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Biography[ edit ] Kelsen was born in Prague into a middle-class, German-speaking, Jewish family. Hans was their first child; there would be two younger brothers and a sister.
The family moved to Vienna inwhen Hans was three years old. After graduating from the Akademisches GymnasiumKelsen studied law at 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 having converted a few days earlier to Lutheranism of the Augsburg Confession ; they would have two daughters. 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.
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.
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. The document still forms the basis of Austrian constitutional law.
Kelsen was appointed to the Constitutional Court, for his lifetime. 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 then latter in the Federal Republic of GermanyItalySpainPortugaland later 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 Kelsen and his European years between and [ edit ] In her recent book on Kelsen, Sandrine Baume  has summarized the confrontation between Kelsen and Schmitt at the very start of the s.
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. 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 During this time period, Hans Morgenthau departed from Germany to complete his habilitation dissertation in Geneva, for which Hans Kelsen advised, which resulted in his first book written in French being published entitled, The Reality of Norms and In Particular the Norms of International Law:Top Successful College Essays.
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