Kelsen giurista e teorico del diritto: una controversa attualità

Abstract

Hans Kelsen as Jurist and Legal Philosopher: a Present, Controversial Affair

Between the 1920s and 1930s, Hans Kelsen is already a universal jurist, known for his famous principled contrasts in the doctrine of the State. At that time, at the end of World War I, Kelsen is at the center of the political and theoretical debate establishing the roots of the constitutional State. Then, a decade later, he witnesses the crisis of the constitutional State, with particular reference to the dramatic emergence of totalitarianism in Germany. Even when his theoretical framework faces strong criticism at home in Europe, and then in the U.S. after his arrival in 1940, Kelsen’s great works of this period, from General Theory to the second edition of the Pure Theory of Law, establish him as an essential reference point for any reflection on general theory. Only in the late twentieth century do questions begin to be raised about the relevance of Kelsen’s theories, as described here with particular reference to the Italian context, where Kelsen’s works continue to have a widespread presence. Some begin to distance themselves from his thought, considered too far removed from the pluralism of the present and from the paradigm of individual rights, borne out of post-World War II constitutionalism. However, both Kelsen’s critical reading of nineteenth-century’s legal science of public law and his theory of democracy still appear highly relevant today.