Hans Kelsen

Hans Kelsen (October 11, 1881 – April 19, 1973) was an Austrian-American jurist, legal philosopher, teacher, and writer on international law, who formulated the “pure theory” of law. Because of his family's Jewish origins, he was obliged to disrupt his career several times and move from country to country, but this enabled him to influence and associate with legal scholars from all over the world. As a professor of law in Vienna, he published several works on public law. In 1919, Kelsen was asked to write the constitution, which the Austrian Republic subsequently adopted in 1920, and he served on the Austrian Constitutional Court until he lost his seat for political reasons. He then went to Cologne, where he taught and wrote about international law until the Nazi occupation forced his family to move to Switzerland. In 1940, they immigrated to the United States, where he taught until 1952, and served as legal adviser to the United Nations War Crimes Commission. His The Law of the United Nations, a nine-hundred-page study on the Security Council, was reprinted several times.

Kelsen wrote almost four hundred works on legal philosophy. He rejected natural law theory in Allgemeine Staatslehre (General Theory of Law and State; 1925) and Reine Rechtslehre (Introduction to the Problems of Legal Theory; 1934). Kelsen's own view, most fully developed in the posthumous Allgemeine Theorie der Normen (General Theory of Norms; 1975), traced the legitimacy of legal legislation back to a fundamental "ground rule" (German,Grundnorm) whose universal status is independent of morality. Kelsen's "pure theory" was a Kantian interpretation of legal positivism. The theory of Hans Kelsen remains an essential point of reference in the world of legal thought.

Biography

Kelsen was born in Prague, Czech Republic, on October 11, 1881. When he was three years old, his family, of German-speaking, Jewish and middle-class origins, moved to Vienna, where Kelsen pursued his academic studies. Though he was primarily interested in philosophy, literature, logic, mathematics, and natural science, he studied law at the University of Vienna, taking his doctorate in 1906. His knowledge in these areas influenced much of his work. Although an agnostic, Kelsen converted to Catholicism in 1905 in order to ensure that his family’s Jewish background would not jeopardize his ambition to lecture at university. His Jewish ancestry presented difficulties for him on numerous occasions. In 1905, he also published his first book, Die Staatslehre des Dante Alighieri (Dante Alighieri's Theory of the State). In 1908, he attended a seminar in Heidelberg led by Georg Jellinek, an authority in public law. 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), a 700-page study on the theory of public law.

In 1912, Kelsen married Margarete Bondi; the couple had two daughters. In 1914, he established and edited the Austrian Journal of Public Law (three volumes). During World War I, Kelsen served as legal adviser to the war minister and acted as adviser to the military and justice administration. In 1918, he became associate professor of law at the University of Vienna, and in 1919, he was made full professor of public and administrative law. For the next ten years he conducted research and taught law. Among his students were the legal theorists Adolf Merkl, Alfred Verdross, Felix Kaufmann, Fritz Sander, Erich Voegelin, Alf Ross, Charles Eisenmann, Luis Legaz y Lacambra, and Franz Weyr, who formed the cultural movement known as the Wiener Schule. Kelsen also associated with scholars like Otto Bauer, Max Adler, Joseph Schumpeter, and Ludwig van Mises. Politically, he continued to remain neutral, although he sympathized with the Social Democrats.

In 1919, Kelsen received academic recognition as the founder and editor of the Journal of Public Law, and was asked to draft the new Austrian Constitution. The Constitution was adopted in 1920, and has remained unchanged in its fundamental principles. Kelsen emphasized one particular aspect of the new Constitution, the justiciability (the substantial legal efficacy) of the Constitutional Court. In 1925, Kelsen published General Political Theory (Allgemeine politische Theorie) in Berlin.

Kelsen was appointed a member of the Austrian Constitutional Court, and influenced many of its rulings. In 1930, Kelsen lost his place on the Court for political reasons. Austria's administrative authorities permitted remarriage in Catholic Austria, but the lower courts considered these dispensations invalid. Led by Kelsen, the Constitutional Court overturned the rulings of the lower courts, but in the end, the Christian Social Party won the case. The resulting political attacks on Kelsen were so virulent that he moved to Cologne, where he taught international law at the university. Until then, he had mainly examined the relationship between state law and international law; he now began to focus on positive international law and the concept of sovereignty. In 1931, he published Wer soll der Hüter der Verfassung sein? (Who should be the Guardian of the Constitution?) a reply to Carl Schmitt, and in 1932, he delivered his second series of lectures in The Hague.

When the Nazis seized power in 1933, Kelsen was removed from his position at the University of Cologne. With his wife and two daughters, he left for Geneva in the autumn of 1933 to start a new academic career at the Institut Universitaire des Hautes Etudes International. Despite having to teach in a foreign language, Kelsen found this to be a fruitful period. In Geneva, he associated with Georges Scelle, William Rappard, Paul Manthoux, Maurice Bourquin, Guglielmo Ferrero, Paul Guggenheim, and Hans Wehberg. He held courses and wrote on themes such as the transformation of international law into state law, the revision of the Covenant of the League of Nations, and customary law.

In 1934, Kelsen published a study in both French and German on legal technique in international law and the legal process. The same year he published Pure Theory of Law (Reine Rechtslehre) elaborating a substantial part of his theory of international law: The hierarchical levels of international norms and the basic norm, international law as a primitive legal system, obligations and rights in international law, the unity of international law and state law, the relation between the two systems of norms, the monistic and dualistic theory, the primacy of the state legal system, the contradictions between the two systems, the state as the organ of the international legal community, the Pure Theory and the development of world law. Besides teaching in Geneva, Kelsen taught international law at the University of Prague, until strong anti-Semitic sentiments among students and overt harassment made it impossible for him to continue.

At the beginning of World War II, convinced that Switzerland would be involved in the conflict, Kelsen decided to leave for the United States, though he was almost sixty years old and had only a basic knowledge of English. From 1940-1942, Kelsen worked as a research associate at Harvard Law School and delivered the Oliver Wendell Holmes Lectures published in 1942, as Law and Peace in International Relations. In 1942, recommended by the American jurist Roscoe Pound, he became visiting professor in the Department of Political Science at the University of California, Berkeley, and became an American citizen. From 1945-1952, he was full professor of international law at Berkeley, where the environment was conducive to his intense and productive activities. In 1944-1945, the themes covered in his lectures included the origins of legal institutions, obligatorische Gerichtsbarkeit, collective and individual responsibility, the international legal statute of Germany, the principle of sovereign equality, and a comparison of the Covenant of the League of Nations and the Charter of the United Nations. During this period he published Peace through Law (1944) and the General Theory of Law and State (1945). In 1945, he became legal adviser to the United Nations War Crimes Commission in Washington, and was involved in preparing the legal and technical aspects of the Nuremberg trial.

Kelsen also devoted considerable attention to the maintenance of peace and international cooperation, especially in relation to the Charter of the United Nations, and in 1950, published The Law of the United Nations, a study on the Security Council, examining questions of membership, organization, and the legal status in general, sanctions and the functions of the Organization. It was reprinted several times until 1966, and though outdated in many respects today, was cited in much of the literature bearing on the Charter. In 1951, Kelsen held courses on international organizations in Seattle.

After retiring in 1952, Kelsen published his seminal work, Principles of International Law, a systematic study of the most important aspects of international law, including international delicts (offenses against the law) and sanctions, reprisals, the spheres of validity and the essential function of international law, and creation and application of international law and national law. He continued to travel all over the world, teaching and giving conferences as visiting professor in Geneva, Newport, The Hague (where he gave his third series of lectures in 1953), Vienna, Copenhagen, Stockholm, Helsingfors, Edinburgh and Chicago. He received 11 honorary doctorates (Utrecht, Harvard, Chicago, Mexico, Berkeley, Salamanca, Berlin, Vienna, New York, Paris, Salzburg) and innumerable academic awards. Hans Kelsen died in Berkeley on April 19, 1973, at the age of 92.

Thought and works

Hans Kelsen wrote almost four hundred works during his productive life, some of which have been translated into twenty-four languages. In 1971, as a celebration of his ninetieth birthday, the Austrian government founded the Hans Kelsen Institute in Vienna to house most of his original writings and maintain this important cultural heritage. (The Kelsen Institute produced the first edition of the path-breaking General Theory of Norms in 1975). Kelsen’s influence continues to be felt in a number of areas, such as the general theory of law ("Pure Theory of Law"), critical legal positivism (constitutional law and international law), philosophy of law (issues of justice, natural law), sociology (causality and retribution), political theory (democracy, socialism, Bolshevism) and critiques of ideology. The thought of Hans Kelsen remains an essential point of reference in the world of legal thought.

Legal positivism

Kelsen is considered one of the preeminent jurists of the twentieth century. His legal theory, a very strict and scientific 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.

Kelsen's “pure theory” was first elaborated in Hauptprobleme der Staatsrechtslehre (1911; Chief Problems of the Doctrine of International Law). By “pure theory,” Kelsen meant a theory of law that would be logically self-supporting and would not depend on extralegal values. Such a theory should validate and give order to law itself. The basis of a system of law is some assumption (Grundnorm) that is accepted by a substantial proportion of the community. Kelsen did admit the relevance of sociology and ethics to the lawmaking process and to the content of laws.

Kelsen's later books on theory of law included General Theory of Law and State (1945) and The Law of the United Nations (1950–51). In Principles of International Law (1952), he envisioned world unity under law superimposed on the legal order within each nation. 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 Czech Republic. In the English-speaking world, H. L. A. Hart and Joseph Raz were influenced by Kelsen, though both departed from Kelsen's positivism in decisive ways.

The Basic Norm

According to Kelsen, law is a system of norms. Norms are "ought" statements, which prescribe certain modes of conduct. Kelsen maintained, however, that unlike moral norms, legal norms are products of deliberate human action, created by acts of will. Kelsen upheld the distinction between "is" and "ought," and the impossibility of deriving "ought" conclusions from factual premises alone. Thus, Kelsen believed that the law, comprising norms or "ought" statements, cannot be reduced to those natural actions and events which give rise to it.

Moral norms, according to Kelsen, are typically deduced from other moral norms by syllogism (for example, moving from general principles to more particular ones); legal norms, in contrast, are always created by acts of will. Such an act of will can only create law, however, if it is in accord with another "higher" legal norm that authorizes its creation in that way. The "higher" legal norm, in turn, is valid only if it has been created in accordance with yet another, even higher legal norm that authorizes its enactment. Kelsen argued that ultimately a point must be reached where the authorizing norm is no longer the product of an act of will, but is simply presupposed, and this Kelsen termed “the Basic Norm.” Kelsen maintained that if one traced back the source of laws in a legal system, one would reach a point where a "first" historical constitution was the basic authorizing norm of the rest of the legal system; the Basic Norm was the presupposition of the validity of that first constitution.

The presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's theory as "pure." Contemporary legal positivists traditionally accounted for the normativity of law in terms of social facts; people tend to perceive the legal norms in their community as valid because, ultimately, there are certain social conventions that determine who is authorized to make law and how laws are to be created. Kelsen rejected this kind of reductionism, declaring that any attempt to ground the law's normativity, its "ought" aspect, is doomed to failure if it is only based on facts, whether those facts are natural or social. Kelsen maintained that the normativity of law, as a genuine "ought," must, ultimately, be presupposed.

References
ISBN links support NWE through referral fees

Bindreiter, Uta. Why Grundnorm?: A Treatise on the Implications of Kelsen's Doctrine. Springer, 2002. ISBN 978-9041118677
California Law Review (Editor). Hans Kelsen. What Is Justice: Justice, Law, and Politics in the Mirror of Science: Collected Essays. Lawbook Exchange Ltd., 2000. ISBN 978-1584771012
Kelsen, Hans. Pure Theory of Law. Lawbook Exchange, 2005. ISBN 978-1584775782
Kelsen, Hans; Trevino (Introduction). General Theory of Law and State. Transaction Publishers, 2005. ISBN 978-1412804943

External links

All links retrieved July 27, 2017.

Stanford Encyclopedia of Philosophy entries.

General philosophy sources

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