Hans Kelsenʼs Theory of Law

Abstract

Hans Kelsen’s (1881-1973) teaching in law covers studies in such topics as the general theory of law, legal philosophy, the general teaching of law, constitutional, administrative and international law. He was also the author of the Austrian Constitution, designed in 1920. Among many of his publications is the Comment of the Charter of the United Nations, published in 1950 in New York City.
Among numerous Hans Kelsen’s publications, translated into many languages, the best known, which has made the greatest impact, is his book ‘Pure Theory of Law’, first published in 1934, and the second edition appeared in 1960 together with attachment ‘The Justice Problem’. In particular, a comprehensive legal and policy issue in 1929 appears in Kelsen’s work ‚On the Nature and Value of Democracy‘.
Pure Theory of Law is a theory of positive law, the science that reads positive law only into normative sense. Kelsen eliminates any non-normative approach. His science of law is based on the legal positivism and leads to the neutrality of government valuables and indifferent provisions of individual. Kelsen disclaims any ‘over-positive law’ (Recht präpositives), as well as from the natural law. Therefore, the Pure Theory of Law fits for totalitarian and authoritarian regimes.
Kelsen looks at the legal validity of the justification as the anatomy of positive law. He derives the basis for the validity of norms from a hypothetical, separated from the content The Underlying Rule (Grundnorm). The Underlying Rule, as a formal legal point of accountability for positivity (Zurechnungspunkt), ensures the constitution, which in its turn points out the leading steps of legal procedures. This training was taken by Kelsen from his student and later his colleague Adolf Merkl (1890-1970), and thus through Merkl static interpretation of the law became a dynamic one.
Steps of legal procedures assert themselves in hierarchically organised, concretising constitution legislation, such as constitutional law, common law, judicial decisions, administrative regulations and executive acts.
The durability of the validity of these rules and their effectiveness is always ensured through legislation, application and obeying the law. In fact, the validity of legal norms terminates when there is no effectiveness mentioned above.
Therefore, Merkl demanded for supplementing teaching in legal forms, which relied on Kelsen’s Pure Theory of Law, with ideas on the content of the law (Rechtsinhaltsbetrachtung). Kelsen called ‘relativity’ in his work ‘The Essence of Democracy and the Value’ as the democratic worldview (Weltanschauung der Democrats).
Kelsen’s merit is the explanation of possibilities and limitations of law through normative terms, offering to link a fair understanding of the right with its application.