켈젠 法理論의 發展過程

Abstract

Hans Kelsen(1881-1973) is the jurist of the second millenium as well as the 20th century. Kelsen's fame in legal philosophy and legal theory is unrivalled. Kelsen's legal theory has profoundly affected the way jurists look at the law not only in the extraordinary juridico-philosophical controversies surrounding the Pure Theory of Law(Reine Rechtslehre), but also in the Kelsenian concepts and doctrines. But, Kelsen's legal theory has been changed during his long academic career to a considerable extent. Kelsen published his first major treatise 『Main Problems in the Theory of State Law(Hauptprobleme der Staatsrechtslehre)』 in 1911, his last major book 『The General Theory of Norms(Allgemeine Theorie der Normen)』 in 1979 as a posthumous work. While the earlier work set the stage for what emerged in 1930's as the Pure Theory of Law, the later work marks Kelsen's own rejection of large parts of that theory.So many legal scholars are confused at which phases of Kelsen's legal theory is real. This article tries to unveil the real face of Kelsen's legal theory through the investigation into the development of Kelsen's legal theory. Hans Kelsen as a man is gone in 1973, but Hans Kelsen as a legal philosopher and legal theorist still lives.