Hans Kelsen
Hans Kelsen was an Austrian and later American jurist, legal philosopher and political philosopher. He is known principally for his theory of law, which he named the "pure theory of law ", and for his writings on international law and theory of democracy.
The "pure theory" provides general foundations for value-independent description of law. As an expert in constitutional law, Kelsen was the principal architect of the 1920 Austrian Constitution, which, with amendments, remains in force.
The rise of totalitarianism forced him out of Austria, then to Germany and to Switzerland and in 1940 to the United States. Although in 1934 Roscoe Pound lauded Kelsen as "unquestionably the leading jurist of the time", the pure theory was rarely understood in the United States and Kelsen was never given a permanent position in a law school.
He was employed in the department of politics at the University of California, Berkeley from 1942 until official retirement in 1952. He then rewrote his short book of 1934, titled Reine Rechtslehre, into a much enlarged "second edition" published in 1960; it appeared in an English translation in 1967.
Biography
Early life
Kelsen was born in Prague into a middle-class, German-speaking, Jewish family. His father, Adolf Kelsen, was from Galicia, and his mother, Auguste Löwy, was from Bohemia. Hans was their first child; there were two younger brothers and a sister. The family moved to Vienna in 1884, when Hans was three years old. After graduating from the Akademisches Gymnasium, Kelsen studied law at the University of Vienna, taking his doctorate in law on 18 May 1906 and his habilitation on 9 March 1911. Twice in his life, Kelsen converted to separate religious denominations. At the time of his dissertation on Dante and Catholicism, Kelsen was baptised as a Roman Catholic on 10 June 1905. On 25 May 1912 he married Margarete Bondi, the two having converted a few days earlier to Lutheranism of the Augsburg Confession; they had two daughters.Image:Wien - Akademisches Gymnasium.JPG|thumb|left|Akademisches Gymnasium in Vienna, where Kelsen received his secondary education.
Kelsen and his years in Austria up to 1930
Kelsen's early work on Dante's theory of the state in 1905 became his first book on political theory. The study makes a rigorous examination of the "two swords doctrine" of Pope Gelasius I, along with Dante's distinct sentiments in the Roman Catholic debates between the Guelphs and Ghibellines. Kelsen's conversion to Catholicism was contemporaneous to the book's completion in 1905. He obtained the degree of Dr. Juris by examination in 1906. In 1908, studying for his habilitation, Kelsen won a research scholarship which allowed him to attend the University of Heidelberg for three consecutive semesters, where he studied with the distinguished jurist Georg Jellinek before returning to Vienna.The closing chapter of Kelsen's study of political allegory in Dante also was important for emphasizing the particular historical path which led directly to the development of modern law in the twentieth century. After emphasizing Dante's importance to this development of legal theory, Kelsen then indicated the historical importance of Niccolò Machiavelli and Jean Bodin to these historical transitions in legal theory leading to modern twentieth century law. In the case of Machiavelli, Kelsen saw an important counter-example of an exaggerated executive part of government operating without effective legal restraints on responsible conduct. For Kelsen, this was instrumental in the orientation of his own legal thinking in the direction of government strictly according to law, eventually with a heightened emphasis on the importance of a fully elaborated power of judicial review.
Kelsen's time at Heidelberg was of lasting importance to him in that he began to solidify his position of the identity of law and state from the initial steps he observed as being taken by Jellinek. Kelsen's historical reality was to be surrounded by the dualistic theories of law and state prevailing in his time. The major question for Jellinek and Kelsen, as stated by Baume is, "How can the independence of the state in a dualist perspective be reconciled with its status representative of the legal order? For dualistic theorists there remains an alternative to monistic doctrines: the theory of the self-limitation of the state. Georg Jellinek is an eminent representative of this theory, which allows one to avoid reducing the state to a legal entity, and also to explain the positive relationship between law and state. The self-limitation of the sphere of the state presupposes that the state, as a sovereign power, by the limits that it imposes on itself, becomes a rule-of-law state." For Kelsen, this was appropriate for as far as it went yet it still remained a dualistic doctrine and therefore Kelsen rejected it stating: "The problem of the so-called auto-obligation of the State is one of those pseudo-problems that result from the erroneous dualism of State and law. This dualism is, in turn, due to a fallacy of which we meet numerous examples in the history of all fields of human thought. Our desire for the intuitive representation of abstractions leads us to personify the unity of a system, and then to hypostasize the personification. What originally was only a way of representing the unity of a system of objects becomes a new object, existing in its own right." Kelsen was joined in this critique by the distinguished French jurist Léon Duguit, who wrote in 1911: "Self-limitation theory contains some real sleight of hand. Voluntary subordination is not subordination. The state is not really limited by the law if the state alone can introduce and write this law, and if it can at any time make any changes that it wants to make in it. This kind of foundation of public law is clearly extremely fragile." As a result, Kelsen solidified his position endorsing the doctrine of the identity of law and state.
In 1911, he achieved his habilitation in public law and legal philosophy, with a thesis that became his first major work on legal theory, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze. In 1919, he became full professor of public and administrative law at the University of Vienna, where he established and edited the Zeitschrift für öffentliches Recht. At the behest of Chancellor Karl Renner, Kelsen worked on drafting a new Austrian Constitution, enacted in 1920. The document still forms the basis of Austrian constitutional law. Kelsen was appointed to the Constitutional Court, for his lifetime. Kelsen's emphasis during these years upon a Continental form of legal positivism began to further flourish from the standpoint of his law-state monism, somewhat based upon the previous examples of Continental legal positivism found in such scholars of law-state dualism such as Paul Laband and Carl Friedrich von Gerber.
During the early 1920s he published six major works in the areas of government, public law, and international law: in 1920, Das Problem der Souveränität und die Theorie des Völkerrechts and Vom Wesen und Wert der Demokratie ; in 1922, Der soziologische und der juristische Staatsbegriff ; in 1923, Österreichisches Staatsrecht ; and, in 1925, Allgemeine Staatslehre, together with Das Problem des Parlamentarismus. In the late 1920s, these were followed by Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus.
Image:Portrait de Dante.jpg|thumb|upright|Kelsen's 1905 book was about political allegory in Dante Alighieri.
During the 1920s, Kelsen continued to promote his celebrated theory of the identity of law and state which made his efforts a counterpoint to the position of Carl Schmitt who advocated for the priority of the political concerns of the state. Kelsen was supported in his position by and Alfred Verdross, while opposition to his view was voiced by Erich Kaufman, Hermann Heller, and Rudolf Smend. An important part of Kelsen's main practical legacy is as the inventor of the modern European model of constitutional review. This was first introduced in both Austria and Czechoslovakia in 1920, and later in the Federal Republic of Germany, Italy, Spain, Portugal, as well as in many countries of Central and Eastern Europe.
As described above, the Kelsenian court model set up a separate constitutional court which was to have sole responsibility over constitutional disputes within the judicial system. Kelsen was the primary author of its statutes in the state constitution of Austria as he documents in his 1923 book cited above. This is different from the system usual in common-law countries, including the United States, in which courts of general jurisdiction from the trial level up to the court of last resort frequently have powers of constitutional review. Following increasing political controversy about some positions of the Constitutional Court of Austria, Kelsen faced increasing pressure from the administration which appointed him to specifically address issues and cases concerning the providence of divorce provisions in state family law. Kelsen was inclined to a liberal interpretation of the divorce provision while the administration which had originally appointed him was responding to public pressure for the predominantly Catholic country to take a more conservative position on the issue of the curtailment of divorce. In this increasingly conservative climate, Kelsen, who was considered sympathetic to the Social Democrats, although not a party member, was removed from the court in 1930.
Kelsen and his European years between 1930 and 1940
Sandrine Baume has summarized the confrontation between Kelsen and Schmitt at the very start of the 1930s. This debate was to reignite Kelsen's strong defense of the principle of judicial review against the principle of an authoritarian version of the executive branch of government which Schmitt had envisioned for national socialism in Germany. Kelsen wrote his scathing reply to Schmitt in his 1931 essay, "Who Should Be the Guardian of the Constitution?", in which he defended in plain terms the importance of judicial review over and against the excessive form of executive authoritarian government which Schmitt was promulgating in the early 1930s. As Baume states,Although Kelsen was successful in drafting sections for the Constitution in Austria for a strong court of judicial review, his sympathizers in Germany were less successful. Both Heinrich Triepel in 1924 and Gerhard Anschütz in 1926 were unsuccessful in their explicit drive to instill a strong version of judicial review in Germany's Weimar Constitution. The complete set of the articles published in the debate between Kelsen and Schmitt during the 1930s has been collected by Lars Vinx and published in English translation in 2015.
Kelsen accepted a professorship at the University of Cologne in 1930. When the National Socialists came to power in Germany in 1933, he was removed from his post. He relocated to Geneva, Switzerland where he taught international law at the Graduate Institute of International Studies from 1934 to 1940. During this time period, Hans Morgenthau departed from Germany to complete his habilitation dissertation in Geneva, which resulted in his book The Reality of Norms and in particular the Norms of International Law: Foundations of a Theory of Norms. By remarkable good fortune for Morgenthau, Kelsen had just arrived in Geneva as a professor and he became an adviser for Morgenthau's dissertation. Kelsen was among the strongest critics of Carl Schmitt because Schmitt was advocating for the priority of the political concerns of the state over the adherence by the state to the rule of law. Kelsen and Morgenthau were united against this National Socialist school of political interpretation which down-played the rule of law, and they became lifelong colleagues even after both had emigrated from Europe to take their respective academic positions in the United States. During these years, Kelsen and Morgenthau had both become persona non grata in Germany during the full rise to power of National Socialism.
That Kelsen was the principal defender of Morgenthau's Habilitationschrift is recently documented in the translation of Morgenthau's book titled The Concept of the Political. In the introductory essay to the volume, Behr and Rosch indicate that the Geneva faculty under the examiners Walther Burckhardt and Paul Guggenheim were initially quite negative concerning Morgenthau's Habilitationschrift. When Morgenthau had found a Paris publisher for the volume, he asked Kelsen to re-evaluate it. In the words of Behr and Rosch, "Kelsen was the right choice to assess Morgenthau's thesis because not only was he a senior scholar in Staatslehre, but Morgenthau's thesis was also largely a critical examination of Kelsen's legal positivism. Thus, it was Kelsen to whom Morgenthau 'owed his Habilitation in Geneva,' as Kelsen's biographer Rudolf Aladár Métall confirms, and also eventually his subsequent academic career, because Kelsen produced the positive evaluation that convinced the board of examiners to award Morgenthau his Habilitation."
In 1934, at the age of 52, he published the first edition of Reine Rechtslehre. While in Geneva he became more deeply interested in international law. This interest in international law in Kelsen was in reaction largely to the Kellogg–Briand Pact in 1929 and his negative reaction to the vast idealism he saw represented in its pages, along with the lack of the recognition of sanctions for the illicit actions of belligerent states. Kelsen had come to endorse strongly the sanction-delict theory of law which he saw as substantially under-represented in the Kellogg–Briand Pact. In 1936–1938 he was briefly professor at the German University in Prague before returning to Geneva where he remained until 1940. His interest in international law became especially focused in Kelsen's writings on international war crimes which he redoubled his efforts on behalf of after his departure to the United States.