Hans Kelsen (; German: [ˈhans ˈkɛlzən]; October 11, 1881 – April 19, 1973) 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 (Reine Rechtslehre)", 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.
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 (Dr. juris) on 18 May 1906 and his habilitation (license to give university lectures) 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 (1890–1973), the two having converted a few days earlier to Lutheranism of the Augsburg Confession; they had two daughters.
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 (doctor of law) 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 (as) 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 (vis Jellinek) 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 ("Main Problems in Theory of Public Law, Developed from Theory of the Legal Statement"). 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 (Journal of Public Law). 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 (1838–1918) and Carl Friedrich von Gerber (1823–1891).
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 (The Problem of Sovereignty and Theory of International Law) and Vom Wesen und Wert der Demokratie (On the Essence and Value of Democracy); in 1922, Der soziologische und der juristische Staatsbegriff (The Sociological and Juristic Concepts of the State); in 1923, Österreichisches Staatsrecht (Austrian Public Law); and, in 1925, Allgemeine Staatslehre (General Theory of the State), together with Das Problem des Parlamentarismus (The Problem of Parliamentarianism). In the late 1920s, these were followed by Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus (The Philosophical Foundations of the Doctrine of Natural Law and Legal Positivism).
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 Adolf Merkl 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.