Hans Kelsen

Kelsen, Hans (1881-1973) Austrian jurist and philosopher of law. Kelsen is known for the most rigorous development of a ‘positivist’ theory of law, i.e. one that rigorously excludes from its analysis any ethical, political, or historical considerations, and finds the essence of the legal order in the ‘black letter’ or laid-down law. A system of law is based on a Grundnorm or ground rule, from which flows the validity of other statements of law in the system. The ground rule might be that some particular dictates or propositions, such as those of the sovereign, are to be obeyed. The Grundnorm can only be changed by political revolution. The theory is best known in its development in the Allgemeine Staatslehre (1925, trs. and revised as General Theory of Law and State, 1945).

Hans Kelsen was a European legal philosopher and teacher who emigrated to the United States in 1940 after leaving Nazi Germany. Kelsen is most famous for his studies on law and especially for his idea known as the pure theory of the law.

Kelsen was born in Prague, Czechoslovakia, on October 11, 1881. He studied at several universities, including Berlin, Heidelberg, and Vienna. He received a doctor of laws degree from Vienna in 1906 and began teaching at the school in 1911. He taught public law and jurisprudence at Vienna until 1930, when he moved to Germany to teach at the University of Cologne. There he taught international law and jurisprudence and served as dean for two years.

With the rise of the Nazi government, he left Germany and emigrated to Switzerland in 1933. He taught at the Graduate Institute of International Studies of the University of Geneva until 1940. He accepted a position as lecturer at the Harvard University Law School the same year, and relocated to the United States. Later in 1940 he accepted a teaching position at the University of California at Berkeley. He remained at Berkeley until his retirement in 1952.

Kelsen's pure theory of the law is fairly abstract. Its objective is knowledge of that which is essential to law; therefore, the theory does not deal with that which is changing and accidental, such as ideals of justice. Kelsen believed that law is a science that deals not with the actual events of the world (what is) but with norms (what ought to be). The legal relation contains the threat of a sanction from an authority in response to a certain act. The legal norm is a relation of condition and consequence: if a certain act is done, a certain consequence ought to follow.

In this theory a legal system is made of a hierarchy of norms. Each norm is derived from its superior norm. The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest basic norm. The Grundnorm is not deduced from anything else but is assumed as an initial hypothesis. A norm is a valid legal norm only because it has been created according to a definite rule.

The theory is independent of morality. It does not matter which particular Grundnorm is adopted by a legal order. All that matters is that this basic norm has a minimum effectiveness: it must command a certain amount of obedience, since the effectiveness of the total legal order is necessary for the validity of its norms.

Kelsen received acclaim for authoring many publications, including General Theory of Law and State (1945), The Law of the United Nations (1950-51), Principles of International Law (1952), and What Is Justice? (1957).

He died April 20, 1973, in Berkeley, California.

Hans Kelsen

Hans Kelsen (October 11, 1881 – April 19, 1973) was an Austrian-American jurist.

Biography

Kelsen was born in Prague to Jewish parents. He moved to Vienna with his family when he was two years old. Having graduated from the Akademisches Gymnasium, he studied law at the University of Vienna, taking his doctorate in 1906. In 1911, he achieved his habilitation (license to hold university lectures) in public law and legal philosophy and published his first major work, Main Problems in the Theory of Public Law (Hauptprobleme der Staatsrechtslehre).

In 1912, Kelsen married Margarete Bondi, and the couple had two daughters.

In 1919, he became full professor of public and administrative law at the University of Vienna. He established and edited the Journal of Public Law (Zeitschrift für Öffentliches Recht) in Vienna. At the behest of Chancellor Karl Renner, Kelsen worked on drafting a new Austrian Constitution, enacted in 1920. The document still forms the basis of Austrian constitutional law to this day. Kelsen was appointed to the Constitutional Court, for a life term. In 1925, he published General Political Theory (Allgemeine politische Theorie) in Berlin.

Following increasing political controversy about some positions of the Constitutional Court (especially about divorce) and an increasingly conservative climate, Kelsen, who was considered a Social Democrat, although not a party member, was removed from the court in 1930.

Kelsen accepted a professorship at the University of Cologne in 1930. When the Nazis came to power in Germany in 1933, he was removed from his post and moved to Geneva, Switzerland and taught international law at the Graduate Institute of International Studies from 1934 to 1940.

In 1934, he published the first edition of Pure Theory of Law (Reine Rechtslehre). In Geneva he became more interested in international law. Until the German occupation of Czechoslovakia, he was also professor at the German University of Prague.

In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley (Boalt Hall) in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations. In 1953-54, he was visiting Professor of International Law at the United States Naval War College.

Kelsen's main legacy is as the inventor of the modern European model of constitutional review, first used in the Austrian First Republic, then in the Federal Republic of Germany, Italy, Spain, Portugal, and later many countries of Central and Eastern Europe. The Kelsenian court sets up special constitutional courts, which have sole responsibility over constitutional disputes; this is quite different from the American system of judicial review.

Legal theory

Kelsen is considered one of the preeminent jurists of the 20th century. His legal theory, a very strict and scientifically understood type of legal positivism, is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based.

His theory has followers among scholars of public law world-wide. His disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In the English-speaking world, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both departed from Kelsen's positivism in decisive ways.

Kelsen was a negative influence on Carl Schmitt, who criticized Kelsen's work on sovereignty in Political Theology and elsewhere. In turn, Kelsen wrote that only the belief in a "theology of the State" could justify the refusal to acknowledge the binding nature of international law upon "sovereign" states. For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty nothing else than what we have purposely put into its definition."^[1]

See also

• Legal positivism
• List of Austrian scientists
• List of famous Austrians

References

1. ^ Hans Kelsen, Peace Through Law (Chapel Hill, NC, 1944), quoted in Mark Mazower, Dark Continent (Vintage/Random House, 1998), p. 198

External links

• biographical note 1

• biographical note 2

• biographical note 3

• Critics

• bibliographical note

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