advantage, and the practical constraints that shape adjudication in a complex society.

A connected theme, the defense of executive and administrative authority, runs through the middle period of his career. In The Executive Unbound (2010), written with Eric Posner (b. 1965), Vermeule argued that modern emergencies enlarge executive power as a matter of practical necessity and that formal constitutional limits restrain presidents less than do elections, public opinion, and political competition. The book unsettled the conventional account of the separation of powers by relocating the real checks on the executive from legal doctrine to politics. His defense of the administrative state grew more explicit in Law’s Abnegation (2016), where he argued that the courts had ceded authority to agencies not through constitutional failure but through a reasoned recognition of administrative expertise and institutional competence. Where many conservatives treated the bureaucracy as a standing threat to liberty, Vermeule treated administrative governance as a durable and legitimate feature of the modern state, capable of serving public purposes when rightly directed. That position placed him at a distance from much of the conservative legal movement, and in particular from the wing of the Federalist Society that sought to revive judicially enforced limits on agency power. His collaboration with Cass Sunstein (b. 1954) in Law and Leviathan (2020) extended the argument by showing that administrative governance remains bound by longstanding principles of legality and reasoned decision.

His conversion to Roman Catholicism in 2016 marks the decisive reorientation of his intellectual life. Reading Thomas Aquinas (1225-1274), Joseph de Maistre (1753-1821), and above all John Henry Newman (1801-1890), Vermeule came to hold that liberal political theory cannot furnish a stable moral foundation for law and government. Newman proved the most important of these influences, shaping his understanding of the development of doctrine, the standing of authority, and the continuity of a living tradition. He summarized the shift in a remark made soon after his conversion, in which he disclaimed any deep faith in law as such and described it as a tool that serves good or bad ends and that will, over time, prove no better than the culture and the polity that hold it.

From this position Vermeule emerged as a leading advocate of Catholic integralism, the tradition holding that political authority should be ordered toward the common good, including the spiritual ends of the human person, rather than remaining neutral among competing accounts of the good life. He distinguished his approach from any program of sudden institutional rupture and described instead a strategy of ralliement, a patient working within existing institutions to turn them toward substantive moral ends.

His most widely debated contribution to legal theory is common-good constitutionalism. He introduced it to a general audience in the 2020 essay “Beyond Originalism,” published in The Atlantic, and developed it at length in Common Good Constitutionalism (2022). The theory rejects both conservative originalism and progressive living constitutionalism and asks that constitutional interpretation draw on the classical legal tradition, on the ius commune, and on principles of natural law rather than on original public meaning or on evolving social values alone. Interpretation, on this account, should advance substantive goods such as justice, peace, public morality, prosperity, solidarity, and human flourishing, and it should treat authority, hierarchy, subsidiarity, and the educative office of law as legitimate parts of a sound political order. Vermeule sets the promotion of these conditions above the modern elevation of individual autonomy to the highest constitutional value. A distinctive feature of the theory places interpretive responsibility not on judges alone but also on legislators, administrators, and executive officials, who are to apply the law with a conscious view to the common good. His supporters read the program as a recovery of the classical tradition that governed Western law before the rise of modern liberalism; his critics read it as a grant of wide discretion to officials and as a theory open to authoritarian use.

Much of the controversy that surrounds Vermeule has gathered around his engagement with the German jurist Carl Schmitt (1888-1985). He rejects a great deal of what Schmitt concluded, yet he has found Schmitt’s treatment of sovereignty, emergency, and political authority useful for describing the actual operation of modern government. His critics take the borrowing as evidence of an authoritarian cast of mind; he answers that classical legal principle and natural law supply the moral framing that holds such power within bounds. His public rhetoric has at times sharpened the conflict and drawn rebuke, as when a remark of his in early 2020 was read as a comparison between attendees of a conservative gathering and the first inmates of the Nazi camps, a reading that brought criticism from colleagues and alumni. Episodes of this kind have shaped his reception as much as the scholarship has.

The portrait of his career as a clean ideological break understates the continuity in his development. Long before he described himself as a Catholic integralist, Vermeule placed institutions above individual rights, administrative expertise above judicial supremacy, and the practical conditions of governance above abstract constitutional theory. The later work reads less as a repudiation of the earlier than as a theological and philosophical reinterpretation of commitments that had organized his thought for two decades. The skeptic of judicial ambition and the theorist of the directed state share a single underlying preference for ordered authority exercised by competent officials.

Vermeule remains an active figure in public argument. He serves as a contributing editor at Compact, co-founded the book-review journal The New Rambler in 2015, and writes a Substack newsletter, The New Digest. He continues to publish on constitutional theory, administrative law, executive power, and postliberal political thought, and his commentary on decisions such as Loper Bright Enterprises v. Raimondo and his replies to critics of common-good constitutionalism keep him engaged with the moving edge of doctrine.

His personal life met a grave loss in 2024, when his son, Spencer Vermeule (2003-2024), a sophomore at the University of Notre Dame and a member of the university’s fencing team, died on March 2 in a single-car accident in Elkhart County, Indiana, at the age of twenty. A memorial Mass was held for him at the Basilica of the Sacred Heart on the Notre Dame campus, and friends, family, and members of the academic and Catholic communities gathered to mourn him.

Vermeule holds a singular place in American legal thought. Few scholars of his generation have done as much to undermine the assumptions of liberal constitutionalism and of movement conservatism at the same time. Read as a critic of liberal jurisprudence, a defender of the administrative state, a Catholic political theorist, or the author of common-good constitutionalism, he has obliged lawyers, scholars, and officials to confront direct questions about the purposes of law, the standing of authority, and the moral foundations of political order.

The Great Delusion

In his 2018 book, The Great Delusion: Liberal Dreams and International Realities, John J. Mearsheimer wrote:

My view is that we are profoundly social beings from the start to the finish of our lives and that individualism is of secondary importance… Liberalism downplays the social nature of human beings to the point of almost ignoring it, instead treating people largely as atomistic actors… Political liberalism… is an ideology that is individualistic at its core and assigns great importance to the concept of inalienable rights. This concern for rights is the basis of its universalism—everyone on the planet has the same inherent set of rights—and this is what motivates liberal states to pursue ambitious foreign policies. The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities—state and interstate. They evoke hope and provoke action.”
[Humans] do not operate as lone wolves but are born into social groups or societies that shape their identities well before they can assert their individualism. Moreover, individuals usually develop strong attachments to their group and are sometimes willing to make great sacrifices for their fellow members. Humans are often said to be tribal at their core. The main reason for our social nature is that the best way for a person to survive is to be embedded in a society and to cooperate with fellow members rather than act alone… Despite its elevated ranking, reason is the least important of the three ways we determine our preferences. It certainly is less important than socialization. The main reason socialization matters so much is that humans have a long childhood in which they are protected and nurtured by their families and the surrounding society, and meanwhile exposed to intense socialization. At the same time, they are only beginning to develop their critical faculties, so they are not equipped to think for themselves. By the time an individual reaches the point where his reasoning skills are well developed, his family and society have already imposed an enormous value infusion on him. Moreover, that individual is born with innate sentiments that also strongly influence how he thinks about the world around him. All of this means that people have limited choice in formulating a moral code, because so much of their thinking about right and wrong comes from inborn attitudes and socialization.

The social account underwrites Vermeule’s positive program better than it underwrites the liberal’s. If a man is socialized before he can reason, raised through a long childhood under heavy value infusion, then the law that forms and teaches him is no intrusion on a free chooser. It is how the creature gets made. Vermeule prizes the educative office of law, authority, hierarchy, subsidiarity, solidarity. Mearsheimer’s picture of human nature hands him each one. The neutral state that declines to form its citizens is the fiction, since something always forms them, and Vermeule’s reply is that the state should know what it forms them toward. So far the realist is the integralist’s ally, and a strong one. Mearsheimer’s anthropology is Vermeule’s foundation.
The premise that lays the foundation cracks the roof. Mearsheimer ranks the three sources of our preferences. Innate sentiment, then socialization, then reason, with reason last and weakest. By the time a man’s reasoning runs sharp, his family and society have already laid down their value infusion and his inborn sentiments have already tilted him. Reason arrives late and mostly serves what came first. Set Vermeule’s project beside that ranking. Common good constitutionalism rests on natural law and the classical tradition, the ius commune, treated as a universal moral order that reason reaches and that binds all men everywhere. The whole architecture is a claim staked on reason, that a trained mind apprehends the true human good and points law toward it. Mearsheimer ranks that faculty last.
So the integralist universalism stands exposed as a second universalism, the mirror of the one it fights. Mearsheimer’s quarry in The Great Delusion is liberal universalism, the doctrine that every person on the planet carries the same inalienable rights, the doctrine that drives liberal states to remake the world. He calls it a delusion because it overrates reason and ignores the particular, tribal nature of men. Natural law makes the same shape of claim. Everyone, everywhere, one moral order, reachable by reason, binding without regard to belonging. If Mearsheimer has the ranking right, the integralist universal falls to the same blade as the liberal universal. Vermeule has not climbed out of the delusion. He has swapped its content and kept its form. Rights gave way to the common good; the universal reach and the trust in reason stayed.
Vermeule half-concedes the point in his own voice. He says he puts little faith in law, calls it a tool fit for good or bad ends, and says it will prove no better than the culture and the polity that hold it. That is a Mearsheimerian sentence. Culture over formal reason, formation over parchment. The man who wrote it has granted that the value infusion runs deeper than the legal argument laid on top. Then he stops the knife short of his own natural law. He lets socialization dissolve the liberal’s rights and exempts his own universal good from the solvent. Mearsheimer might refuse the exemption.
A Vermeule consistent with this frame drops the universal claim and keeps the particular community formed toward its own good. That Vermeule is a nationalist of the soul, a man who says this people, with this inheritance, formed by these authorities toward the ends this tradition carries, and who makes no pretense that the ends bind the Chinese or the Turk. Mearsheimer could sign that. It is his own pluralism, each society with its infusion and no universal court of reason seated above them. It is not the Vermeule who exists. The living Vermeule insists the classical tradition is true for all and not merely ours, and reaches past the American community to an order that predates and outranks it. Strip the universal and a defensible integralism remains that is also a parochialism. Keep the universal and the frame returns the liberal’s error in clerical dress.
Mearsheimer fears the universalist state because universalism joined to power breeds the crusade. The liberal hegemon, sure it knows the rights of all men, sends its armies to install them and names the wreckage liberation. Vermeule wants a state with a substantive mission, sure it knows the good of all men, holding the coercive power and using it to form them. The same logic points home. A regime convinced it has found the universal good and granted the means to enforce it presses toward the good as it sees it and reads resistance as error to correct. Mearsheimer’s book is a long warning against that confidence. The warning does not stop at the water’s edge.
Apply the ranking to the man. Vermeule is a creature of reason if anyone is, summa cum laude, the two clerkships, the endowed chair, the lawyer’s apparatus run across nine books. Mearsheimer says reason comes last and mostly dresses the sentiment and the socialization that came before. Read that way, the natural-law scaffolding is the late arrival. What came first was the Cambridge boyhood, the academic home, the drift, the return, the conversion in 2016, the new belonging among the postliberals. The belonging landed, and the reasoning followed to dignify it. This carries no charge of bad faith. The claim holds for every man, the liberal included, whose rights-talk is the late servant of a prior formation, and it holds for Mearsheimer too. The order is the whole of it. For Vermeule the order means the common good he reaches by argument is the good he was already formed to want, and the argument came after.
Mearsheimer ranks reason last; he does not abolish it. If reason never reached past socialization, no man could judge his own tribe’s infusion false, and reformers, converts, and dissenters would be impossible creatures. Vermeule is himself a convert, a man who turned against the formation of his youth, which is some evidence that reason and conscience pull against the value infusion as well as serve it. The frame explains the pull toward the common good as sentiment and socialization, and on its own terms it cannot rule out that the pull also runs toward something true. Mearsheimer is an anthropologist of belief, not a judge of its truth. He can show that Vermeule’s universalism wears the same form and rests on the same weak footing as the liberalism it opposes. He cannot show that the natural law is false. He can show only that the confidence in reaching it outruns what reason, ranked last, can carry.
If Mearsheimer is right, Vermeule keeps his anti-liberal anthropology and loses his warrant for the universal. He is left with a people to form and a tradition to carry, and no view from above to prove the tradition true for anyone outside it. Whether that reads as a loss or as a homecoming turns on whether he can surrender the claim that made his name.

‘A Big Misunderstanding’

Vermeule asks officials to read the constitution toward substantive goods, justice, peace, public morality, solidarity, and flourishing, drawn from a classical tradition, the ius commune, and the natural law, sources he treats as available to reason and held in common. The frame puts the question the program cannot answer on its own terms. Whose good, by whose lights, named by whom? No common good hangs in the air apart from the men who name it. When an official directs law toward the common good, he directs it toward the good as he and his allies see it. The phrase does not pick out a thing in the world. It picks out a coalition’s conception of the good, raised to the dignity of the universal.
This is the Starbucks move. The mission statement says it nurtures the human spirit one cup at a time. The goal is profit. Vermeule’s mission statement says it orders law toward justice, peace, and flourishing. Read through this frame, the goal is the capture and direction of the coercive apparatus of the state by a particular coalition, postliberal, integralist, traditionalist, Catholic, national-conservative, against its rivals. The rivals are the liberals who hold autonomy as the highest value and the originalists who want to freeze the contest at the founding. Common good constitutionalism is what the bid for power sounds like when a learned man makes it.
Watch the candor. He claims no neutrality. He says authority is legitimate, hierarchy is legitimate, the law teaches and forms, the state may pursue substantive ends. He names his strategy, ralliement, working inside the institutions to turn them toward those ends. Pinsof’s targets bury the bid for power under proceduralism and the promise that reason will decide. Vermeule states the bid. He wants his side to hold the apparatus and use it. The frame credits the honesty and then declines the gloss.
Why the noble language at all, if the aim is power? Because the naked sentence repels. To say my coalition should rule you and bend you toward our conception of the good drives men off. To say law should serve the common good and human flourishing draws them in. The content is the same. The reception is not. The classical framing does double work. It dignifies the bid as the recovery of a lost inheritance, and it recruits a lineage of allies, Aquinas, Newman, the whole ius commune, whose authority transfers to the man citing them. A faction with Aquinas in it looks less like a faction and more like the truth.
Turn it on the critics. The liberal scholars who call him an authoritarian and panic over his reading of Schmitt are not clearing up a misunderstanding either. They are a coalition defending a long hold on the courts and the academy, coding a rival as outside the bounds of decent argument. Their alarm is real and it is also a weapon. His interest in Schmitt on sovereignty and emergency is the recognition that politics turns on friend and enemy and on who decides, which is the recognition the frame starts from. The two sides understand each other well. Each calls its own bid for the state the universal good and calls the rival’s bid a threat to it. This is no seminar. It is a contest of coalitions conducted in the language of principle.
The conclusion the frame forces is bracing. There is no misunderstanding to resolve at Harvard Law School. Vermeule and his opponents do not talk past each other; they grasp each other’s ends and reject them. Better arguments will not settle the question, because the question is not an argument. It is who controls the coercive apparatus of the state and toward what ends he points it. The debate over common good constitutionalism stands in for that question. The world he wants to order does not want to be ordered by him, and he knows it, which is why he reaches for authority over persuasion. The originalists he left behind do not misread the constitution. They want a different master. He wants his.

Hans Kelsen (1881-1973) was a principal architect of modern legal positivism and the most widely translated jurist of the twentieth century. He asked a question that sounds simple and resists every easy answer: what makes law law? He refused to ground the validity of law in morality, religion, politics, sociology, psychology, or national tradition. He treated law instead as a distinct normative order governed by its own logic, and he spent six decades building a science of law that aimed to describe that order without smuggling in the values of the describer. The effort reshaped constitutional theory, jurisprudence, political theory, and international law across Europe, the Americas, and Asia.

Kelsen was born on October 11, 1881, in Prague, then part of the Austro-Hungarian Empire, into a German-speaking Jewish home. His father came from Galicia, his mother from Bohemia. The family moved to Vienna in 1885, when Kelsen was three, and the city held him for most of his European life. Vienna at the turn of the century produced Sigmund Freud (1856-1939), Ludwig Wittgenstein (1889-1951), and the philosophers who later formed the Vienna Circle, and it gave Kelsen a milieu that prized rigor, system, and the policing of conceptual boundaries.

He attended the Akademisches Gymnasium and read law at the University of Vienna, earning his doctorate in 1906 and completing his habilitation in 1911. He studied for a time under the public-law scholar Georg Jellinek (1851-1911) at Heidelberg, then turned Jellinek’s questions past the limits Jellinek had set for them. In 1905 he converted to Roman Catholicism, a familiar route to professional advancement in the antisemitic climate of the late Habsburg state. He later converted to Lutheranism with his wife, Margarete Bondi, whom he married in 1912. The couple had two daughters.

His first large work, Hauptprobleme der Staatsrechtslehre (1911), broke with the theories that treated the state as a concrete organism standing apart from and above law. Kelsen argued that the state and the legal order amount to the same thing. The state has no mystical existence behind the law. The state is the personification of a legal system, a way of speaking about the unity of norms. That identification became a load-bearing element of everything he wrote afterward.

His reputation rose fast in the final years of the empire. During the First World War he served as a legal adviser in the War Ministry while continuing to write. When the empire collapsed in 1918, he emerged as a leading constitutional thinker of the new Austrian Republic. At the request of Chancellor Karl Renner (1870-1950), he became the principal technical author of the Austrian Constitution of 1920, a document that still governs Austria in large part today. He also helped establish the country’s Constitutional Court and served on it from its founding until 1930.

The court Kelsen designed carried a structural innovation that traveled across the world. Rather than scatter the power of constitutional review among ordinary courts, as the United States does through its scheme of diffuse review reaching back to Marbury v. Madison, Kelsen concentrated that power in a single specialized tribunal with the authority to annul legislation. This centralized model became known as the Kelsenian or Austrian model. Constitutional courts in Germany, Italy, Spain, South Korea, and across the post-communist democracies of Central and Eastern Europe trace their architecture to his design. He gave constitutional democracy a working instrument, not only a theory.

His own service on that court ended in a fight over marriage law, and the fight tells us something about the distance between his formal jurisprudence and the political world it operated in. Catholic Austria forbade remarriage after divorce, yet administrative authorities granted dispensations that allowed such marriages to proceed. Lower courts then treated those dispensation marriages as invalid, and the conflict of jurisdictions reached the Constitutional Court. The court, with Kelsen prominent in its reasoning, upheld the dispensations and overturned the lower courts. The Christian Social Party and the Catholic hierarchy answered with sustained political pressure. A 1929 constitutional amendment recalled every sitting member of the court and reconstituted it through new appointment rules, and the reconstituted court reversed course in July 1930. Kelsen, sympathetic to the Social Democrats though never a party member, could have returned to the bench on a Social-Democratic nomination. He refused. The personal attacks had embittered him, and he accepted a chair at the University of Cologne and left Austria.

The work for which he remains most read is the Pure Theory of Law, the Reine Rechtslehre, developed across decades and set out in a first edition in 1934 and a heavily revised second edition in 1960. The theory earns the word “pure” through what it excludes. Kelsen wanted to isolate the analysis of law from moral philosophy, political ideology, sociology, and psychology, so that legal science might describe what the law is rather than prescribe what it ought to be. He regarded natural-law theories as efforts to dress moral and religious convictions in the robes of objective science, and he wanted jurisprudence cleared of that confusion the way the logical positivists around Rudolf Carnap (1891-1970) wanted philosophy cleared of metaphysics. His own foundations stayed neo-Kantian rather than positivist in the Vienna Circle sense. He drew from Kant the sharp line between the realm of fact and the realm of norm, between is and ought, and he later named Kant’s contrast as the light that had guided him from the start.

At the center of the theory stands a hierarchy of norms, the Stufenbau des Rechts. Every legal rule draws its authority from a higher rule. A municipal regulation draws validity from a statute, a statute from a constitution, a constitution from a presupposed foundational norm. Kelsen named that final source of validity the Grundnorm, the basic norm. The basic norm is no enacted statute and no historical event. It is a presupposition the jurist must adopt to make sense of the validity of the legal order as a whole, the point at which the chain of authorization runs out and the science of law has to assume rather than derive.

He built the structure on a distinction between causality and imputation. Natural science explains events through cause and effect: the stone falls because gravity acts on it. Law connects facts in a different way. If a man commits theft, a court ought to impose a sanction. The link between the act and the sanction comes not from nature but from a norm that imputes the one to the other. This let Kelsen argue that law forms a normative realm of its own, demanding a form of analysis separate from both the natural and the social sciences.

His positivism differed from the versions on either side of him. John Austin (1790-1859) had defined law as the command of a sovereign backed by sanctions. H. L. A. Hart (1907-1992) would later locate law in social practices and in a rule of recognition accepted by officials. Kelsen fixed instead on normative validity. Law is no mere expression of political power and no mere social convention. It is a structured order of norms whose authority flows downward through chains of legal authorization. Against the natural-law tradition descending from Thomas Aquinas (c. 1225-1274), he held legal validity and moral correctness apart. An unjust law can hold full legal validity. To fold legality into morality, he argued, abandons the science of law for political advocacy under another name.

His rivalry with Carl Schmitt (1888-1985) became a defining contest of twentieth-century legal and political thought, and it turned on a single question: who guards the constitution? Schmitt argued in Der Hüter der Verfassung (1931) that the guardian must be the President of the Reich, a neutral political power standing above the parties and capable of decision in the emergency. Kelsen answered the same year in his essay “Wer soll der Hüter der Verfassung sein?” He held that the guardian must be a court armed with judicial review, a limb of the legal order rather than a personalized political will, and he pressed the point that constitutional adjudication, even when it annuls a statute, remains a legal act within the system. The dispute reached back to a 1929 exchange and ran through the Prussian crisis of 1932, and Lars Vinx has since collected and translated the full controversy, which lets English readers follow the argument from Kelsen’s 1929 piece on constitutional adjudication through Schmitt’s reply and Kelsen’s review of it. The contest foreshadowed the long struggle between constitutional democracy and authoritarian rule that followed across the continent.

The rise of National Socialism drove Kelsen from Europe. His Jewish ancestry and his liberal constitutional commitments marked him for the nationalist and authoritarian movements gathering force in Germany and Austria. After Adolf Hitler took power in 1933, Kelsen lost his Cologne chair and went into exile. He taught at the Graduate Institute in Geneva, held a post at the German University in Prague between 1936 and 1938, and emigrated to the United States in 1940.

In America he rebuilt a career that opened slowly. He delivered the Oliver Wendell Holmes Lectures at Harvard Law School in 1942, took wartime work in Washington on European questions through the help of figures such as Roscoe Pound (1870-1964), and in 1945 became a full professor in the department of political science at the University of California, Berkeley, where he taught until his retirement and beyond. He served as a visiting professor of international law at the United States Naval War College in the early 1950s. Among his Berkeley students sat Zulfiqar Ali Bhutto, later prime minister of Pakistan. He never recovered the public prominence he had held in Vienna, yet he became a leading authority on international law in the English-speaking world.

International law moved to the center of his mature thought. Kelsen rejected the old doctrine that sovereign states stand beyond legal constraint. He defended legal monism, the claim that domestic law and international law form parts of one legal order rather than two sealed systems. A jurist might in principle construct that order so that either the national or the international level held primacy, but Kelsen leaned toward the primacy of international law, with national constitutions drawing their validity within a wider international frame. Peace Through Law (1944) and The Law of the United Nations (1950) carried the program forward. He pressed for international institutions capable of holding state power to account, defended the legal standing of the Nuremberg and Tokyo tribunals, and held, against the realists of his day, that international law might grow into a working order for the keeping of peace.

For all the reputation he carried as a cold formalist, Kelsen built a substantial democratic theory, set out in On the Essence and Value of Democracy and in later essays including Foundations of Democracy. He grounded democracy in a kind of epistemic humility. No man and no group holds the whole truth, and so political institutions ought to let rival convictions live side side and settle their differences through compromise, tolerance, and majority rule under the protection of minorities. Democratic procedures earn their value through their handling of disagreement rather than through any guarantee of correct outcomes. The relativism he avowed in moral and political questions and the absolutism he sought in the science of law sit together in his work as two faces of the same refusal to let private conviction pass for objective knowledge.

He revised his own foundations to the end. The status of the Grundnorm gave him the most trouble. Early on he treated the basic norm as a transcendental presupposition, a condition for the very possibility of legal cognition. Stanley L. Paulson has periodized Kelsen’s career into a constructivist opening, a strong neo-Kantian phase through the mid-1930s, a weaker neo-Kantian phase to 1960, and a skeptical or empiricist turn after 1960, and the late writings bear out the last shift. In the posthumous Allgemeine Theorie der Normen (General Theory of Norms), published in 1979 through the Hans Kelsen Institute that the Austrian government had founded in Vienna for his ninetieth birthday, he came to treat the basic norm as a useful fiction rather than a necessary presupposition. A jurist who had built a tower of validity on a single assumed stone now described that stone as a fiction the science adopts because it cannot do without one.

The criticisms arrived early and have not stopped. Legal realists, the critical legal studies movement, and many later constitutional theorists deny that law can be cut free of politics and morality, and they argue that legal reasoning carries social values and political commitments at every turn. The purity Kelsen sought, on this reading, hides choices rather than removing them. Even his hardest critics tend to grant the clarity and the reach of his system. Few jurists have shaped the modern understanding of law as far.

Hans Kelsen died in Berkeley, California, on April 19, 1973, at the age of ninety-one, leaving close to four hundred works behind him in more than two dozen languages. The constitutional courts he helped invent now sit at the center of democratic government across much of the world. The debates he opened over judicial review, legal validity, the relation of law to morality, and the place of national law within an international order continue under his terms. Scholars embrace him, revise him, or reject him, and in each case they argue on ground he cleared.

Hans Kelsen and Stephen Turner on the Normative

Stephen Turner (b. 1951) has spent a career arguing that a certain class of explanation in philosophy and social theory rests on a posit that does no work. The posit goes by many names: the normative, the rule, the shared meaning, the collective ought, the presupposition that makes a practice possible. Turner’s claim, set out at length in Explaining the Normative (2010) and worked out earlier in The Social Theory of Practices (1994), holds that these entities explain nothing the habits, dispositions, and expectations of individual men could not explain on their own, and that they survive in the literature because they serve the theorist who needs a domain to defend. Of every thinker Turner takes as a target, Hans Kelsen is the cleanest specimen. Kelsen did not assume the autonomy of the normative as a working convenience. He made it the founding axiom of a science and built the structure as an explicit system, open to inspection.

Turner builds the case in four steps. The first concerns the line between fact and norm. Normativists hold that statements about what ought to be cannot reduce to statements about what is, and they treat the ought as a property of a special kind, not a natural property such as mass or frequency. The second concerns necessity. Normativists defend the ought by transcendental argument: to make sense of practice X, they say, you must presuppose norm Y. Turner answers that the must is conditional. The argument shows only that if you choose to redescribe X in normative terms, then you need Y to complete the redescription. It never shows that Y exists or that the redescription tracks anything in the world. The third concerns the collective. Normativists locate the norm in a community that shares it, and Turner asks how a shared object gets into individual heads, and finds no account of the transmission that does not collapse back into ordinary learning. The fourth concerns the work. Strip the normative vocabulary away and the explaining gets done by what men are disposed to do and to expect, taught by training and corrected by reaction. The norm adds a word, not a cause.

Kelsen built each of these features into the foundation of his jurisprudence and called the result a science. He took the line between Sein and Sollen, is and ought, from Immanuel Kant (1724-1804), and he held it harder than Kant did. Legal validity, for Kelsen, is a normative property. It does not reduce to power, obedience, or belief. A norm holds validity when a higher norm authorizes it. The regulation draws validity from the statute, the statute from the constitution, the constitution from a presupposed basic norm at the top of the hierarchy, the Grundnorm. The basic norm is no statute and no event. It is the presupposition the jurist adopts to treat the whole order as a system of valid norms rather than a record of who compelled whom.

Read through Turner, the Grundnorm is the transcendental argument in its purest dress. Kelsen says the jurist must presuppose the basic norm to understand legal validity at all. Turner’s reply writes itself. The must holds only for a jurist who has already decided to describe coercion as authority and command as valid norm. A historian content to say that officials issue orders and most men comply has no need of the posit and loses no fact by dropping it. Kelsen has not found a foundation under the law. He has stated the price of admission to his own vocabulary and presented the receipt as a discovery about the world.

The hierarchy shows the strain. Each norm needs a higher norm to make it valid, and the question of validity runs upward without end. Kelsen stops the regress by placing a norm at the top that no further norm authorizes and that the jurist presupposes. A regress closed by stipulation is the standard sign, in Turner’s account, of a theory that has mistaken a feature of its own grammar for a feature of its subject. The law does not run out of authorizations and then reach a silent foundation. The theorist runs out of authorizations because he chose to explain validity by authorization, and he plugs the gap with a posit rather than give up the picture that produced it.

Kelsen conceded the point that undoes him, and he conceded it early. The basic norm, he allowed, may be presupposed only for a coercive order that is by and large effective, an order men in fact obey. Here the empirical fact and the normative posit stand side by side, and Turner’s question becomes unavoidable: which one does the work? The efficacy does the work. The habits of obedience, the expectations of officials, the reactions that follow a breach, all of it is present and causal and observable, and the validity sits on top as a second description of the same events. Kelsen built a wall between is and ought, then allowed that the ought may be presupposed only where the is cooperates. The dependence runs one way, from the normative onto the factual it claimed to stand apart from.

The basic norm has no clear owner either. Kelsen does not say the citizen presupposes it, or the legislature, or the court. He says the jurist presupposes it, the scientist of law who wants to render the material as a system. That places the validity of the whole order inside a single scholar’s act of redescription. A property meant to bind everyone turns out to be a stance adopted by the man writing the treatise. Turner’s question about how a shared norm enters individual heads gets an honest answer from Kelsen, though not the answer Kelsen wanted. The norm enters one head, the theorist’s, and stays there.

Kelsen walked himself to the edge of all this and, near the end, looked over. In the Allgemeine Theorie der Normen, the General Theory of Norms published after his death, he stopped calling the basic norm a presupposition and called it a fiction, a fiction in the sense Hans Vaihinger (1852-1933) gave the word in Die Philosophie des Als Ob, a device the science adopts because it cannot proceed without one and that answers to nothing. This is the concession Turner predicts and seldom receives. The normativist, pressed on what his posit refers to, answers at last that it refers to nothing and gets kept for the work it does. A fiction retained for its use is a theory held for reasons other than its truth. Kelsen, more candid than most who build on the autonomy of the normative, said so in print and signed it.

The Turner reading does not say Kelsen described an empty field. Jurists do reason as he says they reason. They treat lower rules as answerable to higher rules, they speak of validity and authorization, they carry on as though a silent norm sat above the constitution. Kelsen mapped that talk with a care no one has matched. His error lies in the next step, where the map of how jurists speak becomes the discovery of a realm they speak about, and the vocabulary of validity hardens into a science of a thing. Take the realm away and the description survives. What remains is an account of how a profession reasons, and of how an order of habit and expectation gets redescribed, by men trained to redescribe it, in the language of the ought. The Grundnorm names the moment the redescription runs out of higher ground. Kelsen spent fifty years calling that moment a foundation and ended by calling it a fiction. On the second word Turner and Kelsen agree.

Hans Kelsen and Stephen Turner on Convenient Beliefs

Stephen Turner reads beliefs the way a sociologist of knowledge reads them, by asking what work they do for the men who hold them. A belief counts as convenient when its grip on a man owes more to what it secures for his position than to the evidence behind it. The analyst sets the truth question aside for a moment and asks a different one: convenient for whom, and why does the belief travel to these men and not to others. Turner takes the lineage from Max Weber (1864-1920), from Weber’s account of the carriers of ideas and the elective affinity between a doctrine and the situation of the stratum that adopts it. An idea finds its carriers where it pays.

Kelsen built the most disinterested theory of law on record. He purged jurisprudence of morality, religion, politics, and national tradition, and he presented the result as a science indifferent to the interests of anyone who might use it. Run the convenient-beliefs question over that science and a pattern surfaces. The beliefs Kelsen held with the most force are the beliefs that pay best for a man in his position.

Consider the position. Kelsen was a German-speaking Jew born in the last decades of a dissolving empire. He converted to Catholicism in 1905 and to Lutheranism afterward, each time for advancement under a regime that closed doors to Jews. He was a liberal in a century turning against liberalism, a cosmopolitan in an age of blood and soil, a jurist by trade, and in the end a man expelled from one national order after another. A doctrine that grounds law in the morality of the majority, the faith of the majority, or the spirit of the Volk leaves a man in that position exposed at every turn. Whoever owns the dominant morality owns the law, and the outsider holds his standing at the owner’s pleasure.

The purity thesis answers that exposure better than any rival doctrine could. Kelsen held that legal validity flows from formal authorization and from nothing else, that a norm is valid because a higher norm permits it, all the way up to a presupposed basic norm that references no god, no nation, and no creed. A law stays valid whether or not it tracks the majority’s morality, because morality never entered the test. For a man who would lose under every identity-grounded theory of law, no doctrine pays better. Kelsen lived the purity thesis as rigor and method. The frame notes that it also worked as shelter. The belief that law owes nothing to the believers who staff it is the convenient belief of the man whom thicker theories would push out.

His own life supplies the template. The double conversion shows a man who treated the profession of belief as adjustable to circumstance, who held the content of a creed apart from the function it served for his career. The theory then performs the same separation at the level of jurisprudence. It cuts the content of law away from the social interests of those who make and study it. A reader need not call this cynical to call it convenient. The separation that organized his life organized his science.

The relativism carries the same signature. In his democratic theory Kelsen grounded tolerance in the claim that no man and no group holds the whole truth, so the state should let rival convictions live side by side and bar any one of them from the seat of coercion. A creed that forbids absolute truth from grounding the state is the convenient creed of the man who would lose a contest over whose absolute truth governs. Carl Schmitt, sure of the friend-enemy decision and the substance of the Volk, has no use for it and discards it. Kelsen, who stands on the wrong side of any Volk, builds the prohibition into metaphysics and calls it humility. The doctrine may be sound. Its appeal tracks the situation of the men it protects.

The guardian question shows the pattern at its sharpest. Schmitt argued that the President of the Reich should guard the constitution. Kelsen argued that a court should. Each man named the institution his own kind controls. The theorist of executive decision wants the executive. The jurist wants the bench. The centralized constitutional court does double work as a convenient belief, since it seats the professional jurist at the center of constitutional life and arms the liberal against capture of the political branches by a majority he fears. The choice of guardian tracks the location of the chooser.

The international primacy thesis closes the set. Kelsen leaned toward the view that national constitutions draw their validity within a wider international order, that the sovereign state is not the last word in law. A man driven across four borders has reason to hold that law outranks the nation that expelled him. The stateless jurist and the doctrine of legal internationalism find each other by elective affinity.

The Kelsenian court moved into the constitutions of post-authoritarian Germany, post-fascist Italy and Spain, and the post-communist states of Central and Eastern Europe, and it moved because it served the men who built those orders. Elites emerging from dictatorship wanted an instrument to bind the majorities of the future, and a counter-majoritarian court armed with the power to annul legislation is the convenient belief of those who distrust the demos. The doctrine traveled along the line of its usefulness.

Kelsen spent a career insisting that the analyst keep social function out of the description of law, that interest and circumstance have no place in a science of norms. The convenient-beliefs frame puts the function back and finds his own commitments the cleanest case it could ask for. The purity thesis is the convenient belief of those who lose under impurity. The man who worked hardest to bar interest from the study of law held a set of beliefs whose fit to his interest his own theory would have to file under everything he wanted excluded.

Hans Kelsen and Pierre Bourdieu on the Juridical Field

Pierre Bourdieu wrote the sociology of the juridical field to dissolve a quarrel between two readings of law. The formalist reading treats law as a closed system that develops by its own logic, sealed from the social world. The instrumentalist reading treats law as a screen for the interests of the dominant class. Bourdieu rejected both and put the field in their place, a structured arena of jurists competing for the power to say what the law is. In “The Force of Law” he named the formalist tradition as the first of the two errors his field analysis supersedes, and the pure theory of law stands as the limiting case of that tradition, formalism carried to its furthest point. Hans Kelsen is the purest specimen the juridical field will ever produce, and the reason is exact. The field rests on a collective misrecognition of its own social grounding, and Kelsen took that misrecognition, which the field needs to keep tacit, and built it into an explicit philosophical system.

A field becomes autonomous through long social labor, and its autonomy stays partial. The juridical field works to present itself as self-grounding, governed by reason and text alone, indifferent to the economic and political forces around it. Bourdieu treats that self-image as a social achievement and a flattering overstatement. Kelsen takes the self-image and makes it ontology. The purity of the pure theory, no morality, no politics, no sociology, no psychology, is the field’s autonomy claim raised to a first principle. Where the ordinary jurist practices the autonomy and half-believes it, Kelsen theorizes it, codifies it, and signs his name to it.

The Grundnorm is the codified form of the field’s refusal to look at what holds it up. The chain of validity runs from regulation to statute to constitution, and then it must stop, and Kelsen stops it with a presupposed basic norm that points to nothing outside the law. The thing the basic norm declines to name, in Bourdieu’s reading, is the state, the monopoly of legitimate force, the social order of obedience that the field depends on and converts into the language of pure validity. Kelsen conceded that the basic norm gets presupposed only for an order men in fact obey. The social ground shows through the formalism for a moment there, and the vocabulary of validity covers it again.

Law’s force, in Bourdieu’s account, is symbolic power, power that works because men take it for legitimate reason rather than for the violence it carries. Kelsen built the field’s finest instrument for that conversion. His theory of the sanction names the coercion at the center of every legal norm, the official directed to apply force, and then recasts it as the cool imputation of a consequence to a condition, an operation of logic drained of its social weight. The pure theory hands symbolic power its cleanest alibi, a way to present the violence of the state as the necessity of a system.

Kelsen’s path reads as the accumulation of the capital the field rewards and the making of a habitus disposed to see formal autonomy as the natural order. He entered a faculty whose gatekeepers shut out Jews, and he converted twice to clear the way, managing the symbolic capital a man needed to rise where birth and confession counted against him. Barred from the capitals of the right blood and the right church, he mastered the most field-specific capital on offer, technique and doctrine, and outbuilt everyone at it. The disposition toward system and purity fits the position of the man who had to earn his entry by the field’s own coin.

The contest with Carl Schmitt over the guardian of the constitution reads as a struggle for the dominant principle of vision in the field, and for the boundary between the juridical field and the political. Schmitt pressed the political principle, the sovereign decision, and named the President as guardian. Kelsen defended the field’s autonomy and its monopoly, and named the court, staffed by jurists, trained in the corps, speaking the field’s own language. Each man championed the field where his own capital ruled. The debate is a boundary war over whether jurists or politicians hold the power to define the constitution’s keeper.

Bourdieu marks the competition inside the field between the theorists, the professors and the doctrine, and the practitioners, the judges who decide. Kelsen occupied both poles and consecrated the first. He was the professor who also drafted the constitution and sat on the court, and he made the professor’s product, the system, the ground on which the practitioner’s authority rests. The pure theory elevates the very position its author held.

The line from Vienna to Cologne to Geneva to Prague to Berkeley is the test of capital under transfer. Kelsen’s juridical capital was bound to a language and a national doctrine, Austrian public law, the German-speaking science of the state, and exile forced its conversion into a more portable form. In America the European symbolic capital converted at a loss, and he never recovered the standing he had held in Vienna. He turned toward international law, a sub-field less tied to any one nation, where his capital traveled with less friction. The thinning of his American profile is the cost of carrying field-specific capital across a border.

The spread of the centralized constitutional court is the juridical field enlarging its jurisdiction. Constitution after constitution, in post-fascist and post-communist states, installed the instrument that hands jurists the power to annul the acts of the political field. Bourdieu would read the diffusion as the field exporting its nomos and universalizing its own principle of vision. Kelsen’s design is the field’s most effective tool for growing at the expense of the political field, the autonomy claim turned into working machinery across the world.

Kelsen denied to the end that law depends on social forces, and that denial is the misrecognition, which means the reading must be imposed against the subject’s flat refusal rather than drawn from his testimony. Bourdieu knew the shape of this problem better than most, since his reflexive sociology demands that the analyst objectify his own position too. A Bourdieusian account of Kelsen has to admit what it is doing. The sociologist who strips the jurist’s autonomy is himself competing for the power to say what the law is, the sociological field reaching into the juridical field to seize its self-description. The quarrel between Kelsen and Bourdieu is the last instance of the thing Bourdieu studied, a struggle between fields over who holds the legitimate principle of vision on the law. Kelsen answered from inside the juridical field and built a science to keep the answer there. Bourdieu answered from outside and built a science to take it away.

Hans Kelsen and David Pinsof on the Misunderstanding Myth

David Pinsof argues that intellectuals share a flattering story about the world. The story holds that the world’s troubles come from bad beliefs, from ignorance, bias, misinformation, and confusion, and that the cure is better understanding. Pinsof calls this the misunderstanding myth, and he names its appeal in “A Big Misunderstanding.” If every trouble traces to a failure of understanding, then the men whose trade is understanding become the most important men alive. They save the world by doing their jobs. Pinsof denies the premise. Men are savvy coalitional animals who understand what they have an incentive to understand, and most of what looks like confusion is strategy. The fights that tear up the world run on status, allies, and the coercive apparatus of the state, and no amount of clarification touches them, because the fighters were never confused.

Few intellectuals fit the myth more closely than Kelsen, because Kelsen built his life’s work out of clarifications. He treated the central conflicts of legal and political thought as confusions a science could dissolve. Natural lawyers confuse law with morality. Sovereigntists confuse the nation with the last word in law. Political theorists confuse the state with a living organism. The man who fails to keep is and ought apart has made a category mistake, and the pure theory exists to correct it. Kelsen is the clarifier in his purest form, the jurist who believed that the disorders of law would yield to a mind that saw the structure clearly.

Run the frame over the founding move and the strain shows at once. Kelsen held that natural law smuggles morality into law under cover of a confusion between fact and norm, and he spent decades trying to teach the distinction. Pinsof’s reply is short. The natural lawyer is not confused. Grounding law in morality is a weapon, and a useful one, since it lets a man call the law invalid when it crosses his side and valid when it serves them. The confusion Kelsen kept trying to clear up is a posture men adopt because it pays. He kept correcting a confusion that was a tactic.

The democratic theory carries the same error. Kelsen grounded tolerance in the claim that no man holds the whole truth, and he expected that political conflict would soften once men understood the limits of their own conviction. Pinsof would say the men fighting over the state are not confused about whether they hold the truth. They want the state. Their certainty is a tool of the fight, and it rises and falls with the stakes rather than with the evidence. Kelsen offered them humility. They wanted the apparatus.

The contest with Carl Schmitt shows the myth at its edge, since Schmitt stood closer to Pinsof’s view than Kelsen ever did. Kelsen treated the guardian of the constitution as a question with a correct answer that clear reasoning settles, and he reasoned his way to the court. Schmitt did not reason his way anywhere he did not already want to go. He wanted the executive to decide because the decision is where sovereign power lives, and his side stood near it. Kelsen offered Schmitt a seminar on the concept of the constitution. Schmitt came close to stating his pursuit in plain terms, in the vocabulary of the exception. The man Kelsen treated as confused understood the game better than the man correcting him.

The frame turns on its author too. Kelsen named the court as guardian, and the court is where the jurist’s power sits, the liberal’s safeguard against a majority he feared. His clarifications served a side as surely as Schmitt’s decisions did. The difference lies in the telling. Schmitt described his pursuit close to the bone. Kelsen dressed the same pursuit as science and seems to have believed the dress. Pinsof’s account of why intellectuals reach for the myth fits here. Cynicism reads as ugly, and a refined man cannot see his life’s work as a coalitional weapon, so he tells himself the nobler story, that he serves clarity and the law serves no one. The stated motive is a pure science. The deeds armed a coalition.

The frame meets one fact it cannot fold in cleanly. The purity thesis cuts against Kelsen’s own side at the place a coalitional animal can least afford to lose. Purity grants full legal validity to an unjust law, which hands validity to the statutes of the men who drove Kelsen out. A jurist playing only for his coalition does not build a theory that certifies his enemy’s law as valid law. Here Kelsen looks less like a primate wrapping interest in science and more like a man holding a conceptual commitment past the point where it served him. The misunderstanding myth says intellectuals never do this. Kelsen, at this one seam, did.

Pinsof ends on a hard line. The world does not want to be saved, and the study of human nature is the study of the hole we are stuck in. Kelsen’s life reads as a long test of that line. He built the most carefully reasoned constitutional order of his century and watched men who understood it well tear it down. He kept believing that better understanding would help. It did not help in Vienna, where the people who ended the republic were not confused about what they were ending. They knew the constitution, and they wanted it gone. Kelsen treated a war of motives as a failure of understanding, and the war did not care what he understood. The deepest clarification of his career is the one his own life supplies, against his intent. The men he spent fifty years trying to set straight were never lost.

The Great Delusion: Liberal Dreams and International Realities

In his 2018 book, The Great Delusion: Liberal Dreams and International Realities, John J. Mearsheimer wrote:

My view is that we are profoundly social beings from the start to the finish of our lives and that individualism is of secondary importance… Liberalism downplays the social nature of human beings to the point of almost ignoring it, instead treating people largely as atomistic actors… Political liberalism… is an ideology that is individualistic at its core and assigns great importance to the concept of inalienable rights. This concern for rights is the basis of its universalism—everyone on the planet has the same inherent set of rights—and this is what motivates liberal states to pursue ambitious foreign policies. The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities—state and interstate. They evoke hope and provoke action.”
[Humans] do not operate as lone wolves but are born into social groups or societies that shape their identities well before they can assert their individualism. Moreover, individuals usually develop strong attachments to their group and are sometimes willing to make great sacrifices for their fellow members. Humans are often said to be tribal at their core. The main reason for our social nature is that the best way for a person to survive is to be embedded in a society and to cooperate with fellow members rather than act alone… Despite its elevated ranking, reason is the least important of the three ways we determine our preferences. It certainly is less important than socialization. The main reason socialization matters so much is that humans have a long childhood in which they are protected and nurtured by their families and the surrounding society, and meanwhile exposed to intense socialization. At the same time, they are only beginning to develop their critical faculties, so they are not equipped to think for themselves. By the time an individual reaches the point where his reasoning skills are well developed, his family and society have already imposed an enormous value infusion on him. Moreover, that individual is born with innate sentiments that also strongly influence how he thinks about the world around him. All of this means that people have limited choice in formulating a moral code, because so much of their thinking about right and wrong comes from inborn attitudes and socialization.

Kelsen is the liberal rationalist. The pure theory treats law as a universal science, valid for any society and indifferent to the nation, the faith, the tradition, or the tribe that happens to live under it. The Grundnorm references no god and no people. The hierarchy of norms runs on logic. The is-ought distinction is a triumph of disciplined cognition. Kelsen asked men to understand their law as a structure of valid norms resting on a rationally presupposed foundation. Mearsheimer’s anthropology says men do nothing of the kind. They hold their law because they were raised inside a community whose attachments and sentiments reached them long before any norm did.

Kelsen built his structure out of reason and set it on the one footing Mearsheimer ranks last. The citizen does not obey the constitution because he has traced the chain of validity to a presupposed basic norm. He obeys because his family and his nation infused him with a sense of the rightful order before he could weigh it, and because the sentiments he was born with incline him toward his own group. The pure theory describes how a jurist reasons about validity. It says nothing about why a man stands when the anthem plays, and on Mearsheimer’s reading that prior, pre-rational attachment is the thing holding the legal order up.

Kelsen left a door open here, and Mearsheimer walks through it. Kelsen conceded that the basic norm gets presupposed only for a coercive order that men in fact obey. He treated the obedience as a precondition and the validity as the science. Mearsheimer reverses the weight. The obedience is the whole event, and it comes from socialization into a national community, and the formal validity is a rationalization a trained jurist lays over a tribal fact. The real basic norm, on this account, is no presupposition the scholar adopts. It is the prior reality of the group, the value-infusion that precedes the citizen and shapes him.

The collision reaches back to Kelsen’s first large book. In Hauptprobleme der Staatsrechtslehre he denied that the state is a real organism standing behind the law and called it the personification of the legal order, a way of speaking about the unity of norms. Mearsheimer’s anthropology puts the concrete social community at the center of everything. The nation is no figure of speech. It is the prior fact, the thing men are born into and die for, and the law runs downstream of it. Kelsen spent his opening move dissolving the very entity Mearsheimer’s account treats as primary. The man who said the state is only law meets the man who says the group is the root of all of it.

The hardest blow lands on the internationalism. Kelsen leaned toward the primacy of international law, held that national constitutions draw their validity within a wider legal order, and built the hope of peace through law in Peace Through Law and The Law of the United Nations. This is the liberal universalism of The Great Delusion in legal dress, the belief that a rational cosmopolitan order can bind nations whose first loyalty runs to the group. Mearsheimer’s verdict is flat. The nation comes first, survival in an anarchic order trumps any norm, and the great powers honor international law when it suits them and drop it when survival is at stake. The dream of binding states by a presupposed legal order is the central delusion, and Kelsen dreamed it with more rigor than anyone.

The century gave Mearsheimer his evidence. The constitution Kelsen designed fell to men whose loyalty ran to a Volk, not to a hierarchy of norms, and the international order he hoped for never held a great power that meant to break it. Carl Schmitt had pressed a version of this against Kelsen in their own time, insisting that the concrete political community and the friend-enemy decision sit beneath all legal form. If Mearsheimer is right, Schmitt won the argument about human nature even as Kelsen won the argument about institutions, since the courts spread while the anthropology held.

Mearsheimer makes an empirical claim about what moves men and nations. Kelsen makes a conceptual claim about the logical form of legal validity. The two can both stand. Kelsen could grant every word of the anthropology, agree that socialization and sentiment drive obedience, and still hold that the science of law describes the structure of norms rather than the causes of compliance. He bracketed sociology on purpose and would call Mearsheimer a sociologist of law working a neighboring field. The pure theory survives in its sealed room. What Mearsheimer takes is not the room’s internal logic. He takes its windows. He shows the room has no view onto the forces that decide whether any legal order lives or dies, and he shows that Kelsen’s hopes for those forces ran the wrong way.

Two facts keep the verdict from going all the way to Mearsheimer. Kelsen’s democratic theory already grants part of the case. His relativism holds that reason cannot adjudicate between rival value-commitments, which concedes that men reach their convictions by routes other than argument, close to what Mearsheimer says about the value-infusion. Kelsen then bet that institutions could contain the conflict reason cannot resolve. Mearsheimer bets the institutions break when the group is roused. The second fact is that Kelsen’s court has lasted. Centralized constitutional review took hold across the postwar liberal democracies and has held power to account in them for decades, which a flat anthropological pessimism has to explain. Mearsheimer can answer that the courts endure only where a settled national community already underwrites them, that the social substrate carries the institution rather than the institution overriding the substrate, and the answer has force. The court rests on the tribe even where it checks the tribe.

So, what then for Kelsen, if Mearsheimer is right. The pure theory keeps its logic and loses its reach. As a description of how jurists reason it stands, sealed and exact. As an account of what holds a legal order together it fails, because the holding gets done by socialization and group sentiment the theory refused to name. And the great hope, the binding of nations by law, reads as the finest version of the delusion the title warns against. Kelsen built the most rigorous monument to legal reason in the modern age and set it on the weakest of the three foundations man stands on. The monument is real. The ground was never what he thought it was.