Hans Kelsen , born the October 11th 1881 with Prague in Czechoslovakia, deceased the April 19th 1973 with Orinda in California, is a Austrian Juriste . In the field of the Right, it is at the origin of the “pure theory of the right”. He is the founder of the Normativisme and the principle of the Pyramide of the standards.

Hans Kelsen belongs to the movement of the legal Positivisme, which is derived current from the Positivisme founded by Auguste Count.

He taught in Juridicum of Vienna between 1911 and 1929.

Constrained to flee the Austria after the Anschluss because of its Jewish ascent , it was exiled with the the United States where it leant on the theoretical Droit, with the Faculty of Law Boalt Hall of the the University of California, Berkeley.

Theories of public law

Normativisme and Pyramid of the standards

Hans Kelsen is the founder of the school normativist and at the origin of the theory known as of the Pyramide of the standards. This theory aims at giving an objective base and laic to the scheduling of the various sources of the Droit, thus ensuring a rational explanation the principle of Hiérarchie of the standards. The basic principle of this theory is based on the idea of conformity. Thus, the valid lower standard cannot be against the standard which is immediately above to him. If such is the case, a dispute will be able to lead to “cancellation” or the “correction” of the lower standard contrary invalid.

This theoretical consideration made it possible to explain and support the emergence of the control of constitutionality in the countries Occident with in which this practice was unknown, in particular in Europe. The United States practiced this type of control since the beginning it 19th century (see Marbury v. Madison).

At the top of the pyramid, the author places a fundamental hypothetical standard, which it indicates by Grundnorm . The latter ensures the coherence of the unit the price nevertheless of a recourse to a legal Fiction. The hypothetical character of this standard made say to its detractors whom the author had not been able to be detached from the Postulat S of the natural right according to which the legitimacy of the right rises from the divinity or of the Nature itself.

Conscious of these criticisms, Kelsen proceeded to important rehandlings of its theory so that one generally distinguishes two times in his work: before the American exile and after this last.

The judge pointsman

According to Kelsen, the constitutional judge does not have the role to found a Gouvernement of the judges, in whom his censure of the law during the control of constitutionality would have political aspirations. On the contrary, the judge is there only to indicate to the legislator that, when there is incompatibility with the Constitution, it is necessary for him initially to pass by a constitutional revision before being able to make pass his law.

He was thus, for example, when the Constitutional council French censured, the August 13rd 1993, a provision of the law relating to the immigration, taken pursuant to the Convention of Schengen, with the reason which it undermined the principle to constitutional value of the Right of asylum (devoted by the preamble to 1946). The Constitution was then revised the November 25th 1993 by integrating a bearing new article 53-1 on this right. The expression " judge aiguilleur" comes from Louis Favoreu.

In France, this theory comes up against a limit - the constitutional judge refuses to control the laws chief clerks, which can be explained by the fact why, according to the same terms of the Constitution, “national sovereignty belongs to the people” (Article 3 of the Constitution of October 4th, 1958). To control the direct expression of this sovereignty via the laws chief clerks would amount violating the same terms of the Constitution.

Influence

He collaborated in the drafting of the Austrian Constitution of 1920.

The international radiation of the thought of Hans Kelsen did this one an outstanding figure of the general theory of the right to the 20th century.

political theory

Less known than its theory of the right, Kelsen also reflected on the political organization, in particular on the democracy (cf H. Kelsen, the democracy, its value its nature ). It tries to define this concept which is far from the being actually. For that, it reconsiders the social contract to try to exceed it and reach a mode which would be the least bad for the man, a balance between freedom (value first) and the equality.

Sources of its thought

Kelsen is often regarded as the principal one representing legal Positivisme, in particular by holding of rival theories like the Jusnaturalisme. Although he asserts itself this affiliation, some notable theorists dispute it. Thus Alf Ross describes Kelsen like a “quasi-positivist”.

Its thought is strongly influenced by Kant and Hume.

Selected works

  • pure Theory of the right , 2nd edition translated by Charles Eisenmann, Dalloz, 1962, Paris.

  • general Theory of the standards , PUF, 1996, Paris, translation of Olivier Beaud.
  • general Theory of the right and the followed State of the doctrines of the natural right and legal positivism , LGDJ - Bruylant, 1997, Paris, coll the legal thought.

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