Hans Kelsen

Hans Kelsen was a Jewish-Austrian legal philosopher. He was best known for his pure theory of law, which revolutionized the western legal system in the 20th century. His theory separated legal science from legal politics.

Hans Kelsen was born in Prague in 1881. He studied at the universities of Berlin, Heidelberg and Vienna. He received a doctorate in law and taught in Vienna from 1911 to 1930. He married in 1912 and had two daughters. While in Vienna, he published the Journal of Public Law and contributed to the development of the Austrian Constitution. He then moved to Germany to teach at the University of Cologne.

The rise of the Nazi government forced Kelsen, who was considered a Social Democrat, out of Germany. He then immigrated to Switzerland, which was politically neutral. While there, he taught at the Graduate Institute of International Studies of the University of Geneva until 1940. With the onset of World War II, Kelsen was offered a teaching position at Harvard University.

Over the course of his career, Kelsen developed a particular interest in international law and the United Nations. He published a number of works, 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). His last teaching post was at the University of California at Berkeley, which he held until his retirement in 1952. He died in 1973, aged 91, in Berkeley.

Kelsen's treatise Pure Theory of Law was published in Geneva, in 1934. His legal theory expounds on the relation between the law, the state and the individual, and aimed for complete objectivity in the face of political events. Kelsen described it as a "legal theory purified of all political ideology and every element of the natural sciences, a theory conscious, so to speak, of the autonomy of the object of its inquiry and thereby conscious of its own unique character...The idea was to develop those tendencies of jurisprudence that focus solely on cognition of the law rather than on the shaping of it, and to bring the results of this cognition as close as possible to the highest values of all science: objectivity and exactitude."

He viewed law as a science dealing with ideals and untainted by subjectivity. Kelsen distilled the law of all its sociological aspects through his theoretical discourses, as he said: "In eliminating the elements of will and interest reflected in the subjective right, it eliminates, too, a principal occasion for muddling the legal point of view with reasoning from psychology and sociology." Law entails objective requirement, not subjective imperative; it is not about what ought to be, it is about what is.

Kelsen endeavored to remove all moral and political aspects from the law. He considered law to be an autonomous system of norms. In this hierarchy, one norm is derived from a dominant norm. Grundnorm is the ultimate, most basic norm. Law should be the product of scientific and logical thinking; an action, if it is unlawful, should be followed by a reaction or punishment.

Kelsen wrote: "Just as in the judgment specific to the law of nature, so likewise in the reconstructed legal norm, a certain consequence is linked to a certain condition." God or any other supernatural being has no jurisdiction over these earthly laws, because laws are made by men for men. The law should have no mythical or theological significance.

Carl Schmitt, a contemporary of Kelsen's, believed that Kelsen's pure theory was self-destructive and paradoxical. Schmitt said, "Unity and purity are easily had when one ignores most vigorously the actual difficulties and excludes on formal grounds as impure everything that is opposed to one's system." Other critics claim that Kelsen's theory should be disregarded on grounds of irrelevance to the actual practice of law.

After hypothetically freeing the law of its sociological, political, theological and psychological fetters, Kelsen analyzed what made the law, in its objective form, binding on a rational human being. According to Kelsen, law is a coercive order. What differentiates the law from other forms of coercion, such as terrorism, is the fact that the legal system is a hierarchy of norms that enforces cooperation. Norms are ideals, or ways that people should behave.

Society as a whole defines obedience to the law as one's civic duty. The law imposes a normative social order. Herein lies the paradox of Kelsen's theory: he asserts that the law is by nature, pure of all subjective reasoning. Yet the enforcement of that law can only come to fruition via societal obligation.

Selected full-text books and articles on this topic

Normativity and Norms: Critical Perspectives on Kelsenian Themes
Stanley L. Paulson; Bonnie Litschewski Paulson; Michael Sherberg; Stanley L. Paulson; Bonnie Litschewski Paulson.
Clarendon Press, 1998
Introduction to the Problems of Legal Theory
Hans Kelsen; Bonnie Litschewski Paulson; Stanley L. Paulson.
Clarendon Press, 1992
The Communist Theory of Law
Hans Kelsen.
Frederick A. Praeger, 1955
Weimar: A Jurisprudence of Crisis
Arthur J. Jacobson; Bernhard Schlink; Belinda Cooper.
University of California Press, 2000
Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar
David Dyzenhaus.
Oxford University Press, 1999
The Concept of a Legal System: An Introduction to the Theory of Legal System
Joseph Raz.
Clarendon Press, 1980 (2nd edition)
Librarian’s tip: Chap. 5 "Kelsen's Theory of Legal System"
The Authoritarian State: An Essay on the Problem of the Austrian State
Ruth Hein; Gilbert Weiss; Eric Voegelin.
University of Missouri Press, 1999
Librarian’s tip: Chap. 6 "Kelsen's Pure Theory of Law and the Problem of an Austrian Theory of the State"
The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960
Martti Koskenniemi.
Cambridge University Press, 2001
Librarian’s tip: Chap. 3 "International Law as Philosophy: Germany 1871-1933"
The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology
Shivakumar, Dhananjai.
The Yale Law Journal, Vol. 105, No. 5, March 1996
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