規範等級體系凱爾森

規範等級體系凱爾森 楊智傑老師

凱爾森 • Hans Kelsen (October 11, 1881–April 19, 1973) was an Austrian-Americanjurist.

草擬奧地利憲法 • In 1919, he became full professor of public and administrative law at the University of Vienna. He established and edited the Journal of Public Law (Zeitschrift für Öffentliches Recht) in Vienna. At the behest of Chancellor Karl Renner, Kelsen worked on drafting a new Austrian Constitution, enacted in 1920. The document still forms the basis of Austrian constitutional law. Kelsen was appointed to the Constitutional Court, for a life term. In 1925, he published General Political Theory (Allgemeine Staatslehre) in Berlin.

憲法法庭的爭議 • Following increasing political controversy about some positions of the Constitutional Court (especially about divorce) and an increasingly conservative climate, Kelsen, who was considered a Social Democrat, although not a party member, was removed from the court in 1930.

移居德國、瑞士 • Kelsen accepted a professorship at the University of Cologne in 1930. When the Nazis came to power in Germany in 1933, he was removed from his post and moved to Geneva, Switzerland and taught international law at the Graduate Institute of International Studies from 1934 to 1940.

興趣轉往國際法 • In 1934, he published the first edition of Pure Theory of Law (Reine Rechtslehre). In Geneva he became more interested in international law. In 1936–1938 he was professor at the German University in Prague.

搬到美國 • In 1940, he moved to the United States, giving the at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations. In 1953-54, he was visiting Professor of International Law at the United States Naval War College.

集中式憲法法庭 • Kelsen's main legacy is as the inventor of the modern European model of constitutional review, first used in the Austrian First Republic, then in the Federal Republic of Germany, Italy, Spain, Portugal, and later many countries of Central and Eastern Europe. The Kelsenian court sets up special constitutional courts, which may have sole responsibility over constitutional disputes; this is quite different from the American system of judicial review.

基本規範 • Kelsen is considered one of the preeminent jurists of the 20th century. His legal theory, a very strict and scientifically understood type of legal positivism, is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based.

規範等級體系 • a legal system was a hierarchy of norms. Each norm, or legal proposition, was validated by a previous norm leading back to a fundamental postulate, or Grundnorm; for example, the will of the queen in Parliament. Thus the law and the state were essentially the same. • The basic norm or Grundnorm as Kelson calls it, is the Constitution which acquires validity from the fact of social acceptance or recognition.

純粹法學 • This he called the pure theory of law; pure because it was free from any ethical, ideological, or sociological considerations.

影響力 • His theory has followers among scholars of public law world-wide. His disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In the English-speaking world, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both departed from Kelsen's theories in several respects.

對國家主權的否定 • Kelsen's was a negative influence on Carl Schmitt, who criticized Kelsen's work on sovereignty in and elsewhere. In turn, Kelsen wrote that only the belief in a "theology of the State" could justify the refusal to acknowledge the binding nature of international law upon "sovereign" states. For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty nothing else than what we have purposely put into its definition.

規範等級體系凱爾森