Hans Kelsen in today's international legal scholarship

Abstract

Can we call Hans Kelsen’s Pure Theory of Law an example - or even the epitome - of post-modern international legal positivism? The Pure Theory of Law’s radical programme rivals that of many other critical scholarly projects; as a ‘down-to-earth’ critical enterprise, its deconstructive arguments hit orthodox doctrine harder than those of most post-modernists. Moreover, it also contains a constructive side. This chapter first and foremost aims to show that the Pure Theory can be an attractive approach for international legal scholars, but it does not assert its inevitability.The chapter’s main line of argument is developed through four topics, grouped in pairs. In the first set of topics, two key features of the Pure Theory of Law are introduced, developed and discussed. Section 2 outlines the Pure Theory’s radical programme for a science of law. Its dramatic departure from the orthodox opinions of the day - through the purification of legal scholarship - is still with us today. One of the key dualities of the Pure Theory’s approach is explored in Section 3. The two conceptual poles of ‘normativism’ and ‘positivism’ may look like thesis and antithesis, but they are united in synthesis in the legal theory of Kelsen and his followers; they do not constitute two extremes on an oscillating - and irreconcilable - pendulum.The second set of topics map the structural analysis provided by the Pure Theory of Law onto the sources of international law. Section 4 discusses the Kelsenian Grundnorm and contrasts it with Hart’s Rule of Recognition, before assessing this debate in connection with the origins and foundations of the formal sources of international law. Finally Section 5 focuses attention on one of the least ‘positivist’ sources: the ‘general principles of law recognized by civilized nations’ (Article 38(1)(c) ICJ Statute).