Legal scholar between Europe and the Americas
Hans Kelsen was a prominent legal scholar in interwar Europe and, after immigrating to the United States, became well-known transatlantically for his work on public, constitutional and international law. Kelsen was born on October 11, 1881 in Prague and moved with family to Vienna in 1885. There, Kelsen studied law and qualified as a professor of “state law and legal philosophy” in 1911. During World War I, he served as a legal advisor to the Austro-Hungarian Minister of War. Beginning in 1918, he taught as a professor of public law at the University of Vienna, and in 1921 he accepted a position in the Federal Chancellery, where his main task was the development of the new republican constitution. Kelsen is therefore considered the most significant technical author of Austria’s 1920 Constitution that largely remains in effect today. He also served as a judge in Austria’s Constitutional Court from 1919 to 1930. Subsequently, however, his career took an international and transatlantic turn.
Despite his professional renown, by 1930 Kelsen’s career faced severe challenges. During his years at the University of Vienna, Kelsen had published his Pure Theory of Law which sought to make legal theory a scientific endeavor and which was his first internationally recognized work. He also contributed to the theory of democracy through the book Vom Wesen und Wert der Demokratie, which remains a standard work in political science. However, Kelsen suffered anti-Semitic harassment at the University of Vienna and was dismissed as a judge in the Constitutional Court in 1930. He soon departed Austria, having secured a professorship in international law at the University of Cologne. His time in Cologne ended abruptly in 1933 with the Nazi seizure of power, after which he fled to Geneva. In Geneva he accepted a position at the Institut Universitaire des Hautes Etudes Internationales. Several years later, in 1936, he moved again to accept a position at the German University of Prague.
Building a Transatlantic Professional Network
Persecution not only forced Kelsen to pursue a more international career path within Central Europe, he also began to develop ties across the Atlantic. In 1936, the dean of Harvard Law School, Roscoe Pound, invited him to the 300th anniversary celebration of Harvard’s founding and to the Harvard Tercentenary Conference of Arts and Sciences. At the conference, Kelsen presented his paper “Centralization and Decentralization.”Amongst other luminaries – including Carl Jung, Rudolf Carnap and William Emmanuel Rappard – Kelsen was awarded an honorary doctorate. Legal scholar and later Supreme Court justice Felix Frankfurter, himself a Viennese immigrant, had introduced Pound to Kelsen’s work and, as a result, Pound had long been a great admirer of Kelsen and built upon Kelsen’s ideas for his own work on sociological jurisprudence. Following the 1936 conference, the two developed a long-lasting friendship which would serve Kelsen enormously when he eventually fled Europe. Amongst the other European émigrés at the conference were Kelsen’s long-time friend, lawyer and psychoanalyst Hanns Sachs who was Kelsen’s host during his time in Boston. Kelsen also met the immigrants Fritz Grob and Wolfgang Herbert Kraus who translated his German presentation into English and prepared it for publication.
Kelsen thus began to build up networks in the United States that would enable him to organize his eventual move across the Atlantic. Following the Nazi occupation of the Sudetenland in September 1938, Kelsen wrote to Pound to report his expulsion from the German University of Prague and to ask for help in finding a job in the United States. Pound attempted to offer him a job at Harvard, but failed due to a lack of funds. Subsequently, Pound reached out to his contacts at the universities of Michigan, Illinois and Yale, amongst others. Kelsen was eventually offered a one-year visiting appointment at the University of Illinois, but state budget cuts forced them to rescind the offer. Nevertheless, Kelsen elected to remain in the U.S. “to get into touch with academic circles” (Charles Merriam Papers, Box 51, Folder 7).
In September 1939, Kelsen was again at Harvard, this time for theUnity of Scienceconference. Following the outbreak of World War II, Kelsen decided to remain in the U.S. and his family began making plans to travel from Europe to join him. He met many other Europeans, including Erich Hula, previously his student in Vienna and Cologne who then worked at the New School for Social Research, and was in contact with the Emergency Committee of Displaced German Scholars. The Fletcher School of Law and Diplomacy wanted to help Kelsen and offered him a job, as did the University of Wisconsin’s Department of Political Science.
Unlike many of his fellow émigrés, Kelsen opted to return to Europe in September of 1939, writing aboard the S.S. Washington, “I run the risk of being separated from my family in Geneva, for years” and “the situation in Europe compels me to go back immediately.” Back in Europe, he continued his correspondence with his American friends, with a view to eventually returning to the United States. Following the collapse of the French front in June 1940, Kelsen asked his friend Alvin Johnson of New York’s New School for Social Research for an invitation to return to the United States. Kelsen departed with the final voyage of the S.S. Washington, arriving in New York at the end of June 1940.
Struggling to Establish a Career in the United States
The years that followed proved to be challenging for Kelsen, as the U.S. received a wave of displaced European scholars competing for the few vacancies at U.S. universities. His poor English, and his primary focus on European jurisprudence further hindered Kelsen’s career in the United States. His European focus resulted in a note being placed in his Rockefeller Foundation file that read, “[E]specially the irrelevance of his philosophical approach when war conditions have weakened American law schools make him a difficult problem” (Rockefeller Collection, Record Group 1.1, Series 205 S, Box 24, Folder 364). However, for the academic year 1940/41, Pound was able to furnish Kelsen with the temporary post of Oliver Wendell Holmes lecturer at Harvard Law School, supported in part by the Rockefeller Foundation.
While at first he faced difficulty developing connections within American academic circles, Kelsen succeeded in doing so within the Spanish-speaking world. Of particular note are his friendships with Luis Recasens-Siches, later a professor at the Universidad Nacional Autónoma de México (UNAM), and Antonio Sánchez Bustamante y Montoro, a Cuban legal scholar who studied with Kelsen in Vienna in the early 1920s. Kelsen also dealt with South American constitutional theory, beginning with his commentary on Chile’s 1925 constitution (Kelsen 1969).In 1934 he wrote a legal opinion on the powers attributed to the Brazilian national assembly.
Kelsen’s interest in South American law was aided by his former student, Josef Kunz, later a professor at the University of Toledo, who had been appointed in 1942 by the Association of American Law Schools to undertake a systematic investigation of Latin American legal philosophy. Nevertheless, it was only in 1941, when Kelsen was invited by the Cuban Government to the Second American Conference of National Committees on Intellectual Cooperation that he traveled to Latin America for the first time. His attendance at the conference was financed by the Rockefeller Foundation and allowed him to meet with Mexican legal theorists and philosophers, such as Eduardo García Máynez and Emilio Fernández Camus. In Cuba, Kelsen also met with some of his former students, including Luis Recasens-Siches and Antonio Sánchez Bustamante y Montoro, the latter had been appointed professor at the University of Havana and had announced his support of Carlos Cossio’s “egological interpretation” of Kelsen’s Pure Theory of Law.
Still, his career in the United States remained precarious during the early 1940s. In 1942, Kelsen was appointed a research associate in comparative law at Harvard, and a lecturer in the Harvard Department of Sociology. However, he was never able to find a permanent appointment at Harvard, and so the following year he accepted a visiting professorship in political science at Wellesley College. In 1943, Kelsen was appointed a visiting professor in political science at the University of California, Berkeley, where in December 1943 he published a study on collective and individual responsibility in international law, as it related to the Moscow Declaration (Kelsen 1943).From Berkeley, Kelsen sought to establish contact with the network of his former students living in the U.S., including Hans Aufricht, Margit and Julius Kraft, Fritz Schreier, and Leo Gross.
Continuing Transnational Engagement in Latin America and Europe during the Postwar Era
The approaching end of World War II brought new opportunities for European scholars of international law. As Kelsen’s temporary appointment in Berkeley ended, he wrote to Roscoe Pound and John Dickinson, the assistant secretary in the Department of Commerce, asking for their assistance in finding a job working for the U.S. government on European constitutional matters following the end of the war (Pound Papers, Box 140, Folder 7).From this request, Kelsen found work in the Office of Wartime Economic Affair’s Liberated Areas Division in Washington D.C. in 1944. As part of his brief stay in Washington D.C., Kelsen was assigned to write an opinion on the legal status of Austria and Germany (Kelsen 1944, “International Legal Status”) .In his opinion, Kelsen utilized the Debellatio Thesis, which proposed the complete destruction of enemy military power and the elimination of any enemy resistance in order to establish the control of the occupying force within the occupied country. In this case, Germany would cease to exist, so that the Allies would be able to exercise complete sovereignty over the occupied territories.
1945 was an especially busy year for Kelsen. Although he was not officially involved in the Conference of San Francisco, many delegates asked Kelsen for legal advice and in this way he was able to contribute to the establishment of the United Nation’s legal framework. In the same year, Kelsen was also appointed a full professor at the political science department at the University of California, Berkeley, and was granted U.S. citizenship. Moreover, in 1945 Kelsen also published his General Theory of Law and State, a work which he draws the further development of his Pure Theory of Law. In 1946, Kelsen was asked to return to Washington D.C. in order to serve as a consultant to the War Crimes Commission as they began to prepare for the trial of Nazi war criminals.
From his new home in California, Kelsen remained tied not only to developments in Europe, but to those in Latin America as well. By this time, Carlos Cossio’s “egological interpretation” of Kelsen’s Pure Theory of Law had begun to develop into something quite different altogether. Cossio, influenced by Kant, Husserl’s phenomenology, and Heidegger’s existentialism, began to expound on what he viewed as the only proper interpretation of Kelsen’s Pure Theory. Due to that development more and more South American legal philosophers (i.e. Hugo Caminos, Ernesto Hermida, Jaime Perriaux) including some of Cossio’s closest disciples such as Ambrosio L. Gioja traveled to Berkeley to get Kelsen’s opinion of Cossio’s interpretation of Pure Theory. Especially in Cossio’s home country Argentina, this caused a split between the “egological” camp and Kelsen’s orthodox followers. Finally, in 1949, Kelsen traveled to South America to deliver lectures on Pure Theory. While he enjoyed visiting former students and colleagues such as Hans Klinghoffer in Rio de Janeiro, Robert and Werner Goldschmidt, Otto Langfelder, Jaime Perriaux, Ambrosio L. Gioja and Hugo Caminos in Argentina, the trip was largely overshadowed by his ongoing dispute with Cossio over the correct interpretation of his work.
Kelsen retired from the University of California in April 1952, but continued his transatlantic work in academia. In late 1952 he published Principles of International Law, and spent the academic year 1952/53 teaching in Geneva. While there, he worked with his Argentinian assistants, Ambrosio L. Gioja and Roberto Verengo, with whom he organized a seminar on Husserl. In the mid-1950s, he once more tuned towards Communist legal theory, publishing The Communist Theory of Law in 1955 and The Political Theory of Bolshevism in 1959.In addition to frequent trips back to Europe, in 1960 Kelsen accepted an invitation from his former students, Luis Recasens-Siches and Eduardo García Máynez to visit Mexico, where he gave several lectures at the UNAM. In the 1960s, the English legal theorist H.L.A. Hart, who influenced a generation of legal philosophers that included John Rawls and Ronald Dworkin, became one of Kelsen’s most bitter critics. Although Hart’s concept of law had some parallels to Kelsen’s Pure Theory of Law, it remained primarily within the framework of analytical philosophy. Among the main ideas developed in Hart’s legal theory is the idea of the “Rule of Recognition,” a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the concept of Rule of Recognition as having evolved from Kelsen's “Grundnorm” (“basic norm”), something Kelsen strictly denied.
Kelsen died on April 19, 1973. After his death, two further works that existed only as manuscripts were published. Die Allgemeine Theorie der Normen (The General Theory of Norms) was published in 1979, and Secular Religion was in 2011. Although the former dean of Harvard University, Roscoe Pound, once called Hans Kelsen “the leading jurist of the 20th century,” Hans Kelsen’s legal theory is not well known in the U.S. today. In Europe as well as in South America however, Kelsen’s name still stands for legal philosophy in the same way that Freud’s name stands for psychology or Einstein’s name for physics.
The authors would like to thank the Austrian Science Fund (FWF P23747)
and the Dietrich W.Botstiber Foundation for funding their project.