Who was Hans Kelsen?

Outside of the legal and historical experts, most of them only knew him as the antipode of the infamous and much more famous Carl Schmitt.

Kelsen argued with him in 1931 about who should be the “guardian of the constitution”.

For Schmitt it was the Reich President as the embodiment of the will of the people.

Kelsen, on the other hand, shaped by the multiethnic state of Austria-Hungary, considered this to be a unifying fiction.

He relied on a constitutional court that should not only consider the majority will, but also the rights and freedoms of minorities.

The degree of familiarity of the two lawyers is inversely related to their legal-political effect.

Unlike Schmitt, Kelsen left a lasting mark on the legal landscape.

After the fall of the Danube Monarchy, he drafted the constitution of the Republic of Austria, which is still in force today, and established European constitutional jurisdiction with its constitutional court, where he was a judge himself.

The Federal Constitutional Court in Karlsruhe also owes its existence to Kelsen's pioneering work.

In the meantime, Kelsen's importance, which goes far beyond these direct political effects, is also being discovered by a wider public.

This is not least thanks to the highly acclaimed biography of Kelsen recently presented by the Viennese legal historian Thomas Olechowski.

Not a public intellectual

Olechowski sheds light on how much Kelsen was involved in the political and intellectual Vienna of the 1920s. His sympathies belonged to the Social Democrats, to whose election he called in a proclamation in 1927 together with prominent representatives of the artistic and scientific life. One of the co-signers was Robert Musil. The writer mentions Kelsen several times in his diaries. According to the political scientist Reinhard Mehring, Hans Kelsen has even found its way into Musil's “Man without Qualities”: Kelsen's role as advisor to Austrian government members is reflected in the main character Ulrich, who as secretary organized the “parallel action” for the imperial jubilee. His legal philosophical world of thought, on the other hand, should take the form of Ulrich's father,a legal scholar drawn in caricatures (Zeitschrift für neuer Rechtsgeschichte, vol. 2020, no. 3/4).

In 1930 Kelsen left Vienna. From then on he lived in exile until his death in 1973. The first move - to the Prussian-German Cologne - was still voluntary. The next changes of location - Geneva, Prague and finally the United States - were stops on an escape from the National Socialists. In a lecture at the Hamburg Institute for Social Research, Thomas Olechowski made clear what challenge America's different legal culture posed for Kelsen. His academic productivity - first at Harvard Law School, then at the University of California at Berkeley - remained unbroken. Kelsen, a United Nations thought leader, now focused on international law. In addition, there were work on democracy theory and ideology-critical debates with Marxism and fascism.Unlike Carl Schmitt, Kelsen did not become a public intellectual, which Thomas Olechowski attributes to the narrow reception by law.