Kelsens´s Life in America (1940-73) & the diffusion of his Legal Theory across the Globe

The project is a continuation of the project "Biographical Researches on Hans Kelsen in the Years 1881-1940" (P 19287) that was supported by the FWF and ended in 2010. Together, the two projects will form the basis for the first scientific biography of Hans Kelsen, probably the most important 20th-century legal scholar worldwide. The year 1940 was an important turning point in Kelsen`s life; he had to emigrate from Europe to the U.S.A. as a result of World War II. The sources for Kelsen`s life before and after 1940 differ considerably. The new project will for the most part examine and analyze sources in the U.S.A. (Harvard, Berkeley, National Archives in Washington D.C. among many others) and in Latin America (Mexiko City, Buenos Aires, Montevideo among others). The project aims to relate Kelsen`s scientific work to his life and to discover which historical factors were decisive for both. Presumably the most important factors will be Kelsen`s difficult personal situation (he was almost 60 years old and without means when he emigrated to the U.S.A.), the nature of the universities and the scientific community in the U.S.A. in the 1940s and 1950s, the foundation of the United Nations (and Kelsen`s role in that process) and the remarkable contrast between the way in which his Pure Theory of Law was adopted in the English-speaking world and in Latin America. In the United States his theory tended to be ignored whereas his lectures in Latin America were a huge success. In order to evaluate the preliminary results of the project, an international meeting on the subject shall be held in Vienna at the beginning of 2014 for presentation of the results to experts, for discussion and propagation. Like the preceding project, also this project has its origin and was inspired in close co-operation with the Hans Kelsen Institute in Vienna (director: C. JABLONER), which has guaranteed its full support. The Dean of the Law Faculty of the University of Vienna and Vice-CEO of the Hans Kelsen Institute, H. MAYER, will be national research partner of the project. International cooperations have been arranged with the DFG-project No. JE 265/3-1 by M. JESTAEDT, Erlangen ("complete edition of Kelsen`s works"), with the European Academy of Legal Theory in Brusseles (M. VAN HOECKE) and with professors in Berkeley (R. BUXBAUM), St. Louis (St. PAULSON), Iowa (A. SOMEK) and Montevideo (O. SARLO).

The project was a follow-up to the FWF-project Biographical Studies on Hans Kelsen in the years 1881-1940 (P 19287). Together, the two projects constitute the basis for the first scholarly biography of probably the most important legal scholar, internationally, of the 20th century. The year 1940 marked a radical turning-point in Kelsens life, because it was in this year that he emigrated from Europe to the United States. Due to his advanced age, but even more due to the fact that his Pure Theory of Law was not considered practically relevant in the US, it proved difficult for him to settle in America. Until 1945 he was only given temporary teaching positions (at Harvard and Berkeley); a central role in this context played the Rockefeller Foundation, which secured his material existence.Kelsens academic works from these years are clearly marked by his endeavors to prove the practical usability of his theories. He published numerous papers on pacifism, the criminal prosecution of WWII war criminals and a new universal organization which should replace the League of Nations. These activities eventually resulted in his employment, in 1944, as an adviser to the Foreign Economic Administration, an administrative body which had been established one year earlier and which reported directly to the US president. In this capacity, Kelsen developed plans for the treatment of Austria and Germany after the war. The Allied Powers Berlin Declaration of 5 June 1945, which constitutes the foundation for the entire development of Germany as a state after 1945, can be read as a text that comprehensively reflects Kelsens proposals. In 1945 Kelsen was acting as a legal expert for the War Crimes Office of the Judge Advocate General of the US Army. Of the eight opinions that he wrote in this capacity, those on the retroactive force of criminal laws, and the definition of war of aggression respectively, had a major practical impact on the Nuremberg trials. These opinions eventually also led to Kelsen being recognized as useful by the University of California, and consequently to his appointment as a full professor in 1945. His advanced age at the time of his appointment led once again to problems when Kelsen retired only a couple of years later; it took lengthy discussions before the universitys pensions scheme was amended in way that allowed Kelsen to actually receive a pension. Unlike in North America, the Pure Theory of Law was enthusiastically received in Latin America. In 1941, 1949 and 1960, Kelsen undertook three major lecture tours that led him to Cuba, Brazil, Argentina, Uruguay and Mexico. Very significant was his meeting in 1949 with Carlos Cossio, who, building upon Kelsen, founded his own (egolocial) legal theory.