Dreams Born and Shattered 367Th e Vienna School
Th e Austrian writers of the 1920s who reshaped positivist thought were very
conscious of how far they were departing from their nineteenth- century
mainstream forebears. Th eir ideas have been given various labels, such as
“analytical positivism,” “critical positivism,” and “neo- positivism.” Most
commonly, though, these writers are referred to as the Vienna School, in
honor of their place of origin. Th e leading fi gure was Hans Kelsen. Other
prominent members included his fellow Austrians Josef Kunz and (for a time)
Alfred Verdross.
Kelsen was a native of Prague, though from a German- speaking family.
He grew up in Vienna. His family background was Jewish, but he elected to
convert to Catholicism to remove social barriers to advancement. And ad-
vance he did, to a professorship at the University of Vienna in constitutional
law. During the war, he was a legal adviser to the minister of war. In 1919, he
played the dominant role in the draft ing of the constitution of the new Re-
public of Austria and then went on to serve as a judge on the Constitutional
Court. His judicial career, however, was cut rudely short by an outbreak of
what would later be called the “culture wars.” A ruling by the Court in 1927
in favor of the legality of remarriage sparked an outcry from conservative
religious forces. Rioting broke out, with Kelsen as a foremost target, in the
course of which the Palace of Justice was burned down. An amendment to
the constitution brought about the dismissal of the off ending judges. Aft er
this chastening brush with reality, Kelsen moved to the University of Cologne
in Germany.
It was in his Austrian period, though, that he emerged as the spokesman of
the Vienna School. Th e foremost feature of the Vienna School approach was
its powerfully normative character— to the point that it has sometimes been
labeled as the “normative” approach to international law. Th is is the belief that
law— whether national or international— is, above all else, a set of rules that
the subjects of that law are obligated to obey. Th e question which then imme-
diately presents itself is where these rules come from. Th e Vienna School was
certainly emphatic as to where they do not come from. Th ey do not come from
natural law. One of the hallmarks of the Vienna School was a relentless hostil-
ity to natural law. In this sense, Kelsen and his followers were squarely within
the confi nes of mainstream positivism.