Otto Weininger

KELSEN’S PURE THEORY OF LAW AS “A HOLE IN TIME”
Reut Yael Paz
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2015/1 N° 7 | pages 75 à 94
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Kelsen’s Pure Theory of Law
as “a Hole in Time”
Reut Yael Paz
Justus-Liebig-Universität Gießen Public Law

Résumé Abstract
La Théorie pure du droit de Hans Kelsen comme In this article the author situates Kelsen within his
« brèche temporelle » socio-political zeitgeist, demonstrating that his
identity as well as his Weltanschauung influenced
Dans cet article, l’auteur situe Kelsen dans l’esprit
his professional contributions. More specifically, the
socio-politique de son temps, démontrant que son
author draws on Wissenssoziologie in general and the
identité ainsi que sa vision du monde ont influencé
approach to the sociology of knowledge proposed by
ses contributions professionnelles. Plus précisément,
Peter L. Berger and Thomas Luckmann to show how
il s’appuie sur la sociologie du savoir en général et sur
Kelsen’s “Pure Theory of Law”–which develops law as
l’approche de la sociologie de la connaissance propo-
an axiomatic and decontextualised system–is itself
sée par Peter L. Berger et Thomas Luckmann pour
influenced by Kelsen’s social and religious upbringing.
– montrer comment la « théorie pure du droit » de
This approach to an appreciation of his theoretical
Kelsen – qui conçoit la loi comme un système axioma-
contributions does not lead to the conclusion that
tique et décontextualisé – est elle-même influencée
his Pure Theory of Law is a failure.On the contrary, it
par l’éducation sociale et religieuse de Kelsen. Cette
only adds a certain depth to his attempts to create a
approche particulière des contributions théoriques
legal “hole in time” that touches eternity.
ne conduit pas à la conclusion que sa Théorie pure
du droit est un échec. Au contraire : elle ajoute une Keywords: Hans Kelsen – Sociology of Knowledge –
certaine profondeur à ses tentatives pour créer une Pure Theory of Law – Grundnorm – Jewish German-
« brèche temporelle » juridique qui touche l’éternité. Speaking Identity.
Mots-clés : Hans Kelsen – Sociologie de la connais-
sance – Pure Theory of Law – Grundnorm – Identité
juive germanophone.
monde(s), no 7, mai 2015, p. 75-94

Reut Yael Paz
I f it were up to the Nobel Prize Winner

Shmuel Yosef Agnon, the following contri-
bution would go back to the time when Titus
term was numerus clausus.3 Very much has
been, and still is, written about the legal
contributions by Kelsen. His Pure Theory of
destroyed Jerusalem and the people of Israel Law (Reine Rechtslehre) as well as his drafts
were expelled (July ad 70).1 It is however of the Austrian Constitution, for which he
enough to go back to the start of Jewish eman- devised the first modern European model for
cipation in Germany that traditionally begins constitutional review, crowned him “the jurist
with the somewhat völkisch anecdote about the of the 20th century”.4
way Moses Mendelssohn (1728-1786) entered
Kelsen’s inter-war generation, particularly
Berlin in 1743, as a penniless, hunchback four-
those with a Jewish German-speaking
teen-year old boy.2 Mendelssohn, the leading
background, was rather exceptional.5 A quick
figure of the Jewish enlightenment, Haskalah–
look at the statistics of German-speaking law
was, albeit indirectly, responsible for the even-
faculties during the interwar era reflects this

tual and convoluted inclusion of Jews into
phenomenon.6 This story is by no means of a
German-speaking law faculties approximately
a century thereafter. 3. Although the term numerus clausus was mostly used in
Eastern Europe, almost all Western countries (includ-
ing the United States) exercised racial quotas against
The Jewish Viennese scholar Hans Kelsen Jews. However official and unofficial and whatever the
(1881-1973) is a representative exemplar degree, this practice went on at least until the end of
World War II. Law faculties, in particular, adhered to the
of the high numbers of influential Jewish notion of Jewish “Otherness” more than any other aca-
German-speaking legal scholars who broke demic discipline; Reut Yael Paz, A Gateway Between
the “glass ceiling” when the more common a Distant God and a Cruel World: The Contribution of
Jewish German-Speaking Scholars to International Law
(Leiden: Brill, 2012), p. 9.
4. Horst Drier, “Hans Kelsen (1881-1973): ‘Jurist des
Jahrhunderts’?”, in Helmut Heinrichs, Harald Franzki,
1. In his speech at the Nobel Prize Ceremony in Stockholm,
Klaus Schmalz et al. (dir.), Deutsche Juristen jüdischer
Agnon–a contemporary of Kelsen–expressed it in the
Herkunft, München, C. H. Beck, 1993, p. 705-732.
following: “As a result of the historic catastrophe when
Titus of Rome destroyed Jerusalem and Israel was 5. As Zygmunt Bauman phrases it: “Almost all Jewish,
exiled from its land, I was born in one of the cities of the or Jewish-born founders and heroes of modern cul-
Exile”, in Richard Oestermann, Born Again (Jerusalem: ture, from Marx to Freud, Kafka or Wittgenstein, wrote
Gefen Publishing House, 1999), p. 41. their seminal contributions to modern conscious-
ness in German”, in Zygmunt Bauman, Modernity and
2. Although it is still unclear if the gate Mendelssohn
Ambivalence (Cambridge: Polity Press, 1993), p. 108.
crossed was Rosenthaler Tor or Hallesches Tor, in the
surviving Prussian documentations it specifies, “[T] oday 6. By 1930, Jews composed only less than one percent
passed through the gate six bulls, seven pigs and one out of the entire German population. Four percent of
Jew”, in Amos Elon, The Pity of it All: A History of the Austria before wwii and 10 % of the Galician population
Jews in Germany 1743-1933, (Hebrew) trans. Dani which was apart of the Habsburg Empire until the end of
Urbach (Dvir: Kinneret Zmora-Bitan/Dvir Publishing wwi. Jewish scholars (or rather scholars with a Jewish
House Ltd., 2004), p.  8-9. background) occupied approximately 16 % of the legal
76
Kelsen’s Pure Theory of Law as “a Hole in Time”
linear nature. It had neither a happy beginning man with his conflicts”.9 The leading presump-
nor a happy end. Yet it deserves our attention tion here is that cultural and social incentives
especially because contemporary international are part and parcel of academic scholarship.
law owes much to this founding generation This is hardly a rigid conditionality. As Kelsen
of the profession.7 Given this article cannot ostensibly points out, each book is bound to
possibly discuss this history in its entirety, it reflect a specific and possibly different conflict
intends to unpack, through Hans Kelsen’s case, behind the same author. More exactly, consid-
the extent to which the Jewish and German- ering the person behind the theory does not
speaking identity/background–despite and necessarily imply the reductionism of either
because of its catastrophic implications in the the person or his/her theoretical contribu-
first half of the 20th century–influenced the tions. In fact, the examination of an intellec-
profession by and large. tual work through its social contextualization
But first: should Kelsen’s identity trouble us? not only discerns the complexities but also

Does the person behind the theory matter at the open-endedness of the historical process
all? Should not his intellectual contributions be behind its making.
considered stand-alone? While some answer Our identity as individuals has consequences
this positively, others, including Kelsen him- for what we do and is personified in everything
self, direct our attention to the importance of we do. Legal agency, in practice and/or in
what today is called the politics of identity.8 In theory, is no exception. In fact, the question of
Kelsen’s terms: “More intensely than ever does identity seems to be of particular importance
one perceive that behind each “book” there is a in international law because it is a profession
that is not always clear about its own identity:
is international law a legal “process”? Or is
academic positions in all German-speaking universities. it “rules”? Perhaps its all about legal “facts”–
Just as telling, Jewish lawyers (men and women) repre-
sented 25 % percent of all private lawyers in Germany,
how the international community “is”–or is
until the rise of the National Socialists, in Reut Yael Paz, it all about how it “ought” to be? Here I draw
A Gateway Between a Distant God and a Cruel World, on Martti Koskenniemi’s description of the
op. cit., p. 2 (cf. note 3).
legal profession as an insoluble “ascending/
7. Id., for more on this.
descending” liberal dyad structured between
8. Despite the necessary deconstruction that the identi-
ty politics is going through it remains one of the more theory and practice, concreteness and
emancipatory political projects. As Carolyn D’Cruz
puts it: “The struggle to overcome prejudice remains
at the heart of liberation projects based on identity…”, 9. Hans Kelsen, General Theory of Law and State (Clark,
in Carolyn D’Cruz, Identity Politics in Deconstruction: NJ: The Lawbook Exchange, Ltd., 1945), trans. Anders
Calculating with the Incalculable (London, Ashgate Wedberg (Cambridge, Mass: Harvard University Press,
Publishing Company, 2008), p. 1. 2009), p. 430.
77
Reut Yael Paz
normativity, law and politics, apology and and their universal consciousness. Significantly,
utopia, public and private, etc.10 However remnants of the dynamics of universal “civi-
demanding this is, what remains clear is lised consciousness” still exist in the Statute of
that international law is what international the International Court of Justice.12 Expectedly,
lawyers think of and “do” with international any discourse about what constitutes these
legal language. principles is also determined by the drives and
characteristics of the legal agents involved.13
More specifically, my approach here conceives
the dialectics between such scholarly contribu-
tions and the subject of international law to be
Contextualising
of significance because international law is a the De-Contextualised?
particular discourse and language about glob-
The intention here is therefore to situate
al consciousness, intuition and/or mentality.11
Kelsen within his socio-political Zeitgeist in
I follow Duncan Kennedy and consider interna-

order to examine how his identity as well as his
tional law as a profession to have always been
Weltanschauung influenced his professional
a project carried out by international lawyers
contributions.14 While identifying human
10. As Martti Koskenniemi phrases this: “Doctrine is forced
12. The history of “civilized nations” goes back to the
to maintain itself in constant movement from emphasiz-
“civilized consciousness” canonized by the first institute
ing concreteness to emphasizing normativity and vice
of international lawyers the Institut de droit international,
versa, without ever being able to establish itself perma-
that held its first session in Geneva in 1873. It was there
nently in either position… [Ultimately this is] explained
that eleven European men defined themselves in Article 1
by the contradictory nature of the liberal doctrine of poli-
of the Institute’s Statute as “the juridical conscience of
tics”, in Martti Koskenniemi, From Apology to Utopia. The
the civilized world.” See more in Martti Koskenniemi,
Structure of International Legal Argument (Cambridge:
“International Law in Europe: Between Tradition and
Cambridge University Press, 2005), p. 46-7.
Renewal”, European Journal of International Law (ejil),
11. Such consciousness, according to Duncan Kennedy, is vol. 16 (2005/1), p. 113-124; Irwin Abrams, “International
“understood as a vocabulary, of concepts and typical Law Associations”, Review of Politics, vol. 19 (1957),
arguments, as a langue, or language, and to the specific, p. 361-380.
positively enacted rules of the various countries to
13. Duncan Kennedy defines these professionals as “actors
which the langue globalized as parole or speech”, see
with privileged access to the legal apparatus–lawyers
Duncan Kennedy, “Three Globalisations of Law and
for economic actors, lawyers working as legislators,
Legal Thought: 1850-2000”, in David Trubek, Alvaro
judges and legal academics–have a professionally legit-
Santos, eds., The New Law and Economic Development.
imated role to play, a role that parallels and overlaps that
A Critical Appraisal (Cambridge: Cambridge University
of economic power holders”, Duncan Kennedy, “Three
Press, 2006), p. 23; Duncan Kennedy, “Two Globalizations
Globalisations of Law and Legal Thought”, op. cit., p. 20
of Law & Legal Thought: 1850-1968”, Suffolk University
(cf. note 11).
Law Review, vol. 36 (2003/3), p. 657-667. The notion
of global sensibility goes back, in different forms and 14. “Situationality” assumes that the social characteristics
shapes, to the first article of the statute of the Institut of the people involved in each instance determines its
de droit international; the first professional association outcome at least as much as historically socially based
of international lawyers that was established in Ghent, legal principles, rules, doctrines, interpretations, etc.,
Belgium 1873. see more in Outi Korhonen, International Law Situated;
78
drives and characteristics remains one of I draw on Wissenssoziologie in general and the
the most worthy intellectual exercises, it is approach to sociology of knowledge proposed
hardly an easy endeavour. The discipline that by Peter L. Berger and Thomas Luckmann
expresses most concern with human self- more specifically.16
understanding is the sociology of knowledge
According to Berger and Luckmann, social
(Wissenssoziologie), especially for its focus
knowledge, happens through the interaction
on dialectical relationship between human
between the primary (“childhood”) and sec-
thought and its social context.
ondary (“adulthood”) levels of socialization.17
While the underlying assumption of The interface between the two “knowledges”
Wissenssoziologie comprises a range of takes its shape also through constant social
approaches to the texts, which are analysed struggles. The focus here is the almost antici-
with all possible techniques and questions, pated identity fragmentation and/or intersec-
recent scholarship essentialises agency; that is tionalities that result from “failing” to integrate

the capacity of individuals to actively interact the knowledge from both levels of socializa-
with the construction of knowledge. For tion of knowledge, particularly in times of
instance, what once was termed “acquisition social unrest.18 This is especially demanding in
and transmission of knowledge” is now the case of Kelsen who inherited from Moses
considered the “construction” or “production”
of knowledge.15 Phrased differently, knowledge 16.
Peter L. Berger, Thomas Luckmann, The Social
holders today are no longer considered a Construction of Reality: A Treatise in the Sociology of
Knowledge (New York: Doubleday & Company Inc.,
homogenous class but rather people who form 1967).
different groups who rely on everyday, practical 17. Id. The primary level refers to the “shaping” of the
and intellectual knowledge. Considering individual’s identity that takes place within the “home”–
Kelsen’s legal legacy through a sociological family and general early childhood impressions and
socialization–composed of cognitive learning which is
approach is valuable in its ability to unpack also very emotionally charged. The secondary level of
possible intersectionalities between agency socialization of knowledge takes its form and shape in the
later biography of the individual and thus is emotionally
and social conditionalities (i. e., race, religious controlled and rational. Usually objective scientific
affiliation, class, gender, etc.) In brief, in order pursuit–in both the exact and social sciences–happens in
the secondary level of socialization.
to understand Kelsen’s legal contributions
18. These failures refer to the complex heterogeneity during
childhood, socially concealed asymmetry between
public and private biography, dominant and invasive
An Analysis of the Lawyers Stance Towards Culture,
ideologies in secondary level of socialization and
History and Community (The Hague/London/Boston:
the lack of authentic socialization on the primary or
Kluwer Law International, 2000), p. 8.
secondary level is equally dangerous, Peter L. Berger,
15. Peter Burke, Social History and Knowledge from Thomas Luckmann, The Social Construction of Reality,
Gutenberg to Diderot (Cambridge: Polity Press, 2000). op. cit., p. 129-180 (cf. note 16).
79
Reut Yael Paz
Mendelssohn the modern and demanding con- in Harvard became a professor of political sci-
dition to be “a Jew at home and a man in the ence in Berkeley. He died at the age of 92.
street”.19 This heritage was more challenging
Clearly these are but a few cornerstones of
of Kelsen’s generation because the meaning of
Kelsen’s long and eventful life. Significantly,
“being a Jew” and/or “a man on the street” lost
Kelsen managed, against all odds, to assemble
the little certainty earlier generations still had.
400 works, translated into 24 different lan-
It is impossible and unnecessary to examine guages. Instead of retelling Kelsen’s intricate
the dialectics between Kelsen’s legal contri- biography, which is done elsewhere20, the fol-
butions and private life in the present context lowing article focuses on linking Kelsen’s most
in its entirety. Suffice it to mention here that important theoretical contribution from his
Kelsen was born in Prague in 1881 and his second level of socialization of knowledge–his
family moved to Vienna three years later. He Pure Theory of Law–to his first “homebound”
was 25 when he finished his doctorate at the level of socialization. Ostensibly the question

University of Vienna, where he also became here is: how could the complex–and even
a professor of public law and jurisprudence “impure”–background of Kelsen’s private life
in 1911. During this time Kelsen acted as a propel the almost aggressive drive behind his
legal advisor to the Austrian government and Pure Theory of Law? It is rewarding to estab-
drafted the Austrian constitution in 1920. He lish this link because understanding Kelsen’s
was a member of the Austrian Supreme Court theoretical contribution against its social con-
and a Dean of the law faculty in 1922-1923. text unpacks a refreshing look into the limits
After several years as a constitutional court but also possibilities in the inheritance Kelsen
judge, Kelsen was dismissed due to the polit- left contemporary international law in general,
ical issue of remarriages in Catholic Austria. and international lawyers more specifically.
Given his insecure situation in Vienna Kelsen
This article consists of three main parts: First
took a professorship for international law in
I briefly discuss Hans Kelsen’s Pure Theory
Cologne in 1930 (an offer that had stood open
of Law that derives a universalistic goal from
since 1925). This also ended shortly thereafter
with Hitler’s rise into power. After an interlude 20. For more on Kelsen’s (auto)biography, see Hans
in Geneva Kelsen, at the age of 60 immigrated Kelsen, “Autobiography”, Hans Kelsen Werke
Band 1: Veröffentlichte Schriften 1905-1910 und
to the United States where after a short pause Selbstzeugnisse, Matthias Jestaedt, ed., Tübingen,
Mohr Siebeck, 2007; Nicoletta Ladavac Bersier, “Hans
19. This specific demand of distinction between the pri- Kelsen (1881-1973). Biographical Note and Biography”,
vate and public goes back to Moses Mendelssohn’s ejil, vol. 9 (1998/2), p. 391-400; Rudolf-Adlar Métall,
age of German-Jewish Enlightenment, Reut Yael Paz, A Hans Kelsen Leben und Werk, Wien, Verlag Franz
Gateway Between a Distant God and a Cruel World, op. Deuticke, 1969 ; Reut Yael Paz, A Gateway Between a
cit., p. 81-82 (cf. note 3). Distant God and a Cruel World, op. cit. (cf. note 3).
80
Dante together with Kantian methodology. the moral ideal. Significantly, throughout his
The emphasis here is Kelsen’s novel concep- career Kelsen’s interest to examine, but also
tualization of the Basic Norm (Grundnorm) to promote, law’s ability to be a pure scientif-
that assumes an abstract, pseudo-mathemat- ic endeavour remains rather constant. As Lars
ical and transcendental belief. Arguably, and Vinx argues, Kelsen, at least since 1913 sought
as discussed in more detail below, Kelsen’s “the full realization of an ideal rule of law”.
Grundnorm, that infers an acceptance of an Wishing, in other words, “to develop a concep-
“original constitution”, guarantees both a hier- tual framework for legal thought adequate to
archy and legal unity between private and the idea of the ‘Rechtsstaat’”.22 Indeed his Pure
public, national and international laws. This Theory of Law (Reine Rechtslehre)–arguably
Grundnorm rewards–inter alia–Kelsen’s theory the most influential theory of law of the 20th
with a certain timelessness; the precious char- century–seeks to discover the nature of law
acteristic of being a legal “hole in time”.21 The itself, to determine its structure and its typical

article then moves to examine how it relates forms, independent of the changing content,
to Kelsen’s earlier years, when his first level of which it exhibits at different times and among
socialization of knowledge took its shape and different people.23
form, despite but also in spite of the obvious
Kelsen’s impact on positivist analytical juris-
social upheavals in his environment. The arti-
prudence stems from his endorsement of the
cle is concluded in the third part that discusses
the reception of Kelsen’s “hole in time” theo- 22. Lars Vinx opens his book with the following 1913
retical contributions. quote by Kelsen: “Eine der Idee des Rechtsstaates
adäquate Rechtssystematik steht heute noch aus. Die
Rechtssaatsidee aber ist noch nicht überwunden, ihre
Kelsen’s (Theoretical) Goal: allseitige rechtslogische Entwicklung bleibt Aufgabe
der Zukunft”, Lars Vinx, Hans Kelsen’s Pure Theory of
Dante’s Universalism through Law: Legality and Legitimacy (Oxford: Oxford University
Press, 2007), p. 1.
Kantian Methodology 23. The Pure Theory of Law was first published in German
in 1934. In its preface, Kelsen declares that the chief
Kelsen’s primary legal interest was some- objective of the book is to render jurisprudence into an
objective science. In its second expanded–or almost
what Platonic; namely the meaning of law completely revised–version, that came out in 1960
once it is separated from the social, real and (and translated into English in 1967 by the University
of California Press), Kelsen “attempts to solve the
fundamental problems of a general theory of law
21. This title originates from a conference by the University according to the principles of methodological purity of
of Westminster called The Hole in Time: German–Jewish jurisprudential cognition and to determine to a greater
Political Philosophy and the Archive. There I presented extent than before the position of the science of law in
a paper entitled: “The Legal Transcendentalism of Hans the system of the sciences”, in Max Knight, “Translator’s
Kelsen as a Hole in Time”. Available at [http://archiving- Preface”, in Hans Kelsen, Pure Theory of Law (Berkeley:
cultures.org/category/time]. University of California Press, 1967), p. v.
81
Reut Yael Paz
law in its scientific form on the one hand, and The innovative, but equally challenging, aspect
his vehement rejection of the law as a form of of Pure Theory of Law is in the way it ascribes
morality, sociology and/or psychology on the a norm-creating act to the legal ought by pre-
other hand. Seeing the law in any other non-le- supposing it. Given the legal “ought” cannot be
gal terms represents only partial viewpoints of derived from a moral “ought” nor from the fac-
the world, which falls short from grasping the tual “is”, they are essentially legal norms that
law in its authenticity and its ability to estab- are always created by an “act of will”. Such an
lish an autonomous science of jurisprudence. “act of will” refers to a belief that forms the
Furthermore, as the object of any science, law necessary hypothesis behind any normative
too has to be complete; pure of external inter- system as a whole: a belief that the Grundnorm
ferences, normative and self-creating. The law, is valid. Phrased differently, a norm is valid if
as Kelsen viewed it, is a science that is inde- it is enacted in accordance with another norm
pendent and complete, it must be independent and every norm needs a valid and authorita-

of the moral ought and the socio-psycholog- tive basis from another norm that eventually is
ical is. Kelsen sought–somewhat aggressive- traced back to the Basic Norm (Grundnorm).24
ly–to obliterate the profession of its duality Just as Kelsen’s general scholarship attracts
and to create, through his Pure Theory of Law, different attempts of periodization25, so does
a new path where the fundamental antinomy his Grundnorm.26
between realism and idealism is dissolved.
24. Kelsen’s “act of will” refers to a belief that forms the
Kelsen devised the Pure Theory of Law in order necessary hypothesis behind any normative system as
a whole: a belief that the Grundnorm is valid, in Hans
to separate the question of law’s effectiveness Kelsen, Introduction to the Problems of Legal Theory. A
from legal existence. Whether or not the law is Translation of the First Edition of the Reine Rechtslehre
or Pure Theory of Law, by Bonnie Paulson, Stanley
effective remains a question outside the law’s L. Paulson (trans.) (Oxford: Clarendon, 2002), p. 55-76.
sphere of influence. Effectiveness is instead a
25. For more on the periodization of Kelsen’s work, see
sociological and descriptive issue and is not a Carsten Heidermann, Die Normen als Tatsache. Zur
jurisprudential. Additionally, his theory dis- Normentheorie Hans Kelsen, Baden-Baden, Nomos,
1997 ; Stanley L. Paulson, “On the Origins of Kelsen’s
misses the law’s requirement to be just. Justice Spätlehre”, in Dan Diner, Michael Stolleis, eds., Hans
is a moral and/or political question that should Kelsen and Carl Schmitt: A Juxtaposition (special num-
ber of the Journal of the Institute for German History
not be answered by the law. Ergo Kelsen’s geni- at the University of Tel Aviv), Tel Aviver Jahrbuch für
us lies in enabling a totally new legal question; Deutsche Geschichte, vol. 20 (1997), p. 27-45.
namely is law valid? In brief, law is not about 26. Stanley L. Paulson, for instance, draws four different
formulations for the Grundnorm (i. e. formulations rela-
justice. Nor is it about effectiveness. It is instead ted to the unity of the legal system; the validity of the
all about the legal norm’s validity. legal system; empowerment; and possible definitions of
the basic norm.); Stanley L. Paulson, “Die unterschied-
lichen Formulierung der ‘Grundnorm’”, in Aulis Aarnio,
82
The working presupposition behind the the logically “empty tautology” behind the
Grundnorm is that if it is valid, other norms that dualistic perspective.30
rest on it and together make the legal system,
Because much has already been written about
are also valid. More concretely, Kelsen main-
the importance of Kelsen’s Grundnorm31, here
tained that in tracing back such a “chain of
I only want to mention two of its main func-
validity”–to use Joseph Raz’s terminology–one
tions. First, the Grundnorm explains both the
would reach a point where a “first” historical
unity and monistic nature of a legal system and
constitution is the basic authorizing norm of
the reasons for the legal validity of norms.32
the rest of the legal system, and the Grundnorm
Norms that derive their validity from a single
is the presupposition of the validity of that first
Grundnorm necessarily belong to the same
constitution.27
order, by means of the principle of effectiveness, deter-
Whereas the assumption of the first consti- mines not only the sphere of validity, but also the reason
of validity of the national legal orders”, in Hans Kelsen,
tution may be the “highest” legal norm that

The General Theory of Law and State, op. cit., p. 367 (cf.
validates all other (national) legal norms that note 9).
rest upon it, on the international level, Kelsen’s 30. In brief, monists accept that the national and internatio-
Grundnorm is the general presumption where nal legal systems are two components of a single body
of knowledge called law. Unlike such unity, the dualists
“states ought to behave as they customarily emphasize the divergences between national and inter-
behaved”.28 Kelsen opted for a positivist, uni- national law, and demand the translation of the latter into
the former; in Martin Dixon, Textbook on International
versal and monistic alternative where inter- Law (Oxford: Oxford University Press, 2007).
national (treaty) law receives highest prima- 31. Herbert Lionel A. Hart, The Concept of Law (Oxford:
cy to any national legal norm. Such monistic Clarendon Press, 1961). Martti Koskenniemi argues that
despite the fact that the meaning of the Grundnorm is
approach is the only way to logically recognise characterized differently throughout Kelsen’s works,
the reason as well as the sphere of valid norms the meaning of the Grundnorm appeared in its most
by and large.29 Likewise it is how Kelsen solves credible form in his “Introduction to Problems of Legal
Theory”, first published in German in 1934, in Martti
Koskenniemi, The Gentle Civilizer of Nations. The Rize
Stanley L. Paulson, Ota Weinberger, Georg Henrik and Fall of International Law, 1870-1960 (Cambridge:
von Wright, Dieter Wyduckel (dir.), Rechtsnorm und Cambridge University Press, 2001 1st ed.), p. 241.
Rechtswirklichkeit. Festscrift für Werner Krawietz zum
60. Geburtstag, Berlin, Duncker & Humbolt, 1993. 32. “The Pure Theory describes the positive law as an
objectively valid normative order and states that this
27. Joseph Raz, “The Purity of the Pure Theory”, in Richard interpretation is possible only under the condition that
Tur, William Twinning, eds., Essays on Kelsen (Oxford: a basic norm is presupposed according to which the
Clarendon Press, 1986). subjective meaning of the law-creating acts is also their
objective meaning. The Pure Theory thereby characterizes
28. Hans Kelsen, The General Theory of Law and State,
this interpretation as possible, not necessary and presents
op. cit., p. 369 (cf. note 9).
the objective validity of positive law only as conditional–
29. In Kelsen’s words: “The historically first constitution is namely conditioned by the presupposed basic norm”, in
valid because the coercive order erected on its basis Hans Kelsen, Pure Theory of Law, op. cit., p. 217-218 (cf.
is efficacious as a whole. Thus, the international legal note 9).
83
Reut Yael Paz
legal system and, vice versa: the legal norms of Kurt Gödel (1906-1978) demonstrated that no
a given legal system derive their validity from complete system is free of contradictions.35
the Grundnorm. The successful act of tracing
Second, the Grundnorm avails the possibility
norms all the way to a basic-norm indicates
for a legal system to be made of hierarchically
that they were created accurately, which is not
organized norms. The originality of this is that
the same as being logically deduced from the
the legal system’s unity and completeness does
basic-norm that is characteristic of the norma-
not depend on the subordination of men to men,
tive system of morality.
but to legal rules instead: non sub homine sed
Law creates itself–regardless of social reality sub lege. Moreover, in this systematic approach
and values–in the sense that in any instance the distinction between positivistic and natural
a legal norm governs the process whereby law disappears; just as the distinction between
another legal norm is created. Importantly, the public and private law vanishes too. This also
validity of a single norm is not dependent on its eradicates the presupposition that public law

efficacy or its righteousness, but rather on the is prioritized to international law.
validity of the totality of norms, as a closed and
Despite Kelsen’s ground-breaking, original
axiomatic system. This ought not mean that
and modern quest for a value-neutral
Kelsen intended to strip the law from its con-
Grundnorm that allows his Pure Theory of
text. Kelsen was not–as it is often argued–an
Law to remain whole as well as free from any
ivory tower intellectual.33 In fact, à la Kelsen,
moral presupposition is still highly criticized.
the purity of the law draws most gravitas in
Particularly it is the problematic “compromise”
times of social insecurities and strife.34 In other
seen in Kelsen’s act of will, which presupposes
words, such a complete system of law must not
a belief, at the basis of his theory.36 But it ought
be free of contradictions: after all, as a contem-
not be forgotten, as it too often is, even in
porary of Kelsen, the Viennese mathematician
mathematics “pure” axiomatic systems are not
free of paradoxes. As Kelsen viewed it norms
33. Clemens Jabloner rightly warns against placing the
“good” Kelsen “in an ivory-tower while the ‘bad’ Schmitt are solely “interpretative schemes”, because
is regarded to be expressing nothing more than the ugly there is no direct access to “acts of will” or
truth”, cf. Clemens Jabloner, “Legal Techniques and
Theory of Civilization–Reflections on Hans Kelsen and “reality”. One can give meaning to (interpret)
Carl Schmitt”, in Dan Diner, Michael Stolleis, eds., Hans
Kelsen and Carl Schmitt, op. cit, p. 51 (cf. note 25). 35. Kurt Gödel, “Über formal unentscheidbare Sätze der
Principia Mathematica und verwandter Systeme I”,
34. The need, particularly in times of social upheavals, is
Monatshefte für Mathematik und Physik, vol. 38, 1931,
to expel the politicized jurisprudential concepts in
p. 173-198.
order to give room for “authentic” legal interpretations;
Hans Kelsen, The Law of The United Nations. A Critical 36. Richard Tur and William Twinning call this Kelsen’s
Analysis of its Fundamental Problems (New York: F. A. “Achilles’ heel”, in Richard Tur, William Twinning, eds.,
Pareger, 1951), p. xiii-xvii.) Essays on Kelsen, op. cit., p. 9 (cf. note 27).
84
the social reality through conceptual schemes Vienna Psychoanalytic Society, and published
such as legal rules. Only through acts of an article in Freud’s journal Imago.39
interpretation does reality begin to appear
Kelsen’s approach, even to liberalism, remains
(legally) meaningful–that is, some act begins
nonetheless sophisticated for it primarily
to seem like the “violation” or “creation of
demands–albeit any contradictions–a value-
norm”, or as conglomerate of facts and actions
free and hence “a hole in time” scientific theory.40
that appear to us like a “state” or a “state will”
Here Kelsen’s somewhat Platonic belief in the
and so on. This is the very point of Kelsen’s
transcendental as a unifying whole must be
Neo-Kantianism: reality does not open itself
accepted and also appreciated.41 Recognizing
automatically to us as such, what we know is
the impossibility to control everyone’s beliefs,
the result of our interpretation of it.37
Kelsen sought for a concession through a
The liberalism–and perhaps even relativ- legal and normative science. It is through the
ism–behind his approach reflects the ultimate “purifying” methodology that power might be

weakness inherent in the liberal project by and transformed into law.42 Kelsen’s universalism
large. In Kelsen’s own terms:
39. The article was based on a lecture he gave at the Vienna
Psychoanalytic Society on “The Notion of the State
“Relativism imposes upon the individual the dif-
and Freud’s Mass Psychology”. Kelsen internalized
ficult tasks of deciding for himself what is right psychoanalysis to a high extent: when disputing with
and what is wrong. This, of course, implies a very Sander, a former student of his, Kelsen attributed to
serious responsibility, the most serious moral Sander’s behaviour the analysis that his “case was of
an unresolved Œdipus Complex that could be explained
responsibility a man can assume. If men are too
by means of psychoanalysis” and interpreted Sander’s
weak to bear this responsibility, they shift it to an indictment of plagiarism as an attempt at patricide;
authority above them, to the government and, in Clemens Jabloner, “Kelsen and His Circle: The Viennese
the last instance, to God”.38 Years”, ejil, vol. 9 (1998/2), p. 375; Carlos Miguel
Herrera, Théorie juridique et politique chez Hans Kelsen,
With reference to Kelsen’s approach to liber- Paris, Éditions Kimé, 1997, p. 97.
alism, his close relationship to psychoanalysis 40. On Kelsen’s theory as value-free, see Martti Koskenniemi,
The Gentle Civilizer of Nations, op. cit., p. 247 (cf. note
should also be mentioned. In Vienna, Kelsen 31). Elsewhere I term this “transcendental scientism”, in
participated in Freud’s “Wednesday Meetings”. Reut Yael Paz, A Gateway Between a Distant God and a
Cruel World, op. cit., p. 229 (cf. note 3).
By 1911, he had become a member of the
41. Id.
42. As Kelsen’s « protégé », Hersch Lauterpacht, explains
Kelsen’s Grundnorm “…it is an assumed hypothesis
37. Hans Kelsen, Introduction to the Problems of Legal
that glorying in its realistic relativism. Kelsen claims for
Theory, op. cit., p. 55-76 (cf. note 24).
his initial hypothesis that it transforms might into law.
38. Hans Kelsen, “What is Justice?”, in Hans Kelsen, However, this claim is in itself morally indifferent… It
What is Justice, Justice, Law and Politics in the Mirror certainly substantiates Kant’s dictum of ‘the method
of Science: Collected Essays (Berkley: University of creating its objects’”, in Hersch Lauterpacht, “Kelsen’s
California Press, 1957), p. 22. Pure Science of Law” (1933), in Elihu Lauterpacht, ed.,
85
Reut Yael Paz
unified both the world and legal knowledge metaphysics, in order to create one of the most
in a normative pacifist step-like empire that trailblazing modern legal theories? Second,
is based on a singular coercive system. Here what is it about Kelsen’s Pure Theory of Law that
Kelsen’s approach relied heavily on Dante’s represents a rather successful combination
De Monarchia: His first published work to of a specific choice, problem, and solution
Die Staatslehre des Dante Alighieri (1905) is available to the legal profession at a specific
dedicated to Dante’s three political volumes, historical period? In order to understand the
written in approximately 1316. In a nutshell, incentive but also motivation behind Kelsen’s
its main argument is that just as the universe Pure Theory of Law–completed during his
is a single unit, humankind should also be secondary level of socialization of knowledge–
considered in terms of a cohesive whole.43 his primary (“childhood”) level of socialization
ought to be examined. Phrased differently,
While our interpretation and overall
could Kelsen’s experience as “a Jew at home
Weltanschauung depend on how we

and a man on the street Jew” influence his Pure
internalize our reality on the one hand, it
Theory of Law?
has to be, at least according to Kelsen’s legal
approach, a complete, scientific and objective
whole, on the other hand. The beauty but also
From Jewish Vienna
vulnerability in Kelsen’s Pure Theory of Law is to a Transcendental Hole in Time
the need to keep the assumed Grundnorm, that
In order to understand the “pure complexity”
which lies at the basis of the legal normative
of Kelsen’s theoretical conceptions against his
structure, value-free. Ultimately the almost
first level of socialization of knowledge, one
intuitive question here is why he sought a
must touch on three main issues: his early
legal system that is empty (and pure) of both
familial expectations and his social milieu
realism and idealism?
more generally; his religious context and lastly
Ultimately, the question here is two-fold: First, the geographical context of his theoretical
why Kelsen, an early 20th century Viennese contributions that has begun in Vienna and
Jew, was propelled to draw on both an Italian ended up in Berkeley, United States.
medieval poet’s universal lure and Kantian
Kelsen’s lower-middle class familial back-
ground had clear upward mobility character-
International Law. Being the Collected Papers of Hersch
Lauterpacht, vol. 2 (Cambridge: Cambridge University
istics and expectations. Whereas the family’s
Press. 1970). ancestral background goes back to a small
43. Dante Alighieri, Dante Monarchy, in Prue Shaw, ed., village on the border between Luxembourg
Cambridge Texts in the History of Political Thought and Germany called “Kelsen über Saarburg,
(Cambridge: Cambridge University Press, 1996).
86
Bz. Trier”, the Jews from the area migrat- lawyer or a doctor”.46 Thus although his earlier
ed eastwards during the middle-ages due interest was in mathematics and physics,
to better living conditions. At the end of the Kelsen was sent to a humanist Gymnasium. It
18th Century, Habsburgian Jews were given was there where Kelsen, like other Viennese
German family names to replace the original Jews (e.g. Sigmund Freud, Karl Popper, Arthur
Jewish forms and many Jews have chosen the Schnitzler, Erwin Schrödinger, Stefan Zweig,
names of the city of their origins.44 Kelsen’s Gustav Mahler, etc.)47, immediately turned to
father, Adolph, stemmed from a Galician fam- scientific and logical investigations, also as
ily of little means and moved to Prague at the a reaction to the growing social irrationality
age of 14 to become a mill-owner. His mother and anarchy.48 The world of “rational illusions”
Augusta (née Löwy) had a bourgeois upbring- was where they sought to find the reality of
ing. She was a bilingual (German and Czech) life. Moreover, these intellectual interests were
Bohemian Jewess.45 Hans was born in Prague mixed with fantasies of belles-lettres, and with

but the family moved to Vienna three years intense reading of Kant and Schopenhauer.49
later. Although the family was not wealthy, Kelsen, who loved mathematics and physics,
they provided their eldest son with a first- regretted not pursuing his interests in these
class education by Viennese standards. fields and philosophy for the rest of his life.
In order to escape his “straitened lower Apart for Kelsen’s parental expectations, his
middle-class circumstances”, the general social milieu is of equal importance to his Pure
family expectation was that Kelsen becomes a Theory of Law, particularly his relationship
with the Jewish Viennese Otto Weininger
(1880-1903). Albeit being accused of Jewish
self-hatred, Weininger is also remembered as
44. In the infamous conference “Das Judentum in der
Rechtswissenschaft” (1936) Erich Jung, in his talk,
referred to Kelsen as “Kelsen-Kohn” attempting to 46. Steven Beller, Vienna and the Jews 1867-1938
“shame” Kelsen for having had a Cohen for a last name, (Cambridge: Cambridge University Press, 1989), p. 102.
which was then, in an act of assimilation was disguised;
47. Ibid., p. 51, while most these scholars attended the
Rudolf-Adlar Métall, Hans Kelsen Leben und Werk,
Wasagymnasium, Freud attended the Sperlgymnasium
op. cit., p. 1 (cf. note 20). Significantly, his familial roots,
in the Leopoldstadt and then the Akademisches
like those of another Jewish Austrian legal positivist
Gymnasium where Kelsen studies as well.
Georg Jellinek (1851-1911) and Hersch Lauterpacht
(1897-1960), one of Kelsen’s most famous “protégés”, 48. Ibid., p. 99-100, this was the consequence of both, the
reach back to a Galician Shtetl around Lwów. external barriers and the strong emphasis on education
in Jewish homes, where the main tenet remained “learn,
45. Kelsen’s mother published his poetic attempts in her
learn, learn!” Otto Neurath, for instance, as a young
subscribed woman’s magazines (in the so-called Album
child “quite naturally” read Kant at the same time as he
der Poesie, in the Wiener Hausfrauenverein 1875-1913);
was playing with his toy soldiers.
Reut Yael Paz, A Gateway Between a Distant God and a
Cruel World, op. cit., p. 159 (cf. note 3). 49. Ibid., p. 34.
87
Reut Yael Paz
a sort of « café philosophique ». Weininger’s Broch etc.52 Indeed such aspirations in the
impressed the Viennese intellectual style hands of minority groups are easily energized
at the beginning of the 20th century with thanks to a stronger need to be accepted in a
the emphasis of the ethical aspect of “pure” predominantly antagonistic society.
knowledge. Kelsen appreciated him for
Linking this to Kelsen’s Pure Theory of Law
seeing “consciousness and logic as the ends
is rather straightforward. Resigning to
of men and the achievement of them as the
parental expectations Kelsen did the best
performance of God’s will, the will to value”.50
he could: Similarly to his colleagues, friends
In fact Kelsen found his Berufung thanks to
and contemporaries he took his less desired
an eccentric–although brief–interlude spent
“humanist” field of studies and turned it into
with Weininger, at the start of his university
a scientific “hole in time” namely a study of
studies. It was the truth-seeking nature of
an objective, abstract complete and even
Weininger’s work that convinced Kelsen to
mathematical scientific endeavour.

pursue an academic career.51 But Weininger
was not exceptional. He seemed to epitomize Kelsen’s relationship to religion was of equal,
the general search for truth as an ethical goal, a if not higher, importance to his socialization
principle that is termed by Steven Beller “Jewish of knowledge. Not only does his pure theo-
Stoicism”, which was a common denominator retical contribution centre around the some-
to many Jewish intellectuals of the Habsburg what religious idea of a transcendental uni-
Empire. That which previously was a religious fying whole, the complexities of his personal
desire was now transformed into new secular attachments to organized religions is inform-
scientific tool in the hands of Freud, Adler, ative. This ought not be surprising: religion
determined much, if not everything, within
50. According to Métall, Kelsen’s friendship with Weininger Kelsen’s social context. For instance, while his
enhanced Kelsen’s interest in philosophy. Furthermore, parents were stamped by the state with the
Kelsen’s enthusiasm for Schopenhauer, which
becomes tangible in his later work (e. g., in “Politische
term “mosaischer Religion”, Kelsen’s affiliation
Weltanschauung und Erziehung”) stems from his dis-
cussions with Weininger, in Rudolf-Adlar Métall, Hans
52. Steven Beller, Vienna and the Jews 1867-1938,
Kelsen Leben und Werk, op. cit., p. 56, 67 (cf. note 20).
op. cit., p. 114-115 (cf. note 46). In addition to Otto
As Jabloner notes, Weininger influenced Kelsen in the
Weininger, Geschlecht und Charakter. Eine prinzipi-
way “Kelsen dealt with the relation between state and
elle Untersuchung, Hamburg, Severus, 2014 (1st ed.
sexuality in connection with his critique of Plato”, which
1903) see how Hermann Broch promoted the spread
was reminiscent of Weininger’s “occasional references
of logic as the ethical goal of mankind, in Erich Kahler,
to the idea of human bisexuality”, in Clemens Jabloner,
Die Philosophie von Hermann Broch, Tübingen, J. C. B.
“Kelsen and His Circle: The Viennese Years”, ejil, vol. 9
Mohr, 1962, p. 80. Likewise, see the concept of
(1998/2), p. 385.
Wahrheitsliebe by Guido Adler’s, the lawyer, philosopher
51. Hans Kelsen, “Autobiographie”, in Hans Kelsen Werke and musicologist in Wollen und Wirken, Wien, Universal
Band 1, p. 35 (cf. note 20). Edition, 1935.
88
to religion remains very confusing, fragmented Kelsen’s conversion to Catholicism may reflect
and ambivalent throughout his life.53 his decision to remain an academic. Converting
to Protestantism under the Viennese circum-
At the age of twenty-five, Kelsen converted
stances remains awkward. And yet while it was
into Catholicism.54 Whereas converting to
less necessary, Kelsen was hardly the only Jew
Catholicism was almost necessary in order to
to follow this path.58 It is of equal importance
secure a professorship in Vienna, “to convert
to note that Kelsen remained active in Jewish
was not such an easy thing for the Jews to
affairs in Vienna, exiting from the Jewish com-
do”.55 One can only assume that this was also
munity only in the 1920s.59 Confessing for
the rase for Kelsen who claimed to be agnostic.
instance, in 1932 that “Eretz Israel is my miser-
Interestingly however, the year Kelsen wrote
able love”.60 After his immigration to the United
Die Staatslehre des Dante Alighieri was the year
States, Kelsen considered himself a Jew.61
he converted to the Catholic Church in order to
secure his academic career. Kelsen must have Such an indeterminate “fate” was shared with

drawn much comfort from Dante’s criticism many other “impure” contemporaries who
of the Catholic Church’s role in secular society were committed, as Kelsen was, to the mod-
and his insistence on the need to separate the ern cause.62 The “Jewish condition” that links
spiritually religious leader, i. e. the Pope, who
prepares us for afterlife happiness while the 58. A quarter of Jewish conversions in Vienna were
converted to Protestantism. Not only was it easier to
temporal earthly world should be governed convert to Protestantism in Catholic Vienna, from the
uniformly by a reasonable and just emperor.56 1860s onwards Jews favoured the Protestant northern
Germans to the Catholic Vienna, in Steven Beller, Vienna
In 1912 Kelsen converts again, this time to and the Jews 1867-1938, op. cit., p. 153 (cf. note 46).
Protestantism. Moreover, in May that year, 59. Reut Yael Paz, A Gateway Between a Distant God and a
Cruel World, op. cit., p. 166 (cf. note 3).
he witnessed his Jewish fiancée’s–Margarete
60. Nathan Feinberg, “Hans Kelsen Veyaado”, Massot
Brodi–conversion to the Protestant church as Besheelot Hazman (Jerusalem: Magnes Publishing
well. Five days later the couple was married.57 House-The Hebrew University, 1973).
53. Rudolf-Adlar Métall, Hans Kelsen Leben und Werk, 61. Ibid., p. 236; except for a brief period of Kelsen’s lifetime,
op. cit., p. 2 (cf. note 20). when he professed full assimilation through inter-
marriages and the sort, he had never stopped seeing
54. Nicoletta Bersier Ladavac, “Hans Kelsen (1881-1973). himself as a Jew and never concealed it. Feinberg also
Biographical Notes and Biography”, ejil, vol. 9 (1998), remembered Kelsen confessing to him that he had made
p. 391-400. a horrible mistake in believing and attempting complete
assimilation, for it appeared to be the only solution for
55. Steven Beller, Vienna and the Jews 1867-1938, op. cit.,
the Jewish question. Furthermore, Kelsen’s daughter,
p. 35, 98 (cf. note 46).
Maria Kelsen Feder, settled in Palestine with her Jewish
56. Dante Alighieri, Dante Monarchy, p. 63-94 (cf. note 43). husband in the 1930s.
57. “Chronik” Hans Kelsen (1881-1973) in Hans Kelsen 62. For more on the issue of modernization and Judaism,
Werke Band 1, op. cit., p. 97-98 (cf. note 20). Zygmunt Bauman, Modernity and Ambivilence, op. cit.
89
Reut Yael Paz
resilient attachment to detachment together Whatever his belief–in private–Kelsen’s Jewish

with the external state of uprootedness and heritage became more significant with the
marginalization from European nation-statism crystallization of his professional ambitions
(i. e., modernity’s new religion)–“forced” many and successes. His Jewish background
German-speaking Jews to be ardent modern escaped no one when he became the drafter
cosmopolitans.63 Or as Sigmund Freud phrased of the Austrian Constitution and a judge in
it more simply in a letter to B’nai Brith Lodge the Austrian Constitutional Court. Apparently
of Vienna on the occasion of his 70th birthday: it was his commitment to modern liberalism
that instigated his dismissal from the court.
“Because I was a Jew I found myself free of
many prejudices which restrict others in the But this too is connected.65 Not only was
use of the intellect: as a Jew I was prepared to the commitment to liberal democracy often
be in the opposition and to renounce agreement associated with the difference represented by
with the compact majority”.64 his religious background, by April 1933–just

To sum up, religion was part and parcel months after Hitler came into power–it was his
of both Kelsen’s social but also theoretical “Jewish blood” that brought about his removal
conditionality. Be it the appealing aura of from his Cologne professorship.
Dante’s critique of Catholicism or Kant’s Lastly, the geographical conditionalities and
German Protestantism. Likewise, Kelsen’s ambiguities of the Kelsen’s Pure Theory of Law
personal “flirts” with religious affiliation are noteworthy too. Unmistakably, both the
could be the result of a true change of belief impediments and ingenuities of Jewish Vienna
just as they could also be a modern functional are personified in Kelsen’s constant search
answer to a primitive question. Perhaps Kelsen for a “Reinheit der Methode” that dismisses
was attached to detachment? Or maybe his both ethics and sociology.66 The experience of
conversions were an active retaliation against the collapse of Austro-Hungarian monarchy
a passive acceptance of predetermined destiny was central to the Pure Theory of Law: Kelsen
embedded in the “past”? confessed that the pure system of law attempted
65. Kelsen, in a revealing conversation with Feinberg,

remarked that “my wife even asserts, that because the
(cf. note 5); Hannah Arendt, The Origins of Totalitarianism
social democrats fought anti-Semitism, I favoured it as
(New York: Meridian Books, 1962); Theodor W. Adorno,
a party”, in Nathan Feinberg, “Hans Kelsen Veyaado”,
Max Horkheimer, The Dialectic of Enlightenment
op. cit., p. 236 (cf. note 60).
(London: Verso Classics, 1997 [1st ed. 1947]).
66. “Die scharfe Trennung einer Theorie des positiven
63. Reut Yael Paz, A Gateway Between a Distant God and a
Rechts einerseits von der Ethik, andererseits von der
Cruel World, op. cit., p. 43-45 (cf. note 3).
Soziologie, schien mir dringend geboten”, in Hans
64. Ernest L. Freud, ed., Letters of Sigmund Freud, 1879– Kelsen, “Autobiographie,” in Hans Kelsen Werke Band  1,
1939 (London: Hogarth Press 1961), p. 368. op. cit., p. 37 (cf. note 20).
90
to answer “whether there is a uniform system was the receptive and/or hostile platform for
of laws which can be applied to Austria and Kelsen’s Pure Theory of Law. Moreover it was
Hungary”, or not.67 Similarly, his approach of the Neukantian work of the Jewish German
came to life through the instinctive need to philosopher Hermann Cohen (1842-1918)
demolish the “dualistic theoretical structure” that reassured Kelsen’s own approach.70 In the
of the state sought after by the Jewish-Viennese words of Josef Kunz:
Georg Jellinek.68 Kelsen who considered
“Kelsen’s first principle work, Hauptprobleme
Jellinek to be both his teacher but also his main der Staatsrechtslehre (1911) that was an intui-
critical target–erected the “identity thesis” that tive creation, written with no profound knowl-
conceived the state and the law to be one and edge of Kant and with no knowledge at all of
the same thing and thereby contested Jellinek’s [Hermann] Cohen [of the Marburg School of
“dualistic theory”–a sociological perspective new-Kantian thought] it was a philosophical
review of his first book which showed to Kelsen
that appreciated the state as a social and a legal
the far-reaching parallels between his thinking

reality.69 and the philosophy of Kant and Cohen”.71
The German political, legalistic and also reli-
gious neurosis during the Weimar Republic was De-contextualising the Context?
however just as constitutive for his theory. It
While the transcendent, abstract and univer-
was Germany–where Kelsen taught (Cologne)
sal characteristics of Kelsen’s Pure Theory of
but also studied (for three semesters) in
Law–that make it “a hole in time”–were born
Heidelberg and Berlin in 1907-1909–that
in the very specific Jewish German-speaking
67.
Kelsen quoted by Balduse in Manfred Balduse, context, expectedly it was in Switzerland that
“Habsburgian Multiethnicity and the ‘Unity of the State’–
On the Structural Setting of Kelsen’s Legal Thought”, in Kelsen’s earlier international legal contribu-
Dan Diner, Michael Stolleis, eds., Hans Kelsen and Carl tions turn even more international. In Geneva,
Schmitt, op. cit, p. 19-20 (cf. note 25).
Kelsen, 52 at the time, enhanced his focus on
68. For more on Jellinek’s private life, theoretical contri-
butions and the overt anti-Semitism he experienced 70. In Kelsen’s own words: “Später, als ich mit den Schriften
in Vienna, see Reut Yael Paz, A Gateway Between a Hermann Cohens bekannt wurde, wurde mir klar, dass
Distant God and a Cruel World, op. cit., p. 41-42 (cf. es die ‘Reinheit der Methode’ war, auf die ich, mehr
note 3). instinktmäßig als auf Grund systematischer Überlegung,
abgezielt hatte”, see Hans Kelsen “Autobioraphie”, in
69. In brief, Kelsen took Jellinek’s leading question (“how do
Hans Kelsen Werke Band 1, op. cit., p. 37 (cf. note 20).
we think about the state?”) a step further by asking “why
Kelsen named his theory “Reine Rechtslehre” as a con-
ought I obey the law?”, in Das Problem der Souveränität
scious imitation of Hermann Cohen’s 1904’s Ethik des
und die Theorie des Völkerrechts, Tübingen, Mohr,
reinen Willens, in Steven Beller, Vienna and the Jews
1928 (2nd ed. [1st ed. 1920]); see more in Reut Yael Paz,
1867-1938, op. cit., p. 21 (cf. note 46).
A Gateway Between a Distant God and a Cruel World,
op. cit., p. 154, 219 (cf. note 3). For more on Jellinek’s 71. Josef Kunz, “The “Vienna School” and International
theory, Georg Jellinek, Allgemeine Staatslehre, Berlin, Law”, New York University Law Quarterly Review, reprint.
Springer, 1922 (3rd ed. [1st ed. 1900]). n° 9 (March 1934), p. 372.
91
Reut Yael Paz
international law and developed it considerably of Herbert Lionel A. Hart’s views on legal pos-
while working together with numerous prom- itivism, that parallels much or Kelsen’s Pure
inent figures such as George Scelle, William Theory of Law, suggests however that there
Rappard, Paul Mantoux, Maurice Bourquin, might be more behind his “outsider” position
Guglielmo Ferrero, Paul Guggenheim and Hans than the difference in legal systems. While
Wehberg. recent research reflects a renewed interest in
Kelsen’s work74, it also offers numerous expla-
Fearing that Switzerland would enter World
nations for Kelsen’s rejection in the United
War II, and despite all attempts to avoid
States.75
leaving the continent72, Kelsen–now aged
58–leaves Europe to the us. After giving the For instance D. A. Jeremy Telman argues
celebrated Oliver Wendell Holmes Lectures at there are two main sociological reasons for
Harvard Law School in 1942, he becomes a full rejecting Kelsen’s Pure Theory of Law from
professor (1945) at the department of political American law schools. First, at the time

science at the University of California with the of Kelsen’s immigration to the US–when
help of Roscoe Pound. This move was neither “totalitarianism posed genuine threats to the
easy nor smooth. As David Kennedy puts it: ascendancy of democracy as the global model
for governance”–his theory “did not provide
“Kelsen has come to be treated as a leftover
European philosophizer who could never quite a sufficiently robust defence of democracy or
get with the program in the United States after for sufficient safeguards against abuses of the
the war, and is remembered as much for his tin law by fascist or totalitarian governments”.
ear towards specific international legal issues as Secondly, the American system promoted–
for his old worldly philosophical argument”.73 and still does–an inductive case method
That Kelsen was never accepted as an “insid- approach to legal education, whereas Kelsen’s
er” in the us was not too surprising. After all continental background was well entrenched
there is quite a way from Reine Rechtslere to in a deductive one that was based on code
the American brand of common law and/or rules and treatise.
legal realism. The American hearty acceptance
72. Only after he declined two positions offered to him by
the London School of Economics and Political Science 74. “Interdisciplinary Conference: Kelsen in America”, June
and the New School of Social Research in New York did 27-28, 2014, Lutheran School of Theology at Chicago,
he take a position in Geneva at the Institut Universitaire organized by Valparaiso University Law School.
des Hautes Études Internationales. Available at [www.valpo.edu/law/kelsen-in-america].
73. David Kennedy, “The International Style in Postwar Law 75. D. A. Jeremy Telman, “The Reception of Hans Kelsen’s
and Policy”, Utah Law Review, vol. 7 (1994/1), p. 21. Legal Theory in the United States: A Sociological
Available at [http://www.law.harvard.edu/faculty/dken- Model”, L’observateur des Nations unies, vol. 24, 2008,
nedy/publications/international_style.pdf]. p. 10, 17.
92
Such rehabilitation of “Kelsen in America” Indeed, ignoring the context of Kelsen’s

insinuates that there is still much historical anx- trailblazing theoretical contributions could
iety around Kelsen’s scholarship. Undoubtedly only aid in suppressing its greatest success
much of his influence, and perhaps even appro- and beauty: Kelsen reached a mathematical
priation, still needs to be overcome.76 Despite “pure” hole in time from his troubled time
such anxieties, respect and adoration–Kelsen and the peak of legal “impurity”. In spite of
obtained 11 honorary doctorates as well as the constant changing circumstances, Kelsen’s
other international awards–there is still much theory proves that rejecting both morality and
to learn from Kelsen’s work, especially because reality was neither innocent nor a neutral way
of its challenging and altering contexts. In other out of the law.77 This is how the Pure Theory of
words, contextualizing Kelsen and/or his Pure Law as “a hole in time” touches eternity. Hans
Theory of Law does not relieve us from its past Kelsen died in Berkeley in 1973. Yet the appeal
nor does it conceal his theory’s attractiveness. of his scholarly contributions, especially his

Au contraire. For better or worse, it allows us to Pure Theory of Law, lives on.
understand the nuanced details locked within
77. In the words of Martti Koskenniemi: “This is not a polit-
our own international legal inheritance. ically innocent jurisprudence. At the stroke of a pen it
(the Pure Theory of Law) redefined as ideology all the
76. Here I refer to Harold Bloom’s argument about the anx- nineteenth-century historical and sociological theo-
iety of indebtedness that self-appropriation involves, ries that had sought to answer the question of the real
see more in Harold Bloom, The Anxiety of Influence: nature of (Austrian/German) statehood as well as the
A Theory of Poetry (Oxford: Oxford University Press, attempt to derive international law from humanitarian
1997). morality or the sociology of interdependence”, in Martti
Koskenniemi, The Gentle Civilizer of Nations, op. cit.,
p. 242 (cf. note 31).
93

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KELSEN’S PURE THEORY OF LAW AS “A HOLE IN TIME”

Reut Yael Paz

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monde(s), no 7, mai 2015, p. 75-94

I f it were up to the Nobel Prize Winner

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resilient attachment to detachment together Whatever his belief–in private–Kelsen’s Jewish

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65. Kelsen, in a revealing conversation with Feinberg,

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Such rehabilitation of “Kelsen in America” Indeed, ignoring the context of Kelsen’s

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