Hans Kelsen’s Place in International Legal Theory
RESEARCH HANDBOOK ON THE THEORY AND HISTORY OF INTERNATIONAL LAW, pp. 143-167, Alexander Orakhelashvili, ed., 2011
25 Pages Posted: 12 Jan 2010 Last revised: 26 Sep 2011
Date Written: April 8, 2011
This paper seeks to apply the Pure Theory of Law to some of the current problems of international law and thus to endow that theory with a new usefulness that Kelsen is not usually accorded by current international legal scholarship. Another goal of this paper is to get away from a gut-reaction against Kelsen and to avoid the stigma that is associated with his name in legal theory. This can be achieved by re-engaging with the Pure Theory without placing undue emphasis on polemic defence or attack and by thoroughly ‘modernising’ the topics discussed.The Pure Theory of Law will be applied a-contextually and a-historically to problems of practice.The focus will lie in how the Pure Theory of Law - as theoretical approach connected with, but not restricted to, Hans Kelsen’s writings - can be used for some of today’s theoretical challenges.
Keywords: Hans Kelsen, international legal theory, international constitution, norm conflict, lex posterior maxim, Article 103 UN Charter, scientificality
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