Kelsen - Which Kelsen? A Reapplication of the Pure Theory to International Law
Leiden Journal of International Law, Vol. 22, pp. 225-249, 2009
25 Pages Posted: 13 Feb 2010 Last revised: 14 Mar 2016
Date Written: April 27, 2009
Hans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.
Keywords: Hans Kelsen, legal theory, monism, sanctions, UN Charter
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