Hans Kelsen

Hans Kelsen (* 11. October 1881 in Prague in the Austria Hungary at that time; † 19. April 1973 in Berkeley, the USA) is considered as one of the most important lawyers 20. Century. It furnished in particular in the public law, international law as well as right theoretician outstanding contributions. It countedtogether with George Jellinek and that Hungarian Felix Somlo for the group of the Austrian right positivists.

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lives

Hans Kelsen came of to a German-speaking Jewish family in Prague. The father AdolfKelsen (1850-1907) originated from Brody (east galizien), its nut/mother Augusts Löwy (1860-1950) from new house (Böhmen). The family pulled later to Vienna, where it visited first the Evangelist elementary school, then the academic High School in Vienna. Kelsen stepped for purely pragmatic reasons 1905 to Roman-catholic faith over.

Kelsen studied 1911 in public law and philosophy of law in Vienna jurisprudence and habilitierte. Kelsen visited also a seminar in Heidelberg, where he met public law professor Georg Jellinek (1851-1911). 1912 married itself Kelsen Margarete Bondi. The married couple had two children.

Hans Kelsenfirst professor was in Vienna (starting from 1917 ao professor, starting from 1919 full professor) and Cologne (starting from 1930) and later, first in Geneva (starting from 1933) and in the following after his emigration into the USA (1940), in Berkeley.

Kelsen was close politically to the social-democracyand outward a interessenpluralistisches picture of the democracy represented.

Kelsen was the founder of the pure legal doctrine (philosophically it stood for the Neukantianismus close), with which he the right positivism to a new theoretical basis set, and is the main author of the Austrian Federal Constitution of 1920 (Federal Constitutional Court 1920).By this created constitutional court yard it belonged Paul Vitorelli over suggestion of the first president . The constitutional court barness affected considerably by it had example effect for completely Europe. He got eleven honour doctorates (Utrecht, Harvard, Chicago, Mexico, Berkeley, Salamanca, FU Berlin, Vienna, new School OF Social ResearchNew York, Paris, Salzburg) for its life's work.

Mental antipodes were Carl Schmitt, Hermann Heller or Rudolf Smend, which had a more strongly sociological, sometimes also than “spirit-scientifically” designated right understanding (S. also the legal and „the sociological “state term in that Weimar state theory).

Work on []

Right positivism

Hans Kelsen put largest value “to be” on the distinction of the categories “being supposed” and. However due to the fact that something is, it cannot be closed that it is to be also like that. It concerns therefore different thought categories in the sense Immanuel Kant.Standards belong to the range of the being. Their specific existence is called validity. A standard can deduce their validity only from another - higher - standard, never from a bare fact (for instance power). Thus one arrives however into an infinite recourse, there over everyoneStandard a higher to stand would have. In order to solve this problem, Kelsen introduced the so-called basic standard. This does not have actual contents, but serves as a transzendentallogische condition, in order to ensure the unanimity of a juridical system. A standard belongs to a legal order only if it itselfto this basic standard to attribute leaves. Ursprünglichのmeinte KelsenのdassはGrundnormのeineのHypotheseのsei、späterのihrのeineのFiktionのzuのgingえーdazuのüberを、sehen死ぬ。 The subject of the jurisprudence are after Kelsen excluding legal rules. Naturally there are also different Normensysteme such as custom and moral; the latter is but the subject of the ethics, which is concerned evenly with standards of the moral. The Rechtswissenschafter does not have to examine in its representation of the valid right whether a standard is fairly” or “unfair” after certain moral conceptions “. This would be an unreliable blending of different Normensystemen and became thatdo not do justice to demanded purity of the legal doctrine.

however

  • less frequently one cannot hear quotations: The pure legal doctrine is not capable at all of fulfilling their methodical basic demand and is even only the expression of a certain political value attitude. But which? Fascists explain itfor democratic liberalism, liberal or socialist democrats they hold for a pacesetter of fascism. From communist side is as ideology of a capitalistic budgetism, from nationalistisch capitalistic side soon as glaring bolshevism, soon as hidden anarchy mash this-qualified… Briefly, there is at all no political direction, of themone would not have suspected the pure legal doctrine yet. But the straight proves better, than she could do it: their purity.
  • The search for the validity reason of a standard cannot, as the search for the cause of an effect, in the endless to go. It must with a standardend, as the latter, highest are presupposed. As the highest standard it must be presupposed, since it cannot be set by an authority, whose authority would have to be based on a still higher standard. ... Such highest presupposed standard is called here as basic standard.
  • Democracyis the jenige system of government, which resists to few its opponents. It seems to be their tragic fate that it must feed also their worst enemy at their own chest.

Hauptwerke

  • of Hauptprobleme of the public law teachings (1911, 2. Aufl. 1923)
  • Of the nature andWorth the democracy (1920, 2. Aufl. 1929)
  • Austrian public law (1923)
  • general state teachings (1925)
  • pure legal doctrine (1934; 2. Aufl. 1960)
  • Retaliation and causality (written 1941, publish 1946)
  • general Theory OF Law and State (1945)
  • The Law OF the United nation (1950)
  • Principles OF internationally Law1 (1952,2. Aufl. 1966)
  • General theory of the standards (1979 postum published)

see also

right positivism

Viennese school (jurisprudence).

Web on the left of

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