INTERNATIONAL AFFAIRS

Kelsen's Theory of International Law. Among legal philosophers, the

time-honored dispute between natural-law schools and legal positivists
arouses ever new interest. On the side of the positivists, the "pure theory
of law" gains more and more ground. This theory is mainly represented
by Professor Hans Kelsen, formerly of Vienna, now of Geneva, and by
Professor Alfred von Verdross, of Vienna.1 In America, systematic con-
sideration was first devoted to it by Dr. Johannes Mattern,2 who an-
alyzed Verdross's thinking; later, Dr. Josef L. Kunz,3 one of the foremost
followers of Kelsen, took up the discussion, emphasizing the importance of
the theory for a scientific basis of international law; and quite recently an
article by Dr. Henry Janzen4 dealt with legal monism as the basis of the
"pure theory of law."
No American publication, however, takes account of Kelsen's newest
book, Reine Rechtslehre.6 To be sure, an English version of a contemporane-
ous article by Kelsen6 reflects the ideas of his German book. But, un-
fortunately, Kelsen's article fails to expound the most important part of
his philosophical structure: the "pure theory" in its relation to inter-
national law.7 It is this phase of Kelsen's latest work to which the present
discussion is devoted.
Professor Kelsen conceives law as a hierarchy. The constitution stands
above the statute, the statute above the ordinance, and any norm-setting
organ is a higher organ than one which does not set norms but merely
applies them. According to Kelsen, it is not the legal order of states that
1
The school of the "Pure Theory of Law" is often called "Austrian School" or
"Vienna School."
' Concepts of State, Sovereignty, and International Law (1928), pp. 121 ff.; "Alfred
Verdross' Concept of the Unity of the Legal Order on the Basis of the International
Constitution," in Methods in Social Science (ed. by S. A. Rice), pp. 118 ff.
' "The Vienna School and International Law," New York University Law Quar-
terly Review, March, 1934, pp. 370-421.
4
"The Legal Monism of Alfred Verdross," in this REVIEW, June, 1935, pp. 387-
402.
6
Reine Rechtslehre, Einleitung in die rechtswissenschaftliche Problematik (1934).
A short review of this book by Dr. Josef L. Kunz will be found in the American
Journal of International Law, April, 1935, pp. 356-357.
6
"The Pure Theory of Law; Its Method and Fundamental Concepts," trans.,
with an introduction, by Charles H. Wilson, in Law Quarterly Review, October, 1934,
pp. 474-498; July. 1935, pp. 517-535.
7
On this part of the "Pure Theory of Law," see also J. Walter Jones, "The
'Pure' Theory of International Law," in British Year Book of International Law
(1935), pp. 5 ff. This illuminating study seems to have been written without the
author's knowledge of Professor Kelsen's newest book.
736
 INTERNATIONAL AFFAIRS 737

occupies the highest stage in the hierarchy of law; it is international law

that tops the pyramid. Interstate relations are, according to him, gov-
erned by law just as are intrastate relations. For Kelsen, the positivist,
international law is like any other law, and he rejects theories of interna-
tional law which employ terms like "rights of mankind" or "justice."
International law is, according to him, a system of norms which became
such by custom. Thus international law is, in the first place, customary
law. One norm of this customary law, however, is the rule "pacta sunt
servanda," which is the basis of international treaty law.8 Hence Kelsen
opposes the dualistic contention that only the consent of states creates
international law and that the norms of international customary law are
arrived at by a process of tacit consent. This theory is opposed by Kelsen,
the monist and purist, because of its attachment to the conception of
state sovereignty and because treaties are generally valid even when the
will of the parties to be bound by treaties has vanished.9
As stated before, according to Kelsen, international law is law like any
other law—for instance, like state law; it obligates and authorizes in-
dividuals. The norms of international law have the same characteristics as
those of state law. Therefore, the norms of international law can be an-
alyzed by the same method which is used for the analysis of norms gen-
erally; and this analysis leads Kelsen to the positing of an act of com-
pulsion as the consequence of certain factual conditions which are con-
sidered illegal actions. In international law, reprisals and war are those
acts of compulsion which are consequences of illegal actions.
But the international order still forms a primitive legal order, com-
parable to that of pre-state communities. It is the members of the inter-
national legal order themselves, not a legislative body, which determine
the norms. In most cases, the question whether a norm has been violated
is decided by the party which charges the violation, not by a judicial
organ. It is the party to the dispute determining the guilt of its adversary,
not an executive organ, which applies the measure of compulsion (re-
prisal, war) as a consequence of the legal wrong.
This primitive, or "decentralized," status of the international legal
order, argues Kelsen, is gradually being overcome. The international
legal order, pace by pace, institutes its own organs; some day it will
8
Verdross prefers the following rule to "pacta sunt servanda": "Communities,
sovereign or part sovereign, regulate your conduct in your relations with one an-
other according to the generally recognized principles of law, so far as they have not
been modified by rules which international usage has established as valid." Alfred
Verdross, "Die allgemeinen Rechtsgrundsatze als Volkerrechtsquelle," in Gesell-
schaft, Staat und Recht (edited by Alfred Verdross), 1931, pp. 354 ff. Translation
by J. Walter Jones, loc. dt., p. 11.
9
J. Walter Jones, loc. dt., p. 19, dwells largely on this argument.
738 THE AMERICAN POLITICAL SCIENCE REVIEW

no longer be necessary that states act in the r61e of intermediaries be-

tween the international legal order and the individual. At present, how-
ever, the "centralizing" process is perceivable only in particularist com-
munities of the international legal order, and, as was the case in the pre-
state period, first in the field of jurisdiction.
A verdict by an international judicial tribunal, Kelsen holds,10 signifies
the ascertainment of the "obligation to compensate for damage done; . . .
should the law-breaker refuse redress, decline to submit to the ruling of
the court, thereby adding yet another breach of the law to the original
violation," the executionary measure will be applied to the law-breaker.
Thus Kelsen is able to conceive the present international status as a
legal order, to wit, as a primitive, "uncentralized," legal order. The last
step in the process of centralization will, if we follow the author, be an
organic unity and a universal community of law—a world state. But
even today Kelsen, as monist, conceives the international order and the
legal orders of the single states as a unitary system, and international law
as the hypothetical basic norm of the legal order.11 If one recognizes
different legal orders, he argues, one has to recognize one order as higher
than others; and, he asserts, the international legal order is the highest
order of all.
Kelsen, the monist, defends this contention vigorously. To deny his
view, he declares, means to deny the legal coordination of the legal orders
of single states. Such denial implies exclusive recognition of the single
state order and acceptance of the standpoint of primitive peoples who
regard strangers as barbarians. Dualists try to overcome such a solipsism
and state-subjectivism by asserting that the coordination of the legal
orders of single states is guaranteed by the mutual recognition of the
states. Kelsen insists that dualists draw the consequences from their
deductions and conceive the mutual recognition of states as a mutual
grant and delegation of authority to create norms. Thus it appears that
even those who do not consider international law as the highest phase of a
system of law ought to arrive at a unitary conception of the legal order.12
10
"The Legal Process and International Order," The New Commonwealth, May,
1934, pp. 104-105, June, 1934, pp. 122-123. The same article in German: "Die
Technik des Volkerrechts und die Organisation des Friedens," Zeitschriftfiir offent-
liches Recht, 1934, pp. 240-255. French translation: "La Technique du droit inter-
national et l'organisation de la paix," Revue de Droit International et de Legislation
Compare, 1934, pp. 5-24.
11
Verdross considers it an axiom rather than a hypothesis to conceive interna-
tional law as the basic norm. "Le fondement du droit international," in Academie
de Droit International, Recueil des Cours (1927), Vol. 1, pp. 247 ff.
12
In fact, Hans Morgenthau arrives at this conclusion, La realite des normes,
en particulier des normes du droit international (1934), p. 218.
 INTEBNATIONAL AFFAIRS 739

Kelsen concedes that from a purely logical viewpoint it is permissible

to regard either international or state law as the basic law. Nevertheless,
he advocates his own theory in view of the consequences of a contrary
reasoning which would make international law dependent on state law
and so deny that international law is law.
The denial of the unity of legal orders is often based on the alleged
contradiction between international law and state law. The alleged con-
tradiction, however, turns out to be merely a conflict between higher and
lower norms.13 In state law, a lower norm which is incompatible with a
higher norm is usually not void in itself, but it is generally annihilable;
also a norm of state law which is incompatible with international law is
annihilable, provided that particularist norms provide for its annihilation.
According to Kelsen, it is international law which, as superior law,
delimits the spheres within which the norms of single states are valid.
It is international law which coordinates and delimits the legal orders of
the single states. Thus it is no longer correct to speak of the "competence
of competence" of states. But as long as international law has not taken
hold of a subject-matter, states may exercise their jurisdiction over that
subject. In doing so, states act as organs of the international legal com-
munity; if they conclude treaties with each other, they do so as organs of
the international community.
The universal legal system which is conceived as an eventuality by
Kelsen is at this time only intellectually discernible. But Kelsen, the
purist, insists that its conception frees the states from the dogma of
sovereignty and brings them into a system of relationships. By the
elimination of the dogma of sovereignty, the "pure theory of law" turns
against an imperialistic ideology which is hostile to international law,
and champions a centralized international organization. The possibility
of such a political effect, Kelsen concludes, does not impair the theoretical
value of the "pure theory of law," just as the importance of natural sci-
ence ir not impaired by the fact that it makes possible the establishment
of technique.
Kelsen considers himself a positivist in his aversion for natural law, a
monist in his attack on conceptions of state sovereignty, and a purist in
his endeavor to deal with an abstract body of law. But subconsciously
he is also a deontologist, i.e., a philosopher who sees only human duties,
obligations, perhaps also authorizations, but no rights. Thus it is clear
that Kelsen's "pure theory of law" is as well a positivistic, monistic, and
deontological theory as a pure theory of law.
It is neither desirable nor possible to deal in this study with all the
13
J. Walter Jones, loc. cit., p. 12, deviates on this point from Kelsen.
740 THE AMERICAN POLITICAL SCIENCE REVIEW

arguments which have been advanced in the discussion of Kelsen's

positivism, monism, and purism.14 Nevertheless, in the following remarks
an attempt is made briefly to review such arguments and to examine
Kelsen's deontological conception.
In his positivism, he tries to establish a basis for international law
which is free from concepts of an absolute natural law.16 Assurances of
"natural rights" (of which individuals or states cannot be deprived)
sound strange in a time in which revolutions sweep away so-called "un-
alterable rights" and in which such revolutionary measures are recognized
as creating law. But other legal problems which are caused by the em-
ployment of higher law concepts in legal life, as, for instance, the problem
of "equity" in national and international adjudication—problems which
necessarily involve the conflict between the school of natural law and
the positivists—are overlooked or denied by Kelsen.
Kelsen also claims to have built up a "pure" theory of law. An "im-
pure" theory of law is, according to him, a theory which includes in-
gredients of psychology and biology, ethics and theology, or a theory
which is consciously or unconsciously based on "ideologies," as, for in-
stance, on imperialistic conceptions. But analytical jurists have always
tended to separate law from other sciences, though most of them would
not attempt to consider a legal system as something absolute, as an air-
tight system, without consideration of the man whom it concerns. It is
evident that Kelsen rejects imperialistic ideologies in order to substitute
his own internationalist ideology. In his Reine Rechtslehre, he admits
that the reason he attaches so much importance to his theory of interna-
tional law is that it destroys the imperialistic "dogma" of sovereignty,
permits a unitary legal conception of the world, and might serve to create
a world organization. Hence, Kelsen did not succeed in developing a
" For a bibliography of the "Pure Theory of Law," see Dr. Rudolf Aladar
Me'tall, Bibliographie der Reinen Rechtslehre; Appendix to Kelsen, Reine Rechtslehre,
pp. 155-222.
14
Modern philosophers tend to differentiate between absolute natural law, rela-
tive natural law, and positive law. While adherents of the school of natural law
usually divide law into two classes, the partition of law into three classes goes back
to /. de jure nat. (1, 2) and to Thomas Aquinas' Summae Theologiae, I, 2, q. 91,
art. 2-4, and I, 2, q. 94, art. 4. To the degree to which modern writers recognize
divine or eternal law, they speak of "absolute natural law. " They conceive of consti-
tutional, statutory law, decrees, ordinances, judge-made law (as far as there is such),
and customary law as "positive law." "Relative natural law" is considered as law
superimposed on positive law. It contains, for instance, "the general principles of
law recognized by civilized nations" (Article 36, Statute of the Permanent Court
of International Justice). It furnishes the basis for a judicial decision ex aequo et
bono. Relative natural law, therefore, is a body of norms which are conceived to be
the standard of the legal life of a people or a family of nations at a certain period.
 INTERNATIONAL AFFAIRS 741

"pure" theory of law any more than other philosophers before him.18
But this failure, taken in itself, would not impair the value of his theories.
As stated by Mr. Jones:17 ". . . if in justifying the supremacy of inter-
national law by reference to ethical and political postulates, Kelsen, like
Austin in his digression into Utilitarianism, leaves his chosen path of
logical deduction, this at least may be said—that without his ideal of
an international community, international law would never have come
into existence."
Kelsen's conception of a unitary legal system, headed by international
law, has been criticized both often and sharply. Even though many
would be inclined to accept a monistic legal theory, the fact cannot be
overlooked that, according to Kelsen's own statement, the choice of inter-
national law as the hypothetical fundamental norm is purely arbitrary.
It has been said of Kelsen's reasoning18 that it "seems to fly in the face
of the facts of the present day." But only the future can tell whether or
not Kelsen idealized the present international status.
It remains to consider Kelsen's deontological conception. As purist,
Kelsen believes that he has eliminated the ideological element from his
legal theory. He is led to his deontological conception by his Neo-Kantian
schooling, and his views are a reaction to a time in which insistence on
rights was usual and in which duties to the community were neglected,
or even, as in international life, denied. Kelsen turns from a conception
which over-emphasizes rights to a theory which considers duties, obliga-
tions, as primary norms, and authorizations (Berechtigungen) as second-
ary norms. From a purely logical point of view, these secondary norms
are even irrelevant for Kelsen's theory. One may raise the question
whether a legal system which balances rights and duties would not be of
greater service.
Thus, a relativist approach to the questions involved might force one
to question Kelsen's success as positivist, to discard his purism as well as
his deontological conception, and to refer his monistic conception of the
world order to the field of political speculation. Nevertheless, the author
of the Reine Rechtslehre must be credited with at least one achievement.
With the irresistible force of exact logical reasoning, he analyzes weak
points in present-day juristic conceptions and thus contributes to steady
advancement in legal philosophical thinking.
W. B. STERN.
Johns Hopkins University.
16
See Karl Bergbohm, Jurisprudenz und Rechtsphilosophie (1882), Vol. 1, p. 279-
17
Loc. cit., p. 19.
18
J. Walter Jones, loc. cit., p. 13.