Hans Kelsen’s Works and the Modern Theories of Human Rights

Abstract

It is becoming increasingly apparent that a harmonious junction between Hans Kelsen’s works and modern theories of human rights is highly unlikely. First, Hans Kelsen rejects natural law as the basis of law and, a fortiori, of human rights, while natural law has been at the heart of Bills and Declarations of rights and freedoms since the seventeenth-century. Next, Kelsen also denies the existence of any links between law and morality and refutes the existence of a system of values. Furthermore, he excludes, from the scope of constitutional review, statements expressing principles of justice or general freedom because their vagueness and abstractness would immediately lead to arbitrariness in adjudication. Finally, the Kelsenian definition of the concept of democracy is purely procedural; namely, there is no reference to the substantive aspects of democratic principles and values. Despite these unpromising starting points, it would be improper to conclude that Kelsen ignores or slights human rights. It is not so difficult to restore links between the modern and contemporary theories of human rights and Kelsen’s work, through a consideration of his meta-ethical preferences and the global structure of his ideas.