THE INFLUENCE OF DANTE ALIGHIERI’S POLITICAL THOUGHT

IN HANS KELSEN’S THEORY OF INTERNATIONAL LAW

Alice Marras

University of Cagliari – Faculty of Humanities1

Abstract: Hans Kelsen (1881-1973) was the most important jurist of the twentieth century and the
founder of the Pure Theory of Law. His theory of International Law is grounded not only in his
Neokantian perspective but also in the political thought of Dante Alighieri, sketched through the
composition of the De Monarchia in 1317. In 1905 Kelsen wrote, indeed, Die Staatslehre des Dante
Alighieri. Kelsen’s aim was to clarify Dante’s theory of the state. In this work we can grasp the following
developments of his legal theory.

Key words: Kelsen, Dante, Theory of the State, International Law, Legal Theory

Hans Kelsen is well known as the founder of the Pure Theory of Law. Following the neokantian
ideal, Kelsen Pure Theory’s aim is to provide a legal construction lacking ideological, moral, political,
sociological, religious and historical elements. Kelsen’s legal order is composed of a system of formal
norms, totally independent from their content. Because of this, it is known either as “Normativism” or
as “Legal Formalism”.
Among his major works, we remember Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre
vom Rechtssatze (1911), Das Problem der Souveränität (1920), Reine Rechtslehre (1934), Law and
Peace in International Relations (1942), Peace through Law (1944) and Principles of International
Law (1952). His normative Theory of Law has had a widespread diffusion in the world, representing
even now the starting point for every scholars working in the field of Philosophy of Law.
It could seem surprising that the first book Kelsen wrote was about the political and legal
thought of Dante Alighieri. Discovered by italian philosopher Vittorio Frosini2, it’s important release on
the fact it discloses some essential developments of the theory of Law that Kelsen will develop later
on. In my presentation I argue that the Pure Theory of law finds his grounds not only in a rigid logical-
normative view of the legal system, but also in an extra-normative research. Even though Kelsen owes
the epistemological ideals of scientific objectivity, methodological purity and value-free to the Neo-
Kantian German School, especially to H. Cohen and R. Stammler, his first work is focused on the
History of Law.
In this way, Kelsen offers another important research field connected to the study of Dante Alighieri’s
political and legal position. To his political interpretation Kelsen devotes a study, Die Staatslehre des
Dante Alighieri.3 Published in 1905, first in the Sixth volume of the Wiener Staatswissentschaftliche
Studien, then as a independent work printed by Franz Deuticke, it remains overlooked by Italian’s
critics4 until 1974.5
Kelsen’s purpose is to clarify Dante’s political and legal position through the examination of his
theory of the State, explained in the De Monarchia6. The De Monarchia is a work written in latin

1 This paper was conceptualised during my permanence at the University of Salzburg.

2
See FROSINI V., Kelsen e Dante, in La teoria dello stato in Dante; Riccobono, F., Gli inizi di Kelsen:
la teoria dello Stato in Dante, pp. 261-289; Riccobono, F. Interpretazioni kelseniane.
3
KELSEN H., Die Staatslehre des Dante Alighieri.
4
With the exception of Arrigo Solmi, who wrote in 1907 a review in SOLMI, A. Kelsen H.: die
Staatslehre des Dantes Alighieri, pp.98-111.
5 See MERLINO A., Storia di Kelsen. La recezione della Reine Rechtslehre in Italia.
6 ALIGHIERI, D., Monarchia, english ed. by HENRY, A. The De Monarchia of Dante Alighieri. See

QUAGLIONI, D. Per la Monarchia di Dante (1313) and QUAGLIONI, D. (critical ed.), Monarchia, di
Dante Alighieri.

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between 1313 and 1320.7 Its body is divided into three books, each of which expounds a specific
question. The first addresses a philosophical-legal-political issue: is the Universal Empire necessary
for the Well-being? The second one deals with an historical question: is there a Romans’ right to
achieve imperial authority, based on Providence will? The last one raises a theological question: is
the monarch authority derived directly from God or is there the mediation of his vicar, the pope?:
«Temporal Monarchy, called also the Empire, we define as a single Principality extending over all
peoples in time, or in those things and over those things which are measured by time. I Concerning it
three main questions arise. First, we may ask and seek to prove whether it is necessary for the well-
being of the world; secondly, whether the Roman people rightfully appropriated the office of Monarchy;
and thirdly, whether the authority of Monarchy derives from God directly, or from another, a minister
or vicar of God.»8
Kelsen sees in Dante a political ideology reaching toward the future, in which Dante writes thinking of
the coming generations. Kelsen’s evaluation of Dante is twofold. On one side, Dante is a thinker
whose work represents the highest cultural point of Middle Ages, on the other side, he is the forerunner
of the concept of modern State. Kelsen underlines the beginning of an autonomous State’s Philosophy
and Philosophy of Law, aimed at keeping theology out of the equation. 9 Describing Dante’s theory,
Kelsen makes a comparison between the Theory of the State developed by Dante and that outlined
by his contemporaries. Kelsen’s Dante is, in other words, a forerunner of Kelsen himself. Although
with some variations, according to Garcia Salmones-Rovira, both live an important historical moment
of changes: Dante stood in the immediate pre-state moment at the end of Middle Ages, Kelsen writes
in a period in which Internationalism was beginning and with it the erosion of Westphalian state
sovereignty.10 Both experience a face of political and cultural crumbling: they become exiles, «pilgrims
of the world»11. Because of this, they build a political and legal structure, which is supposed to
overtake fragmentation and give perfect balance to the world community.
However, Dante remains bound to his theological grounds, clearly shown in the uninterrupted dialectic
between temporal and spiritual spheres. Kelsen’s skepticism, in contrast, rejects theology as non-
scientific. Nevertheless, Kelsen acknowledges Dante’s use of a scientific strict method, tending to
legal unity. This orientation makes Dante able to write a scientific work, evaluated by Kelsen as greater
than his contemporaries’ works. Dante develops a theory of the State undertstood as a universal
State, lacking socio-political degenerations.12 Dante’s De Monarchia claims the necessity of a
temporal and universal monarchy, which should gather together all the separated kingdoms,
princedoms and territories, usually in conflict among themselves. This monarchy, called imperium, is
led by an emperor with temporal power, while the spiritual one is hold by the Pope. Dante’s emperor
is the judge in conflict resolutions, the peacemaker and also the legislator at the people’s service.
Kelsen takes into account many legal starting points, that he considers to be prominent in
Dante’s De Monarchia. Firstly, Kelsen highlights Dante’s attempt to define juridically the rule of Law,
the Rechtsstaat13. Dante’s monarchy, described by Wegele as a «Rechtsstaat der Menschheit»14, has
an inalienable and sovereign power; it wields authority over anything else. These are the bases of
Kelsen’s coercion, which characterize his legal order. According to Kelsen’s Hauptprobleme der
Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze, published in 1911, «Das Wesen der

7
There is discordance about dating this work. The most plausible hypothesis dates the Monarchia at
the same time of the writing of Dante’s Paradise, between 1313 and 1320. For instance, Kern believed
it was composed in 1313, Kraus, Gaia and Kelsen in 1317-1318, Strassburg in 1320.
8
Ivi, pp. 5-6.
9 “So liegt in der Entwicklung dieses Jahrhunderts der Höhepunkt mittelalterlicher Staatsdoktrin;

zugleich aber lassen sich die ersten deutlichen Anfänge einer modernen Staatsauffassung erkennen,
wie dies insbesondere bei Dante der Fall ist.” KELSEN H., Die Staatslehre des Dante Alighieri, p. 21.
10 Cfr. GARCIA-SALMONES ROVIRA, M. The Project of Positivism in International Law, p. 294.
11
Ivi, p. 292.
12 Cfr FROSINI, V. Kelsen e Dante.
13
Cfr FROSINI, V. Ivi.
14
Wegele said: “Seine Monarchie ist, um einen modernen Ausdruck zu gebrauchen, der Rechtsstaat
der Menschheit, das Amt des Kaisers ist: Frieden und Gerechtigkeit und Freiheit, die Grundlagen des
menschlichen Wohls, auf Erden aufrecht zu erhalten.” in WEGELE F. X. VON, Dante Alighieri’s Leben
und Werke, p. 314.

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Rechtsordnung besteht in ihrer Verpflichtung.»15 These bases are better defined in 1934 in Kelsen’s
well known book, the Reine Rechtslehre, where he says: «Der Staat ist eine Rechtsordnung»16. In
this manner, he affirms the identification of law and state, where law and state both mean legal order.
Kelsen draws a pyramidal order, in which every norm depends for its validity on a superior norm. This
step-structure of the law is called Stufenbau. He accomplishes his goal of providing a logical structure
when he declares the superior status of the International Law: every domestic order depends on it.
He argues for the unity of any legal system, in which the International dimension is the key.17
Therefore, the notion of Dante’s imperium unveils a special affinity with the concept of Kelsen’s
international legal order. Both attempt to organize the legal multiplicity.
This points to the second anchorage for Kelsen in Dante: the unity of the system. Kelsen values the
logical architecture and the medieval idea of unity, of which Dante is the greatest advocate.18 From
1911 the Viennese philosopher starts theorising legal monism, based on the concept of unity and
logical coherence, free from contradictions. In my opinion, this kelsenian epistemological foundation,
never forsaken, originated from the study of the De Monarchia. Kelsen’s Dante holds an ideal unitary
system and a strictly logical consistency.19 I believe Kelsen already intended to build this logical
system since 1905. This interpretation is strengthen by an historical consideration. Kelsen writes his
book about Dante when he is a young jurist. He has not systematize the Reine Rechtslehre yet. He is
subject to the Habsburg monarchy. The latter was a great entity, able to embody the ideal of a
supranational State for many reasons. First, it was geographically well-situated in the core of Europe;
second, it gathered different cultures, languages and religions, that often conflicted. The legal norm
represents the only connection which keeps together this various social context. Thus, legal unity
becomes the core of Kelsen’s system.
It could be argued that Kelsen was fascinated by the political structure of a universal monarchy,
at the head of which is an emperor who is either a public servant or a reference point for humankind.
From a historical standpoint, there would be similarities with the legal situation of the Habsburg
monarchy at the time Kelsen was writing. Kelsen is particularly interested in the distribution of power
between monarch and regional legislators20, hence, in the legal uniformity of Dante’s monarchy, a
monarchy capable maintaining regional autonomy. One must not forget Kelsen’s political resolution
to solve self-determinations of peoples’ problems. The Habsburg monarchy was dismembering. He
suggests a new political entity, a federation of States, in which Nations, States and groups could be
managed by the same emperor. Kelsen examines Dante’s emperor as the supreme authority on
partial powers. Indeed, Dante declares necessary to identify who is able to settle disagreements and
conflicts among different entities. Because of this, he presents the authority of the emperor as the only
character capable of avoiding war and injustice. According to Dante, «International Peace (...) require
International Authority with power to decide»21 an international authority that makes decisions
guaranteeing international peace. That neutral authority is the judge, who is – Dante says – the
emperor.22 In this institution rests the salvation of mankind and the ideal of an universal peaceful
monarchy: «Wherever strife is a possibility, in that place must be judgment; otherwise imperfection
would exist without its perfecting agent. I This could not be, for God and Nature are not wanting in
necessary things." It is self-evident that between any two princes, neither of whom owes allegiance to
the other, controversy may arise either by their own fault or by the fault of their subjects. For such,
judgment is necessary. And inasmuch as one owing no allegiance to the other can recognize no
authority in him (for an equal cannot control an equal), there must be a third prince with more ample
jurisdiction, who may govern both within the circle of his right. This prince will be or will not be a

15 KELSEN, H. Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze, p.
80.
16 KELSEN, H. Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik.
17 Kelsen, H. Das Problem der Souveränität.
18
KELSEN, H. Die Staatslehre des Dante Alighieri, p. 38.
19 Cfr. BERNSTORFF, J. VON: The Public International Law Theory of Hans Kelsen. Believing in

Universal Law, pp. 78-79.

20
See LEPSIUS, O. Hans Kelsen on Dante Alighieri’s Political Philosophy.
21 GARCIA-SALMONES ROVIRA, M. The Project of Positivism in International Law, p. 294.
22
Some critics say Dante was an imperialist. Nevertheless, the emperor’s tasks are in Dante justice,
freedom and peace. In my opinion, hence, this claim collapses.

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Monarch. If he is, our purpose is fulfilled; if not, he will again have a coequal beyond the circle of his
jurisdiction, and again a third prince will be required.»23
Kelsen recovers Dante’s idea of the emperor, giving value to his jurisdictional role. «As head of his
“achieving peace” universal State– writes Kelsen – Dante imagined the emperor as a supreme judge
of peace.»24 It is not accidental that the most important kelsenian need is the creation of a global
jurisdiction: a international court with compulsory jurisdiction, guaranteeing neutrality in settling
conflicts among States.
According to Dante, the judge-emperor has temporal authority over the world, but there are not risks
of authoritarian tendencies. He does not have absolute and unlimited power: his power does not
correspond to the State’s power. 25 Kelsen highlights that this kind of emperor fulfils a simple «officium
Monarchiae»26, a public job at the service of mankind. As a consequence, being an emperor brings
not only rights, but also obligations.
«The imperium is above the emperor; the emperor is just a servant, an imperium instrument; with
respect to the State’s power his position is an officium, that surely authorizes him but, to the same
extent, it also forces him.»27
In contrast to the limited power of the emperor, the power of the universal State is supreme. Dante
gives to his universal monarchy the characteristics of the modern State: it is indivisible and inalienable.
It is sovereign.
In this regard, according to Frosini, Dante is for Kelsen «a supporter of the Empire as a Staatsform»28,
the theorist of an emperor as a public servant. Thanks to the emperor’s officium, Dante’s world is
protected by political degenerations29, by injurious conflicts between kings and rulers and by
dangerous hegemonic aspirations. For this reason the emperor results, after all, in the core of Dante’s
idea of public order -«And so all parts which we have designated as included in kingdoms, and
kingdoms themselves, should be ordered with reference to one Prince or Principality, that is, to one
Monarch or Monarchy.»30 In Kelsen’s Dante, the emperor is not characterised by negative
connotations, but rather he is the symbol of the political global unity. He rules the variety of the
international societies, reducing them to legal unity - which reflects the celestial unity.31
Another interesting point is, in my opinion, the aim of the rule of law in the two thinkers.
They present the same ultimate aim: universal peace. To achieve peace, Dante’s State must promote
a political doctrine. It is a justice-based State, that defends and pursues peace as a common good.32
Peace is understood in the modern meaning of Kelsen’s public order, as the basis of civilised
coexistence among people. In contrast with the Italian thinker, Kelsen while resuming Dante’s
interpretation, rules out justice as an irrational ideal and says: «Law is, essentially, an order for the
promotion of peace.»33 Two years later, he focuses his reflection on peace. He suggests a Permanent
League of the Manteinance of the Peace based on an international court and able to overcome the
failure of the Society of Nation and: «As long as it is not possible to remove from the interested States
the prerogative to answer the question of law and transfer it once and for all to an impartial authority,
namely, an international court, any further progress on the way to the pacification of the world is

23
Ivi, pp.29-30.
24
“Den Kaiser als obersten Friedensrichter” KELSEN, H. Die Staatslehre des Dante Alighieri, p. 60.
25 This point is emphasized in the discussion of the Donation of Costantin. Kelsen writes that an

emperor cannot divided the Empire, even when this division means a gift to the Church. See KELSEN,
H. Die Staatslehre des Dante Alighieri, pp. 91-94.
26
Ivi, p. 87.
27 Ivi, p. 95.
28 FROSINI, V. Kelsen e Dante, p. XVIII.
29
Dante said: “Only if a Monarch rules can the human race exist for its own sake; only if a Monarch
rules can the crooked policies be straightened, namely democracies, oligarchies, and tyrannies which
force mankind into slavery," as he sees who goes among them” in ALIGHIERI, D. The De Monarchia
of Dante Alighieri, p.44.
30 Ivi, p. 23.
31
Cfr. ALIGHIERI, D. The De Monarchia of Dante Alighieri, pp.26-27.
32 “Whence it is manifest that universal peace is the best of those things which are ordained for our

beatitude.” ALIGHIERI, D. The De Monarchia of Dante Alighieri, p. 16.

33
KELSEN, H. Law and Peace in International Relations. The Oliver Wendell Holmes Lectures, p. 1.

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absolutely excluded. Consequently, the next step on which our efforts must be concentrated is to bring
about an international treaty concluded by as many States as possible, victors as well as vanquished,
establishing a international court endowed with compulsory jurisdiction. This means that all the States
of the League constituted by this treaty are obliged to renounce war and reprisal as means of settling
conflicts, to submit all their disputes without exception to the decision of the court, and to carry out its
decisions in good faith.»34 This League arises on the road of a global centralized State, following the
developments of the International Law through a domestic analogy with the domestic Law.
For the two thinkers, the Universal Empire and the Permanent League of the Maintenance of the
Peace represent the need for legal and political authority to operate in the human society, ensuring
peace. Dante’s political reflection on the international authority as guardian of the Law, and thereby
of the global balance, and his ideal of a legal and political universe, led by a judge-emperor in order
to achieve peace and security form the pillars of later Kelsen’s International Law. One can find these
argumentations both in the European and in the American works of his.
Notwithstanding his admiration for Dante’s political thought, Kelsen stresses that the dimension of
Law can only be the positive one. According to Kelsen, Dante makes a mistake allowing a coexistence
of State and Church as two independent lights, sovereign, each within its own sphere. The two
institutions limit their mutual powers reciprocally: positive law is limited by canon law and vice versa.
In this respect, Dante goes certainly beyond the two great lights doctrine (duo magna luminaria), for
which the Pope is the sun (the big one) and the emperor is the moon. The moon does not have proper
light, so it receives its light from the sun, while in Dante «also the emperor is a sun»35. According to
Dante, there are two suns instead, two separate institutions with their own powers, each deriving its
authority directly from God.36 This is for Kelsen not enough. He evaluates this relationship as
inadmissible.37 Furthermore, Dante enunciates that emperor must show a kind of reverence to the
Pope, like a first-born son to his father.38 In this way, he makes happiness on earth dependent on the
celestial armony. According to Kelsen, this is a no-consequential solution, by which Dante reaffirms
Church’s superiority.39 That makes Dante a man of his century.
For the Viennese, although in Middle Ages Dante’s position were modern, is not possible to accept a
legal structure, where two separate spheres coexist. A dualistic account still remains in Dante’s
interpretation. Such a dualism finds its unity only in the transcendent dimension of God. Therefore,
Dante is not able for Kelsen to carry the ordinatio ad unum through to completion: he retains legal
dualism.40 Unlike Dante, Kelsen can’t accept to find the unity in an extra-normative, even theological,
entity. Unity means legal monism, in other words, a formal and hierarchical structure of law having a
pure positive origin. This construction rules out a possible independence of the Canon Law.
Kelsen’s theory reaches the pinnacle with the primacy of International Law, having the legal capacity
to gather the variety of legal domestic orders under an international-legal community, which acts as a
guarantor of the unity through its Grundnorm.41
In conclusion, Dante represents an essential thinker for Kelsen’s philosophical thought. The
work, although early, contains the origins of the future kelsenian construction. Among Dante’s De
Monarchia issues, Kelsen seems first to take into account, to preserve and to overcome, in his future
books, the legal definition of the rule of law, which will represent the basis for his Normativism. The

34 KELSEN, H. Peace through Law, p. 13-14.

35 KELSEN, H. Die Staatslehre des Dante Alighieri, p. 102.
36 QUAGLIONI, D. Quanta est differentia inter solem et lunam. Tolomeo e la dottrina canonistica dei

duo luminaria
37 Ivi, pp. 115-116.
38 “Wherefore let Caesar honor Peter as a first-born son should honor his father, so that, refulgent

with the light of paternal grace, he may illumine with greater radiance the earthly sphere over which
he has been set by Him who alone is Ruler of all things spiritual and temporal." In ALIGHIERI, D. The
De Monarchia of Dante Alighieri, p. 206.
39
KELSEN, H. Die Staatslehre des Dante Alighieri, p. 116-117.
40 According to Kelsen, Dante’s double organization of humankind is in contradiction with his

principium unitatis. Following consequently this latter, one – the Church or the State - must rule the
other. See KELSEN, H. Die Staatslehre des Dante Alighieri, pp. 117-118.
41 See KELSEN, H. Reine Rechtslere, cit., pp. 72-84, 119 and ROEHRSSEN, C. (ed.), Hans Kelsen

nella cultura filosofico-giuridica del Novecento, pp. 43-44.

664
latter remarks on the need to build a Unitarian system: Kelsen’s legal monism characterized by the
Stufenbau. This system is aimed at peace among States. According to Kelsen, achieving peace
means to provide immediately a neutral jurisdiction, needed to settle conflicts among entities. An
international court is the necessary requirement of a international peace-aimed project. As many
States as possible must agree on an international treaty and gather together in a global world. The
core of such world is the court, guarantor of the development of International Law and its community.

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Contact information:
Dott.ssa Alice Marras
alicemarras87@gmail.com
University of Cagliari
Via is Mirrionis, 1
09123 Cagliari
Italy

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