Reut Paz (Humboldt University Berlin): ‘The Legal Transcendentalism of Hans Kelsen as a Hole in Time’

The political crises of the 20th century influenced Hans Kelsen (1881-1973) both on an individual and a professional level.1 Kelsen, one of the preeminent jurists of his time, constructed the Pure Theory of Law (1934), before securing his escape from the burning ambers of Europe’s violence. Through this theory, Kelsen attempted to discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different people. Kelsen wanted to obliterate the profession of its limiting duality between the concrete ‘is’ and the normative ‘ought’. This way, his pure theory creates a new path where the fundamental antinomy between realism and idealism is dissolved.

The beauty (and vulnerability) of Kelsen’s theory is that it does not depend on the subordination of men to men, but to legal rules that have been created accurately and in accordance to “higher” valid norms. It is through this “chain of valid norms” that culminates within the Grundnorm, an a priori presupposition, that he erected his eternal and transcendental scientific law as the embodiment of an ethical goal. Turning into scientific and logical investigations as a reaction to the growing social irrationality and anarchy was a common denominator to many Jewish intellectuals of the Habsburg Empire. Earlier religious desires that during the age of Enlightenment, the Aufklärung and Jewish Haskalah, were directed towards to making Judaism a rational and modern religious practice, were now transformed into new secular scientific tools in the hands of Sigmund Freud, Karl Popper, Arthur Schnitzler, Erwin Schrödinger, Stefan Zweig, Gustav Mahler, etc. It was in the world of “rational illusions” that they sought to find the reality of life.

Despite Kelsen’s insistence on the purity of the law, it was not, as Martti Koskenniemi articulates, ‘a politically innocent jurisprudence. At the stroke of a pen it redefined as ideology all the nineteenth-century historical and sociological theories that had sought to answer the question of the real nature of (Austrian/German) statehood as well as the attempt to derive international law from humanitarian morality or the sociology of interdependence’.

I would like to explicate Kelsen’s transcendental aspirations for the Pure Theory of Law. I wish to present how his theory corresponded the political instabilities of the Austro-Hungarian monarchy, the insecurities of the German Weimar Republic as well as those of its Jewish author. Additionally, I would like to emphasize the importance of Pure Theory of Law as a “hole in time”: a path away from needing a historical point of reference, let alone the archive.