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.”

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.

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.

Realism and international law: the challenge of John H. Herz

2010 ◽  
Vol 2 (3) ◽  
pp. 410-445 ◽  
Author(s):  
Casper Sylvest
Keyword(s):  
International Law ◽  
Intellectual History ◽  
The United States ◽  
World Politics ◽  
Pure Theory ◽  
Intellectual Context ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
Politics And Law ◽  
The Relationship

The proliferation, globalization, and fragmentation of law in world politics have fostered an attempt to re-integrate International Law (IL) and International Relations (IR) scholarship, but so far the contribution of realist theory to this interdisciplinary perspective has been meagre. Combining intellectual history, the jurisprudence of IL and IR theory, this article provides an analysis of John H. Herz’s classical realism and its perspective on international law. In retrieving this vision, the article emphasizes the political and intellectual context from which Herz’s realism developed: the study of public law in Germany during the interwar period and in particular the contribution of Hans Kelsen and the pure theory of law to the study of international law. Herz was deeply inspired by Kelsen but he criticized the pure theory for ignoring the sociological foundations of law. Following his emigration to the United States, Herz embraced realism but without disregarding international law. Indeed, his mature, globally oriented realism offers a balanced, fruitful perspective for thinking about the relationship between politics and law that is deeply relevant for contemporary theory: it challenges modern, law-blind variants of realism and holds considerable potential for contributing to the approaches that have most successfully studied the law–politics nexus.

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, Hans (1881–1973)

2018 ◽  
Author(s):  
Zenon Bankowski
Keyword(s):  
Political Philosophy ◽  
Twentieth Century ◽  
International Law ◽  
Legal Philosophy ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Theory Of Law

Hans Kelsen was one of the foremost (positivist) legal theorists of the twentieth century. He taught in Vienna, Cologne, Geneva and Paris, and finished his life in America, teaching in Chicago, Harvard and Berkeley. He wrote widely, on legal philosophy, constitutional and international law, and political philosophy. Kelsen is best known for his Pure Theory of Law (Reine Rechtslehre) (1934). This is the basis of a theory which, with many changes, he espoused till he died.

Law and psychoanalysis: close intertwining between Hans Kelsen and Sigmund Freud

KPGT_dlutz_1 ◽  
2021 ◽  
Vol 35 (1) ◽  
pp. 6-35
Author(s):  
Ricardo Borrmann
Keyword(s):  
Social Psychology ◽  
Sigmund Freud ◽  
Cultural Background ◽  
The State ◽  
Pure Theory ◽  
Original Analysis ◽  
Hans Kelsen ◽  
Personal Context ◽  
Theory Of Law ◽  
New Hypothesis

This paper offers an original analysis of the interconnections between law and psychoanalysis through the personal and academic exchanges between Hans Kelsen (1881-1973) and Sigmund Freud (1856-1939). After a brief analysis of the similar cultural background of both scholars as Jews who grew up in fin-de-siècle Vienna, the text focuses on the personal encounters between them and subsequently analyzes Kelsen's reception of Freud's work in “The State-Concept and Social-Psychology” (Der Begriff des Staates und die Sozialpsychologie). Kelsen’s text was originally published in 1922 in Freud’s review, Imago, resulting from a conference he held at the Viennese Psychoanalytical Society. This paper analyzes the relevance of Freud’s theory to the construction of the Pure Theory of Law, especially regarding his concept of the state. Furthermore, it presents a new hypothesis for the subjective reasons behind Kelsen’s attraction to psychoanalysis, and for his admiration of Freud, which it tries to understand through the personal context of Kelsen’s life. Finally, it deals with the possible influence of Kelsen on Freud's work, especially with regards to the term "Super-Ego."

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?

scholarly journals A moldura kelseniana: formulação dos limites da interpretação na Teoria Pura do Direito

2020 ◽  
pp. 221-244
Author(s):  
Paulo Henrique Rodrigues Pereira
Keyword(s):  
20Th Century ◽  
Philosophy Of Law ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Legal Thinking ◽  
Theory Of Law

RESUMOA Teoria Pura do Direito figura como uma das grandes obras do pensamento jurídico do século XX. Entretanto, pouco se explora a visão do autor sobre a interpretação das normas e dos princípios em sua visão totalizante do direito. O presente artigo busca reconstituir a discussão sobre as limitações da visão de Hans Kelsen sobre a interpretação no direito, focando em sua Teoria Pura. Através da delimitação das críticas feitas a Kelsen, nominalmente sobre incoerência e insuficiência da operação de sua teoria, o autor passará à abordagem do próprio Kelsen sobre a interpretação como resposta a tais críticas, para então produzir um balanço desse debate.PALAVRAS-CHAVEKelsen. Interpretação. Teoria Pura do Direito. Filosofia do Direito. ABSTRACTThe “Pure Theory of Law” occupies a place as one of the most relevant works of legal thinking in the 20th Century. However, little is discussed on Hans Kelsen’s vision on interpretation of norms and principles in his systematic vision of Law. This article seeks to explore the discussion regarding the limitations of his vision on interpretation of Law, focusing on his Pure Theory. Through the delimitation of the criticism to his work, specially of incoherence and insufficiency of the operation of his theory, the author will then pursue Kelsen’s own approach on the interpretation as an answer to such criticism, to then display an overall assessment of this debate.KEYWORDSKelsen. Interpretation. Pure Theory of Law. Philosophy of Law.

scholarly journals BASIS EPISTEMOLOGIS PARADIGMA RASIONAL DALAM ILMU HUKUM: SEBUAH DESKRIPSI TENTANG ASUMSI-ASUMSI DASAR TEORI HUKUM MURNI-HANS KELSEN

2014 ◽  
Vol 14 (3) ◽  
Author(s):  
Kelik Wardiono ◽  
Khudzaifah Dimyati
Keyword(s):  
Cognitive Science ◽  
Rule Of Law ◽  
Legal Norm ◽  
Empirical Reality ◽  
Philosophical Approach ◽  
Pure Theory ◽  
The Rule Of Law ◽  
Basic Assumptions ◽  
Hans Kelsen ◽  
Theory Of Law

Based on the philosophical approach, it is known basic assumptions of rational paradigm as seen in Hans Kelsen's pure theory of law that consists of: human assumptions based on the quasi-transcendental along with its characters and aurea aetas; ontological assumptions based on empirical reality and equating sein reality with sollen, and normativity created as logico transcendental conditions; epistemological assumption that underlying the science of law as cognitive science, creating the rule of law as a whole object, and reconstructing legal norm as the relation between non-causal and non-metaphysical facts; axiological assumption that reconstructs norm as the object of legal science and equating the basic norms with natural laws.Key words: basic assumptions, rational paradigm, the theory pure of law, jurisprudance.

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