Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems
Leiden Journal of International Law, Vol. 23, pp. 723-740, 2010
15 Pages Posted: 13 Mar 2010 Last revised: 23 Nov 2010
Date Written: March 13, 2010
While today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalisation, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound methodologies; that scholarship claims competencies which it does not have and that this confusion diminishes the benefits of the constitutionalist project for international law. The key problem is called a ‘methodological circle’: scholars call some-thing a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen’s arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the re-discovery of a strictly legal, i.e. structural, constitution as highest echelon of legal regulation.
Keywords: Constitutionalism, Pure Theory of Law, Hans Kelsen, Practical Reason, UN Charter
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