The Public International Law Theory of Hans Kelsen: Believing in Universal Law

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ISBN: 9780521516181 | 0521516188
Cover: Hardcover
Copyright: 11/29/2010

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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.

Preface	p. xiii
Introduction	p. 1
The quest for objectivity: the method and construction of universal law	p. 13
Method and construction of international law in nineteenth-century German scholarship	p. 15
Kaltenborn and the "objective principle" of international law	p. 15
The "subjective principle" in Kant and Hegel	p. 17
Humanity as a "community of law" [Rechtsgemeinwesen] in Kaltenborn	p. 18
Bergbohm and Fricker: "The problem of international law revisited"	p. 21
Jellinek as synthesis	p. 26
The free will of the state as the formal ground of all law	p. 28
The concept of "self-obligation" [Selbstverpflichtung] and the obligatory nature of public law	p. 30
The theory of the guaranteed norm	p. 32
Jellinek's "objective international law"	p. 32
The "nature of the thing" [Natur der Sache] as a principle of objectification	p. 32
"Shared interests" and "purpose of the state" as the final sociological foundation of objective international law	p. 35
Heinrich Triepel and the "common will" [Gemeinwille] as a principle of objectivization	p. 38
Conclusion	p. 42
Kelsenian formalism as critical methodology in international law	p. 44
A new methodological tool kit	p. 44
Methodological dualism as the starting point	p. 45
Methodological critique through the "identity thesis"	p. 50
The anti-ideological thrust of the new methodology	p. 54
The function of the critical methodology: law as a universal medium for shaping society	p. 56
Volk, nation, and state in international law	p. 56
Law as a universal medium of societal change	p. 60
The fundamental critique of the conceptual apparatus of international law	p. 61
The conceptual uncoupling of the notion of sovereignty from the "state as a legal person of will" [willensfähige Staatsperson]	p. 61
Critique of the conception of sovereignty as a core stock of state competencies	p. 63
Sovereignty as a hierarchy-creating, ordering element of the legal system	p. 64
The critique of the doctrine of self-obligation	p. 67
The critique of a dualism of state law and international law	p. 70
A crititue of the duality of sources	p. 70
A critique of the duality of regulatory objects	p. 71
The opponents of the critical method: Kelsen's abstract conceptual world as a "radical-logicistic metaphysics"	p. 73
An "objective" architecture of international law: Kelsen, Kunz, and Verdross	p. 78
Constructing a unitary system	p. 78
Systemic unity as an epistemological postulate	p. 79
"Delegation" as a unity-creating structural principle	p. 80
The idea of unity in the discourse on international law	p. 82
International law as law endowed with the power of coercion	p. 84
Central compulsion and the "world state trap" [Weltstaatsfalle]	p. 84
Reprisals and war as decentralized means of coercion	p. 87
The coercive character as an evolutionary achievement	p. 90
The primacy thesis: the construction of an international law above the state	p. 93
The delimitation of the state's spheres of competence through international law	p. 93
The primacy thesis and the problem of norm conflicts	p. 96
The defense and further development of the primacy thesis	p. 97
The primacy thesis, domestic jurisdiction, and the decisions of the Permanent Court of International Justice (PCIJ)	p. 100
The quarrel over the choice hypothesis [Wahlhypothese]	p. 104
The opponents of the construction of a universal law and the notion of the "world state"	p. 108
Universal law, the "world state," and the civitas maxima	p. 108
The universal system of law as natural law?	p. 112
The abuse of the idea of universalism	p. 116
The outlines of the cosmopolitan project - the actors, sources, and courts of universal law	p. 119
The new actors of universal law	p. 123
Legally organized communities above the state	p. 125
Unions of states as a dynamic continuum of legal integration	p. 126
Unions of states as a particular international legal community	p. 127
The doctrine of centralization and decentralization	p. 130
Sovereignty as the state's direct subordination to International law [Völkerrechtsunmittelbarkeit]	p. 132
The legal nature of the League of Nations	p. 133
The League of Nations as a personified sub-order of international law	p. 136
The League of Nations as a community of joint ownership [Gemeinschaft zur gesamten Hand]	p. 140
The opponents of an "integration-friendly" theory of international law	p. 143
The individual	p. 146
Positive law	p. 146
The critique of Scelle and Politis	p. 148
Universal law as a dynamic system of integration	p. 150
Legal sources as universal instruments of law-creation	p. 153
Sources beyond metaphysics and consensus	p. 153
The critique of metaphysical dualism	p. 154
The critique of the positivist consensus model	p. 157
The hypothetical character of international law: the basic norm of international law	p. 160
The legal sources of international law and the hierarchical structure of the law	p. 165
Customary law	p. 167
Dispensing with the opinio iuris	p. 168
The replacement for the opinio iuris	p. 170
An objective doctrine of treaties	p. 172
The creation of the treaty-based legal order	p. 173
The international treaty's mode of action	p. 176
The theory of legal sources as a self-limitation of legal scholarship	p. 179
The opponents of a "dematerialized" doctrine of legal sources	p. 181
Rematerialization as a strategy of revision	p. 181
Pure Theory of Law and the "unjust" status quo	p. 185
Replacing the ideal of justice with the ideal of peace	p. 188
The international judiciary as the functional center of universal law	p. 191
Peace through compulsory jurisdiction	p. 191
The politico-legal approach: the Permament League for the Maintenance of Peace	p. 193
The socio-historical approach: compulsory jurisdiction as a necessary step toward a centralized, universal legal system	p. 198
The doctrinal approach: the fundamental critique of the doctrinal limitation on the judicial function in international relations	p. 203
The theoretical classification of the judicial decision	p. 212
The function of the judicial decision within the hierarchical structure of the law	p. 212
The nature of judicial decision-making	p. 214
The postulate of compulsory jurisdiction as the consequence of a system-oriented conception of the law	p. 218
Realist opposition to the quest for a strong international judiciary: compulsory jurisdiction as another "distinguished international lawyer's dream"	p. 220
The role of the international legal scholar after Kelsen - a concluding reflection	p. 225
Postscript - on Kelsenian formalism in international law (2010)	p. 233
Career sketches	p. 272
Bibliography	p. 286
Index	p. 316
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The Public International Law Theory of Hans Kelsen: Believing in Universal Law

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