Talk:Hans Kelsen

Kelsen and Schmitt

It's a little odd that the Kelsen and Schmitt pages cross-ref each other, while the main text of each article makes no reference to the other. I will try to fix that; I've got Schmitt's Political Theology handy, and there's a good, apropos Kelsen quote in another book I'm reading (tho not at hand right now). --Andersonblog 19:15, 9 October 2006 (UTC)

Kelsen and Z A Bhutto

Bhutto attended lectures by Kelsen at Berkeley and later, when Pakistan's trade minister, professed himself indebted to them - Métall p 88. This does not show that Bhutto was actually a student of Kelsen. If anyone has further info, let us discuss. --Wikiain (talk) 01:32, 22 August 2010 (UTC)

It is in any case quite irrelevant that Bhutto attended his lectures and has no place in an article of this size.159.92.9.7 (talk) 10:14, 24 October 2012 (UTC)

WikiProject class rating

This article was automatically assessed because at least one WikiProject had rated the article as start, and the rating on other projects was brought up to start class. BetacommandBot 04:04, 10 November 2007 (UTC)

Czechoslovakian constitutional court

Czechoslovakian constitutional court was established in 1920 ( 1921 ) http://www.usoud.cz/clanek/Czechoslovak_Court_1920 and it was the first constituonal court in Europe ( czechoslovakian Constitutional Charter of 1920 is older than constitution of first Republic of Austria, but austrian court was first in practice ). [Copied from the talk page of "Constitutional Court."] — Preceding unsigned comment added by 99.100.182.13 (talk) 02:41, 23 March 2012 (UTC)

This is very interesting (but please sign your messages). Métall's biography claims that, on Kelsen's initiative, the Austrian Constitutional Court (Verfassungsgerichtshof) was "the first of this kind in the history of constitutional law (dem ersten dieser Art in der Geschichte des Verfassungsrechts)" (p 35). On your evidence, it may have been the first to come into operation yet the first to be constitutionally provided for was in Czechoslovakia.

Of what are we speaking? Perhaps the key characteristic of a "constitutional court" is that the power of judicial review, specifically the power to determine the validity of existing legislation, is located not in a supreme court with general jurisdiction but in a specialised court. Then, on the basis of your source, it might be claimed that Czechs and not Kelsen invented that idea. But I would hesitate before making any either/or assumption. The Austrians and the Czechs, I would think, were probably following each other's developments very closely. Just possibly, Kelsen invented the idea but the Czechs were the first to get it constitutionally adopted. Or did Czechs invent the idea but the Austrians were the first to get such a court into operation?

In your source, the idea was constitutionally adopted in Czechoslovakia on 29 February 1920 and in Austria on 1 October 1920, but the Czech court did not commence operation until 17 November 1921, when the Austrian court had already been in operation "for several months". The legislation providing for the organisation and procedure of the Austrian court was passed on 13 July 1921 (Métall, p 47). Kelsen was then recognised as "creator (Schöpfer)" of this court through appointment to it, with all-party support, "for life (auf Lebensdauer)" (Métall, p 48). That was to recognise Kelsen as creator of that court, but not necessarily as inventor of the idea of such a court. Métall does not say when the court held its first sitting and the Court's own website does not provide historical information). There is a difference, at most, of only four months—from mid-July to mid-November 1921.

Your source also points to an Austrian "constitutional court", at least in name, established in 1919 and whose powers were expanded to include review of existing legislation. It notes some debate over whether this court, instead, had been the first "constitutional court".

We therefore seem to have a complex question of priority, centring on the double issue: priority of whom and for what? Let's try to come to a wording that we and Glorfindel (who may be able to discover more, without OR) can agree upon. --Wikiain (talk) 00:22, 25 March 2012 (UTC)

Theo Öhlinger, in a talk to members of the Austrian Parliament, questions the importance of Kelsen with regard to the 1920 Constitution and the Constitutional Court, but continues to give historical priority to the Austrian court: "Die Bedeutung Hans Kelsens im Wandel" (2003). --Wikiain (talk) 00:58, 25 March 2012 (UTC)

I do not know who "invented" the constitutional court. It may well have been Kelsen's idea. I was not attempting to determine which of the two courts won the horse race. I was merely pointing out that a Constitutional Court was established in Czechoslovakia in 1920. The original wording implied that it first happened in Austria, then in FRG and then perhaps at some later date if ever in Czechoslovakia. That is not accurate.

The source I posted at Pure Theory of Law talk page, claims that F. Weyr came up with the ideas of the pure theory of law (normative theory) in Příspěvky k teorii nucených svazků (Contributions to the Theory of Forced Bonds) and Zum Probleme eines einheitlichen Rechtssystems. Both were published in 1908, three yrs before Kelsen's Hauptprobleme. One of them is in German. So you could argue that the Czechs invented the pure theory of law.

Of course the Czechs and the Austrians followed each other very closely. For example Kelsen and Weyr were personal friends.

My understanding is that the Czech Constitutional Court web page indeed means a specialized constitutional court. It is not clear to me if the courts in Norway, Romania and Monaco could review laws as such or if they had to wait until a case involving the law came up.

I wish people from the Brno Faculty of Law got involved in this. — Preceding unsigned comment added by 99.100.182.13 (talk) 04:37, 27 March 2012 (UTC)

I think we are on the same wavelength (and PLEASE sign your messages). My attention has been drawn to a book that might shed some light on these matters, and perhaps you will have access to it: Jana Osterkamp, Verfassungsgerichtsbarkeit in der Tschechoslowakei (1920-1939) (Klostermann, 2009). --Wikiain (talk) 23:51, 27 March 2012 (UTC)

German citizenship

Hans Kelsen did have German citizenship. see: [1], page 716; as well as: [2]. --IIIraute (talk) 00:17, 26 March 2012 (UTC)

Thank you for this correction. Your first - and very welcome - source, Dreier (p 716), cites Métall (p 58), who does say that, on taking up a position in Cologne, Kelsen became a German citizen and his pension entitlements were taken over by Germany. In that sense, Kelsen was for a time "a German". But I don't think that this makes it appropriate to describe him not simply as "Austrian" but as "Austrian-German". He arrived in Cologne on 2 November 1930 (Métall p 57). After the Nazi coup in January 1933 and apparently in early April, he read in a newspaper that he had been placed "on leave" (Métall p 60); from that moment on, despite a forlorn protest from all of his colleagues except Carl Schmitt, he was aware that he probably would have to leave Germany. So Germany accepted him in late 1930 and rejected him in early 1933. To describe him generally as "German" therefore seems inappropriate. By comparison, Kelsen had already lived in his birthplace Prague (Métall p 2) for longer than he was to live in Germany and he was to live in Prague again from 1936 to 1939 (Métall pp 69-76). He lived in the USA from 1940 to his death in 1973, becoming a US citizen on 28 July 1945 (Métall p 80), so it could make sense to call him "Austrian-American". But he still rewrote his most important work, Reine Rechtslehre (1934, 2nd edn 1960), in German and his main later works on theory of norms and of justice, now published posthumously, were written in German. I hope you will agree that to call him generally an "Austrian" is enough. --Wikiain (talk) 23:41, 27 March 2012 (UTC)

No, not really. Kelsen was Prague-born, Austrian, German, American. I would recommend to not give any citizenship in the lead (de:Hans Kelsen) and add "Citizenship" to the infobox; see: Albert Einstein, for example.--IIIraute (talk) 00:02, 28 March 2012 (UTC)

I think the nationality after the name is meant to describe identity, cultural background, mother tongue etc. It is not an enumeration of passports. Even though some people are difficult to categorize, the most fitting designation of Kelsen seems "Austrian." He was born German speaking in the Austrian empire and spent most of his life in Austria. It does seem odd to describe him as German. He spent only a few yrs in Germany, where he soon became a persona non grata. — Preceding unsigned comment added by PolyScientist (talk • contribs) 14:50, 29 March 2012 (UTC)

Maybe, but he also spent many years in the USA. No citizenship in the lead and the various citizenships in the infobox. Let the reader decide. see: Austrians - there was neither a consented Austrian nation nor an ethnicity at that time[3]. --IIIraute (talk) 15:24, 29 March 2012 (UTC)

I agree in principle, IIIraute. But, as to the infobox, unlike the Einstein box, there is the problem of identifying the citizenships. I would not know how to describe someone who was born in any part of the Austro-Hungarian Empire, nor is it clear whether Kelsen ever renounced any citizenship to which he was entitled. Dreier says that Kelsen arrived in the USA "with a Czech passport (mit einem tschechischen Paβ)" (p 717), but I can't see it in Métall. He would no doubt have been entitled to that because he was born in Prague, but I don't know that he ever knew Czech. Somewhere in WP, but I can't find it, I think there is discussion of how to identify someone's nationality - I think the consensus was that it should be the nationality with which they are most commonly associated, which would not always be their citizenship. I agree with that, and with PolyScientist, and, on that criterion, would prefer to revert to "Austrian". That is certainly the view in Austria! On my desk, two Kelsens look at me from Austrian commemorative postage stamps. Yet he might never have been entitled to citizenship of what became today's Austria. To describe Kelsen as "American" does not seem to fit; his juristic idiom, for want perhaps of a better word, was always Germanic. He never fitted into the judge-focused juristic discourse of the USA and today in the USA, with a few notable exceptions, he is hardly read. The editorial introduction to his recently published book Secular Religion describes him as "an Austrian scholar working primarily in German" (p xv). That is the view of the Hans Kelsen-Insitut, Vienna, which may not be wholly NPOV but does seem right. We all seem to agree that to describe Kelsen as "German" is unhelpful, so I will take that out. Kelsen now appears again simply as "Austrian", which at any rate does not seem to be misleading. I remain open to discussion of options from there. --Wikiain (talk) 01:16, 30 March 2012 (UTC)

" But, as to the infobox, unlike the Einstein box, there is the problem of identifying the citizenships."... no there is not. " I would not know how to describe someone who was born in any part of the Austro-Hungarian Empire..." Citizenship: Austro-Hungarian Empire (dates), Germany (dates), United States (dates). Not really a problem at all.--IIIraute (talk) 01:40, 30 March 2012 (UTC)

I'm ok with your taking out "Austrian", albeit that on balance I would prefer to have kept it. But, as to the infobox, there remain some gaps and I'm not sure how one could express them. Especially, I would not want to suggest, simply by not stating an end date to it, that Kelsen remained a German citizen.

1. I now see that the article Austria-Hungary indicates that one could be Austrian or Hungarian but not both and that a person born in Prague would have been Austrian (WP can't be used as a source for WP, but the sources given there could be checked and used here). Presumably he remained Austrian after the end of Austria-Hungary in 1918.
2. In that case, is Dreier correct that in 1940 he was able to travel to the USA on a Czech passport? Perhaps it was not a full passport, only some lesser kind of travel document (Dreier says Pass, not Reisepass); but, even so, how did Kelsen become entitled to it?
3. Assuming that from birth that Kelsen was an Austrian citizen, did he renounce it, or lose it by operation of law, when he became a German citizen? Or, if not, when he became a US citizen?
4. Overlapping with that: we know when Kelsen was naturalised as a German, but not when - if ever - that citizenship was withdrawn or renounced.
5. However, we know when he was naturalised as a US citizen and it can be assumed that this lasted until his death.

These seem to me to be further reasons to refrain from attempting to characterise Kelsen by citizenship or, in a broader sense, nationality. If he has to be identified by nationality, then I think "Austrian" would be the only option. --Wikiain (talk) 03:59, 30 March 2012 (UTC)

Hierarchy of Norms is an essential concept in Kelsen and the Pure Theory of Law

Previous editor believes that "bindingness" is a more important aspect of Kelsen's theory than "hierarchy," which is highly questionable. Both of Kelsen's chapter on the dynamic theory or law and the static theory of law in this book are explicitly dependent on the hierarchical relationship of norms. Bindingness is much less prominent in the actual discussion of this book by Kelsen. For the present version, as an improvement, it is suggested to retain both terms, even though Kelsen puts more emphasis on the hierarchy of norms throughout this important Kelsen book.

76.193.164.200 (talk) 16:07, 18 June 2013 (UTC)

Sourcing

Hi users 72.68.10.194 and 209.3.238.61: you have been adding unsourced information, sometimes mistaken, and references that, while sometimes correct, are not properly formatted. For all biographical information, I am relying on Métall's biography, which appears to have been written in consultation with Kelsen. That is where, for example, I get that Kelsen was baptised as a Catholic for career reasons although "he was completely indifferent to religion (er war religiös völlig indifferent)" (pp 10-11) and I don't see a reference to him converting to Augsburger Lutheranism in 1912. So I will revert that change. (At least in later life, he detested religion - see Secular Religion, 2012 - on which I will add something soon.)

There is autobiographical material in the Werke, which I will soon be able to see. Can we please have a truce on biographical information, subject to any of us being able to cite primary sources for any correction - that is, so far as I am aware, only either Métall or the Werke? As to bibliographical information, again my main source is the bibliography in Métall which appears to be very accurate. But, wherever possible, I am using my own physical access to Kelsen's writings.

As to whether Kelsen should be counted also as a "political" philosopher, I would demur. In the USA he was a professor of political science because no US university had the sense to appoint him a professor of law, but he always published mainly on law and I don't think he ever acquired a reputation as a leading political philosopher. But I think this is a point on which we can understandably differ. --Wikiain (talk) 02:07, 19 July 2013 (UTC)

For the moment, it is perhaps better to suggest to do this one edit at a time, and document as the edits take place according to Wiki policy. If you are at U.Sydney, they are likely to purchase the Mohr edition of Kelsen and it should help quite a bit.72.68.10.194 (talk) 05:29, 19 July 2013 (UTC)

Yes: let's proceed one edit at a time. My university (not Sydney) is purchasing the Werke, which should arrive at any moment - the first 5 volumes. If you have access to the Werke, please cite them. Métall says of the doctorate(p 8): "promovierte Kelsen am 18. Juni 1906 zum Doctor juris an der Wiener Universität". I will change the text to correspond to that - if you have a better source, please cite it. However, the name of the degree would surely have been Latin "doctor juris" and not "Doktor" anything. I think it is very important that Kelsen became Catholic solely for career reasons and I will restore that. What is Bernstorff's source for the Lutheran conversion? If this is true, it's surprising that Métall doesn't mention it. And please put your references in as WP notes. --Wikiain (talk) 23:46, 19 July 2013 (UTC)

PS - I have now found Bernstorff online and, although he mentions a conversion to Protestantism in 1912 (p 275), he does not refer to any particular type of Protestantism. Therefore I have removed the material about Augsburg, as not supported by the reference. Bernstorff is referring to Kelsen's autobiography in the Werke and perhaps Kelsen speaks of Lutheranism there - I will draw on the autobiography when I get to see it. However, if Kelsen converted to Lutheranism that might simply have been at the time of his marriage, to please his wife and/or her family, and not for any religious reason. --Wikiain (talk) 00:25, 20 July 2013 (UTC)

This post is included here after the edit was placed w/o seeing this talk addendum. It all sounds quite reasonable. My preference is to generally read cites in the text, and if you prefer them in footnote style this is a popular option which you may apply at your discretion. If you are at UMelbourne they should be able to get the full Kelsen edition for you.72.68.10.194 (talk) 02:16, 20 July 2013 (UTC)

OK, but in one of your changes on 20 July you ask me: "Did you really get the book into your hands and read Joachim's Kelsen biogr?" This appears to refer to the few biographical pages in the book by Jochen (not Joachim) von Bernstorff (and published in 2010, not 2011). As I said in the PS above, "I have now found Bernstorff online". The pages concerned are among the pages of the book that the publisher has made available online, which for the present purpose - the claim of a 1912 conversion - is as good as having the book in one's hands. And I repeat: Bernstorff does not refer to any particular form of Protestantism - so please remove the material mentioning the Augsburg Confession unless you can find a source for it.

Your next reference, to "Lang", is not such a source and, moreover, your get wrong the author name, the title and the page. Your quotation is from a mere summary of a conference paper by Bernstorff, hence not a good source in any case. And I have Lange's article, downloaded, in front of me.

You quote from Lange: "Even though Kelsen converted from Judaism to Catholicism in 1905 and from Catholicism to Protestantism in 1912, nearly all of Kelsen’s moves from Vienna to Cologne, to Geneva, Harvard and Berkeley had an anti-Semitic background." While this is correct so far as it goes, to isolate the factor of anti-semitism can convey a false impression. Kelsen was also opposed in Europe for his liberalism and for his opposition to all doctrines of natural law, both of which are far more important to his eminence as a jurist. Métall, at least (pp 77-79), does not suggest that ant-semitism played any role in Kelsen's vicissitudes in the USA.

Your personal preference may be to have citations in-text, but WP practice in articles on scholars is to use notes. Kindly do so --Wikiain (talk) 00:12, 22 July 2013 (UTC)

This information is from the Kelsen biography on his German web-site on the conversion. This information is readily available to you as well. Hans Kelsen: Curriculum vitae

1881 11. Oktober: Geburt in Prag als als Sohn von Adolf Kelsen (*1850 Brody in Galizien, †1907 Wien) und Auguste Löwy (*1859 Neuhaus in Böhmen, † 1950 Bled in Jugoslawien)

1884 Familie übersiedelt nach Wien

1900 9. Juli: Matura am Akademischen Gymnasium Wien

1901 Beginn des Studiums der Rechts- und Staatswissenschaften an der Universität Wien (bis 1906)

1905 10. Juni: Übertritt zum Katholizismus

1906 18. Mai: Promotion zum Dr. jur. an der Universität Wien

1908 & 1910 Studienaufenthalte in Heidelberg und Berlin

1911 9. März: Habilitation für Staatsrecht und Rechtsphilosophie an der Universität Wien

Sommer/Herbst: Dozent für Verfassungs- und Verwaltungslehre an der Exportakademie des k.k. österreichischen Handelsmuseums in Wien sowie Aufnahme der Lehrtätigkeit als Privatdozent für Staatsrecht und Rechtsphilosophie an der Universität Wien

1912 20. Mai: Übertritt zum evangelischen Glauben (Augsburger Bekenntnis)

209.3.238.62 (talk) 17:28, 22 July 2013 (UTC)

Which website are you referring to? --Wikiain (talk) 22:12, 22 July 2013 (UTC)

I have now managed to find this website. It is the Hans Kelsen Forschungsstelle, which I think we can rely upon. However, I think it is still necessary to refer to Métall and/or the Werke autobiography for Kelsen's reasons to convert. --Wikiain (talk) 01:06, 25 July 2013 (UTC)

If the vitae is not sufficient see also, WULR  Vol VI, Issue I  Fall 2012, for the Lutheran conversion. Yes, his wife was Lutheran. — Preceding unsigned comment added by 12.168.46.153 (talk) 20:52, 24 July 2013 (UTC)

This seems to be the Washington Undergraduate Law Review, edited and written by undergraduates and apparently not available online. --Wikiain (talk) 00:42, 25 July 2013 (UTC)

This essay should come up under a google seach of the phrase "WULR [...] Fall 2012" as it appears above. Note that it is a student essay but that it uses the apparatus of her professor at Columbia University which is of use and gives added cites on the conversion. 64.107.55.2 (talk) 18:22, 26 July 2013 (UTC)

I have now found that article in that way. It refers (p 26) to the 1905 conversion to Catholicism and goes on to say that in 1912 Kelsen and his bride Margarethe Bondi converted to Lutheran Protestantism. These statements are referenced to a 1993 article by leading Kelsen expert Horst Dreier, who for biographical information relies on Métall. Thus Dreier mentions the 1905 conversion but says nothing about 1912. --Wikiain (talk) 03:13, 27 July 2013 (UTC)

Yes, Drier is a reliable source. If you could somehow supplement your user page to possibly include an internet address or something, then there are several longer Kelsen files which I could have forwarded to your attention. Perhaps it may be time to start a Sources II section on this Talk page. 76.193.172.192 (talk) 00:39, 30 July 2013 (UTC)

My point was not whether Dreier is reliable - and indeed he is - but that he was referred to for something that he did not say. I would not like to become present in WP by email. If you would like to provide references to the sources you have in mind, here or on my talk page, if they are online or in one of Kelsen's books I will probably be able to find them. On the 1912 issue, I am just waiting for the Werke to arrive in my institution's library or for someone else to cite from them. Maybe you could, since "76.193.172.192" (googled) seems to be in or near Chicago with its immense libraries. --Wikiain (talk) 01:25, 30 July 2013 (UTC)

There is one problem with the use of "Czechoslovakia" in the background of his family. This was among the better known states created in the aftermath of World War I. In a 19th century context, this may be the Kingdom of Bohemia, or, possibly the extended Austro-Hungarian Empire? — Preceding unsigned comment added by 99.140.184.64 (talk) 17:02, 31 July 2013 (UTC)

The published volumes of the Werke are now in my institution's library and I have made changes accordingly. Among them, Kelsen's father is traced to Galicia and his mother (simply) to Bohemia. There is more to do! --Wikiain (talk) 04:24, 26 August 2013 (UTC)

Sourcing II

Yes, more to do; and good news that you now have the 5 Gessamaltewerke volumes at your Library. Do you plan to examine them in sequence or with preferred volumes first. 69.209.228.215 (talk) 12:28, 26 August 2013 (UTC)

If only I had such time! I hope to read the autobiographical material soon. Hopefully it will clear up why Kelsen converted to Catholicism and then to Lutheranism. I think we can take it from Métall that Kelsen was intellectually indifferent to religion, but not practically so, and the conversion to Catholicism was for career purposes. Maybe Margarete's family said "Ok, be Christian - but at least not Catholic"; however, that is mere speculation. The title of the Werke BTW is simply Werke and the recommended citation is "HKW". --Wikiain (talk) 00:30, 27 August 2013 (UTC)

The 1920s work on Democracy I have seen published in both essay form and in stand-alone book form (quite short). It was in two editions revised by Kelsen and amended by Kelsen himself. An good English translation of a substantial part of it was published in the UCal book by Bernard Schlink on Democracy. Regarding the Kelsen denominational issue, there remain a number of issues, for example, was his wife from a devout family or not, her parents as well. The question of the baptism of his two daughters is also unresolved. Did Kelsen take them church weekly, seasonally, or perhaps for the major holidays. These side issues would shed some light. 72.68.5.132 (talk) 23:57, 21 September 2013 (UTC)

Vom Wesen und Wert der Demokratie is listed in Métall's bibliography as follows: (1) Archiv für Sozialwissenschaft und Sozialpolitik, 47. Band, 1920, Seite 50-85; (2) Tübingen, J.C.B. Mohr (Paul Siebeck), 1920, 38 Seiten. The first is an article. I wouldn't call the second, at only 38 pages, a "book" - maybe a booklet or pamphlet, but not a book. As to church attendance, who would know? And, if the Kelsens showed up occasionally, what would that prove about belief? So far as I am aware, Kelsen never wrote anything from or sympathising with any religious point of view - but, on the contrary, whenever he refers to religion he opposes it, very strongly in Secular Religion. --Wikiain (talk) 04:08, 22 September 2013 (UTC)

Partial agree on these two items. The 1920 version is accurately recorded, though there was a revised and amended version following it by Kelsen in 1927 which should not be ignored for its amendations. These are documented in the Sara Lagi book on Kelsen in 2007. Regarding the Kelsen and religion comments, I can only await your reading of vol I of the Kelsen Werke on Dante. Kelsen endorses Dante's version of Roman Catholicism so strongly that I need to await your response upon your chance to examine it. Vienna at fin de siècle in 1905 is another question which Peter Gay has studied alot, commenting especially on how Freud never made it to professorship there. 72.68.5.132 (talk) 23:58, 22 September 2013 (UTC)