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Kelsen's Theory of International Law

Published online by Cambridge University Press:  02 September 2013

W. B. Stern
W. B. Stern
Affiliation:
Johns Hopkins University
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Extract

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.”

Type
International Affairs
Information
American Political Science Review , Volume 30 , Issue 4 , August 1936 , pp. 736 - 741
Copyright
Copyright © American Political Science Association 1936

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References

1 The school of the “Pure Theory of Law” is often called “Austrian School” or “Vienna School.”

2 Concepts of State, Sovereignty, and International Law (1928), pp. 121 ff.Google Scholar; “Alfred Verdross' Concept of the Unity of the Legal Order on the Basis of the International Constitution,” in Methods in Social Science (ed. by Rice, S. A.), pp. 118 ff.Google Scholar

3 “The Vienna School and International Law,” New York University Law Quarterly Review, March, 1934, pp. 370–421Google Scholar.

4 “The Legal Monism of Alfred Verdross,” in this Review, June, 1935, pp. 387–402.

5 Reine Rechtslehre, Einleitung in die rechtswissenschaftliche Problematik (1934). A short review of this book by DrKunz, Josef L. will be found in the American Journal of International Law, April, 1935, pp. 356–357CrossRefGoogle Scholar.

6 “The Pure Theory of Law; Its Method and Fundamental Concepts,” trans., with an introduction, by Wilson, Charles H., in Law Quarterly Review, October, 1934, pp. 474–498Google Scholar; July. 1935, pp. 517–535.

7 On this part of the “Pure Theory of Law,” see also Jones, J. Walter, “The ‘Pure’ Theory of International Law,” in British Year Book of International Law (1935), pp. 5 ff.Google Scholar This illuminating study seems to have been written without the author's knowledge of Professor Kelsen's newest book.

8 Verdross prefers the following rule to “pacta sunt servanda”: “Communities, sovereign or part sovereign, regulate your conduct in your relations with one another according to the generally recognized principles of law, so far as they have not been modified by rules which international usage has established as valid.” Verdross, Alfred, “Die allgemeinen Rechtsgrundsätze als Völkerrechtsquelle,” in Gesellschaft, Staat und Recht (edited by Verdross, Alfred), 1931, pp. 354 ff.CrossRefGoogle Scholar Translation by J. Walter Jones, loc. cit., p. 11.

9 J. Walter Jones, loc. cit., p. 19, dwells largely on this argument.

10 “The Legal Process and International Order,” The New Commonwealth, May, 1934, pp. 104–105Google Scholar, June, 1934, pp. 122–123. The same article in German: “Die Technik des Völkerrechts und die Organisation des Friedens,” Zeitschrift für öffentliches Recht, 1934, pp. 240–255Google Scholar. French translation: “La Technique du droit international et l'organisation de la paix,” Revue de Droit International et de Legislation Comparée, 1934, pp. 5–24Google Scholar.

11 Verdross considers it an axiom rather than a hypothesis to conceive international law as the basic norm. “Le fondement du droit international,” in Academie de Droit International, Recueil des Cours (1927), Vol. 1, pp. 247 ff.Google Scholar

12 In fact, Hans Morgenthau arrives at this conclusion, La réalité des normes, en particulier des normes du droit international (1934), p. 218Google Scholar.

13 J. Walter Jones, loc. cit., p. 12, deviates on this point from Kelsen.

14 For a bibliography of the “Pure Theory of Law,” see Dr. Rudolf Aladar Métall, Bibliographie der Reinen Rechtslehre; Appendix to Kelsen, Reine Rechtslehre, pp. 155–222.

15 Modern philosophers tend to differentiate between absolute natural law, relative natural law, and positive law. While adherents of the school of natural law usually divide law into two classes, the partition of law into three classes goes back to I. de jure nat. (1, 2) and to Thomas Aquinas' Summae Theologiae, I, 2, q. 91, art. 2–4, and 1, 2, q. 94, art. 4. To the degree to which modern writers recognize divine or eternal law, they speak of “absolute natural law.” They conceive of constitutional, statutory law, decrees, ordinances, judge-made law (as far as there is such), and customary law as “positive law.” “Relative natural law” is considered as law superimposed on positive law. It contains, for instance, “the general principles of law recognized by civilized nations” (Article 36, Statute of the Permanent Court of International Justice). It furnishes the basis for a judicial decision ex aequo et bono. Relative natural law, therefore, is a body of norms which are conceived to be the standard of the legal life of a people or a family of nations at a certain period.

16 See Bergbohm, Karl, Jurisprudenz und Rechtsphilosophie (1882), Vol. 1, p. 279Google Scholar.

17 Loc. cit., p. 19.

18 J. Walter Jones, loc. cit., p. 13.

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