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Kelsen, Hans

KELSEN, HANS

KELSEN, HANS (1881–1973), jurist, whose "pure theory of law" made him one of the most famous legal theoreticians of the 20th century. Born in Prague, Kelsen was taken to Vienna when he was 14. He studied at the universities of Vienna, Heidelberg, and Berlin, and was professor of constitutional and administrative law and of legal philosophy at the University of Vienna from 1919 to 1929. In 1920 he drafted the constitution of the Austrian Republic and was a judge of the supreme court of Austria from 1920 to 1929. Kelsen was professor of law at Cologne University from 1929 until 1933, when, although baptized, he was compelled to resign his post. He taught at the Institut des Hautes Etudes Internationales in Geneva until 1940 and at the University of Prague before he immigrated to the United States. He became professor of political science at the University of California in 1944.

The breakdown of the Austro-Hungarian Empire, and the interwar tragedy of frustrated democracy in Austria, led him to a theory of law transcending nations and states. While he was professor of law at Vienna University, Kelsen founded the so-called Vienna school of jurisprudence, which preached the "pure theory of law." Originally developed 20 years earlier in his Hauptprobleme der Staatsrechtslehre (1911), the "pure theory" is a logical analysis of the law considered as a system of norms. A "basic norm" (Grundnorm) stands at the head of the system: this gives validity to the whole of the legal order and all the legal rules in the order may be ultimately referred to it. The "pure theory of law" was the result of a vigorous campaign by Kelsen to treat law as a science free from sociological and political elements, even though he recognized that each country's legal system must be determined by the state. This approach brought him into open conflict with communist doctrines, which subjected law to the political structure of the state, and with sociological jurisprudence, which regarded law as reflecting the society in which it existed. The climax of Kelsen's theory was a vision of the unification of legal systems within a framework of international law which would establish a universal legal order. Although his "pure theory of law" has been subject to widespread criticism and rejected by most schools of jurisprudence, Kelsen has greatly influenced legal thinking in the 20th century. Kelsen was a prolific writer and his works have been translated into almost every European language (Russian being a noteworthy exception).

bibliography:

G.A. Lipsky (ed.), Law and Politics in the World Community; Essays on Hans Kelsen's Pure Theory … (1953); S. Engels (ed.), Law, State, and International Legal Order (1964). add. bibliography: R. Walter, "Hans Kelsen," in: H. Erler, E.L. Ehrlich, and L. Heid (eds.), Meinetwegen ist die Welt erschaffen, (1997), 333–38; D. Diner, Hans Kelsen and Carl SchmittA Juxtaposition (1997); I. Englard, "Nazi Criticism Against the Normativist Theory of Hans Kelsen," in: Israel Law Review, 32:2 (1998), 183–249; K. Bruckschwaiger, Die Rolle von Philosophie und Politik bei Hans Kelsen (2002); S.L. Paulson, Hans KelsenStaatsrechtslehrer und Rechtstheoretiker des 20. Jahrhundert (2005); G.N. Dias, Rechtspositivismus und RechtstheorieDas Verhaeltnis beider im Werke von Hans Kelsen (2005); R.C. van Ooyen, Der Staat der ModerneHans Kelsens Pluralismustheorie (2003); P. Hack, La philosophie de Kelsen (2003).

[Josef J. Lador-Lederer]

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