»Pure Theory of Law« and Constitutional Jurisdiction – Their Relationship in Context of Imperial Legacies and Post-Imperial Challenges 1918–1934

• Applicant: Peter Techet, Ph.D.
• Subject Area: Principles of Law and Jurisprudence
• Term: from 2020 to 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 437440302

Hans Kelsen is one of the classics of the European jurisprudence. His theories have been widely explored. In contrast, however, the historical contexts under which Kelsen's "Pure Theory of Law" emerged have been far less taken into account in the literature on Kelsen. This gap promotes a too abstract, "space- and timeless" reading of Kelsen's life's work, in which his historical background and motifs remain hidden. My research project therefore aims to contextualize Kelsen's work in the First Republic (Austria). On the one hand, Kelsen developed his theories in the context of social changes and tensions in the post-Habsburg Austria of the interwar period. On the other hand, his scientific work and his intellectual commitment can be contrasted with his work as a constitutional judge. In this way, theory and institution can be explored on the example of a concrete epoch full of political upheavals and social challenges – with a particular focus on mutual influences and contrasts.Austria of the interwar period is the focal point of my research: Firstly, Kelsen developed the “Pure Theory of Law" as reflection and reaction to the political challenges of his time. Secondly, he acted as a constitutional judge at the Austrian Constitutional Court (VfGH), whose decisions triggered political debates in Austria. Thirdly, as critical intellectuals, he supported progressive issues causing social controversies, which had to be decided by the VfGH. The historical contextualization of Kelsen's social roles (as legal scholar, constitutional judge and critical intellectual) allows for a new understanding of the origins and causes of his legal doctrine and the (Austrian) constitutional jurisdiction.My research question overlaps with legal and historical research strands. The historical contexts of the "Pure Theory of Law" and the constitutional jurisdiction will be elaborated by an archival work with historical sources. In view of the historical circumstances, the reflexivity of the "Pure Theory of Law" and the political character of the constitutional jurisdiction can be brought to light. By emphasizing the historical contexts of theoretical reflections and practical legal power (i.e. constitutional jurisdiction), it is also possible to investigate whether and how law and politics interrelate. The thesis advocated by the "Pure Theory of Law" that the application of law is itself a political act can be therefore challenged on the basis of historical circumstances and sources.My research project is integrated into the project "Hans Kelsen Works" (HKW), which is established – with support of the Academy of Sciences and Literature in Mainz – at the Hans Kelsen Research Centre of the Albrecht Ludwig University (Freiburg im Breisgau) and the Johann Wolfgang Goethe University (Frankfurt am Main).

• DFG Programme: Research Grants
• Co-Investigators: Professor Dr. Claudius Geisler; Professor Dr. Matthias Jestaedt
• Cooperation Partner: Privatdozent Dr. Jörg Kammerhofer