Abstract

The “Pure Theory of Law” in the context of Hans Kelsen´s work as constitutional judge

Entanglements and Contradictions between Theory and Practice

Hans Kelsen is not only one of the most renowned legal theorists in continental European legal thinking, but he also served as a constitutional judge in the first Austrian Republic between 1919 and 1930. The article focuses on exploring whether and how the “Pure Theory of Law” can be reinterpreted as a theoretical framework based on the experiences of an active and, in many ways, “activist” constitutional judge. Initially emphasizing strict textual interpretation, Kelsen later demonstrated the inherently “political” nature of every “legal application”, particularly in response to the Austrian government's policy at the time, which aimed to “depoliticize” the Constitutional Court. The broader legal theoretical question of whether the law is applied or created by the judiciary was also subject to debates within the “Vienna School of Legal Theory”. As the article will demonstrate, Kelsen conceptualized “legal application” as an authorization for setting of new norms, which also concerns the essence of constitutional jurisdiction as “application of the constitution”. The article formulates and investigates the hypothesis as to whether Kelsen's theory regarding the “political” power of the judiciary can be explained by his experiences as a constitutional judge. In this context, the “Pure Theory of Law” is interpreted as both a reflection of Kelsen's judicial legal practice and a response to the specific historical circumstances and political criticisms he faced.