Georg Jellinek (born June 16, 1851 in Leipzig , † January 12, 1911 in Heidelberg ) was an Austrian constitutional lawyer . Together with Hans Kelsen and the Hungarian Félix Somló, he belonged to the group of Austrian legal positivists and was at the time “ the representative of constitutional law from Austria ”.
Jellinek studied law , art history and philosophy at the Alma Mater Rudolphina in Vienna from 1867 . In addition, he studied philosophy, history and law at the Ruperto Carola in Heidelberg and at the Alma Mater Lipsiensis until 1872 . 1872 Jellinek was in Leipzig with a dissertation on the worldviews Leibnitz and Schopenhauer to Dr. phil. PhD . In 1874 he received his doctorate as Dr. jur.
In 1879 Jellinek completed his habilitation at the University of Vienna . He then became a private lecturer in legal philosophy in Vienna. In 1881 he was appointed a member of the State Examination Commission. In 1882, a year later, he published his fundamental work The Doctrine of State Relations . In 1883 Jellinek was appointed associate professor for constitutional law at the University of Vienna. In 1889 he accepted an appointment as a full professor at the University of Basel .
In 1891 Jellinek accepted a professorship for general constitutional law and international law at the Ruprecht-Karls-Universität Heidelberg . In 1909 he became an extraordinary member of the Heidelberg Academy of Sciences . His main work, the Allgemeine Staatslehre , was published in 1900.
Georg Jellinek came as the son of Adolf Jellinek , a then well-known Jewish scholar and rabbi of the Vienna Jewish Community, and his wife Rosalie, b. Bettelheim (* 1832 in Budapest ; † 1892 in Baden near Vienna ), to the world. Georg Jellinek's well-known brothers are the businessman and diplomat Emil Jellinek-Mercédès and the medievalist Max Hermann Jellinek .
Georg Jellinek was married to Camilla Jellinek , b. Wertheim (1860-1940). Camilla Jellinek was won over by Marianne Weber in 1900 for the ideas of the women's movement and made significant contributions to criminal law , in particular through her collaboration with the legal protection agencies for women and the development of draft reforms. In 1930 she was awarded an honorary doctorate from the law faculty of Heidelberg University , the Doctor iuris utriusque , for her commitment and tireless commitment to women's rights.
The Jellinek couple had six children who were born between 1884 and 1896. They were listed as Israelite by the authorities , even though they were not Jewish in the sense of the Halacha . In 1896 the children were quietly baptized. Georg Jellinek himself had left the Jewish community in Baden before his father's death in 1892; from 1894 he paid evangelical church taxes without ever entering the church himself. Georg and Camilla Jellinek's final resting place is in the Heidelberg Bergfriedhof in the so-called "Professors Row", Department D, 1st row 309.
Four of Georg and Camilla's children reached adulthood. Walter Jellinek also became a lawyer. The daughter Dora Busch (1888–1992) was deported to Theresienstadt on the basis of the Nuremberg Laws , survived the ghetto and returned to school in 1946. The youngest son Otto died in 1943 as a result of the abuse by the Gestapo in the concentration camp .
His General State Doctrine (1900, see General State Doctrine , Constitutional Law ) is considered a milestone in German state doctrine and Jellinek's most important work. His three-element doctrine also stems from it , according to which the three characteristics " national territory ", " state people " and " state authority " are required to recognize a state as a subject of international law (→ international law ). Furthermore, he introduces the sociologically inspired concept of the normative power of the factual (→ legal sociology , legal philosophy ).
Jellinek differed from his German constitutional law colleagues because, when considering the state, he integrated the sociological and legal analysis, but not identified them (“two-sided theory of the state”). He was concerned with the social requirements of law and the state. According to Jellinek, whether a state's will can be enforced is not a question of jurisprudence, but an empirical one. This also applies to the question of why obedience to legal norms , law and administration is a matter of course here, but is lacking there. Only sociology can provide answers to this question.
Jellinek's work The Declaration of Human and Civil Rights from 1895 is considered an important text in the history of human rights . This “groundbreaking investigation” “initiated” “the relevant research” on the history of the human rights declaration of 1789, according to Roman Schnur .
Georg Jellinek belonged to Max Weber's circle , who exerted a great influence on scholarly culture in Heidelberg at the turn of the century. Weber's thinking also left its mark on Jellinek's work.
In 1907 Jellinek was elected the university's first rector of Jewish origin .
Validity and effectiveness of law
Georg Jellinek also dealt with the problem of legal validity . “Validity” in the legal sense only means that certain rules ( legal system ) are the standard for human action. "Validity" and "effectiveness" must interact so that legal norms can be effective. Max Weber characterizes the “effectiveness” of a legal system as the “chances of enforceability”.
There are three aspects to the validity of a legal system:
- sociological and
- ethical aspect.
All these aspects play a role in the problem of validity and effectiveness and make general, generally valid statements for the individual case very difficult.
So what happens when validity and effectiveness do not coincide? This is where Georg Jellinek comes in with his question about the “normative power of the factual” . Two considerations on this:
- Is there an existing rule that is not followed by anyone?
- Can a rule for everyone be created by a certain behavior of a majority?
In the first case, it is often believed that a norm that is not followed for a long time becomes ineffective. However, there is no agreement about the duration. In the second case the problem is reversed. Through the "factual", the "norm" is adapted to reality on the basis of stability considerations. A good example is the statute of limitations for a criminal offense, because although the legal worthlessness of the act is basically always the same, the worthlessness of the act is canceled due to the long time - this out of stability considerations ( legal security ). Another good example, which appears today in the context of some lay legal arguments, for example by representatives of the Reich Citizens' Movement , is the practical implementation of a state power that was established within the framework of a revolution and that does not derive its own state power from the positive law of the preceding one, but precisely through the factual, through the reality of their power unfolded and established.
Legal positivist theses
Georg Jellinek was a legal positivist . He took the view that the law was "nothing other than the ethical minimum". He thought:
“The right, as the sustaining moment, will thus form the minimum of the norms of a certain state of society, i. H. encompass those norms which ensure the unchanged existence of such. "
- Leibnitz and Schopenhauer's world views. Their reasons and their justification. A study of optimism and pessimism. Hölder, Vienna 1872 (phil. Dissertation, University of Leipzig; digitized ).
- The social-ethical meaning of right, wrong and punishment. Hölder, Vienna 1878 ( digitized version ).
- The legal nature of international treaties. A contribution to the legal construction of international law. Hölder, Vienna 1880 ( digitized version ).
- The doctrine of the relations of states. Haering, Berlin 1882 ( digitized version ).
- Austria-Hungary and Romania in the Danube Question: An International Law Investigation. Hölder, Vienna 1884. ( digitized version ).
- A constitutional court for Austria . Hölder, Vienna 1885.
- Law and regulation. Constitutional investigations based on legal history and comparative law. Mohr, Freiburg im Breisgau 1887 ( digitized version ).
- System of subjective public rights. Mohr, Freiburg im Breisgau 1892 ( digitized version ).
- General state theory (= law of the modern state. Vol. 1). Berlin 1900; 2nd edition 1905 ( digitized version ); 3rd edition 1914 ( digitized version ).
- Andreas Anter (Ed.): The normative power of the factual. Georg Jellinek's understanding of the state . Nomos-Verlag, Baden-Baden 2004, ISBN 3-8329-0733-5 .
- Dagmar Drüll: Heidelberger Gelehrtenlexikon 1803-1932 . Edited by Rectorate of the Ruprecht-Karls-Universität-Heidelberg. Springer, Berlin / Heidelberg 2012, ISBN 978-3-642-70761-2 .
- Alexander Hollerbach : In: New German Biography (NDB). Volume 10, Duncker & Humblot, Berlin 1974, ISBN 3-428-00191-5 , p. 391 f. ( ).
- Camilla Jellinek: Georg Jellinek. A picture of life . In: Georg Jellinek, Selected Writings and Reden , Vol. 1, Neudruck Aalen 1970, pp. 5–140.
- Christian Keller: Victor Ehrenberg and Georg Jellinek. Correspondence 1872–1911 , Frankfurt am Main 2005, ISBN 978-3-465-03406-3 .
- Klaus Kempter : The Jellineks 1820–1955. A family biographical study on the German-Jewish educated middle class. Droste Verlag, Düsseldorf 1998, ISBN 3-7700-1606-8 .
- Jens Kersten : Georg Jellinek and the classical theory of the state . Mohr Siebeck, Tübingen 2000, ISBN 3-16-147348-5 .
- Jens Kersten: Georg Jellinek (1851–1911). In: Peter Häberle , Michael Kilian , Heinrich Wolff : Constitutional law teacher of the 20th century. Germany, Austria, Switzerland . De Gruyter, Berlin / Boston (2nd edition) 2018, pp. 77–86, ISBN 978-3-11-054145-8 .
- Realino Marra: La religione dei diritti. Durkheim - Jellinek - Weber. Giappichelli, Turin 2006, ISBN 88-348-6617-7 .
- Stanley L. Paulson (Ed.): Georg Jellinek. Contributions to life and work . Mohr Siebeck, Tübingen 2000, ISBN 3-16-147377-9 .
- Sascha Ziemann / Andreas Funke (eds.): Georg Jellinek: General state theory and politics. Lecture transcript by Max Ernst Mayer from the summer semester of 1896. Mohr, Tübingen 2016.
- Literature by and about Georg Jellinek in the catalog of the German National Library
- Works by and about Georg Jellinek in the German Digital Library
- Family papers Jellinek 1850–1960
- Matthias Hartwig: The state as an object of constitutional law Short text at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, online resource on the three-element theory
- Jens Kersten: Georg Jellinek . In: Encyclopedia for Legal Philosophy , on behalf of the German Section of the International Association for Legal and Social Philosophy (IVR), ed. by Michael Anderheiden (among others)
- Christoph Schönberger, A Liberal Between State Will and People's Will: Georg Jellinek and the Crisis of Constitutional Positivism at the Turn of the Century. In: Stanley L. Paulson, Martin Schulte (Ed.): Georg Jellinek: Contributions to life and work (= contributions to the legal history of the 20th century; Vol. 27), Mohr Siebeck, Tübingen 2000, ISBN 3-16-147377- 9 , p. 3 ff.
- Members of the HAdW since it was founded in 1909. Georg Jellinek. Heidelberg Academy of Sciences, accessed June 30, 2016 .
- Ute Gerhard : Women in the history of law. From the early modern times to the present. Munich 1997, p. 685.
- Klaus Kempter: The Jellineks 1820–1955. A family-biographical study on the German-Jewish educated middle class , Droste Verlag, Düsseldorf 1998, p. 287.
- Klaus Kempter, p. 288.
- Klaus Kempter, p. 283 f.
- Klaus Kempter, p. 284.
- In Jellinek's words: General Social Doctrine of the State and General Constitutional Law .
- See Jürgen Hartmann, Bernd Meyer: Introduction to the Political Theories of the Present. VS Verlag, Wiesbaden 2005, ISBN 3-531-14909-1 , p. 28 f.
- Roman Schnur (ed.), On the history of the declaration of human rights (= ways of research , vol. 11). Darmstadt 1974, pp. X, VII.
- Jürgen Hartmann, Bernd Meyer: Introduction to the political theories of the present. Wiesbaden 2005, p. 26.
- See Georg Jellinek: Allgemeine Staatslehre (1900). Reprint of the 5th reprint of the 3rd edition, edited by Walter Jellinek , Athenäum, Kronberg / Ts 1976, p. 338 ff.
|BRIEF DESCRIPTION||Austrian constitutional lawyer|
|DATE OF BIRTH||June 16, 1851|
|PLACE OF BIRTH||Leipzig|
|DATE OF DEATH||January 12, 1911|
|Place of death||Heidelberg|