Kelsen, Hans (1881–1973)
Kelsen, Hans (1881–1973)
Born in Prague on October 11, 1881, Hans Kelsen grew up in Vienna. He studied law at the University of Vienna and completed, in 1911, the Habilitation (major dissertation required for the venia legendi or state license to hold university lectures). After military service in World War I, he worked up a number of drafts of what became the Austrian Federal Constitution of October 1920. Here Kelsen's most distinctive contribution was centralized constitutional review, an entirely new institutional practice. During the 1920s, Kelsen served as professor of law at the University of Vienna and also as Constitutional Court judge. Ousted from the latter position in 1930 by Austria's right-of-center Christian-Social Party, Kelsen took up a professorship in Cologne. Ousted from this position in the spring of 1933, on the basis of the notorious Nazi statute for the "Restoration of the Professional Civil Service" (authorizing the dismissal of those seen as politically unreliable and also those of Jewish ancestry), Kelsen spent the period from 1933 to 1940 in Geneva. He left in May 1940 for the United States, where he eventually secured a position at the University of California at Berkeley. He died in Berkeley on April 19, 1973.
Kelsen's juridico-philosophical work breaks down into three phases, although there is no bright line between the first two. Kelsen's first phase, critical constructivism, runs from 1911 to approximately 1920. His primary concern is to show that naturalism in legal science is mistaken, and he goes on to construct the basic concepts of the law in nonnaturalisticnon-naturalistic terms. Kelsen's second phase, his classical or Neoneo-Kantian period, picks up at the end of the first phase and runs up to 1960. It is marked by two major developments. The first of these is Kelsen's attempt to provide a foundation for the concepts he constructed in the first phase. His "purity postulate" precludes any appeal either to natural law or moral theory on the one hand, or to empirical data on the other. What remains? Kelsen answers with a transcendental argument, proceeding in standard Neoneo-Kantian fashion from the Faktum der Wissenschaft (here, the fact of legal science) to the necessity of the basic norm qua normative category. Without the normative category, legal science would not be possible, but since legal science is given, it must be the case that the normative category is presupposed.
A rather different development in the early years of the second phase is represented by Kelsen's adoption of the Stufenbaulehre (doctrine of hierarchical structure) from his gifted Vienna colleague, Adolf Julius Merkl. This doctrine calls for ever-greater concretization as the law moves from the general norms of the constitution, at the apex of the hierarchy, to individual legal acts of law—implementation at its base. Accommodating norms that represent every species of law (constitutional rule, statutory provision, administrative regulation, official's legal act), the doctrine gives the lie to later nineteenth-century Gesetzespositivismus (statutory positivism), which held that the statute alone was characteristic of the modern legal system. In a juridico-philosophical vein, the doctrine of hierarchical structure marks the introduction, into Kelsen's theory, of empowering norms, which, as he argues at a later point, represent the most fundamental normative modality.
In his third and last phase, beginning in 1960, Kelsen throws overboard the Neoneo-Kantian edifice of the classical phase and defends a will theory of law—a remarkable development in the case of a philosopher who, for literally half a century, had criticized the will theory as well-nigh wrong-headed. Kelsen's skepticism in this last phase is reflected, for example, in his rejection of any role for logic in the law.
Kelsen's significance stems not least of all from his work on the philosophically difficult concept of normativity. A "strong normativity thesis," defended as an interpretation of Kelsen by Joseph Raz, speaks to the classical question in legal philosophy, namely, whether—and, if so, how—the obligation to obey the law is to be justified. A "weak normativity thesis," which reflects Kelsen's abiding interest in preserving the autonomy of the law and, by the same token, the "purity" of legal science, looks to normativity in the name of noncausal change as Kelsen's juridico-philosophical alternative to naturalism.
Ebenstein, William. The Pure Theory of Law. Madison: University of Wisconsin Press, 1945.
Raz, Joseph., "Kelsen's Theory of the Basic Norm." In Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, pp. 47–67. Oxford: Clarendon Press, 1998.
works by kelsen
Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus. Charlottenburg, Germany: Rolf Heise, 1928. Translated by Wolfgang Herbert Kraus under the titleas "Natural Law Doctrine and Legal Positivism" as an appendix to Kelsen, General Theory of Law and State, 389–446.
Reine Rechtslehre. 1st ed. Leipzig, Germany: Deuticke, 1934. Translated by Bonnie Litschewski Paulson and Stanley L. Paulson as Introduction to the Problems of Legal Theory. Oxford: Clarendon Press, 1992.
General Theory of Law and State. Translated by Anders Wedberg. Cambridge, MA: Harvard University Press, 1945.
Reine Rechtslehre. 2nd ed. Vienna: Deuticke, 1960. Translated by Max Knight as The Pure Theory of Law. Berkeley: University of California Press, 1967.
Essays in Legal and Moral Philosophy, edited by Ota Weinberger; translated by Peter Heath. Dordrecht, Netherlands: Reidel, 1973.
Allgemeine Theorie der Normen, edited by Kurt Ringhofer and Robert Walter. Vienna: Manz, 1979. Translated by Michael Hartney as General Theory of Norms. Oxford: Clarendon Press, 1991.
Stanley L. Paulson (2005)