Kelsen lives

European Journal of International Law

Volumn 18, Issue 3, 2007, Pages 409-451

  Somek, Alexander ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 35649028830     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm028     Document Type: Article

References (385)

1. The public international law scholarship of Kelsen and his disciples, such as Josef Kunz, has not been forgotten. See J. von Bernstorff, Der Glaube an das universale Recht. Zur Völkerrechtstheorie Hans Kelsens und seiner Schüler (2001).
2. For a review of this book see Jakab, 'Kelsens Völkerrechtslehre zwischen Erkenntnistheorie und Politik', 64 Heidelberg J Int'l L (2004) 1045.
3. This is not the place to recognize the contribution that was made by Josef Kunz to the development of a positivist theory of public international law; nevertheless, I would like to mention that he made a foray into the discipline long before he had to move to the United States. See J. Kunz, Völkerrechtswissenschaft und Reine Rechtslehre (1923).
4. I have recently demonstrated once more that I am not a legal positivist. However, I did so in the mother tongue of this persuasion. See Forgó and Somek, 'Nachpositivistisches Rechtsdenken', in S. Buckel et al. (eds.), Neue Theorien des Rechts (2006), at 263-290.
5. I hasten to add that there are a few offering resistance. See, e.g., Schlag, 'Hiding the Ball', 71 NYU L Rev (1996) 1681.
6. See, e.g., his characterization of the basic norm (Grundnorm) qua transcendental-logical hypothesis (transzendentallogische Annahme) in H. Kelsen, Reine Rechtslehre (2nd ed., 1960), at 204.
7. On Kelsen's neo-Kantian period, during which he followed the transcendental path most explicitly, see Paulson, 'Introduction', in H. Kelsen, Introduction to the Problems of Legal Theory (trans. B.L. and S.L. Paulson, 1992), at xxix xlii.
8. It was recently pointed out by Paulson that Kelsen's rejection of the traditional notion of sovereignty needs to be understood in light of his rejection of naturalism: See Paulson, 'Souveränität und der rechtliche Monismus. Eine kritische Skizze einiger Aspekte der frühen Lehre Hans Kelsens', in S. Hammer et al. (eds.), Demokratie und sozialer Rechtsstaat in Europa (2004), at 26.
9. On the current state of the transcendental project in general see M. Sacks, Objectivity and Insight (2000);
10. J. Habermas, Wahrheit und Rechtfertigung. Philosophische Aufsätze (1999).
11. It is a different matter, however, how successful Kelsen was in the pursuit of this project. For a critical assessment see Paulson, 'The Neo-Kantian Dimension of Kelsen's Pure Theory of Law', 12 Oxford Journal of Legal Studies (1992) 311,
12. and 'Der Normativismus Hans Kelsen', 61 Juristen Zeitung (2006) 529. I should add in passing that I maintain an understanding of 'transcendental' that attends to the conditions of meaning. It is broader than the 'sinnkritische' version of transcendental argumentation that has been discussed in German philosophical circles.
13. See G. Schönrich, Kategorien und transzendentale Argumentation. Kant und die Idee einer transzendentalen Semiotik (1981), at 189.
14. It should go without saying that my use of 'idealization' is both close to and broader than the use that has been made of this term in psychoanalysis. According to Laplanche and Pontialis, 'idealisation' is a psychological occurrence as a result of which something attains the quality of perfection. See J. Laplanche and J.-B. Pontialis, Das Vokabular der Psychoanalyse (1972), at 218.
15. See, originally, Freud, 'Massenpsychologie und Ich-Analyse' (1921), in A. Mitscherlich et al. (eds.), Studienausgabe (1982), ix, at 61, 105. In the text above, by 'expression' I mean compliance as well as constitution.
16. The social experience with which the transcendental project begins is the fact that in a society persons raise legal claims with the purport that such claims are objectively valid. See Kelsen, Introduction, supra note 4, at 9-10.
17. Any legal theory that takes the meaning of such claims seriously needs to explore the conditions for their validity. Such claims are not taken seriously by theories that merely study the conventions ('modalities') for their use. They bracket the claim to validity that is made by such claims. See P. Bobbitt, Constitutional Interpretation (1991), at 12-13;
18. D. Patterson, Law and Truth (1996), at 70.
19. For a very briefsketch see R. Dworkin, Law's Empire (1986), at 116-117.
20. A useful introduction is offered by Coleman and Leiter, 'Legal Positivism', in D. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (1996), at 241-259.
21. See, notably, J. Coleman, The Practice of Principle. In Defence of a Pragmatist Approach to Legal Theory (2001), at 68-69.
22. Paradoxically, the critical spirit of positivism is more adequately reflected in the work of Oliver Wendell Holmes than in the writings of present-day legal positivists. Holmes went at quite some length to expose the corrupting influence of morality on the conventions governing the law of torts. See his 'The Path of the Law', reprinted at 110 Harvard L Rev (1997) 991 (first published in 1897).
23. See Kelsen, Introduction, supra note 4, at 9-10;
24. more generally, see J.L. Austin, How to Do Things with Words (2nd ed., 1975), at 103-104.
25. On the point of the dialectical project see R.B. Pippin, Modernism as a Philosophical Problem. On the Dissatisfactions of European High Culture (2nd ed., 1999), at 75-76.
26. In this sense, Kelsen is closer to Hegel than to positivists. On the Hegelian project see, generally, T. Pinkard, Hegel's Phenomenology. The Sociality of Reason (1994). Dworkin, in turn, is close to both Kelsen and Hegel, but he does not seem to know, for he does not seem to have read either.
27. I do not see any point, hence, in coming up with some psychoanalytical account of Kelsen's apparent obsession with 'purity'. The latter is the consequence of determining what a legal claim is (in fact, its self-determination). But see Carty, 'Interwar German Theories of International Law: The Psychoanalytical and Phenomenological Perspectives of Hans Kelsen and Carl Schmitt', 16 Cardozo L Rev (1995) 1235.
28. The process can be linked, then, historically to the differentiation of the legal system. See N. Luhmann, Ausdifferenzierung des Rechts. Beiträge zur Rechtssoziologie und Rechtstheorie (1981), at 122.
29. As was pointed out to me by Michael Green, a description of Kelsen's project in 'reductionist' terms might strike one as odd. Is not Kelsen a legal philosopher who abstained from explaining the law in terms of something else, thereby avoiding any reduction of the law to another entity? Even though Green's point is well taken, I contend that in one important respect Kelsen's theory is indeed reductionist. Kelsen reduced all person-neutral moral appeals to expressions of person-relative wants and attempted to reconstruct their relevance from the perspective of power-conferring norms. See Somek, 'Ermächtigung und Verpflichtung. Ein Versuch über Normativität bei Hans Kelsen', in S.L. Paulson and M. Stolleis (eds.), Hans Kelsen. Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts (2005), at 58-79.
30. By 'substantive moral theory' I mean a theory that wishes to provide guidance for moral problem-solving. Kelsen's distrust in a sociological theory did not change after he made the encounter with American legal realism; however, the ground for his distrust changed. Kelsen thought that what 'goes under the name of sociological jurisprudence is hardly more than methodological postulates': H. Kelsen, General Theory of Law and State (trans. Anders Wedberg, 2nd ed., 1961), at 174.
31. See H. Kelsen, Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Verhältnisses von Staat und Recht (2nd ed., 1928), at 8-11.
32. On the following see Somek, 'Stateless Law: Kelsen's Conception and its Limits', 26 Oxford Journal of Legal Studies (2006) 753.
33. On the relationship between epistemology and ontology in legal thought see Schlag, supra note 3.
34. See Kelsen's reconstructed concept of the legal norm in Kelsen, Introduction, supra note 4, at 26-27.
35. I know that I am entering a linguistic minefield when talking loosely, in the text above, about 'realism'. I am aware that the term stands for a very distinct approach in international relations theory which - despite resting on a conception of rational action that is shared by other approaches as well - has its distinct perspective on the role and influence of state power in international relations. For a useful characterization see Hathaway, 'Do Human Rights Treaties Make a Difference?', 111 Yale LJ (2002) 1935, at 1944-1945.
36. For an illuminating discussion see also Keohane, 'Rational Choice Theory and International Law: Insights and Limitations', 31 J Legal Studies (2002) 307.
37. Hans Morgenthau, the intellectual founding father of what came to be called 'realism' in international relations theory, had been a critic of Kelsen's theory since the days when he had published his first works in German. See H. Morgenthau, Der Kampf der deutschen Staatslehre um die Wirklichkeit des Staates (Inaugural Lecture at the University of Geneva, 1932, manuscript HJM-B110, Library of Congress).
38. On the significance of this work for the development of Morgenthau's thought see C. Frei, Hans J. Morgenthau. An Intellectual Biography (2001), at 117;
39. M. Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 (2002), at 455-459.
40. On his relation to the thought of Carl Schmitt see ibid., at 459-465
41. and W.E. Scheuerman, Carl Schmitt. The End of Law (1999), at 245-251.
42. For Morgenthau's later engagement of Kelsen see Morgenthau, 'Positivism, Functionalism, and International Law', 34 Am J Public Int'l L (1940) 260;
43. G.A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsen's Pure Theory and Related Problems in International Law (1953).
44. For a useful discussion of the inconsistencies of 'realism' see C.R. Beitz, Political Theory and International Relations (2nd ed., 1999), at 23-27.
45. For a brief overview see Krasner, 'International Law and International Relations: Together, Apart, Together', 1 Chicago J Int'l L (2000) 93.
46. On this basic tenet of social systems theory see N. Luhmann, Die Gesellschaft der Gesellschaft (1997), at 14.
47. For an overview see R. Beck et al. (eds.), International Law Rules. Approaches from International Law and International Relations (1996).
48. This spillover is associated, mostly, with the work of Anne-Marie Slaughter. See, in particular, Slaughter, 'International Law and International Relations Theory: A Dual Agenda', 87 AJIL (1993) 205.
49. The explanation for the currency of this type of theorizing may lie in the Protestant heritage of this nation. See M. Weber, Gesammelte Aufsätze zur Religionssoziologie (1920), i, at 32-37.
50. See Hathaway and Lavinbuk, 'Rationalism and Revisionism' (A review of Goldstein and Posner, The Limits of International Law), 119 Harvard L Rev (2006) 1404, at 1410, 1421.
51. See J. Elster, Solomonic Judgements. Studies in the Limitations of Rationality (1989), at 3-4,
52. and Nuts and Bolts for the Social Sciences (1989), at 30-32.
53. See Taylor, 'Atomism', in C. Taylor, Philosophy and the Human Sciences (Philosophical Papers, vol. 2, 1985), at 187-210; the term is borrowed from Hegel.
54. See Hegel, 'Grundlinien der Philosophie des Rechts', in E. Moldenhauer and K. Michel (eds.), Werke in zwanzig Bänden (1969-1971), vii, §155, Zusatz, 305.
55. As is well known, international law atomism comes in different forms. The classical form is called 'realism'. It sees the world of international relations composed of states seeking their own advantage. The most essential ingredient of 'realism' is the belief that international relations are a zero sum game, with each country seeking its gain at the expense of others. For a discussion of realism see Legro and Moravcsik, 'Is Anybody Still a Realist?', 24 International Security (1999) 5, at 6-9, 16-18.
56. Institutionalism, by contrast, even though sharing the same ontological commitment, believes that the major problem that is to be solved through international co-operation consists in creating common gains. Hence, international co-operation is conceived of as a positive sum game: See ibid., at 10;
57. Hathaway and Lavinbuk, supra note 28, at 1430-1431.
58. The most prominent work reflecting this perspective is R. Keohane's After Hegemony, Co-operation and Discord in the World Political Economy (1984). Liberalism fits into the picture of atomism, too, however, with the atoms changing from states to local constituencies that exert influence on their governments.
59. See Moravscik, 'Taking Preferences Seriously: A Liberal Theory of International Politics', 51 Int'l Org (1997) 513.
60. On 'constructivism' see Bederman, 'Constructivism, Positivism, and Empiricism in International Law', 89 Georgetown LJ (2000-2001) 469, at 477;
61. P.A. Karber, '"Constructivism" as a Method of International Law', 94 Proceedings of the Am Soc Int'l L (2000) 189;
62. Brunée and Toope, 'International Law and Constructivism: Elements of an Interactional Theory of International Law', 39 Columbia J Transnat'l L (2000) 19;
63. Hathaway and Lavinbuk, supra note 28, at 1411, 1439-1440 (with further references). I am taking the liberty to bemoan, briefly, the fact that modern international law and international relations theory uses terminology that does not reflect the philosophical schools of thought with which certain ideas could be associated. For example, the point of 'constructivism' would be better captured by calling it pragmatism or even symbolic interactionism.
64. See, for that matter, G.H. Mead, Mind, Self & Society from the Standpoint of a Social Behaviourist (1934);
65. H. Blumer, Symbolic Interactionism. Perspective and Method (1969).
66. For a more general theoretical statement see D. Baecker, Organisation als System (1999).
67. See, e.g., Teubner, '"And God Laughed ...": Indeterminacy, Self-Reference and Paradox in Law', in C. Joerges and D.M. Trubek (eds.), Critical Legal Thought: An American-German Debate (1989), at 399-434.
68. See, in particular, Teubner, 'The King's Many Bodies. The Self-Deconstruction of the Law's Hierarchy', 31 Law and Society Review (1997) 763.
69. See, e.g., Zumbansen, 'Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law', 15 EJIL (2004) 197,
70. and 'Die vergangene Zukunft des Völkerrechts', 32 Kritische Justiz (2001) 46.
71. For a sympathetic discussion of these ideas see Koskenniemi, 'The Fate of Public International Law: Between Technique and Politics', 70 MLR (2007) 1, at 22-23.
72. On this difference see Luhmann, 'Handlungstheorie und Systemtheorie', in N. Luhmann, Soziologische Aufklärung (1981), iii, at 50-65.
73. The emphasis on reproduction explains why social systems theory conceives of the social world basically in biological terms. See J. Habermas, Der philosophische Diskurs der Moderne. Zwölf Vorlesungen (1985), at 430.
74. For a genealogy of the prevalence of a way of thinking that sees the reproduction of life at the centre of the human condition see H. Arendt, The Human Condition (1958), at 306-313.
75. There is something puzzling about Kelsen's career in international law. His emigration marked, in a sense, his death as a publicly recognized scholar. Even though it was known, by no less a figure than Roscoe Pound, that at the time of his arrival in the US Kelsen was the most eminent legal scholar of his time, the reception of his legal theory in the US turned out to be simply disastrous (see Paulson, supra note 4, at 17;
76. see also Paulson, 'Die Rezeption Kelsens in Amerika', in: W. Krawietz and O. Weinberger (eds.), Reine Rechtslehre im Spiegel ihrer Fortsetzer und Kritiker (1988), at 179-202;
77. Pound, 'Law and the Science of Law in Recent Theories', 43 Yale LJ (1933-1934) 525, at 532).
78. One of the greatest constitutional scholars of his time did not come to be perceived as such in his new intellectual environment. This explains why I am inclined to look at Kelsen's career in the field of public international law as his second, however late, career. The perspective is myopic, I must acknowledge, for much of the groundwork for his later work in public international law had already been done at a fairly early stage of his career. For an account that situates Kelsen's theory in the context of early twentieth century Viennese culture see Jabloner, 'Kelsen and His Circle: The Viennese Years', 9 EJIL (1998) 368.
79. See A. Cassese, International Law (2nd ed., 2005), at 216: '[t]he Kelsenian monistic theory, an admirable theoretical construction, was in advance of its time; in many respects it was utopian and did not reflect the reality of international relations. However, for all its inconsistencies and practical pitfalls, it had a significant ideological impact. It brought new emphasis to the role of international law as a controlling factor of state conduct. It was instrumental in consolidating the notion that state officials should abide by international legal standards and ought therefore put international imperatives before national demands.' In some respects, this assessment is flawed, in particular in attributing to monism a specific normative aspiration. But it says something about the esteem in which Kelsen is still held by leading exponents of the discipline.
80. For an assessment along these lines see Leben, 'Hans Kelsen and the Advancement of International Law', 9 EJIL (1998) 287.
81. See, e.g., H. Kelsen, The Legal Process and International Order (1935).
82. See Kelsen, 'The Principle of Sovereign Equality of States as a Basis for International Organisation', 53 Yale LJ (1944) 207.
83. See H. Kelsen, 'Collective Security under International Law', 49 Naval War College International Law Studies (1954) 1, at 34-52.
84. See Kelsen, Reine Rechtslehre, supra note 4, at 327;
85. see also Kelsen, supra note 61, at 526: '[t]hat international law imposes obligations and confers rights on the state to behave in a certain way means that international law leaves it to the state legal system to specify the human beings who are to behave in such a way as to fulfil these obligations and to exercise these rights; in other words, international law delegates powers to the state legal system to make this determination'.
86. See sections XII-XIII below.
87. See, in particular, H. Kelsen, Peace Through Law (1942).
88. See H. Kelsen, Law and Peace in International Relations. The Oliver Wendell Holmes Lectures, 1940-41 (1942), at 146-151 (for an evolutionary perspective on the development of centralized adjudicative bodies);
89. Kelsen, 'International Peace - By Court or Government?', 46 Am J Sociology (1941) 571;
90. Kelsen, 'Essential Conditions of International Justice', 34 Proceedings of the Am Soc Int'l L (1941) 70, at 76-77;
91. Kelsen, 'Compulsory Adjudication of International Disputes', 37 AJIL (1943) 397.
92. See Carthy, 'The Continuing Influence of Kelsen on the General Perception of the Discipline of International Law', 9 EJIL (1998) 344, at 353-354 (on Lauterpacht's indebtedness to Kelsen).
93. For a discussion of the state of development of public international law at that time see Kelsen, 'Collective and Individual Responsibility for Acts of State in International Law', [1948] Jewish Yearbook Int'l L 226 (with a critical discussion of the theory employed by the Nuremberg Tribunal).
94. His belief that adjudicative centralization could precede large-scale political integration of the international community again set him apart from Hans Morgenthau who thought that sovereignty would render such incrementalism ineffective. According to Morgenthau, sovereignty is compatible only with a weak and decentralized international order. See Morgenthau, 'The Problem of Sovereignty Reconsidered', 48 Columbia L Rev (1948) 341, at 343.
95. See Kelsen, Reine Rechtslehre, supra note 4, at 328.
96. For a reconstruction of the 'geology' of modern international law that seems to confirm Kelsen's intuition see Weiler, 'The Geology of International Law - Governance, Democracy and Legitimacy', 64 Heidelberg J Int'l L (ZaöRV) (2004) 547.
97. See Letter from Condoleeza Rice, US Secretary of State, to Kofi Annan, UN Secretary-General (7 Mar. 2006), available at: www.discourse.net/ archives/2005/03/us_announces_withdrawal_from_consular_convention.html (acknowledging that the US proclaimed its withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, done at Vienna, on 24 Apr. 1963). The recent decision to withdraw from the Optional Protocol stems from the perceived adverse effects on the autonomy of the American criminal justice system in light of a previous ICJ decision that required new state court hearings for 51 Mexican nationals on death row who claimed that their cases had suffered due to a lack of contact with consular officials as mandated under the protocol:
98. see Liptak, 'U.S. Says It Has Withdrawn From World Judicial Body', New York Times, 10 Mar. 2005, at A16 (describing how the US desires to insulate its courts from future ICJ rulings that may interfere in ways that were unanticipated 'when [it] joined the optional protocol'). Although the US proposed and ratified the Optional Protocol in 1963 - giving the ICJ jurisdiction when a signatory's nationals claim illegal denial of 'the right to see a home-country diplomat when jailed abroad' - the US has faced recent challenges from other signatory countries whose citizens suffered capital punishment without accessto diplomats in contravention of the Optional Protocol: Lane,'U.S. Quits Pact Used in Capital Cases', Washington Post, 10 Mar. 2005, at A01. Before the withdrawal took effect, however, the United States decided to honour the latest ICJ ruling regarding the 51 Mexican nationals in accordance with international law and the Optional Protocol.
99. See Memorandum from President George W. Bush to Attorney General Alberto Gonzales (Feb. 28, 2005), http://www.whitehouse.gov/news/ releases/2005/02/20050228-18.html (citing 2004 ICJ 128 (Mar. 31)) (requiring that 'State courts give effect the decision in accordance with general principles of comity').
100. On 6 May 2002, the Bush administration formally rejected the US signature of the Rome Statute of the ICC, which President Clinton authorized on 31 Dec. 2000: Letter from John R. Bolton, Under Secretary of State for Arms Control and International Security, to Kofi Arman, UN Secretary-General (6 May 2002), available at: www.state.gov/r/pa/prs/ps/ 2002/9968.htm.
101. The rationale behind the bold move to 'unsign' the treaty stemmed from unsubstantiated fears that Americans might be subject to unfair or politically motivated prosecution: Roth, 'Is America's Withdrawal From the New International Criminal Court justified?', Human Rights Watch 17 July 2002, available at: www.hrw.org/editorials/2002/icc0731.htm. The negative effects of this manoeuvre on American foreign policy, however, seem clear: (1) public repudiation of the ICC will hardly foment international cooperation in the US-led war on terrorism; (2) with an uncompromising and unilateralist approach, the US 'risks finding itself on the wrong side of history;' and (3) perpetuating the idea that America considers itself to be 'above international law' promotes increased isolation at a juncture in history when the US can ill-afford to act alone as a global policeman.
102. Id.
103. For more background as to why US fears of the ICC are unwarranted, see generally Justice Richard J. Goldstone, US Withdrawal from ICC Undermines Decades of American Leadership in International Justice, INTERNATIONAL CRIMINAL COURT MONITOR (Jun. 2002), http://www.thirdworldtraveler.com/International_War_Crimes/ USWithdrawal_ICC_Goldstone.html.
104. The ICC is not a rogue court that indiscriminately wields power; instead, it was intended as court of 'last resort' whereby complementarity offers domestic judicial systems to investigate and prosecute if they so choose. Id.
105. From the Nuremburg trials to ad hoc tribunals, the United States consistently exhibited its leadership in serving international justice; that is, until now when it chooses to alienate itself from 'key allies, especially in Europe'. Id.
106. For additional insight into America's refusal to cooperate with the ICC, see generally America Service Members Protection Act 2002, H.R. 4775, 107th Cong. (2002) (enacted).
107. The US desires the completion of as many bilateral Art. 98 Agreements as possible because they are thought to afford American 'citizens ... essential protection from the jurisdiction of the International Criminal Court, particularly against politically motivated investigations and prosecutions': Press Release, 'White House Spokesman Richard Boucher; Article 98 Agreements' (23 Sept. 2003), available a t: www.state.gov/r/ pa/prs/ps/2003/24331/htm.
108. By 2 May 2005 the US had concluded 100 such agreements: Press Release, 'White House Spokesman Richard Boucher, U.S. Signs 100th Article 98 Agreement' (23 Sept. 2003), available at: www.state.gov/r/pa/prs/ps/2005/ 45573/htm.
109. These 'bilateral immunity agreements' that require American nationals not to be extradited to the World Court without the express consent of the US have been criticized by the international community on several grounds: See Letter from Kenneth Roth, Executive Director of Human Rights Watch, to Colin Powell, US Secretary ofState (9 Dec. 2003), available at: www.hrw.org/press/2003/usl20903-Itr.htm (describing the most egregious elements of these agreements as the US legal misinterpretation of Art. 98 of the Rome Statute; and coercive tactics employed (e.g., threats to curb military/humanitarian/economic assistance) to obtain the desired signatures.
110. US offensive measures to protect its citizens and leaders from prosecution for the worst possible offences have damaged America's credibility on the international stage and promoted the impression ofthe US as 'above the law'. See the letter from Roth to Powell, supra note 54.
111. Other Security Council Members and the world community at large expressed vehement opposition to US unilateralism and the use of its veto power as a tool to manipulate important international treaties like the Rome Statute. See 'The ICC in the Security Council', Global Policy Forum, available at: www.globalpolicy.org/intljustice/icc/ crisisindex.htm (describing how the US threatened to veto UN peace-keeping missions if it could not obtain adequate assurances of immunity from prosecution in the ICC).
112. For a discussion see C. Gray, International Law and the Use of Force (2nd ed., 2004), at 159-194.
113. See, of course, A.-M. Slaughter, A New World Order (2004).
114. H.L.A. Hart's discussion of public international law in his The Concept of Law (1961) is clearly indebted to Kelsen's writings on the subject, in particular where he criticizes the allegedly self-binding nature of international law with regard to the state (at 220-221).
115. This conviction extends as far back as to his first major work on public international law, which first appeared in 1920: See H. Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer reinen Rechtslehre (2nd ed., 1928). He was, however, cautious as regards the version of monism that was to be preferred. Indeed, he argued that there was no basis for preferring one over the other. But he clearly seemed to favour, if only as a matter of constructivist elegance, international monism, that is, the theory according to which international law is accorded primacy over state law.
116. See Kelsen, 'Sovereignty', reprinted in S.L. Paulson and B.L. Poulson (eds.), Normativity and Norms. Critical Perspectives on Kelsenian Themes (1998), at 525, 527.
117. From a monist perspective, however, such provisions do not mean to express recognition of international law, but rather its transformation into the domestic order. See Kelsen, Reine Rechtslehre, supra note 4, at 336.
118. See N. MacCormick, Questioning Sovereignty. Law, State, and Nation in the European Commonwealth (1999), at 131-133,
119. and, more recently, Kumm, 'The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty', 11 European LJ (2005) 262.
120. See Heintzen, 'Die "Herrschaft" über die Europäischen Gemeinschaftsverträge - Bundesverfassungsgericht und Europäischer Gerichtshof auf Konfliktkurs?', 119 Archiv des öffentlichen Rechts (1994) 564.
121. For a critique of such positions see Schilling, 'The jurisprudence of Constitutional Conflict: Some Supplemenations to Mattias Kumm', 12 European LJ (2006) 173.
122. See Kelsen, supra note 61, at 526.
123. Ibid., at 527.
124. Kelsen did not think that this was an empirical question even though he states that the existence of an international norm that determines the sphere of validity of the state legal system 'also' speaks in favour of a monist construction: See ibid., at 527.
125. The idea of the civitas maxima first appears in the writings of the pre-Kantian philosopher Christian Wolff. Kelsen was full of praise for Wolff in his book on sovereignty. He gave him credit for first having discovered the primacy of international law from the perspective of a pure legal theory. See Kelsen, supra note 60, at 249.
126. See Cassese, supra note 40, at 217.
127. For a stimulating discussion see Krisch, 'International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order', 16 EJIL (2005) 369;
128. a more extensive exploration of the issue is offered by A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005).
129. I shall return to the remarkable return of right-wing Hegelianism in current American jurisprudence infra in note 221.
130. See, e.g., M.N. Shaw, International Law (5th ed., 2003), at 50, 122-123.
131. Sophisticated dualists, such as Kumm, emphasize that conflict-resolution between legal orders cannot rest on the application of hard and fast rules; rather, it requires mutual 'deliberative engagement' in the relations of adjudicative bodies located at different levels of a multi-level system: See Kumm, supra note 63, at 273, 286-288.
132. Evidently, recommendations such as these do not invoke any legal authority. For a related observation see Schilling, supra note 64, at 182. If they were meant to evince a legal norm they would have to grant that the authority of another legal norm is based on one legal order encompassing both potentially conflicting orders.
133. For a reconstruction of Kelsen's transcendental argument against dualism see Paulson, supra note 4, at 33-34.
134. See Kelsen, Reine Rechtslehre, supra note 4, at 329.
135. I take this to be an intuitively acceptable formulation of a conflict of norms. See Hart, 'Kelsen's Doctrine of the Unity of Law', in Paulson and Paulson, supra note 61, at 553, 566-567.
136. See above at Section 1.
137. Accordingly, Kelsen's positivism admits the possibility of collective self-deception by legal officials and, thus, entertains a less complacent image of agency than Anglo-American legal positivism. On the relevance of 'convergent' behaviour see Coleman and Leiter, supra note 8, at 247-248.
138. For a useful reconstruction of the 'complacent' view of agency that seems to dominate much of current social and political science see J. Lear, Freud (2005), at 2-3.
139. On this point see, generally, Pinkard, supra note 13, at 175, 221.
140. See Kelsen, Reine Rechtslehre, supra note 4, at 329. Much sophistry can be invested, at this point, in discussing whether Kelsen was right in speaking of a logical contradiction in this context.
141. See Hart, supra note 75, at 571. What is most often not discussed, in such a context, is how the line ought to be drawn between 'logical' and other forms of 'impossibility'.
142. For an introduction to the problem see Quine, 'Carnap and Logical Truth', in W.V. Quine, The Ways of Paradox and Other Essays (2nd. edn., 1976), at 107-132.
143. That is exactly, by the way, what Derrida has in mind when speaking of the différance, understood as an iteration that alters. See Derrida, 'Différance', in J. Derrida, Margins of Philosophy (trans. Alan Bass, 1982), at 1-28;
144. J. Derida, Limited Inc (trans. S. Weber, 1988), at 130. Whoever defends pluralism is not in conflict with Kelsen when granting, at the same time, that the meaning of 'legal validity' is thereby rendered indeterminate.
145. For a discussion of Hart's criticism of Kelsen's arguments see section VIII.
146. See D. Davidson, Inquiries into Truth and Interpretation (1986), at 65, 79-86. I would like to abstain, however, from delving into the intricacies of quotation theory here.
147. Kelsen views 'juridical cognition' as entirely analogous to propositional knowledge. I would like to thank Stanley L. Paulson for a helpful clarification of this point.
148. Again, a matter that can be perceived with a certain Derridian subtlety. See supra note 80.
149. The term means that in a complex society there is no privileged position for understanding and influencing social life, but merely a multitude of bounded and incommensurable points of view. See, e.g., P. Fuchs, Die Erreichbarkeit der Gesellschaft. Zur Konstruktion und Imagination gesellschaftlicher Einheit (1992), at 43-52.
150. For an observation from a completely different angle see A. Somek, Rechtliches Wissen (2006), at 100-103.
151. For perceptive observations see Koskenniemi, supra note 36, at 10.
152. See ibid., at 14, 29.
153. For a positive answer to the latter question see Simma and Pulkowski, 'Of Planets and the Universe: Self-contained Regimes in International Law', 17 EJIL (2006) 483;
154. see also International Law Commission, 'Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law', A/CN.4/L-682, 13 Apr. 2006 (finalized by Martti Koskenniemi).
155. For an excellent discussion of why it would be, even under such circumstances, erroneous to conceive of international law as morality see Hart, supra note 59, at 223-224.
156. I add in passing that today Koskenniemi appears to be concerned about it. See Koskenniemi, supra note 36, at 13-14.
157. See supra note 79.
158. See Hart, supra note 75, at 554, 564. The effectiveness principle is not a necessary component of a monistic theory, for it is conceivable to construct the unity of the system from a different angle, e.g., from the perspective of overlapping fundamental rights standards. Public international law and national law could then be seen as lending expression to one overarching system of value.
159. Hart, supra note 75, at 560-561 regards it as Kelsen's 'central mistake' to have based monism on the principle of effectiveness.
160. Kelsen was not clear, I must acknowledge, which role the effectiveness principle had to play in his theory. It makes a very prominent appearance in a more general discussion of validity, though. See Kelsen, Reine Rechtslehre, supra note 4, at 214-215.
161. I take it that Hart explained what I call here 'validation proper' as early as at the outset of his article where he identified the 'kind of error which ... infects Kelsen's interpretation': See Hart, supra note 75, at 556.
162. See ibid., at 560-561.
163. My reconstruction of the first state is an extrapolation from the example that Hart introduces to alert readers to Kelsen's 'error': See ibid., at 556.
164. See ibid., at 562.
165. See ibid., at 561-562.
166. See ibid., at 563: 'Kelsen's arguments fail because the fact that the relationship of validating purport exists between the principle of effectiveness, treated as a rule of international law, (or any other rules of international law purporting to determine the validity of municipal law) and the rules of municipal law does not show that the latter derive their validity from the former, and does not show that "pluralists" are wrong in denying that international law and municipal law form a single system'.
167. See ibid., at 575-576.
168. See ibid., at 576.
169. See ibid., at 562.
170. Hart, without doubt, was a conventionalist. See Coleman, supra note 9, at 75-76;
171. Green, 'Positivism and Conventionalism', 12 Canadian JL and Jurisprudence (1999) 35, at 37-41.
172. The German term is 'Willensbetätigungen': See K. Larenz, Allgemeiner Teil des deutschen bürgerlichen Rechts. Ein Lehrbuch (7th ed., 1989), at 317.
173. It is a different matter, though, whether it would make sense to describe the rules of tort law as power-conferring rules. See Raz, 'Voluntary Obligations and Normative Powers', in Paulson and Paulson, supra note 61, at 451, 453.
174. See N. Luhmann, Law as a Social System (trans. K. Ziegert, 2004), at 190-191.
175. The latter would be very much in line with Kelsen's contention that the law does not have gaps. See Kelsen, supra note 17, at 146-148.
176. See Kelsen, supra note 60, at 154-159.
177. See Kelsen, Reine Rechtslehre, supra note 4, at 336.
178. This is sometimes overlooked by friendly commentators on Kelsen's work. See Zolo, 'Hans Kelsen: International Peace through International Law', 9 EJIL (1998) 306, at 309.
179. See Kelsen, Reine Rechtslehre, supra note 4, at 326, 331-332.
180. See ibid., at 330-332.
181. In the case of monism that accords primacy to domestic law, Kelsen has to take adventurous detours in order to construct state law that is contrary to public international law. It has been argued, most recently by Paulson, supra note 4, at 34-39, that Kelsen's construction is doomed to failure and that, hence, the only alternative that remains to dualism is monism that accords primacy to international law. I am not convinced.
182. Kelsen's construction, to be sure, is strange (Kelsen, Reine Rechtslehre, supra note 4, at 340). The domestic legal order is divided into two different layers, one consisting of the general rules of public international law and the other of the state's constitution. The state's constitution, i.e. the second layer, is deemed valid on the basis of the effectiveness principle, which is a component of the first. While the norms of the first layer are taken to be valid on the basis of the Grundnorm, the norms of the second layer are valid on the basis of an 'auto-recognition' by the state - a recognition, however, that has to be extended as soon as the state perceives its own legal order to be effective.
183. I do not want to deny that the construction is artificial, but I also do not see any logical flaw that would warrant the verdict 'untenable' (Paulson, supra note 4, at 39). The more interesting question is whether, in light of this construction, the distinction between two different versions of monism makes any sense. In which respect does monism with primacy of domestic law, thus understood, really differ from monism with the primacy of public international law? I wonder if the answer to this question would not turn on ascribing primordial effectiveness to the domestic legal order.
184. As mentioned above, he needs to introduce an internal differentiation of the legal order in order to account for discrepancies between the (broader) layer of law that comprises public international law and the (narrower) layer that is actually subordinate to it, even though it is part of the same domestic legal order. See Kelsen, supra note 61, at 532-533.
185. I have noted already that there is something highly artificial about domestic monism as presented by Kelsen, for it denies that the true point of such monism would be to see the broader legal order determined by its narrower counterpart. See Kelsen, Reine Rechtslehre, supra note 4, at 340-341.
186. This is a doctrine that Kelsen maintained until (or even beyond) the end of his career. See H. Kelsen and R.W. Tucker, Principles of International Law (2nd ed., 1966), at 586-587.
187. In a very thoughtful discussion of Kelsen's theory of international law, Theo Öhlinger observes that Kelsen's theory is unappealing today precisely because it tried to expel the ideologically fascinating part of legal discourse from the realm of legal science: See Öhlinger, 'Die Einheit des Rechts. Völkerrecht, Europarecht und staatliches Recht als einheitliches Rechtssystem?', in S.L. Paulson and M. Stolleis (eds.), Hans Kelsen. Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts (2005), at 160-175.
188. This observation was made by Kelsen already in his Problem der Souveränität, supra note 60, at 314-319,
189. and tirelessly repeated later in most of his writings on public international law. See Kelsen, Reine Rechtslehre, supra note 4, at 343-345.
190. See Case 26/62, Algemene Transport en Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
191. See Kelsen, Reine Rechtslehre, supra note 4, at 345.
192. Moreover, this imperialism most often rests on the fallacy that conflates sovereignty in a legal sense, that is, supreme legal authority, with the almost uninhibited power of action. See Kelsen, Reine Rechtslehre, supra note 4, at 341;
193. Kelsen and Tucker, supra note 117, at 584-585.
194. Supra note 60, at 319-320.
195. In his early work, Kelsen expressed a clear preference in favour of the creation of a world state: See Kelsen, supra note 60, at 320.
196. See J. Austin, Lectures on Jurisprudence (ed. R. Campbell, 4th ed., 1879), i, at 175,
197. and The Province of Jurisprudence Determined (2nd ed., reprint, New York: Burt Franklin, 1970) at 235.
198. See supra note 124.
199. See Hart, supra note 59, at 224.
200. See ibid., at 228.
201. Hart thought that any attempt to present the collective acceptance of a set of primary rules as evidence for the acceptance of a rule of recognition ('whatever is accepted by the international community is law') was futile. He thought, indeed, that a rule of recognition, thus formulated, would amount only to 'an empty restatement of the fact that a set of rules is in fact observed by the states': ibid., at 231.
202. This may be concluded from Hart's discussion of primary and secondary rules: See ibid., at 90-93.
203. The plural is used by Hart himself: See ibid., at 92.
204. Ibid., at 90.
205. For a useful discussion see Simma and Pulkowski, supra note 89, at 516-519.
206. See Kelsen, supra note 44, at 101: '[i]t is the essence of a legal order that it tries to bring about lawful and to prevent unlawful behaviour by coercive measures - that is, by the forcible deprivation of life, freedom, property and other values as a reaction against the violation of the order'.
207. See Kelsen, Introduction, supra note 4, at 26-27.
208. At least in his later work, Kelsen was strongly inclined to reduce the 'ought' of the imposition of the sanction to the legal power of the organ to order the coercive act, or even the right to inflict it. See, notably, H. Kelsen, Principles of International Law (1952), at 7: '[b]y the formula "ought to be applied" nothing else is expressed but the idea that if the delict is committed the application of the sanction is legal'.
209. See Holmes, 'The Path of the Law', reprinted in 110 Harvard L Rev (1997) 991 (first published in 1897).
210. See W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923), at 36.
211. I add in passing that this blind spot of Kelsen's theory explains why the critique of legal positivism that attacks the conception of discretion does not affect his version of legal positivism at all. See R. Dworkin, Taking Rights Seriously (2nd ed., 1978), at 22-45. Kelsen would have replied to Dworkin, presumably, that the type of discretion that remains applicable even to the exercise of judgement by 'Hercules' is exactly the discretion that he has been talking about, that is, the exercise of judgement that lends a political dimension to adjudication. But Kelsen's theory is far from unassailable. The centrality of the notion of the sanction explains why he would have had to have a conception of free - as opposed to coerced - willing and acting in order to have been able to explain what the law is. Kelsen never developed such a conception, as a result of which his theory of norms remains strangely blunt. Kelsen can be superseded, not by invoking some non-relativist moral theory, but by exploring the reality of freedom (i.e., the opposite of its negation through sanctions).
212. In other words, the adequate 'reply to legal positivism' would have to be given from the perspective of Hegel (and not, for that matter, per an exegesis of Radbruch; but see R. Alexy, The Argument from Injustice. A Reply to Legal Positivism (trans. B. and S. Paulson, 2002)).
213. See Kelsen, supra note 135, at 25. As he made clear a few pages before (at 21), a sanction is a coercive act and not an obligation. Hence, the duty to pay compensation for damage caused is not a sanction but another obligation the non-performance of which is backed by a sanction.
214. Again, in conceiving of norms in such a way Kelsen's theory can be tied to the philosophy of German idealism. See, e.g., Schelfing, Neue Deduktion des Naturrechts'(1796), in K.F.A. Schelling (ed.), Sämmtliche Werke (1856-1861), 1/3.
215. Hence, the idea that there can be something like 'moral rights' is nonsensical. See Somek, 'Die Moralisierung der Menschenrechte. Eine Auseinandersetzung mit Ernst Tugendhat', in C. Demmerling and T. Rentsch (eds.), Die Gegenwart der Gerechtigkeit. Diskurse zwischen Recht, praktischer Philosophie und Politik (1995), at 48-56.
216. See Kelsen, Introduction, supra note 4, at 28.
217. See Kelsen, supra note 135, at 7.
218. Kelsen, Introduction, supra note 4, at 27.
219. The nihilism underlying this image of the legal system as a perpetually norm-generating machine should not go unnoticed.
220. Kelsen, supra note 135, at 22. This question is rephrased several times on the same page.
221. Kelsen endorsed the bellum iustum theory, for he deemed it to be indispensable for attributing to public international law the quality of law. It is an essential component of this doctrine. See Kelsen, supra note 13 5, at 59;
222. Kelsen, supra note 17, at 341.
223. See also Kelsen, 'The Essence of International Law', in H. Kelsen, The Relevance of International Law. Essays in Honor of Leo Gross (1968), at 85, 86-87.
224. For a discussion see Rigaux, 'Hans Kelsen on International Law', 9 EJIL (1998) 325, at 333-341.
225. See, e.g., Kelsen, supra note 17, at 338-339.
226. In other words, Kelsen thought that the contrast between a primitive coercive order and no coercive order whatsoever was greater than the contrast between a decentralized and a non-decentraliz ed order. See Bull, 'Hans Kelsen and International Law', in R. Tur and W. Twining (eds.), Essays on Kelsen (1986), at 321, 325.
227. See Kelsen, supra note 135, at 13.
228. As a legal positivist, Kelsen was always ready to take asymmetries of power into account. He had a very 'realistic'perspective on the role that is played by the major powers in the generation of customary international law: See Kelsen anclTucker, supra note 117, at 445.
229. From a Kelsenian perspective it would be pointless to deny that the asymmetry of power affects the efficacy of sanctions. See J.L. Kunz, The Changing Law of Nations. Essays on International Law (1968), at 622: '[e]ach state is judex in causa sua, has a right of auto-interpretation of international law, a right of auto-determination of the delict and the state guilty of it must carry out the sanctions itself. Where collective security is absent, the states, for their individual security, follow the policy of armaments, alliances, and the balance ofpower. Under such a system a weak state can hardly go to war or take reprisals against a more powerful state, whereas the latter may abuse its power.'It is beyond the purview of this article to explore the question whether a legal positivist would not have to grant that public international law is for the major powers to write.
230. Kelsen, supra note 135, at 14.
231. See ibid., at 15; it should not go unnoticed, though, that as a matter of legal policy Kelsen favoured the establishment of an international court with compulsory jurisdiction.
232. See his Peace Through Law, supra note 47, at 13-14, 21;
233. Leben, supra note 41, at 290-292.
234. For a sceptical perspective on Kelsen's claim that a monopoly of force can even exist under conditions of decentralisation see Bull, supra note 148, at 329, 336. Bull contends that Kelsen ignores the force of states.
235. See Kelsen, supra note 135, at 14.
236. See Koskenniemi and Leino, 'Fragmentation of International Law? Postmodern Anxieties', 15 Leiden J Int'l L(2002) 553, at 556-562.
237. Kelsen was aware, however, that decentralized enforcement matters less than decentralized adjudication. This is reflected in his proposals in Peace Through Law, supra note 47. According to Kelsen, 'decentralization' means the decentral determination of sanctions, less so the decentral imposition. Kelsen would have surely welcomed a system of international law in which centrally determined sanctions are imposed by one state or groups of states playing the role of a world policy force. These are the steps that Kelsen advocated: First overcome primitivism of determination through centralization. Then overcome primitivism of sanction through the introduction of a police force.
238. For an argument that uses the effective interpretation principle in order to buttress and to limit self-contained regimes see Simma and Pulkowski, supra note 89, at 508-509, 512, 516, 519, 525.
239. See Kelsen, Reine Rechtslehre, supra note 4, at 323-324. The absence of a legislature is also what accounts for the primitive nature of public international law, according to Kelsen.
240. See the International Law Commission report, supra note 89, at 65-101;
241. Koskenniemi, supra note 36, at 17.
242. See Kelsen, Reine Rechtslehre, supra note 4, at 214.
243. On what it takes, according to Kelsen, to make such an 'as if' statement see Somek, supra note 16, at 72-77.
244. See Hegel, 'Enzyklopädie der philosophischen Wissenschaften', in G.W.F. Hegel, Werke in zwanzig Bänden (ed. K.M. Michel and E. Moldenhauer, 1970), viii, §60, at 143. The question is important. The normative meaning of 'sanction', that is, the legally authorized coercion of someone into doing something, would be altered if the sanction could not be enforced. To be sure, norms do not become invalid because of non-compliance. Persistent non-compliance, however, changes the meaning of what is either guaranteed or proscribed by a norm. In a world full of taboos and social restrictions, the normative meaning of liberty changes, for it can no longer be exercised. Liberty becomes a mockery of itself.
245. It would be an idealization, after all, for some degree of effectiveness would be seen as corresponding to a normative standard that is deemed sufficient.
246. See Kelsen, Reine Rechtslehre, supra note 4, at 256-258.
247. Ibid., at 256, explains that the greater the influence of adjudicating bodies is on the formulation of legal rules the more the legislature is decentralized in such a system.
248. Echoing early twentieth century debates in German jurisprudence, Kelsen refers to the system as a system of freie Rechtsfindung. See ibid., at 257.
249. Kelsen realizes that for there to be application there needs to be the generation of general norms, yet he does not perceive the dialectical challenge posed by the puzzle that a general norm might be created for each individual case. See ibid., at 258.
250. For valuable and accessible introductions to the problem see Koskenniemi and Leino, supra note 156;
251. Koskenniemi, supra note 36.
252. See, notably, Slaughter, supra note 58.
253. See infra note 177.
254. I think it is fair to attribute the more modest view to Koskenniemi. See Koskenniemi, supra note 36, at 5-6;
255. Koskenniemi and Leino, supra note 156, at 575-576.
256. For a summary see Kelsen, supra note 17, at 188-192.
257. See his 'The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy', 31 Law and Society Review (1997) 763,
258. and 'Global Bukowina: Legal Pluralism in the World Society', in G. Teubner (ed.), Global Law Without a State (1997), at 3-30.
259. See Zumbansen, supra note 35.
260. See A. Fischer-Lescano, Globalverfassung. Die Geltungsbegründung der Menschenrechte (2005).
261. See Fischer-Lescano and Teubner, 'Regime-collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law', 25 Michigan J Int'l L (2004) 999.
262. For an expanded book-length exposition of the thesis see A. Fischer-Lescano and G. Teubner, Regime-Kollisionen. Zur Fragmentierung des globalen Rechts (2006).
263. Ibid., at 1000-1001.
264. The international legal system is hence viewed as an aggregate of different regimes. See the apt characterisation by Simma and Pulkowski, supra note 89, at 502.
265. Supra note 177, at 1004.
266. Ibid., at 1007.
267. 'Regimes' are characterized by the authors as follows: '[a] regime is a union of rules laying down particular rights, duties and powers and rules having to do with the administration of such rules, including in particular rules for reacting to breaches': ibid., at 1013.
268. One is inclined to rephrase this characterization of regimes, in the spirit of H.L.A. Hart, as a unity of primary and secondary rules. For an introduction see also Calliess, 'Systemtheorie: Luhmann/Teubner', in Buckel, supra note 2, at 57, 73-74.
269. This is a very broad interpretation of what used to be called 'self-contained regimes'; however, it matches the trends in international legal scholarship. For an overview see Simma and Pulkowski, supra note 89, at 490-493.
270. See Fischer-Lescano and Teubner, supra note 177, at 1013.
271. Such a far-reaching claim is not made by Koskenniemi, supra note 36, at 23, who nonetheless observes that 'each regime is hegemonic'.
272. See Fischer-Lescano and Teubner, supra note 177, at 1006.
273. See ibid., at 1013-1014.
274. This is a strong claim, to be sure, which is unfortunately nowhere bolstered by additional arguments explaining what the purported 'contradiction' between and among 'incompatible' rationalities is all about. Is the fact, e.g., that, while economics relies on arguments from efficiency, health advocates appeal to the value of health indicative of a clash of rationalities? Or is it merely a difference in the weight attributed to the requisite normative standards? Why would such a difference in weight be tantamount to a contest of rationalities? Nowhere is it made clear in what sense a 'contradiction' is supposed to be in play here. How can there be a logical contradiction between supporting economic growth and concern for human health? Or is, again, merely a tension between different values to be observed here? Koskenniemi, supra note 36, at 23, appears to hold the latter view.
275. Similarly, it is difficult to tell the difference between what Teubner und Fischer-Lescano haughtily refer to as a 'mere compromise' on the one hand and the 'compatibilization technique' on the other, the use of which is recommended by them under conditions of fragmentation. I do not see how the recognition of non-trade values by the WTO regime allows for a 'compatiblisation' of 'rationalities' that would be decidedly different from striking a balance between trade and other values. But see Fischer-Lescano and Teubner, supra note 177, at 1030-1032.
276. From the perspective of social systems theory, this seems to imply that the legal system plays a special role in the relation of other subsystems.
277. See ibid, at 1045: '[r]ather than secure the unity of international law, future endeavours need to be restricted to achieve weak compatibility between the fragments. In the place of an illusory integration of a differentiated global society, law can only, at the very best, offer a kind of damage limitation. Legal instruments cannot overcome contradictions between different social rationalities. The best law can offer - to use a variation upon an apt description of international law - is to act as a "gentle civiliser of nations"' (in the footnote there follows a reference to M. Koskenniemi's The Gentle Civiliser of Nations).
278. See K. Marx and F. Engels, Werke (1976), ii, 33.
279. Fischer-Lescano and Teubner, supra note 177, at 1009.
280. See ibid., at 1017.
281. See ibid., at 1039.
282. See ibid., at 1044-1046.
283. See ibid., at 1024.
284. See ibid., at 1044.
285. For perceptive observations regarding the fact that for Teubner and Fischer-Lescano regimes play the role that states play for rational choice-based approaches to international law see Koskenniemi, supra note 36, at 26.
286. See ibid., at 23-24, 26.
287. See Dworkin, supra note 8, at 219.
288. See Kelsen, Introduction, supra note 4, at 55.
289. See Simma and Pulkowski, supra note 89, at 494.
290. See Dworkin, supra note 138, at 113.
291. I suspect that the same holds true in the case of Koskenniemi: See supra note 36, at 13
292. and supra note 156.
293. On Kelsen's rejection of a substantive basic norm see Paulson, supra note 4, at 30.
294. See Kelsen, Introduction, supra note 4, at 57-58.
295. See Fischer-Lescano and Teubner, supra note 177, at 1045-1046.
296. For a critique of Teubner's earlier work that also assumed something close to the incommensurability of rationalities see J. Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (trans. William Rehg, 1996), at 53-55.
297. See Fischer-Lescano and Teubner, supra note 177, at 1045-1046.
298. See Simma and Pulkowski, supra note 89, at 511.
299. See, e.g., merely in response to the book citied infra in note 213: Hockett, 'The Limits of their World', 90 Minnesota L Rev (2006) 1720;
300. Berman, 'Seeing Beyond the Limits of International Law', 84 Texas L Rev (2006) 1265;
301. Gray, 'Rule-Skepticism, "Strategery," and the Limits of International Law', 46 Virginia J Int'I L (2006) 563;
302. Swaine, 'Restoring (and Risking) Interest in International Law', 100 Am J Public Int'l L (2006) 259;
303. Hathaway and Lavinbuk, supra note 28.
304. See, generally, A.J. Bacevich, American Empire. The Realities and Consequences of US Diplomacy (2002);
305. Zemanek, 'Is the Nature of the International System Changing?', 8 Austrian Rev Int'l and European L (2003) 3.
306. See above section 4.
307. On the recklessness with which I use the term 'realism' in the text above see supra notes 22 and 31. It would be more accurate, to be sure, to refer to these scholars as atomists.
308. See supra note 30.
309. See J.L. Goldsmith and E.A. Posner, The Limits of International Law (2005), at 183.
310. See ibid., at 10-13.
311. Goldsmith and Posner, supra note 213, at 14-15, 165, 185.
312. The authors profess to apply rational choice theory to international law: ibid., at 7.
313. The conflation of compliance and validity in much of the literature on the subject needs to be noted here. For an overview of the literature that seeks to uncover the reasons for compliance see M. Burgstaller, Theories of Compliance with International Law (2005).
314. In a similar vein see A. Lasson, Princip und Zukunft des Völkerrechts (1871), at 12-17.
315. See Goldsmith and Posner, supra note 213, at 14, 205-224.
316. See ibid., at 10-12 (coincidence of interest, co-ordination, co-operation, coercion).
317. For a useful discussion see Hathaway and Lavinbuk, supra note 28, at 1416-1417.
318. See Goldsmith and Posner, supra note 213, at 13.
319. For a discussion of Lasson, who held the same view, see Kelsen, supra note 60, at 196-198.
320. See, e.g., Lasson, supra note 217.
321. It is fair to say that owing to his emphasis on relentless competition among states over scarce resources (ibid., at 8),
322. Lasson was indeed a 'realist'. On Lasson see also Koskenniemi, supra note 22, at 32-33, 182-183.
323. On right-wing Hegelianism in general see H. Lübbe, Politische Philosophie in Deutschland (1974), at 63-70;
324. on the rise of 'realism' in German public law scholarship in the late nineteenth century see ibid., at 438-439.
325. I do not mean to imply, however, that Goldsmith and Posner are sufficiently familiar with the intellectual history of the discipline in order to be aware of who their intellectual bedfellows are. A remarkable flirtation, however, can be observed for American neo-conservatives with what they take to be Hegel's political thought. See L. Harris, Civilization and Its Enemies. The Next Stage of History (2004).
326. See E. Gans, Naturrecht und Universalrechtsgeschichte (1832-1833) (ed. M. Riedel, 1982), at 105.
327. Given that Lasson published his 'realist' debunking of international law in the year of the creation of the German Empire (1871) it may be more accurate to speak of the recrudescence of 'German statism' in present-day US American doctrine. However, the German empire was clearly dominated by Prussia: See M. Stürmer, The German Empire. A Short History (2000).
328. See Lasson, supra note 217, at 55.
329. See Kant, 'Grundlegung zur Metaphysik der Sitten', in W. Weischedel (ed.), Werke in zwölf Bänden (1968), vii, at 43.
330. See Lasson, supra note 217, at 49.
331. Ibid., at 48 (my translation). The German original reads as follows: '[d]as Völkerrecht hingegen ist eine freie Abmachung unter Coordinierten, die zu halten sie nicht gezwungen werden können.
332. See E. Kaufmann, Das Wesen des Völkerrechts und die clausula rebus sic stantibus. Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriffe (1911), at 146: '[n]ot "the community of self-determined human beings" but the victorious war is the social ideal... In war, the state reveals itself in its true essence; it is its highest achievement in which its nature comes to its full fruition' (my translation).
333. A reference to these sentences is made (in a very different translation) in Koskenniemi, supra note 22, at 179.
334. On Erich Kaufmann see Kelsen, supra note 60, at 198-200, n. 3.
335. On the broader controversies over questions of legal theory between Kaufmann and Kelsen see Paulson, 'Some Issues in the Exchange between Hans Kelsen and Erich Kaufmann', 48 Scandinavian Studies in Law (2005) 2 70.
336. See Kaufmann, supra note 228, at 146, 160.
337. See ibid., at 204.
338. See ibid., at 192.
339. See ibid., at 193.
340. See ibid., at 153.
341. See, in particular, Kelsen, supra note 60
342. and supra note 18.
343. See Goldsmith and Posner, supra note 213, at 192, 202.
344. See ibid., at 153.
345. See C.M. Korsgaard, The Sources of Normativity (1996), at 102.
346. This cannot be discussed any further here. For an analysis see J. Raz, Engaging Reason. On the Theory of Value and Action (1999), at 288-292.
347. See supra note 219.
348. See Hathaway and Lavinbuk, supra note 28, at 1423, 1431-1432. As the authors explain, the same critique applies to the models themselves (at 1424): '[y]et because these models are so poorly specified, it is impossible to know what their particular claim might be, let alone how one might falsify it. This is an important shortcoming of the book, for a theory that is impossible to contradict does not provide opportunities for advancing true understanding of its subject.'
349. See Kelsen and Tucker, supra note 117, at 441: '[t]he basis of customary law is the general principle that we ought to behave in the way our fellow men usually behave and during a certain period of time used to behave. If this principle assumes the character of a norm, custom becomes a law-creating fact. This is the case in the relations of states.'
350. See Kelsen's discussion of Scelle in H. Kelsen, Auseinandersetzungen zur Reinen Rechtslehre. Kritische Bemerkungen zu George Scelle und Michel Virally (ed. K. Ringhofer and R. Walter, 1987), at 7-21.
351. On Scelle see Koskenniemi, supra note 22, at 331-333.
352. See Kelsen and Tucker, supra note 117, at 441-443.
353. See, e.g., Hathaway and Lavinbuk, supra note 28, at 1437, who regard Goldsmith's and Posner's atomism as 'emblematic of the most important trends in modern international legal scholarship'.
354. For Kelsen, the opinio juris can only be reflected in facts. Everything else would introduce a natural law component into the study of law, as a consequence of which its students would be inclined to see states acting on what they take to be the 'right' reasons. See Kelsen and Tucker, supra note 117, at 450-451: '[t]o be sure, the psychological element of custom, the opinio juris sive necessitatis may be inferred from the constancy and uniformity of state conduct.
355. Indeed, in practice it appears that the opinio juris is commonly inferred from the constancy and uniformity of state conduct. But to the extent that it is so inferred it is this conduct and not the particular state of mind accompanying conduct that is decisive.' See also Kunz, supra note 151, at 340-342.
356. On the difficulty of sorting out motives see Hathaway and Lavinbuk, supra note 28, at 1442.
357. See supra note 240.
358. Again, this is a view that they share with Lasson, supra note 217, at 42.
359. See Goldsmith and Posner, supra note 213, at 202-203.
360. Kelsen thought that the attribution of overpowering force to the state was a deferred expression of the normativity of the domestic legal order: See Kelsen, supra note 18, at 134-135.
361. See Goldsmith and Posner, supra note 213, at 7-8.
362. See Hathaway and Lavinbuk, supra note 28, at 1432-1435.
363. Goldsmith and Posner, supra note 213, at .8
364. See Keohane, supra note 22.
365. See T. Parsons, On Social Institutions and Social Evolution. Selected Writings (ed. L.H. Mayhew, 1982), at 96-102;
366. for a useful discussion of how this problem is seminal for Parsons' sociological theory see H. Joas, Die Kreativität des Handelns (1992), at 22-33.
367. Parsons, supra note 255, at 100;
368. for a useful commentary see J. Habermas, Theorie des kommunikativen Handelns, vol. 2: Zur Kritik der funktionalistischen Vernunft (1981), at 315-316.
369. Habermas is perceptive enough to extend this analysis to more recent rational choice theory. See Habermas, supra note 206, at 336-337.
370. See the classical work by E. Durkheim, Les formes élémentaires de la vie religieuse (1968).
371. See N. Luhmann, Zweckbegriff und Systemrationalität. Über die Funktion von Zwecken in sozialen Systemen (2nd ed., 1977), at 26-27.
372. See N. Luhmann, Einführung in die Systemtheorie (2nd ed., 2004), at 252-256.
373. See Luhmann, 'Funktion und Kausalität', in N. Luhmann, Soziologische Aufklärung. Aufsätze zur Theorie sozialer Systeme (4th ed., 1974), i, at 9-30.
374. See Luhmann, supra note 258, at 195.
375. See W. Sellars, Empiricism and the Philosophy of Mind (1997), at 14, 33.
376. The equivalence has been pointed out by R.B. Brandom, Articulating Reasons. An Introduction to Inferentialism (2000), at 31.
377. See Habermas, supra note 206, at 336.
378. See Goldsmith and Posner, supra note 213, at 15.
379. For a critique see Hathaway and Lavinbuk, supra note 28, at 1439.
380. See Somek, supra note 86.
381. The internal criticism of legal positivism draws on philosophy of language. See most recently Christensen, 'Wortlautgrenze: Spekulativ oder pragmatisch' [2006] Archiv für Rechts- und Sozialphilosophie (forthcoming).
382. See Himma, 'Inclusive Legal Positivism', in J. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (2002), at 125, 130;
383. but see Green, supra note 105.
384. The question that would have to be asked is whether the legal system - understood as a system of norms - is already and inescapably in demise: see Somek, supra note 86, at 100-103.
385. See Kelsen, supra note 17, at 387.