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

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.