To gain a useful understanding of the breadth of Kelsen`s interests in political philosophy, it is instructive to examine Charles Covell`s 1980s book, The Redefinition of Conservatism, in which Covell places Kelsen in the philosophical context of Ludwig Wittgenstein, Roger Scruton, Michael Oakeshott, John Casey, and Maurice Cowling. [48] Although Kelsen`s political preferences were generally aimed at more liberal expressions, Conell`s perspective on modern liberal conservatism in his book provides an effective foil for highlighting Kelsen`s own accents in his own orientations in political philosophy. As Covell summarizes, Kelsen`s interests in political philosophy extended beyond “practical perspectives underlying morality, religion, culture, and social customs.” [49] Kelsen`s monistic legal theory, according to which international law and municipal law have the same subject, paved the way for the dominant contemporary doctrine: international law can encompass any aspect of human life that justifies the protection of human rights under international law. Kelsen`s doctrine of identifying law and the state regarded the legal order of the modern state as the model for any legal system. Since he also regarded physical coercion as a prerequisite for a normative legal order, Kelsen had to look for such a coercive element in the international order and find it in war. The experience of World War II led Kelsen to develop the doctrine of “just war” (bellum iustum) as an appropriate punishment for violations of international norms, a theory difficult to reconcile with his condemnation of any form of natural law. The narrow definition of Kelsen`s law prevented him from assessing the true nature of normative systems that did not fall within the definition of the State. Such systems can rely on non-physical forms of coercion, which, as will be seen in this article, are also accessible to the international order. In 1940, at the age of 58, he fled Europe with his family on the last voyage of the SS Washington and embarked in Lisbon on June 1. He moved to the United States, where he gave the prestigious Oliver Wendell Holmes Lectures at Harvard Law School in 1942. He was endorsed by Roscoe Pound for a professorship at Harvard, but was rejected by Lon Fuller on Harvard faculty before becoming a full professor in the Department of Political Science at the University of California, Berkeley in 1945.
Kelsen defended a position of discernment of the philosophical definition of justice, because it can be separated from the application of positive law. Fuller explained his disagreement: “I share Jerome Hall`s view, proven in these excellent readings, that justice should begin with justice. I prefer this preference not for reprimanded reasons, but because I am convinced that one cannot really understand the other questions of jurisprudence until one has addressed the problem of justice. Kelsen, for example, excludes justice from his study (of practical law) because it is an “irrational ideal” and therefore “not subject to knowledge.” The whole structure of his theory flows from this exclusion. The significance of his theory can therefore only be understood if we have subjected his keystone of negation to critical examination. [31] Lon Fuller believed that his natural law position against Kelsen was inconsistent with Kelsen`s commitment to the responsible use of positive law and jurisprudence. Over the next few years, Kelsen became increasingly concerned with issues of international law and international institutions such as the United Nations. In 1953/54 he was a visiting professor of international law at the United States Naval War College. Hans Kelsen (/ˈkɛlsən/; German: [ˈhans ˈkɛlsən]; (11 October 188†1 – 19 April 1973) was an Austrian jurist, legal philosopher and political philosopher. He is the author of the Austrian constitution of 1920, which is still valid to a very large extent today. Due to the rise of totalitarianism in Austria (and a 1929 constitutional amendment),[2] Kelsen went to Germany in 1930, but had to give up his academic post after Hitler seized power in 1933 due to his Jewish ancestry.
That year, he went to Geneva and settled in the United States in 1940. In 1934, Roscoe praised Pound Kelsen as “undoubtedly the leading jurist of the day.” In Vienna, Kelsen met Sigmund Freud and his entourage and wrote about social psychology and sociology. For Kelsen, the definition and redefinition of sovereignty in the context of twentieth-century modern law became a central theme in Hans Kelsen`s political philosophy from 1920 until the end of his life. [54] State sovereignty defines the jurisdiction of the laws governing the state and its affiliate. The principles of explicitly defined sovereignty became increasingly important to Kelsen, as the scope of his concerns extended more broadly to international law and its multiple implications after the end of World War I. For Kelsen, the regulation of international law in the presence of so-called sovereign borders represented either a major obstacle to the application of the principles of international law, or areas where the diminution of sovereignty could greatly facilitate the progress and effectiveness of international law in geopolitics.