This analysis of Hans Kelsen's international law theory takes into account the context of the German international legal discourse in the first half of the twentieth century, including the reactions ...of Carl Schmitt and other Weimar opponents of Kelsen. The relationship between his Pure Theory of Law and his international law writings is examined, enabling the reader to understand how Kelsen tried to square his own liberal cosmopolitan project with his methodological convictions as laid out in his Pure Theory of Law. Finally, Jochen von Bernstorff discusses the limits and continuing relevance of Kelsenian formalism for international law under the term of 'reflexive formalism', and offers a reflection on Kelsen's theory of international law against the background of current debates over constitutionalisation, institutionalisation and fragmentation of international law. The book also includes biographical sketches of Hans Kelsen and his main students Alfred Verdross and Joseph L. Kunz.
This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It ...includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under Article 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories.
By re-examining the political thought of Max Weber, Carl Schmitt and Hans Kelsen, this book offers a reflection on the nature of modern democracy and the question of its legitimacy. Pedro T. ...Magalhães shows that present-day elitist, populist and pluralist accounts of democracy owe, in diverse and often complicated ways, an intellectual debt to the interwar era, German-speaking, scholarly and political controversies on the problem(s) of modern democracy. A discussion of Weber’s ambivalent diagnosis of modernity and his elitist views on democracy, as they were elaborated especially in the 1910s, sets the groundwork for the study. Against that backdrop, Schmitt’s interwar political thought is interpreted as a form of neo-authoritarian populism, whereas Kelsen evinces robust, though not entirely unproblematic, pluralist consequences. In the conclusion, the author draws on Claude Lefort’s concept of indeterminacy to sketch a potentially more fruitful way than can be gleaned from the interwar German discussions of conceiving the nexus between the elitist, populist and pluralist faces of modern democracy. The Legitimacy of Modern Democracy will be of interest to political theorists, political philosophers, intellectual historians, theoretically oriented political scientists, and legal scholars working in the subfields of constitutional law and legal theory.
In a lively account of Kelsen's life and political thinking, Robert Schuett introduces him as a political realist and brings his thought on human nature, the state and war into productive tension ...with today's Schmittians and conventional views of foreign policy realism.
This article addresses the question whether a legal system can have an identity through time. The jurisprudential debate over the question has been dominated by Hans Kelsen's account of systemic ...unity of norms, on the one hand, and John Finnis's and Joseph Raz's accounts of the identity of a social system (for example a state) of which a legal system is a part, on the other. Drawing on two previously unexplored situations as test cases for successful explanation, the article demonstrates that the major existing accounts are not wholly satisfactory. A new solution is proposed: it is the practice of legal officials that evinces the criteria for recognising the continuity of the legal system whose officials they are. The article develops an account of the practice's central features and demonstrates that the account supplies coherent solutions to the test cases.
Hans Kelsen's theory of the nature of legal systems-and how legal systems are changed-has been endorsed in a series of cases in which courts have adjudicated the legality of a revolution. In all of ...these cases except one, courts have validated the revolutionary regime. This article focuses on the sole case that stands against this jurisprudential tide: Republic of Fiji v Prasad. In Prasad, the Court explicitly criticised Kelsen's influence on the jurisprudence of revolution and, remarkably, declared the coup in question unlawful. Commentators have received the case positively, arguing that the court's eschewal of Kelsen was instrumental to the result in the case. I seek to rebut this received view. I show that the Kelsenian view is alive and well in the Court's method and result. I conclude with broader reflections on the very coherence of a jurisprudence of revolution itself.
À l'heure où la Cour pénale internationale se voit critiquée par nombre de ses détracteurs, cet ouvrage propose une analyse de la judiciarisation internationale au prisme de l’un de ses initiateurs : ...Hans Kelsen. Le théoricien du normativisme a réfléchi sur le droit international, notamment lors de son exil aux États-Unis. Il ne cessera de promouvoir une Organisation des Nations unies dont le pivot serait une juridiction. Tout en permettant de mieux saisir la trajectoire intellectuelle du juriste viennois outre-Atlantique, les études rassemblées ici soulignent les tensions inhérentes à l’établissement des premiers tribunaux militaires après la Seconde Guerre mondiale, qu’elles concernent la reconnaissance d’un individu justiciable ou bien l’application du principe de non-rétroactivité. Fondé notamment sur la présentation et la traduction de textes consacrés à la responsabilité et à la poursuite des criminels de guerre, cet ouvrage rentre en résonance avec les dilemmes contemporains qui entourent l’établissement d’une justice pénale internationale.
In the first edition of his famous treatise 'Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik' (translated as 'Introduction to the problems of legal theory'), Hans Kelsen ...makes the claim that the existing liberal, property rights-based private law of his era is a 'democratic form of law' and that private law rights are 'political in the same sense as those rights that are usually characterized as political rights.' In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the 'Pure Theory of Law' and its philosophical underpinnings of relativism and 'value neutrality,' culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often under-appreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing 'ideology.' To Kelsen's contemporary audiences, drawing a connection between 'capitalist' private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important - if now almost forgotten - political debates of the Weimar era, the debate on 'economic democracy' ('Wirtschaftsdemokratie'). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards - private, labour, commercial, and corporate law - were 'undemocratic.' I submit that Kelsen's statement - flipping the contemporaneous revisionist-socialist rhetoric on its head - may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing 'bourgeois' parliamentary democracy with a 'true,' 'social' democracy that would realize conditions of social and economic justice. By connecting 'capitalistic' law with 'democracy' and 'socialistic' law with 'autocracy,' Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.
Abstract
Hans Kelsen’s first book was a thorough investigation of Dante’s The Monarchia. Why did Kelsen become interested in medieval political theory? This article deals with Kelsen’s treatment of ...Dante’s political philosophy and asks what one can infer from Kelsen’s reading of Dante for the intellectual development of the young Kelsen and his further research interests and philosophical convictions.
Mario Patrono has made many visits to New Zealand, and to Victoria University of Wellington School of Law in particular, during the course of his career. Most recently he has been a Visiting ...Professor at the Law School, arriving for the first trimester of 2013, 2014, and soon 2015, enjoying Wellington's calmer autumn months, then sensibly returning to Rome before winter takes hold. During each of these visits Professor Patrono leads a seminar class on the fundamentals of European Union law for honours and masters students. He also contributes to the intellectual life of the Law School more generally, speaking at staff and student events. This article is based on one of those speaking engagements. The context of this talk was a Law School student seminar on the history and theory of international law led by Dr Guy Sinclair. Professor Patrono was invited to introduce the students to the work of Hans Kelsen. In this lecture he outlines Kelsen's background and key works for this audience, touching on subjects such as Kelsen's departure from Europe and early reception in the United States, before challenging those present with the notion that Kelsen's work might have something to offer New Zealand constitutional scholarship.
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