Hans Kelsen - Legal Theory

Legal Theory

Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of jurisprudence and public law, especially in Europe and Latin America although less so in common-law countries.

His Pure Theory of Law aims to describe law as binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a 'basic norm (Grundnorm)' - a hypothetical norm, presupposed by the jurist, from which in a hierarchy all 'lower' norms in a legal system, beginning with constitutional law, are understood to derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms, their specifically 'legal' character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation. The last was of great theoretical and political importance in Germany and Austria of the 1930s, when Kelsen's principal antagonist was Carl Schmitt.

Kelsen's theory both drew from and has been developed by scholars in his homelands, notably the Vienna School in Austria and the Brno School led by František Weyr in Czechoslovakia. In the English-speaking world, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both departed from Kelsen's theories in several respects. The principal writer in English on Kelsen is Stanley L. Paulson.

In his last years, in work that would be published posthumously, Kelsen turned to general theory of norms.