HANS KELSEN. The Communist Theory of Law. Pp. viii, 203. New York: Frederick A. Praeger, 1955. $5.00
| Author | John Plamenatz |
| Published date | 01 March 1956 |
| Date | 01 March 1956 |
| DOI | http://doi.org/10.1177/000271625630400164 |
| Subject Matter | Articles |
182
tation
that
is,
if
not
novel,
then
certainly
scarce:
decrees
and
decisions
of
Satellite
courts,
memoranda
of
the
East
German
secret
police
on
such
sensitive
matters
as
the
procurement
of
informers,
and
numer-
ous
refugee
statements.
For
the
researcher,
the
value
of
some
of
the
most
shocking
documentary
materials
is
limited
by
the,
presumably
necessary,
anonymity
of
the
sources.
Throughout,
the
editorial
work
leaves
something
to
be
desired.
Apparently
the
German
version
was
the
original
and
the
English
edition
is
a
translation
prepared
by
German
hands,
or
at
least
not
by
anyone
for
whom
English
is
the
primary
language.
Sentence
struc-
ture
and
word
choice
combine
to
give
the
text
an
aura
of
heaviness
and
abstruseness.
Proofreading
failed
to
prevent
such
obvious
slips
as
omissions
of
closing
parentheses
or
the
use
of
a
person’s
given
name
in
a
docu-
ment
that
otherwise
takes
pains
to
conceal
his
identity.
These
mechanical
defects
may
deter
readers.
Students
of
Soviet
law
will
pre-
fer
to
draw
on
such
writers
as
Harard
and
Berman.
But
as
an
indictment
of
the
lawlessness
of
Communist
law
this
volume
is
tellingly
effective.
FRANCIS
H.
HELLER
University
of
Kansas
HANS
KELSEN.
The
Communist
Theory
of
Law.
Pp.
viii,
203.
New
York:
Fred-
erick
A.
Praeger,
1955.
$5.00.
I
am
tempted
to
say
that
the
subject
of
this
book
is
not
worthy
of
the
writer,
for
Communist
theories
of
law
are
too
crude,
too
confused,
too
contradictory
to
give
much
scope
to
the
critical
powers
of
a
man
like
Professor
Kelsen.
He
possesses
all
the
qualities
that
the
legal
theorists
(if
I
may
so
call
them)
criticized
by
him
conspicu-
ously
lack:
he
is
scrupulous,
acute,
dispas-
sionate,
and
relevant.
He
cares
deeply
for
what
matters
least
to
them,
which
is
the
study
of
law
for
its
own
sake.
More
even
than
most
&dquo;bourgeois&dquo;
writers
on
law,
he
lives
in
quite
another
world
from
theirs.
Whatever
else
may be
said
about
him,
no
one
will
pretend
that
his
kind
of
jurispru-
dence
has
a
political
or
social
bias
or
is
intended
to
serve
a
practical
end.
Soviet
theories
of
law
are,
in
this
book,
revealed
in
all
their
blatant
poverty-
carefully,
patiently,
lucidly,
without
malice
and
without
irony.
It
is
an
operation
done
by
an
expert,
who
uses
his
sharp
instru-
ments,
not
to
wound,
but
to
dissect.
There
is,
indeed,
about
the
book,
a .
certain
hos-
pital
atmosphere,
bare
and
antiseptic,
ex-
cept
that
the
author
no
more
seeks
to
cure
than
to
kill.
For
he
knows
that
the
theo-
ries
he
pulls
apart
so
deftly
are
also,
in
a
sense,
out
of
his
reach,
being
products
of
policy
and
of
faith,
ideology
and
not
science.
The
best
chapter
is
perhaps
the
first.
It
would
be
difficult
to
explain
more
succinctly
and
clearly
the
confusions
that
make
up
the
notion
of
&dquo;ideology&dquo;
as
we
find
it
in
the
writings
of
Marx
and
Engels.
Marx
at
least,
if
not
Engels,
was
much
less
simple-
minded
than
most
of
his
Russian
disciples,
and
the
criticism
of
his
ideas
and
argu-
ments,
though
more
difficult,
is
also
more
rewarding.
But
I
am
inclined
to
believe
that
Professor
Kelsen
oversimplifies
the
Marxian
doctrine
by
assuming
that
Marx,
when
he
treats
law
as
part
of the
&dquo;super-
structure,&dquo;
nearly
always
treats
it
as
if
it
were
ideological
in
a
sense
in
which
it
clearly
cannot
be,
as
if
it
were
a
way
of
looking
at
social
reality
which
distorts
its
true
nature.
But
Marx,
though
he
some-
times
speaks
as
if
everything
belonging
to
the
&dquo;superstructure&dquo;
were
ideological
in
this
sense,
much
more
often
implies
the
contrary;
much
more
often
speaks
as
if
the
&dquo;superstructure,&dquo;
though
determined
by
the
&dquo;substructure,&dquo;
were
only
in
part
ideologi-
cal.
It
does
not
therefore
follow
that
Marx,
whenever
he
(as
he
often
does)
clearly
implies
that
law
is
not
ideological,
is
referring
it
to
the
&dquo;substructure.&dquo;
Unavoidably,
the
later
chapters
are
some-
what
repetitious,
for
the
stock
of
ideas
of
Soviet
jurists
is
not
great,
and
they
are
seldom
original
even
in
their
mistakes
and
absurdities.
Time
and
again,
Professor
Kelsen
has
to
make
the
same
points
against
them.
It
may
be,
however,
that
he
insists,
if
not
too
much,
then
sometimes
in
a
way
apt
to
mislead,
on
the
need
to
distinguish
sharply
between
legal
norms
and
social
re-
lations.
No
doubt,
they
are
not
the
same
and
ought
not
to
be
confused,
but
the
con-
nection
between
them,
even
in
thought,
is
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