Hans Kelsen, (born Oct. 11, 1881, Prague, Bohemia, Austria-Hungary [now in Czech Republic]—died April 20, 1973, Berkeley, Calif., U.S.), Austrian-American legal philosopher, teacher, jurist, and writer on international law, who formulated a kind of positivism known as the “pure theory” of law.
Kelsen was a professor at Vienna, Cologne, Geneva, and the German university in Prague. He wrote the Austrian constitution adopted in 1920 and served as a judge of the Austrian Supreme Constitutional Court (1920–30). After immigrating to the United States in 1940, he taught at Harvard, the University of California at Berkeley, and the Naval War College, Newport, R.I.
Kelsen’s “pure theory” was first presented in Hauptprobleme der Staatsrechtslehre (1911; “Chief Problems of the Doctrine of International Law”). He considered that a theory of law should validate and give order to law itself. By “pure” he meant that a theory of law should be logically self-supporting and should not depend on extralegal values. Fundamental to a system of law is some assumption (Grundnorm) that is accepted by a substantial proportion of the community. Kelsen nevertheless admitted the relevance of sociology and ethics to the lawmaking process and to the content of laws.
Among Kelsen’s later books are General Theory of Law and State (1945) and The Law of the United Nations (1950–51). In such works as Principles of International Law (1952) he envisioned a world unity under law superimposed on the legal order within each nation.
Kelsen's Pure Theory of Law aims to describe law as a hierarchy of binding norms, while refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'.
Read a brief summary of this topic
state, political organization of society, or the body politic, or, more narrowly, the institutions of government. The state is a form of human association distinguished from other social groups by its purpose, the establishment of order and security; its methods, the laws and their enforcement; its territory, the area of jurisdiction or geographic boundaries; and finally by its sovereignty. The state consists, most broadly, of the agreement of the individuals on the means whereby disputes are settled in the form of laws. In such countries as the United States, Australia, Nigeria, Mexico, and Brazil, the term state (or a cognate) also refers to political units that are not sovereign themselves but subject to the authority of the larger state, or federal union.
Greek and Roman precedents
The history of the Western state begins in ancient Greece. Plato and Aristotle wrote of the polis, or city-state, as an ideal form of association, in which the whole community’s religious, cultural, political, and economic needs could be satisfied. This city-state, characterized primarily by its self-sufficiency, was seen by Aristotle as the means of developing morality in the human character. The Greek idea corresponds more accurately to the modern concept of the nation—i.e., a population of a fixed area that shares a common language, culture, and history—whereas the Roman res publica, or commonwealth, is more similar to the modern concept of the state. The res publica was a legal system whose jurisdiction extended to all Roman citizens, securing their rights and determining their responsibilities. With the fragmentation of the Roman system, the question of authority and the need for order and security led to a long period of struggle between the warring feudal lords of Europe