Hans Kelsen and His Pure Theory of Law

Abstract

DR. HANS KELSEN'S formal retirement from his professorship at the end of the current university year will mark another milestone in his varied and significant career. He has survived or escaped from two revolutions and a ruthless tyranny in central Europe. He has held honored and influential academic positions in five nations and on two continents. He has built and rebuilt a systematic philosophy of law and the state which has won him a place among the most distinguished legal-political philosophers of the present century. In this short article I propose to sketch his career and to state concisely what I conceive to be the most valuable contributions to American legal theory which can be derived from his writings. Born in Prague, Czechoslovakia, on October 11, 1881, Hans Kelsen attended the University of Vienna and received his doctorate in law there at the age of twenty-five. After a few years of additional study at the Universities of Heidelberg and Berlin, he became in 1911 professor of public law and jurisprudence at the University of Vienna. Here he remained for nineteen years, the most creative period of his life. As a legal adviser to the Austrian government shortly after World War I he was asked to present several drafts of a constitution for the newly established Austrian republic. One of these drafts was, with a few changes, adopted as the Austrian Constitution of 1920. Professor Kelsen then had the honor and the valuable experience of membership on the Supreme Constitutional Court of Austria (1921-30). His theories of constitutional law, of the relation between law and state, which he developed during and shortly after this period, were based upon ample opportunity for observation of governmental operations. He was Dean of the Faculty of Law at Vienna in 1922-23. He went in 1930 to the University of Cologne, where he became professor of international law and jurisprudence and Dean of the Faculty. With the advent to power of Adolph Hitler he moved to Geneva, where he joined the faculty of the Graduate Institute of International Studies. He came to Harvard in 1941, and while there he wrote for American readers a summary and in part a revision of his earlier legal philosophy. This volume, translated into English,' was published in 1945 as the first volume of the Twentieth Century Legal Philosophy Series, sponsored by the Association of American Law Schools. In that same year he became an American citizen, and accepted an appointment as professor of political science in the University of California (Berkeley). The principal themes of Kelsen's writings have been his theories of law and the state, and his conception of international law. Yet he has written on legal sociology,2 on Plato's changing conception of justice,8 and on The * Cardozo Professor of Jurisprudence, Columbia University. 1 KELSEN, GENERAL THEORY OF LAW AND STATE (Wedberg's trans. 1945) (hereafter cited as GENERAL THEORY). The translation was made by Professor Anders Wedberg of the University of Stockholm. 2 SOCIETY AND NATURE. A SOCIOLOGICAL INQUIRY (1943). 3 Platonic Justice, 48 ETHICS 367-400 (1937-38).