Law contra sociology: The critique of the social sciences, especially Durkheimian sociology, by Kelsen and Schmitt

Abstract

This article explores the reception of Emile Durkheim in Germany at the beginning of the twentieth century. In recent years, the classical assumption according to which sociology is neatly organised in distinct national traditions has been challenged. This article further contributes to this challenge by analysing the case of two prominent German-speaking legal scholars, Hans Kelsen and Carl Schmitt. Despite major differences in their political and scientific outlook, both argued against the encroachments of the social sciences into the field of legal studies. This article shows how Kelsen mounted a polemic against Durkheim, on the basis of a first-hand knowledge of his writings. Kelsen believed that Durkheim committed several errors. In particular, he interpreted Durkheim’s famous sentence according to which ‘social facts must be treated as things’ as a clear sign of a materialistic, deterministic and positivistic attitude which neglects the power of ideas and norms. Schmitt targeted sociology by way of a criticism not of Durkheim but of Léon Duguit, who had been inspired by Durkheim and pleaded for a collaboration between legal scholars and social scientists. According to Schmitt, a sociological approach to law amounts to a dangerous denial of the centrality of the state in politics.

Frenchman, Jew, Positivist

“…for France : Berthelot 1995;Borlandi and Muchielli 1995;Cuin 1997; for the UK: Platt 1995; and for Russia: Gofman 1996Gofman , 1997. Regarding his reception in Germany, we find detailed studies on Durkheim's reception by individual scholars, as, for the early period, Nicola Marcucci (2017) on Ferdinand Tönnies;Gregor Fitzi (2017) on Georg Simmel; Jean Terrier (2017), explicitly building on my work, on two key representatives of law, Hans Kelsen and Carl Schmitt. For the later phase, Julia Christ (2017) has worked on Durkheim's reception by Theodor Adorn; Éva Debray (2017) has written on Niklas Luhmann;and Fitzi and colleagues (2017) have inter viewed Hans Joas on Durkheim's influence on his work.…”

“…The same holds, by the way, for Durkheim himself and his circle, including Marcel Mauss and Célestin Bouglé, who had spent time in Germany and read German literature. However, Durkheim downplayed the German influence in his work when he was faced with nationalistic and anti-Semitic accusations of being insufficiently "French" (Lukes 1981;Terrier 2017). This demonstrates the 'inescapably collective character of interpretation and the way in which any individual reading is located in the reader's membership of a community sharing some foundational assumptions and interpretive strategies'.…”