Hans Kelsen

The father of the constitution

“Democracy is the form of government which puts up the least resistance to its enemies. It seems to be its tragic fate to have to feed its worst enemy at its own breast.”

Hans Kelsen, one of the most important legal scholars of the 20th century, realised the hazards of democracy as early as the 1920s. His main concern was defending freedom of thought against all forms of oppression. He continues to have a strong influence on constitutional and international law as well as legal theory.

Kelsen was born in Prague in 1881 and grew up in Vienna. From 1901 he studied law here and gained his habilitation (qualification to teach at university level) in constitutional law and legal philosophy in 1911. In 1917, after having worked his way up to legal consultant to the War Ministry during the First World War, he was appointed professor at Vienna University. In his main work, “Pure Theory of Law”, he called for a purely formal analysis of law, free of scientific, ethic or political judgement.

As an expert in constitutional issues, he was called upon when the new Austrian Constitution was drawn up in 1919, which essentially remains the same today. He had a significant influence on the section on constitutional jurisdiction. He was a constitutional judge himself from 1921 onward, but was lost the position in 1930 when politically-motivated changes were made to the selection process. He subsequently left Vienna. After holding positions in Cologne, Genf and Prague he emigrated to the US in 1940, where he taught at Berkeley until 1952. In 1945, he wrote the first commentary on US law, most of which is still relevant today.