Gustavo Silveira Siqueira is Professor of Legal History and Methodology of Research in Law at the Universidade do Estado do Rio de Janeiro and at Universidade Estácio de Sá. He received his PhD in legal history from Universidade Federal de Minas Gerais in 2011 and was a postdoctoral fellow at Max-Planck-Institut für Europäische Rechtsgeschichte in 2017 and a visiting scholar at Harvard University in 2019 and 2020. His research interests include Strikes, Constitutional History, Social Movements and the relations between Law and Dictatorships. He wishes to dedicate this article to the generosity and kindness of Tamar Herzog, Christoph Rosenmüller, Carlos Petit, Mayara Carvalho and Daniel Coquillette. He also wishes to thank Mindy Kent, librarian at Harvard Law School, who kindly helped locate the necessary letters. He also wishes to thank Ana Mattos, Brad Wright and Paul Walsh for reviewing the English language.Roscoe Pound (1870-1964) was a professor and dean of Harvard Law School from 1916 to 1936. Pound taught jurisprudence and met Hans Kelsen at a 1936 congress celebrating the 300th anniversary of Harvard University. Kelsen, a Jewish jurist born in Austria (1881-1973), was considered by many to be the greatest theorist of law in the twentieth century. He authored the 1920 Austrian Constitution and served as a Supreme Court justice. However, due to his religious affiliation, Nazis persecuted him in his homeland and forced him to flee to the United States in 1940. This article is based on correspondence between Kelsen and Pound found in the latter’s personal papers at Harvard University. The objective of this study is to describe the relationship between two law professors in a troubled period in history. It highlights the situation of American universities in the face of crisis and the arrival of refugees, while also demonstrating the friendship and respect both scholars nurtured for each other.
Kelsen’s experience as a refugee did not differ substantially from the experiences of other professionals who fled the war in Europe and migrated to the United States. The present article shows the difficulties Kelsen suffered—it took him almost seven years to secure a permanent position in the United States—and the generosity of a network of American academics who tried to help him and several other refugees arriving in the country. Among members of that network, as far as Hans Kelsen was concerned, Roscoe Pound was the main protagonist.
1936-1938: First Contacts
On May 27, 1936, the New York Times announced that Harvard honored sixty-eight scholars from around the world in celebration of its 300th anniversary. One of the honorees, Hans Kelsen, was described as:
Professor of International Law at the Institute Universitaire des Hautes Études Internationales, Geneva, is a leader in the most active and widely adhered to movement in jurisprudence in Europe today, and has so influenced contemporary juristic thought that most of what has appeared in Continental literature on jurisprudence in the past two decades has been written in support of or in criticism of his teachings.[1]
The Harvard Tercentenary Conference formed part of the University’s corporate expression of gratitude to all who built and enriched its life.[2]
In the book that drew attention to the conference, published in 1937, Hans Kelsen contributed an article on “Centralization and Decentralization,” which was translated from German by Herbert Kraus, Instructor in Government at Harvard. The article was the lecture Kelsen gave, and he justified the choice by writing,
From among the subjects proposed for scientific discussion on the occasion of the Tercentenary of Harvard University, I have chosen the subject of centralization and decentralization. I have done this not only because it concerns a central problem of society; it also offers me an opportunity to show the application to a concrete problem of the Pure Theory of Law, which I and my scientific friends have represented for a quarter of century.[3]
Olenchowski reminds us that Kelsen’s “professional and personal situation at this time was very difficult. Dismissed from the University of Cologne by the Nazi Regime in 1933, the 55-year-old scholar could find only temporary shelter at the Institute Universitaire des Hautes Études Internationales in Geneva.”[4]
Upon returning to Switzerland, Kelsen wrote to Roscoe Pound on October 12, 1936, thanking him for his reception in the U.S. The letter confirms the first personal meeting between the two and indicates they had already exchanged letters before meeting.[5]
In 1935, according to the Official Register of Harvard University, Pound taught courses entitled “Jurisprudence: Theory of Law and Legislation,” “The Province of the Written and Unwritten Law,” and “Problems of Law Reform in America,” in the third year of the Law School. In the Graduate Program he taught “Jurisprudence: The principal schools of jurists and theories of the legal order, the nature of law and the judicial process; the problems of the science of the law today and their application to American Law; comparative analysis of developed systems of law”[6].
A Harvard Law School professor since 1910, Roscoe Pound completed twenty years as dean of one of the most important law schools in the United States in 1936; a prestigious position related in part to his academic and professional production. Pound had great influence on American universities and stood out as a scholar throughout the country.
The personal encounter with Kelsen undoubtedly proved very significant for Pound. On December 7, 1936, Pound wrote to Robert Schuyler of Columbia University recommending the publication of Kelsen`s article, “Aristotle’s Politics and the Hellenic-Macedonian Policy.”[7] Pound also sent a letter to V. Smith at the University of Chicago the same day, encouraging Smith to publish Kelsen’s “Platonic Justice,”[8] and to Moses Aroson at the College of the City of New York urging the same for Kelsen’s article, “The Soul and the Law.”[9] In the letter to Aroson, Pound reported Kelsen had lost his job for “racial reasons” and commented, “I am afraid the National Socialists are causing trouble for him in Prague, and as one would hardly have expected there were anti-Semitic demonstrations against him in Geneva.” Pound knew of the problems Kelsen faced with National Socialism and antisemitism and obviously feared for his colleague’s safety.
On December 8, Pound wrote to Frederic Ogg of the University of Wisconsin, recommending the publication of Kelsen’s article, “Juridical Theory of Centralization and Decentralization.”[10] In the documentation available at Harvard’s archives, a handwritten note by Kelsen, probably addressed to Pound, indicates he wanted to publish the articles above in American journals or law reviews. The note is not dated but shows Kelsen sent it from the Porter Square neighborhood in Cambridge, Massachusetts. In early 1937, Pound published the article “Fifty years of Jurisprudence” in the Harvard Law Review, in which he debates the work of some major legal scholars and traces the history of legal thinking. Hans Kelsen is one of the main authors Pound examined in the text.[11]
1938: War in its Crudest Form
Almost two years after his first trip to the United States, Kelsen wrote Pound on October 11, 1938, still in Geneva but living at a different address, explaining his situation:
The development of political events in this unhappy Europe has now – for the third time – resulted in much suffering for me. After having left the University of Vienna owing to a conflict between the already fascist Government and the Supreme Constitutional Court, whose permanent adviser I was, I accepted a call to the University of Cologne. This position I was obliged to resign when the National-Socialist government came into power.
After several years’ activity at the Graduate Institute of International Studies in Geneva, I received a call to German University of Prague. Now I have been compelled to resigns this position also, as this university in consequence of the cession of the German territory will be either closed down or placed under the control of the National-Socialist party. It will most probably be closed down. (…)
I am, therefore, compelled to seek another position, and it is above all in the United States that I would wish to find it. The great kindness, which you dear Colleague have hitherto shown me encourages me to apply to you with the request that you will support me in my endeavor. I know how very difficult it is under the present circumstance to find a place in a university or scientific institute. But if I may count on your help I feel confident, considering the great influence you enjoy as leading authority in the domain of the theory of law in America that my efforts would not be without success.(…)
As I know how very busy you are it is not easy for me to ask so much from you. But, perhaps, understanding and sympathizing with the difficulty of my position you will excuse this step.[12]
Hans Kelsen watched the advance of Nazism across Europe. Germany annexed Austria (Anschluss) and part of the Czechoslovak Republic in March 1938.
Pound answered Kelsen’s correspondence on October 25, 1938:
Before receiving your letter of October 11, Mr. Freeman had spoken to me about your situation, and I had taken the liberty of speaking to President Conant[13] about the desirability of finding a place for you here if at all possible. There are two professorships vacant here for either of which you would be exceptionally qualified. One is the Fairchild Professorship of Comparative Public Law, formerly held by the late Professor Redlich.[14] The other is the Carter Professorship of General Jurisprudence which I vacated on being appointed to the University Professorship. (…)
I have spoken to two of the members of the committee on appointments about you in this connection, and have had some talk with Professor Frankfurter[15] about it also. I am in hopes that something can be done for you here and shall certainly exert myself as vigorously as I know how to that end. If I am disappointed in what I have undertaken here, I shall get into communication with some other first-class American law schools and see what I can do for you there.[16]
A few days later, presumably while the letter dated October 25, 1938 still crossed the ocean, Pound wrote another letter to Kelsen on November 1, warning that President Conant could not find a position for Kelsen. Pound explained,
Unhappily the financial situation is not very good in any American University at this time on account of the long continued and widespread economic depression. But I am writing to a number of other institutions today on your behalf and earnestly hope that I shall be able to turn up something worthwhile.[17]
Kelsen hoped to find a post in the United States and was saddened by not getting work at the university he felt “closely connected” to. He replied to Pound on November 16, 1938.
I thank you very much for your kind letters and especially for the friendly efforts you are making for me. I am very sorry to hear that there is no possibility for me to have any activity at the Harvard University with which I feel myself closely connected. However, I quite understand the difficulties existing at present.
In any case I should like to express to you my feelings of gratitude whatever may be the result of your inquiries. Moreover, I am convinced that if there were any possibility for me in the United States of America, it would be owing to your decisive influence.[18]
Pound had indeed initiated efforts to assist Kelsen in finding an appointment in the United States. On November 30, Pound reported he was exchanging correspondence with Henry Moore Bates[19] of the University of Michigan Law School and Charles Clark[20] at Yale Law School. Pound made his admiration for Kelsen’s work clear. “I would like, if possible to have you in this part of the world where your ideas and teaching could do so much for the science of law.”[21] In the same month, Pound had written to William Gresser:[22]
Only the other day Hans Kelsen, who is probably the greatest figure in the science of the law in the world today, appealed to me, as he had been compelled to leave Prague and go to Switzerland in view of recent events in that part of the world. It seemed to me it ought to be possible at once to find a place for a man of that importance, but unhappily I have not been able to achieve anything.[23]
A close reading of the various letters written and received by Pound shows the existence of a network of law professors, in which Pound was a central actor who tried to articulate, with great difficulty, the possibility of receiving several renowned and important foreign researchers who sought refuge in the United States. American universities struggled to answer such demands in the context of the post-1929 economic crisis and war in Europe. Even so, Pound coordinated a network that tried to ensure the placement of these scholars.
On January 11, 1939, Pound informed Kelsen he was attempting to find a position for the latter at the University of Illinois, in one of the “great and rich states of the country [which] supports its state university liberally.”[24] The day before, Pound explained who Hans Kelsen was to John Fairlie[25] of the University of Illinois.
I cannot speak too highly of Professor Hans Kelsen. I have been anxious to find a good place for him in this country for some time (…) I know Kelsen personally. He is one of a very few outstanding men in the science of law in the world. I should think his work in international law and its politics, especially in connection with the theory of sovereignty would qualify him excellently for the position held by the late Professor Gerner.[26] He speaks and writes English well and succeeds remarkably with students. Indeed his students are so devoted to him that Kelsenism became almost a religious cult in Central Europe.[27]
Fairlie informed Pound on January 12 that Kelsen’s eventual hiring depended on the College of Law, and that he was contacting Dean Harno personally.[28]
On January 24, 1939, Fairlie gave Pound some important news. The University of Illinois offered Hans Kelsen a visiting professor position for one year. A permanent position was not possible at that time, but at least Kelsen had a first job opportunity in the United States.[29] Three days later, Pound responded to Fairlie’s letter. His reply also shows what the university scene was like in those years.
I am writing to Kelsen as you suggest. I feel pretty strongly that if a good temporary position is offered him for a year he can be perfectly sure of a first-class position before the year is up. But of course there is a certain risk. The country has been flooded with refugee scholars and it is increasingly hard to find places for them. I have a letter from the Dean of one of the great law schools of the country telling me that his Trustees have announced as a fixed policy that they will not appoint refugees to any place for which an American is eligible. I am afraid we shall see a good deal of this in the near future.[30]
Fairlie articulated similar views in an answer dated January 30, 1939.
I recognize the difficulties you suggest. There is a strong and growing opposition in this part of the country to the appointment of anyone who is not already an American citizen. There is also some question in my own mind as to how Professor Kelsen or any other continental European will “take” with our students in this part of the country. I trust, however, that if he comes here these difficulties can be overcome.[31]
On February 19, 1939, Kelsen wrote Pound to accept the invitation and express his appreciation. Kelsen also informed his colleague that he was in contact with Professor Merriam[32] at the University of Chicago. Kelsen ended the 1938-1939 academic year as a Professor at the Geneva Graduate Institute.
I am perfectly conscious that I owe the welcome invitation to the University of Illinois to you only, my dear and valued Colleague, and I desire to assure you that I shall always remain very much obliged to you for your friendly help.
I fully appreciate the great difficulties a European professor may have to meet in an American University. But the consciousness of your support encourages me to make this effort. [33]
On March 15, 1939, Germany occupied Czechoslovakia. Hitler had been in power since 1933 and the neutral Switzerland, where Kelsen lived, appeared to be Germany’s next target. The 1935 Nuremberg Laws banned marriage between Jews and Aryans and stripped the nationality of German Jews. In November 1938, Jews were expelled from German schools.
Pound’s 1939-1940 jurisprudence course at Harvard Law School featured a significant change from previous years. “Lectures in this course are the same as in the third-year course in Jurisprudence,” he noted. “The seminar will consider selected writings and theories of the 17th and 18th century jurists; of Betham, Austin, Savigny, Maine and Jhering in relation to 19th century juristic thought; and of Stammler, Kohler, Ehrlich, Duguit, Gény, Hauriou, Radbruch and Kelsen in relation to contemporary thought.”[34] In Pound’s classes, Kelsen’s thought and scholarship became, along with other authors, part of the Harvard Law School curriculum.
However, Kelsen wrote to Pound on June 27 to inform him the University of Illinois canceled job offer. The university blamed the invitation’s retraction on financial issues.[35] Kelsen then sent a letter to Pound in August 1939 saying he would soon travel to Cambridge to present at the Fifth International Congress for the Unity of Science at Harvard. Kelsen also told his trusted colleague that he intended to stay in the country until the end of October.[36] In September 1939, while Germany invaded Poland, Kelsen was in the United States again for the conference.
On October 28, 1939, Germany established the first ghetto for Jews in Piotrkow. The Nazis forced Jews to wear a yellow and red band on their arms beginning in November 1939. Germany then occupied parts of Norway and Denmark in April 1940, and invaded the Netherlands, Belgium, Luxembourg, and France in May of that year. On May 20, 1940, the Germans opened Auschwitz concentration and extermination camp.
1940-1945: Difficulties of the Early Years in the USA
Hans and Margarete Kelsen left Geneve on May 28, 1940.[37] They arrived in New York on June 21 and two days later Kelsen announced his sudden arrival to Pound.[38]
I beg to inform you that the political events in Europe urged me to leave Geneva and that I just arrived in New York.
I should like to take advantage of this opportunity to come to Cambridge and see you. I would be very obliged to you if you could let me know when it would best suit to you to meet me.
If possible I intend to stay some weeks in Cambridge and to work in the library of the Law School.
Hoping you and Mrs. Pound are in perfect health.[39]
On June 2nd, Kelsen and Pound met in Cambridge.[40] In an August 21, 1940 letter to M.J.R. Xirau,[41] Pound explained the circumstances of several scholars trying to find refuge and academic posts in the United States. He explained the dismal financial situation of American universities at the time.
Unhappily a very large number of refugees from European institutions of learning have come to this country and it has become almost impossible to find any sort of position for anyone. Already I am trying to find something for me of such eminence as Hans Kelsen, Georges Gourvitch, Elemer Balogh, and H.D. Hazeline. When men of their attainments are seeking places and I am finding the utmost difficulty in securing anything for them you will understand that to find something for you will not be an easy task. Unhappily, the economic situation in our institutions of learning has become far from good.[42]
Pound received several requests for help from refugees. Though he was no longer dean of Harvard Law School, he clearly still exercised influence among professors in the United States and abroad.
In March 1941, Kelsen taught the “Law and Peace in International Relations” course at Harvard Law School as part of Oliver Wendell Holmes Lectures.[43] He became the first to give the lectures instituted with the legacy left for Harvard Law School by the will of Oliver Wendell Holmes. Pound was more than likely the one who created that opportunity for Kelsen.
The creation of the Oliver Wendell Holmes Lectures had been announced on October 9, 1940, and was reported in The New York Times.
Establishment of an Oliver Wendell Holmes lectureship, provided through a bequest by the late Supreme Court Justice, was announced today at Harvard Law School. Dr. Hans Kelsen, author of the original draft of the Constitution of the Austrian Republic after World War and Professor of International Law at the Institute of International Studies, Geneva, was appointed as first holder of the position.[44]
On December 7, 1941, the Japanese navy attacked the American base at Pearl Harbor, prompting the United States’ entry into World War II. Obviously, the war worsened the situation for American universities and made it even more difficult for Kelsen to find a position in his new country.
In January 1942, Pound wrote to Jerome Greene[45] and tried, for the second time, to secure a Milton Foundation[46] grant for Kelsen.
If it is proper I want most earnestly to second the application of Dr. Hans Kelsen for a grant from the Milton Fund. Dr. Kelsen is one of the outstanding figures in the science of law in the world. While at the University of Vienna he made a great reputation as teacher, thinker, and writer. Indeed for the past twenty years his writings have been translated and commented upon all over the world, and he is the leader of a very influential school of jurists with a large following everywhere. He was one of those to whom the University gave the honorary degree of LL.D. at Tercentenary.
No one could be more competent to carry out the project which he submits. Moreover, the project itself, investigation of the sociology of the idea of justice, is one of the first importance. Ideas of Justice, of the end or purpose of the legal order, are controlling in the choice of starting points for legal reasoning, in interpretation, and in the application of legal standards. In period of transition such as the present it is of the first importance to have the idea of justice looked into from new standpoints. In nineteenth-century America we had a very clear idea with which everyone is now dissatisfied, and yet nothing has been worked out to take its place. There is nothing from which the administration of justice suffers so much as the lack a thorough understanding of its purpose in view of the conditions of the time. I doubt whether any project in connection with law or politics could be submitted of equal importance with this and I am sure no one could carry it out better than Dr. Kelsen.[47]
Pound also wrote to the University of California the next day, seeking a position for Kelsen.
Understanding that the appointment of a Professor of International Law, who is to be prepared also to teach Constitution Law and the History of Legal Institutions, is under contemplation at the University of California some time in the future, may I be permitted to recommend to you as highly as I know how Dr. Hans Kelsen, formerly Professor at Vienna and now Research Associate in Comparative Law at Harvard Law School. Dr. Kelsen was Professor of Constitutional Law and Jurisprudence at the University of Vienna, and afterward at the University of Cologne, and later at Geneva was Professor of International Law. He was the draftsman of the Austrian Constitution after the first world war, and has written books on public law, on jurisprudence and on international law. (…)
I might add that he was the first Holmes Lecturer at Harvard Law School under the lectureship established by the will of Mr. Justice Holmes.
Dr. Kelsen is outstanding among the refugees who have come to this country from Continental Europe, and is in every way worthy of a position in one of our best institutions of learning. Personally he is an agreeable gentleman who would be acceptable in any academic community.
I might add that I am advised The Rockefeller Foundation will pay a greater part of the salary if Dr. Kelsen is appointed to a position in some American university.[48]
Alongside Pound’s attempts to secure temporary positions for Kelsen at Cambridge, he continued to seek a permanent teaching position for the Austrian at the same time.
On January 15, 1942, Eric Bellquist,[49] from the Department of Political Science at the University of California, wrote to Pound betting on the possibility of Kelsen teaching International Law and Jurisprudence the following year.[50]
In the summer of 1942 Kelsen taught as a Visiting Professor at Wellesley College[51] in Massachusetts and moved to California the same year.[52] On December 3, 1942, The Daily Californian announced Kelsen’s arrival as a visiting professor at the University of California with following headline, “Noted International Jurist Flees Europe, Joins University Staff.” The report featured excerpts from an interview with Kelsen.
Of all the honors I have received in my life, the greatest is to be among the first professors blacklisted and dismissed by Hitler in 1933 (…) This is the best proof that I am really for democracy and peace.[53]
Kelsen lived in California during 1943, and Pound wrote to him discussing academic articles and describing the situation at Harvard Law School during the war.
Things are something disorganized here. All of Austin Hall and the greater part of Langdell Hall are in possession of the Navy, and we find ourselves with a diminished corps of teachers and a small body of students, but nevertheless much pressed with work. Between a full teaching schedule and a great deal of pressure of demands from outside, I was never busier.[54]
Despite being consistently featured in the university’s events and lectures,[55] Kelsen responded to Pound in a poignant April 1943 letter saying his position at the University of California was not secure and that he needed help securing a new job. At the age of sixty-two, with years of experience under his belt, Kelsen started looking for a modestly compensated position and quite liked the idea of working in a library.
The great kindness you have shown me during my activity at Harvard University gives me the courage to bother you again with private affairs. My appointment at the University of California will be at an end the next moth and there is – as far as I can see – no chance of my getting an appointment for a second year. The number of students is decreasing and the budget of the University has been radically cut. Consequently I am forced, once again, to look for another position. You will certainly understand that my first thought is to ask you for your help. Since teaching positions in my field are, during the war, very difficult to get, I should be glad to have an opportunity to work as research associate or in a library. If a University or other scientific institution should make on my behalf an application to the Rockefeller or another Foundation, it would be not too difficult to get the necessary funds for a modest salary. Another possibility is perhaps to get a position in the administration at Washington, as an expert in international or European constitutional and administrative law. During the first World War I was legal adviser to the Austro-Hungarian Minister of War, and later legal adviser to the Government of the Austrian Republic. In this capacity I drafted the democratic Austrian Constitution of 1920. For many years I was a member of the Supreme Constitutional Court of Austria; as professor of public law at the Universities of Vienna, Cologne and Prague I had the opportunity of familiarizing myself with the political conditions in the respective countries. I think I can be of some use in any department which is dealing with Europe affairs. But unfortunately I know no influential personality in Washington to whom I could address myself.
I am very sorry that I am compelled to inconvenience you. But my situation is rather difficult, and you are the only personality I know who has not only a great influence but also human understanding for solidarity among scholars.[56]
The letter demonstrated Kelsen´s admiration for and friendship with Pound. The latter responded a few days later and described other circumstances at Harvard Law School.
The situation is much the same everywhere. We are operating with a very small school in which nine of us are doing the work normally done by about thirty. Although classes are very small the amount of teaching cannot be correspondingly reduced and I, myself, have been teaching ten hours a week and shall have to continue teaching with hardly any intermission during the summer.
I will exert myself to try to find something for you, and am not without hope that something can be arranged here which I think is the place where you ought to be. At any rate, I will do the best that I can for you.[57]
At the height of the war, Harvard Law School provided space and students for the war effort. Pound made clear he would like to have Kelsen on staff at Harvard, but times were tough. Kelsen and Pound continued to exchange letters, until Kelsen reported in September 1943:
It is true that my appointment at the University of California has been extended for another year. But this was possible only because a School of Military Government has been established at the University and there was a need of courses on Intellectual History of Germany, Political Organization of Germany, and National Socialism, with which I was charged. But now the program of the School was been changed: lectures on Germany have been dropped, and thus the main reason for my reappointment no more exists. Consequently I must look for another position in time.[58]
Pound wrote to Archibald MacLeish[59] of the Library of Congress[60] during the same month, requesting a position for Kelsen.[61] On September 20, MacLeish replied,
Unfortunately so far as the Library is concerned, the fact that Dr. Kelsen is an alien rules him out, since we have only ten alien vacancies and all are filled. I know, of course, something of his work, and I am pleased that you should have thought of us in considering his problem.[62]
Kelsen’s situation in the United States and California had not been easily stabilized. Pound continued his efforts to aid Kelsen, a task that had been ongoing for years. On August 14 and 28, 1944, Pound advised Kelsen he was seeking a position at the Henry E. Huntington Library in California for his refugee colleague.[63] After meeting the president of the library, Pound informed Kelsen he did not yet have an answer. But he also alerted his friend about his contacts with other institutions:
I then spoke to Dean Arthur T. Vanderbilt[64] of the Law School of New York University. He was very much impressed by what I was able to tell him, and said he would speak to the President of the University and see whether a position could not be found for you in that institution. I am hopeful something will come of this.[65]
Kelsen landed a temporary job in Washington in November 1944, where he worked as a consultant at the Foreign Economic Administration.[66] He confided to Pound,
May I thank you very warmly for your kind letter of October 31. I am deeply touched by your friendly interest in my problems. I should be very glad if it were possible to get a relatively permanent position in one of the institutions you mentioned in your letter.
I am now in Washington working as a consultant for the Foreign Economic Administration. My activity there is very interesting but unfortunately leaves me no time at all for my own scientific work.
Under separate cover I am sending you a copy of my “Peace Through Law” which recently has been published by the University of North Carolina Press.[67] Please accept it as a token of my sincere gratitude for your kindness and my admiration for your outstanding work.[68]
Back in California, Kelsen wrote to Pound on March 28,1945, informing him of the invitation to be Visiting Professor in New York:
I have just received a letter from Dean Vanderbilt of New York Law School inviting me to become Visiting Professor of Law for the year 1945-1946. He writes me that I owe this invitation to your kind suggestion. May I thank you very warmly for this act of friendship.
I should be very glad to teach again at a Law School. Although I am enjoying my work at the Political Science Department of the University of California, I have always the feeling that my approach to the problems of Jurisprudence and International Law is more suitable to the requirements of the study of law than to that of Political Science.[69]
Kelsen confessed his desire to return to law school, but he was never able to achieve it.
Germany surrendered in 1945. Only after their defeat did Kelsen obtain his permanent post in the Department of Political Science of the University of California in June 1945.
Conclusions
From their first meeting at Harvard in 1936 until 1945, Roscoe Pound and Hans Kelsen remained in constant contact and developed a deep connection. The jurists’ admiration for one another surpassed the realm of scholarship and culminated in a great friendship. The letters they exchanged demonstrate the significant difficulties suffered during the war by one of the greatest jurists of the era. It took Kelsen almost a decade to secure a fixed position at an American university, and the job he ended up with did not quite match his preparation or field of greatest expertise.
On the other hand, their correspondence also reveals Pound’s generosity, as he attempted in myriad ways and places to secure assistance for his friend. Pound was undoubtedly at the center of a network that aided several scholars who were fleeing the war and migrating to the United States. That network included law professors from across the country. Among them were important intellectuals who were aware of the difficulties that refugees faced at the time. Many of these American intellectuals knew that there were many intellectuals among the refugees, and that they could contribute substantially to American universities. However, the difficulties of a world at war proved an obstacle for everyone.
I suspect that not all letters exchanged between the two scholars are housed at the archive at Harvard University. Among the 80,000 documents that make up the Roscoe Pound collection, I selected those that I found most interesting and that could, at least in part, illustrate what those professors experienced during times of war. Kelsen and Pound continued to exchange correspondence in subsequent years, even after Kelsen got the job at the University of California. In a future project, I hope to analyze how these two jurists could dedicate their correspondence to more theoretical and legal debates in a post-war world at peace.
[1] The New York Times, May 27th, 1936, p. 18.
[2] Hans Kelsen, Authority and he Individual (Cambridge, MA: Harvard University Press, 1937), v.
[3] Kelsen, “Centralization and Decentralization,” inAuthority and the Individual, 211-239.
[4] Thomas Olechowski, “Hans Kelsen, The Second World War and the U.S. Government,” in Hans Kelsen in America – Selective Affinities and the Mysteries of Academic Influence, ed. Jeremy Telmar (Switzerland: Springer, 2016), 102..
[5] Hans Kelsen letter to Roscoe Pound – dated October 12th, 1936 – available in the Roscoe Pound Archive at Harvard Law School.
[6] Official Register of Harvard University, Vol XXXII, April 23, 1935, n. 14 – Law School, pp. 9, 11.
[7] Roscoe Pound to Robert Schuyler, December 7, 1936, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7. The paper was published in 1937. See Hans Kelsen, “The Philosophy of Aristotle and the Hellenic-Macedonian Policy,” International Journal of Ethics 48, no. 1 (1937): 1-64.
[8] Roscoe Pound to Smith, December 7, 1936, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7. The paper was published in 1938. See Hans Kelsen, “Platonic Justice,” Ethics 48, no. 3 (1938) 367–400.
[9] Roscoe Pound to Moses Aroson, December 7, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7. The paper was published in 1937. See Hans Kelsen, “The Soul and the Law,” The Review of Religion 1, no. 4 (1937), 337.
[10] Roscoe Pound to Frederic Ogg, December 8, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[11] Roscoe Pound, “Fifty Years of Jurisprudence,” Harvard Law Review, Vol. L, No. 4, (1937), 557-582.
[12] Hans Kelsen to Roscoe Pound, October 11, 1938, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[13] James Bryant Conant was an American chemist and President of Harvard University (1933-1953).
[14] Joseph Redlich was an Austrian lawyer and professor at Harvard Law School (1926-1936).
[15] Felix Frankfurter was an Austrian-American lawyer who served as an Associate Justice of the Supreme Court of the United States and professor at Harvard Law School.
[16] Roscoe Pound to Hans Kelsen, October 25, 1938, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[17] Roscoe Pound to Hans Kelsen, November 1, 1938, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[18] Hans Kelsen to Roscoe Pound, November 16, 1938, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[19] Henry Moore Bates was an American lawyer and dean of the University of Michigan Law School (1910-1939).
[20] Charles Edward Clark was an American lawyer and dean of the Yale Law School (1929-1939).
[21] Roscoe Pound to Hans Kelsen, November 30, 1938, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[22] Willian Gressner was a lawyer and director of Conference on Jewish Relations, Inc.
[23] Roscoe Pound to Willian Gressner, November 1, 1938, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[24] Roscoe Pound to Hans Kelsen, January 11, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[25] John Archibald Fairlie was a Scottish political scientist and professor at the University of Illinois.
[26] James Wilford Garner was an American professor of political science and died in 1938.
[27] Roscoe Pound to John A. Fairlie, January 10, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[28] John A. Fairlie to Roscoe Pound, January 12, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7. Albert James Harno was an American lawyer, professor of law and Dean of the University of Illinois College of Law (1922-1957).
[29] John A. Fairlie to Roscoe Pound, January 24, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[30] Roscoe Pound to John A. Fairlie, January 27, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[31] John A. Fairlie to Roscoe Pound, January 30, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[32] Charles Edward Meriam was an American professor of political science at the University of Chicago.
[33] Hans Kelsen to Roscoe Pound, February 19, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[34] Official Register of Harvard University, Vol. XXXVI, May 27, 1939, n. 16 – Law School, p. 20
[35] Hans Kelsen to Roscoe Pound, June 27, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[36] Hans Kelsen to Roscoe Pound, August 01, 1939, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[37] https://kelsen.online/informationen/hans-kelsen.
[38] Olechowski, “Hans Kelsen, The Second World War and the U.S. Government,” 102.
[39] Hans Kelsen to Roscoe Pound, June 24, 1940, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[40] Hans Kelsen to Roscoe Pound, June 27, 1940, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[41] Jose Xirau i Palau was a Spanish professor of law at the Université de Lyon.
[42] Roscoe Pound to M.J.R. Xirau, August 21, 1940, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[43] The late Justice Oliver Wendell Holmes left a legacy in his will for the Harvard Law School. By the vote of the President and Fellows of Harvard College, the income from this bequest was to be “devoted to paying the honorarium of a lecturer to be known as the Holmes Lecture, and the expenses of publication of his lectures; this lecturer to be appointed for a series of lectures not oftener than once in three years by the Corporation upon recommendation of the Faculty of the Law School.” See Hans Kelsen, Law and Peace in International Relations (Cambridge: Harvard University Press: 1942).
[44] The New York Times, October 10, 1940, p. 12.
[45] Jerome Davis Greene was an American banker and trustee for several organizations, including the Rockefeller Foundation.
[46] Milton Foundation for Education.
[47] Roscoe Pound to Jerome Greens, January 8, 1942, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[48] Roscoe Pound to Eric Bellquist, January 8, 1942, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[49] Eric Cyril Bellquist was an American professor of Political Science at the University of California.
[50] Eric Bellquist to Roscoe Pound, January 15, 1942, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[51] Wellesley College is a private college in Wellesley, Massachusetts, founded in 1870.
[52] https://kelsen.online/informationen/hans-kelsen.
[53] The Daily Californian, December 3, 1942, p. 4.
[54] Roscoe Pound to Hans Kelsen, March 30, 1943, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[55]The Daily Californian, March 1, 1943, p. 2; The Daily Californian, March 23, 1943, p. 1; The Daily Californian, November 29, 1943, p. 2
[56] Hans Kelsen to Roscoe Pound, April 15, 1943, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[57] Roscoe Pound to Hans Kelsen, April 23, 1943, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[58] Hans Kelsen to Roscoe Pound, September 8, 1943, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[59] Archibald MacLeish was a writer and poet and 9th Librarian of Library of Congress between 1939 and 1944.
[60] The Library is the main research arm of the U.S. Congress and one of the largest libraries in the world.
[61] Roscoe Pound to Archibald MacLeish, September 10, 1943, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[62] Archibald MacLeish to Roscoe Pound, September 20, 1943, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[63] Roscoe Pound letter to Hans Kelsen, August 14 and 28, 1944, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7. The Huntington Library, Art Museum and Botanical Gardens was founded in 1919 in San Marino, California and has a huge collections of books and arts.
[64] Arthur Vanderbilt was an American judge, President of the American Bar Association between 1937 and 1938, and Dean of New York University Law School.
[65] Roscoe Pound to Hans Kelsen, October 31, 1944, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[66] The Foreign Economic Administration was formed during the administration of Franklin Delano Roosevelt to relieve friction between U.S. agencies operating abroad.
[67] Hans Kelsen, Peace through Law (Chapel Hill: The University of North Carolina Press, 1944).
[68] Hans Kelsen to Roscoe Pound, November 13, 1944, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.
[69] Hans Kelsen to Roscoe Pound, March 28, 1945, Roscoe Pound Papers, Harvard Law Library, Historical & Special Collections, Box 140, Folder 7.