International Journal of Law and Legal Jurisprudence Studies

THE GRUNDNORM VIS A VIS INTERNATIONAL LAW- Aardraa Upadhyay, Semester 6, Hidayatullah National Law University

ABSTRACT

Hans Kelsen and the Pure Theory of Law (Reine Rechtslehre) he founded has recently been subject to a revival. The main focus seems to be on the proper core of legal scholarship i.e. what the law itself says. In international law, this revival is much less marked[2] perhaps because international legal scholarship is a discipline even more steeped in pragmatism than many domestic traditions. This contribution is an attempt to carry the spirit of the Kelsen revival to the international realm. It 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 chapter is to get away from a gut-reaction against Kelsen and to avoid the stigma that is associate with his name in legal theory. This can be achieved by re-engaging with the Pure Theory of law. This chapter aims to convince on the merits in order to get colleagues to engage with the Pure Theory of Law more broadly and to apply it to Problems of International law.

 Another aim of this article is to show that international law was never a minor or neglected part of Kelsen’s writings and that his theory of international law is an integral part of the Pure Theory of Law, a theory consistently applied to the doctrine of international law, and a doctrine essential for the Pure Theory In these cases, the general legal theory of the Pure Theory of Law must be reapplied to the international legal problems of today and adapted or modified here or there. Therefore, the focus will lie in how the Pure Theory of Law – as a theoretical approach connected with, but not restricted to, Hans Kelsen’s writings – can be used for today’s theoretical challenges.

 

INTRODUCTION

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881-1973). The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. Kelsen firmly believed that if the law is to be considered as a unique normative practice, methodological reductionism should be avoided entirely. But this approach is not only a matter of method. Reductionism should be avoided because the law is a unique phenomenon, quite separate from morality and nature. The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world [3] However, the question remains as to why certain acts or events have such a legal meaning and others don’t.  Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal-normative meaning by another legal norm that confers this normative meaning on it. An act can create or modify the law if it is created in accordance with another, “higher” legal norm that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another, “higher” norm that authorizes its enactment in that way legally valid. At some stage, in every legal system, we get to an authorizing norm that has not been authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative content of this presupposition is what Kelsen has called the basic norm. The basic norm is the content of the presupposition of the legal validity of the (first, historical) constitution of the relevant legal system[4].

GRUNDNORM

Kelsen recognized that the chains of validity do not regress indefinitely and one will ultimately run out of higher authorizing valid norms. What confers validity on the system as a whole is not therefore another positive rule of law but what Kelsen called the grundnorm sometimes translated as ‘basic norm’. Kelsen described the grundnorm as the fundamental assumption made by people in society about what would be treated as law. It is not the constitution, which for Kelsen was simply another positive norm. He states that norms are regulations setting forth as to how persons are ought to behave. Hence a norm is an ‘ought ‘proposition. It does not express what is, but expresses what ought to be. Its existence can only mean its validity, and this refers to its connection to the system of norms which it forms a part. Basic norms of a positive legal system are simply the basic rules according to which the norms of the legal system are created. [5] Kelsen recognized that the Grundnorm may not be the same in every legal order, but a grundnorm of some kind will always be there. It will always be adaptable to the prevailing state of affairs.

MONISM

A key element in Kelsen’s theory of international law is monism, under which international law and national legal orders are parts of a single legal order. Each national legal order is only a partial order of the overarching legal order.[6] He deduces his primary argument from his neo-Kantian epistemological viewpoint. He always prefaces his thoughts with a caveat: the unity of the legal order is an epistemological postulate.[7] Unfortunately, he did not detail the exact implications of this. A closer analysis, thus, requires recourse to neo-Kantian epistemology, that is, to Kelsen’s theoretical, scholarly background. Neo-Kantian epistemology dictates that the method creates, or produces, the object. In other words, use of varying methods will produce varying analytical objects[8]; correspondingly, use of a single method (namely, the legal method) must produce a single analytical object.[9] It means there can be only one single legal order with single basic norm. The first of his secondary arguments also results from neo-Kantian epistemology. Conflicts between international and national law can only be resolved, either if they are conceived of as a single (non contradictory) legal order,[10] or if there were a third, higher order (to settle the conflict), which, however, does not exist. At first glance, the line of thought seems to be circular: it takes non contradiction for granted, in order to derive unity (and non contradiction, as well) from it. But, on closer inspection, the logic becomes apparent, as it deals again with the method’s power to create the object. If, indeed, the method creates the object, then the object must be a non-self-contradictory one. Viewed thus, however, this argument becomes identical with the primary argument. The other secondary argument for the unity of the legal orders is the fact of references from each legal order to the other. For example, immunity under international law is (co-)assigned by national law, namely, by the requirement that the head of state be determined according to domestic law. At this point we cannot examine whether this argument is convincing. Monism, thus, is unequivocally epistemologically, and not politically, motivated in Kelsen’s doctrine of international law.

 

THE PRIMACY OF INTERNATIONAL LAW

In contrast to the above described monism, Kelsen’s concept of international law’s primacy results from a political decision.[11] He maintains that a monistic construction with primacy of national law would be equally as logical as one with primacy of international law. In his words:

 The choice between the primacy of international law and the primacy of national law is, in the last analysis, the choice between two basic norms: the basic norm of the international and the basic norm of the national legal order. The basic norm of a legal order is a hypothesis of juristic thinking, not a norm of positive law. Such a hypothesis may or may not be accepted. It must be accepted only if one wishes to interpret social relations as legal relations. But such interpretation is only possible, not necessary. As we are free to accept or not to accept the hypothesis of a basic norm, we are free to choose between the basic norm of international law and the basic norm of national law as the fundamental basis of our interpretation of the world of law. It may be that our choice, though not determined by the science of law, is guided by ethical or political preferences. A person whose political attitude is that of nationalism and imperialism may be inclined to accept as a hypothesis the basic norm of his own national legal order; in other terms, he may proceed on the primacy of national law. A person whose sympathy is for internationalism and pacifism may be inclined to accept as a hypothesis the basic norm of international law and thus proceed from the primacy of international law. From the point of view of the science of law, it is irrelevant which hypothesis one chooses. But from the point of view of politics, the choice may be important since it is tied up with the ideology of sovereignty. The validity of state legal orders stems from international law, as international law defines what a state (i.e. a state legal order in the Pure Theory of Law) is by using the international legal principle of effectiveness. From the primacy of international law follow not only the delimiting function of international law but Kelsen’s hierarchy (Stufenbau) of sources of international law, as well. Thus, these can also, by extension, be seen as resulting from the political decision for the primacy of international law. This element of Kelsen’s system of international law, then, is clearly (as Kelsen himself admitted) political.

 The Doctrine of bellum justum

The next key element of Kelsen’s conception is the doctrine of bellum justum. Under this doctrine, war is either a delict (that is, an offence against international law) or a sanction.[12] In the latter case, one speaks of bellum justum. Here, Kelsen seeks to prove that international law is, indeed, a coercive order. For, according to Kelsen, a legal order must, by definition, also be a coercive order, i.e. if there was no coercion behind the international law, then it would not be ‘law’.[13] And coercion, for Kelsen, includes necessarily physical force. One could question this narrow definition of coercion or simply point out the discrepancy between international law (at that time) and this doctrine; however, this would at most only reveal the doctrine as wrong, not as political. The doctrine flows from Kelsen’s strict definition of law (that is, the legal order as a coercive order, and coercion as physical force), not from a political decision (as, for example, from the desire to tame or subdue war). It is, thus, classified as nonpolitical.

APPLICATION OF PURE THEORY OF LAW TO CURRENT PROBLEMS OF INTERNATIONAL LAW

Perhaps the most salutary feature of the Pure Theory of Law for the analysis of international law is its ordering function. The hierarchical model Kelsen uses to explain the interrelationship of norms (the Stufenbau) can be used to great advantage in bringing order to the somewhat muddled positions the doctrine of international law holds both on the sources of law and on the mechanics of norm-relationships.

Hence, the following will be an exposition of international law’s ‘constitution’ in a specific sense: The highest echelons of a positive legal order, what Kelsen termed ‘constitution in the material sense’.[14] In this sense, the sources of international law are the foundation of the international legal order (Section 6.2.1) and the rules and mechanisms of other norm-relationships serve as the operating principles of international law (Section 6.2.3). The notion of ‘sources’ is a relativistic concept. Sources are empowering norms authorising humans to create norms.[15] An empowering norm’s function is to identify the norms created under it and therefore belonging to it: ‘A norm belongs to a legal order only because it is created under the terms of another norm of the same order.’ In a sense, the Pure Theory is nothing but a theory of sources, for its construction of normative orders depends upon the authorisation to create norms. If a norm’s validity can only be based on another norm, then a connection between norms is established, one based on one norm’s validity being dependent upon another norm. The question ‘Why ought I to obey this statute?’ is answered by reference to the norm that has authorised its creation. The ‘higher’ law empowers law-creation; that empowerment is the reason the resultant law is valid. Creation establishes a ‘hierarchy of legal conditionality’. If, and only if, all conditions imposed by the meta-law on law creation are met, can the norm created be recognised as a norm of the normative ordering question and only then can the norms be ordered in a multitude of spheres between delegating and delegated norms. .While international law necessarily has a Stufenbau, here we do not have the problem of a highly complex network, but of the apparent lack of any rules on rule-making. The hierarchy of legal conditionality is a necessary element of all normative orders: every normative order has at least two layers of norms; it has at least the positive norm created and the presumed (quasi-fictional) Grundnorm. If ‘A’ had never issued a norm and would do so now, this norm would only be conceivable as a norm if the Grundnorm: ‘Follow A’s orders’ were presupposed.  Determining the source of law is a crucial questions of international law. We seem to take international treaty law, customary international law and ‘general principles of law’ as sources without asking why they are part of the normative order ‘international law’. If we combine the notion of ‘constitution’ as the highest echelon of authorising norms in a given normative order (in international law traditionally treaty law and customary law) with the notion of the hierarchy of norms (Stufenbau), at least the correct question to ask in response to the one above appears almost automatically: What norm of international law authorises the creation of law. According to the Pure Theory of Law we must find positive norms of international law that create source-law (such as the law on custom-creation).How we are to proceed depends upon the answer we can give and either we find a positive norm authorising source-creation, or we do not. This is a prime example of the self-chosen limits of the Pure Theory: positivist international lawyers will have to do research on the positive-legal bases of the sources and in no case should they assume content. They cannot, for example, simply take Article 38 ICJ Statute as an authoritative statement of the sources[16] simply because it is generally accepted as such.  Here, the Pure Theory of Law can help in debunking the myths through its emphasis on the analysis of positive law. If a scholar’s idea – or even the prevalent opinion – of what constitutional norms should have as their content conflict with the positive legal regulation, the Pure Theory helps us realise that the positive law is the positive law. No amount of presupposition of ‘necessary constitutional functions’ will magic elements of (domestic) constitutional law – such as a mandatory protection of individual rights – into being for international law if positive international law does not support it. Here, Kelsenian theory clarifies the issue: scholarly opinion camouflaging as ‘absolute values’ does not make, change or destroy positive law.

 

CHAPTER VII OF THE UN CHARTER AND SECURITY COUNCIL ACTION

The following is a discussion of elements of the Pure Theory’s construction of Chapter VIIof the UN Charter. While Kelsen’s own writings retain their usefulness but are concerned with notions which are regarded as ‘outdated’ nowadays and which are best seen through a re-application of the Pure Theory of Law’s general theory rather than discussed by reference to Kelsen’s own Law of the United Nations (1950)[17] or similar specific pieces. Kelsen himself constructs Chapter VII in light of two theoretical concepts: the coercive order paradigm (Zwangsnormpostulat) and a reformulated bellum iustum doctrine. The coercive order paradigm is Kelsen’s answer to the question of what distinguishes legal orders from other kinds of normative orders. ‘A feature common to

societal orders designated as law is that they are coercive orders in the sense that they

react to anti-social “facts”, especially to such human behaviour, by [prescribing] an evil’,[18] i.e. sanctions. Thus, coercion prescribed as reaction against certain behaviour is the distinguishing feature of law. Kelsen saw the application of the coercive order paradigm to international law as rooted in a simplified and secularised version of the bellum justum doctrine:[19] ‘Without the so-called principle of “bellum justum” there is no international law’. If there is a total prohibition on the use of force which includes the possibility of justifying forcible actions as sanctions, international law would truly be law.Kelsen sees the bellum iustum principle embodied in Chapter VII, yet in Law of the United Nations he gives two alternative interpretations of its provisions. In the first interpretation the enforcement measures under the Charter cannot be characterised as ‘sanctions’, because they are not necessarily a reaction against a state violating the Charter. The ‘threat to the peace, breach of the peace, or act of aggression’ clause in Article 39 is not a prohibition and the Security Council may determine that situations constitute a threat to the peace and it might also order measures against a state not

having violated its obligations under Article 39.

The Council is also not obligated to initiate enforcement measures against a state which has used force. Kelsen argues:

‘The enforcement actions taken under Article 39 are purely political measures, that is to say, measures which the Security Council may apply at its discretion for the purpose to maintain or restore international peace.’ Under the other interpretation of the Charter, ‘enforcement actions determined by Articles 39, 41 and 42 must be interpreted as sanctions’. Transposing the bellum iustum doctrine to the UN Charter regime, measures under Article 41 play the role of reprisals while enforcement under Article 42 fulfils the function of war.  Kelsen insists that Article 41 measures can only be interpreted as sanctions, because ‘reprisals are permissible only against a violation of international law’, the nature of Article 42 measures are disputed. If ‘threats to the peace’, ‘breaches of the peace’ and ‘acts of aggression’ are indeed prohibited, the (tenuous) connection is that the term ‘in any manner inconsistent with the Purposes of the United Nations’ in Article 2(4) refers to the phrase ‘to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace’ in Article 1(1), which again refers to the clause in Article 39.128 He further concludes that if force is prohibited unless it constitutes a collective response (measures under Article 41 and 42), then Article 39 becomes – via Articles 1(1) and 2(4) – a prohibition: it prohibits threats to the peace, breaches of the peace, or acts of aggression by authorising sanctions under Articles 41 and 42.129. It is also submitted that eliminating the coercive order paradigm from the interpretation of the Charter is more in keeping with the Pure Theory of Law’s basic assumptions about the nature of law and norms. Thus, law’s classification is a matter for sociological methodology and to make law dependent on its coercive elements means making it dependent on facts. This would violate Kelsen’s own dichotomy of Is and Ought and it is thus best omitted. Therefore, a reconceived Chapter VII does not conform to the bellum iustum doctrine. ‘Coercive actions’ by the Security Council need not exclusively be directed at member states violating their obligations under the Charter131 and are thus not necessarily a response to a wrong. Article 39 is not formulated as a prohibition and Security Council action is not directed specifically against acts fulfilling the terms of the clause in that article, or even to redress Article 39’s ‘violation’.[20] The Council’s freedom to find concrete occasions for enforcement also undermines the application of a strict concept of law-enforcement. The measures under Article 41 and 42 cannot be seen as sanctions in the Kelsenian sense of the word. The Charter’s Preamble and Article 1(1) make quite clear that the goal of the Charter VII mechanism is not to enforce the law, but to maintain international peace and minimise the use of force. In the realm of norms, the resolution as norm is valid or is not. It is valid only if the concretisation of the conditions for law-creation chosen by the Council is a possible meaning of that meta-law; it is not if the Council has chosen a meaning that is not covered by the meta-law. To give a concrete example: arguably, the term ‘concurring votes’ of the permanent members in Article 27(3) can only mean a positive response (a ‘yes’ vote), not an abstention, because silence does not equal consent. If that is the limit of the possible meanings of that term in Article 27(3) – and, admittedly, it is not even clear what the possible meanings of that term are – no putative resolutions passed with abstentions by permanent members have actually become norms. Yet, as can easily be seen under the Pure Theory’s sharp analytical gaze, the problem lies more in our capacity to cognise, i.e. with epistemics. This makes for great factual uncertainty and for the factually unlimited nature of limits for Council action, as can be seen from the Council’s expansive use of the term ‘threat to the peace’. Legally speaking, there are restrictions though. If a situation is not a ‘threat to the peace, breach of the peace, or act of aggression’, it is not. The Pure Theory of Law, however, clarifies the nature of the limits of the Council’s powers, of the consequences of ultra vires action and identifies perceptibility as the true problem in this respect.

CONCLUSION

The Pure Theory of Law deserves to be more widely known among international lawyers. More importantly, it deserves to be more widely applied to concrete problems of international law. Its ‘common legal sense’ approach provides a connection of concrete problems of doctrine to its theoretical dimension, more so, it is submitted, than any other theory, because the Pure Theory alone focuses on the legal core of these problems. It is thus the ideal theory for those concerned with positive international law, rather than with political ideals. The Pure Theory’s greatest advantage lies in the dual tracks of deconstruction and construction. While many other theories are either proficient at criticising elements of law from a particular ideology or at constructing an uncritical edifice of law, Kelsen’s ‘critical’ positivism combines both elements – and does so admirably well. In showing no tolerance for the pragmatic fudging of the positive law whenever the strict application of law would not lead to the desired outcome, in uncovering hidden politico-moral elements in scholarship as external to the law in force, and in pointing out the ‘real’ legal-theoretical dimension behind ostensibly uncomplicated dogmatic arguments, it deconstructs the notion of a clear and pragmatically usable international law. In developing the notion of normative orders based on the dichotomy of Is and Ought, of reality and norm, in hierarchically ordering norms by virtue of the norm-creation relationship and thus constructing a constitution of international law based on points of law rather than perceived necessities of content or in reducing the problems of erroneous law-creation to its legal core, it constructs a scholarship of law based only on the law and clarifies the legal issues and legal problems where they exist and shows many other ‘problems’ to because by extra-legal factors and thus to be void. In this light it is to be hoped that the Kelsen revival mentioned at the beginning of this chapter will strengthen and extend to international legal scholarship.

REFERENCES

1)     Martti Koskenniemi ‘The rise and fall of international law’, 1870–1960 (2002).

2)     Introduction to the Problems of Legal Theory, B.L. Paulson and S.L. Paulson, trans., Oxford: Clarendon Press.

3)     General Theory of Law and State, A. Wedberg, trans., New York: Russell & Russell.

4)     Kelson Hans , General Theory Of Law And State (trans Andes Wedberg, 1945) at 56.

5)     H. Kelsen, Reine Rechtslehre 16 et seq. (1934) at 138, 150

6)     Kelsen, Das Problem der Souveränität,

7)     H. Kelsen, Unrecht und Unrechtsfolge im Völkerrecht,

8)     Hans Kelsen, The Legal Process and International Legal Order 13 (1935)

9)     Hans Kelsen, Principles of international law (1952)

10)R.S. Pathak, ‘The general theory of the sources of contemporary international law’,  Indian  Journal of International Law (1979)

11)Hans Kelsen, The law of the United Nations. A critical analysis of its fundamental problems (1950).

12)Danilo Zolo, ‘Hans Kelsen: international peace through international law, 9 European Journal of International Law (1998}

 

 

 

[1] Aardraa Upadhyay, Semester 6, Hidayatullah National Law University

[2] Though cf. the sympathetic moves shown in: Martti Koskenniemi., The gentle civilizer of nations. The rise and   fall of international law, 1870–1960 (2002).

[3] 934/2002. Introduction to the Problems of Legal Theory, B.L. Paulson and S.L. Paulson, trans., Oxford: Clarendon Press

[4] 1945/1961. General Theory of Law and State, A. Wedberg, trans., New York: Russell & Russell.

[5] Kelson Hans , General Theory Of Law And State (trans Andes Wedberg, 1945)

[6]H. Kelsen, Reine Rechtslehre 16 et seq. (1934)

[7]See Kelsen, Das Problem der Souveränität, ,See also Kelsen, General Theory, :“The unity of national law and international law is an epistemological postulate.” “It is logically not possible to assume that simultaneously valid norms belong to different mutually independent systems.”

[8] Kelsen, Das Problem der Souveränität.

[9] D. Zolo, “Hans Kelsen: International Peace through International Law”, 9 EJIL (1998) 306, 323: “Kelsens’s monistic assumption stands or falls with the neo-Kantian philosophy from which it derives.” In support of neo-Kantian concepts, the Vienna School also implemented developments in the theory of modern physics. See A.Verdross, Die Einheit des rechtlichen Weltbildes, at V (1923) (quoting Max Planck, Die Einheit des physikalischen Weltbildes, 1909)

[10] Kelsen, General Theory :

If there should be two actually different systems of norms, mutually independent in their validity …

both of which are related to the same object (in having the same sphere of validity), insoluble logical

contradiction could not be excluded. The norm of one system may prescribe conduct A for a certain

person, under a certain condition, at a certain time and place. The norm of the other system may

prescribe, under the same conditions and for the same person, conduct non-A. This situation is

impossible for the cognition of norms.

[11] For a detailed analysis, see, e.g., H. Kelsen, ‘Die Einheit von Völkerrecht und staatlichem Recht’, in

Abhandlungen zum Völkerrecht. FS Aleksandr N. Makarov, . (1958).

[12] H. Kelsen, Unrecht und Unrechtsfolge im Völkerrecht, at 583 . (1932).

[13]Hans Kelsen, The Legal Process and International Legal Order 13 (1935): “whoever rejects the theory of the iustum bellum denies the legal nature of international law.”

[14] Kelsen (1960) at 228; Rudolf Aladár Métall, ‘Skizzen zu einer Systematik der völkerrechtlichen Quellenlehre’,Zeitschrift für öffentliches Recht (1931) 416–428 .

[15] Hans Kelsen, Principles of international law (1952) 303.

[16] R.S. Pathak, ‘The general theory of the sources of contemporary international law’,  Indian

Journal of International Law (1979) 483–495 at 484

[17] Hans Kelsen, The law of the United Nations. A critical analysis of its fundamental problems

(1950).

[18] Hans Kelsen, Reine Rechtslehre (2nd edn. 1960)

[19] Danilo Zolo, ‘Hans Kelsen: international peace through international law, 9 European Journal of International Law (1998) 306–324 at 312.

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