This book is a collection of articles which were a by-product of a comprehensive new biography on Hans Kelsen planned to appear in the near future. The enterprise, initiated by the Hans Kelsen-Institut in Vienna, constitutes three research projects financed by the Austrian Science Fund (FWF – Fonds zur Förderung der wissenschaftlichen Forschung). These projects were executed by a group of researchers under the direction of Professor Thomas Olechovski, concerning Hans Kelsen's life from 1881 to 1940, his life in America from 1940 until his death in 1973, and the worldwide diffusion of his legal theory. These research projects yielded a considerable number of articles, some of which were published in four volumes of the Schriftenreihe des Hans Kelsen Instituts series.Footnote ¹ The remaining articles were published in a variety of journals and books. The immediate purpose of this volume is to collect these latter articles in order to keep them together in one place at the disposal of the interested reader.

The literature on Kelsen's life and work is most extensive, and he is often described as the ‘jurist of the century’.Footnote ² As a matter of fact, the extent and depth of his scholarly work is most impressive; it relates to general and legal philosophy, to history, to science, to sociology and to politics. Equally impressive are his manifold public and private activities which were influential, among other fields, in a variety of legal areas, such as jurisprudence, constitutional and international law. Kelsen was the ‘architect’ of the Austrian constitution and its Constitutional Court, the first in Europe,Footnote ³ where he served as justice for about ten years. The substantial aim of the articles in the book is to show the relationship between Kelsen's life and his scientific work. As such, they will serve, together with the additional research papers, as the basis of the new biography in progress.Footnote ⁴ The collection will take into account ‘the influence of time and place regarding the elaboration of Kelsen's theories’.Footnote ⁵ It has to be remarked that the notion of ‘Kelsen's life’ in relation to his scientific work is conceived by the researchers in a very broad sense. Thus, for example, much research effort has been invested in Kelsen's ancestry and family background, including the origin of the name Kelsen, which varies from the name of a small village (Kelsen) to the first name of a Jewish woman (Keyle).Footnote ⁶ It is understandable that details of the personal life and family background of an outstanding scholar are of interest to many readers, but in relation to much of this information there is no basis for assuming that they influenced the scholar's scientific work and/or his personal ideologies. In this context it has to be remembered that in Nazi Germany Kelsen's Pure Theory of Law was accused, on racist grounds, of being the product of the ‘corrosive Jewish spirit’.Footnote ⁷ Substantively, I maintain that Kelsen's theory has no Jewish background.Footnote ⁸

On the other hand, there is much interest in the manifold activities of Kelsen and their impact on the development of his scholarly education, of his legal and political theories, and of his broad spectrum of knowledge. It is by no means easy to divide the series of articles published in the present book according to separate topics, as in many respects they overlap. However, in a broad sense one can differentiate articles according to their specific emphasis: Kelsen's professional and academic activities outside the universities;Footnote ⁹ Kelsen's academic career in the various universities in Europe and the United States;Footnote ¹⁰ some major scholarly controversies around Kelsen's normative legal theoryFootnote ¹¹ and around his state theory of debellatio;Footnote ¹² Kelsen's practice of judicial review;Footnote ¹³ and the reception of Kelsen's legal theory abroad.Footnote ¹⁴ One article develops a relatively recent research topic in relation to Kelsen: namely, the social networks created around him as a result of the expulsion of scholars and followers, and the impact of that expulsion on social and political sciences. The author, Tamara Ehs, distinguishes between three types of such expulsion: extra-mural exile (scientific activities outside the universities), inside-Europe exile, and United States of America exile.Footnote ¹⁵ Notwithstanding their unavoidable costs, this exile created for the persons concerned some scholarly benefits as a result of their membership of the supportive social network.Footnote ¹⁶

A central topic in many articles is the existence of anti-Semitism in scholarly and political circles years before the rise of German Nazism, as well as anti-democratic tendencies in these circles. Their description demonstrates the danger of similar current tendencies in modern societies. As noted by Thomas Olechowski, one of the early victims of the growing Austrian anti-Semitism was Georg Jellinek (1851–1911), Kelsen's teacher for two semesters in Heidelberg (1907–09).Footnote ¹⁷ His Jewish origin prevented him from being appointed to a full professorship of law at the University of Vienna.Footnote ¹⁸ Kelsen himself encountered rather early strong scholarly opposition, which to a considerable extent was based on anti-Semitic motives.Footnote ¹⁹ Among this opposition two scholars of aristocratic origin stand out: Ernst Schwind (1865–1932) and Alexander Hold-Ferneck (1875–1955).Footnote ²⁰ Two articles in the present book analyse the substance of the scholarly controversy between these two scholars and Kelsen. The polemic between Schwind and Kelsen is described by Thomas Olechowski as relating to the problem of the relationship between the philosophy of law and the history of law.Footnote ²¹ Schwind's first (unsuccessful) scholarly opposition to Kelsen was voiced against the nomination of Kelsen at the Vienna Faculty of Law in 1918. He claimed that Kelsen's theory was ‘destructive and corrosive’.Footnote ²² Ten years later he published a frontal attack against Kelsen's legal theory,Footnote ²³ to which the latter responded with forcefulness and derision.Footnote ²⁴ Schwind's arguments were somewhat weak but, as Olechowski demonstrates, the normative approach to law has to be integrated into the historical and sociological research of law and not excluded from these areas.Footnote ²⁵

The article by Jürgen Busch and Kamila Staudigl-Ciechowicz on the legal controversy between Hold-Ferneck and Kelsen focuses on the ideological background to the controversy.Footnote ²⁶ The article demonstrates the considerable influence exercised by the personal moral and political ideologies of the disputants upon their jurisprudential theories. Moreover, it shows, as mentioned, that anti-liberal, nationalistic and anti-Semitic tendencies had already appeared among scholars in Vienna University decades before they finally acquired their full effect in the Nazi era.Footnote ²⁷

A further article, by Miriam Gassner and Thomas Olechowski, addresses the philosophical controversy between the Argentine scholar Carlos Cassio (1903–87) and Kelsen,Footnote ²⁸ but one with a completely different intellectual background. Cassio intended to develop Kelsen's Pure Theory of Law into what he called ‘egological legal theory’. Cassio's theory has been described as an eclectic product consisting of elements of Husserl's phenomenology, of Heidegger's existentialism and of Kelsen's Pure Theory of Law.Footnote ²⁹ Notwithstanding Cassio's rather desperate bid to convince Kelsen of the correctness of his theory, the latter strongly opposed it. The article analyses the congruence and the discrepancy between the two theories.Footnote ³⁰ Cassio was instrumental in propagating Kelsen's theory in Latin America, where it is still very popular in academic circles.Footnote ³¹ The situation in Latin America is in rather stark contrast to the little impact that Kelsen's theory has had in the United States.Footnote ³²

Of special interest in the book is the detailed description of the acrimonious personal conflict between Kelsen and his ‘fallen master-class disciple’ Fritz Sander (1889–1939).Footnote ³³ The authors of the article, Thomas Olechowski and Jürgen Busch, state that they have restricted themselves to the personal and faculty-internal political dimensions of the complex relationship between the two, as the legal-theoretical aspects of the controversy between Kelsen and Sander have already been sufficiently analysed.Footnote ³⁴ No doubt, the actual relationship between teacher and disciple of Jewish origin was of a profound and tragic nature. The two scholars adhered to contrasting political ideologies. Sander's identification with, and his active support of, the Nazi ideology in Czechoslovakia ended with his sudden death in 1939, which created rumours of suicide.Footnote ³⁵ Besides the specific dramatic dimension, the personal conflict between the two scholars may serve, in the authors’ view, as an example of the connection between politics and science in relation to the political nature of a state. Moreover, it may serve equally as a topical lesson for a contemporary jurist's responsibility for the rule of law.Footnote ³⁶

Finally, one has to mention the outstanding contribution of Kelsen to public international law. As described in the article by Jürgen Busch and Nicoletta Bersier Ladavac, a major element was his academic position at the Institut Universitaire de Hautes Etudes Internationales in Geneva between 1933 and 1940 and after the Second World War.Footnote ³⁷ His work culminated in the publication of Peace through Law and The Law of the United Nations.Footnote ³⁸ The article by Thomas Olechovski and Stefan Wedrac addresses a specific topic of Kelsen's work in international law which concerned the issue of war crimes. As an external consultant to the Judge Advocate General's War Crime Office, he wrote a number of important memoranda.Footnote ³⁹

The present collection of papers on the life and work of Hans Kelsen constitutes a most valuable contribution not only for recognition of the historical and theoretical background to the work of an outstanding scholar, but also as an admonishment for the dangers of anti-liberal and anti-Semitic tendencies, which have been rising again in recent times in various places.