Grundnorm and Constitution: The Legitimacy of Politics. T. C. Hopton*. Hans Kelsen’s Pure Theory of Law and its doctrine of the Grund- norm has achieved a . 1Central to the works of Hans Kelsen, H. L. A. Hart, and many other legal theorists for legal normative systems Kelsen called “the Basic Norm” (“ Grundnorm”) oing ssay his on orget utline elsen heory irst articularly he ature ontent nd unction he rundnorm there is little doubt that in the majority of cases, certainly.
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He is author of the Austrian Constitutionwhich to a very large degree is still kkelsen today. Due to the rise of totalitarianism in Austria and a constitutional change Kelsen left for Germany in but was forced to grundnogm this university post after Hitler’s seizure of power in because of his Jewish ancestry.
That year he left for Geneva and later moved to the United States in InRoscoe Pound lauded Kelsen as “undoubtedly the leading jurist of the time.
By the s, Kelsen’s reputation was already well established in the United States for his defense of democracy and for his Pure Theory of Law. Kelsen’s academic stature exceeded legal theory alone and extended to political philosophy and social theory as well.
His influence encompassed the fields of philosophy, legal science, sociology, the theory of democracy, and international relations. Late in his career while grundjorm the University of California, Berkeleyalthough officially retired inKelsen rewrote his short book grundnorkReine Rechtslehre Pure Theory of Lawinto a much enlarged “second edition” published in it appeared in an English translation in Kelsen throughout his active career was also a significant contributor to the theory of judicial review, the hierarchical and dynamic theory of positive law, and the science of law.
In political philosophy he was a defender of the state-law identity theory and an advocate of explicit contrast of the themes of centralization and decentralization in the theory of government. Kelsen was grhndnorm an advocate of the position of separation of the concepts of state and society in their relation to the study of the science of law. The reception and criticism of Kelsen’s work and contributions has been extensive with both ardent supporters and detractors. Kelsen’s contributions to legal theory of the Nuremberg trials was supported and contested by various authors including Dinstein at the Hebrew University in Jerusalem.
Kelsen’s neo-Kantian defense of continental legal positivism was supported by H. Hart in its contrasting form of Anglo-American legal positivism, which was debated in its Anglo-American form by scholars such as Ronald Dworkin and Jeremy Waldron. Kelsen was born in Prague into a middle-class, German-speaking, Jewish family.
Hans was their first child; there would be two younger grumdnorm and a sister. The family moved to Vienna inwhen Hans was three years old. After graduating from the Gdundnorm GymnasiumKelsen studied law grunnorm the University of Viennataking his doctorate in law Dr. Twice in his life, Kelsen converted to separate religious denominations. On 25 May he married Margarete Bondi —the two kwlsen converted a few days earlier to Lutheranism of the Augsburg Confession ; they would have two daughters.
Kelsey’s doctoral thesis on Dante’s theory of the state in became grundnorrm first book on political theory. The study makes a rigorous examination of the “two swords doctrine” of Pope Gelasius Ialong with Dante’s distinct sentiments in the Roman Catholic debates between the Guelphs and Ghibellines.
In Kelsen won a research scholarship which allowed him to attend the University of Heidelberg for three consecutive semesters, where he studied with the distinguished jurist Georg Jellinek before returning to Vienna.
The closing chapter of Kelsen’s study of political allegory kwlsen Dante also was important for emphasizing the particular historical path which led directly to the development of modern law in the twentieth century.
For Kelsen, this would be instrumental in the orientation of his own legal thinking in the direction of strong rule of law government, with a heightened emphasis on the central importance of a fully elaborated power of judicial review. Kelsen’s time at Heidelberg was of lasting importance to him in that he began to solidify his position of the identity of law and state from the initial steps he observed as being taken by Jellinek.
Kelsen’s historical reality was to be surrounded by the dualistic theories of law and state prevailing in his time. The major question for Jellinek and Kelsen, as stated by Baume  is, “How can the independence of the state in a dualist perspective be reconciled with its status as representative of the legal order?
For dualistic theorists there remains an alternative to monistic doctrines: Georg Jellinek is an eminent representative of this theory, which allows one to avoid reducing the state to a legal entity, and also to explain the positive relationship between law and state. The self-limitation of the sphere of the state presupposes that the state, as a sovereign power, by the limits that it imposes on itself, becomes a rule-of-law state.
This dualism is, in turn, due to a fallacy of which we meet numerous examples in the history of all fields of human thought. Our desire for the intuitive representation of abstractions leads us to personify the unity of a system, and then to hypostasize the personification. What originally was only a way of representing the unity of a system of objects becomes a new object, existing in its own right.
Voluntary subordination is not subordination. The state is not really limited by the law if the state alone can introduce and write this law, and if it can at any time make any changes that it wants to make in it. This kind of foundation of public law is clearly extremely fragile.
Inhe achieved his habilitation license to give university lectures in public law and legal philosophywith a thesis that became his first major work on legal theory, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze “Main Problems in Theory of Public Law, Developed from Theory of the Legal Statement”. The document still forms the basis of Austrian constitutional law. Kelsen was appointed to the Constitutional Court, for his lifetime. Kelsen’s emphasis during these years upon a Continental form of legal positivism began to further flourish from the standpoint of his law-state monism, somewhat based upon the previous examples of Continental legal positivism found in such scholars of law-state dualism such as Paul Laband — and Carl Friedrich von Gerber — During the early s he published six major works in the areas of government, public lawand international law: During the s, Kelsen continued to promote his celebrated theory of the identity of law and state which made his efforts a counterpoint to the position of Carl Schmitt who advocated for the priority of the political concerns of the state.
This was first introduced in both Austria and Czechoslovakia in and later in the Federal Republic of GermanyItalySpainPortugalas well as in many countries of Central and Eastern Europe. As described above, the Kelsenian court model set up a separate constitutional court which was to have sole responsibility over constitutional disputes within the judicial system. Kelsen was the primary author of its statutes in the state constitution of Austria as he documents in his book cited above.
This is different from the system usual in common-law countries, including the USA, in which courts of general jurisdiction from the trial level up to the court of last resort frequently have powers of constitutional review. Following increasing political controversy about some positions of the Constitutional Court of Austria, Kelsen faced increasing pressure from the administration which appointed him to specifically address issues and cases concerning the providence of divorce provisions in state family law.
Kelsen was inclined to a liberal interpretation of the divorce provision while the administration which had originally appointed him was responding to public pressure for the predominantly Catholic country to take a more conservative position on the issue of the curtailment of divorce.
In this increasingly conservative climate, Kelsen, who was considered sympathetic to the Social Democratsalthough not a party member, was removed from the court in In her recent book on Kelsen, Sandrine Baume  has summarized the confrontation between Kelsen and Schmitt at the very start of the s. This debate was to reignite Kelsen’s strong defense of the principle of judicial review against the principle of an authoritarian version of the executive branch of government which Schmitt had envisioned for national socialism in Germany.
As Baume states, “Kelsen defended the legitimacy of the constitutional court by combating the reasons that Schmitt cites for assigning the role of the guardian of the Constitution to the President of the Reich. The dispute between these two lawyers was about which body of the state should be assigned the role of guardian of the German Constitution. Kelsen thought that this mission ought to be conferred on the judiciary, especially the Constitutional Court. Kelsen accepted a professorship at the University of Cologne in When the National Socialists came to power in Germany inhe was removed from his post.
He relocated to GenevaSwitzerland where he taught international law at the Graduate Institute of International Studies from to Foundations of a Theory of Norms. Kelsen was among the strongest critics of Carl Schmitt because Schmitt was advocating for the priority of the political concerns of the state over the adherence by the state to the rule of law. Kelsen and Morgenthau were united against this National Socialist school of political interpretation which down-played the rule of law, and they became lifelong colleagues even after both had emigrated from Europe to take their respective academic positions in the United States.
During these years, Kelsen and Morgenthau had both become persona non grata in Germany during the full rise to power of National Socialism.
Basic norm – Wikipedia
That Kelsen was the principal defender of Morgenthau’s Habilitationschrift is recently documented in the translation of Morgenthau’s ke,sen titled The Concept of the Political. When Morgenthau had found a Paris publisher for the volume, he asked Kelsen to re-evaluate it. In the words of Behr and Rosch, “Kelsen was the right choice to assess Gundnorm thesis because not only was he a senior scholar in Staatslehrebut Morgenthau’s thesis was also largely a critical examination of Kelsen’s legal positivism.
This interest in international law in Kwlsen was in reaction largely to the Kellogg—Briand Pact in and his negative reaction to the vast idealism he saw represented in its pages, along with the lack of the recognition of sanctions for the illicit actions of belligerent states.
Kelsen had come to endorse strongly the sanction-delict theory of law which he saw as substantially under-represented in the Kellogg—Briand Pact. In — grundnor was briefly professor at the German University in Prague before returning to Geneva where he remained until His interest in grundhorm law would become especially focused in Kelsen’s writings on international war crimes which he would redouble his efforts on behalf of after his departure to the United States.
Inat the age of 58, he and his family fled Europe on the last voyage of the SS Washingtonembarking on 1 June in Lisbon. He was supported by Roscoe Pound for a faculty position at Harvard but opposed by Lon Fuller on the Harvard faculty before becoming a full professor at the department of political science at the University of California, Berkeley in Kelsen was defending a position of the distinction of the philosophical definition of justice as it is separable from the application of positive law.
As Fuller stated his opposition, “I share the opinion of Jerome Hall, grunenorm in this excellent Readingsthat jurisprudence should start with justice. I place this preference not on exhortatory grounds, but on a belief that until one has wrestled with the problem of justice one cannot truly understand kepsen other issues of jurisprudence.
Kelsen, for example, excludes justice from his studies of practical law because it is an ‘irrational ideal’ and therefore ‘not subject to cognition. The meaning of his theory can therefore be understood only when we have subjected to critical scrutiny its keystone of negation. During the ensuing years, Kelsen increasingly dealt with issues of international law and international institutions such as the United Nations.
Another part of Kelsen’s practical legacy, as he has recorded,  was the influence that his writings klesen the s and early s had upon the extensive and unprecedented prosecution of political leaders and military leaders at the end of WWII at Nuremberg and Tokyo, producing convictions in more than one thousand war crimes cases.
For Kelsen, the trials were the culmination of approximately fifteen years of research he had devoted to this topic, which started still in his European years, and which he followed with his celebrated essay, “Will the Judgment In the Nuremberg Trial Constitute a Precedent In International Law? In Kelsen’s companion essay for J. On page of the essay Kelsen states that, “Acts of Kelen are acts of individuals performed by them in their capacity as organs of the State, kdlsen by that organ which is called the Government of the State.
These acts are performed by individuals grndnorm belong to the Government as the head of Stateor members of the cabinet, or are acts performed at its command or with the authorization of the Government. Inhe also published his book-length study about international law entitled Ielsen of International Law in English, and reprinted grunfnorm InKelsen turned to a page essay, “Foundations of Democracy,” for the leading philosophy journal Ethics ; written during the height of Cold War tensions, it expressed a passionate commitment to the Western model of democracy over soviet and national-socialist forms of government.
This essay by Kelsen on democracy was also important for summarizing his critical stance towards the book on politics by his former student in Keksen Eric Voegelin.
Following this, in Kelsen’s book entitled A New Science of Politics Ontos Verlag, reprinted kslsenpp, originally publishedKelsen enumerated a point by point criticism of the excessive idealism and ideology which he saw as prevailing in Voegelin’s book on politics.
This exchange and debate has been documented in the appendix to the book, written by the author on Voegelin, Barry Cooper, entitled Voegelin and the Foundations of Modern Political Science from Kelsen’s other book defending his realist position regarding the issue of the separation of state and religion as opposed to that of Voegelin’s position on this issue was published posthumously under the title Secular Religion. Kelsen’s objective in part was to safeguard the importance of the responsible separation of state and religion for those sympathetic to religion and concerned with this separation.
The Pure Theory of Law (Stanford Encyclopedia of Philosophy)
Kelsen’s book was followed in by a collection of essays gtundnorm justice, law and politics, most of them previously published in English. Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential among scholars of jurisprudence and public lawespecially in Europe and Latin America although less so in common-law countries.
His book titled Pure Theory of Law German: Reine Rechtslehre was published in two editions, one in Europe inand a second expanded edition after he had joined the faculty at the University of California at Berkeley in Kelsen’s Pure Theory of Law is widely acknowledged as his magnum opus.
It aims to describe law as a hierarchy of norms which are also 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 theory, from which in a hierarchy all ‘lower’ norms in a legal systembeginning with constitutional laware 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 grunndnorm source such as God, personified Nature or a personified State or Nation.