Hans Kelsen 1881 – 1973

Hans Kelsen was an Austrian-American jurist and legal philosopher and the principal theorist of the pure theory of law. He drafted the federal constitution of the Austrian Republic in 1920, served on its constitutional court, and after exile under the Nazi regime spent the rest of his career at Cologne, Geneva, and Berkeley. His Pure Theory of Law sought to free legal science from the influence of moral, sociological, and political considerations and grounded the validity of law in a hierarchy of norms ascending to a presupposed Grundnorm. His General Theory of Law and State and his work on international law shaped postwar constitutionalism around the world.

Hans Kelsen was born at Prague in October 1881 into a German-speaking Jewish family that converted to Catholicism in his youth. He took his doctorate in law at the University of Vienna in 1906 and habilitated there in 1911 with the Hauptprobleme der Staatsrechtslehre. From 1919 he held the chair of public and administrative law at Vienna and was the principal author of the new federal constitution of the Austrian Republic adopted in 1920, with its pioneering centralised constitutional court. Forced out by the rise of Austrofascism in 1930, he taught at Cologne until the Nazis dismissed him in 1933, then at Geneva and Prague; in 1940 he emigrated to the United States, where from 1942 he was professor at the University of California, Berkeley.

His major works are the Hauptprobleme der Staatsrechtslehre (1911), the Reine Rechtslehre (Pure Theory of Law, 1934, with a much expanded second edition in 1960), the General Theory of Law and State (1945), Principles of International Law (1952), What Is Justice? (1957), and the posthumous General Theory of Norms (1979).

Kelsen aimed to purify legal science of every borrowing from sociology, ethics, or politics, treating law as a hierarchical system of valid norms whose unity is presupposed in a basic norm or Grundnorm. The pure theory of law became the most influential legal theory of the twentieth century outside the common-law world; its centralised model of constitutional review shaped the constitutional courts of postwar Europe. He died at Berkeley in April 1973.