Two visions of European law: Hans Kelsen and Herman Heller

Authors

  • Manuel Fondevila Marón

Keywords:

Sovereignty, legal monism, human rights, democracy

Abstract

In the 80th anniversary of the death of Herman Heller and 40th anniversary of the death of Hans Kelsen, this essay study the opposite theories of both authors and how these lead to different methodological positions for the study and practice of European community Law, in particular respect to Human Rights. The main differences between the two authors are, firstly, the disjunction dualism-monism to explain the nature of international law and state law, and secondly, his position on sovereignty concept. Our thesis is that Kelsen’s legal theory, which strongly affects the current European Community Law development, implies negative consequences for the effectiveness of Fundamental Rights and Democracy. Therefore, we propose a rereading of Hermann Heller in order to overcome the current crisis being experienced by the European Union.