The Benefits of the Pure Theory of Law for International Lawyers, or: What Use is Kelsenian Theory?
International Legal Theory, Vol. 12, pp. 5–54, 2007
17 Pages Posted: 17 Jan 2010
Date Written: August 22, 2006
What use is Hans Kelsen’s Pure Theory of Law (Reine Rechtslehre) for an international lawyer? None, one is tempted to say, if one looks at major text-books, the International Court of Justice or even the ILC’s recent excursion into theory. However, it is not primarily Kelsen the international lawyer whom I consider in this respect, but Kelsen the legal theorist. In the first part of the article, I will present the core features of the Pure Theory of Law. It is in these tenets that the reader will find an impressive ‘armoury’ - not only effective for criticising other theories, but also for constructing a consistent theoretical superstructure. The second part is concerned with the application of the Pure Theory of Law to the construction of international law and to the issues facing today’s international lawyer. Both Kelsen’s own views as well as my re-application of my interpretation of the Pure Theory to international law will be discussed in that section.
Keywords: Hans Kelsen, Pure Theory of Law, International Law, constitution, sources, Is-Ought dichotomy, sovereignty, subjects of international law
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