Abstract

http://ssrn.com/abstract=2198807
 
 

Footnotes (9)



 


 



The Pure Theory of Law and Its 'Modern' Positivism: International Legal Uses for Scholarship


Jörg Kammerhofer


University of Freiburg - Faculty of Law

January 10, 2013

Proceedings of the 106th Annual Meeting of the American Society of International Law, 2012, pp. 365-367

Abstract:     
In this speech at the Annual Meeting of the ASIL, Hans Kelsen's Pure Theory of Law - the most fitting among the ‘modern’ positivist approaches - will be used to answer the question put to the panellists: ‘What use is modern positivism’? The first part focuses on Kelsen's Pure Theory of Law as a decidedly Modernist legal theory wishing to 'purify' legal scholarship. The scholarly ethos that the Pure Theory envisages for a legal science involves the cognition of law as norms without intermixing this cognition with sociological, psychological or other empirical elements. The Pure Theory of Law is a theoretical approach that wishes to instil a humbleness amongst legal scholars.

The second part tests the Pure Theory of Law with respect to a topic in international law-making that it has always had difficulties with. How does Kelsen's positivism - hinged as it is upon the existence of a real act of will as necessary condition for the positivity of norms - fare with respect to the 'obviously' un-willed General Principles of Law (GPL) in Article 38(1)(c)?

Two arguments are key for the Kelsenian take on GPL. (1) One is the fact that Article 38 is only the formulation of the lex arbitri for the ICJ, not an in any sense authoritative statement (or even rule) on the formal sources of international law. The role of a lex arbitri is fundamentally different to the meta-meta-source for all international law. (2) The key to a possible solution is the word ‘recognized’ in Article 38(1)(c). This could be understood to mean a specific recognition that principles common to the legal systems of the ‘civilized nations’ are explicitly recognised and thus created as international legal norms and not merely recognised as principle in domestic law. Here we would have acts of will creating positive international law; principles would thus be a sort of customary international law without the custom.

Number of Pages in PDF File: 3

Keywords: International Law, International Legal Theory, International Legal Positivism, Postmodernism, Herbert Hart, Hans Kelsen, Sources of International Law, Treaty, General Principles of Law, Positivism, Article 38(1)(c) ICJ Statute

Accepted Paper Series


Download This Paper

Date posted: January 11, 2013 ; Last revised: June 20, 2013

Suggested Citation

Kammerhofer, Jörg, The Pure Theory of Law and Its 'Modern' Positivism: International Legal Uses for Scholarship (January 10, 2013). Proceedings of the 106th Annual Meeting of the American Society of International Law, 2012, pp. 365-367. Available at SSRN: http://ssrn.com/abstract=2198807

Contact Information

Jörg Kammerhofer (Contact Author)
University of Freiburg (Germany) - Faculty of Law ( email )
D-79098 Freiburg
Germany
Feedback to SSRN


Paper statistics
Abstract Views: 471
Downloads: 132
Download Rank: 126,286
Footnotes:  9

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.313 seconds