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Kelsen, Legal Normativity, and Formal Justice in International Relations

Published online by Cambridge University Press:  08 November 2013

JOSHUA PAINE
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Extract

Hans Kelsen's vast body of work is perhaps one of the best examples of the unremarkable but important point that one's legal theory and methodological choices are intricately tied up with how one understands international law. Kelsen stands for a huge number of different positions, but chief amongst them must be his insistence on developing a ‘pure’ theory of law that accounted for the unique normativity of law, separate from empirical facts and causality on the one hand, and substantive theories of justice on the other. For Kelsen, the unique normativity of law is found within the legal system itself, in the idea of normative imputation – the ‘linking of a conditioning material fact with a conditioned consequence’. According to Kelsen, this specifically legal sense of ‘ought’ is an a priori category that allows us to correctly cognize the legal meaning of empirical data.

Type
REVIEW ESSAY
Information
Leiden Journal of International Law , Volume 26 , Issue 4 , December 2013 , pp. 1037 - 1053
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

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References

1 H. Kelsen, Introduction to the Problems of Legal Theory, tr. B. L. Palson and S. L. Paulson (1992), at 13–14, 35–6.

2 Ibid., at 23.

3 Ibid., at 2–5.

4 But see Rigaux, F., ‘Hans Kelsen on International Law’, (1998) 9EJIL 325, at 337–9Google Scholar, arguing that Kelsen's views on international law as a coercive order are inconsistent with the Pure Theory's nomological approach.

5 Kelsen, H., Principles of International Law (1952), at 401Google Scholar. This view followed from Kelsen's position that international law is a coercive order, where the use of force by states can be interpreted as either an authorized sanction undertaken on behalf of the international legal community or a delict. Ibid., at 18, and see generally 18–64. Kelsen viewed the most important difference between international and national law as being that the latter has decentralized methods of law creation, application, and enforcement. Ibid., at 403.

6 Ibid., at 402.

7 Ibid., at 439.

8 Ibid., at 440–1.

9 Ibid., at 440.

10 Kelsen held that law was a specific social tool that could be used for any ends whatsoever. See Kelsen, H., Law and Peace in International Relations: The Oliver Wendell Holmes Lectures 1940–41 (1942), at 9Google Scholar.

11 von Bernstorff, J., The Public International Law Theory of Hans Kelsen: Believing in Universal Law (2010), at 268–9CrossRefGoogle Scholar.

12 Kammerhofer, J., ‘Orthodox Generalists and Political Activists in International Legal Scholarship’, in Happold, M. (ed.), International Law in a Multipolar World (2012), 138Google Scholar at 155–7.

13 Kammerhofer, J., Uncertainty in International Law: A Kelsenian Perspective (2011), at 153Google Scholar.

14 Ibid., at 243.

15 Regarding structural bias in international law see Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (2005), at 607–10Google Scholar.

16 See infra text at notes 58–68. This desire for law to be independent of particular preferences is well captured in Koskenniemi, M., The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001), at 502CrossRefGoogle Scholar.

17 Koskenniemi, supra note 15, at 616. Referring to Fuller in a discussion of Kelsenian theory may appear odd given their very different perspectives. Fuller was critical of Kelsen and other analytical positivists for having missed the social dimension and purposive nature of law. See Fuller, L. L., The Morality of Law (1969), at 191–5, 110Google Scholar. Unlike Fuller, Kelsen aimed to cognize law as it is, not as it ought to be, and did not think legal science could justify anything. See Kelsen, supra note 1, at 7, 106. While they both might be broadly considered legal formalists, Fuller, in contrast to Kelsen, viewed the quality of legality as a matter of degree, not something that followed from enactment pursuant to a higher norm. Fuller, ibid., at 198–200. Recently, Lars Vinx has argued that Kelsen's legal theory has to be understood in the context of his broader social theory, and that Kelsen's view of legitimate law goes beyond Fuller's criteria of legality to also require democracy and constitutionalism. See Vinx, L., Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (2007), esp. at 98–9, 221CrossRefGoogle Scholar.

18 See Koskenniemi, supra note 16, at 501. For an alternative view, including that any attempt to resurrect an emphasis on formal validity via Kelsen is problematic since Kelsen's theory cannot explain modern developments in international law-making, see Toope, S. J., ‘Formality and Informality’, in Bodansky, D., Brunnée, J., and Hey, E. (eds.), Oxford Handbook of International Environmental Law (2007), 107Google Scholar esp. at 112.

19 See section 2, infra.

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21 Kammerhofer, supra note 13, at xii.

22 Regarding the last topic Kammerhofer is following Kelsen's distinction between a material and formal, i.e. written, constitution, supra note 1, at 63, fn. 45.

23 Kammerhofer, supra note 13, at xii–xiii.

24 B. Simma, Foreword, in ibid., at x.

25 Kammerhofer, supra note 13, at xiii.

26 Ibid., at 242.

27 Von Bernstorff, supra note 11, at 1.

28 See supra note 16.

29 Cf. Kemmerer, A., ‘The Turning Aside: On International Law and Its History’, in Miller, R. and Bratspies, R. (eds.), Progress in International Law (2008), 71Google Scholar at 75–8.

30 Koskenniemi, supra note 16, at 2.

31 Von Bernstorff, supra note 11, at 235 (emphasis added).

32 Ibid., at 3.

33 Ibid.

34 Koskenniemi, supra note 16, at 5, 7.

35 Kammerhofer, supra note 13, at 2.

36 Ibid., publisher's blurb, first printed page.

37 Kammerhofer, J., ‘Hans Kelsen's Place in International Legal Theory’, in Orakhelashvili, A. (ed.), Research Handbook on the Theory and History of International Law (2011), 143Google Scholar at 143–4.

38 Kammerhofer, supra note 13, at 172.

39 Text at notes 15–18, supra.

40 Kammerhofer, supra note 13, at 2.

41 J. Kammerhofer and J. d’Aspremont, ‘Introduction: Mapping 21st Century International Legal Positivism’, in J. Kammerhofer and J. d’Aspremont (eds.) International Legal Positivism in a Post-Modern World (forthcoming), at 8, available at http://ssrn.com/abstract=1707986.

42 I am drawing on Koskenniemi, supra note 16, at 1–2, for the distinction between structural and historical analysis.

43 Kelsen, supra note 1, at 53.

44 Ibid.

45 Ibid., at 7. For Kammerhofer, see e.g. Kammerhofer, supra note 13, at 3–4 (explaining the aim of the book is to show what uncertainty looks like in positive international law), and 239–40 (arguing that the constitution of international law is not made up of positive norms).

46 Kammerhofer, supra note 13, at 2.

47 Ibid., at 6.

48 Cf. Vinx, supra note 17, esp. at 31 (Kelsen assumes there are autonomous values of legality and there is no defence of the Pure Theory independent of commitment to the ideal of the rule of law). J. Shklar, Legalism (1964), at 41 (Pure Theory as vision of the law ‘of a strong but neutral state that stands’ apart from ideology and morality).

49 Jakab, A., ‘Kelsen's Doctrine of International Law: Between Epistemology and Politics’, (2006) 9 Austrian Review of International and European Law 49, at 61Google Scholar.

50 Von Bernstorff, supra note 11, at 248.

51 Ibid., at 231, 249.

52 Kletzer, C., ‘Pure Cosmpolitanism: The Theory and Politics of Kelsen's Theory of International Law’ (2012) 3 Jurisprudence 505CrossRefGoogle Scholar, at 506–7 (Review of von Bernstorff, supra note 11).

53 Kelsen, supra note 1, at 124 (emphasis added).

54 Von Bernstorff, supra note 11, at 269.

55 Kelsen, supra note 5, at 406 (no subject matter which cannot be regulated by international law). Kelsen, supra note 10, at 163–5 (no gaps in international law and all disputes justiciable).

56 Cf. Shklar, supra note 48, at 123–43.

57 Von Bernstorff, supra note 11, at 249.

58 Ibid., at 258.

59 Kelsen, H., ‘The Principle of Sovereign Equality of States as a Basis for International Organization’, (1944) 53 Yale Law Journal 207, at 209CrossRefGoogle Scholar.

60 Von Bernstorff, supra note 11, at 258.

61 See text at notes 48–57, supra.

62 Koskenniemi, M., ‘“The Lady Doth Protest Too Much”: Kosovo, and the Turn to Ethics in International Law’, (2002) 65 MLR 159CrossRefGoogle Scholar, at 174. As Fuller put it, whereas legal form seems to promote reciprocity and a situation where lawmakers follow their own rules, reliance on a managerial logic tends to constitute ‘a one-way projection of authority’: Fuller, supra note 17, at 209–10.

63 Koskenniemi, supra note 16, at 506.

64 Ӧzsu, U., ‘Review Essay: The Question of Form: Methodological Notes on Dialectics and International Law’, (2010) 23 LJIL 687, at 707CrossRefGoogle Scholar. I accept, as Ozsu highlights, that there is a limit to the usefulness of advocating the value of legal form in abstracto instead of through concrete examples: at 690.

65 See Koskenniemi, M., ‘Legal Universalism: Between Morality and Power in a World of States’, in Cheng, S. (ed.), Law, Justice and Power: Between Reason and Will (2004), 46Google Scholar at 61–2.

66 Kingsbury, B., ‘Sovereignty and Inequality’, (1998) 9 EJIL 599, at 600, 618CrossRefGoogle Scholar.

67 Kammerhofer, supra note 13, at 53.

68 Ibid., at 172.

69 Kammerhofer, supra note 13, at 226.

70 S. Paulson, ‘Introduction’, in Kelsen, supra note 1, at xxiii–xli.

71 Ibid., at xli–xlii; Vinx, supra note 17, at 36.

72 Kammerhofer, supra note 13, at 259–61.

73 J. Raz, ‘The Purity of the Pure Theory’, in R. Tur and W. Twining (eds.) Essays on Kelsen (1986), 79 at 80; See similarly Bulygin, E., ‘An Antinomy in Kelsen's Legal Theory’, (1990) 3 Ratio Juris 29, at 36CrossRefGoogle Scholar (legal norms are prescriptive and lack truth values, but legal propositions are ‘descriptions of norms created by legal authorities’ and can be shown to be true or false).

74 For Goodrich, P. the Pure Theory is ‘almost wholly inarticulate on matters of legal practice’: ‘The Rise of Legal Formalism; or the Defences of Legal Faith’, (1983) 3 Legal Studies 248, at 258CrossRefGoogle Scholar.

75 See, e.g., J. H. Herz, ‘The Pure Theory of Law Revisited: Hans Kelsen's Doctrine of International Law in the Nuclear Age’, in S. Engel and R. A. Metall (eds.) Law, State, and International Legal Order: Essays in Honour of Hans Kelsen (1964), 107 at 108–9 (Kelsen's approach to international law ‘in danger of turning fictitious’, presupposing ‘conditions which are, in part at least, idealized’).

76 Carty, A., ‘The Continuing Influence of Kelsen on the General Perception of the Discipline of International Law’, (1998) 9 EJIL 344, at 351–2CrossRefGoogle Scholar.

77 H. Bull, ‘Hans Kelsen and International Law’, in R. Tur and W. Twining (eds.) Essays on Kelsen (1986) 321, at 336.

78 Morgenthau, H. J., ‘Positivism, Functionalism, and International Law’, (1940) 34 AJIL 260, at 276CrossRefGoogle Scholar. Morgenthau dealt with this issue at length in La réalité des normes, en particulier des normes du droit international: Fondements d’une théorie des normes (1934). For detailed analysis of this aspect of Morgenthau's work and its relation to Kelsen see O. Jütersonke, Morgenthau, Law and Realism (2010), at 89–93; Koskenniemi, supra note 16, at 455–6; Carty, supra note 76, at 349–50.

79 C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, tr. G. Schwab (1985), at 12–13.

80 Kelsen accepted that the basic norm, and entire legal system, could be changed by a revolution. See Kelsen, supra note 1, at 59.

81 Reisman, W. M., ‘On the Causes of Uncertainty and Volatility in International Law’, in Broude, T. and Shany, Y. (eds.), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (2008), 33Google Scholar at 46.

82 Kelsen thought that a distinct feature of law was that it was a coercive order. See Kelsen, supra note 1, at 26.

83 Von Bernstorff, supra note 11, at 270.

84 Kammerhofer, supra note 13, at 131. See similarly 110, 128–9.

85 Von Bernstorff, supra note 11, at 250.

86 Beckett, J., The End of Customary International Law? A Purposive Analysis of Structural Indeterminacy (2008), at 48Google Scholar (on law as an ideal legitimating and providing ‘a point of critique for institutional practice’).

87 From another perspective the Iraq example can be read as law facilitating power, since part of the justification for invasion – including when the strategic case for war fell apart – was that it was legally authorized (even if this was heavily contested). I owe this point to Gerry Simpson.

88 Koskenniemi, M., ‘The Fate of Public International Law: Between Technique and Politics’, (2007) 70 MLR 1CrossRefGoogle Scholar, at 30.

89 Herz, supra note 75, at 109 and 118 fn. 1, attributes the quotation to Gerhart Niemeyer without providing a source.

90 It constitutes a ‘descending’ position. Cf. Koskenniemi, supra note 15, at 59–60.

91 Kennedy, D., ‘Speaking Law to Power: International Law and Foreign Policy Closing Remarks’, (2005) 23 Wisconsin International Law Journal 173, at 174Google Scholar.

92 Ibid., at 175–6, 178; Koskenniemi, supra note 15, at 606.

93 Von Bernstorff, supra note 11, at 93.

94 See especially Hart, H. L. A., ‘Kelsen's Doctrine of the Unity of Law’, in Hart, H. L. A. (ed.) Essays in Jurisprudence and Philosophy (1983), 309CrossRefGoogle Scholar; See also D. P. O’Connell, International Law, Vol. 1 (1970), at 41 (not realistic to say ‘norm makers’ of international law have willed positive rules delimiting national jurisdictions as Kelsen's account suggests).

95 Kelsen held that any jurist who accepted both national and international law as valid norms ‘must try to comprehend them as parts of one harmonious system’. Kelsen, supra note 5, at 424. Kammerhofer has developed the fitting criticism that there is nothing necessary about construing law as a unitary whole: Kammerhofer, J., ‘Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law’, (2009) 22 LJIL 225CrossRefGoogle Scholar, at 234, 243.

96 Von Bernstorff, supra note 11, at 242–3.

97 Kelsen, supra note 5, at 424.

98 Ibid., at 431–4. In contrast, ‘[n]owadays, neither [straight] monism nor dualism can fully account for the increasing intermingling between national and international legal orders . . . [and] pluralism . . . is usually favoured as a default account’. S. Besson, ‘Whose Constitution(s)? International Law, Constitutionalism, and Democracy’, in J. L. Dunoff and J. P. Trachtman (eds.) Ruling the World? Constitutionalism, International Law, and Global Governance (2009), 381 at 402.

99 Kelsen, supra note 5, at 432.

100 Von Bernstorff, supra note 11, at 246.

101 Ibid., at 246–7. On ascending and descending positions and the point that neither can be fully preferred see Koskenniemi, supra note 15, at 59–60.

102 Christoph Kletzer has argued that the choice hypothesis should not be viewed as a political question, since this suggests it is ‘a question of mere taste’. He highlights that Kelsen saw the question as one of ‘philosophic maturity’ and attempted to develop historically informed arguments as to why the choice of the primacy of international law was superior to the position of state solipsism: supra note 52, at 507–8. For Kletzer, one needs to consider Kelsen's philosophy of history to understand why he viewed state solipsism as an inferior, although logically open, position. Ibid.

103 Von Bernstorff, supra note 11, at 250, 269–71.

104 Kammerhofer, supra note 13, at 128 (emphasis added).

105 Ibid., at 129.

106 See text at notes 76–81, supra.

107 Kelsen and Kammerhofer stand out for their strong views that only positive law is the proper object of legal analysis. See text at notes 43–5, supra. However, they should not be read on this basis as denying an influence of external rationalities on the medium of law. For example, discussing interpretation, Kelsen and Kammerhofer both hold that because positive legal norms will often permit of several interpretations, such choices will be resolved by judges relying on external factors, such as moral norms, and thus bringing these into the law-making process. Kelsen, supra note 1, at 83; and Kammerhofer, supra note 13, at 116–17. See also Kelsen's comment that law is an organization of power but not identical with power: Introduction, at 61, and Kammerhofer at 258, emphasizing the contact between the realms of is and ought in acts of law-making, since an act of will in the realm of fact leads to a creation of a new norm in the realm of ideal. Both would leave study of the influence of external rationalities upon law to other disciplines. Kelsen, Introduction, at 13–14, Kammerhofer, supra note 12, at 156–7.

108 My terminology in this section is influenced by J. d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (2011), at 140–2 (arguing that it is possible to distinguish law from non-law and therefore ‘contain indeterminacy’).

109 Koskenniemi, supra note 15, at 529, fn. 33, argues that ‘If, as Kelsen admits, interpretation is a political act, then there is no distinct legal process at all.’

110 Kelsen, supra note 1, at 80.

111 Ibid.

112 Ibid.

113 Ibid., at 81.

114 Ibid., at 83.

115 Ibid.

116 Ibid.

117 The expression is from Kleinlein, T., ‘Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law’, (2012) 81 NJIL 79Google Scholar, at 106; von Bernstorff, supra note 11, considers the criticism at 214–20; on this criticism of Kelsen see especially Dyzenhaus, D., Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (1997) at 116–17, 121–2Google Scholar.

118 Von Bernstorff, supra note 11, at 218.

119 Ibid., at 218–19.

120 Dyzenhaus, supra note 117, at 117.

121 Von Bernstorff, supra note 11, at 244–5.

122 Ibid., at 245 (emphasis added).

123 Kammerhofer, supra note 13, at 116–17.

124 For example, Kammerhofer attacks the doctrine of implied powers of international organizations, arguing that the ICJ's reference in the Reparation Advisory Opinion to the ‘necessary implication’ of powers to the UN - (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174, at 182) ‘is based on a logical error, for there is no casual necessity to imply anything from anything’. Rather the Court is exercising an act of will, to fill a gap it perceives, reflecting a presumption that the UN should have more rather than fewer powers, which some may disagree with. Kammerhofer, supra note 13, at 102. The doctrine could only legitimately be invoked to change treaties if it were shown to be positive international law. Ibid., at 103. Here Kammerhofer is echoing Kelsen's view of gaps in the law. Kelsen, supra note 1, at 84–7.

125 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16 at 22, paras. 21–22.

126 Kammerhofer, supra note 13, at 131.

127 Koskenniemi, supra note 15, at 591.

128 Floum, J., (Book Review ‘What Role for Law in the Process of International Relations’, (1983) 24 Harvard ILJ 256, at 279–80Google Scholar. See on reversibility ibid., at 503–12.

129 See, e.g., von Bogdandy, A. and Venzke, I., ‘On the Democratic Legitimation of International Judicial Lawmaking’, in von Bogdandy, A. and Venzke, I. (eds.), International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance (2012), 473CrossRefGoogle Scholar at 478.

130 Practically everyone would agree that there is a very significant element of choice in legal decision-making. And the ‘crits’ readily acknowledge that legal argument feels different from overtly political argument: see, e.g., Boyle, J., ‘Ideals and Things: International Legal Scholarship and the Prison-House of Language’, (1985) 26 Harvard ILJ 327Google Scholar, at 351. Cf. Koskenniemi, supra note 15, at 67–9 (arguing that the formal structure of international argument is determinate but the discourse is indeterminate regarding the solution of normative problems).

131 See I. Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012), at 262–5.

132 For the latter view see Boyle, supra note 130, at 350–1.