“Historical turn” in the Research on Hans Kelsen?

Abstract

The “Pure Theory of Law” has been very well researched in relevant literature, but its historical origins and impacts have been taken less into account. According to my hypothesis, the “Pure Theory of Law” cannot just be read as an abstract legal theory “fallen from heaven”. It is both an intellectual product of a multiethnic empire, and a reflection in the face of a polarized society. In my paper, I therefore aim to subject Kelsen’s theory to a historical contextualization, and to elaborate its legal concept as prerequisite for any legal historical work. I am examining the question of how the “Pure Theory of Law” was shaped by the experiences of the Habsburg Empire and the First Republic – especially with regard to Kelsen’s rule as constitutional judge –, and which interpretation of Kelsen’s theory can support, in terms of legal theory, a historical approach. Based on the theories of the “New History of International Law” and the realistic reading on Kelsen (ie the Schools of Genoa and Nanterre), I argue for the historical contextualization and the dynamic reading of the “Pure Theory of Law”, which – according to my hypothesis – enables legal theory and legal history to be thought together.