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17 J.L. & Soc'y 273 (1990)
The Critical Legal Science of Hans Kelsen

handle is hein.journals/jlsocty17 and id is 281 raw text is: JOURNAL OF LAW AND SOCIETY VOLUME 17, NUMBER 3, AUTUMN 1990 0263-323X $3.00 The Critical Legal Science of Hans Kelsen IAIN STEWART* Fearing the outcome if the secret police found it in his house, the sacked law professor wrapped his old service revolver in a banana skin and plopped it into the Rhine. He escaped with his family to Prague, where, at his first lecture, fascists packed the hall and shouted: 'Everybody except Jews and com- munists, out!' Those students who remained were beaten up. He continued to teach, under police protection. Plans of a plot to assassinate him were discovered by a university cleaner. He brought his family out, to the United States of America, where he was allowed a chair of political science but not of law.1 Hans Kelsen, advisor to the Austro-Hungarian Emperor, author of the Austrian Constitution, and having experienced many kinds of academic and political victimization - of all major legal theorists the most bitterly acquainted with political realities - is an implausible perpetrator of 'formalism'.2 Yet his main creation, the 'pure theory of law', is both recognized world-wide as a major theory of law3 and placed in the 'born so beautiful' basket as the paradigm case of formalistic irrelevance.4 As Gurvitch formulates the charge: According to this doctrine, law, being nothing but a pure norm, admits only a normative and formalistic method of study, every other method being destructive of the very object of research. That is why sociology cannot study law and the 'science of law' cannot take account of social reality.' Even for so analytical a mind as Hart, the pure theory pays far too little attention to the circumstances under which laws are created and 'whether they are recognised as authoritative and by whom'.6 Yet, to Kelsen, of all charges levelled against the pure theory, that of formalism was the 'stupidest'.7 1 will argue that, when Kelsen's philosophical standpoint is understood, the question of formalism emerges on several levels. First, in relation to its subject matter the theory is intended to be anti- *Senior Lecturer and Head, School of Law, Macquarie University, Sydney 2109, Australia This paper is the fourth in a series dealing with the work of theorists who have substantially influenced contemporary understanding of law and society. The series will be of interest to both students and specialists.

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