Kelsen on Monism and Dualism
Marko Novakovic, ed., Basic Concepts of Public International Law: Monism & Dualism, 322-343. Belgrade: Alter DOO and Faculty of Law, University of Belgrade, Institute of Comparative Law.
19 Pages Posted: 12 Mar 2013 Last revised: 6 Aug 2013
Date Written: March 11, 2013
Kelsen defends (a) monism, that is, the view that international law and the various state legal systems taken together constitute a unified normative system, and (b) the primacy of international law over state law within the monistic framework, arguing (c) that his analysis of the monism/dualism question undermines (what he refers to as) the dogma of sovereignty and removes a difficult obstacle to the efforts to further centralize international law. He argues in support of the (a)-claim (i) that only monism is compatible with the epistemological postulate, according to which cognition requires the unity of the object of cognition, (ii) that we must distinguish between norm contradictions and norm contrarieties, and that the norm conflicts that are said by critics of monism to undermine monism are harmless, since they are not norm contradictions, but only norm contrarieties, and (iii) that the doctrine of dualism collapses into solipsism due to its dependence on the doctrine of recognition. He argues in support of the (b)-claim (iv) that the idea of the primacy of international law within the monistic framework is necessary to account for the existence of states that are legally coordinated and separated from one another in their spheres of validity. And he argues in support of the (c)-claim (v) that there can be no sovereign states that are independent of international law and thus constitute an obstacle to the efforts to further centralize international law.
In this article, I discuss claims (a), (b), and (c), and the arguments (i)-(v) that Kelsen adduces in support of these claims. I argue (I) that while Kelsen is right that only monism is compatible with the epistemological postulate, his claim is doubtful that the norm conflicts identified by the critics of monism and put forward as an obstacle to the theory of monism are only norm contrarieties, not norm contradictions. I also argue (II) that if Kelsen had been right that these norm conflicts are only norm contrarieties, the dualists should have been able to invoke the same defense against the critics of dualism and thus avoid the criticism of dualism via the criticism of the doctrine of recognition. Moreover, I argue (III) that Kelsen’s account of norm contradictions and norm contrarieties is problematic in more than one way, and that this affects the clarity and utility of this distinction. Next I argue (IV) that Kelsen’s claim is well founded that dualism collapses into solipsism due to its dependence on the doctrine of recognition, (V) that Kelsen’s defense of monism with international law primacy is plausible, but not without its problems, and (VI) that Kelsen’s claim is plausible that there can be no sovereign states that are independent of international law. Finally, I suggest (VII) that, contrary to what Kelsen appears to think, the epistemological postulate appears to rule out locating law in a higher realm of norms and values sharply separated from the world of time and space.
Keywords: Kelsen, monism, dualism, norm conflicts, epistemological postulate, solipsism, international law, state law
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