Kelsen and Contemporary Constitutionalism: The Continued Presence of Kelsenian Themes

  • Paolo Carrozza Scuola Superiore Sant’Anna, Pisa
DOI: https://doi.org/10.18543/ed-67(1)-2019pp55-82
Keywords: Constitutional Law, Kelsen, globalization, multi-level government

Abstract

This chapter aims to demonstrate the enduring importance of Kelsen’s thought in contemporary constitutionalism and contends that constitutionalists are considerably more Kelsenian than generally supposed. The chapter commences with a short reconstruction of three different periods in Kelsen’s legal thought: his contribution to Vienna law school under the influence of the German positivism; Kelsen’s commitment, from 1918 to 1933, to the newly-born Austrian republic; his forced emigration to the U.S.A. in 1940 and his encounter with the American school of law and political science. Kelsen’s contribution to contemporary constitutionalism begins with the great influence of his thought on the Austrian Constitution of 1920, which Kelsen defended in newspaper articles as well as in scholarly papers. The chapter maintains that Kelsenian legal science has continuing significance in two main fields of contemporary constitutionalism, both originated by the consideration of the constitution as a higher law: the first, the Austrian model for the judicial review of legislation, which shaped the European model of constitutional adjudication, nowadays diffused throughout the world; and the second, the ‘gradualist’ theory of the sources of law (the Stufenbau). It is argued that Kelsen’s legal thought has enduring import in the present-day crisis of constitutionalism not only for the legal understanding of multi- level government (monism v. dualism) but also for the globalization of constitutionalism and the idea of open-ended constitutionalism.

Received: 11 May 2019
Accepted: 21 June 2019
Published online: 31 July 2019

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Author Biography

Paolo Carrozza, Scuola Superiore Sant’Anna, Pisa

Full Professor of Constitutional Law

Published
2019-07-31
How to Cite
Carrozza, Paolo. 2019. “Kelsen and Contemporary Constitutionalism: The Continued Presence of Kelsenian Themes”. Estudios De Deusto 67 (1), 55-82. https://doi.org/10.18543/ed-67(1)-2019pp55-82.
Issue
Vol. 67 No. 1 (2019)
Section
Special Issue

Last update: 08/02/2022

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