The Austrian-American legal scholar Hans Kelsen was not only a leading legal theorist but also served as a constitutional judge on Austria’s first Constitutional Court from 1919 to 1930—one of the earliest institutions of its kind in European legal history.
Although the Austrian Constitutional Court is still regarded as an institution of “self-restraint” today, Kelsen took a more activist approach in his role, using his position to advance progressive reforms, including changes to marriage law. This led to criticism from both Social Democrats and Christian Socials at the time. Ultimately, he was removed from his position as part of the so-called “depoliticization” of the court.
Kelsen reflected on his judicial work in his legal theory, arguing that the application of law is, to some degree, always an act of law-making—making it inherently “activist.” He also defended judicial review as a crucial safeguard in a pluralistic democracy, ensuring that majority rule does not come at the expense of minority rights.
In my lecture, I will explore Kelsen’s role as a constitutional judge within the historical context of the First Austrian Republic. At the same time, I will examine how his legal theory both reflected and responded to his own judicial approach—one that sought to protect pluralistic democracy from the risks of unchecked majority rule.