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“Subjective and objective notions of law are locked in a struggle over contemporary jurisprudence. The theory of international law, in particular, vacillates back and forth uncertainly between the antipodes of a state-individualistic and a human-universalistic perspective, between the subjectivism of the primacy of the legal order of the state and the objectivism of the primacy of international law… And yet, it is on a sure path toward an objectivistic conception of law.” This programmatic statement by Hans Kelsen from 1920 leads directly to the core of the Vienna School's theory of international law: creating a scientific foundation for an “objective” international law. From Kelsen's perspective, the primary task of legal scholarship was the theoretical construction of an international law whose validity was disconnected from the sovereign will of the state. To that end, the medium of the law was to be newly conceived as universal law with the help of the “objectivistic” conception of law, that is, one that proceeded from the primacy of international law.
In their striving for a “more objective” and simultaneously methodologically superior construct of international law, Kelsen and his students harked back on important points to intellectual precursors from the nineteenth and early twentieth centuries – though they developed them further or set themselves emphatically apart from them. The approach I have taken here will place their struggle for an objectivized universal law into the context of the historical discourse.
Interest in the history of the discipline of international law, in general, and in Hans Kelsen, in particular, has continued to grow in the years since the original publication of this study. Various reasons seem at play here: the study of the first high phase of the modern discipline of international law in the late nineteenth and early twentieth centuries may help to reassure a discipline that finds itself under growing pressure to justify its existence. What, after all, can international lawyers with their own epistemological traditions and sensibilities contribute to the conversation about global law that political scientists, economists, and sociologists cannot do equally as well or better? And when the debate revolves around the foundations of the discipline, Kelsen's name keeps cropping up and his project seems to assume new contextual relevance – after all, the awareness of a distinct legal methodology is at the heart of the Pure Theory of Law.
Or did the interest in the theoretical roots of the discipline perhaps grow out of the fact that we find ourselves since the beginning of the new millennium in a situation of political upheaval, crisis, and uncertainty, the resolution of which is still unclear when it comes to the future shape of international law? The cosmopolitan project of juridifying and institutionalizing international relations and its concrete emanations has been discussed among legal scholars with renewed – and not uncritical – vigor since the beginning of the new millennium.
As we have seen, the cosmopolitan project of Kelsen and Kunz included strong international organizations capable of enforcing international legal rules at the universal level. In theoretical terms, these organizations were also able to grant rights directly to individuals and impose obligations on them. As described in the last chapter, Kelsen sought to break open the doctrinal restrictions of the theory of unions of states, which was fixated on the notion of sovereignty. Not only would this make it possible to better classify new forms of legal organization doctrinally, it would also allow them to be presented vis-à-vis the states as largely autonomous legal orders. However, the creation of new forms of organization by international politics presupposed the existence of efficient instruments of law creation. To that end, Kelsen maintained, the legal sources of international law represented by custom and the treaty had to be made available to international politics as substantively unrestricted instruments of societal change. Before examining in greater detail the Kelsenian theory of treaty law and customary law, I will take a look at the general foundations of Kelsen's doctrine of legal sources.
Sources beyond metaphysics and consensus
Kelsen's theory of the sources of international law was based on the assumption of the hypothetical character of the law. That international law found its objective basis neither in posited meta-legal values, nor in a consensus of sovereign state wills.
On the basis of a new, critical methodology of public law, Kelsen and his students sought to come up with an “objective” architecture of international law. One factor that was particularly influential for Kelsen's theory of international law was his critical engagement with that of Georg Jellinek and the German Staatswillenspositivismus [state-centered positivism]. Kelsen had outlined his fundamental critique of Jellinek's theory of the state already in his Hauptprobleme der Staatsrechtslehre [Main Problems in the Theory of Public Law], and he carried it further in his first monograph on international law, written during the First World War, Das Problem der Souveränität und die Theorie des Völkerrechts [The Problem of Sovereignty and the Theory of International Law]. It is remarkable how deeply Kelsen, in this fundamental work, was influenced by the Wolffian–Kaltenbornian construction of an “objective” international law, combining it with his new methodological approach to public law. In that sense, this monograph, a foundational work for the Vienna School's theory of international law, can be seen as picking up on Kaltenborn's work while turning away emphatically from the international law theories of Georg Jellinek.
A new methodological tool kit
Kelsen's Main Problems in the Theory of Public Law and The Problem of Sovereignty sought to place the traditional doctrine of state and international law on a new methodological foundation. In the final analysis, Kelsen was concerned with nothing less than establishing legal scholarship as an autonomous “scientific” field.
This analysis of Hans Kelsen's international law theory takes into account the context of the German international legal discourse in the first half of the twentieth century, including the reactions of Carl Schmitt and other Weimar opponents of Kelsen. The relationship between his Pure Theory of Law and his international law writings is examined, enabling the reader to understand how Kelsen tried to square his own liberal cosmopolitan project with his methodological convictions as laid out in his Pure Theory of Law. Finally, Jochen von Bernstorff discusses the limits and continuing relevance of Kelsenian formalism for international law under the term of 'reflexive formalism', and offers a reflection on Kelsen's theory of international law against the background of current debates over constitutionalisation, institutionalisation and fragmentation of international law. The book also includes biographical sketches of Hans Kelsen and his main students Alfred Verdross and Joseph L. Kunz.
Hans Kelsen was a Viennese legal theorist and constitutional and international lawyer of Jewish background who is often described as the most important legal mind of the twentieth century. His chief work was Die Reine Rechtslehre [The Pure Theory of Law], first published in 1934. The purity of jurisprudential method postulated in it, understood as a “scientific” positivism, was a fundamental critique of the voluntaristic positivism [Staatswillenspositivismus] that dominated the public-law mainstream in the German Empire, and simultaneously a radicalized response to the opening, at the beginning of the twentieth century, of public-law scholarship to the young disciplines of sociology and psychology. Kelsen himself, however, was not only a constitutional and international lawyer, but also a legal theorist, legal sociologist, and legal historian. Throughout his life, he championed parliamentary democracy and compulsory constitutional adjudication, which he helped introduce in Austria, as well as the juridification of international relations and their law-based institutionalization.
Kelsen's main work on international law was his 1920 monograph Das Problem der Souveränität und die Theorie des Völkerrechts [The Problem of Sovereignty and the Theory of International Law]. He wrote it during the First World War in a historical phase when the pacifist-liberal current in Europe and the United States regarded the inadequate institutionalization of the international legal system, including compulsory jurisdiction, as the chief reason for the outbreak of the war. Kelsen shared this view.
On the basis of a critical challenge to the traditional theoretical edifice, Kelsen, Kunz, and Verdross developed their own construct of international law at the beginning of the 1920s. In contrast to Triepel and other dualists, their own “objective” theory proceeded from a unitary view of the law. From the monistic perspective, international law and national law were parts of a single, unitary legal system. Moreover, this foundation was to be used to demonstrate that international law – despite the complaints of deniers and doubters – could be conceived as a law fortified with the power of coercion. To that extent it could be subsumed under a uniform legal concept along with domestic law. International law and national law were thus part of a unitary system of norms endowed with the power of coercion. Within this overarching system, the thesis of the primacy of the law of nations was then used to place international law above national law. This objective edifice of international law reflected the confidence of Kelsen and his students in the effectiveness of the medium of international law. In the wake of the First World War, the “new” international law in the era of the League of Nations was to be available to international politics as an effective instrument for securing the peace.
Constructing a unitary system
The roots of the systems idea, which exerted a substantial influence on Kelsen's articulation of international law, are more difficult to pin down than the clearly neo-Kantian works following his Main Problems of State Law would suggest.
Those German-speaking writers who thought of themselves as positivists used different methodological conceptions in their search for an “objective” principle of international law. This principle was to contribute to a theoretical harmonization of the presumed binding nature of international law on the one hand, with the assumption that the sovereign will of the state formed the basis of the validity of international law on the other. Such a construct posed considerable problems for those who wrote about international law, because in contrast to state law, there was no central authority that stood above the states and was charged with enacting norms and enforcing the law. Those who created the law and those to whom it was addressed were one and the same. Moreover, starting from various definitions of law, nineteenth-century authors sought to provide what they considered a methodologically superior answer to the challenge of John Austin's question of whether law was possible at all between sovereign entities, and if so, how. This question assumed central importance in the second half of the nineteenth century also because a simple identification of international legal norms with rules of morality and reason seemed increasingly untenable under the rule of positivism in general jurisprudence.
Kaltenborn and the “objective principle” of international law
In 1847, C. Kaltenborn, in his Kritik des Völkerrechts [A Critique of the Law of Nations], had undertaken a comprehensive analysis of the textbooks on international law that had appeared in Germany in the first half of the century.
This book deals with the history of the theory of international law in the twentieth century. At its center stands the historical reconstruction of the ideas on international law advanced by Hans Kelsen and his most important students. Those ideas arose for the most part in the period between 1916 and 1950. My goal is to develop an overarching approach that explains the specific orientation and inner structure of Kelsen's works on international law against the background of the debates over the theory of international law and legal policy carried on in his day. To that extent, the reconstruction I have undertaken is grounded in a historical perspective on the evolution of the discipline of international law. At the forefront is an examination of the discourses about the method and construction of international law that influenced Kelsen and his students and which were at the same time substantially shaped by them. In the process, however, attention will also be given to nineteenth- and early twentieth-century theoretical approaches to international law that Kelsen encountered before and during the First World War. I will use these theoretical debates to develop a historical approach to explaining the particular orientation and inner structure of the theory of international law articulated by the Austrian jurist Kelsen. The “key” to Kelsen's writings on international law that I offer here can also provide an answer to the question why they were, on the one hand, among the most vehemently criticized approaches to the theory of international law of the twentieth century, and, on the other hand, do not seem to have lost their fascination for scholars even at the beginning of the twenty-first century.
Kelsen and Kunz had conceptualized international law as a substantively unrestricted means of guiding society on the world level, that is, as “universal law.” This reflected the high expectations that the cosmopolitan elites placed in the medium of international law during the interwar period. They believed that the phenomenon of European nationalism had driven the nations into the First World War. In the “new world order,” aggressive nationalism was to be countered by new institutions that secured the peace. From the perspective of the liberal modernization movement, the passionate forces of nationalism could be rationalized and defused only via the law of nations in international procedures and processes. That required new actors, who were to take their place beyond the sovereign nation state as the organs of universal law. The politically created new organs of the community of states were especially the League of Nations and the individual as a bearer of rights and obligations under international law.
This new way of looking at international law was intended to do justice to its growing importance as a pacifying medium in international relations. The political conflicts created by the territorial reorganization of Europe in the wake of the First World War were to be resolved through the new world organization and through international “legal experimentation,” such as novel treaties protecting minority rights or internationalized zones like the “Free City of Danzig.” In the eyes of the cosmopolitan scholars, the specter of nationalism had not yet been banished.
Throughout this book Kelsen's approach to international law has been explained as arising from the tension-filled relationship between the two crucial goals of his theories of international law: first, establishing a non-political methodology of legal scholarship, and, second, promoting the cosmopolitan project – born in the interwar period – of a thoroughly juridified and more strongly institutionalized world order. Time and again, I have pointed to the inner connection that Kelsen established between these two originally conflicting goals. That main link was found in the methodologically guided – that is, “purely” scholarly – critique of those doctrinal elements that potentially stood in the way of his own cosmopolitan project. The consequence of this critique was a not inconsiderable limitation on the role and significance of international legal doctrine in areas that were especially sensitive for his politico-legal project. Kelsen was obviously willing to accept that consequence.
In his introduction to the 1950 commentary on the Charter of the United Nations, The Law of the United Nations, Kelsen offered a final statement on his self-conception as an international lawyer. He had to measure his own commentary on the Charter by the role that he accorded the international lawyer in the introduction: “‘Juristic’ in contradistinction to ‘political’ has the connotation of ‘technical.’ It is not superfluous to remind the lawyer that as a ‘jurist’ he is but a technician whose most important task is to assist the law-maker in the adequate formulation of legal norms.”