Hans Kelsen

What is Justice

When Jesus of Nazareth, in the hearing before the Roman prefect, confessed to being a king, he said: “I was born and am come into this world to bear witness to the truth”. At which Pilate asked “What is truth?” The sceptical Roman obviously expected no answer to this question, nor did Our Lord give any. For to be witness to the truth was not the essence of his mission as a Messianic king. He was born to bear witness to justice, that justice which he wished to realise in the Kingdom of God. And for this justice he died on the cross.

Foundations of Democracy

Hans Kelsen examines the majority principle from the transformation of the natural freedom into civil freedom according to Rousseau. The majority rule turns out to give an estimate of self-government, insofar as the majority rule maximizes the number of those whose individual will coincides with the collective will. It is even better than unanimity or super majority. The majority decision satisfies best both the ideals of freedom and equality. Furthermore, the use of the majority rule fits a type of personality seeking compromise and respect for the minority. Eventually, behind democracy and the majority decision, relativistics can be understood. In other words, this philosophy by Kelsen explains that as access to truths or absolute values seem to be out of reach, people accept the majority decision quite easily.

Introduction to the problems of legal theory : a translation of the first edition of the Reine Rechtslehre or Pure theory of law

Purity law and morality the concept of law and the doctrine of the reconstructed legal norm overcoming the dualism of legal theory the legal system and its hierarchical structure interpretation the methods of creating law law and state the state and international law.

Absolutism and Relativism in Philosophy and Politics.

Since there exists philosophy, there exists the attempt to bring it in relation with politics; and this attempt has succeeded in so far as it is today recognized to the degree of a truism that political theory and that part of philosophy we call ethics are closely connected with each other. But it seems strange to assume—and this essay tries to verify this assumption—that there exists an external parallelism, and perhaps also an inner relationship, between politics and other parts of philosophy such as epistemology, that is, theory of knowledge, and theory of values. It is just within these two theories that the antagonism between philosophical absolutism and relativism has its seat; and this antagonism seems to be in many respects analogous to the fundamental opposition between autocracy and democracy as the representatives of political absolutism on the one hand and political relativism on the other. I Philosophical absolutism is the metaphysical view that there is an absolute reality, i.e., a reality that exists independently of human knowledge. Hence its existence is objective and unlimited in, or beyond, space and time, to which human knowledge is restricted. Philosophical relativism, on the other hand, advocates the empirical doctrine that reality exists only within human knowledge, and that, as the object of knowledge, reality is relative to the knowing subject. The absolute, the thing in itself, is beyond human experience; it is inaccessible to human knowledge and therefore unknowable. To the assumption of absolute existence corresponds the possibility of absolute truth and absolute values, denied by philosophical relativism, which recognizes only relative truth and relative values.

The Natural-Law Doctrine Before the Tribunal of Science

T HE NATURAL-LAW doctrine undertakes to supply a definitive solution to the eternal problem of justice, to answer the question as to what is right and wrong in the mutual relations of men. The answer is based on the assumption that it is possible to distinguish between human behavior which is natural, that is to say which corresponds to nature because it is required by nature, and human behavior which is unnatural, hence contrary to nature and forbidden by nature. This assumption implies that it is possible to deduce from nature, that is to say from the nature of man, from the nature of society and even from the nature of things certain rules which provide an altogether adequate prescription for human behavior, that by a careful examination of the facts of nature we can find the just solution of our social problems. Nature is conceived of as a legislator, the supreme legislator. This view presupposes that natural phenomena are directed towards an end or shaped by a purpose, that natural processes or nature conceived of as a whole is determined by final causes. It is a thoroughly teleological view, and as such does not differ from the idea that nature is endowed with will and intelligence. This implies that nature is a kind of superhuman personal being, an authority to which man owes obedience. At the lowest stage of human civilization this interpretation of nature manifests itself in so-called animism. Primitive man believes that natural things animals, plants, rivers, the stars in the sky are animated, that spirits or souls dwell within or behind these phenomena and that consequently these things react towards man like personal beings according to the same principles that determine the relations of man to

The Legal Status of Germany According to the Declaration of Berlin

According to the Declaration made at Berlin on June 5, 1945, by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom, and the Provisional Government of the French Republic, these Governments have assumed “ supreme authority with respect to Germany including all the powers possessed by the German Government, the high command, and any state, municipal, or local government or authority.” This means that the German territory, together with the population residing on it, has been placed under the sovereignty of the four powers. It means further that the legal status of Germany is not that of “ belligerent occupation” in accordance with the Articles 42 to 56 of the Regulations annexed to the Hague Convention respecting the Laws and Customs of War on Land of 1907. After Germanys unconditional surrender and especially after the abolition of the last German Government, the Government of Grand Admiral Doenitz, the status of belligerent occupation has become impossible. This status presupposes that a state of war still exists in the relationship between the occupant state and the state whose territory is under belligerent occupation. This condition implies the continued existence of the state whose territory is occupied and, consequently, the continued existence of its government recognized as the legitimate bearer of the sovereignty of the occupied state. This is the reason why it is generally assumed that belligerent occupation does not confer upon the occupant power sovereignty over the occupied territory. By belligerent occupation the legitimate government is made incapable of exercising its authority and is only substituted for the period of occupation by the authority of the occupant power. The legitimate government of the occupied state, especially the head of the state, may be expelled from the occupied territory and may have established his seat on the territory of an ally; the government, and especially the head of the occupied state, may even be made prisoners of war. But the government must continue to exist and must be recognized as such by the occupant power. The latter must be willing to conclude with this government a treaty of peace and to hand back to it the whole or a part of the occupied territory.

The Idea of Natural Law

Ever since men have thought about their mutual relationships, ever since “society” has been a problem at all — and this problem is older than any other topic of knowledge, even than that which we call ‘nature’ — the question of a just order of human relations has never ceased to be a burning one. And although this question has penetrated to the roots of our thinking and feeling and willing as scarcely any other has done, although the best minds, the most passionate hearts, the most iron hands have wrestled with it, although the whole of history, the whole unhappy history of mankind, can be seen as but a single constantly renewed attempt to answer this question, at a most frightful and infinitely costly sacrifice of blood, it is no more solved for us today than at the moment when this fearsome mystery of justice first flashed into a man’s mind, into the mind of the first man.

God and the State

The religious problem and the social problem exhibit a remarkable parallelism, and do so, in the first place, from the psychological point of view. For if one analyses the mode and manner in which God and society, the religious and the social, are experienced by the individual, it appears that in broad outline his state of mind is in both cases the same.

The Foundation of the Theory of Natural Law

I have accepted your invitation to speak on natural law — in this circle of supporters of that doctrine — not with any intention of converting you to my point of view, namely that from a scientifically rational standpoint one cannot accept the validity of natural law. For I do not consider such a conversion possible, and that for a reason which follows precisely from what I wish to discuss: the foundation of the natural law theory, i.e., the answer to the question, on what presupposition alone can one assume the validity of an eternal, unchangeable law immanent in nature; so that anyone, like myself, who does not feel able to accept this presupposition, is also unable to accept its consequence.

State-Form and World-Outlook

From the time of the great French Revolution, democracy came to be the political ideal of the 19th century. To be sure, there were also not inconsiderable forces in the Western world which were working to uphold the principle of monarchy. But they were reckoned to be reactionary. The idea of the popular state was the thing of the future. It drew the hearts of all who believed in progress and wished to see a higher development of social life. And it was above all the young, rising bourgeoisie who fought for this idea.