Triangulo de hans kelsen biography

Thus for me, Kantian philosophy was from the very outset the light that guided me. In his book titled What is Justice? The answer to the question whether planned economy is preferable to free economy depends on our decision between the values of individual freedom and social security. Hence, to the question of whether individual freedom is a higher value than social security or vice versa, only a subjective answer is possible," [ 53 ].

Five principal areas of concern for Kelsen in the area of political philosophy can be identified among his many interests for their centrality and the effect which they exerted over virtually his entire lifetime. These are; i Sovereignty, ii Law-state identity theory, iii State-society dualism, iv Centralization-decentralization, and v Dynamic theory of law.

Triangulo de hans kelsen biography

The definition and redefinition of sovereignty for Kelsen in the context of twentieth century modern law became a central theme for the political philosophy of Hans Kelsen from to the end of his life. The principles of explicitly defined sovereignty became of increasing importance to Kelsen as the domain of his concerns extended more comprehensively into international law and its manifold implications following the conclusion of WWI.

The very regulation of international law in the presence of asserted sovereign borders either presented a major barrier for Kelsen in the application of principles in international law, or represented areas where the mitigation of sovereignty could greatly facilitate the progress and effectiveness of international law in geopolitics. The understanding of Kelsen's highly functional reading of the identity of law and state continues to represent one of the most challenging barriers to students and researchers of law approaching Kelsen's writings for the first time.

After Kelsen completed his doctoral dissertation on the political philosophy of Dante, he turned to the study of Jellinek's dualist theory of law and state in Heidelberg in the years leading to Kelsen's highly functional reading of the state was the most compatible manner he could locate for allowing for the development of positive law in a manner compatible with the demands of twentieth century geopolitics.

After accepting the need for endorsing an explicit reading of the identity of law and state, Kelsen remained equally sensitive to recognizing the need for society to nonetheless express tolerance and even encourage the discussion and debate of philosophy, sociology, theology, metaphysics, sociology, politics, and religion. Culture and society were to be regulated by the state according to legislative and constitutional norms.

Kelsen recognized the province of society in an extensive sense which would allow for the discussion of religion, natural law, metaphysics, the arts, etc. Very significantly, Kelsen came to the strong inclination in his writings that the discussion of justice, as one example, was appropriate to the domain of society and culture, though its dissemination within the law was highly narrow and dubious.

A common theme which was unavoidable for Kelsen within the many applications he encountered of his political philosophy was that of centralization and decentralization. For Kelsen, centralization was a philosophically key position to the understanding of the pure theory of law. The pure theory of law is in many ways dependent upon the logical regress of its hierarchy of superior and inferior norms reaching a centralized point of origination in the hierarchy which he termed the basic norm , or Grundnorm.

In Kelsen's general assessments, centralization was to often be associated with more modern and highly developed forms of enhancements and improvements to sociological and cultural norms, while the presence of decentralization was a measure of more primitive and less sophisticated observations concerning sociological and cultural norms.

The dynamic theory of law is singled out in this subsection discussing the political philosophy of Hans Kelsen for the very same reasons which Kelsen applied in separating its explication from the discussion of the static theory of law within the pages of Pure Theory of Law. The dynamic theory of law is the explicit and very acutely defined mechanism of state by which the process of legislation allows for new law to be created, and already established laws to be revised, as a result of political debate in the sociological and cultural domains of activity.

Kelsen devotes one of his longest chapters in the revised version of Pure Theory of Law to discussing the central importance he associated with the dynamic theory of law. Its length of nearly one hundred pages is suggestive of its central significance to the book as a whole and may almost be studied as an independent book in its own right complementing the other themes which Kelsen covers in this book.

This section delineates the reception and criticism of Kelsen's writings and research throughout his lifetime. It also explicates the reaction of his scholarly reception after his death in concerning his intellectual legacy. Throughout his lifetime, Kelsen maintained a highly authoritative position representing his wide range of contributions to the theory and practice of law.

Few scholars in the study of law were able to match his ability to engage and often polarize legal opinion during his own lifetime and extending well into his legacy reception after his death. One significant example of this involves his introduction and development of the term Grundnorm which can be briefly summarized to illustrate the diverse responses which his opinion was able to often stimulate in the legal community of his time.

The short version of its reception is illustrative of many similar debates with which Kelsen was involved at many points in his career and may be summarized as follows. Regarding Kelsen's original use of the term Grundnorm , its closest antecedent appears in writings of his colleague Adolf Merkl [ de ; pt ] at the University of Vienna.

Merkl was developing a structural research approach for the understanding of law as a matter of the hierarchical relationship of norms, largely on the basis of their being either superior, the one to the other, or inferior with respect to each other. Kelsen adapted and assimilated much of Merkl's approach into his own presentation of the Pure Theory of Law in both its original version and its revised version For Kelsen, the importance of the Grundnorm was in large measure two-fold since it importantly indicated the logical regress of superior relationships between norms as they led to the norm which ultimately would have no other norm to which it was inferior.

Its second feature was that it represented the importance which Kelsen associated with the concept of a fully centralized legal order in contrast to the existence of decentralized forms of government and representing legal orders. Another form of the reception of the term originated from the fairly extended attempt to read Kelsen as a neo-Kantian following his early engagement with Hermann Cohen 's work in , [ 58 ] the year his Habilitation dissertation on public law was published.

Cohen was a leading neo-Kantian of the time and Kelsen was, in his own way, receptive to many of the ideas which Cohen had expressed in his published book review of Kelsen's writing. Kelsen had insisted that he had never used this material in the actual writing of his own book, though Cohen's ideas were attractive to him in their own right. This has resulted in one of the longest-running debates within the general Kelsen community as to whether Kelsen became a neo-Kantian himself after the encounter with Cohen's work, or if he managed to keep his own non-neo-Kantian position intact which he claimed was the prevailing circumstance when he first wrote his book in The neo-Kantians, when pressing the issue, would lead Kelsen into discussions concerning whether the existence of such a Grundnorm was strictly symbolic or whether it had a concrete foundation.

This has led to the further division within this debate concerning the currency of the term Grundnorm as to whether it should be read, on the one hand, as part and parcel of Hans Vaihinger 's "as-if" hypothetical construction. On the other hand, to those seeking a practical reading, the Grundnorm corresponded to something directly and concretely comparable to a sovereign nation's federal constitution, under which would be organized all of its regional and local laws, and no law would be recognized as being superior to it.

In different contexts, Kelsen would indicate his preferences in different ways, with some neo-Kantians asserting that late in life Kelsen largely abided by the symbolic reading of the term when used in the neo-Kantian context, [ 60 ] and as he has documented. The neo-Kantian reading of Kelsen can further be subdivided into three subgroups, with each representing their own preferred reading of the meaning of the Grundnorm , which were identifiable as a the Marburg neo-Kantians, b the Baden neo-Kantians, and c his own Kelsenian reading of the neo-Kantian school during his "analytico-linguistic" phase circa — [ 61 ] with which his writings on this subject are often associated.

While still in Austria, Kelsen entered the debate on the versions of Public Law prevailing in his time by engaging the predominating opinions of Jellinek and Gerber in his Habilitation dissertation see description above. Kelsen, after attending Jellinek's lectures in Heidelberg oriented his interpretation according to the need to extend Jellinek's research past the points which Jellinek had set as its limits.

For Kelsen, the effective operation of a legal order required that it be separated from political influences in terms which exceeded substantially the terms which Jellinek had adopted as its preferred form. In response to his dissertation, Kelsen was challenged by the neo-Kantians , originally led by Hermann Cohen , who maintained that there were substantial neo-Kantian insights which were open to Kelsen, which Kelsen himself did not appear to develop to the full extent of their potential interpretation as summarized in the section above.

Sara Lagi in her book on Kelsen and his s writings on democracy has articulated the revised and guarded reception of Jellinek by Kelsen. In addition to this debate, Kelsen had initiated a separate discussion with Carl Schmitt on questions relating to the definition of sovereignty and its interpretation in international law. Kelsen became deeply committed to the principle of the adherence of the state to the rule of law above political controversy, while Schmitt adhered to the divergent view of the state deferring to political fiat.

The debate had the effect of polarizing opinion not only throughout the s and s leading up to WWII, but has also extended into the decades after Kelsen's death in A third example of the controversies with which Kelsen was involved during his European years surrounded the severe disenchantment which many felt concerning the political and legal outcomes of WWI and the Treaty of Versailles.

Kelsen believed that the blamelessness associated with Germany's political leaders and military leaders indicated a gross historical inadequacy of international law which could no longer be ignored. Kelsen devoted much of his writings from the s and leading into the s towards reversing this historical inadequacy which was deeply debated until ultimately Kelsen succeeded in contributing to the international precedent of establishing war crime trials for political leaders and military leaders at the end of WWII at Nuremberg and Tokyo.

This section covers Kelsen's years during his American years. Kelsen's participation and his part in the establishment of war crimes tribunals following WWII has been discussed in the previous section. For Kelsen, in principle, the United Nations represented in potential a significant phase change from the previous League of Nations and its numerous inadequacies which he had documented in his previous writings.

Kelsen wrote his page treatise on the United Nations, [ 64 ] along with a subsequent two hundred page supplement, [ 65 ] which became a standard text book on studying the United Nations for over a decade in the s and s. Kelsen also became a significant contributor to the Cold War debate in publishing books on Bolshevism and communism , which he reasoned were less successful forms of government when compared to democracy.

This, for Kelsen, was especially the case when dealing with the question of the compatibility of different forms of government in relation to the Pure Theory of Law , first edition. The completion of Kelsen's second edition of his magnum opus on Pure Theory of Law published in had at least as large an effect upon the international legal community as did the first edition published in Kelsen was a tireless defender of the application legal science in defending his position and was constantly confronting detractors who were unconvinced that the domain of legal science was sufficient to its own subject matter.

This debate has continued well into the twenty-first century as well. Many of the controversies and critical debates during his lifetime continued after Kelsen's death in Kelsen's ability to polarize opinion among established legal scholars continued to influence the reception of his writings well after his death. The formation of the European Union recalled many of his debates with Schmitt on the issue of the degree of centralization which would in principle be possible, and what the implications concerning state sovereignty would be once the unification was put into place.

Kelsen's contrast with Hart as representing two distinguishable forms of legal positivism has continued to be influential in distinguishing between Anglo-American forms of legal positivism from Continental forms of legal positivism. The implications of these contrasting forms continues to be part of the continuing debates within legal studies and the application of legal research at both the domestic and the international level of investigation.

For the occasion of Hans Kelsen's 90th birthday, the Austrian federal government decided on 14 September to establish a foundation bearing the name "Hans Kelsen-Institut". The Institut became operational in Its task is to document the Pure Theory of Law and its dissemination in Austria and abroad, and to inform about and encourage the continuation and development of the pure theory.

To this end it produces, through the publishing house Manz, a book series that currently runs to more than 30 volumes. The Institut administers the rights to Kelsen's works and has edited several works from his unpublished papers, including General Theory of Norms , translated [ 74 ] and Secular Religion , written in English. The current directors are Clemens Jabloner since [ 77 ] [ 78 ] and Thomas Olechowski since After Jestaedt's appointment at the Albert-Ludwigs-University of Freiburg in , the center was transferred there.

The Hans-Kelsen-Forschungsstelle publishes, in cooperation with the Hans Kelsen-Institut and through the publishing house Mohr Siebeck, a historical-critical edition of Kelsen's works which is planned to reach more than 30 volumes; as of August , the first eight volumes have been published by Mohr-Siebeck publishers. Contents move to sidebar hide.

Article Talk. Read Edit View history. Tools Tools. Download as PDF Printable version. In other projects. Wikimedia Commons Wikiquote Wikidata item. Austrian jurist and legal philosopher — Prague , Austria-Hungary. Berkeley, California , U. Biography [ edit ]. Early life [ edit ]. Kelsen and his years in Austria up to [ edit ]. Kelsen and his European years between and [ edit ].

Hans Kelsen and his American years after [ edit ]. The Pure Theory of Law [ edit ]. Main article: Pure Theory of Law. Kelsen's widespread contributions to legal theory [ edit ]. Judicial review [ edit ]. Hierarchical law [ edit ]. The de-ideologicalization of positive law [ edit ]. Science of law [ edit ]. Political philosophy [ edit ]. Sovereignty [ edit ].

This section does not cite any sources. Please help improve this section by adding citations to reliable sources. Unsourced material may be challenged and removed. October Learn how and when to remove this message. Law—state identity theory [ edit ]. State—society distinctions and delineations [ edit ]. Centralization and decentralization [ edit ].

Dynamic theory of law [ edit ]. Reception and criticism [ edit ]. A Rebuttal, Vienna. A Fundamental Debate, Vienna. Introduction to Legal Science, Leipzig and Vienna 2nd ed. A Sociological Inquiry, Chicago and London With an Appendix: The Problem of Justice, 2nd ed. Begins studies in law and political science at the University of Vienna until May Doctorate in law Dr.

Study visits to Heidelberg and Berlin. March 9: Habilitation in constitutional law and legal philosophy at the University of Vienna. May Conversion to Protestant faith Augsburg Confession. September Appointed titular associate professor. October 1: Permanent associate professor at the University of Vienna. March Appointed member of the Austrian Constitutional Court.

August 1: Full professor of constitutional and administrative law at the University of Vienna until July Elected member of the Constitutional Court under the Federal Constitutional Law, lifetime appointment until First lecture at the Hague Academy of International Law. February Ends membership in the Constitutional Court. October 1: Appointed full professor of international law at the University of Cologne until Second lecture at the Hague Academy of International Law.

April Suspended from his position as a university professor under the "Law for the Restoration of the Professional Civil Service" of April 7, , effective immediately. January 1: Retired as professor from the University of Cologne. May Hans and Margarete Kelsen leave Geneva. Kelsen's own view, most fully developed in the posthumous Allgemeine Theorie der Normen General Theory of Norms; , traced the legitimacy of legal legislation back to a fundamental "ground rule" German, Grundnorm whose universal status is independent of morality.

Kelsen's "pure theory" was a Kantian interpretation of legal positivism. The theory of Hans Kelsen remains an essential point of reference in the world of legal thought. Kelsen was born in Prague , Czech Republic , on October 11, When he was three years old, his family, of German-speaking, Jewish and middle-class origins, moved to Vienna , where Kelsen pursued his academic studies.

Though he was primarily interested in philosophy , literature, logic , mathematics, and natural science, he studied law at the University of Vienna, taking his doctorate in His knowledge in these areas influenced much of his work. His Jewish ancestry presented difficulties for him on numerous occasions. In , he attended a seminar in Heidelberg led by Georg Jellinek, an authority in public law.

In , he achieved his habilitation license to hold university lectures in public law and legal philosophy, and published his first major work, Main Problems in the Theory of Public Law Hauptprobleme der Staatsrechtslehre , a page study on the theory of public law. In , Kelsen married Margarete Bondi; the couple had two daughters. In , he established and edited the Austrian Journal of Public Law three volumes.

During World War I, Kelsen served as legal adviser to the war minister and acted as adviser to the military and justice administration. In , he became associate professor of law at the University of Vienna, and in , he was made full professor of public and administrative law. For the next ten years he conducted research and taught law.

Politically, he continued to remain neutral, although he sympathized with the Social Democrats. In , Kelsen received academic recognition as the founder and editor of the Journal of Public Law, and was asked to draft the new Austrian Constitution. The Constitution was adopted in , and has remained unchanged in its fundamental principles. Kelsen emphasized one particular aspect of the new Constitution, the justiciability the substantial legal efficacy of the Constitutional Court.

Kelsen was appointed a member of the Austrian Constitutional Court, and influenced many of its rulings. In , Kelsen lost his place on the Court for political reasons. Austria's administrative authorities permitted remarriage in Catholic Austria, but the lower courts considered these dispensations invalid. Led by Kelsen, the Constitutional Court overturned the rulings of the lower courts, but in the end, the Christian Social Party won the case.

The resulting political attacks on Kelsen were so virulent that he moved to Cologne, where he taught international law at the university. Until then, he had mainly examined the relationship between state law and international law; he now began to focus on positive international law and the concept of sovereignty. Who should be the Guardian of the Constitution?

When the Nazis seized power in , Kelsen was removed from his position at the University of Cologne. With his wife and two daughters, he left for Geneva in the autumn of to start a new academic career at the Institut Universitaire des Hautes Etudes International. Despite having to teach in a foreign language, Kelsen found this to be a fruitful period.