ABSTRACT In this article the development of the thought of two important twentieth-century legal theorists is compared. Although Hans Kelsen is primarily known for his Pure theory of law and Hermann Kantorowicz is one of the founders of the Free law movement, the article will revolve around their respective proposals for the post-War restoration of the international legal order. It is argued that these are based on their respective conceptions of ‘law’ and ‘the state’. By virtue of this comparison, it (...) is possible to shed light on the basic thinking behind their complex ideas, as well as show how these were formulated and influenced by the political circumstances of their times. Lastly, the article shall concern the concrete post-War influence of Kantorowicz and Kelsen, as a result of the shared and different philosophical, methodological and scientific convictions of both scholars. (shrink)

Often, a more or less universal quality is attributed to certain legal concepts. For refugee scholars working between 1933 and 1945, the universal quality of these concepts was challenged on two fronts: first, the breaking down of the Weimar Constitution and the German Rechtsstaat under Nazi rule demonstrated the fragility of a constitutional and legal order. Moreover, the breakdown of the German Rechtsstaat was felt on a deeper conceptual level. ‘Immutable’ legal concepts turned out to be easily mutated to conform (...) to Nazi ideology. The second major challenge to the universality of concepts thus pertains to the universal characteristics of the ‘concept of a concept’ itself. In brief, what German refugee legal scholars attempted to create in the course of the 1930s and 1940s was a ‘universal’ Rechtsstaat centred around concepts and legal scholarship that would avoid the breakdown by placing it into a feasible and balanced system of legal enforcement on an international level. Thus, in their new academic context, rather than dismissing the Rechtsstaatliche function of legal concepts and the role of legal scholars, refugee scholarship ventured to enhance it. This contribution argues that the development of Hersch Lauterpacht’s concept of human rights constitutes such an enhancement. (shrink)