Towards a Historical Interpretation of the “Theory of Pure Law”. Contexts and Practices of Austrian Constitutional Jurisprudence

  • Péter Techet Institut de Sciences Politiques et de Théorie du Droit / Centre de Recherches de Hans Kelsen, Université de Fribourg (Allemagne)
Keywords: Austria, Hans Kelsen, Constitutional Court, Pure Theory ofLaw, Realist Theory of Interpretation

Abstract

Hans Kelsen was not only the founder of “Pure Theory of Law” (PTL), but he also worked as a constitutional judge in the First Republic (i.e., in Austria between the wars). Therefore, the question arises if and how his non-cognitivist theory of interpretation promoted an “activist” jurisdiction. If the PTL and Kelsen’s activity as a constitutional judge are re-read in its historical contexts, they turn out to be, on the one hand, as the product of a multi-ethnic state, in which only the law functioned as an integrating element, and, on the other hand, as reflection/reaction in a polarized
society, whose debates were decided by the Constitutional Court (very often in the interest of the minority, so the “red Vienna”). In the article, I support the historical contextualization of the PTL by analyzing whether and how it could justify an “activist” (in concreto: progressive)  constitutional jurisdiction.

Published
2021-12-22
Section
Essays