Kelsen on the nature of justice,at least social justice, saw it as subjective. On the issue of greater securityat the cost of freedom for example, his opinion was that a person’s choice if “individualfreedom has a higher value than social security or vice versa, only asubjective answer is possible” (Kelsen, 1957, pp. 5-6).
What justice is or whatsomeone demands from the state is very subjective. The nature of justice can thenchange from person to person.Itcan also change from era to era as well.
For example, Kelsen studied thechanging definitions of sovereignty and the nature of the state before andafter World War I and the same following World War II, he saw these events asprofoundly shifting the subjective role of the law in the countries involved (Kelsen,1955, pp. 1-2). He points out the shifting nature of justice and the role oflaw and the state between using Nazi Germany as an example (Kelsen, 1955, pp.5-7, 98). He argues that it is meaningless to let a majority vote decide whatis politically good (Kelsen, 1955, p. 38).
Legal fictions were another role of law Kelsen wroteabout both regarding his previous work on Germany for example and more broadly(Kelsen, 1947). He saw the distinction between fictions of theory and fictionsof practice as crucial (Del Mar, 2015, p. 12). Seeing fictions in practice asnot really fictions at all, only fictions of legal theory (theoretical) were genuinefictions (Del Mar, 2015, p. xx). For example, in the post World War II year hesaw the legal fiction that Germany still existed as a sovereign state served nopursue, it only served to avoid the reality of annexing another sovereign state(Kelsen, 1947, p. 1189).the relationship betweenpower, ethics and the law Juristwould see all valid law arising from the social contact and that it is neededto coerce the population to follow laws without the use of might alone.
But itcould be argued Kelsen believed it was just one of many other factors that legalorder comes from and a higher extra judicial norm is needed. Ultimately thesocial contract establishing the state is not a fiction of legal theory, but anethical fiction, a fiction created by a moral world-view (Del mar, 2015, p.18).Inthe struggle of power between varying classes created by the state and governmentKelsen supported a “neutrality” principle where the state was an accidental andtemporary equilibrium of classes (Jacobson, 2000, pp. 71-72). In Kelsen’s systemaccording to Jacobson (2000, p.
71) legal acts are examined for errors and chanedin judicial procedures. When something like emergency powers are used it isdirected at the officials who perform these checks on laws, without them the neutralityis lost. Kelsen was a strong promoter of democracy. He played anactive role in developing the Austrian constitution of 1 October 1920 andconsidered by some as its creator (Jacobson, 2000, p. 67). Though he would losehis position in 1929 due to growing fascist powers and again in 1933 lose his positionat the university of Cologne for his Jewish heritage, fleeing to America in1940 (Jacobson 2000, p.
68). Seeing the persecution of minorities and democracy Kelsendefended it fervently. In his 1955 work Foundations of Democracy heprovides a defense of democracy seeing the western model of representativedemocracy as crucial and promoted it over soviet style, nationalist, or socialistgovernments (Kelsen, 1955, p. 39). But while there seems to be a large associationbetween democracy and capitalism, Kelsen still feels mixed about how extensiveor true that even is (Kelsen, 1937, p. 94).
Outside of the democratic state he was often seen as anexpert on extra governmental organizations such as the United Nations havingwritten several works on it. The United Nations was a subject of extreme study becauseit provided a significant improvement over the previous League of Nations andattempted to fix the problems of the League that Kelsen had written about previously(Kelsen, 1951, pp. 1-3, 16-17). For him it was a way to examine how the systemsworked practically and how to improve them. TheVienna school of legal theory was highly influential outside of Austria even aswell, it was founded by Kelsen.
Using this school of thought and his position asa constitutional judge he would attempt to establish the Austrian constitutionalcourt’s theoretical and constitutional basis (Jacobson, 2000, p. 67). Though in describing the state Kelsen’s position was onewhere the law and state were identified, he rejected the dualist doctrine(Kelsen, 1961, p. 198).
The state is not limited by the law if the state alonecontrols the creation and enforcement of the law, this creates a weak base ofpublic law. Llewellyn as a legal realist was a critic of Kelsen (Llewellyn,1962, p. 356). Rejecting the positivist view he saw “Kelsen’s work as utterlysterile, save in by-products that derive from his taking his shrewd eyes, for amoment, off what he thinks of as pure law” (Llewellyn, 1962, p. 356). His workto him is sterile as in it ignores the realist influences and instead speaksonly of arbitrary influences which Kelsen decides himself based on what “catcheshis eye”.