Kelsen, Hans

(1881–1973)

   Kelsen, who came from Prague, was the architect of the constitution of the First Austrian Republic, issued in 1920. Widely known as a professor of constitutional and administrative law, he was also a philosopher and a practicing magistrate. He served on the bench of the Austrian Constitutional Court from 1921 to 1930, when he left Austria for a professorial position in Cologne. He taught there until 1933. Of Jewish extraction, he then went to Geneva and Prague and, in 1938, to the United States, where he lectured at Harvard for two years. In 1942, he was called to the University of California at Berkeley, where he taught for 10 years until 1952. He later died in California.

   From the standpoint of jurisprudence, Kelsen was a legal positivist, believing that law was essentially a creation of the state, rather than an expression of social or ethical standards found in society at large. Legal codes were therefore the practical realization of norms that governments expected their citizens to follow. He reinforced this view, which he called pure theory of law, with an epistemological dualism that owed something to Immanuel Kant. Human consciousness, he argued, was endowed to think in terms of Being (Sein) and What Ought to Be (Sollen). Neither category was a logical derivative of the other; it was What Ought to Be and its construction by those who spoke for the state that gave law its form and substance.

   Writing during a period of intense ideological and societal polarization in Austria, Kelsen and the successor to his chair at the University of Vienna, Adolf Julius Merkl (1890–1970), had a receptive audience among those whom he taught. The students, who were to become the country’s judges, lawyers, civil servants, and commercial functionaries, were heavily influenced by his thinking. As finished jurists, they constituted what came to be called the Vienna School of Legal Theory.

   See also Judiciary.