Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

• DOI: http://doi.org/10.1111/raju.12267
• Author: Arkadiusz Górnisiewicz
• Date: 01 March 2020
• Published date: 01 March 2020

© 2020 The Author. Ratio Juris © 2020 John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 1 March 2020 (49–65)

Totemism of the Modern State:

On Hans Kelsen’s Attempt to Unmask

Legal and Political Fictions and Contain

Political Theology

ARKADIUSZ GÓRNISIEWICZ

Abstract. This paper argues that the writings of Hans Kelsen deserve more attention from those

engaged in the debate on secularization and political theology. His lifelong struggle with various

forms of legal-political metaphysics is an identifiable thread in many of his writings. Kelsen’s

concern with the theological-political issues found in the theory of the state (Staatslehre) is far

from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of

law and state prevailing in the Staatslehre and contributes to an “uncompromising destruction

of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this

“ideology of legitimacy” derive from both political metaphysics and the deep-seated ancient

ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this

phenomenon “totemism of the modern state.”

1. Introductory Remarks

Hans Kelsen (1881–1973) is widely regarded as one of the most important and influ-

ential legal scholars of the twentieth century. The aim of this paper is, however, not

to add to the massive literature on the meaning and development of his lifetime

achievement known as the pure theory of law. When browsing through his publica-

tions spanning his entire life, one can identify, among other fundamental issues, the

steady presence of his critical engagement with political metaphysics or political the-

ology, sometimes termed by him legal theology (Kelsen 1920, 21).1 My aim in this

paper will be to argue that Kelsen’s works should be given more conspicuous pres-

ence within the current debate on the concept of political theology and seculariza-

tion. Notwithstanding few recent exceptions (cf. Batnitzky 2016; Baume 2009),

Kelsen’s thought has rarely been acknowledged as making an important contribu-

tion to the so-called secularization debate (or, more broadly—political theology). In

the following sections I will attempt to show that Kelsen’s concern with the theolog-

ical-political issues identified in the theory of the state (Staatslehre) is far from mar-

ginal. I will focus here on Kelsen’s critical analysis of the notion of the state and his

attempt to set it free from the metaphysical or theological accessories that—in his

1 In Das Problem der Souveränität und die Theorie des Völkerrechts, Kelsen (1920, 22) uses the phrase

“law theologians” (Rechtstheologen).

Arkadiusz Górnisiewicz50

Ratio Juris, Vol. 33, No. 1© 2020 The Author. Ratio Juris © 2020 John Wiley & Sons Ltd.

opinion—might be used to legitimize the discretionary or arbitrary powers of the

government. By revealing the fictitious character of many constructs of the tradi-

tional Staatslehre and uncovering their metaphysical underpinnings, as well as their

rootedness in primordial modes of thinking, Kelsen advocates the unity of state and

law and aims to undermine an untenable concept of the modern state which consid-

ers the state and the legal order as correlated but at the same time separate entities.

He views political metaphysics (and I use this notion as synonymous with political

theology or legal theology) as an intellectual source underpinning the dualistic struc-

ture of this modern notion of the state. Kelsen claims that there exists a close relation-

ship between this kind of theory of the state and political metaphysics because it

attempts to posit the state as something transcending the legal order. In this way his

criticism of that metaphysical or theological element in Staatslehre contributes to-

wards his own effort to establish a purely legal conception of the state. In this attempt

to provide a broader context for Kelsen’s struggle with various forms of political

theology or metaphysics I will also pay attention to what he perceives as an influen-

tial school interpreting modernity as disguised theology or religion. Some recently

published works from his archive, such as the polemic with Eric Voegelin (Kelsen

2004) or his critique of the secularization thesis developed in Secular Religion (Kelsen

2012) have provided ample evidence for the above-mentioned thesis.

The claim that there is a tension within Kelsen’s intellectual output could be qual-

ified by observing that his writings on topics beyond the pure theory, which belong

to sociology, political science, or political philosophy, have remained consistent with

his basic aim. It is stated prominently both in the first (1934) edition of The Pure Theory

of Law and in the second, enlarged and reworked (1960) edition (Kelsen 2005), where

he says that his theory aims at resolving the traditional dualism of law and state

prevailing in Staatslehre, which amounts to an “uncompromising destruction of one

of the most effective ideologies of legitimacy” (Kelsen 2002, 106). I claim that accord-

ing to Kelsen the contents of this “ideology of legitimacy” derive from both political

metaphysics and the deep-seated ancient ways of thinking on nature and society. In

order to illustrate this thesis, I propose that this phenomenon be called “totemism of

the modern state,” as the notion of the totemic mask is used by the author of the Pure

Theory to metaphorically express that certain ideas and ways of thinking enhance

the arbitrary power of the state. As Kelsen put it in his study “God and State,” “just

as the primitive at certain times, when he dons the mask of the totem animal which is

the idol of his tribe, may commit all the transgressions which are otherwise forbidden

by strict norms, so the civilized man, behind the mask of his God, his nation or his

state, may live out all those instincts which, as a simple group member, he must care-

fully repress within the group” (Kelsen 1973, 66–7). My aim in the following sections

is to reconstruct and comment on the most crucial elements that, according to Kelsen,

represent this “totemism.”

In this paper I am predominantly concerned with the two above-mentioned

sources for the “ideology of legitimacy” of the modern state (metaphorically united

by me under the notion of “totemism of the modern state”), which roughly relate to

political theology (by this term I also refer to the various debates on secularization)

and sociology. One may wonder why secularization does not fall here into the basket

of sociology. It is simply because I employ this term in one of its probably less frequent

uses, namely,in its common use in the various debates concerning political theology

and even the philosophy of history. It goes without saying that secularization is an