Hans Kelsen

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Lore & Background

Kelsen was born in Prague into a middle-class, German-speaking, Jewish family. The family moved to Vienna in 1884. He studied law at the University of Vienna, taking his doctorate in law on 18 May 1906 and his habilitation on 9 March 1911. He was baptised as a Roman Catholic on 10 June 1905. On 25 May 1912 he married Margarete Bondi, the two having converted a few days earlier to Lutheranism of the Augsburg Confession; they had two daughters. His early work on Dante's political theory examined the "two swords doctrine" of Pope Gelasius I and the Guelph-Ghibelline debates. In 1908, studying for his habilitation, he won a research scholarship to attend the University of Heidelberg for three consecutive semesters, where he studied with Georg Jellinek. There he began to solidify his position on the identity of law and state, rejecting dualistic theories of self-limitation. In 1911, his habilitation thesis became his first major work on legal theory, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze. In 1919, he became full professor of public and administrative law at the University of Vienna. At the behest of Chancellor Karl Renner, Kelsen worked on drafting a new Austrian Constitution, enacted in 1920. He was appointed to the Constitutional Court for his lifetime.

Reader's Guide

Kelsen's significance lies in his pure theory of law, which sought to describe law without moral or political values, and in his practical contributions to constitutional law. He was the principal architect of the 1920 Austrian Constitution, which introduced the modern European model of constitutional review through a separate constitutional court. This model 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. 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. His legacy includes his monistic theory of law and state, his critique of Carl Schmitt's advocacy for the priority of the political concerns of the state, and his enduring influence on legal positivism and international law.

Did You Know?

• Kelsen was baptised as a Roman Catholic on 10 June 1905, and later converted to Lutheranism of the Augsburg Confession on 25 May 1912.
• He studied under distinguished jurist Georg Jellinek at the University of Heidelberg for three consecutive semesters starting in 1908.
• Kelsen was the principal architect of the 1920 Austrian Constitution, which, with amendments, remains in force.
• In 1934, Roscoe Pound lauded Kelsen as 'unquestionably the leading jurist of the time'.
• Kelsen was never given a permanent position in a law school in the United States; he worked in the department of politics at the University of California, Berkeley from 1942 until 1952.