![Hans Kelsen (1881–1973) ~1930 © Georg Fayer (1892–1950) OeNB 8026867](https://upload.wikimedia.org/wikipedia/commons/c/c0/Hans_Kelsen_%281881%E2%80%931973%29_~1930_%C2%A9_Georg_Fayer_%281892%E2%80%931950%29_OeNB_8026867.jpg)
Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian
jurist
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
,
legal philosopher
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal vali ...
and
political philosopher
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships between them. Its topics include politics, l ...
. He was the author of the 1920
Austrian Constitution
The Constitution of Austria (german: Österreichische Bundesverfassung) is the body of all constitutional law of the Republic of Austria on the federal level. It is split up over many different acts. Its centerpiece is the Federal Constitutional L ...
, which to a very large degree is still valid today. Due to the rise of totalitarianism in Austria (and a 1929 constitutional change), Kelsen left for Germany in 1930 but was forced to leave his university post after Hitler's seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and later moved to the United States in 1940. In 1934,
Roscoe Pound
Nathan Roscoe Pound (October 27, 1870 – June 30, 1964) was an American legal scholar and educator. He served as Dean of the University of Nebraska College of Law from 1903 to 1911 and Dean of Harvard Law School from 1916 to 1936. He was a membe ...
lauded Kelsen as "undoubtedly the leading jurist of the time". While in Vienna, Kelsen met
Sigmund Freud
Sigmund Freud ( , ; born Sigismund Schlomo Freud; 6 May 1856 – 23 September 1939) was an Austrian neurologist and the founder of psychoanalysis, a clinical method for evaluating and treating psychopathology, pathologies explained as originatin ...
and his circle, and wrote on the subject of social psychology and sociology.
By the 1940s, Kelsen's reputation was already well established in the United States for his defense of
democracy
Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...
and for his
Pure Theory of Law. Kelsen's academic stature exceeded legal theory alone and extended to
political philosophy
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships between them. Its topics include politics, l ...
and social theory as well. His influence encompassed the fields of philosophy, legal science, sociology, the theory of democracy, and
international relations
International relations (IR), sometimes referred to as international studies and international affairs, is the scientific study of interactions between sovereign states. In a broader sense, it concerns all activities between states—such as ...
.
Late in his career while at the
University of California, Berkeley
The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant u ...
, although officially retired in 1952, Kelsen rewrote his short book of 1934, ''Reine Rechtslehre'' (''Pure Theory of Law''), into a much enlarged "second edition" published in 1960 (it appeared in an English translation in 1967). Kelsen throughout his active career was also a significant contributor to the theory of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
, the hierarchical and dynamic theory of positive law, and the science of law. In political philosophy he was a defender of the state-law identity theory and an advocate of explicit contrast of the themes of centralization and decentralization in the theory of
government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
. Kelsen was also an advocate of the position of separation of the concepts of state and society in their relation to the study of the science of law.
The reception and criticism of Kelsen's work and contributions has been extensive with both ardent supporters and detractors. Kelsen's
neo-Kantian
In late modern continental philosophy, neo-Kantianism (german: Neukantianismus) was a revival of the 18th-century philosophy of Immanuel Kant. The Neo-Kantians sought to develop and clarify Kant's theories, particularly his concept of the "thin ...
defense of
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
was influential on
H. L. A. Hart
Herbert Lionel Adolphus Hart (18 July 190719 December 1992), known simply as H. L. A. Hart, was an English legal philosopher. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His ...
,
Joseph Raz
Joseph Raz (; he, יוסף רז; born Zaltsman; 21 March 19392 May 2022) was an Israeli legal, moral and political philosopher. He was an advocate of legal positivism and is known for his conception of perfectionist liberalism. Raz spent mos ...
and other legal theorists in the analytical tradition of jurisprudence.
Biography
Kelsen was born in
Prague
Prague ( ; cs, Praha ; german: Prag, ; la, Praga) is the capital and largest city in the Czech Republic, and the historical capital of Bohemia. On the Vltava river, Prague is home to about 1.3 million people. The city has a temperate ...
into a middle-class, German-speaking,
Jewish
Jews ( he, יְהוּדִים, , ) or Jewish people are an ethnoreligious group and nation originating from the Israelites Israelite origins and kingdom: "The first act in the long drama of Jewish history is the age of the Israelites""The ...
family. His father, Adolf Kelsen, was from
Galicia, and his mother, Auguste Löwy, was from
Bohemia
Bohemia ( ; cs, Čechy ; ; hsb, Čěska; szl, Czechy) is the westernmost and largest historical region of the Czech Republic. Bohemia can also refer to a wider area consisting of the historical Lands of the Bohemian Crown ruled by the Bohem ...
. Hans was their first child; there were two younger brothers and a sister. The family moved to
Vienna
en, Viennese
, iso_code = AT-9
, registration_plate = W
, postal_code_type = Postal code
, postal_code =
, timezone = CET
, utc_offset = +1
, timezone_DST ...
in 1884, when Hans was three years old. After graduating from the
Akademisches Gymnasium, Kelsen studied
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
at the
University of Vienna
The University of Vienna (german: Universität Wien) is a public research university located in Vienna, Austria. It was founded by Duke Rudolph IV in 1365 and is the oldest university in the German-speaking world. With its long and rich histor ...
, taking his doctorate in law (
Dr. juris
The Juris Doctor (J.D. or JD), also known as Doctor of Jurisprudence (J.D., JD, D.Jur., or DJur), is a graduate-entry professional degree in law
and one of several Doctor of Law degrees. The J.D. is the standard degree obtained to practice law ...
) on 18 May 1906 and his
habilitation
Habilitation is the highest university degree, or the procedure by which it is achieved, in many European countries. The candidate fulfills a university's set criteria of excellence in research, teaching and further education, usually including a ...
on 9 March 1911. Twice in his life, Kelsen converted to separate religious denominations. At the time of his dissertation on Dante and Catholicism, Kelsen was baptised as a Roman Catholic on 10 June 1905. On 25 May 1912 he married Margarete Bondi (1890–1973), the two having converted a few days earlier to
Lutheranism
Lutheranism is one of the largest branches of Protestantism, identifying primarily with the theology of Martin Luther, the 16th-century German monk and Protestant Reformers, reformer whose efforts to reform the theology and practice of the Cathol ...
of the
Augsburg Confession
The Augsburg Confession, also known as the Augustan Confession or the Augustana from its Latin name, ''Confessio Augustana'', is the primary confession of faith of the Lutheran Church and one of the most important documents of the Protestant Re ...
; they had two daughters.
Kelsen and his years in Austria up to 1930
Kelsen's early work on Dante's theory of the state in 1905 became his first book on political theory. Kelsen made explicit his preference for the reading of
Dante Alighieri
Dante Alighieri (; – 14 September 1321), probably baptized Durante di Alighiero degli Alighieri and often referred to as Dante (, ), was an Italian poet, writer and philosopher. His ''Divine Comedy'', originally called (modern Italian: '' ...
's ''
Divine Comedy
The ''Divine Comedy'' ( it, Divina Commedia ) is an Italian narrative poem by Dante Alighieri, begun 1308 and completed in around 1321, shortly before the author's death. It is widely considered the pre-eminent work in Italian literature and ...
'' as largely based in political allegory. The study makes a rigorous examination of the "two swords doctrine" of
Pope Gelasius I
Pope Gelasius I was the bishop of Rome from 1 March 492 to his death on 19 November 496. Gelasius was a prolific author whose style placed him on the cusp between Late Antiquity and the Early Middle Ages.The title of his biography by Walter Ullma ...
, along with Dante's distinct sentiments in the Roman Catholic debates between the
Guelphs and Ghibellines
The Guelphs and Ghibellines (, , ; it, guelfi e ghibellini ) were factions supporting the Pope and the Holy Roman Emperor, respectively, in the Italian city-states of Central Italy and Northern Italy.
During the 12th and 13th centuries, ri ...
. Kelsen's conversion to Catholicism was contemporaneous to the book's completion in 1905. He obtained the degree of Dr. Juris (doctor of law) by examination in 1906. In 1908, studying for his habilitation, Kelsen won a research scholarship which allowed him to attend the
University of Heidelberg
}
Heidelberg University, officially the Ruprecht Karl University of Heidelberg, (german: Ruprecht-Karls-Universität Heidelberg; la, Universitas Ruperto Carola Heidelbergensis) is a public research university in Heidelberg, Baden-Württemberg, ...
for three consecutive semesters, where he studied with the distinguished jurist
Georg Jellinek
Georg Jellinek (16 June 1851 – 12 January 1911) was a German public lawyer and was considered to be "''the'' exponent of public law in Austria“.
Life
From 1867, Jellinek studied law, history of art and philosophy at the University of Vienna ...
before returning to Vienna.
The closing chapter of Kelsen's study of political allegory in Dante also was important for emphasizing the particular historical path which led directly to the development of modern law in the twentieth century. After emphasizing Dante's importance to this development of legal theory, Kelsen then indicated the historical importance of
Niccolò Machiavelli
Niccolò di Bernardo dei Machiavelli ( , , ; 3 May 1469 – 21 June 1527), occasionally rendered in English as Nicholas Machiavel ( , ; see below), was an Italian diplomat, author, philosopher and historian who lived during the Renaissance. ...
and
Jean Bodin
Jean Bodin (; c. 1530 – 1596) was a French jurist and political philosopher, member of the Parlement of Paris and professor of law in Toulouse. He is known for his theory of sovereignty. He was also an influential writer on demonology.
Bodin l ...
to these historical transitions in legal theory leading to modern twentieth century law.
[Kelsen, ''Dante'', concluding chapter.] In the case of Machiavelli, Kelsen saw an important counter-example of an exaggerated executive part of government operating without effective legal restraints on responsible conduct. For Kelsen, this was instrumental in the orientation of his own legal thinking in the direction of government strictly according to law, eventually with a heightened emphasis on the importance of a fully elaborated power of judicial review.
Kelsen's time at Heidelberg was of lasting importance to him in that he began to solidify his position of the identity of law and state from the initial steps he observed as being taken by Jellinek. Kelsen's historical reality was to be surrounded by the dualistic theories of law and state prevailing in his time. The major question for Jellinek and Kelsen, as stated by Baume
is, "How can the independence of the state in a dualist perspective be reconciled with its status (as) representative of the legal order? For dualistic theorists there remains an alternative to monistic doctrines: the theory of the self-limitation of the state. Georg Jellinek is an eminent representative of this theory, which allows one to avoid reducing the state to a legal entity, and also to explain the positive relationship between law and state. The self-limitation of the sphere of the state presupposes that the state, as a sovereign power, by the limits that it imposes on itself, becomes a rule-of-law state."
For Kelsen, this was appropriate for as far as it went yet it still remained a dualistic doctrine and therefore Kelsen rejected it stating: "The problem of the so-called auto-obligation of the State is one of those pseudo-problems that result from the erroneous dualism of State and law. This dualism is, in turn, due to a fallacy of which we meet numerous examples in the history of all fields of human thought. Our desire for the intuitive representation of abstractions leads us to personify the unity of a system, and then to hypostasize the personification. What originally was only a way of representing the unity of a system of objects becomes a new object, existing in its own right." Kelsen was joined in this critique by the distinguished French jurist
Léon Duguit
Léon Duguit (1859–1928) was a leading French scholar of public law (''droit public''). After a stint at Caen from 1882 to 1886, he was appointed to a chair of constitutional law at the University of Bordeaux in 1892, where one of his colleagu ...
, who wrote in 1911: "Self-limitation theory (vis Jellinek) contains some real sleight of hand. Voluntary subordination is not subordination. The state is not really limited by the law if the state alone can introduce and write this law, and if it can at any time make any changes that it wants to make in it. This kind of foundation of public law is clearly extremely fragile." As a result, Kelsen solidified his position endorsing the doctrine of the identity of law and state.
In 1911, he achieved his
habilitation
Habilitation is the highest university degree, or the procedure by which it is achieved, in many European countries. The candidate fulfills a university's set criteria of excellence in research, teaching and further education, usually including a ...
(license to give university lectures) in
public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
and
legal philosophy
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal vali ...
, with a thesis that became his first major work on legal theory, ''Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze'' ("Main Problems in Theory of Public Law, Developed from Theory of the Legal Statement"). In 1919, he became full
professor
Professor (commonly abbreviated as Prof.) is an Academy, academic rank at university, universities and other post-secondary education and research institutions in most countries. Literally, ''professor'' derives from Latin as a "person who pr ...
of public and
administrative law
Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
at the University of Vienna, where he established and edited the ''Zeitschrift für öffentliches Recht'' (Journal of Public Law). At the behest of Chancellor
Karl Renner
Karl Renner (14 December 1870 – 31 December 1950) was an Austrian politician and jurist of the Social Democratic Workers' Party of Austria. He is often referred to as the "Father of the Republic" because he led the first government of German-A ...
, Kelsen worked on drafting a new
Austrian Constitution
The Constitution of Austria (german: Österreichische Bundesverfassung) is the body of all constitutional law of the Republic of Austria on the federal level. It is split up over many different acts. Its centerpiece is the Federal Constitutional L ...
, enacted in 1920. The document still forms the basis of Austrian constitutional law. Kelsen was appointed to the Constitutional Court, for his lifetime. Kelsen's emphasis during these years upon a Continental form of legal positivism began to further flourish from the standpoint of his law-state monism, somewhat based upon the previous examples of Continental legal positivism found in such scholars of law-state dualism such as Paul Laband (1838–1918) and Carl Friedrich von Gerber (1823–1891).
During the early 1920s he published six major works in the areas of government,
public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
, and
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
: in 1920, ''Das Problem der Souveränität und die Theorie des Völkerrechts'' (The Problem of Sovereignty and Theory of International Law) and ''Vom Wesen und Wert der Demokratie'' (On the Essence and Value of Democracy); in 1922, ''Der soziologische und der juristische Staatsbegriff'' (The Sociological and Juristic Concepts of the State); in 1923, ''Österreichisches Staatsrecht'' (Austrian Public Law); and, in 1925, ''Allgemeine Staatslehre'' (General Theory of the State), together with ''Das Problem des Parlamentarismus'' (The Problem of Parliamentarianism). In the late 1920s, these were followed by ''Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus'' (The Philosophical Foundations of the Doctrine of Natural Law and Legal Positivism).
During the 1920s, Kelsen continued to promote his celebrated theory of the identity of law and state which made his efforts a counterpoint to the position of
Carl Schmitt
Carl Schmitt (; 11 July 1888 – 7 April 1985) was a German jurist, political theorist, and prominent member of the Nazi Party. Schmitt wrote extensively about the effective wielding of political power. A conservative theorist, he is noted as a ...
who advocated for the priority of the political concerns of the state. Kelsen was supported in his position by Adolf Merkl and Alfred Verdross, while opposition to his view was voiced by Erich Kaufman, Hermann Heller, and Rudolf Smend. An important part of Kelsen's main practical legacy is as the inventor of the modern European model of
constitutional review Constitutional review, or constitutionality review or constitutional control, is the evaluation, in some country, countries, of the constitutionality of the laws. It is supposed to be a system of preventing violation of the rights granted by the con ...
. This was first introduced in both Austria and Czechoslovakia in 1920, and later in the
Federal Republic of Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated between ...
,
Italy
Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical re ...
,
Spain
, image_flag = Bandera de España.svg
, image_coat = Escudo de España (mazonado).svg
, national_motto = ''Plus ultra'' (Latin)(English: "Further Beyond")
, national_anthem = (English: "Royal March")
, i ...
,
Portugal
Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of ...
, as well as in many countries of Central and Eastern Europe.
As described above, the Kelsenian court model set up a separate constitutional court which was to have sole responsibility over constitutional disputes within the judicial system. Kelsen was the primary author of its statutes in the state constitution of Austria as he documents in his 1923 book cited above. This is different from the system usual in
common-law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
countries, including the United States, in which courts of general jurisdiction from the trial level up to the court of last resort frequently have powers of constitutional review. Following increasing political controversy about some positions of the Constitutional Court of Austria, Kelsen faced increasing pressure from the administration which appointed him to specifically address issues and cases concerning the providence of divorce provisions in state family law. Kelsen was inclined to a liberal interpretation of the divorce provision while the administration which had originally appointed him was responding to public pressure for the predominantly Catholic country to take a more conservative position on the issue of the curtailment of divorce. In this increasingly conservative climate, Kelsen, who was considered sympathetic to the
Social Democrats
Social democracy is a political, social, and economic philosophy within socialism that supports political and economic democracy. As a policy regime, it is described by academics as advocating economic and social interventions to promote so ...
, although not a party member, was removed from the court in 1930.
Kelsen and his European years between 1930 and 1940
In her recent book on Kelsen, Sandrine Baume
has summarized the confrontation between Kelsen and Schmitt at the very start of the 1930s. This debate was to reignite Kelsen's strong defense of the principle of judicial review against the principle of an authoritarian version of the executive branch of government which Schmitt had envisioned for national socialism in Germany. Kelsen wrote his scathing reply to Schmitt in his 1931 essay, "Who Should Be the Guardian of the Constitution?", in which he defended in plain terms the importance of judicial review over and against the excessive form of executive authoritarian government which Schmitt was promulgating in the early 1930s. As Baume states, "Kelsen defended the legitimacy of the constitutional court by combating the reasons that Schmitt cites for assigning the role of the guardian of the Constitution to the President of the Reich. The dispute between these two lawyers was about which body of the state should be assigned the role of guardian of the German Constitution. Kelsen thought that this mission ought to be conferred on the judiciary, especially the Constitutional Court."
Although Kelsen was successful in drafting sections for the Constitution in Austria for a strong court of judicial review, his sympathizers in Germany were less successful. Both
Heinrich Triepel
Heinrich Triepel (12 February 1868, Leipzig – 23 November 1946 in Untergrainau) was a German jurist and legal philosopher.
Life
From 1913, he was professor of law in Berlin. He took critical aim at legal positivism, which at the time was t ...
in 1924 and
Gerhard Anschütz
Gerhard Anschütz (10 January 1867 in Halle (Saale) – 14 April 1948 in Heidelberg) was a noted German teacher of constitutional law and the leading commentator of the Weimar Constitution. His principal work (with Richard Thoma) is the two- ...
in 1926 were unsuccessful in their explicit drive to instill a strong version of judicial review in Germany's Weimar Constitution.
Kelsen accepted a professorship at the
University of Cologne
The University of Cologne (german: Universität zu Köln) is a university in Cologne, Germany. It was established in the year 1388 and is one of the most prestigious and research intensive universities in Germany. It was the sixth university to ...
in 1930. When the National Socialists came to power in
Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
in 1933, he was removed from his post. He relocated to
Geneva
Geneva ( ; french: Genève ) frp, Genèva ; german: link=no, Genf ; it, Ginevra ; rm, Genevra is the List of cities in Switzerland, second-most populous city in Switzerland (after Zürich) and the most populous city of Romandy, the French-speaki ...
,
Switzerland
). Swiss law does not designate a ''capital'' as such, but the federal parliament and government are installed in Bern, while other federal institutions, such as the federal courts, are in other cities (Bellinzona, Lausanne, Luzern, Neuchâtel ...
where he taught international law at the
Graduate Institute of International Studies
Graduate may refer to:
Education
* The subject of a graduation, i.e. someone awarded an academic degree
** Alumnus, a former student who has either attended or graduated from an institution
* High school graduate, someone who has completed hi ...
from 1934 to 1940. During this time period,
Hans Morgenthau
Hans Joachim Morgenthau (February 17, 1904 – July 19, 1980) was a German-American jurist and political scientist who was one of the major 20th-century figures in the study of international relations. Morgenthau's works belong to the tradition o ...
departed from Germany to complete his habilitation dissertation in Geneva, which resulted in his book ''The Reality of Norms and In Particular the Norms of International Law: Foundations of a Theory of Norms''. By remarkable good fortune for Morgenthau, Kelsen had just arrived in Geneva as a professor and he became an adviser for Morgenthau's dissertation. Kelsen was among the strongest critics of
Carl Schmitt
Carl Schmitt (; 11 July 1888 – 7 April 1985) was a German jurist, political theorist, and prominent member of the Nazi Party. Schmitt wrote extensively about the effective wielding of political power. A conservative theorist, he is noted as a ...
because Schmitt was advocating for the priority of the political concerns of the state over the adherence by the state to the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
. Kelsen and Morgenthau were united against this National Socialist school of political interpretation which down-played the rule of law, and they became lifelong colleagues even after both had emigrated from Europe to take their respective academic positions in the United States. During these years, Kelsen and Morgenthau had both become ''persona non grata'' in Germany during the full rise to power of National Socialism.
That Kelsen was the principal defender of Morgenthau's ''Habilitationschrift'' is recently documented in the translation of Morgenthau's book titled ''The Concept of the Political''. In the introductory essay to the volume, Behr and Rosch indicate that the Geneva faculty under the examiners Walther Burckhardt and
Paul Guggenheim
Paul Guggenheim (15 September 1899 – 31 August 1977) was a Swiss scholar of international law.
He studied law at the universities of Zurich, Geneva, Rome and Berlin. After his promotion in 1924, he briefly taught international law in Kiel in 1 ...
were initially quite negative concerning Morgenthau's ''Habilitationschrift''. When Morgenthau had found a Paris publisher for the volume, he asked Kelsen to re-evaluate it. In the words of Behr and Rosch, "Kelsen was the right choice to assess Morgenthau's thesis because not only was he a senior scholar in ''Staatslehre'', but Morgenthau's thesis was also largely a critical examination of Kelsen's legal positivism. Thus, it was Kelsen to whom Morgenthau 'owed his ''Habilitation'' in Geneva,' as Kelsen's biographer Rudolf Aladár Métall confirms, ''and'' also eventually his subsequent academic career, because Kelsen produced the positive evaluation that convinced the board of examiners to award Morgenthau his ''Habilitation''."
In 1934, at the age of 52, he published the first edition of ''Reine Rechtslehre'' (''
Pure Theory of Law''). While in Geneva he became more deeply interested in
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. This interest in international law in Kelsen was in reaction largely to the
Kellogg–Briand Pact
The Kellogg–Briand Pact or Pact of Paris – officially the General Treaty for Renunciation of War as an Instrument of National Policy – is a 1928 international agreement on peace in which signatory states promised not to use war to ...
in 1929 and his negative reaction to the vast idealism he saw represented in its pages, along with the lack of the recognition of sanctions for the illicit actions of belligerent states. Kelsen had come to endorse strongly the sanction-delict theory of law which he saw as substantially under-represented in the Kellogg–Briand Pact. In 1936–1938 he was briefly professor at the
German University in Prague
)
, image_name = Carolinum_Logo.svg
, image_size = 200px
, established =
, type = Public, Ancient
, budget = 8.9 billion CZK
, rector = Milena Králíčková
, faculty = 4,057
, administrative_staff = 4,026
, students = 51,438
, undergr ...
before returning to Geneva where he remained until 1940. His interest in international law became especially focused in Kelsen's writings on international war crimes which he redoubled his efforts on behalf of after his departure to the United States.
Hans Kelsen and his American years after 1940
In 1940, at the age of 58, he and his family fled Europe on the last voyage of the SS ''
Washington
Washington commonly refers to:
* Washington (state), United States
* Washington, D.C., the capital of the United States
** A metonym for the federal government of the United States
** Washington metropolitan area, the metropolitan area centered on ...
'', embarking on 1 June in
Lisbon
Lisbon (; pt, Lisboa ) is the capital and largest city of Portugal, with an estimated population of 544,851 within its administrative limits in an area of 100.05 km2. Grande Lisboa, Lisbon's urban area extends beyond the city's administr ...
. He moved to the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, giving the prestigious ''Oliver Wendell Holmes Lectures'' at
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
in 1942. He was supported by Roscoe Pound for a faculty position at Harvard but opposed by Lon Fuller on the Harvard faculty before becoming a full professor at the department of
political science
Political science is the scientific study of politics. It is a social science dealing with systems of governance and power, and the analysis of political activities, political thought, political behavior, and associated constitutions and la ...
at the
University of California, Berkeley
The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant u ...
in 1945. Kelsen was defending a position of the distinction of the philosophical definition of justice as it is separable from the application of positive law. As Fuller stated his opposition, "I share the opinion of Jerome Hall, evidenced in this excellent ''Readings'', that jurisprudence should start with justice. I place this preference not on exhortatory grounds, but on a belief that until one has wrestled with the problem of justice one cannot truly understand the other issues of jurisprudence. Kelsen, for example, excludes justice from his studies (of practical law) because it is an 'irrational ideal' and therefore 'not subject to cognition.' The whole structure of his theory derives from that exclusion. The meaning of his theory can therefore be understood only when we have subjected to critical scrutiny its keystone of negation." Lon Fuller felt that the natural law position he was advocating against Kelsen was incompatible with Kelsen's dedication to the responsible use of positive law and the science of law. During the ensuing years, Kelsen increasingly dealt with issues of
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
and international institutions such as the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
. In 1953-54, he was
visiting Professor of International Law at the
United States Naval War College
The Naval War College (NWC or NAVWARCOL) is the staff college and "Home of Thought" for the United States Navy at Naval Station Newport in Newport, Rhode Island. The NWC educates and develops leaders, supports defining the future Navy and associat ...
.
Another part of Kelsen's practical legacy, as he has recorded, was the influence that his writings from the 1930s and early 1940s had upon the extensive and unprecedented prosecution of political leaders and military leaders at the end of WWII at Nuremberg and Tokyo, producing convictions in more than one thousand war crimes cases. For Kelsen, the trials were the culmination of approximately fifteen years of research he had devoted to this topic, which started still in his European years, and which he followed with his celebrated essay, "Will the Judgment In the Nuremberg Trial Constitute a Precedent In International Law?," published in ''The International Law Quarterly'' in 1947. It was preceded in 1943 by Kelsen's essay, 'Collective and Individual Responsibility in International Law with Particular Regard to Punishment of War Criminals', 31 ''California Law Review'', p 530, and in 1944 by his essay, "The Rule Against Ex Post Facto and the Prosecution of the Axis War Criminals," which appeared in ''The Judge Advocate Journal'', Issue 8.
In Kelsen's companion 1948 essay for ''J.Y.B.I.L.'' to his 1943 "War Criminals" essay cited in the above paragraph titled, "Collective and Individual Responsibility for Acts of State in International Law," Kelsen presented his thoughts on the distinction between the doctrine of ''
respondeat superior
''Respondeat superior'' (Latin: "let the master answer"; plural: ''respondeant superiores'') is a doctrine that a party is responsible for (has vicarious liability for) acts of their agents.''Criminal Law - Cases and Materials'', 7th ed. 2012, W ...
'' and the acts of State doctrine when used as a defense during the prosecution of war crimes. On page 228 of the essay Kelsen states that, "Acts of State are acts of individuals performed by them in their capacity as organs of the State, especially by that organ which is called the Government ''of'' the State. These acts are performed by individuals who belong to the Government as the
head of State
A head of state (or chief of state) is the public persona who officially embodies a state Foakes, pp. 110–11 " he head of statebeing an embodiment of the State itself or representatitve of its international persona." in its unity and l ...
, or members of the cabinet, or are ''acts performed at its command or with the authorization of the Government''." Yoram Dinstein of Hebrew University in Jerusalem has taken exception to Kelsen's formulation in his book ''The Defense of 'Obedience to Superior Orders' in International Law'', reprinted in 2012 by Oxford University Press, dealing with Kelsen's specific attribution of acts of State.
Shortly after the initiation of the drafting of the UN Charter on 25 April 1945 in San Francisco, Kelsen began the writing of his extended 700-page treatise on the United Nations as a newly appointed professor at the University of California at Berkeley (''The Law of the United Nations'', New York 1950). In 1952, he also published his book-length study about international law entitled ''Principles of International Law'' in English, and reprinted in 1966. In 1955, Kelsen turned to a 100-page essay, "Foundations of Democracy," for the leading philosophy journal ''Ethics''; written during the height of Cold War tensions, it expressed a passionate commitment to the Western model of democracy over soviet and national-socialist forms of government.
This 1955 essay by Kelsen on democracy was also important for summarizing his critical stance towards the 1954 book on politics by his former student in Europe
Eric Voegelin
Eric Voegelin (born Erich Hermann Wilhelm Vögelin, ; 1901–1985) was a German-American political philosopher. He was born in Cologne, and educated in political science at the University of Vienna, where he became an associate professor of poli ...
. Following this, in Kelsen's book entitled ''A New Science of Politics'' (Ontos Verlag, reprinted in 2005, 140pp, originally published 1956), Kelsen enumerated a point by point criticism of the excessive idealism and ideology which he saw as prevailing in Voegelin's book on politics. This exchange and debate has been documented in the appendix to the book, written by the author on Voegelin, Barry Cooper, entitled ''Voegelin and the Foundations of Modern Political Science'' from 1999. Kelsen's other book defending his realist position regarding the issue of the separation of state and religion as opposed to that of Voegelin's position on this issue was published posthumously under the title ''Secular Religion.'' Kelsen's objective in part was to safeguard the importance of the responsible separation of state and religion for those sympathetic to religion and concerned with this separation. Kelsen's 1956 book was followed in 1957 by a collection of essays on justice, law and politics, most of them previously published in English. It had originally been published in the German language in 1953.
The Pure Theory of Law
Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
and
public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
, especially in Europe and Latin America although less so in common-law countries.
Kelsen's Pure Theory of Law aims to describe law as a hierarchy of binding norms, while refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory is the notion of a 'basic norm (''
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
'')'a hypothetical norm, presupposed by the theory, from which in a hierarchy of empowerments all 'lower' norms in a
legal system
The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...
, from
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
downward, are understood to derive their validity, hence their authority or 'bindingness'. This is not logical validity (i.e. of deduction), but 'legal validity'; a norm is legally 'valid' if and only if the organ creating it has been so empowered by a higher norm. Public international law is understood as similarly hierarchical. In this way, Kelsen contends, the validity of legal norms (their specifically 'legal' character) can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation. The Pure Theory is intended as rigorous
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
, excluding any idea of
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
.
Kelsen's main statement of his theory, his book ''Reine Rechtslehre'', was published in two editions, far apart: in 1934, while he was in exile in Geneva, and a second, much expanded edition after he had formally retired from the
University of California, Berkeley
The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant u ...
. The second edition appeared in English translation in 1967, as ''Pure Theory of Law''; the first edition appeared in English translation in 1992, as ''Introduction to the Problems of Legal Theory''. The current translation of the second edition, in omitting many footnotes, obscures the extent to which the Pure Theory is both philosophically grounded and responsive to earlier theories of law; a new translation is in preparation.
Kelsen wrote primarily in German, as well as in French and in English. His complete works are being published, both in hard copy and online, as the ''Hans Kelsen Werke'', planned to run to 32 volumes with completion in 2042.
Kelsen's widespread contributions to legal theory
Kelsen's theory both drew from and has been developed by scholars in his homelands, notably the Vienna School in
Austria
Austria, , bar, Östareich officially the Republic of Austria, is a country in the southern part of Central Europe, lying in the Eastern Alps. It is a federation of nine states, one of which is the capital, Vienna, the most populous ...
and the Brno School led by František Weyr in
Czechoslovakia
, rue, Чеськословеньско, , yi, טשעכאסלאוואקיי,
, common_name = Czechoslovakia
, life_span = 1918–19391945–1992
, p1 = Austria-Hungary
, image_p1 ...
. It is stated that in the English-speaking world, and notably the "Oxford school" of jurisprudence, Kelsen's influence can be seen particularly in the work of
H. L. A. Hart
Herbert Lionel Adolphus Hart (18 July 190719 December 1992), known simply as H. L. A. Hart, was an English legal philosopher. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His ...
,
John Gardner,
Leslie Green
Leslie William Green (6 February 1875 – 31 August 1908) was an English architect. He is best known for his design of iconic stations constructed on the London Underground railway system in central London during the first decade of the 20t ...
, and
Joseph Raz
Joseph Raz (; he, יוסף רז; born Zaltsman; 21 March 19392 May 2022) was an Israeli legal, moral and political philosopher. He was an advocate of legal positivism and is known for his conception of perfectionist liberalism. Raz spent mos ...
, and "in the backhanded compliment of strenuous criticism, also in the work of
John Finnis
John Mitchell Finnis, , (born 28 July 1940) is an Australian legal philosopher, jurist and scholar specializing in jurisprudence and the philosophy of law. He is the Biolchini Family Professor of Law, emeritus, at Notre Dame Law School and a P ...
".
Among the principal other writers in English on Kelsen are
Robert S. Summers,
Neil MacCormick
Sir Donald Neil MacCormick (27 May 1941 – 5 April 2009) was a Scottish legal philosopher and politician. He was Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh from 1972 until 2008. He was a ...
and Stanley L. Paulson. Among Kelsen's principal critics today is Joseph Raz, who has excoriated the reading of Nuremberg and the war crimes trials which Kelsen had interpreted in a consistent manner throughout the 1930s and 1940s.
Some mystery surrounds the belated publication, in 2012, of Kelsen's ''Secular Religion''. The text was begun in the 1950s, as an attack on work by his former pupil
Eric Voegelin
Eric Voegelin (born Erich Hermann Wilhelm Vögelin, ; 1901–1985) was a German-American political philosopher. He was born in Cologne, and educated in political science at the University of Vienna, where he became an associate professor of poli ...
. In the early 1960s an expanded version was set up in proof but was withdrawn at Kelsen's insistence (and considerable personal expense in reimbursing the publisher), for reasons that have never become clear. However, the Hans Kelsen Institute eventually decided that it should be published. It is a vigorous defense of modern science against all, including Voegelin, who wished to overturn the accomplishments of the Enlightenment by demanding that science be guided by religion. Kelsen seeks to expose contradictions in their claim that modern science, after all, rests upon the same sorts of assumption as religionthat it constitutes forms of "new religion" and so should not complain when old religion is brought back in. Four major areas of Kelsen's contributions to legal theory over his lifetime included the following areas of (i) judicial review, (ii) hierarchical law, (iii) the de-ideologicalization of positive law to strongly disassociate all reference to natural law, and (iv) the clear delineation of the science of law and legal science in twentieth century modern law.
Judicial review
Judicial review for Kelsen in the twentieth century was part of a tradition inherited from the common law tradition based upon the American constitutional experience as introduced by John Marshall. By the time the principle had reached Europe and specifically Kelsen, the issue of the codification of Marshall's common law version of judicial review into its form of constitutionally legislated law became an explicit theme for Kelsen. In drafting the constitutions for both Austria and Czechoslovakia, Kelsen chose to carefully delineate and limit the domain of judicial review to a narrower focus than was originally accommodated by John Marshall. Kelsen did receive a lifetime appointment to the court of judicial review in Austria and remained on this court for almost an entire decade during the 1920s.
Hierarchical law
Hierarchical law as a model for understanding the structural description of the process of understanding and applying the law was central for Kelsen and he adopted the model directly from his colleague Adolf Merkl at the University of Vienna. The main purposes of the hierarchical description of the law was three-fold for Kelsen. First, it was essential to understanding his celebrated static theory of law as elaborated in Chapter four of his book on the ''Pure Theory of Law'' (see subsection above). In its second edition, this chapter on the static theory of the law was almost one hundred pages in length and represented a comprehensive study of law capable of standing as an independent subject for research for legal scholars in this area of specialization. Second, it was a measure of relative centralization or decentralization. Third, a fully centralized system of law would also correspond to a unique Grundnorm or Basic norm which would not be inferior to any other norm in the hierarchy due to its placement at the utmost foundation of the hierarchy (see Grundnorm section below).
The de-ideologicalization of positive law
Kelsen, during the time period of his education and legal training in fin-de-siecle Europe, had inherited a highly ambiguous definition of natural law which could be presented as having metaphysical, theological, philosophical, political, religious, or ideological components depending on any one of numerous sources who might desire to utilize the term. For Kelsen, this ambiguity in the definition of natural made it unusable in any practical sense for a modern approach to understanding the science of law. Kelsen explicitly defined positive law to deal with the many ambiguities he associated with the use of natural law in his time, along with the negative influence which it had upon the reception of what was meant even by positive law in contexts apparently removed from the domain of influence normally associated with natural law.
Science of law
The redefinition of the science of law and legal science to meet the requirements of modern law in the twentieth century was of significant concern to Kelsen. Kelsen wrote book-length studies detailing the many distinctions to be made between the natural sciences and their associated methodology of causal reasoning in contrast to methodology of
normative
Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good, desirable, or permissible, and others as bad, undesirable, or impermissible. A norm in ...
reasoning which he saw as more directly suited to the legal sciences. The science of law and legal science were key methodological distinctions which were of high importance to Kelsen in the development of the pure theory of law and the general project of removing ambiguous ideological elements from having undue influence on the development of modern twentieth century law. In his last years, Kelsen turned to a comprehensive presentation of his ideas on norms. The unfinished manuscript was published posthumously as ''Allgemeine Theorie der Normen'' (General Theory of Norms).
Political philosophy
During the last 29 years of his life at the University of California, Kelsen's appointment at the University and his affiliation was primarily with the Department of Politics and not with the School of Law. This is strongly reflected in his many writings in the field of political philosophy both before and after joining the faculty at Berkeley. In fact, Kelsen's very first book (see Section above) was written about the
political philosophy
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships between them. Its topics include politics, l ...
of Dante Alighieri and it was only with his second book that Kelsen started to write book length studies about the philosophy of law and its practical applications. Baume speaks of Kelsen's political philosophy concerning judicial review as coming closest to Ronald Dworkin and John Hart Ely among the scholars active after the end of Kelsen's life.
In order to gain a useful understanding of the breadth of Kelsen's interests in political philosophy, it is informative to examine Charles Covell's book titled ''The Redefinition of Conservatism'' from the 1980s in which Covell engages Kelsen in the philosophical context of Ludwig Wittgenstein, Roger Scruton, Michael Oakeshott, John Casey and Maurice Cowling. Although Kelsen's own political preferences were generally aimed towards more liberal forms of expression, Covell's perspective of modern liberal conservatism in his book provides an effective foil for bringing to light Kelsen's own points of emphasis within his own orientations in political philosophy. As Covell summarizes them, Kelsen's interests in political philosophy ranged across the fields of "practical perspectives underlying morality, religion, culture, and social custom."
As summarized by Sandrine Baume in her recent book on Kelsen, "In 1927
elsen
Elsen is a village in Germany that forms a part of the city Paderborn in North Rhine-Westphalia
North Rhine-Westphalia (german: Nordrhein-Westfalen, ; li, Noordrien-Wesfale ; nds, Noordrhien-Westfalen; ksh, Noodrhing-Wäßßfaale), common ...
recognized his debt to Kantianism on this methodological point that determined much of his pure theory of law: 'Purity of method, indispensable to legal science, did not seem to me to be guaranteed by any philosopher as sharply as by Kant with his contrast between Is and Ought. Thus for me, Kantian philosophy was from the very outset the light that guided me.'" Kelsen's high praise of Kant in the absence of any specific neo-Kantians is matched among more recent scholars by John Rawls of Harvard University. Both Kelsen and Rawls also have made strong endorsements of Kant's books on ''
Perpetual Peace
''Perpetual Peace: A Philosophical Sketch'' (german: Zum ewigen Frieden. Ein philosophischer Entwurf) is a 1795 book authored by German philosopher Immanuel Kant. In the book, Kant advances ideas that have subsequently been associated with demo ...
'' (1795) and ''Idea for a Universal History'' (1784). In his book titled ''What is Justice?'', Kelsen indicated his position concerning social justice stating, "
ppose that it is possible to prove that the economic situation of a people can be improved so essentially by so-called planned economy that social security is guaranteed to everybody in an equal measure; but that such an organization is possible only if all individual freedom is abolished. The answer to the question whether planned economy is preferable to free economy depends on our decision between the values of individual freedom and social security. Hence, to the question of whether individual freedom is a higher value than social security or vice versa, only a subjective answer is possible,"
Five principal areas of concern for Kelsen in the area of political philosophy can be identified among his many interests for their centrality and the effect which they exerted over virtually his entire lifetime. These are; (i) Sovereignty, (ii) Law-state identity theory, (iii) State-society dualism, (iv) Centralization-decentralization, and (v) Dynamic theory of law.
Sovereignty
The definition and redefinition of sovereignty for Kelsen in the context of twentieth century modern law became a central theme for the political philosophy of Hans Kelsen from 1920 to the end of his life. The sovereignty of the state defines the domain of jurisdiction for the laws which govern the state and its associated society. The principles of explicitly defined sovereignty became of increasing importance to Kelsen as the domain of his concerns extended more comprehensively into international law and its manifold implications following the conclusion of WWI. The very regulation of international law in the presence of asserted sovereign borders either presented a major barrier for Kelsen in the application of principles in international law, or represented areas where the mitigation of sovereignty could greatly facilitate the progress and effectiveness of international law in geopolitics.
Law–state identity theory
The understanding of Kelsen's highly functional reading of the identity of law and state continues to represent one of the most challenging barriers to students and researchers of law approaching Kelsen's writings for the first time. After Kelsen completed his doctoral dissertation on the political philosophy of Dante, he turned to the study of Jellinek's dualist theory of law and state in Heidelberg in the years leading to 1910. Kelsen found that although he had a high respect for Jellinek as a leading scholar of his day, that Jellinek endorsement of a dualist theory of law and state was an impediment to the further development of a legal science which would be supportive of the development of responsible law throughout the twentieth century in addressing the requirements of the new century for the regulation of its society and of its culture. Kelsen's highly functional reading of the state was the most compatible manner he could locate for allowing for the development of positive law in a manner compatible with the demands of twentieth century geopolitics.
State–society distinctions and delineations
After accepting the need for endorsing an explicit reading of the identity of law and state, Kelsen remained equally sensitive to recognizing the need for society to nonetheless express tolerance and even encourage the discussion and debate of philosophy, sociology, theology, metaphysics, sociology, politics, and religion. Culture and society were to be regulated by the state according to legislative and constitutional norms. Kelsen recognized the province of society in an extensive sense which would allow for the discussion of religion, natural law, metaphysics, the arts, etc., for the development of culture in its many and varied attributes. Very significantly, Kelsen came to the strong inclination in his writings that the discussion of justice, as one example, was appropriate to the domain of society and culture, though its dissemination within the law was highly narrow and dubious. A twentieth century version of modern law, for Kelsen, would need to very carefully and appropriately delineate the responsible discussion of philosophical justice if the science of law was to be allowed to progress in an effective manner responding to the geopolitical and domestic needs of the new century.
Centralization and decentralization
A common theme which was unavoidable for Kelsen within the many applications he encountered of his political philosophy was that of centralization and decentralization. For Kelsen, centralization was a philosophically key position to the understanding of the pure theory of law. The pure theory of law is in many ways dependent upon the logical regress of its hierarchy of superior and inferior norms reaching a centralized point of origination in the hierarchy which he termed the
Basic norm
Basic norm (german: Grundnorm) is a concept in the ''Pure Theory of Law'' created by Hans Kelsen, a jurist and Philosophy of Law, legal philosopher. Kelsen used this word to denote the basic Norm (philosophy), norm, order, or rule that forms an un ...
, or,
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
. In Kelsen's general assessments, centralization was to often be associated with more modern and highly developed forms of enhancements and improvements to sociological and cultural norms, while the presence of decentralization was a measure of more primitive and less sophisticated observations concerning sociological and cultural norms.
Dynamic theory of law
The dynamic theory of law is singled out in this subsection discussing the political philosophy of Hans Kelsen for the very same reasons which Kelsen applied in separating its explication from the discussion of the static theory of law within the pages of ''Pure Theory of Law''. The dynamic theory of law is the explicit and very acutely defined mechanism of state by which the process of legislation allows for new law to be created, and already established laws to be revised, as a result of political debate in the sociological and cultural domains of activity. Kelsen devotes one of his longest chapters in the revised version of ''Pure Theory of Law'' to discussing the central importance he associated with the dynamic theory of law. Its length of nearly one hundred pages is suggestive of its central significance to the book as a whole and may almost be studied as an independent book in its own right complementing the other themes which Kelsen covers in this book.
Reception and criticism
This section delineates the reception and criticism of Kelsen's writings and research throughout his lifetime. It also explicates the reaction of his scholarly reception after his death in 1973 concerning his intellectual legacy. Throughout his lifetime, Kelsen maintained a highly authoritative position representing his wide range of contributions to the theory and practice of law. Few scholars in the study of law were able to match his ability to engage and often polarize legal opinion during his own lifetime and extending well into his legacy reception after his death. One significant example of this involves his introduction and development of the term ''Grundnorm'' which can be briefly summarized to illustrate the diverse responses which his opinion was able to often stimulate in the legal community of his time. The short version of its reception is illustrative of many similar debates with which Kelsen was involved at many points in his career and may be summarized as follows.
The ''Grundnorm''
Regarding Kelsen's original use of the term
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
, its closest antecedent appears in writings of his colleague Adolf Merkl at the University of Vienna. Merkl was developing a structural research approach for the understanding of law as a matter of the hierarchical relationship of norms, largely on the basis of their being either superior, the one to the other, or inferior with respect to each other. Kelsen adapted and assimilated much of Merkl's approach into his own presentation of the ''Pure Theory of Law'' in both its original version (1934) and its revised version (1960). For Kelsen, the importance of the
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
was in large measure two-fold since it importantly indicated the logical regress of superior relationships between norms as they led to the norm which ultimately would have no other norm to which it was inferior. Its second feature was that it represented the importance which Kelsen associated with the concept of a fully centralized legal order in contrast to the existence of decentralized forms of government and representing legal orders.
Another form of the reception of the term originated from the fairly extended attempt to read Kelsen as a neo-Kantian following his early engagement with
Hermann Cohen
Hermann Cohen (4 July 1842 – 4 April 1918) was a German Jewish philosophy, philosopher, one of the founders of the University of Marburg, Marburg school of neo-Kantianism, and he is often held to be "probably the most important Jewish ph ...
's work in 1911, the year his ''
Habilitation
Habilitation is the highest university degree, or the procedure by which it is achieved, in many European countries. The candidate fulfills a university's set criteria of excellence in research, teaching and further education, usually including a ...
'' dissertation on
public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
was published. Cohen was a leading neo-Kantian of the time and Kelsen was, in his own way, receptive to many of the ideas which Cohen had expressed in his published book review of Kelsen's writing. Kelsen had insisted that he had never used this material in the actual writing of his own book, though Cohen's ideas were attractive to him in their own right. This has resulted in one of the longest-running debates within the general Kelsen community as to whether Kelsen became a neo-Kantian himself after the encounter with Cohen's work, or if he managed to keep his own non-neo-Kantian position intact which he claimed was the prevailing circumstance when he first wrote his book in 1911.
The neo-Kantians, when pressing the issue, would lead Kelsen into discussions concerning whether the existence of such a
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
(Basic Norm) was strictly symbolic or whether it had a concrete foundation. This has led to the further division within this debate concerning the currency of the term
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
as to whether it should be read, on the one hand, as part and parcel of
Hans Vaihinger
Hans Vaihinger (; September 25, 1852 – December 18, 1933) was a German philosopher, best known as a Kant scholar and for his ''Die Philosophie des Als Ob'' ('' The Philosophy of 'As if), published in 1911 although its statement of basic ...
's "as-if" hypothetical construction. On the other hand, to those seeking a practical reading, the
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
corresponded to something directly and concretely comparable to a sovereign nation's federal constitution, under which would be organized all of its regional and local laws, and no law would be recognized as being superior to it.
In different contexts, Kelsen would indicate his preferences in different ways, with some neo-Kantians asserting that late in life Kelsen largely abided by the symbolic reading of the term when used in the neo-Kantian context, and as he has documented. The neo-Kantian reading of Kelsen can further be subdivided into three subgroups, with each representing their own preferred reading of the meaning of the
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
, which were identifiable as (a) the Marburg neo-Kantians, (b) the Baden neo-Kantians, and (c) his own Kelsenian reading of the neo-Kantian school (during his "analytico-linguistic" phase circa 1911–1915) with which his writings on this subject are often associated.
Reception during Kelsen's European years
This section covers Kelsen's years in Austria, Germany, Czechoslovakia and Switzerland. While still in Austria, Kelsen entered the debate on the versions of Public Law prevailing in his time by engaging the predominating opinions of
Jellinek Jellinek is a Germanized variant of the Czech name Jelínek meaning "little deer" (diminutive of ''jelen''). When used as a kinnui, it refers to the Biblical allusion to Naphtali. Notable people with the surname include:
* Adolf Jellinek (1821–1 ...
and Gerber in his 1911 Habilitation dissertation (see description above). Kelsen, after attending Jellinek's lectures in Heidelberg oriented his interpretation according to the need to extend Jellinek's research past the points which Jellinek had set as its limits. For Kelsen, the effective operation of a legal order required that it be separated from political influences in terms which exceeded substantially the terms which Jellinek had adopted as its preferred form. In response to his 1911 dissertation, Kelsen was challenged by the neo-Kantians, originally led by
Hermann Cohen
Hermann Cohen (4 July 1842 – 4 April 1918) was a German Jewish philosophy, philosopher, one of the founders of the University of Marburg, Marburg school of neo-Kantianism, and he is often held to be "probably the most important Jewish ph ...
, who maintained that there were substantial neo-Kantian insights which were open to Kelsen, which Kelsen himself did not appear to develop to the full extent of their potential interpretation as summarized in the section above. Sara Lagi in her recent book on Kelsen and his 1920s writings on democracy has articulated the revised and guarded reception of Jellinek by Kelsen. Kelsen was the principal author of the passages for the incorporation of judicial review in the Constitutions of Austria and Czechoslovakia during the 1910s largely on the model of John Marshall and the American Constitutional experience.
![Georg Jellinek](https://upload.wikimedia.org/wikipedia/commons/1/1b/Georg_Jellinek.jpg)
In addition to this debate, Kelsen had initiated a separate discussion with Carl Schmitt on questions relating to the definition of sovereignty and its interpretation in international law. Kelsen became deeply committed to the principle of the adherence of the state to the rule of law above political controversy, while Schmitt adhered to the divergent view of the state deferring to political fiat. The debate had the effect of polarizing opinion not only throughout the 1920s and 1930s leading up to WWII, but has also extended into the decades after Kelsen's death in 1973.
A third example of the controversies with which Kelsen was involved during his European years surrounded the severe disenchantment which many felt concerning the political and legal outcomes of WWI and the Treaty of Versailles. Kelsen believed that the blamelessness associated with Germany's political leaders and military leaders indicated a gross historical inadequacy of international law which could no longer be ignored. Kelsen devoted much of his writings from the 1930s and leading into the 1940s towards reversing this historical inadequacy which was deeply debated until ultimately Kelsen succeeded in contributing to the international precedent of establishing war crime trials for political leaders and military leaders at the end of WWII at Nuremberg and Tokyo.
Critical reception during his American years
This section covers Kelsen's years during his American years. Kelsen's participation and his part in the establishment of war crimes tribunals following WWII has been discussed in the previous section. The end of WWII and the start of the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
became a significant concern for Kelsen after 1940. For Kelsen, in principle, the United Nations represented in potential a significant phase change from the previous
League of Nations
The League of Nations (french: link=no, Société des Nations ) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference that ...
and its numerous inadequacies which he had documented in his previous writings. Kelsen wrote his 700-page treatise on the United Nations, along with a subsequent two hundred page supplement, which became a standard text book on studying the United Nations for over a decade in the 1950s and 1960s.
Kelsen also became a significant contributor to the Cold War debate in publishing books on Bolshevism and Communism, which he reasoned were less successful forms of government when compared to Democracy. This, for Kelsen, was especially the case when dealing with the question of the compatibility of different forms of government in relation to the ''Pure Theory of Law'' (1934, first edition).
The completion of Kelsen's second edition of his magnum opus on ''Pure Theory of Law'' published in 1960 had at least as large an effect upon the international legal community as did the first edition published in 1934. Kelsen was a tireless defender of the application legal science in defending his position and was constantly confronting detractors who were unconvinced that the domain of legal science was sufficient to its own subject matter. This debate has continued well into the twenty-first century as well.
Two critics of Kelsen in the United States were the legal realist Karl Llewellyn and the jurist Harold Laski. Llewellyn, as a firm anti-positivist against Kelsen stated, "I see Kelsen's work as utterly sterile, save in by-products that derive from his taking his shrewd eyes, for a moment, off what he thinks of as 'pure law.'" In his democracy essay of 1955, Kelsen took up the defense of representative democracy made by
Joseph Schumpeter
Joseph Alois Schumpeter (; February 8, 1883 – January 8, 1950) was an Austrian-born political economist. He served briefly as Finance Minister of German-Austria in 1919. In 1932, he emigrated to the United States to become a professor at Ha ...
in Schumpeter's book on democracy and capitalism. Although Schumpeter took a position unexpectedly favorable to socialism, Kelsen felt that a rehabilitation of the reading of Schumpeter's book more amicable to democracy could be defended and he quoted Schumpter's strong conviction that, to "realize the relative validity of one's convictions and yet stand for them unflinchingly," as consistent with his own defense of democracy. Kelsen himself made mixed statements concerning the extensiveness of the greater or lesser strict association of democracy and capitalism.
Critical reception of Kelsen's legacy after 1973
Many of the controversies and critical debates during his lifetime continued after Kelsen's death in 1973. Kelsen's ability to polarize opinion among established legal scholars continued to influence the reception of his writings well after his death. The formation of the European Union recalled many of his debates with Schmitt on the issue of the degree of centralization which would in principle be possible, and what the implications concerning state sovereignty would be once the unification was put into place. Kelsen's contrast with Hart as representing two distinguishable forms of legal positivism has continued to be influential in distinguishing between Anglo-American forms of legal positivism from Continental forms of legal positivism. The implications of these contrasting forms continues to be part of the continuing debates within legal studies and the application of legal research at both the domestic and the international level of investigation.
In her recent book on Hans Kelsen, Sandrine Baume identified Ronald Dworkin as a leading defender of the "compatibility of judicial review with the very principles of democracy." Baume identified John Hart Ely alongside Dworkin as the foremost defenders of this principle in recent years, while the opposition to this principle of "compatibility" was identified as Bruce Ackerman and Jeremy Waldron. Dworkin has been a long-time advocate of the principle of the moral reading of the Constitution whose lines of support he sees as strongly associated with enhanced versions of judicial review in the federal government. In Sandrine Baume's words, the opposing view to compatibility is that of "Jeremy Waldron and Bruce Ackerman, who look on judicial review as inconsistent with respecting democratic principles."
Hans Kelsen Institute and Hans Kelsen Research Center
For the occasion of Hans Kelsen's 90th birthday, the Austrian federal government decided on 14 September 1971 to establish a foundation bearing the name "Hans Kelsen-Institut". The Institut became operational in 1972. Its task is to document the ''Pure Theory of Law'' and its dissemination in Austria and abroad, and to inform about and encourage the continuation and development of the pure theory. To this end it produces, through the publishing house Manz, a book series that currently runs to more than 30 volumes. The Institut administers the rights to Kelsen's works and has edited several works from his unpublished papers, including ''General Theory of Norms'' (1979, translated 1991) and ''Secular Religion'' (2012, written in English). The Institut's database is free online with login registration. The founding directors of the Institut, Kurt Ringhofer and Robert Walter, held their posts until their deaths respectively in 1993 and 2010. The current directors are Clemens Jabloner (since 1993) and Thomas Olechowski (since 2011).
In 2006, the Hans-Kelsen-Forschungsstelle (Hans Kelsen Research Center) was founded under the direction of Matthias Jestaedt at the
Friedrich-Alexander University of Erlangen-Nuremberg. After Jestaedt's appointment at the
Albert-Ludwigs-University of Freiburg in 2011, the center was transferred there. The Hans-Kelsen-Forschungsstelle publishes, in cooperation with the Hans Kelsen-Institut and through the publishing house Mohr Siebeck, a historical-critical edition of Kelsen's works which is planned to reach more than 30 volumes; as of July 2013, the first five volumes have been published.
An extensive biography of Kelsen by Thomas Olechowski, ''Hans Kelsen: Biographie eines Rechtswissenschaftlers'' (''Hans Kelsen: Biography of a Legal Scientist''), was published in May 2020.
Honours and awards
* 1938: Honorary Member of the
American Society of International Law
The American Society of International Law (ASIL), founded in 1906, was chartered by the United States Congress in 1950 to foster the study of international law, and to promote the establishment and maintenance of international relations on the ba ...
* 1953: Karl Renner Prize
* 1960:
Feltrinelli Prize The Feltrinelli Prize (from the Italian "Premio Feltrinelli", also known as "International Feltrinelli Prize" or "Antonio Feltrinelli Prize") is an award for achievement in the arts, music, literature, history, philosophy, medicine, and physical and ...
* 1961:
Grand Merit Cross with Star of the Federal Republic of Germany
The Order of Merit of the Federal Republic of Germany (german: Verdienstorden der Bundesrepublik Deutschland, or , BVO) is the only federal decoration of Germany. It is awarded for special achievements in political, economic, cultural, intellect ...
* 1961:
Austrian Decoration for Science and Art
The Austrian Decoration for Science and Art (german: Österreichisches Ehrenzeichen für Wissenschaft und Kunst) is a state decoration of the Republic of Austria and forms part of the Austrian national honours system.
History
The "Austrian D ...
* 1966: Ring of Honour of the City of Vienna
* 1967:
* 1981: Kelsenstrasse in Vienna
Landstrasse (3rd District) named after him
Bibliography
* ''Das Problem der Souveränität und die Theorie des Völkerrechts'' (1920).
* ''Reine Rechtslehre'', Vienna 1934. ''Introduction to the Problems of Legal Theory'' (1934; Litschewski Paulson and Paulson trans.), Oxford 1992; the translators have adopted the subtitle, Einleitung in die rechtswissenschaftliche Problematik, in order to avoid confusion with the English translation of the second edition.
* ''Law and Peace in International Relations'', Cambridge (Mass.) 1942, Union (N.J.) 1997.
* ''Society and Nature,'' 1943, The Lawbook Exchange, Ltd. 2009
* ''Peace Through Law'', Chapel Hill 1944, Union (N.J.) 2000.
* ''The Political Theory of Bolshevism: A Critical Analysis'', University of California Press 1948, The Lawbook Exchange, Ltd. 2011.
* ''The Law of the United Nations''. First published under the auspices of The London Institute of World Affairs in 1950. With a supplement, ''Recent Trends in the Law of the United Nations''
951
Year 951 ( CMLI) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* King Berengar II of Italy seizes Liguria, with help from the feudal lord Oberto I. He re ...
A critical, detailed, highly technical legal analysis of the United Nations charter and organization. Originally published conjointly: New York: Frederick A. Praeger,
964
Year 964 ( CMLXIV) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
Byzantine Empire
* Arab–Byzantine War: Emperor Nikephoros II continues the reconquest of south-eastern Anatoli ...
* “Foundations of Democracy.” ''Ethics'' 66(1)1955: 1-101.
* ''Reine Rechtslehre'', 2nd edn Vienna 1960 (much expanded from 1934 and effectively a different book); Studienausgabe with amendments, Vienna 2017
* ''Pure Theory of Law'' (1960; Knight trans.), Berkeley 1967, Union (N.J.) 2002.
* ''Théorie pure du droit'' (1960; Eisenmann French trans.), Paris 1962.
* ''General Theory of Law and State'' (German original unpublished; Wedberg trans.), 1945, New York 1961, Clark (N.J.) 2007.
* ''What is Justice?'' Berkeley 1957.
* "The Function of a Constitution" (1964; Stewart trans.) in Richard Tur and William Twining (eds), ''Essays on Kelsen'', Oxford 1986; also in 5th and later editions of Lloyd's Introduction to Jurisprudence, London (currently 8th ed 2008).
* ''Essays in Legal and Moral Philosophy'' (Weinberger sel., Heath trans.), Dordrecht 1973.
* ''Allgemeine Theorie der Normen'' (ed. Ringhofer and Walter), Vienna 1979; see English translation in 1990 below.
* ''Die Rolle des Neukantianismus in der Reinen Rechtslehre: Eine Debatte zwischen Sander und Kelsen'' (German Edition) by Hans Kelsen and Fritz Sander (Dec 31, 1988).
* ''General Theory of Norms'' (1979; Hartney trans.), Oxford 1990.
* ''The Essence and Value of Democracy.'' Lanham, MD: Rowman & Littlefield, 2013. Translation of 1929 version of ''Vom Wesen und Wert der Demokratie.''
* ''Secular Religion: A Polemic against the Misinterpretation of Modern Social Philosophy, Science, and Politics as "New Religions"'' (ed. Walter, Jabloner and Zeleny), Vienna and New York 2012 (written in English), revised edition 2017.
See also
*
Legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
*
List of Austrian scientists
This is a list of Austrian scientists and scientists from the Austria of Austria-Hungary.
Economists
* Siegfried Becher, economist and government minister
*Eugen von Böhm-Bawerk
*Ernst Fehr
*Simon Gächter
*Friedrich Hayek, economist and social ...
*
List of famous Austrians
References
Sources
*
*
Further reading on Kelsen
* Sandrine Baume, ''Hans Kelsen and the Case for Democracy.''Colchester, UK: ECPR Press, 2012.
* Jochen von Bernstorff, ''The Public International Law Theory of Hans Kelsen: Believing in Universal Law.'' Cambridge University Press, 2010; translated from the original German edition, 2001.
* Uta Bindreiter, ''Why Grundnorm? A Treatise on the Implications of Kelsen's Doctrine.'' The Hague 2002.
* Ian Bryan, Peter Langford & John McGarry (eds.), ''The Reconstruction of the Juridico-Political: Affinity and Divergence in Hans Kelsen and Max Weber.'' Routledge, 2015.
* California Law Review (ed.), ''Essays in Honor of Hans Kelsen, Celebrating the 90th Anniversary of His Birth.'' South Hackensack (1971).
* Óscar Correas, ''El otro Kelsen." Mexico: UNAM, 198
* Sara Lagi, ''Democracy in Its Essence Hans Kelsen as A Political Thinker.'' Lexington Books, 2020.
* Peter Langford, Ian Bryan and John McGarry (eds.), ''Kelsenian Legal Science and the Nature of Law.'' Springer, 2017.
* Keekok Lee, ''The Legal-Rational State: A Comparison of Hobbes, Bentham and Kelsen'' (Avebury Series in Philosophy) (Sep 1990).
* George Arthur Lipsky, ''Law and politics in the world community: Essays in Hans Kelsen's pure theory and related problems in international law.'' (1953).
* Ronald Moore, ''Legal Norms and Legal Science: a Critical Study of Hans Kelsen's Pure Theory of Law.'' Honolulu 1978.
* Thomas Olechowski, ''Hans Kelsen. Biographie eines Rechtswissenschaftlers.'' Tübingen 2020.
* Stanley L. Paulson and Bonnie Litschewski Paulson (eds), ''Normativity and Norms: Critical Perspectives on Kelsenian Themes.'' Oxford 1998.
* Iain Stewart, 'The Critical Legal Science of Hans Kelsen' (1990) 17 ''Journal of Law and Society'' 273-308.
External links
*
Hans Kelsen-Institut, ViennaHans-Kelsen-Forschungsstelle, FreiburgBiographical note 1Biographical note 2*
{{DEFAULTSORT:Kelsen, Hans
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