19th and 20th centuries
Hans Kelsen
1881–1973 · Austria, Switzerland and the United States · Jurist; drafter of the Austrian Constitution of 1920
1800 BCAD 2000
Life and ideas
Hans Kelsen was born in Prague, grew up in Vienna and became one of the most influential jurists of the twentieth century. In 1920 he drafted the Austrian Constitution, including a constitutional court, which became the model for such courts in Europe. His Pure Theory of Law aims to describe law as it is, free of politics, sociology and natural law. A legal system is a hierarchy of norms in which each norm is valid because a higher norm authorises it, up to the constitution and, at the top, a presupposed basic norm that says the first constitution should be obeyed. Dismissed from his post in Cologne by the Nazis in 1933, he taught in Geneva and Prague and, from 1940, in the United States, at Harvard and Berkeley, and wrote also on democracy and international law.
The big idea
Law is a hierarchy of norms, each valid because it was created as a higher norm authorises, ending in a basic norm (Grundnorm). Legal science should describe norms, not politics or morals.
Main work
Pure Theory of Law (1934; second edition 1960)
Legacy
A model for constitutional courts across Europe and the founding image of modern positivism.
The school of thought
- Legal Positivism: Law is what the proper authorities have laid down, whatever its moral merit.
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