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Hans Kelsen

law norm legal theory

Hans Kelsen was a European legal philosopher and teacher who emigrated to the United States in 1940 after leaving Nazi Germany. Kelsen is most famous for his studies on law and especially for his idea known as the pure theory of the law.

Kelsen was born in Prague, Czechoslovakia, on October 11, 1881. He studied at several universities, including Berlin, Heidelberg, and Vienna. He received a doctor of laws degree from Vienna in 1906 and began teaching at the school in 1911. He taught public law and JURISPRUDENCE at Vienna until 1930, when he moved to Germany to teach at the University of Cologne. There he taught INTERNATIONAL LAW and jurisprudence and served as dean for two years.

With the rise of the Nazi government, he left Germany and emigrated to Switzerland in 1933. He taught at the Graduate Institute of International Studies of the University of Geneva until 1940. He accepted a position as lecturer at the Harvard University Law School the same year, and relocated to the United States. Later in 1940 he accepted a teaching position at the University of California at Berkeley. He remained at Berkeley until his retirement in 1952.

Kelsen's pure theory of the law is fairly abstract. Its objective is knowledge of that which is essential to law; therefore, the theory does not deal with that which is changing and accidental, such as ideals of justice. Kelsen believed that law is a science that deals not with the actual events of the world (what is) but with norms (what ought to be). The legal relation contains the threat of a sanction from an authority in response to a certain act. The legal norm is a relation of condition and consequence: if a certain act is done, a certain consequence ought to follow.

In this theory a legal system is made of a hierarchy of norms. Each norm is derived from its superior norm. The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest basic norm. The Grundnorm is not deduced from anything else but is assumed as an initial hypothesis. A norm is a valid legal norm only because it has been created according to a definite rule.

The theory is independent of morality. It does not matter which particular Grundnorm is adopted by a legal order. All that matters is that this basic norm has a minimum effectiveness: it must command a certain amount of obedience, since the effectiveness of the total legal order is necessary for the validity of its norms.

Kelsen received acclaim for authoring many publications, including General Theory of Law and State (1945), The Law of the United Nations (1950–51), Principles of International Law (1952), and What Is Justice? (1957).

He died April 20, 1973, in Berkeley, California.

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about 5 years ago

i think kelsen is right in his comments about the legal norms but he fails to give us the consequences of the norms.