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The Legal Monism of Alfred Verdross1

Published online by Cambridge University Press:  02 September 2013

Henry Janzen
Henry Janzen
Affiliation:
Hendrix College
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Extract

During the last few decades, legal theorists have given increased attention to the relationship between municipal and international law. Few have attacked the problem with greater acumen than Alfred Verdross, who belongs to that school of Austrians, sometimes referred to as legal purists, with which the names of Hans Kelsen and Fritz Sander are so prominently associated. Verdross' contribution to legal theory has not found as wide an audience as it deserves. This inattention is probably due to the fact that the “theologians” of positivism dismiss Verdross' theory for his disbelief in the “holy trinity” of that school: the personified state, sovereignty, and the will of the state.

Verdross professes to adhere to the empirical method. It will be seen that for him a norm is law only if it manifests itself in political reality. But, being a legal purist, Verdross is not concerned with, nor does he attempt to deal with, this objective actuality, i.e., his is not a sociological study. Verdross has been criticised for not limiting himself to a portrayal of facts and for affirming “a priori international legal norms, viewed as an international constitution.”

Type
Research Article
Information
American Political Science Review , Volume 29 , Issue 3 , June 1935 , pp. 387 - 402
Copyright
Copyright © American Political Science Association 1935

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References

2 Unless otherwise indicated, the references to Verdross are to Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen, 1923)Google Scholar.

3 Mattern, J., “Alfred Verdross' Concept of the Unity of the Legal Order on the Basis of the International Constitution,” in Rice, S. A., Methods in Social Science (Chicago, 1931), p. 134Google Scholar. Mattern says: “It is this conflict between the conceptual aspect of thought content of the premises and the alleged adherence to the empirical method which makes itself felt throughout the work.”

4 Cf. Kelsen, H., Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen, 1920), pp. 43, 83–86Google Scholar.

5 To the legal purist, this criterion is the logical ideal.

6 Some of the presuppositions of the positivists have proved to be such obstacles. For example, Professor Mattern, in summing up the differences between Verdross' theory and that of the positivists, says: “It all depends upon the will of the state, the same will which Verdross denies and which the state, and with it the positivist, affirms.” Verdross' theory is found wanting because he does not postulate the will of the state as the fons et origo of all law. Professor Mattern finds no fault with Verdross' method of logical deduction, but criticises Verdross for his interpretation of facts, because it does not affirm the premises of the positivists. Op. cit., pp. 135–136.

7 Verdross, p. 46.

8 Völkerrecht und Landesrecht (Leipzig, 1899)Google Scholar.

9 Cf. Kelsen, , Das Problem …, pp. 121, 123Google Scholar.

10 Allgemeine Staatslehre (3 Auflage, Berlin, 1914)Google Scholar; Gesetz und Verordnung (Freiburg i. B., 1887)Google Scholar; Die Lehre von den Staatenverbindungen (Berlin, 1882)Google Scholar; Die rechtliche Natur der Staatenverträge (Wien, 1880)Google Scholar.

11 Allgemeine Staatslehre, pp. 170 ff.; System der subjectiven öffentlichen Rechte, pp. 2, 17, 125.

12 This is the institutional fallacy which “attributes the unity which belongs to the act of thinking to the mass of objects to which the concept refers.” Hobhouse, L. T., The Metaphysical Theory of the State; A Criticism (Allen and Unwin Ltd., London), p. 66Google Scholar. The idea of a will of a state-person is the result of a faulty analysis of certain phenomena. It is easy to see why the institutional fallacy appears again and again in legal theory. Such “objective psychical structures” as laws and the rules of morality suggest a super-individual psychical bearer. In a sense, they are products of collective activity; many individual minds contribute to the development of these entities. However, in their entirety they are merely conceptual contents and are independent of collective or individual persons. Only if they are conceived as a content of an individual mind may one say that they have a psychical bearer. Cf. Spykman, N. J., The Social Theory of Georg Simmel, pp. 51–54Google Scholar.

13 Kelsen, H., Allgemeine Staatslehre (Berlin, 1925), pp. 7–8Google Scholar.

14 Cf. Kelsen, , Das Problem …, pp. 17, 18, 20Google Scholar.

15 Ibid., pp. 8–14, 16–17; Allgemeine Staatslehre, pp. 8–15.

16 Jellinek, , Allgemeine Staatslehre, p. 467Google Scholar.

17 Kelsen, , Das Problem …, pp. 16–17, 24–30, 43Google Scholar.

18 Ibid., pp. 17, 18, 20.

19 Cf. Die rechtliche Natur der Staatenverträge, pp. 38, 41, referred to by Nelson, L., Die Rechtswissenschaft ohne Recht (1917)Google Scholar; Allgemeine Staatslehre, pp. 465, 467. Cf. also Kelsen, , Das Problem …, p. 184Google Scholar.

20 Allgemeine Staatslehre, pp. 377, 741, 767; Die Lehre von den Staatenverbindungen, p. 54; Die rechtliche Natur der Staatenverträge, pp. 39–40.

21 Governments do not in fact assert such freedom of action as Jellinek ascribes to them. Professor Garner says that in our time no state has declared that it would not be bound by international law, and that states act upon the principle that customary international law is binding regardless of consent. “Limitations on National Sovereignty in International Law,” in this Review, Vol. 19, p. 13Google Scholar. ProfessorEagleton, says: “As a matter of actual practice, chanceries no longer deny international law upon this ground,” i.e., on the basis of sovereignty. The Responsibility of States in International Law (New York, 1928), p. 14Google Scholar. He also says that “when a state offers opposition to a claim under international law today, it is never a denial of the force of the authority of that law as a whole, but a denial that the particular rule invoked is really international law.” Ibid., footnote 27. In case of an alleged breach of international law, the offending state hardly ever claims that it is judge of its own actions, but defends itself by attempting to prove that no rule of international law has been violated. Brierly, J. L., The Law of Nations (Oxford, 1930), pp. 48–49Google Scholar.

22 Cf. Brierly, ibid., p. 38. Mr. Brierly states that in order to apply the consensual theory consistently one must rely on tacit consent; one must either assume consent where there has not been any in fact, or one must infer consent from the conduct of a “state.” If tacit consent has the latter meaning, it is not true to fact; for in international practice “states” as a rule are treated as being bound by international law, even though it is obvious that a “state,” for example a new “state,” has never consented to the law in any way, and yet, as a rule, will not deny its obligation to obey international law. If tacit consent has the former meaning, one may ask why one should resort to a fiction in order to support another fiction.

23 Die rechtliche Natur der Staatenverträge, pp. 38, 41, referred to by Nelson, op. cit., p. 61, and Verdross, p. 7.

24 Verdross, pp. 1–2, 33. I feel justified in including organs in this description of Verdross' concept because he maintains that the power which “materializes” law is part of the norm.

25 Professor Mattern says that this definition is an “affirmation requiring proof” (op. cit., p. 120). It may be pointed out that the required proof can be found in Kelsen, H., Der soziologische und der Juristische Staatsbegriff (1922)Google Scholar and in Das Problem … pp. 7, 9, 20, 83-86. And Verdross, on the first page of his book, refers to the discussions of Kelsen, Krabbe, and Sander. It may be said also that this is a definition, not an affirmation requiring proof. Of course, a premise must be identifiable with something real. But when one deals with a concept one must deal with it qua concept. As soon as one applies empirical methods to the analysis of the content of a concept or symbol, the concept progressively loses validity.

26 Verdross, pp. VI, 1–3, 38.

27 Ibid., p. 11.

28 Ibid., pp. 31–34. In view of the evidence of the reality of sovereignty proffered by the positivists, Professor Mattern objects to Verdross' denial of sovereignty to the state. By definition, sovereignty is a formal concept, an a priori assumption which rests on an illusion of final authority. In reality, not even law is “sovereign” (supreme), because it is the product of an interplay of social forces.

29 Ibid., pp. 11–13, 76–77, 82–86.

30 Das Problem …, pp. 95, 96, 103; Allgemeine Staatslehre, pp. 128–129.

31 Verdross, pp. 11, 33–34.

32 Ibid., pp. 33–34.

33 Juristische Blätter (1918); “Das Recht im Lichte seiner Anwendung,” Deutsche Richterzeitung, 1917Google Scholar.

34 Zeitschrift für öffentliches Recht (1919), pp. 480 ffGoogle Scholar.

35 Verdross, pp. 47–52.

36 Ibid., pp. 52–54.

37 Ibid., pp. 79–80.

38 Ibid., p. 81.

39 Cf. Krabbe, Duguit, Politis.

40 Das Problem der Souveränität, pp. 257–259.

41 Verdross, pp. 57–59.

42 Ibid., pp. 117–118.

43 Ibid., pp. 104–105.

44 Ibid., pp. 106–107.

45 Ibid., pp. 107–111.

46 Ibid., pp. 119–120, 126.

47 Ibid., pp. 120–126. These principles and doctrines are law only in so far as they are materialized by acts of organs.

48 Ibid., pp. 126–127, 133.

49 Ibid., p. 127.

50 Ibid., p. 128.

51 Ibid., pp. 129–135.

52 Ibid., pp. 159–169.

53 Cf. Nelson, L., Die Rechtswissenschaft ohne Recht (Leipzig, 1917)Google Scholar.

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