Hans Kelsen, who was admired as the millenium’s jurist by The Times Magazine in the year 1999, has been known as a Pure Theorist of Law. The pure theory of law has its aim to describe and analyze law only as positive law and eliminate all the facets...
Hans Kelsen, who was admired as the millenium’s jurist by The Times Magazine in the year 1999, has been known as a Pure Theorist of Law. The pure theory of law has its aim to describe and analyze law only as positive law and eliminate all the facets alien to it in its description. Through this pure theory’s relentless unique analysis could Kelsen think outside the legal box, and reveal as prejudices many traditional understandings long taken-for-granted by jurists. And he, as a pure theorist of law, pursued law only within the category of norm(‘ought’) and only on the perspective of a detached observer. So he has usually been (mis)taken for a idealist theorist, which means both that he approaches law only with speculation and that he is a scholar within the ivory tower who often disregards reality.
But nowadays there are new approaches to a realistic interpretation of him and his works. Of course it is not the first and only attempt to interpret him beyond the boundary of the pure theory of law. As far as I know there was already an attempt to interpret his theory as a critique of ideology(‘Ideologiekritik’) by his collegue Ernst Topitsch, which is unfortunately not widely known. Robert Schuett, who now teaches at the University of Salzburg, has tried several years to interpret Kelsen as a political realist in his works, and his effort, I think, culminates in his recent book Hans Kelsen’s Political Realism, 2022.
He deployes two strategies for making sure his Kelsen as political realist thesis: One is, of course, to analyse Kelsen’s works, and the other is to present to the reader Kelsen’s anecdotes, especially with regard to his milleu in Vienna and to his Weltanschauung that has been formed under the influences of his contemporaries, e.g. Ernst Mach, Friedrich von Wieser and Sigmund Freud. And he emphatically points out the fact that Kelsen was a teacher of Hans Morgenthau, the initiator of political realism in international politics, and had influenced on his thought that the theory of international politics has to be built upon its own principles of national interest which is defined in terms of power, even though it is not an invariable one but subject to change by those who decide and by the circumstances. He gathered vast amount of Kelsen’s anecdotes which would confirm him as a political realist with biographical scrutiny. I highly appreciate his efforts to bring out the political realist in Hans Kelsen, and I think he succeeds to persuade readers to his political realist interpretation of Kelsen and his theory of law and politics.