Hans Kelsen

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Kelsen, Hans

(1881–1973) legal scholar, philosopher; born in Prague, Czechoslovakia. A distinguished law professor who drafted the 1920 Austrian constitution, he fled Nazism, eventually going to the U.S.A., where he taught at Harvard (1940–42) and the University of California (1942–52). He contributed to legal philosophy in such works as Principles of International Law (1952).

Kelsen, Hans

 

Born Oct. 11, 1881, in Prague. Austrian jurist.

Kelsen was a professor at the University of Vienna from 1917 to 1929, the University of Cologne from 1929 to 1933, and the University of Geneva from 1933 to 1940. In 1940 he emigrated to the USA and in 1942 became a professor at the University of California. He was one of the founders of the normative school of law, which is sometimes called the Vienna school or the pure study of law. Kelsen believes that juridical science ought to reject entirely the study of law as a function of society and economics or as a servant of political, moral, historical, or other “metajuridical” aims. In his view, law should be studied in its “pure” aspect, strictly as a legal form. Otherwise, Kelsen maintains, the science of law loses its objective character and turns into ideology.

Kelsen was one of the first to propagate the slogan “deideologization of science,” which is widely held in bourgeois science. For the methodological foundation of his “pure” approach to law, Kelsen used the neo-Kantian opposition of “ought” and “is” as phenomena lying, as it were, in different planes and having no contact. The norm of a law, which establishes what ought to be done, is in Kelsen’s view independent of the real world and can be extracted only from another, broader norm. Kelsen constructs a closed hierarchical system of legal norms issuing from some presumed source, the hypothetical “basic norm.” From this construction, he arrives at an idea actively used in the bourgeois science of international law: the primacy of international law over intrastate law and the denial of the principle of sovereignty. Kelsen looks upon the state not as the force creating law but as something derived from law, as the “personification of the legal order.”

Kelsen’s teachings reflect the striving of bourgeois jurisprudence during the general crisis of capitalism to put aside the aggravated contradictions of capitalist reality and present the norms of bourgeois law as obvious logical imperatives. During the 1950’s, Kelsen wrote several works devoted to the Marxist theory of law, in which socialist legal theory and practice are examined from a position of active anticommunism.

WORKS

Hauptprobleme der Staatsrechtslehre, 2nd ed. Tübingen, 1923.
Reine Rechtslehre. Leipzig, 1934.
General Theory of Law and State. Cambridge (Mass.), 1945.
The Law of the United Nations. London, 1951.
The Communist Theory of Law. New York, 1955.
Reine Rechtslehre. Vienna, 1967.

REFERENCES

Seidler, G. L. Iuridicheskie doktriny imperializma. Moscow, 1959. Pages 75–103. (Translated from Polish.)
Wróblewski, J. Krytyka normatywistycznej teorii prawa i panstwa H. Kelsene. Warsaw, 1955.
Popov, P. Kritika na suvremenniia burzhoazen praven normativizum. Sofia, 1964.

V. A. TUMANOV