Assimilation Through Law: Hans Kelsen and the Jewish Experience
The Law of Strangers: Jewish Lawyers and International Law in the Twentieth Century 51 (James Loeffler & Moria Paz eds., Cambridge University Press, 2019, Forthcoming)
30 Pages Posted: 19 May 2015 Last revised: 22 Apr 2019
Date Written: May 16, 2015
Hans Kelsen was perhaps the foremost continental lawyer of the 20th century. The founder of the immensely influential Pure Theory of Law, he is primarily remembered as a groundbreaking Austrian jurist. However, Kelsen was also a Jew, albeit an extremely assimilated one. His life story – from his early days in Vienna until his death in California – is truly representative of the tragedy of European Jewry in the 20th century. This Chapter discusses Kelsen in light of the ever-present tensions between Jewish and European identity, with particular attention to his position as an international lawyer. Focusing on the period surrounding the publication of the first edition of his Pure Theory of Law (1934), the Chapter discusses Kelsen along three interrelating themes relevant to the Jewish experience of the time. The first part situates Kelsen in relation to a key dilemma of Jewish politics: the tension between Jewish nationalism and assimilationism. It highlights the different constructions of Kelsen’s identity, and their uses by various actors. The second theme focuses on assimilationist politics in Kelsen’s jurisprudence, suggesting a reading of Kelsen’s Pure Theory which I call “assimilation through law.” The third theme pitches Kelsen’s Pure Theory of (international) law against the ideology of progress – a key idea in the thought of assimilated Jewish internationalists. As I demonstrate, although Kelsen’s Pure Theory famously claimed to be “anti-ideological,” the notion of progressivism still shines through its cold and analytic reasoning.
Keywords: Hans Kelsen, International Law, Jurisprudence, Legal History, History of International Law, Positivism, Legal Theory, International Lawyers, Cosmopolitanism
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