scholarly journals Validity and efficacy of international law according to the pure theory of law

2021 ◽  
Vol 12 (1) ◽  
pp. 184-204
Author(s):  
Arseny A. Kraevsky ◽  
Keyword(s):  
International Law ◽  
Natural Law ◽  
Point Of View ◽  
Legal Positivism ◽  
Special Role ◽  
Pure Theory ◽  
Legal Norms ◽  
Theory Of Law ◽  
State Of Affairs ◽  
Domestic Law

At the beginning of its development, the science of international law was inextricably linked to the doctrine of natural law. The latter was seen as the basis of international law. The very problem of the foundations of international law became acute in the 19th century, when the prevailing legal positivism abandoned the idea of natural law. All proposed solutions were based on the idea of self-obligation of sovereign states. Some of them questioned the very existence of international law, while others required the introduction of explicit fictions. In an attempt to solve this problem, the pure theory of law developed by Hans Kelsen and his students proposed a theory of a hierarchical structure of international and domestic law. The relationship between the levels of the normative system is based on the empowering norms, which transfer the property of legal validity to the lower norms created on their basis. The concept of validity corresponds to the concept of efficacy of the norm. The interrelation of validity and efficacy of legal norms in international law differs significantly from their interrelation in domestic law; the study of this relationship in Kelsen’s theory was the main purpose of this study. The structure of international law according to Kelsen is a pyramid, the highest level of which is customary international law, based on the basic norm of international law that establishes the binding force of international custom. In this case, from the point of view of the pure theory of law, a special role in international law is played by the principle of effectiveness — recognition of the existing factual state of affairs as legitimate. The greater importance of this principle in international law is explained by the absence of a centralized system of coercion in the latter because decentralized legal order does not allow the application of organized sanctions in instances of violation of international legal norms.

Kelsen's Theory of International Law

1936 ◽  
Vol 30 (4) ◽  
pp. 736-741 ◽  
Author(s):  
W. B. Stern
Keyword(s):  
International Law ◽  
Natural Law ◽  
Scientific Basis ◽  
Law Schools ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Theory Of Law

Among legal philosophers, the time-honored dispute between natural-law schools and legal positivists arouses ever new interest. On the side of the positivists, the “pure theory of law” gains more and more ground. This theory is mainly represented by Professor Hans Kelsen, formerly of Vienna, now of Geneva, and by Professor Alfred von Verdross, of Vienna. In America, systematic consideration was first devoted to it by Dr. Johannes Mattern, who analyzed Verdross's thinking; later, Dr. Josef L. Kunz, one of the foremost followers of Kelsen, took up the discussion, emphasizing the importance of the theory for a scientific basis of international law; and quite recently an article by Dr. Henry Janzen dealt with legal monism as the basis of the “pure theory of law.”

Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems

2010 ◽  
Vol 23 (4) ◽  
pp. 723-740 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Practical Reason ◽  
Natural Law ◽  
Legal Regulation ◽  
Pure Theory ◽  
Alternative Vision ◽  
Methodological Problems ◽  
The Law ◽  
Theory Of Law

AbstractWhile today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalization, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound methodologies, that scholarship claims competencies which it does not have, and that this confusion diminishes the benefits of the constitutionalist project for international law. The key problem is called a ‘methodological circle’: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen's arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) of the UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the rediscovery of a strictly legal – that is, structural – constitution as the highest echelon of legal regulation.

On The Pure Theory of Law

1966 ◽  
Vol 1 (1) ◽  
pp. 1-7 ◽  
Author(s):  
Hans Kelsen
Keyword(s):  
Social Order ◽  
Fundamental Difference ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Authority ◽  
Pure Theory ◽  
Legal Norms ◽  
Specific Meaning ◽  
The Law ◽  
Theory Of Law

The Pure Theory of Law is a theory of positive law, not of a definite legal order, but of the law in general. It is a general theory of law. As such it is the most consistent version of that school of jurisprudence which is called legal positivism because it considers as “law” only positive law and refuses to recognize as law any other normative social order even if, in the usage of language, it is called “law”, as e.g. so-called “natural law”.Law is—according to the Pure Theory of Law—by its very nature a definite type of norm. As a “norm” the law is the specific meaning of an act of will directed at a definite human behavior. This meaning is: that men ought to behave in a certain way. Hence an essential presupposition of the Pure Theory of Law as a positivistic theory is the recognition of the fundamental difference between the “ought” and the “is”, between norms and assertions. Assertions describe a certain object; they are true or false; norms are not describing, but prescribing; they are neither true nor false; they are valid or non-valid. Hence it is necessary to distinguish as clearly as possible between legal norms established by the legal authority, and assertions of the science of law about legal norms, the sentences by which this science describes its object.

scholarly journals In Praise of Jus Cogens' Conceptual Incoherence

2018 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Modern Human ◽  
Point Of View ◽  
Legal Positivism ◽  
Legal Norms ◽  
Moral Content ◽  
Jus Cogens ◽  
Noble Lie

The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

The International Legal Personality of the Individual

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Rights ◽  
Legal Personality ◽  
Legal Norms ◽  
State Of Affairs ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
Second World

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

Planning Positivism and Planning Natural Law

2012 ◽  
Vol 25 (1) ◽  
pp. 219-235 ◽  
Author(s):  
Martin Jay Stone
Keyword(s):  
Present State ◽  
Natural Law ◽  
Legal Positivism ◽  
Planning Theory ◽  
Positive Law ◽  
Theory Of Law

Scott Shapiro offers an elaboration and defense of “legal positivism,” in whichthe official acceptance of a planfigures as the central explanatory notion. Rich in both ambition and insight,Legalitycasts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities inLegalitymight easily be resolved in favor of PlanningNatural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.

Kelsen’s Enemies

2021 ◽  
pp. 8-35
Author(s):  
Robert Schuett
Keyword(s):  
Human Nature ◽  
Natural Law ◽  
Legal Order ◽  
The Other ◽  
Pure Theory ◽  
White Sand ◽  
International Legal Order ◽  
Theory Of Law ◽  
The Many ◽  
Political Thinker

Why is Kelsen such a consequential and controversial, perhaps even misunderstood, political thinker and actor? Who wants to make us believe that Kelsen was a naïve idealist dreaming up a Kantian peace and throwing white sand at battle cruisers? The chapter is a rebuttal of the many clichés propounded by Schmittians and the other pseudo-realists that are thrown at Kelsen and the project of a Pure theory of law, state, and international legal order. The fact that the FBI was after Kelsen as an alleged communist is as ridiculous as it is tragic, and even two of his own students, Hans J. Morgenthau and John H. Herz, did not seem to understand legal positivism’s cold analysis of political and international life. The same goes for the fact that Kelsen was, actually, a tough Freudian human nature realist who turned the tables on natural law ideologues. Who’s naïve now?

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