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Hans Kelsen: October 11, 1886–April 15, 1973 ٭

Published online by Cambridge University Press:  28 March 2017

Leo Gross
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Editorial Comment
Information
American Journal of International Law , Volume 67 , Issue 3 , July 1973 , pp. 491 - 501
Copyright
Copyright © American Society of International Law 1973

Footnotes

٭

Honorary Member of the American Society of International Law since 1938; Honorary Vice President of the Society in 1954, and since 1959; Member of the Board of Editors of the AJIL in 1951, and Honorary Member since 1952. Kelsen also received the first Annual Award of the Society in 1952 for his work The Law of the United Nations supplemented by his Recent Trends in the Law of the United Nations(New York: Praeger, 1950 and 1951 respectively), Proceedings of the ASIL at its 46th Annual Meeting, 1952, pp. 174-75.

References

1 For a list of Kelsen’s writings in the original as well as translation into 24 languages, see Rudolf Aladár Métall, Hans Kelsen. Leben und Werk (Vienna: Deuticke, 1969) 124–55. It consists of 604 books and articles. A supplement raising the total to 620 by the same author was published in: Festschrift Hans Kelsen zum 90. Geburtstag. Adolf Merkl, René Marcic, Alfred Verdross, and Robert Walter (eds.) (Vienna: Deuticke, 1971) 325–26.

2 Law and the Science of Law in Recent Theories, 43 Yale L. J. 525–36, at 532 (1934). For other tributes to Kelsen and an overview of his theory see Ebenstein, William, The Pure Theory of Law: Demythologizing Legal Thought, in Essays in Honor of Hans Kelsen, 59 Calif, L. R. 617–53, at 619, n. 2 (1971)Google Scholar.

3 Of Stammler, Pound wrote: “Stammler has had the widest following on the Continent and now claims the greatest number of disciples of any jurist of the time.” Ibid., 531.

4 Métall, supra n. 1, at 10.

5 Concerning the relevance of Kelsen’s critique of these dualisms in contemporary juristic thinking in Germany, see Römer, Peter, Die Reine Rechtslehre Hans Kelsens als Ideologie und Ideologiekritik. Hans Kelsen zu sienem 90. Geburtstag am 11. Oktober 1971 gevoidmet. Politische Vierteljahresschrift, 579–98, at 582 S. (1971)Google Scholar.

6 Alfred Verdross, Österreich-Heimat der Reclistheorie in Philosophie Huldigt dem Recht. Hans Kelsen, Adolf Merkl, Alfred Verdross. Erinnerungsband zum 1 Juni, 1967 (Vienna: Europa Verlag, 1968, p. 50).

7 Das Problem der Souveränität und die Theorie des Völkerrechtes (Tübingen: Mohr, 1920).

8 Only in Prague, where he was a professor from 1936–38, were his lectures “as a rule attended by as few as four students and myself—a grotesque enough set-up which might have appealed to the imagination of Franz Kafka.” Hans Georg Schenk, Hans Kelsen in Prague: A Personal Reminiscence, see Essays supra, n. 2, 614–616, at 616.

9 p. xxiii. This preface is an authoritative summation of Kelsen’s theoretical objectives in this work.

10 Berlin: Springer.

11 It was, after some more revisions, eventually published in 1931 under the title: Pazifismus und Imperialismus. Eine Kbttisce Untersuchung Ihrer Theoretischen Begrundungen. (Vienna: Deuticke).

12 For details see Métall, supra, n.1, pp. 47–57. The constitutional issue related to the conflict of competence between administrative authorities and the ordinary courts. The substantive issue related to the dispensation from the “impediment of an existing marriage” granted by the former and invalidated by the latter. See Albert A. Ehrenzweig, Preface, in Essays, supra, n.2, at 610, n.3. The Court upheld the separation of powers and thereby invalidated the judgments of the latter thus upholding the validity of the dispensations and the marriages celebrated pursuant thereto.

13 42 Rec. des Cours, 116–351 (1932), in French.

14 However, these rights were honored after World War II and assured Kelsen, together with the substantial “Feltrinelli Price” which he received in 1960, a reasonably comfortable life after his retirement from Berkeley. See Métall, supra, n.1 , at 87.

15 See Métall, ibid., at 66–68.

16 E.g. Society and Nature. A Sociological Inquiry. (Chicago: The University of Chicago Press, 1943). See also Métall, ibid, at 109–10.

17 Reine Rechtslehre (Vienna: Deuticke, 1934).

18 Legal Technique in International Law. A Textual Critique of the League Covenant. (Geneva Research Center. 10 Geneva Studies 1939).

19 They were delivered in March 1941 and published under the title: Law and Peace in International Relations (Cambridge: Harvard University Press, 1942).

20 The Tercentenary of Harvard College (Cambridge: Harvard U.P. 1937) 217.

21 For details see Métall, supra, n. 1, at 94–101.

22 For a list see Métall, ibid,, at 94–95.

23 Gesellschaft, Staat und Recht. Untersuchungen zur Reinen Rechtslehre. (Vienna: Springer, 1931).

24 I contributed an essay which presented my experiences in my first encounter with the common law and international law at the Harvard Law School under the title: Der Rechtsbegriff des Common Law und das Völkerrecht, 11 Zeitschrift für Öffentliches Recht, 353–67 (1931).

25 See supra, n. 2. It may be noted that there is no contribution from the Department of Political Science of which Kelsen had been an active member for ten years. He gave only occasional lectures in the Law School.

26 See supra., n. 1. In addition to Merkl and Verdross, Professors René Marcic and Robert Walter appear as editors. Merkl and Marcic died before the publication of the volume.

27 Notably Society and Nature, supra, n. 16, and What is Justice? Justice, Law, and Politics in the Mirror of Science. (Berkeley: University of California Press, 1957).

28 Published by the Harvard University Press in 1945. The book went through several printings but Kelsen received no royalties from the Press. See Métall, supra, n. 1, at 81.

29 Vienna: Deuticke, 1960. An English translation by Max Knight appeared in the University of California Press in 1967 under the title: The Pure Theory of Law.

30 See in this connection his essay: Professor Stone and the Pure Theory of Law, 17 Stanford L.R., 1128–57 (1965).

31 Supra, n. 19.

32 Chapel Hill: University of North Carolina Press, 1944.

33 The Law of the United Nations. A Critical Analysis of its Fundamental Problems. (New York: Praeger, 1950). Although issued in this country by Praeger the merit of accepting the manuscript, which was rejected by several American publishers, belongs to Stevens & Sons, Ltd., in London. In 1951 Kelsen added a supplement Recent Trends in the United Nations. The task of bringing the commentary up-to-date was entrusted to Professor Salo Engel, a Kelsen student from his Geneva years, who died prematurely in 1972.

34 The Chairman of the Committee on Annual Awards, the late Professor Charles G. Fenwick, reported: “But we believe that we can respect the scholarship of a work without endorsing the particular principles upon which it is based or the conclusions at which it arrives. It is important to emphasize this, because there was much discussion in the Executive Council about whether it was wise to give the award to a work which appeared to reach conclusions which did not seem to take into account certain practical aspects of the problem, but confined themselves to pure theory.” 1952 Proceedings at 174. In short, it was not policy—that is, United States policy—oriented.

35 Métall, supra, n. 1, at 83–84.

36 Collective Security under International Law. N.W.C. 49 International Law Studies (Washington: GPO, 1957).

37 Principles of International Law (New York: Rinehart & Co., 1952). The second edition (1966) by one of Kelsen’s students and friends, Professor Robert W. Tucker, departs to some extent from Kelsen’s basic conception in order to make it more serviceable.

38 p. viii of the first and pp. ix-x of the second edition.

39 Reine Rechtslehre, supra, n. 29, at iv.

40 The Pure Theory of Law, ibid., at 1.

41 Ibid., at 33.

42 Ibid., at 346.

43 Ibid., at 339.

44 Ibid., at 347.

45 Supra, n. 19, at 54–55.

46 Principles of International Law, supra, n. 37, at vii of first, and ix of the second edition.

47 Supra, n. 29, at 322. Here he said that “the assumption . . . that war, like reprisals, is a sanction of international law, is well founded,” in reliance on the Kellogg-Briand Pact and the Charter of the United Nations.

48 The Pure Theory, supra, n. 29, at 348.

49 Alfred Verdross, Die Einheit des Rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen: Mohr, 1923).

50 The Pure Theory, supra, n. 29, at 351.

51 Ibid., at 353.

52 Ibid., at 354–55.

53 Ibid., at 356.

54 Kelsen elaborated this in his Preface to the Reine Rechtslehre supra, n. 29, at iv-v.

55 What is Justice? supra, n. 27, at 21. The next quotation in the text is at 24.