Kelsen, Hans

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Kelsen, Hans

Hans Kelsen was a European legal philosopher and teacher who emigrated to the United States in 1940 after leaving Nazi Germany. Kelsen is most famous for his studies on law and especially for his idea known as the pure theory of the law. Kelsen was born in Prague, Czechoslovakia, on October 11, 1881. He studied at several universities, including Berlin, Heidelberg, and Vienna. He received a doctor of laws degree from Vienna in 1906 and began teaching at the school in 1911. He taught public law and Jurisprudence at Vienna until 1930, when he moved to Germany to teach at the University of Cologne. There he taught International Law and jurisprudence and served as dean for two years.

With the rise of the Nazi government, he left Germany and emigrated to Switzerland in 1933. He taught at the Graduate Institute of International Studies of the University of Geneva until 1940. He accepted a position as lecturer at the Harvard University Law School the same year, and relocated to the United States. Later in 1940 he accepted a teaching position at the University of California at Berkeley. He remained at Berkeley until his retirement in 1952.

Kelsen's pure theory of the law is fairly abstract. Its objective is knowledge of that which is essential to law; therefore, the theory does not deal with that which is changing and accidental, such as ideals of justice. Kelsen believed that law is a science that deals not with the actual events of the world (what is) but with norms (what ought to be). The legal relation contains the threat of a sanction from an authority in response to a certain act. The legal norm is a relation of condition and consequence: if a certain act is done, a certain consequence ought to follow.

In this theory a legal system is made of a hierarchy of norms. Each norm is derived from its superior norm. The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest basic norm. The Grundnorm is not deduced from anything else but is assumed as an initial hypothesis. A norm is a valid legal norm only because it has been created according to a definite rule.

The theory is independent of morality. It does not matter which particular Grundnorm is adopted by a legal order. All that matters is that this basic norm has a minimum effectiveness: it must command a certain amount of obedience, since the effectiveness of the total legal order is necessary for the validity of its norms.

Kelsen received acclaim for authoring many publications, including General Theory of Law and State (1945), The Law of the United Nations (1950–51), Principles of International Law (1952), and What Is Justice? (1957).

He died April 20, 1973, in Berkeley, California.

References in periodicals archive ?
HANs KELSEN, GENERAL THEORY OF LAW AND STATE 383 (Anders Wedberg trans.
64) Compare Hans Kelsen, The Law of the United Nations: A Critical Examination of its Fundamental Problems (London: London Institute of World Affairs, 1951), p.
Although Hans Kelsen is widely regarded as the most influential legal positivist of his generation,(1) his "pure theory" of law has often struck theorists in the Anglo-american legal tradition as an exercise in theoretical system-building out of touch with legal reality.
Since its founding in 1933, The Fletcher School has been a leader in international legal education, employing distinguished legal scholars and practitioners on its faculty, including Leo Gross, Keith Highet, Robert Hudec, Hans Kelsen, Louis Sohn, Julius Stone, and Roscoe Pound.
For the continental-european perspective see Hans Kelsen, Die Verfassungsgesetze der Republik Deutsch-Osterreich Vol III (1919) 112.
Hans Kelsen, Eugen Ehrlich, Nicholas Timosheff, and Richard Quinney.
Hans Kelsen, one of the leading positivist legal theorists of the twentieth century, made a similar argument in his explorations of international law.
In the second chapter Anderson provides an exacting critique of modern legal theory, engaging in argument with Oliver Wendell Holmes, Roscoe Pound, Jerome Frank, Hans Kelsen, and even going as far back as Jeremy Bentham.
Social scientists Max Horkheimer and Karl Manmheim and legal theorist Hans Kelsen were not well understood when they applied their theories to other societies.
The first such assault on sovereignty came from the Pure Theory of Law as expounded by Hans Kelsen who evaluated legal theory, not in terms of sovereign and its subjects, but as an integrated structure of the hierarchy of norms.
Widely regarded as the most important legal theorist of the 20th century, Hans Kelsen is best known for his formulation of the "pure theory of law.
Relying on Hans Kelsen and his theories of how old constitutional orders were replaced by new ones, the supreme Court of Pakistan held that revolutions could become, if successful, "law creating fact[s].