Critical Thinking

Kelsen population to follow laws without the use

Kelsen on the nature of justice,
at least social justice, saw it as subjective. On the issue of greater security
at the cost of freedom for example, his opinion was that a person’s choice if “individual
freedom has a higher value than social security or vice versa, only a
subjective answer is possible” (Kelsen, 1957, pp. 5-6). What justice is or what
someone demands from the state is very subjective. The nature of justice can then
change from person to person.

can also change from era to era as well. For example, Kelsen studied the
changing definitions of sovereignty and the nature of the state before and
after World War I and the same following World War II, he saw these events as
profoundly shifting the subjective role of the law in the countries involved (Kelsen,
1955, pp. 1-2). He points out the shifting nature of justice and the role of
law and the state between using Nazi Germany as an example (Kelsen, 1955, pp.
5-7, 98). He argues that it is meaningless to let a majority vote decide what
is politically good (Kelsen, 1955, p. 38).

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            Legal fictions were another role of law Kelsen wrote
about both regarding his previous work on Germany for example and more broadly
(Kelsen, 1947). He saw the distinction between fictions of theory and fictions
of practice as crucial (Del Mar, 2015, p. 12). Seeing fictions in practice as
not really fictions at all, only fictions of legal theory (theoretical) were genuine
fictions (Del Mar, 2015, p. xx). For example, in the post World War II year he
saw the legal fiction that Germany still existed as a sovereign state served no
pursue, it only served to avoid the reality of annexing another sovereign state
(Kelsen, 1947, p. 1189).

the relationship between
power, ethics and the law


would see all valid law arising from the social contact and that it is needed
to coerce the population to follow laws without the use of might alone. But it
could be argued Kelsen believed it was just one of many other factors that legal
order comes from and a higher extra judicial norm is needed. Ultimately the
social contract establishing the state is not a fiction of legal theory, but an
ethical fiction, a fiction created by a moral world-view (Del mar, 2015, p.

the struggle of power between varying classes created by the state and government
Kelsen supported a “neutrality” principle where the state was an accidental and
temporary equilibrium of classes (Jacobson, 2000, pp. 71-72). In Kelsen’s system
according to Jacobson (2000, p. 71) legal acts are examined for errors and chaned
in judicial procedures. When something like emergency powers are used it is
directed at the officials who perform these checks on laws, without them the neutrality
is lost.


            Kelsen was a strong promoter of democracy. He played an
active role in developing the Austrian constitution of 1 October 1920 and
considered by some as its creator (Jacobson, 2000, p. 67). Though he would lose
his position in 1929 due to growing fascist powers and again in 1933 lose his position
at the university of Cologne for his Jewish heritage, fleeing to America in
1940 (Jacobson 2000, p. 68).

            Seeing the persecution of minorities and democracy Kelsen
defended it fervently. In his 1955 work Foundations of Democracy he
provides a defense of democracy seeing the western model of representative
democracy as crucial and promoted it over soviet style, nationalist, or socialist
governments (Kelsen, 1955, p. 39). But while there seems to be a large association
between democracy and capitalism, Kelsen still feels mixed about how extensive
or true that even is (Kelsen, 1937, p. 94).

            Outside of the democratic state he was often seen as an
expert on extra governmental organizations such as the United Nations having
written several works on it. The United Nations was a subject of extreme study because
it provided a significant improvement over the previous League of Nations and
attempted to fix the problems of the League that Kelsen had written about previously
(Kelsen, 1951, pp. 1-3, 16-17). For him it was a way to examine how the systems
worked practically and how to improve them.

Vienna school of legal theory was highly influential outside of Austria even as
well, it was founded by Kelsen. Using this school of thought and his position as
a constitutional judge he would attempt to establish the Austrian constitutional
court’s theoretical and constitutional basis (Jacobson, 2000, p. 67).

            Though in describing the state Kelsen’s position was one
where the law and state were identified, he rejected the dualist doctrine
(Kelsen, 1961, p. 198). The state is not limited by the law if the state alone
controls the creation and enforcement of the law, this creates a weak base of
public law.

            Llewellyn as a legal realist was a critic of Kelsen (Llewellyn,
1962, p. 356). Rejecting the positivist view he saw “Kelsen’s work as utterly
sterile, save in by-products that derive from his taking his shrewd eyes, for a
moment, off what he thinks of as pure law” (Llewellyn, 1962, p. 356). His work
to him is sterile as in it ignores the realist influences and instead speaks
only of arbitrary influences which Kelsen decides himself based on what “catches
his eye”.


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