The Timeless Concept of Law: Observations on Hans Kelsen's Law and Peace in International

Relations
Author(s): Ervin Hexner
Source: The Journal of Politics, Vol. 5, No. 1 (Feb., 1943), pp. 48-64
Published by: The University of Chicago Press on behalf of the Southern Political Science
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 THE TIMELESSCONCEPTOF LAW*
Observationson Hans Kelsen's Law and Peace in
InternationalRelations
ERVIN HEXNER
University of North Carolina
In the first of the Oliver Wendell Holmes Lectures, 1940-
41,1 Professor Hans Kelsen introduces the discussion of the
nature of international law by posing the question, " . . . are
the rules called international law to be regarded as 'law' in
the same sense as those norms that are considered 'law'
par excellence, the rules of national law?" And because the
answer to this question depends upon how one defines law,
he proceeds to state the general concept of law. Rather than
defining law arbitrarily, Kelsen bases the definition of law
on common usage (or on the usual meaning of the word),
insofar as this usage distinguishes the concept of law from
the concepts of other social phenomena. He takes it for
granted that there exists a general concept of law "whose
extent coincides by and large with the common usage..
Kelsen recognizes that concepts of law may be limited to
definite periods of time, to certain geographic regions, or to
specific social doctrines; these limitations, however, result
in narrower concepts of law than a general concept based on
common usage. Thus he interprets the idea of common
usage in the broadest sense, i. e., as universal, without con-
sideration of the limitations of time, space, and political
systems (such as Marxism, democracy, facism, and so
forth). Kelsen derives the existence of a common usage of
a concept of law throughout all time and in all geographical
regions from his observation that all legal systems have al-
ways had one common characteristic "by which they can be
distinguished from every other social order."2 The common
characteristic to which he refers is the coercive nature of a
legal order, as opposed to the lack of specific coercion in
* The cooperation of Mr. Allan R. Richards, Teaching Fellow in the
Department of Political Science of the University of North Carolina,
is acknowledged.
'Law and Peace in International Relations, The Oliver Wendell
Holmes Lectures, 1940-41 (Cambridge, 1942).
2
Op. cit., p. 5.
48

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1943] THE TIMELESS CONCEPT OF LAw 49

other systems of social rules.3 "A social order that attempts

to bring about the desired conduct of individuals by the
enactment of sanctions is called a coercive order. . .4
Kelsen is undoubtedly right in saying that without regard
to time, geographic regions, and social doctrines, one de-
cisive element of legal systems throughout history has been
potential coerciveness. But, does the existence of only one
criterion, coerciveness, justify the conclusion that there is
a common usage of the term law throughout all ages and
regions? Kelsen would apparently answer this question in
the affirmative. By adopting this point of view he is enabled
to embrace in his concept all so-called legal systems, national
and international, primitive and mature, past and present.
Kelsen sets out to determine whether international law
falls into the general category of law as he has defined it
in relation to common usage. And, thus, the legal character
of international law is determined according to whether the
rules of which it consists express or imply a coercive act as
a consequence of a hypothetical factual situation. And

Though Professor Kelsen designates coerciveness as the decisive

criterion of law, he indicates other elements which he regards as es-
sential to law and to social orders called legal. Thus a legal order
binds together a community of people (p. 20); it regulates human be-
havior (pp. 18, 75, 87); the legal order has certain organs (p. 59);
the legal order reserves the monopoly of the use of force to the com-
munity (p. 56); a legal order in principle intends to regulate all
human relations (p. 71). It is essential to law that individuals must
not be subordinated to a man, but to rules, i. e., not to the lawmaker,
but to laws made by him under the authority of a constitution. "Non
sub homine sed sub lege is the principle not only of a democratic but
of any legal order" (p. 66). Furthermore, "There are in law no
absolute circumstances, no facts per se, no facts immediately evident.
There are only facts established in a prescribed procedure by com-
petent authorities" (p. 118). The law implies, according to Kelsen,
two fundamental facts, delict is the one, and sanction the other. "To
connect them as condition and consequence is the fundamental func-
tion of the law" (p. 26). And "A common condition of all sanctions
stated in a rule of law is that the norm attaching a certain sanction
to a certain delict has been created by constitutional procedure"
(p. 22). Though the purpose of the law lies beyond the limits of its
substance (pp. 23-24), he regards as belonging to the essence of law
its serving for the promotion of peace (Introduction). And although
juristic thinking, according to Kelsen, takes into account only validity
(as contrasted with efficacy), "The validity of the law presupposes a
minimum efficacy of the law" (p. 16).
'Op. cit., p. 7.

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50 THE JOURNAL OF POLITICS [Vol. 5

because Kelsen finds that rules of so-called international law

satisfy that condition, he qualifies it as a legal order in the
same sense as law par excellence, though recognizing it as
primitive law in contrast with modern mature municipal
law. Thus he includes in his general concept of law even the
rules of a social order "in which every individual takes the
law into his own hands.... In primitive law the individual
whose legally protected interests have been violated is him-
self authorized by the legal order to proceed against the
wrong-doer with all the coercive measures provided by the
legal order."5 According to Kelsen, "The question whether
a state has violated international law and hence the legally
protected interests of another state, is not, according to
general international law, decided by an impartial authority
such as a court, but by the states which are in conflict with
one another."6
Kelsen's statement that international law is primitive
law means that its rule system resembles the social rule
systems of former and contemporary undeveloped societies.
He regards the international community as an undeveloped
community with a decentralized government, as contrasted
with modern states which are forms of developed communi-
ties with a centralized government. Whereas Kelsen and
many others use the term undeveloped in the sense of not-
yet-developed but in-a-state-of-development, a number of
international lawyers have regarded this weak character of
international law as permanent and arising from its very
nature. "Some writers even go to the length of maintaining
that although most of these permanent deficiencies consti-
tute legal shortcomings, they contribute towards making
international law a superior type of law from the moral
and social point of view."7
Many authors have attempted to find a concept of law
transcending geographical regions and time periods. Most
of them arrived at their concepts of law by extracting from
legal systems throughout the history of the world those
elements which were and are included in their concept of
O
op. cit., p. 49.
' Hans Kelsen, "Recognition in International Law," The American
Journal of International Law, Vol. 35, p. 607 (1941).
T Quoted from Hersch Lauterpacht, The Function of Law in the
International Community (Oxford, 1933), pp. 404-405.

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1943] THE TIMELESSCONCEPTOF LAW 51

law. Deriving a concept of law from the existence of sev-

eral common elements and disregarding the changing ele-
ments imply the acceptance of the unchanging elements of
law as essential to a concept of law and the minimization
as accidental to the concept of the changing elements of
what has been called law. Thus, for example, L. F. L.
Oppenheim states three essential conditions to the existence
of law: "There must, first, be a community. There must,
secondly, be a body of rules for human conduct within that
community. And there must, thirdly, be a common consent
of that community that these rules shall be enforced by
external power."8 He did not regard the existence of a law-
giving authority, courts of justice, and other elements as
esential to the concept of law.9
Of the authors of the nineteenth century, it may be use-
ful to inquire into the point of view of John Austin and Sir
Henry Maine. In his opening lectures at London University
and the Inner Temple, John Austin presented the problem
of the nature of law. According to him, several elements of
what is called law "are to be found more or less nearly con-
ceived, from the rude conceptions of barbarians, to the exact
conceptions of the Roman lawyers or of enlightened modern
jurists." However, he admitted that these elements are not
found with equal exactness and adequacy in all ages and
in all systems. This observation led him to limit his work
on jurisprudence to "the various principles common to ma-
turer systems." Although Austin admitted that common
usage extended the term law to international law, he
declined to recognize it as the same type as municipal law.
Discussing international law, he observed, "the party who
will enforce it [the law] against any future transgressor
... applies the sanction annexed to it, of its own spontan-
eous movement." Since a self-determined and self-executed
sanction did not meet the requirements of Austin's legal
I
L. F. L. Oppenheim, Internatinal Law (3d ed., London, 1920),
Vol. 1, p. 7. "The body of rules which is called the Law of Nations
or International Law might, therefore, be law in the strict sense of
the term although it might not possess the characteristics of munici-
pal law" (p. 8). Oppenheim in the same manner regarded the "law
of the Roman Catholic Church, the so-called Canon Law" (p. 7).
For whether or not Oppenheim at death was undergoing a change of
mind, see Lauterpacht, op. cit., p. 404, footnote 1.
90p. cit., p. 5.

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52 THE JOURNALOF POLITICS [Vol. 5

order, he regarded the use of the term law in connection

with international law as equally "improper" as its use in
connection with other "law set or imposed by general
opinion." The sanction of international law, he said, is only
closely analogous to a proper legal sanction ;12 international
law is thus only closely analogous to law in the Austinian
sense. It is to be regretted that because of this point of
view Austin excluded international law from the province
of his General Jurisprudence. Kelsen's objection to Aus-
tin's opinion is not based on their different interpretation
of common usage, but rather on logical considerations."8
In discussing early jural conceptions, Sir Henry Sumner
Maine emphasized that "These rudimentary ideas [early
jural conceptions] are to the jurist what the primary crusts
of the earth are to the geologist. They contain, potentially,
all the forms in which law has subsequently exhibited it-
self."14Maine distinguishes clearly between the periods when
so-called law did not exist until after a judicial decision and
when so-called law existed prior to a judicial decision. In
writing about the first chronological period, he recorded
that "When a king decided a dispute by a sentence, the
judgment was assumed to be the result of direct inspira-
tion."'15 This assertion of Maine raises the question of
whether an agency with jurisdiction to render judgments
does not necessarily imply pre-existing law which gives
jurisdiction to this agency to render judgments. But Maine
did not discuss this problem.16Maine pointed out that in the
"0Lectures on Jurisprudence (4th ed., London, 1879), Vol. 2, pp.
1107-8.
Op. cit., Vol. 1, pp. 189 if.
12 Kelsen recognizes as well that the sanctions of international law
are different from those of municipal law. "It is not a civil execution
exactly, still less a penal measure, yet the specific sanctions of inter-
national law reveal a complete analogy to that of municipal law."
Hans Kelsen, The Legal Process and International Order (London,
1935), pp. 12-13.
1See Hans Kelsen, "The Pure Theory of Law and Analytical
Jurisprudence," Harvard Law Review, Vol. 55, pp. 66 ff. (1941-42).
Sir Henry Sumner Maine, Ancient Law (Oxford, 1939), p. 2.
Op. cit., p. 3.
See Joseph L. Kunz, "The 'Vienna School' and International
13
Law," New York University Law Quarterly Review, Vol. 11, pp.
377-78 (1933-34), especially his discussion of the "legal" position of
judges.

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1943] THE TIMELESSCONCEPTOF LAW 53

second period when judges decided cases, they applied rules

in conformity with a pre-existing body of law, as contrasted
with the application of rules derived from divine (judicial)
inspiration. After showing that judges applied pre-existing
rules, he admitted that the rules they applied were know-
able only to the "judicial oligarchy." Many of these guid-
ing rules were probably of a procedural rather than of a
substantive character, including only the "principles by
which quarrels are decided."'17 Further, Maine cautioned
against adopting Bentham's and Austin's separation of the
legal concept into different ingredients, unless it was real-
ized that their separation applied accurately only to mature
legal systems. Maine, moreover, recognized that "by a little
straining of langauge, they [the ingredients] may be made
to correspond in form with all law, of all kinds, at all
epochs."'8 Thus he saw that by "straining the language"
all legal systems wherever and whenever they may exist or
have existed may be included in a single legal concept.
Nearly every comprehensive treatise on international law
contains a preliminary discussion of this problem. An ex-
haustive survey of authors' attitudes toward it is to be found
in Lauterpacht's The Function of Law in the International
Community.'9
Kelsen is the only author who bases his concept of law on
one single decisive criterion (coerciveness).20 Although
17
Maine, op. cit., p. 10.
18 Op. cit., p. 6.
19 See especially pp. 385
ff. Professor Lauterpacht himself appar-
ently accepts a universal concept of law and in it international law.
20 The problem of whether or not, according to common usage, there
are other distinguishing marks (besides coerciveness) of a legal order,
as contrasted with other social orders, was indicated by St. Augustine.
In the famous dialogue between the pirate and Alexander the Great,
the pirate inquires: "Are not kingdoms identical with large scale
piracies?" (De Civitote Dei, lib. 4, cap. 4). Roscoe Pound, Contem-
porary Juristic Theory (Claremont, 1940), p. 35, states that "Con-
troversy over whether there is anything more than power and force
behind social control by politically organized society is nothing new."
See ibid., p. 18, about political systems which do not require law.
Percy H. Winfield, discussing several possible definitions of law, says
that a "definition or aspect of law is 'a rule which is observed.' This
says nothing of the person who sets the rule, nothing of what will
happen if it is not observed. Yet it is undoubtedly one aspect of
law. . . . In that sense or aspect of 'law' there is no doubt that In-
ternational Law is correctly so styled." The Foundation and the
Future of International Law (Cambridge, England, 1941), p. 17.

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54 THE JOURNAL OF POLITICS [Vol. 5

Kelsen clearly states that his concept of law is based on

common usage, many authors do not indicate whether their
concepts of law are based on common usage, on mere logical
reasoning, or on an asumption of what legal terminology
should consist. Kelsen, however, basing his concept on com-
mon usage, regards it as the only logically possible and con-
sistent concept.2' Kelsen believes that embracing inter-
national law in the same concept of law as municipal law is
necessary for the successful maintenance of a peaceful world
order. and he so admonishes those Deace lovers who do not
21 Kelsen, "The Pure Theory of Law and Analytical Jurisprudence,"
loc. cit., p. 67. "There are today," writes Kelsen, "two opposing views
in regard to the relation between national and international law, the
one dualistic and the other monistic. The former maintains that na-
tional law and international law are two completely distinct and
mutually independent systems of norms, like positive law and mo-
rality, for instance. The pure theory of law shows that such a dual-
istic concept of the relation between national and international law
is logically impossible, and that none of the followers of the dualistic
theory is able to maintain his point of view consistently" (ibid.). Al-
though one might object to Kelsen's idea that in reality there are
several monistic and dualistic doctrines of international law and that
not all so-called dualistic doctrines imply or express "completely
distinct and independent systems of norms," the fundamental state-
ment of Kelsen that there is a logical inconsistency in the dualistic
conception of international law is unobjectionable. The key to this
problem lies neither in the false reasoning of the so-called dualists
nor in their inconsistent terminology. The whole abyss of our inter-
national political life is characterized by the fact that there is a con-
tradiction between two social orders, the international legal order on
the one hand and the national legal orders on the other. Common
usage, on which the dualistic terminology is based, mirrors that
chasm in legal and political conceptions. A sovereign state accepting
"voluntarily" parts, or the whole, of the international legal order,
is the most striking example for such a conception. This inconsistency
is highly disturbing; as a matter of fact, it expresses the tragic status
of our present social order. However, if terminology is based on
usage, it has to mirror that inconsistency willy-nilly. Discussions on
international law may bridge that contradiction by substituting for
the common conception a consistent (but not common) individual
conception of authors. Or such discussions may confront the reader
with the inconsistency and contradiction in our social life by throwing
light on that contradiction without bridging it logically. There is no
doubt that both groups, the representatives of monistic and dualistic
conceptions, eagerly long for changes in our political life which will
give a secure fundamental basis to monistic reality and to the monistic
conception of international law.

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1943] THE TIMELESS OFLAW
CONCEPT 55

accept this point of view.22 If one grants the validity of his

assumption that common usage does exist when one single
element, coerciveness, is regarded as decisive (whereas all
other qualities of legal concepts are regarded as accidental),
Kelsen's position is almost unassailable.23
The problem of the development of common usage, espe-
cially in regard to such complex terms as law and legal sys-
tem is little discussed. There is no doubt of the desirability
and of the scientific and practical importance of having a
common usage which remains unaffected in all times and
all places, and in all political doctrines; such a usage would
greatly enhance human understanding and the progress of
civilization. However, experience proves that common usage
is subject to uncontrollable psychological and social forces
which result in making common usage subject to blatant
inconsistencies and with regard to some concepts in making
usage different at different times and at different places;
i. e., usage becomes "common" only within defined periods
of time, geographic regions, and social groups.
Common usage is a relationship between people who use
the same sign vehicle for designating a common concept;
whether the concept is held in common is decided according
to the acceptance of the decisive elements of the concept.
Thus there arise the two correlative questions: Which ele-
ments are decisive to the concept? Who is to determine
which elements are decisive? One may assume that com-
mon usage itself determines which elements are decisive.
For example, common usage may regard as unessential to
a legal concept the existence of parallel administrative
courts and ordinary courts, but it may regard as decisive
the existence of legal mechanisms which afford the subjects
of law the right of testing the validity of an alleged rule of

22 Hans Kelsen, The Legal Process and International Order (Lon-

don, 1935), p. 11. "There is nothing so dangerous for the idea of

peace as the view-a view which has no foundation in the facts-that
the existing system of interstate relationship is not a system of law
in the real and strict sense of the term."
23 Concerning a concept of law which regards sanctions as un-
essential to a legal norm, see Adolf Prochazka, "Czechoslovak Philoso-
phy of Law," Czechoslovak Year Book of International Law (London,
1942), p. 91.

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56 THE JOURNALOF POLITICS [Vol. 5

law.24 The very idea that common usage itself determines

the essential quality of an element of a concept leads to no
practical and scientific difficulties in many instances. In
many other instances, including the concept of law, however,
this self-determination results in vagueness, for it admits of
varied interpretations.25 There is no opportunity for a daily
plebiscite to ascertain the existence of a common usage or to
determine which elements are essential to it. Proving the
existence of common usage concerning the connection be-
tween specific concepts and sign vehicles and further prov-
ing that common usage regards certain elements to that
concept as essential are difficult tasks which sometimes lead
to results such as those we are today witnessing in regard
to the concept of law. By stating only one decisive element
of law, Kelsen indicated an element which can be historically
shown to be essential to all legal concepts. Kelsen's position
may be contraverted by showing that people historically
have included as decisive to their concept of law other ele-
ments in addition to coercion.26 Thus the fact that when-
ever and wherever concepts of law have one or two common
decisive elements means only that those concepts are con-
nected by the simultaneous existence of the common ele-
ment; it does not necessarily mean that there is a univer-
sally common concept of what law is, for that would imply
that all elements which are regarded as essential are com-
mon to all legal concepts. Kelsen, however, regards the
single element, coerciveness, as "a characteristic sufficiently
24 Lauterpacht, op. cit., p. 426, notes that
the idea of law without
agencies to ascertain objectively the existence of rights is "to strain
its legal character to the breaking point."
25 Concerning objects of the social sciences liable to double inter-
pretation, see Kelsen, Law and Peace, p. 54.
26 Thus, for instance, unchangeability of the law and its divine
origin were regarded as essential elements according to the Old
Testament: "Now therefore hearken, 0 Israel, unto the statutes and
unto the judgments which I teach you, for to do them, that ye may
live, and go in and possess the land which the LORD God of your
fathers giveth you. 2. Ye shall not add unto the word which I com-
mand you, neither shall ye diminish ought from it, that ye may keep
the commandments of the LORD your God which I command you."
Deuteronomy, IV, 1, 2.

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1943] THE TIMELESSCONCEPTOF LAW 57

significant to constitute a general concept for the rational

understanding of social life."'27
In observing common usage at the present time one may
note that people in the western democracies connect the con-
cept of law with certain essential elements (in addition to
coerciveness) which are not regarded as essential to the
concept of law in totalitarian countries.28 Conversely, in
totalitarian or backward countries, common usage may in-
clude in a concept of law (in addition to coerciveness)
essential elements which are not included in the concept of
law in western democracies and which are even repudiated
by western democracies as contrary to their conception of
law. Finally, one may regard the present concept of inter-
national law as containing (in addition to coerciveness)
essential elements which are not regarded as essential in a
general concept of municipal law, and this concept of inter-
national law may lack several elements which are by com-
mon usage regarded as essential to municipal law. People
in western democracies may not even be prevented from re-
garding totalitarian countries as lawless, because in their
opinion totalitarian legal orders do not contain the elements
which are regarded as essential to the concept of law in
western democracies themselves. Thus, terminology based
on common usage is admittedly influenced by political con-
siderations as well as by other considerations.29 Common
usage in regard to international law may, as mentioned
above, include in its concept essential elements not included
27 Kelsen, Law and Peace, p. 3.
28 See, e. g., Franz Neumann, Behoth (New York, 1942), p. 467.
Mr. Neumann writes ". . . we deny that law exists in Germany."
One may assume that Mr. Neumann probably means that what is law
in present German usage does not correspond with the concept of law
in western democracies. Concerning the Soviet Union, see Eugen
Ehrlich, "The Sociology of Law," Harvard Law Review, Vol. 36, p.
131 (1922-23).
29 My statement that the concept of law is different in totalitarian

countries and democracies is not based on theoretical grounds as as-

sumed by Joseph L. Kunz in a book review in University of Pennsyl-
vania Law Review, Vol. 55, pp. 120-121 (1941-42). This difference is
based on observation of usage and on nothing else. The problem of
whether terminology is consistent or not may naturally be subject
to theoretical investigation. One may even theorize about the de-
sirability of a uniform terminology, but the development of termin-
ology is not always affected by scientific arguments. Especially in re-

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58 THE JOURNAL OF POLITICS [Vol. 5

in the concepts of other legal systems. And no one can pre-

vent common usage from designating international law as
law. If one is prompted to include international law and
municipal law in a common category for the reason that both
types of law include (besides differing elements) certain
common elements, the determination of whether this usage
corresponds to common usage is a question of fact. If one
tries to test common usage by the present literature of in-
ternational law, he will get rather contradictory results.80
The present political upheaval has influenced common
usage in regard to international law in somewhat the same
manner as it has influenced the concept of municipal law;
i. e., in several geographic regions of the world, people have
different concepts of what is called international law.31 No

gard to the concept of law is the development of terminology little

affected by the clamor of scientists for a uniform concept. There is
no doubt that this situation is undesirable, but the difference between
consistent and desirable terminology on the one hand and inconsistent
but actual terminology based on common usage on the other hand is
not bridged by decrying inconsistent terminology to be unscientific.
Professor Kelsen, basing his proposition that international law is
"true" law on the condition that one recognizes the concept of bellum
justum, admits that "It is not a scientific, but a political decision
which gives preference to the bellum justum theory," Law and Peace,
p. 54. Thus, one may conclude by inference that the question whether
international law is true law is decided (according to Kelsen) with
regard for political considerations as well.
3 Professor Georges Scelle developed his monistic theory, includ-
ing international and municipal law in the same concept, by assuming
that municipal law was a subdivision of a broader concept of law.
See his Precis de Droit des Gens (Paris, 1932), Vols. 1 and 2, passim.
Professor Scelle combats the conception of international law as limited
to an inter-state order. For him, what he calls Droit des Gens com-
prises relations "among individuals composing a universal society.
These individuals belong simultaneously, in addition to the universal
society, to innumerable political societies-state, inter-state, supra-
state, extra-state societies. All these societies are contained in the
human community and coordinated. All of them are regulated by
law." Cf. ibid., p. viii.
31
A. Berriedale Keith goes so far as to say "that at the present
day international law has ceased to have any binding force." "The
Sanctity of Treaties," Czechoslovak Year Book of International Law
(London, 1942), p. 125. James L. Brierly views such skeptical opin-
ions as misconceptions; however, according to Brierly, "The unpalat-
able truth is that at present states are not willing to accept the rule of
law unconditionally and in all circumstances as their rule of conduct."
"Law, Justice and War," in the same volume, p. 8.

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1943] THE TIMELESS CONCEPT OF LAW 59

proof is necessary in substantiation of the fact that in pres-

ent-day Germany the concept of international law is differ-
ent from the concept of international law in western democ-
racies. Probably the present Nazi concept of international
law would be repudiated by common usage in western de-
mocracies.32 OfficialJapanese and Soviet opinions are high-
ly characteristic in this regard. Mr. Shiratori, an official
Japanese spokesman, answered in Tokyo a proposal to meet
China on a basis of equality and reciprocity by saying,
"It is impossible to regulate Sino-Japanese relations by in-
ternational law. Orientals have their own national concep-
tions and political and moral principles. Oriental peoples
should be governed by international law peculiar to them-
selves."83 T. A. Taracouzio discusses in detail the great
differences between the conception of international law as
developed by the Soviet Union in contrast with the tradi-
tional conception of it in western democracies. According to
Mr. Taracouzio, the Soviet Union and most of its inhabitants
look on important parts of international law as "the mere
exponent of a temporary adjustment. It may be resorted to
for the time being to further the international organization
of national laboring classes in their common struggle for
universal proletarian supremacy."34 He quotes the rather
dramatic statement of Mr. Litvinoff that it is necessary "to
face the fact that there was not one world, but two, a Soviet
world and a non-Soviet world."35 Though one may assume
that after the present world struggle is over a considerable
rapprochement will be attained in the conception of inter-
national law between the "two worlds," the fact remains
that at present this common usage does not exist between
them. Western students of Far Eastern governments and
politics often are surprised by the differences in the concep-
tion of law in the East and the West.

32 The literature of the Nazi concept of international law may be

found in Neumann, op. cit., pp. 150 ff.
" New York Times, August 23, 1937, quoted by Gerhart Niemeyer,
Law Without Force (Princeton, 1941), p. 211.
8 See Timothy A. Taracouzio, The Soviet Union and International
Law (New York, 1935), pp. 10-11. Concerning the Soviet conception
of law, see also pp. 447 ff., and by the same author, War and Peace
in Soviet Diplomacy (New York, 1941), passim.
" See The Soviet Union and International Law, p. 296.

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60 THE JOURNAL OF POLITICS [Vol. 5

Sir John Salmond opposed a concept of law derived from

all concepts of law which have existed throughout the ages.
In addition, Salmond suggested that a general concept of
law must include the ethical element that he calls "justice."
He was inimical to the inclusion of so-called primitive law
in a general concept of law, because he regarded primitive
law as social rules in existence before the development of
politically organized states.36 In his opinion, internatonal
law "is essentially a species of conventional law. . .. " His
reason for designating international law as conventional
law is that international agreement is the source of inter-
national law, "that it consists of the rules which sovereign
states have agreed to observe in their dealings with each
other."37
History provides multitudinous examples that common
usage has denounced political systems as unlawful or
illegal. This denunciation has occurred even though the
rules system denounced has contained certain decisive ele-
ments held in common by systems that are accepted by
common usage as legal and those that are rejected. There
have been two fundamental reasons why common usage has
looked askance at various systems of rules first, the sys-
tems denounced may not have contained all the elements
regarded as decisive by common usage; second, in addition
to the elements usually considered essential by common
usage, the systems denounced may have contained addi-
tional elements of such a nature that the presence of what
common usage regards as essential elements is in effect de-
stroyed. One may compare this situation with the difference
between a legal and an illegal (void) act. An illegal act may
contain several essential elements of a legal act, but it may
lack one or more which would be reouisite to cause it to be
" Sir John Salmond, Jurisprudence (London, 1924), p. 51. "If
there are any rules prior to, and independent of the state, they may
greatly resemble law; they may be the primeval substitutes for law;
they may be the historical source from which law is developed and
proceeds; but they are not themselves law. There may have been a
time in the far past when a man was not distinguishable from the
anthropoid ape, but that is no reason for now defining a man in such
manner as to include an ape." Kelsen, however, writes: "As the
embryo in a woman's womb is from the beginning a human being,
so the decentralized coercive order of primitive self-help is already
law-law in statu nascendi." Law and Peace, p. 51.
S7
Op. cit., p. 32.

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1943] THE TIMELESS
CONCEPT
OFLAW 61

regarded as "legal" or as "law." On the other hand an

illegal act may seemingly contain all the decisive elements
of law, but also contain additional elements which color the
act to the extent that it is regarded as "illegal" or "unlaw-
ful." One may safely say that common usage in western
democracies regards the coercive orders introduced by Ger-
man authorities in Belgium during the first and second
world wars as unlawful, and the Belgian people as well re-
gard the imposition of the German rule system as illegal.88
It may even be questioned whether the common usage of
some of the German people regard the imposition of this
rule system as legal or whether they regard it simply as a
matter of expediency.89 Even today one may safely assume
that common usage in western democracies does not regard
the r6gime in several totalitarian governments as lawful,
and it does not embrace within its concept of law the politi-
cal orders which prevail in those countries. Not only may
common usage fail to regard totalitarian systems of rules
as law, but it may also regard such systems as the opposite
of what is called law by common usage in western democra-
cies. To counteract these denunciations there has been a
tendency for the totalitarian states to strive to make their
subjects and others regard their structures and rules as
legal and lawful. One of the reasons why it has been so
desirable to call these power structures legal is that
legality is an important stimulus to obedience. and it com-
88 Concerning the legality of the
present "legal system" in occupied
Czechoslovakia see Georges Scelle, "Le Gouvernement de la Czecho-
slovaquie," L'Europe Centrale, no. 1, Jan. 10, 1940, and Proclamation
of the President of the United States of March 23, 1939, Executive
Agreements, no. 147, p. 64 (Washington, 1939).
80 Carl Schmitt, one of the earliest protagonists of Nazism, char-

acterized the dictator as a person who "may provide all necessary

arrangements required by the factual situation. Legal questions are
not to be considered in such a case, since only the appropriate imple-
ments for the particular end are important." And further: "The
dictator is interested, not in law, but in the proper functioning of the
state, that is, the mere enforcement of his will, not subjecting the
executive power to preceding legal rules." Die Diktatur (Miinchen,
1921), p. 11. Having been authorized by Hitler to build up a Nazi
administration of justice and use all necessary measures, the new
German Minister of Justice, Dr. Otto Thierack, on assuming office
declared: "Every judge is at liberty to call on me in case he thinks
that a law compels him to render a judgment not compatible with
real life. In such an emergency it will be my task to provide him
with a law he needs." New York Times, August 30, 1942.

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62 THE JOURNAL OF POLITICS [Vol. 5

mands so much- respect that people will fight ideologically

and physically for or against the mere expression.40
According to Kelsen, "Any attempt to define a concept
must proceed from the usual meaning of the word by which
it is intended to designate the concept."'41 He declares that
"One must see whether the social phenomena called 'law'
present a characteristic sufficiently significant to constitute
a general concept for the rational understanding of social
life."42 According to him, if there is such a characteristic
in common, there exists common usage provided that the
characteristic is "sufficiently significant to constitute a gen-
eral concept for the rational understanding of social life."
However, in the opinion of the writer, the question of wheth-
er such a characteristic is sufficiently significant requires
an investigation of common usage. Common usage may in
certain geographic regions or in certain time periods rec-
ognize one characteristic as essential to the meaning of a
term; in other time periods it may regard that character-
istic as insignificant. However, this objection does not
apply to Kelsen's criterion (coerciveness) because that char-
acteristic is common to all legal orders of all ages. It is
the writer's belief that the characteristic potential coercion
has not been the only required characteristic of what has
been called law throughout the ages. Besides this single
significant characteristic, other characteristic elements have
also been decisive. Even within one single time period
several concepts of law have co-existed in the world. To
single out one or more characteristic elements, and to dis-
regard other decisive elements, lead Kelsen and other writ-
ers to construct a timeless conception of law. The act of
singling out specified decisive elements held in common

0 According to Nicholas S. Timasheff, An Introduction to the So-

ciology of Law (Cambridge, 1939), p. 254, "The words 'law,' 'statute,'
'court,' and a thousand others have gradually become stimuli of sub-
mission."
41 Kelsen, Law and Peace, p. 3. "A proposition," wrote Wilbur M.
Urban, treating the problem of linguistic validity, "is a class of sen-
tences which have the same intentional significance for everyone who
understands them. It is this common understanding which makes the
proposition." Language and Reality (London, 1939), p. 170.
42Law and Peace, p. 3.

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1943] OFLAW
CONCEPT
THE TIMELESS 63

makes possible a doctrine based on one universal "legal"

concept.43
In the opinion of the writer there is no common usage
(in the universal sense) of the term law. There is no
universal concept of the term law throughout ages and
geographic regions. The expression common usage in re-
gard to law does not imply today a universally common
usage. Common usage refers to a prevailing majority of
people within a reasonably large geographic region. Com-
mon usage of the term law does not refer in the United
States to a legal system of the United States alone; it may
equally regard as law the existing political orders in Mexico,
Great Britain, Sweden, or Iran. However, common usage
in the United States may also call the political order of
present invaded Poland as a compulsory order based on
another kind of rule distinct from law. Thus, common
usage may connect the concept of law in regard to munici-
pal law with the concept of what is called Rechtsstaat. It
may regard such elements as a high degree of certainty of
legal rules, a fairly well functioning mechanism to test the
validity of legal rules, the recognition of the individual as
a basic unit within the legal order, and the susceptibility of
legal rules to change by human agencies as essential ele-
ments of the concept of law, as in previous ages the divine
origin of legal rules was regarded as an essential feature.
Within a geographic region at a given time, common usage
may adopt even two parallel concepts of law (like municipal
law and international law), and even attribute coerciveness
to both orders. Such a common usage is inconsistent from a
logical point of view, but it truly mirrors the chasm and
confusion in a social system. We are experiencing now the
consequences of that confusion.
There is no doubt that everybody who expects the future
world order to be an efficient assurance of human progress
eagerly desires a social status which is accompanied by a
common usage of the term law at least at the same time
period, and a subordination of municipal law to interna-

4 See Charles W. Morris, Foundastion of the Theory of Signs (Chi-

cago, 1938), p. 48.

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64 THE JOURNAL OF POLITICS [Vol. 5

tional law.44 This will be accompanied by an elimination

of inconsistencies in common usage. It would be trite to
suggest to those even slightly familiar with legal and politi-
cal literature that Kelsen's work extending through more
than three decades has decidedly contributed to the attain-
ment of this unified concept. His last work, Law and Peace,
is one of the most stimulating and valuable in this respect,
within itself worthy of delivery in memory of Oliver Wen-
dell Holmes.
" The President of Czechoslovakia, Dr. Edward Benes, although
predicting a certain harmony between international law and the sev-
eral municipal legal orders in the future world order, recognizes that
"it will nevertheless permit up to a certain limit and to an acceptable
degree a certain disharmony and even antithesis in the character and
essence of the municipal and international orders." "The Rights of
Man and International Law," Czechoslovak Year Book of International
Law (London, 1942), p. 2.

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