William Conklin

The Notion of ‘civilisation’ in European and post-Enlightenment writings has recently been reassessed. Critics have especially reread the works of Immanuel Kant by highlighting his racial categories. However, this Paper argues that something is missing in this contemporary literature: namely, the role of the European legal culture in the development of a racial and ethnic hierarchy of societies. The clue to this missing element rests in how ‘civilisation’ has been understood. This Paper examines how one of the leading jurists of the 19th and 20th centuries, George W. Hegel (1770-1831), took for granted a sense of a legal culture that excluded indigenous inhabitants of the Americas as legal persons worthy of legal protection. Such an exclusionary legal culture represented a crucial feature of ‘civilisation’ according to Hegel. This Paper identifies a series of factors which Hegel highlighted as instrumental in constituting a civilised society: Bildung, an ethos, a written legal culture, a self-creative author (the state), territorial knowledge, and a hierarchy of societies. Hegel emphasized the need of jurists to analytically “leap” from a traditional society to a legal culture before the jurist could identify a law. The traditional societies of the Americas, according to Hegel, were considered lawless because they lacked a European sense of a legal culture. Why Hegel characterised traditional communities as lacking a legal culture is then explained. The Paper ends by suggesting that the features of a legal culture that Hegel highlights remain with us today.

This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is said to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity.