Hans Kelsen and His Contribution to Law

Hans Kelsen was an Austrian jurist, professor, legal scholar, international writer and political philosopher of the 20th century who has the credit of authoring the Constitution of Austria and Pure Theory of Law which revived the original analytical legal thought of jurisprudence. Kelson wrote extensively on legal jurisprudence with the aim of removing the impression and influences of other sciences and theories from the philosophy of law and to evolve its purest form.

Life and Career (1881 − 1973)

Hans Kelsen was born in a German speaking ordinary Jewish family of Austria. He received his early education in Prague, although he moved to Germany during the rise of totalitarianism in Austria. However, he had to leave Germany as well after some time as after the Nazi seizure. Therefore, he initially shifted to Geneva and afterwards settled in America, though he returned to Austria in 1906 and acquired his doctorate in law from the University of Vienna.

Kelson started his career as a writer and his books on political and legal theories made him an influential personality across Europe. Moreover, he also delivered lectures as a Professor of Public Law and Legal Philosophy at the University of Vienna before drafting the Austrian Constitution in 1920.

Thereafter, he served as a Judge of the Supreme Constitutional Court of Austria for a decade and afterwards shifted to England and US subsequently. Additionally, he wrote many books while serving as Professor of Law in several American Universities.

Further, he expounded his Pure Theory of Law while being an Emeritus Professor of Political Science in the University of California.

Pure Theory of Law

Kelson’s theory of pure science of law, also known as Theory of Interpretation, was a reaction against the influences of different ideologies on legal theory and especially on jurisprudence.

Kelsen vigorously advocated for the separation of law from politics, sociology, philosophy, and all other extra−legal studies and was opposed to expanding the scope of jurisprudence by linking it with all social sciences. Thus, he essentially aimed to save law from vague mysticism and revitalise the Austinian analytical school of thought.

Like Austin, Kelson also divested law from morality, ethics, idealism and society, and wished to create a pure science of law devoid of all moral and sociological considerations.

Law as Normative Science

In contrast to natural science, which is based on a precise description of law as it is, Kelsen defined law as a normative science. Despite the fact that Kelson thought that the science of law is knowledge of what the law should be since it is the "ought" character that gives the law its normative character.

Additionally, Kelsen considered sanction as an essential element of law but he called it norm. For him, norm is a sanction and rule that prescribes or forbids a certain conduct. He also marked a difference between legal and moral norms, as the former have a sanction and are therefore punitive in nature in cases of disobedience, unlike the latter, which is just a utopian idea.

Kelsen’s: The Grundnorm

The foundation of Kelsen's pure theory of law is a pyramidal hierarchy of norms which derives its legitimacy from the "Grundnorm". Therefore, the grundnorm, or fundamental norm, establishes the substance and confers legitimacy on additional norms derived from it.

Though Kelson failed to explain how and from where the grundnorm derives its own validity. However, he categorically held that grundnorm need not be the same in every legal order but it must be necessarily there either in the form of a written constitution or the will of the sovereign.

Pyramid of Norms

According to Kelsen's pyramid of norms, the hierarchically superior norms in the pyramid regulate the subordinate norms. However, the fundamental standard, often known as the Grundnorm, is unaffected by any other standard being at its highest point.

Conclusion

The pure theory of law as enunciated by Hans Kelson was harshly criticized for its vague contemplation of law and for certain glaring defects. However, despite these shortcomings, Kelson’s contribution in the political and legal theory is commendable. His understanding and approach of law as an independent discipline and autonomous of all other science reinforces the underlying purposes of the study of jurisprudence in the modern contemporary times. Moreover, Kelson’s new approach towards law and political theory has revived the dying analytical and positivist schools of jurisprudence in the 20th century.

Frequently Asked Questions

Q: Who was Hans Kelsen?

Ans: A: Hans Kelsen (1881−1973) was an Austrian jurist, philosopher, and legal theorist known for his contributions to the field of legal positivism and his development of the "Pure Theory of Law."

Q: What is Hans Kelsen best known for?

Ans: Kelsen is best known for his "Pure Theory of Law," a legal theory that seeks to analyze law as a self−contained system of norms, detached from moral or political considerations.

Q: How did Hans Kelsen explain the concept of Grundnorm?

Ans: Kelsen described his idea of Grundnorm as the basic norm and source of all other laws in a particular legal system of a country. For instance, the Constitution of a country can be considered as the basic norm which provides the content and legal sanction to all other norms or laws as it constitutes the foundation of the legal system of the country.

Q: How did Kelsen’s pure theory of law revive the Analytical School of Jurisprudence as propounded by John Austin?

Ans: Kelsen’s pure theory of law was based on the principles similar to that of Austin’s Analytical Jurisprudence as they both treated law as an autonomous jurisprudence devoid of any social or moral influence. Additionally, they both disregarded the natural theory; instead based their ideas on the positive legal philosophy and emphasized on the ideal or normative character of law.

Q: How did Kelsen view the relationship between law and morality?

Ans: Kelsen believed in a strict separation between law and morality. He argued that law is a normative system that does not depend on moral considerations for its validity.

Q: How did Kelsen's theories differ from legal positivism?

Ans: While Kelsen's theories are often associated with legal positivism, he introduced some distinctive elements, such as the "grundnorm" and his focus on the internal structure of legal systems, which set his theories apart from traditional legal positivism.

Q: What was Kelsen's influence on constitutional law?

Ans: Kelsen made significant contributions to constitutional law, partic ularly with his work "The Pure Theory of Law and Analytical Jurisprudence" (1967), where he applied his legal theories to the study of constitutional systems.

Q: How did Kelsen's theories relate to international law?

Ans: Kelsen also extended his legal theories to international law. He argued that international law could be understood as a self−contained normative system, separate from national legal systems.

Q: What is Kelsen's legacy?

Ans: Hans Kelsen's legacy lies in his innovative approach to legal theory, particularly his "Pure Theory of Law." While his ideas were met with criticism and debate, they have left a significant impact on legal philosophy, especially in discussions about the nature of law and its relationship to other disciplines.