Hans Kelsen : rights crusader or Nazi sympathiser?

Abstract

Kelsen's Reine Rechstlehre, or: 'Pure Theory of Law', has been accused of being a "path-breaker" for Nazism and Fascism before it. Since the Reine Rechstlehre separates law from morals, it was accused of dulling the conscience of the German people, leading them to ignore the claims of justice. However it would be fallacious to claim that Kelsen was a Nazi or Fascist sympathiser. In fact it is not true that the 'Pure Theory' by maintaining an attitude of neutrality with regards to values, promoted blind obedience to the Weimar Constitution. It is also false to argue that the formalism of the Reine Rechstlehre contributed to the founding of thee Fascist regimes. It is implausible to accuse Kelsen of legitimising the totalitarian system of National Socialism, which he abhorred. Indeed the pure theory of law does not necessarily compel one to obey the law, but obliges the individual to take a solitary decision as to which values he will follow. Law is only one of these values. So these accusations were false and completely unfounded. To Kelsen these accusations were not painful; but they weighed heavily on his disciple Merkl, who believed in God. In regard to both of them, these accusations were lies. May they be spared further lies in death.