Hans Kelsens Legal Positivism and International Law

HANS KELSEN'S LEGAL POSITIVISM AND INTERNATIONAL..., 38 Lincoln L. Rev.
41
38 Lincoln L. Rev. 41
Lincoln Law Review

2010-2011
Article
Christopher R. Inamaa1
Copyright © 2011 by Lincoln Law School of San Jose; Christopher R. Inama
HANS KELSEN'S LEGAL POSITIVISM AND INTERNATIONAL LAW

One learned commentator asserts, “It is vital, in the ultimate analysis, emphatically to reconfirm with absolute conviction the
original proposition that international law is law, and that international law should be treated as law with all the attributes of
that notion.”1 Yet another learned commentator contends:
International Law has lost enormously over the years by overstating claims of its success .... It is possible that
candor about the law's limits may engender a measure of instability in the short run. But in the long term, if our
bet is on the human capacity for rational cooperation, which is where it should be, then knowledge of where and
why cooperation has failed will be the surest foundation for a more stable world.2
*42 These conflicting statements raise the following questions: Why has international law enjoyed its prestige? Have its
successes been overstated?
Addressing these questions in this paper (to become Chapter One of my dissertation), I will focus on and examine the legal
philosophy of Hans Kelsen, perhaps the twentieth century's leading theoretician of international law, including the historical
context of his philosophy of science, his contributions to the development of international law and organizations, and some
initial criticisms of his theories. In subsequent chapters of my dissertation, I will apply different methodologies and actual
historical events to examine, further, where Kelsen and his faction went wrong.
Hans Kelsen (1881-1973), whose legal theories are described in detail in the synopsis below, was a leading legal positivist
and international law scholar of the twentieth century. One writer states, “Much of modern public international law appears
to coincide with his ideas and aspirations .... Kelsen seems to have anticipated, or maybe even precipitated, many modern
developments.”3 Another writer adds, “Kelsen's theory brought into focus an idea largely accepted nowadays and which the
contemporary evolution of international law has overwhelmingly confirmed: international law is not confined to relations among
states, it can encompass all human activities.”4
For example, Kelsen's Peace Through Law, has been described as something of a blueprint for the United Nations, “largely
a proposal for international order with compulsory international adjudication at its center,” and a rejection of the idea that
there should be “a boundary between national and international law.”5 Further, in 1945, Kelsen “became legal adviser to the
United Nations War Crimes Commission in Washington, with the task of preparing the legal and technical *43 aspects of
the Nuremberg trial.”6 Related to this work, “Kelsen, in a sense, is an early champion of two developments that are often
deemed to epitomize the improvement of the international system, namely, the rise of adjudicating bodies on the one hand and
individual responsibility for violations of international norms on the other.”7 In addition, “[d]uring this period, Kelsen also
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HANS KELSEN'S LEGAL POSITIVISM AND INTERNATIONAL..., 38 Lincoln L. Rev. 41
devoted considerable attention to the nascent United Nations organization, publishing the monumental 900-page monograph
on The Law of the United Nations ....”8
Thus, Kelsen can be seen as one of the primary intellectual forces behind the legal positivism of modern international law and,
specifically, the laws of international armed conflict and the United Nations. Therefore, the positivist legal theories propounded
by Kelsen, and their impact on current international law, require some critical analysis.
I. Synopsis of Kelsen's Legal Philosophy
A. Introduction
In Vienna in the 1920s and 1930s, following the Austro-Hungarian Empire's disastrous loss in World War I and the ensuing
breakup of the venerable Hapsburg Empire, Logical Positivism was the prevailing philosophical movement, emanating from a
group of scientists and philosophers known as the “Vienna Circle.” The main features of this neopositivist movement, described
in detail in the third section of this chapter, were a thoroughgoing empiricism, tempered by an exaggerated respect for the
achievements and capabilities of modern science, and a complete rejection of metaphysics as meaningless. This positivist
methodology was antithetical, for example, to Natural Law philosophy. As empiricists, they held that all *44 knowledge is
ultimately derived from experience. Thus, since the propositions of metaphysics, epistemology, and ethics transcend ordinary
experience, no empirical evidence can confirm or discredit their conclusions.9
Kelsen was Vienna's leading legal theoretician, loosely associated with the Vienna Circle, although he was not directly a member
of the group. For Kelsen, law was “a deliberate construction, serving always known particular interests.”10 The Kelsen Circle
overlapped with the Vienna Circle, and Kelsen was also associated with the Austrian Social Democratic Party, but not a “card
carrying” member.11 Although a socialist, Kelsen was critical of a strict interpretation and application of Marxism. He still
contended, though, that there was an interface between his “Pure Theory of Law” and social democracy, asserting that the
systems of law and state would have to be freed of “ideological ballast” so an “appropriate legal technique [could] act to bring
about an evolutionary change of society ... includ[ing] transforming the means of production into collective property.”12
In his legal philosophy, Kelsen was an evolutionary descendant of the legal positivist tradition expounded earlier by Thomas
Hobbes, Jeremy Bentham, and John Austin, to whom every rule must be derivable from a conscious act of legislation.13
However, “Kelsen's *45 version of legal positivism is different from what has come to be known by this name in the Anglo-
American world.”14 Common to the whole scheme of legal positivism, though, and in line with the neopositivism of the Vienna
Circle, was the idea that the concept of “justice” must be eliminated from the science of law. For example, Kelsen had declared
that justice is an irrational idea.15 Kelsen asserted:
[N]o positive legal order can be regarded as not conforming with its basic norm and hence as not valid .... [O]nly
the validity, not the content of a legal order can be derived from the basic norm .... The validity of a positive legal
order cannot be denied because of the content of its norms.16
This attitude will lead to one of the strongest criticisms of Kelsen's “scientific” approach (to be addressed in the fourth section
of this chapter): that it provides no ground for condemning the legal commands of a despotic regime, like Hitler's National
Socialism.17
Kelsen's affinity for the logical positivism of the Vienna Circle is reflected in his attitude that the theory of positive law is parallel
to *46 the empirical science of nature, while the philosophy of natural law is akin to metaphysics. An analytical description

of positive law as a system of norms is no less empirical than natural science--restricted to material given by experience.18
Man's collective confidence in “the vigor of his own senses and his reason has now become sufficiently strong to [overcome
his metaphysical superstition and] confine his scientific view of the world to empirical reality.”19 At the same time, Kelsen
maintained that “[n]orms prescribing human behavior can emanate only from human will, not from human reason.”20 Therefore,
Kelsen tried to formulate a:
“[P]ure theory of law” ... kept free from all the elements foreign to the specific method of a science whose only
purpose is the cognition of law, not its formation. A science has to describe its object as it actually is, not to
prescribe how it should be or should not be from the point of view of some specific value judgments.21
Distinguishing his legal positivism from the irrational and superstitious Natural Law tradition, with its concern for “justice”,
Kelsen continued:
The pure theory of law considers its subject not as a more or less imperfect copy of a transcendental idea. It does
not try to comprehend the law as an offspring of justice, as the human child of a divine parent. The pure theory
of law insists upon a clear distinction between empirical law and transcendental justice by excluding the latter
from its specific concerns.22
Later, Kelsen stated:
*47 If a theory of positive law demands a distinction between law and morals in general, and between law and
justice in particular, then this theory is directed against the traditional view, regarded as obvious by most jurists,
which presupposes that only one absolutely valid moral order and therefore only one absolute justice exists. The
demand for a separation between law and morals, law and justice, means that the validity of a positive legal order
is independent of the validity of this one, solely valid, absolute moral order, “the” moral order, the moral order
par excellence.23
Further, Kelsen argued:
If the moral order does not prescribe to obey the positive legal order under all circumstances, if, in other words, a
discrepancy between a moral and a legal order is possible, then the postulate to separate law and morals, science
of law and ethics means that the validity of positive legal norms does not depend on their conformity with the
moral order; it means, that from the standpoint of cognition directed toward positive law a legal norm may be
considered valid, even if it is at variance with the moral order.
....
The thesis that law is moral by nature--in the sense that only a moral social order is law--is rejected by the
Pure Theory of Law not only because this thesis presupposes an absolute moral order, but also because in its
actual application by the science of law prevailing in a legal community, this thesis amounts to an uncritical
justification of the national coercive order that constitutes this community .... Such justification of the positive

law may politically be convenient, even though logically inadmissible. From the point of view of a science of
law it must be rejected, because it is not *48 the task of this science to justify the law by absolute or relative
morals; but to know and describe it.24
Kelsen argued that the state is the community created by a “national legal order.” He described the state circularly as an “order
and as community constituted by order,” and anthropomorphically as a “sociological unity.”25 “[E]ven commands devoid of
normative content were regarded as legal norms, if they were validated by a hierarchy of norms ultimately grounded in political
fact (Grundnorm).”26 Indeed, “[w]hat distinguishes the legal order from other social orders (economic, religious, cultural, etc.)
is its monopoly on coercion ....”27 Like Auguste Comte, one of the founders of the positivist movement during the time of
the French Enlightenment, Kelsen believed that an elite class would rise in authority over others, “where they could assist in
replacing conflict with peaceful cooperation in society, and complication with functional efficiency in social institutions.”28
B. The Elements of Kelsen's Pure Theory of Law
Kelsen opened his leading work, the Pure Theory of Law, by proclaiming that its “exclusive purpose is to know and to describe
its object. The theory attempts to answer the question what and how the law is, not how it ought to be. It is a science of law
(jurisprudence), not legal politics.”29 He continued:
Yet, a glance upon the traditional science of law as it developed during the nineteenth and twentieth centuries
clearly shows how far removed it is from the postulate *49 of purity; uncritically the science of law has been
mixed with elements of psychology, sociology, ethics, and political theory. This adulteration is understandable,
because the latter disciplines deal with subject matters that are closely connected with law. The Pure Theory of Law
undertakes to delimit the cognition of law against these disciplines, not because it ignores or denies the connection,
but because it wishes to avoid the uncritical mixture of methodologically different disciplines (methodological
syncretism) which obscures the essence of the science of law and obliterates the limits imposed upon it by the
nature of its subject matter.30
The first building block of the pure theory is Kelsen's concept of the “norm.” He stated:
The external fact whose objective meaning is a legal or illegal act is always an event that can be perceived by the
senses ... and therefore a natural phenomenon determined by causality. However, this event as such, as an element
of nature, is not an object of legal cognition. What turns this event into a legal or illegal act is not its physical
existence, determined by the laws of causality prevailing in nature, but the objective meaning resulting from its
interpretation. The specifically legal meaning of this act is derived from a “norm” whose content refers to the act,
so that it may be interpreted according to this norm .... The judgment that an act of human behavior, performed
in time and space, is “legal” (or “illegal”) is the result of a specific, namely normative, interpretation.31
Kelsen's “norm” is the meaning of an act by which certain behavior is commanded, permitted, or authorized. The norm is an
“ought,” while the act of will that creates the norm is an “is.”32 The Pure Theory of Law “is not directed toward the acts of
will whose *50 meaning the legal norms are, but toward the legal norms as the meanings of acts of will.”33 Further, “[I]t
is necessary to differentiate the behavior stipulated by a norm as a behavior that ought to be from the actual behavior that
corresponds to it.”34 Kelsen elaborated on this point:

The legal statements that one ought to behave in a certain way cannot be reduced to statements about present or
future facts, because the former do not refer to such facts, not even to the fact that certain individuals wish that
one ought to behave in a certain way. The legal judgments refer to the specific meaning which the fact of such an
act of will has; and the “ought,” the norm, is precisely this meaning that is different from this act of will.35
What gives a norm its validity? “[O]nly the command of the official, not that of the gangster, has the meaning of a valid norm,
binding upon the addressed individual.”36 Kelsen stated:
By the word “validity” we designate the specific existence of a norm .... If we describe the specific existence of a
norm as “validity,” we express by this the special manner in which the norm--in contradistinction to a natural fact--
is existent. The “existence” of a positive norm--that is to say, its “validity”-- is not the same as the existence of the
act of will, whose objective meaning the norm is .... The norm is the meaning of an act of will, not the act of will.37
While a norm must be effective to be valid, effectiveness is only a condition of validity:
Since the validity of a norm is an ought and not an is, it is necessary to distinguish the validity of a norm from its
effectiveness. Effectiveness is an “is- *51 fact”--the fact that the norm is actually applied and obeyed, the fact
that people actually behave according to the norm.38
Kelsen continued:
By effectiveness of a legal norm, which attaches a sanction to a certain behavior and thus qualifies the behavior
conditioning the sanction as illegal, that is, as “delict,” two facts may be understood: (1) that this norm is applied
by the legal organs (particularly the law courts), which means that the sanction in a concrete case is ordered and
executed; and (2) that this norm is obeyed by the individuals subjected to the legal order, which means, that they
behave in a way which avoids the sanction.39
“Delict” and “sanction” are fundamental concepts in Kelsen's model. The normative order is valid because it is effective when a
sanction is applied in response to a delict. On the other hand, if a norm is completely ineffective, it is invalid or loses its validity.
A general legal norm is regarded as valid only if the human behavior that is regulated by it actually conforms
with it, as least to some degree. A norm that is not obeyed by anybody anywhere, in other words a norm that
is not effective at least to some degree, is not regarded as a valid legal norm. A minimum of effectiveness is a
condition of validity.40
Again, Kelsen stated, “[E]ffectiveness is the condition in the sense that a legal order as a whole, and a single legal norm, can no
longer be regarded as valid when they cease to be effective.”41 The question whether the international legal order is effective at
all, in that international legal norms are applied by international legal organs, or in that states obey international legal norms or

conform their behavior *52 according to some other standard, leads to another strong criticism of Kelsen's model, discussed
in the final section of this paper.
In defining “legal order,” Kelsen endeavored to determine whether all such social phenomena have common characteristics.
He concluded, albeit tautologically:
[W]hen we compare the objects that have been designated by the word “law” by different peoples at different
times, we see that all these objects turn out to be orders of human behavior. An “order” is a system of norms
whose unity is constituted by the fact that they all have the same reason for their validity; and the reason for the
validity of a normative order is a basic norm--as we shall see--from which the validity of all norms of the order
are derived. A single norm is a valid legal norm, if it corresponds to the concept of “law” and is part of a legal
order; and it is part of the legal order, if its validity is based on the basic norm of that order.42
Legal orders have two characteristics: they are orders of human behavior, and they are coercive orders. “The sanctions prescribed
by the legal order are socially immanent (as distinguished from transcendental) sanctions [like the sanctions of moral orders];
besides, they are socially organized (as distinguished from mere approval or disapproval).”43 Kelsen continued, “That means
that the coercive act may be attributed to this community; which is a figurative expression of the mental operation by which
we refer the coercive act prescribed by the legal order to this legal order, the unity of which we personify as an acting entity.”44
Indeed, like the basic norm, or Grundnorm, “the definition of law as a coercive order is presupposed.”45 Therefore, a definition
of law that does not include coercion must be rejected because the clement of coercion distinguishes law from other social
orders and is characteristic of social orders called “law”. *53 “[P]articularly, because by defining law as a coercive order, a
connection is accounted for that exists in the case most important for the cognition of the law, the law of the modern state: the
connection between law and state.”46
The distinguishing feature of the coercive order is the potential for the use of force as a sanction for delict: “[T]hat means that
the act prescribed by the order as a consequence of socially detrimental facts ought to be executed even against the will of
the individual and, if he resists, by physical force.”47 The authority to use that force is a monopoly of the legal community.48
That monopoly can be centralized or decentralized, where individuals are authorized to use force for self help when they
“consider their interests violated by the illegal conduct of others ....”49 While the “modern state is essentially a coercive order--
a centralized coercive order, limited in its territorial validity,”50 as will be seen, the international legal order has been mostly
a decentralized order.
If the law is a coercive order, then sanctions, including punishments and civil executions, are implied. That is, “[U]nder certain
conditions, determined by the legal order, a certain coercive act, likewise determined by that order, ought to be performed.”51
In international law, the legal sanctions are reprisals and war.52 What are the conditions that may lead to a sanction? Kelsen
answered, “[T]he action or refrainment constituting the condition of the coercive act ordered by the legal order represents the
delict (usually called “the wrong”), and the coercive act represents the sanction.”53 Again, distinguishing his Pure Theory of
Law from Natural Law jurisprudence, Kelsen stated:
*54 The doctrine prevailing in traditional jurisprudence that a moral value element is immanent in the concepts
of delict and sanction--the idea that a delict necessarily must mean something immoral and that punishment must
necessarily be something dishonorable--is untenable, if for no other reason than because of the very relative
character of the respective value judgments .... From the point of view of a theory of positive law, there is no fact

that by itself--that is, regardless of a consequence stipulated by the legal order--is a delict. There are no mala in
se, but only mala prohibita.54
Delict and sanction represent the static aspect of the law. Kelsen undertook to examine the dynamic aspect of the law by asking,
“What constitutes the unity of a multitude of norms--why does a certain norm belong to a certain order? And this question is
closely tied to the question: Why is a norm valid, what is the reason for its validity?”55
To answer these questions, Kelsen constructed a hierarchical system of norms, leading to his Grundnorm:
A norm referring to the behavior of a human being is “valid” means that is it binding--that an individual ought to
behave in the manner determined by the norm .... [T]he reason for the validity of a norm cannot be a fact. From the
circumstance that something is cannot follow that something ought to be; and that something ought to be, cannot
be the reason that something is. The reason for the validity of a norm can only be the validity of another norm.
....
This final norm's validity cannot be derived from a higher norm, the reason for its validity cannot be questioned.
Such a presupposed highest norm is *55 referred to in this book as basic norm. All norms whose validity can be
traced back to one and the same basic norm constitute a system of norms, a normative order.56
The system of norms derived logically from the Grundnorm and, hence, valid, is a “static norm system.”57
On the other hand, the basic norm is not the result of reason “because the function of reason is “knowing” and not “willing”,
whereas the creation of norms is an act of will. Therefore, there can be no such things as norms which are valid only in virtue of
their directly evident content.”58 Even the basic norm must be created by an act of will, but its validity must be “presupposed.”
“This norm can supply only the reason for the validity, not the content of the norms based on it. These norms constitute a
dynamic system of norms.”59 Kelsen continued:
The dynamic type is characterized by this: the presupposed basic norm contains nothing but the determination of
a norm-creating fact, the authorization of a norm-creating authority or (which amounts to the same) a rule that
stipulates how the general and individual norms of the order based on the basic norm ought to be created.60
Consistent with his positivist scientific theory of law, Kelsen asserted:
In presupposing the basic norm referring to a specific constitution, the contents of this constitution and of the
national legal order created according to it is irrelevant--it may be a just or unjust order; it may or may not guarantee
a relative condition of peace within *56 the community established by it. The presupposition of the basic norm
does not approve any value transcending positive law.61

However, Kelsen's tautological reasoning, and the impossibility of identifying the ultimate “presupposed” basic norm without
triggering an infinite regression, leads to another of the major criticisms of Kelsen's model, discussed further in the final section
of this chapter.
For Kelsen, the state is a centralized legal order, to be distinguished from decentralized legal orders like “the primitive pre-state
order and the super-state order of general international law.”62
The functions attributed to the state by the traditional theory of state fall into three categories: legislation,
administration (including government), and jurisdiction .... [A]ll three are legal functions--either legal functions
in the narrower sense, namely functions of law creation and law application, or functions in the wider sense which
also includes the law-obeying function.63
Ultimately:
Once it is recognized that the state, as an order of human behavior, is a relatively centralized coercive order and
that the state as a juristic person is the personification of this coercive order, the dualism of state and law is
abolished .... If the identity of state and law is discovered, if it is recognized that the law--the positive law, not
the law identified with justice--is this very coercive order as which the state appears to a cognition which is not
mired in anthropomorphic metaphors but which penetrates through the veil of personification to the man-created
norms, then it is simply impossible to justify the state through the law; *57 just as it is impossible to justify
the law through the law .... From the point of view of a consistent legal positivism, law, like the state, cannot
be comprehended otherwise than as a coercive order of human behavior. The definition says nothing about the
moral value or justice of positive law. Then the state can be juristically comprehended no more and no less than
law itself.64
II. Kelsen and Logical Positivism in Post-WWI Vienna
Perhaps Kelsen's legal theories are the product of the special circumstances of the time and place in which they were developed.
This section will place Kelsen in his own cultural context, particularly with respect to the Vienna Circle, the group of logical
positivist scientists and philosophers, and their associates, who came together in Vienna following World War One. At the end
of the nineteenth century, in fin-de-siècle Vienna:
The old order was falling apart. The democratically elected mayor, Karl Lueger was an open anti-Semite. Conflicts
over language rights, especially for Czechs, broke the system of constitutional monarchy in 1900, when the empire
reverted to “enlightened absolutism.” Vienna was fast becoming ... a “research laboratory for world destruction.”
Political collapse of the empire came with World War One .... Before the war, Vienna had been an extraordinary
center of cultural activity and innovation. The ferment continued after the war despite its ravages, material and
otherwise. This was the Vienna of Sigmund Freud, Ludwig Wittgenstein, Kurt Gödel, Karl Popper, Gustav Klimt,
Maurice Ravel, and Arnold Schönberg. The crisis of collapse had stimulated intellectual and artistic activity.65

Starting in 1922, when the physicist and philosopher, Moritz Schlick, was appointed to the chair in the philosophy of inductive
*58 science at the University of Vienna, a group of philosophically minded mathematicians and scientists began to coalesce
around him.66 One of their “major critical contributions was the demonstration that all metaphysics is meaningless.”67
The logical positivist program asserted that only meaningful statements were to be permitted scientific
consideration and accorded the status of knowledge claims. Meaningfulness (or cognitive significance) was
strictly defined as being attributable only to those statements which are either analytic (tautologies or self-
contradictions) or synthetic (factual statements which may be verified or falsified by evidence). By this criterion,
metaphysical statements are neither analytic nor subject to empirical test, so must be deemed meaningless,
expressing emotional stances or “general attitudes towards life.”68
Their position does not imply that metaphysical statements are “false,” since that denial would, itself, be a metaphysical
statement. They just cannot be proven. Further, metaphysical statements can be influential, as beliefs are clearly influential.
However, they should not be accorded the status of knowledge claims.69 As a result, at this time in Vienna, “moral relativism
was an unusually respectable premise.”70
Having staked out their position, the logical positivists had to offer a criterion for distinguishing between knowledge claims
and meaningless statements. “One early solution became known as the verifiability principle: a statement has meaning only
to the extent that it is verifiable. Verifiability implies testability, since one must be able to test whether a synthetic assertion
is true or false.”71 Further:
*59 [T]he stress on observability led the logical positivists to a belief in the methodological unity of all
scientific endeavor .... By implication, the social sciences no less than the natural sciences are concerned with
observable phenomena; thus, approaches to the social disciplines which rely on such devices as, say, subconscious
motivations or introspective states of mind for the explanation of social phenomena can be accused of metaphysical
speculation.72
“Considered historically, the anti-metaphysical, positivist, and realistic paradigm represents the most important starting point
for the Vienna Circle's philosophy of science.”73
Kelsen is listed as being on the periphery of the Vienna Circle.74 In Vienna, there were a “variety of neo-liberal groups and
associations both on the edge and inside the ‘leftist camp”’ as well as supporters of the conservative monarchy.75 The presence
of such opposing camps reflected Vienna's “predominantly bipolar cultural landscape ....”76
In between the poles of liberalism and conservatism, we find the Vienna School of Legal Theory centered around
Hans Kelsen (with Felix Kaufmann) until his politically-motivated departure from Vienna in 1930. Following his
final emigration at the end of the 1930s, *60 Kelsen was to renew his contacts with Logical Empiricism ....77
For example, as late as 1941, at the Sixth International Congress for the Unity of Science, at the University of Chicago, Kelsen
presented his paper, Judgments of Value in the Science of Law.78

The next generation of Viennese philosophers, however, included at least two critics of Logical Positivism who would become
eminent in their respective fields: Karl Popper and Friedrich Hayek. Popper would become the leading philosopher of science
in his generation, and Hayek would become one of the leading economists of his generation, winning the Nobel Prize in 1974.
Popper contended that the demarcation between scientific and non-scientific knowledge was not between “statements and
systems of statements which could be properly described as belonging to empirical science, and others which might, perhaps be
described as ‘pseudo-scientific’ or (in certain contexts) as ‘metaphysical,’ or which belonged, perhaps, to pure logic or to pure
mathematics.”79 Rather, in opposition to the verificationist methodology of the positivists, Popper proposed the following:
[T]he refutability or falsifiability of a theoretical system should be taken as the criterion of demarcation .... [A]
system is to be considered as scientific only if it makes assertions which may clash with observations .... There
will be well-testable theories, hardly testable theories, and non-testable theories. Those which are non-testable are
of no interest to empirical scientists. They may be described as metaphysical.80
Thus, the positivist's approach of verifiability or confirmability by induction is not the right line of demarcation. That would
exclude the universal laws of nature, by the logical positivists' own logic, as they *61 claim, “For all universal laws have zero
confirmation.”81 Therefore, Kelsen's “General Theory” and “Pure Theory” must be shaken to their very core, since he can only
describe particular laws for particular times and places; in the alternative, his assertions about laws are only true by definition
and, thus, are mere tautologies.
Of Logical Positivism (anti-metaphysical, scientist, historicist, and collectivist) and, specifically legal positivism, Popper
proclaimed:
The earlier, naturalistic, revolution against God replaced the Name “God” by the name “Nature”. Almost
everything else was left unchanged. Theology, the Science of God, was replaced by the Science of Nature; God's
laws by the laws of Nature; God's will and power by the will and power of Nature (the natural forces); and later
God's design and God's judgment by Natural Selection. Theological determinism was replaced by a naturalistic
determinism; that is, God's omnipotence and omniscience were replaced by the omnipotence of Nature and the
omniscience of Science.
Hegel and Marx replaced the goddess Nature in its turn by the goddess History. So we get laws of History; powers,
forces, tendencies, designs, and plans of History; and the omnipotence and omniscience of historical determinism.
Sinners against God were replaced by “criminals who vainly resist the march of History”; and we learn that not
God but History (the History of “Nations” or of “Classes”) will be our judge.
It is this deification of history which I am combating.
But the sequence God--Nature--History, and the sequence of the corresponding secular religions, does not end
here. The historicist discovery that all standards are after all only historical facts (in God, standards and facts
are one) leads to the deification of Facts--of existing or actual Facts of human life and behavior (including,
I am afraid, merely alleged Facts)--and thus *62 to the secularized religions of Nations and of Classes, and
of existentialism, positivism, and behaviorism. Since human behavior includes verbal behavior, we are led still

further to the deification of the Facts of Language. Appeal to the logical and moral authority of these Facts (or
alleged Facts) is, it would seem, the ultimate wisdom of philosophy in our time.82
Likewise, Hayek criticized Logical Positivism and Kelsen's legal positivism, specifically, throughout his long career. He devoted
an entire book to a criticism of positivism, that is, the scientism, objectivism, collectivism, and historicism leading some social
scientists to embrace the methods of physical scientists.83 He stated:
Consistently pursued it must lead to a system in which all members of society become merely instruments of
the single directing mind and in which all the spontaneous social forces to which the growth of the mind is due
are destroyed .... It is essential for the growth of reason that as individuals we should bow to forces and obey
principles which we cannot hope fully to understand, yet on which the advance and even the preservation of
civilization depend.84
For Hayek, human society results from human action, not human design. It is an “order,” not an “organization.” Thus, he states,
“The rationalist [like Kelsen] whose reason is not sufficient to teach him those limitations of the powers of conscious reason,
and who despises all the institutions and customs which have not been consciously designed, would thus become the destroyer
of the civilization built upon them.”85
*63 Specifically, as to Kelsen's “scientific” jurisprudence, Hayek points out the destruction of values by scientific error, stating:
[Kelsen] assures us that “justice is an irrational idea ....” Law is thus for Kelsen a deliberate construction, serving
known particular interests. This might indeed be necessarily so, if we had ever to create anew the whole body of
rules of just conduct. I will even concede to Kelsen that we can never positively prove what is just. But this does
not preclude our ability to say when a rule is unjust, or that by the persistent application of such a negative test
of injustice we may not be able progressively to approach justice.86
Against legal positivism, Hayek complained, “[F]rom the very beginning [it] could have no sympathy with and no use for those
metalegal principles which underlie the ideal of the rule of law ... for those principles which imply a limitation on the power
of legislation.”87 He continued:
In short, a “law” was that which merely stated that whatever a certain authority did should be legal. The problem
thus became one of mere legality .... This new formulation, known as the “pure theory of law” and expounded
by Professor H. Kelsen, signaled the *64 definite eclipse of all traditions of limited government .... The basic
conception of his system is the identification of the state and the legal order .... Every effort is made not only to
obscure the fundamental distinction between true laws in the substantive sense of abstract, general rules and laws
in the merely formal sense (including all acts of the legislature) but also to render indistinguishable from them
the orders of any authority, no matter what they are, by including them all in the vague term “norm.” Even the
distinction between jurisdiction and administrative acts is practically obliterated. In short, every single tenet of
the traditional conception of the rule of law is represented as a metaphysical superstition.88

Rather than being “pure” or “general” theory' of law, Kelsen's legal theories appear to be particular theories, arising from the
special circumstances of the time and place in which they were developed. This paper will address several other criticisms of
Kelsen's theories of law and international law in its final section.
III. Kelsen on International Law
Kelsen's legal positivism becomes relevant to international law in a way that earlier positivists' writings do not. The founder of
the legal positivist movement, John Austin, had asserted that, since “international law had no sovereign capable of sanctioning
the violation of its rules, it could not be true law, but only ‘positive morality.”’89
After 1930, Kelsen diverged from earlier legal positivists like Austin to embrace internationalist jurisprudence.
Disregarding his own contempt for ideology, he espoused an ideology of internationalism, contending that only
international law can impart homogeneity and continuity to national systems .... *65 International law, said
Kelsen, climaxes an all-embracing system, which reprobates war not as a crime against nature but merely as an
infraction of norms.90
As discussed below, Kelsen argued around the sovereignty problem by assuming the primacy of international law.
In the synopsis of his legal philosophy, among the most fundamental assumptions of Kelsen's legal positivism are the concepts
of “delict and sanction.”91 “Kelsen asserts that law is defined by sanction, that sanction consists in physical coercion and
that international law does indeed have this type of sanction available to it.”92 Kelsen further asserted that punishment and
civil execution are not completely missing in international law. “Exceptionally, there are norms of general as well as of
particular international law which provide for punishment and civil execution, so that the difference between the two legal
orders [international and domestic], with respect to the sanctions they provide, is only a relative, not an absolute, one.”93
Kelsen argued around the sovereignty problem in two ways: from the approach of primacy of national law, and from the approach
of primacy of international law. Arguing that international law is valid, based on the primacy of national law, Kelsen assumed
that “international law is valid for a state if it is recognized by this state as valid for its organs.”94 He continued:
But it can be recognized only with the content it has in the moment of recognition. Since it is assumed that not only
an express but also a tacit recognition of international law is possible, i.e., recognition through factual obedience
to and application of the norms of international law by the state in question, it follows that, on the basis of this
theory of recognition, *66 international law may be and actually is valid for all states .... Thus, international
law becomes part of the national legal order, and the reason of the validity of international law is placed in this
national legal order, wherefrom the relation between them is construed. In this way the primacy of national over
international law is established. It is this primacy of national law which in the traditional theory is presented as
sovereignty of the state.
“Sovereignty” in this sense is not an apperceptible or otherwise objectively recognizable quality of a real thing; it
is a presupposition .... The question whether a state is sovereign is only the question of whether one presupposes
a national legal order as a supreme order. And this is the case if one regards international law as valid for the
state only if it is recognized by the state, if one regards the “will” of the state as the reason for the validity of
international law.95

Asserting that a monist principle is more logical than the dualism associated with the absolute sovereignty of the several States,
Kelsen also argued, circularly, that international law is valid based on its own primacy. Kelsen asserted, “This is possible,
because, as pointed out, the principle of efficacy, a norm of positive international law, determines both the reason for and the
sphere of the validity of national law.”96 He continued:
This norm of international law determining the reason for the validity of the national legal order is usually
presented in the statement that according to international law the government of a community existent within a
certain firmly circumscribed space, if it exercises effective control over the members of this community and is
independent of other governments of analogous communities, is to be regarded as the *67 legitimate government,
and the community under this government as a state in the sense of international law ....
....
If this construction of the relation between international and national law is accepted, one cannot speak of
sovereignty of the state in the original and proper sense of this term. The “sovereign,” i.e., the supreme order, is
the international and not the subordinated national legal order.97
In asserting his value judgment in favor of the primacy of international law, Kelsen seems to forget his criticisms of the value-
laden concepts of Natural Law. Regardless, Kelsen warned against misuse of the term “sovereignty,” and acknowledges that
it is not a logical contradiction for a national law to be inconsistent with international law. Though, that would be a “most
undesirable” situation.98 He proposed a solution:
It is quite possible to establish, by a treaty under international law, an international organization centralized to such
a degree that it assumes the character of a state, which implies that the contracting states which become members
of this organization lose their own character as states. The question how far the government of a state through
treaties under international law shall or may restrict the freedom of action of its state is a question of politics.
The answer to this question cannot be deduced either from the primacy of international or from the primacy of
national law.99
Kelsen “ascribes central importance to the institution of a compulsory jurisdiction responsible for settling disputes that threaten
international peace.”100 Kelsen proclaimed that we should do away *68 with the individual sovereignty of states, as that would
be the only way to establish a true international legal system. He argued:
When the question arises how to secure international peace, how to eliminate the most terrible employment of
force--namely war--from inter-State relations, no answer seems to be more self-evident that this: to unite all
individual States, or at least as many of them as possible, into a World State, to concentrate all their means of
power, their armed forces, and put them at the disposal of a world government under laws created by a world
parliament. If States are allowed to continue their existence only as members of a powerful world federation, then
peace among them will be secured as effectively as among the component States of the United States of America
or the Cantons of the Swiss Republic.101

However, Kelsen recognized, there are potentially insurmountable difficulties in establishing such a federation.
The first problem concerns the way in which a World State may be established. Those who propound this idea
usually think of an international treaty by which States, previously sovereign subjects of international law, submit
themselves to a federal constitution the terms of which form the contents of the treaty. This is the only democratic
way to establish the World State.102
Such a democratic arrangement would likely be disfavored by those who believe in social contract theory and would wish to
bring about peace “by methods which comply with the principles of democracy: liberty and equality, applied to international
relations.”103 Kelsen posited that national States are not truly negotiated voluntarily by free and equal individuals; rather, “the
State comes into existence through hostile conflicts between social groups of different economic *69 structure.”104 Thus, the
World State might only come into existence “by forcible subjugation of all the nations of the world.” Kelsen continued:
[W]orld peace can only be established in an order imposed upon mankind by one great Power. If world peace can
only be secured by a World State, then the belief in the possibility of establishing such a State by an international
treaty concluded by independent governments is, according to the force theory, just the same mistake as the natural
law doctrine that the national State has been established by the voluntary agreement of individuals determined by
their reasonable insight into the advantages of peaceful collaboration under an authority upon which the monopoly
of force is conferred. History seems to teach that it is not the way of law, but the way of force, which leads to
peace.105
However, Kelsen considered, social contract theory is probably not entirely false, and force theory is probably not entirely true.
Indeed, he suggested:
[I]t seems very likely that no forcible subjugation of human beings can bring about a relatively lasting state of
peace without a minimum of consent on the part of the subjugated people .... On the other hand, no social contract
can constitute a more than temporarily pacified community without power to enforce the order constituting the
community.106
Therefore, the treaty creating the World State must be a “transaction totally different from that to which the doctrine of the
social contract refers.”107 Instead:
*70 The international treaty by which an international organization for the maintenance of peace would have to
be established would be concluded on the basis of a legal order which has existed for many hundreds of years ....
The contracting parties would be States, and would not necessarily change with every generation.108
Since there will be relatively few parties to the international compact, there is no reason to conclude that reasonable insight into
the advantages of international collaboration will not lead enlightened nations to join.109

On the other hand, it is not necessary to conclude that world peace can only be achieved under a World State. “The force
monopoly, the essential element of a legal community securing peace among its members, is possible even if the centralization
of the community does not reach the degree characteristic of a State.”110 The primary difficulty in pacific relations between
States is the absence of an “authority accepted generally and obligatorily as competent to settle international conflicts, that is,
to answer impartially the question as to which of the parties to the conflict is right and which is wrong.”111 Initially, therefore,
there must be an international court with compulsory jurisdiction.112
By Kelsen's theory of the history of law, it would not be unusual to establish the international court with compulsory jurisdiction
prior to establishing international legislative and executive authorities. For Kelsen, in the evolution of legal institutions, “[T]he
centralization of the law-applying function--that is, the establishment of courts--precedes the centralization of the law-creating
function--the establishment of legislative organs.”113 Indeed, Kelsen asserted:
*71 The centralization of the executive power is the last step in this evolution from the decentralized pre-State
community to the centralized community we call State. We have good reason to believe that international law--
that is, the law of the inter-State community, completely decentralized and dominated by the principle of self-
help--develops in the same way as the primitive law of the pre-State community.114
Since the court must have a means for executing its decisions, there must also be an international police force, independent from
the armed forces of the member States, placed at the disposal of an administrative agency; that police force will be “a radical
restriction, if not the total destruction, of the sovereignty of the States.”115
To resolve this issue, Kelsen argued that sovereignty is not absolute, but only relative: each State is sovereign in that it is not
subject to the law of another state, but the State may still be subjected to international law without contradicting the traditional
notion of sovereignty.116
The principle of equality [between States] is but a tautological expression of the principle of legality, i.e., the
principle that the general rules of law ought to be applied in all cases in which, according to their contents, they
ought to be applied .... The principle of equality understood in this way is the principle of autonomy of States
as subjects of international law.117
Thus, a State may be bound by the decision of an international agency even if the State is not represented. Or, if represented, a
State may be bound even if it has voted against the decision. Kelsen states, “[T]he legal rules constituting the so-called equality
of States are valid not because the States are sovereign, but because these rules are norms of positive international law.”118
Further, Kelsen asserted, “The *72 establishment of compulsory adjudication of international disputes is a means, perhaps the
most effective means, of maintaining positive international law.”119
For Kelsen, the failure of the League of Nations was caused by the absence of a tribunal with compulsory jurisdiction. That
court should have preceded the establishment of the Council and the Assembly of the League of Nations, the legislative bodies.
Since the Permanent Court did not have compulsory jurisdiction, and since legislation would be binding only if unanimous, any
member could ignore the rules set up by the League. Further, without an armed force to carry out is decisions, the international
community would be doomed to be ineffective.120
The constitution of an international community can oblige a Member State to restrict its armament to a
considerable extent only if this State can reckon upon efficacious help from the community in case it is attacked

by another State not belonging to the community and therefore not obliged to disarm. This is possible only if
the disarmament of the members is accompanied by an armament of the community, if an armed force is formed
which is at the disposition of the central organ .... Under such circumstances the duty of disarmament becomes
contradictory to the necessity of defense against aggression. Nevertheless, the Covenant of the League puts the
duty of disarmament in the foreground.121
Kelsen recognized the difficulty of getting member States to defend other member States, “especially if the international
organization embraces many States which have no common frontier.”122 Also, member States may not be on “good political
and economic terms, especially if the aggression is based on grounds not entirely disapproved by the public opinion of the State
obliged to give *73 its succor.”123 So, even though Article 10 of the Covenant of the League of Nations required members
to respect and preserve the territorial integrity and political independence of all other members, the League was practically
ineffective.124 At best, then, without an international court with compulsory jurisdiction, and without a true federation of
member States, the League could try to maintain internal peace and leave defense against external aggression to the members
themselves.125
The Statute of the Permanent Court of International Justice would be a good starting point, but:
The so-called “optional compulsory” jurisdiction provided for by Article 36 of the Statute is not compulsory in
the true sense of the term, since the Members of the League are free to submit to this jurisdiction merely for a
certain period of time and only with respect to certain disputes.126
Kelsen quoted British Prime Minister Winston Churchill on the need to establish “a really effective League with all the
strongest forces concerned woven into its texture, with a high court to adjust disputes and with forces, armed forces, national or
international or both, held ready to enforce these decisions and prevent renewed aggression and preparation of future wars.”127
Kelsen attached a draft of his Covenant of a Permanent League for the Maintenance of Peace as Annex I to his Peace Through
Law.128 Articles 31-37 of his proposal provide for compulsory jurisdiction of his international court.129 Article 31, subdivision
(b), states, “The Court is competent to decide any dispute between Members of the League submitted by one of the parties to the
dispute.” Article 38, subdivision (1), requires members to execute decisions of the court in good faith, *74 and if a Member
fails to do that, subdivision (2) provides for the Council to order the necessary measures destined to assure the execution.
In the end, though, Kelsen pessimistically recognized that the Covenant might only be good as long as the strongest powers
(United States, United Kingdom, Soviet Union, and China) adhere to it. He stated:
So long as the guarantors themselves respect the Covenant, their “hegemony” is nothing more than enforcement
of the law .... To provide for the possibility that the guarantors themselves may cease to obey the law is impossible,
not only with respect to the suggested treaty, but also with respect to any legal order whatsoever.130
IV. Critique of Kelsen's Legal Philosophy
A. Kelsen's Presupposed Grundnorm is a tautology and cannot be identified without triggering an infinite regression
of unfounded assumptions.

Another member of the Vienna Circle provides us with the tools to demonstrate that Kelsen's Grundnorm is not different from the
fundamental assumptions of the Natural Law theory of which Kelsen was so critical. The “Second Theorem” of mathematician
Kurt Friedrich Gödel (1906-1978) provides, in its simplest form, the “consistency of a formal system cannot be established
within the system.”131 This scientific hypothesis suggests that Kelsen cannot prove his theory of law from within his own theory
of law. Thus, where Kelsen describes a hierarchy of norms, all based on his presupposed Grundnorm, he can go no farther.
There is no logical way to prove the highest norm is the Grundnorm.
*75 Hence, Kelsen's Pure Theory of Law fails for the same reasons contained in his criticism of Natural Law theory. In a
lengthy critique of Natural Law theory, Kelsen stated:
Since the idea of a natural law is one of a “natural” order, it follows that its rules, directly as they flow from nature,
God or reason, are as immediately evident as the rules of logic and thus require no force for their realization ....
Positive law is essentially an order of coercion. Unlike the rules of natural law, its rules are derived from the
arbitrary will of human authority and, for this reason, simply because of the nature of their source, they cannot
have the quality of immediate self-evidence. The content of the rules of positive law lacks the inner “necessity”
which is peculiar to those of natural law by virtue of their origin.132
Kelsen's difficulty is that he cannot justify the source of his Grundnorm in its “presupposedness” any better than the Natural
Law theorist could justify the origin of his system of rules.
A number of writers have pinpointed this weakness in Kelsen's Pure Theory of Law. For example, Hamish Ross describes the
implausibility of Kelsen's “basic norm,” arguing:
Because the “content” of human acts (or facts) “corresponds to” the “content” of a norm, a “pure theorist” need
only concentrate on the norm since that was the declared object of cognition of Kelsen's pure theory. Human
behavior is neatly “reduced to” the content of a norm which refers to that behavior or makes that behavior relevant
to its purpose. For instance aspects of human behavior--e.g. what jurists presuppose--“become” part of the basic
norm.
Arguably Kelsen's basic norm does not escape from the distorting effect of this reductionism: for it gives rise to
an inherent, and seemingly irresoluble, *76 contradiction. On one hand, Kelsen presents the Grundnorm as a
“norm”, so it is legitimate to suppose that it is itself capable of being an object of theoretical cognition. It is, in
other words, reasonable to treat the basic norm as something which exists in the “real world” or, more specifically,
in the legal world. Although it may have special status in Kelsen's theory it is nonetheless a “norm” and to that
extent it is the “thing” studied because for Kelsen norms are the object of legal cognition of the pure theory of
law. On the other hand, however, Kelsen presents the basic norm as a means by which “things” of a legal nature
are studied and known about. As a transcendental category in the Kantian sense the basic norm becomes a set
of juristic presuppositions: a theoretical construct used to assist us in gaining knowledge of the legal world ....
Thus Kelsen--in the guise of the basic norm--ascribes relevant presuppositions to “all jurists” who knowingly or
unknowingly apply those presuppositions in conceptualising [sic] object of enquiry as a valid system of norms.
But that is the point at which the notion of the basic norm seems to break down. On one hand there is the
appearance of logical and conceptual consistency that comes from ascribing the status of “norm” to the basic
norm as (presumably) an “ought proposition” that “validates” norms at a lower level in the hierarchy of legal
norms and allows a derivative process of “validation” to proceed down the hierarchy to every other norm in the

system .... On the other hand there is the appearance of scientific detachment that proceeds from the claim that
the basic norm is extra-legal and defines in some sense--by means of theoretical “presuppositions”--an objective
cognitive position adopted by “all jurists.”
However the problem here is that if the basic norm occupies both roles--object of cognition (a *77 “norm”) and
a means of cognising [sic] such objects (what jurists presuppose)--the basic norm has to be a condition of having
knowledge of the basic norm itself. That, of course, is a vicious circle .... The postulate of the basic norm as Kelsen
presents it is untenable in so far as it vacillates between mutually incompatible functions.133
Similarly, Iain Stewart asserts:
Now, to argue as if something existed which does not exist is difficult but makes sense. But to argue as if something
were not self-contradictory which is self-contradictory is much more difficult, perhaps impossible in that the idea
of doing so becomes itself self-contradictory. Here, perhaps, the “pure theory of law” disintegrates.134
Stewart also points out that the pursuit of the basic norm must result in an infinite regress, or the ultimately basic norm can
only be a fiction.135
Likewise, Jeffrey Brand-Ballard points out, “So Kelsen appears committed to the claim that the validity or invalidity of a norm
must be verifiable if the associated proposition is to be meaningful (and vice versa).”136 However, “[T]his claim initiates an
infinite regress when the only means of verification offered for the validity of a norm is not empirical evidence, but yet another
norm, the validity or invalidity of which must be equally dependent on its verifiability, given Kelsen's prior commitments.”137
Further, Brand-Ballard points out:
Thus, Kelsen really is caught in a bind. Accepting verificationism, which his transcendental arguments demand,
he confronts an unsavory choice. If he starts with the premise that jurists coherently presuppose the validity of
the basic norm, then he *78 implicitly embraces the idea, which he himself as rejected elsewhere, that we can
verify the validity of that norm. If, on the other hand, he rejects the idea that we can verify the validity of the basic
norm, then he renders incoherent the notion that jurists manage to “presuppose” it ....
Kelsen tries to use a regressive transcendental argument to derive so much from the simple premise that we have
cognition of legal norms. That premise proves strong enough to engender skeptical and conventionalist challenges,
but too weak to answer them by underwriting the required sort of normative validity.138
In regard to international law, Stephen Hall points out Kelsen's failure to demonstrate the validity of all the other norms of
international law based on some Grundnorm. Hall states, “In the realm of international law, according to Kelsen, custom is the
fundamental source of all law. On this view, pacta sunt servanda is a principle only of customary international law, and the
general principles likewise find their exclusive foundations in custom ....”139 Hall continues:

And yet, for all its deftness, even this radically modified version of legal positivism is not capable of coherently
embracing international law ....
....
The most important norm in Kelsen's entire system is simply a necessary presupposition, and itself non-positive
in character. It is a given beyond which it *79 is not juridically possible to enquire .... Kelsen does not, therefore,
solve the fundamental problems of classical legal positivism, but simply tidies them up and relocates them. He
tacitly acknowledges this by conceding that the Grundnorm can be viewed as an ultra-minimalist natural law ....
Kelsen's international Grundnorm is, furthermore, remarkably thin. It amounts to no more than saying that there
is an opinio jurist observe custom; or, in the words of H.L.A. Hart (1907-1992), “it says nothing more than that
those who accept certain rules must also observe a rule that the rules ought to be observed.”140
In view of all these criticisms of one of the most basic building blocks of Kelsen's elegantly logical Pure Theory of Law, it
appears that the theory rests upon a very weak foundation.
B. Kelsen's legal theory provides no ground for condemning the legal commands of a despotic regime.
Since Kelsen threw out all social science except law and all philosophy except logic, “Kelsen had landed in a thoroughgoing
relativism, which obliged him to accept Nazism as a different but equal system of norms.”141 Hayek adds:
I still regarded it, for example, as a rhetorical question when I asked [in 1944], If Hitler had obtained his unlimited
powers in a strictly constitutional manner, “who would suggest that the Rule of Law still prevailed in Germany?”
only to discover later that professors Hans Kelsen and Harold J. Laski, and probably many other socialist lawyers
and political scientists following *80 these influential authors, had maintained precisely this.142
Following the collapse of the Nazi regime, a notable debate arose between Gustav Radbruch, one of the leading German legal
philosophers, and the Austrian, Hans Kelsen.
Radbruch contested a purely formalistic (“value-free”) view on legal validity as expressed by the founders of
positivist legal philosophy--notably Hans Kelsen, a leading figure in twentieth-century legal thought, whose
“Pure Theory of Law” insisted on the autonomy of the legal order from all ethical and political questions .... By
integrating criteria of basic justice into the concept of law, Radbruch rejected Kelsen's idea that anything that can
be manifested in legal form (even the decrees of the Nazis) is valid law, irrespective of its content.143

The context of this debate was the situation after 1945, when German courts had to determine whether the laws of the Nazi regime
were valid or not--“a jurisprudential dilemma that reflected the conflict between adherence to the form of law (as advocated by
Kelsen) and adherence to criteria of minimal justice (as professed by Radbruch).”144
Although he was a positivist-relativist before the war, following the war, Radbruch developed the thesis that “positive law
ceases to be valid if its departure from justice reaches an ‘intolerable level’ ....”145 Thus, for Radbruch, there need not be a
complete congruence between law and morality, but law must meet certain *81 standards of justice, and the validity of law
can be subjective.146 On the other hand, for Kelsen, a law's “moral illegitimacy” does not entail legal invalidity. On the basis of
a relativistic theory of values (that is, the denial that there could be objective assertions about morals), he argued that morality
as such is not part of the law, so that any content whatsoever can be legal.”147 However, following the war, “[w]ith regard
to the Nuremberg trial, Kelsen insisted that the protection against retroactive legislation was subject to important limitations
(namely, the rule that ignorance of the law is no excuse) .... In addition, there was a strong moral argument for establishing
individual criminal responsibility ....”148 Thus, in this event, Kelsen, himself, relied on subjective ethical-moral values that
were not consistent with his own Pure Theory of Law.149
So, were the German judges culpable for enforcing the unjust, immoral decrees of the Nazi regime?
The failure of the positivist side to address the practical issues at stake reflects a more fundamental failure to
articulate a theoretically sound response to the legal challenges arising in the aftermath of an unjust regime. In
times of political and legal change, a content-neutral concept of law provides no guidance or solution, precisely
because it is essentially indifferent to issues of substantive justice .... In making a case for retroactive legislation,
Kelsen, like Hart, offered a merely procedural argument, without reaching to the heart of the problem: legal
validity. In this way, as Fuller rightly pointed out, the debate turned no longer on the jurisprudential foundations
of law, but rather on ‘who should do the dirty work’ (the courts or the legislator?) ....
*82 As Radbruch rightly saw, the problem of extreme injustice can only be dealt with coherently if we adopt a
concept of law that incorporates some basic morality as a limiting criterion.150
Although this famous debate involved a legal problem specific to its time and place in history, Kelsen's Pure Theory of Law
should give one great concern. If it is applied consistently, there may be no legal response to the gross injustice of a murderous
totalitarian regime.
C. By Kelsen's own logic, the ineffectiveness of international law demonstrates its invalidity.
The question whether the international legal order is effective, at all, in the sense that international legal norms are applied by
international legal organs, or in the sense that states obey international legal norms or conform their behavior according to some
other standard, leads to yet another criticism of Kelsen's notion that international law is law.
Kelsen, himself, required “efficacy” as a condition of “validity” for a legal order. For example, he asserted, “But although
validity and efficacy are two entirely different concepts, there is nevertheless a very important relationship between the two.
A norm is considered to be valid only on the condition that it belongs to a system of norms, to an order which, on the whole,
is efficacious.”151 Likewise, he stated that:

[T]he reason is that normative jurisprudence asserts the validity of a norm, and that means its “existence,” only
when that norm belongs to a legal order which as a whole is efficacious, i.e., when the norms of this order are. by
and large, obeyed by the subjects of the order and, if not obeyed, are by and large applied by its organs.152
*83 Elsewhere, he stated, “Nor do validity and effectiveness coincide in time. A legal norm becomes valid before it becomes
effective .... Effectiveness is a condition of validity in the sense that effectiveness has to join the positing of a legal norm if
the norm is not to lose its validity.”153
Therefore, by a consistent application of Kelsen's Pure Theory of Law, especially as it applies to international law, if the system
of international law norms is ineffective, then it is not valid and it does not exist.
Empirically, international law is not effective. The Statute of the League of Nations outlawed war, but the League was completely
ineffective at preventing violation of this norm, even by its own members. The League of Nations failed to prevent the Greco-
Turkish War of 1920-1922 (Greece was a member; Turkey did not join until 1932), the Russo-Polish War of 1920 (Poland was
a member), France's occupation of the Ruhr in 1923 (France was a member, and Germany joined in 1926), Japan's invasion of
Manchuria in 1931 (Japan was a member until 1933), the Chaco War of 1932-1935 (Bolivia versus Paraguay--both countries
were members), Japan's invasion of China in 1937, Italy's invasion of Ethiopia in 1935 (Ethiopia was a member, and Italy
was a member until 1937), the German occupation of the Rhineland in 1936 (France was still a member until 1941; Germany
was a member from 1926-1933), and the Soviet invasion of Finland in 1939 (Finland was a member; the Soviet Union was
expelled in 1939).
After World War II, Soviet-American competition prevented the United Nations from being tested as a collective security
apparatus during the Cold War, and there have been several notable failures in more recent years, as in Yugoslavia and
Rwanda.154 More recently, Russia invaded the territory of Georgia, even though both are members of the United Nations, in
violation of treaties existing between Georgia and the Soviet Union (Russia's predecessor), and possibly in violation *84 of
Article 22 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and Article IX of
the Convention on the Prevention and Punishment of the Crime of Genocide, to both of which both States are unreservedly
parties.155 That is a lot of “law” that many States have ignored without sanction, demonstrating the ineffectiveness of, at least,
these international laws.
More fundamentally, there is no strong evidence that States behave as they do because of international law. That is, it is just as
likely, if not more likely, that States behave as they do in spite of international law. Applying tools and models from “Rational
Choice,” a methodology originally from the field of Economics, it appears likely that States act “rationally to maximize their
interests, given their perceptions of the interests of other states and the distribution of state power.”156 Under Rational Choice
analysis, it is irrelevant whether the form of the international law in question is customary law, treaty, or positive/legislated
law. For Goldsmith and Posner, there is a better explanation for compliance with international law than opinio juris, pacta sunt
servanda, or a feeling that compliance is the moral or legitimate thing to do. These reasons have little explanatory value for how
States really act.157 Instead, Rational Choice suggests that States make some determination of the costs and benefits of pursuing
a certain course of action, and their behavior will fall into one of four models, or some combination of them: (1) Coincidence
of Interest, where the States pursue their respective interests, other States' interest are irrelevant, and the outcome is a mere
coincidence; (2) Coercion, where a powerful State pursues its own interest and a weaker state chooses not to oppose the stronger
State; (3) Cooperation, where a State rationally chooses to work toward some end together with other States, without certainty
as to other States' chosen courses of action, as in the classic Prisoner's Dilemma; and (4) Coordination, where the *85 interests
of two or more States converge and they collaborate with each other to achieve some goal.158

In view of the foregoing, there must be serious doubt as to the “effectiveness” of international law. Therefore, if Kelsen's Pure
Theory of Law is applied consistently, there must be serious doubt as to the validity and the existence of international law.
V. Conclusion
The hopes of most of the world are based on the promise of international law. Yet, as Michael J Glennon stated, “International
Law has lost enormously over the years by overstating claims of its success.”159 This paper is the first step in my examination of
why the success of international law is overstated and why there has been a failure to establish international order, if not peace.
Footnotes
a1 Christopher Inama is an Administrative Law Judge for the California Department of Insurance. He joined the faculty of Lincoln Law
School in August 2005, as an A.S.P instructor for first-year Contracts students and also had an elective course on “Legal Reasoning”
in Summer 2006, and another on “Administrative Law” in Summer 2008. He teaches courses on Economics and on Business Law at
Golden Gate University's School of Business. He was awarded a B.A. in political science by UC Santa Barbara in 1974; an M.A. in
economics by California State University, Hayward, in 1996; and an LL.M. (International Legal Studies) by Golden Gate University
(GGU) School of Law in 2005. He is currently pursuing an S.J.D. (International and Comparative Law) at GGU.
1
Sompong Sucharitkul, Keynote Address at the 19th Fulbright Symposium at the Golden Gate University School of Law: International
Law as Law 12 (April 3, 2009) (DVD available on reserve at Golden Gate University School of Law).
2 Michael J. Glennon, How International Rules Die, 93.1 Geo L.J. 939, 990-91 (2004).
3 Alexander Somek. Kelsen Lives, 18 Eur. J. Int'l L. 401, 417-18 (2007).
4 Francois Rigaux, Hans Kelsen on International Law, 9 Eur. J. Int'l L. 325, 332 (1998).
5 Carl Landauer, Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter, 14 Eur. J. Int'l L. 767, 775-76 (2003);
See also id. at 798 (where Landauer also asserts that, for Kelsen, “[I International law is characterized mostly by its absence.”); See
also Hans Kelsen, Peace Through Law 127-40 (University of North Carolina Press 1944).
6 Nicoletta Bersier Ladavac, Hans Kelsen (1881 - 1973) Biographical Note and Bibliography, 9 Eue. J. Int'l L. 391, 393 (1998).
7 Somek, supra note 3, at 418-19; See generally Kelsen, supra note 5 at 71-124, 141-48.
8 J. Peter Pham, The Perils of “Consensus”: Hans Kelsen and the Legal Philosophy of the United Nations, 14 Ind. Int'l & Comp. L.
Rev. 553, 559 (2004).
9 The Concise Encyclopedia of Western Philosophy and Philosophers 182-87 (J.O. Urmson & Jonathan Rée eds., Routledge 1991)
(1960).
10 F.A. Hayek, The Errors of Constructivism, in New Studies in Philosophy, Politics, Economics, and the History of Ideas 18 (Routledge
1978); Kurt R. Leube. Law and Economics: Some Preliminary Remarks on Hayek's Early Student Years and his Development of the
Theory of Spontaneous Order, in Contending With Hayek: On Liberalism, Spontaneous Order and the Post-Communist Societies in
Transition 161, 166 (Christopher Frei & Robert Nef eds., Peter Lang 1994).

11 Clemens Jabloner, Kelsen and his Circle: The Viennese Years, 9 Eur. J. Int'l L. 368, 376 (1998).
12 Id. at 378; See id. at 378 n.46.
13 Hayek, supra note 10, at 15; See F.A. Hayek, Law, Legislation, and Liberty. Volume 2: The Mirage of Social Justice 45 (University
of Chicago Press 1976); See also Suri Ratnapala, Securing Constitutional Government, 8.1 Indep. Rev. 5, 10 (2003).
14 Somek, supra note 3, at 411.
15 See Hans Kelsen, General Theory of Law and State 13 (Anders Wedberg trans., Harvard University Press 1945); Hayek, supra note
10, at 17; Leube, supra note 10, at 166 (“He [Kelsen] was right when he argued that we can never positively prove what is or may
be ‘just.’ But this, of course, does not preclude our ability to say when a rule is unjust, or that through the persistent application of
such a negative test of injustice we may not be able to progressively approach justice.”).
16 Hans Kelsen, Pure Theory of Law 217 (Max Knight trans., University of California Press 1967) (1934).
17 Id. at 198 (Kelsen later wrote, “A legal norm is not valid because it has a certain content, that is, because its content is logically
deducible from a presupposed basic norm, but because it is created in a certain way--ultimately in a way determined by a presupposed
basic norm .... Therefore any kind of content might be law.”); Id. at 13 (Indeed, Kelsen wrote, “In Nationalist-Socialist Germany
certain coercive acts which at the time of their performance were legally murder, were subsequently retroactively legitimized as
‘sanctions'; and the behavior of the victim which elicited the murder was subsequently qualified as a ‘delict.”’).
18 Leube, supra note 10, at 163.
19 Kelsen, supra note 15, at 433.
20 Hans Kelsen, What is Justice?, in What is Justice?: Justice, Law, and Politics in the Mirror of Science: Collected Essays 20 (Lawbook
Exchange, Ltd. 2000).
21 Kelsen, supra note 15, at xiv.
22 Id. at xiv-xv.
24 Id. at 68-69.
25 Kelsen, supra note 15, at 182-84.
26 Ratnapala, supra note 13, at 11 (emphasis added).
27 Pham, supra note 8. at 562; See also Kelsen, supra note 15, at 45 (discussing sanctions as a coercive act).

28 Leube, supra note 10, at 166; See also Hamish Ross, Hans Kelsen and the Utopia of Theoretical Purism, 12.2 King's C. L.J. 174,
177 (2001) (“Kelsen also promoted a particular view of ‘sociology’: equating it to a Comteian form of sociological positivism.”); See
also id. at 175 (Ross suggests that, since Kelsen's Pure Theory of Law is infused with “sociology” (and other social sciences), “[I]n
every context Kelsen's aspiration to ‘purity’ is best approached with a measure of caution, if not skepticism”).
30 Id.
31 Id. at 3-4.
32 Id. at 5.
33 Id. at 102.
34 Id. at 6.
35 Id. at 104.
36 Id. at 8.
37 Id. at 10.
38 Id.
39 Id. at 11.
40 Id.
41 Id. at 211-12.
42 Id. at 31.
43 Id. at 33.
44 Id. at 34.
45 Id. at 50 (emphasis added).
46 Id. at 54.
47 Id. at 34.

48 Id.
49 Id. at 37.
50 Id. at 54.
51 Id. at 108.
52 Id. at 110 (However, Kelsen recognizes it is “disputed whether reprisals and war may be interpreted as sanctions of international law,
and whether, therefore, international law may be regarded as a legal order.”).
53 Id. at 111.
54 Id. at 111-12.
55 Id. at 193.
56 Id. at 193-95.
57 Id. at 195-96 (That this Grundnorm, or basic norm, is only presupposed and cannot be proven leads to some logical inconsistency
and fundamental criticisms of Kelsen's Pure Theory, which will be addressed in the final section of this paper.).
58 Id. at 196.
59 Id.
60 Id.
61 Id. at 201.
62 Id. at 286.
63 Id. at 294.
64 Id. at 318-19.
65 Peter Boettke & Roger Koppl, Introduction, 14.2-3 Rev. of Austrian Econ. 111, 111-12 (2001).
66 Bruce Caldwell, Beyond Positivism: Economic Methodology in the Twentieth Century 11 (Routledge 1994).
67 Id. at 13.

68 Id.
69 Id. at 13-14.
70 Jeffrey Brand-Ballard, Kelsen's Unstable Alternative to Natural Law: Recent Critiques, 41 Am. J. Juris. 133, 139 (1996).
71 Caldwell, supra note 66, at 14; See also Brand-Ballard, supra note 70, at 140-41 (Brand-Ballard states, “There is good reason to
suppose that Kelsen was a verificationist. And we can now see how the semantic thesis of verificationism supports the meta-ethical
thesis of moral relativism. Since moral propositions cannot be empirically verified, they cannot be meaningful, which entails that
they can be neither true nor false .... Hence, verificationism leaves us with moral relativism, which in turn motivates Kelsen to spurn
natural law.”).
72 Caldwell, supra note 66, at 16.
73 Friedrich Stadler, The Vienna Circle: Studies in the Origins, Development, and Influence of Logical Empiricism 28 (Springer 2001).
74 Id. at 806.
75 Id. at 180.
76 Id. at 182.
77 Id. at 66.
78 Id. at 393.
79 Karl Raimund Popper, The Demarcation Between Science and Metaphysics, in Conjectures and Refutations 344 (Routledge 1963).
80 Id. at 345-46.
81 Id. at 378-79.
82 Karl Raimund Popper, Prediction and Prophecy in the Social Sciences, in Conjectures and Refutations 465-66 (Routledge 1963).
83 F.A. Hayek, The Counter-Revolution of Science 13 (Free Press 1952).
84 Id. at 92.
85 Id., See also F.A. Hayek, The Use of Knowledge in Society, in Individualism and Economic Order 77 (University of Chicago Press
1948) (Hayek points out the problem of designing a complex system of human interaction, slating, “What is the problem we wish
to solve when we try to construct a rational economic order? On certain familiar assumptions the answer is simple enough. If we
possess all the relevant information, if we can start out from a given system of preferences, and if we command complete knowledge
of available means, the problem which remains is purely one of logic. That is, the answer to the question of what is the best use of the
available means is implicit in our assumptions. The conditions which the solution of this optimum problem must satisfy have been

fully worked out and can be stated best in mathematical form ... This, however, is emphatically not the economic problem which
society faces. And the economic calculus which we have developed to solve this logical problem, though an important step toward
the solution of the economic problem of society, does not yet provide an answer to it. The reason for this is that the ‘data’ from
which the economic calculus starts are never for the whole society ‘given’ to a single mind which could work out the implications
and can never be so given.”).
86 Hayek, supra note 10, at 17-18.
87 F.A. Hayek, The Constitution of Liberty 237 (University of Chicago Press 1960).
88 Id. at 237-38.
89 John Austin, The Province of Jurisprudence Determined 112 (Cambridge University Press 1995).
90 William M. Johnston, The Austrian Mind: An Intellectual and Social History 1848-1938, at 97-98 (University of California Press
1972).
92 Charles Leben, Hans Kelsen and the Advancement of International Law, 9 Eur. J. Int'l. 287, 289 (1998).
93 Hans Kelsen, Principles of International Law 401 (Rinehart 1952).
94 Hans Kelsen, Sovereignty and International Law, 48 Geo. L.J. 627, 630 (1960).
95 Id. at 630-31.
96 Id. at 631.
97 Id. at 631-32.
98 Id. at 635-36.
99 Id. at 637-38.
100 Leben, supra note 92, at 291.
102 Id. at 5.
103 Id. at 5-6.

104 Id. at 6.
105 Id.
106 Id. at 7.
107 Id.
108 Id. at 8.
109 Id. at 8-9.
110 Id. at 9.
111 Id. at 13.
112 Id. at 14.
113 Id. at 21.
114 Id. at 22.
115 Id. at 19-20.
116 Id. at 34-35.
117 Id. at 37-38.
118 Id. at 38.
119 Id. at 44-45.
120 Id. at 49-51.
121 Id. at 51.
122 Id. at 52.
123 Id.
124 Id. at 52-53.

125 Id. at 55.
126 Id. at 56.
127 Id. at 57.
128 See id. at 127-140.
129 Id. at 63.
130 Id. at 66-67.
131 Simon L. Altmann, Is Nature Supernatural?: A Philosophical Exploration of Science and Nature 400 (Prometheus Books 2002).
133 Ross, supra note 28, at 191-92.
134 Iain Stewart, Closure and the Legal Norm: An Essay in Critique of Law, 50 Mod. L. Rev. 908, 914 (1987).
135 Id.
136 Brand-Ballard, supra note 70, at 156.
137 Id.
138 Id. at 159.
139 Stephen Hall, The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism, 12.2 Eur. J. Ini'l L. 269,
299 (2001); See also Kilsen, supra note 15 at 396 (Kelsen states, “The basic norm of international law, therefore, must be a norm
which countenances custom as a norm-creating fact, and might be formulated as follows: ‘The States ought to behave as they have
customarily behaved.’ Customary international law, developed on the basis of this norm, is the first stage within the international
legal order.”).
140 Hall, supra note 139, at 300.
141 Johnston, supra note 90, at 98.
142 F.A. Hayek, The Road to Serfdom 55 (University of Chicago Press 2007)(1944).
143 Frank Haldemann. Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law, 18.2 Ratio Juris 162, 162-63 (2005).

144 Id. at 163; See also id. at 170-72 (The Radbruch-Kelsen debate led to a further notable debate between positivist H. L. A. Hart,
who opposed the “Radbruch Formula”, but recognized the possibility of a moral quandary, and the anti-positivist Lon L. Fuller, who
perceived a necessary connection between the “order” of law and the “good order” of morality).
145 Id. at 166.
146 Id.
147 Id. at 167.
148 Id. at 169 (citing Hans Kelsen, Will the Judgement in the Nuremberg Trial Constitute a Precedent in International Law?, 1 The Int'l
L. Q. 153, 164-65(1947)).
149 Id. at 169-70.
150 Id. at 175-76.
152 Id. at 170.
154 John J. Mearsheimer, The False Promise of International Institutions, in Theories of War and Peace 329, 355-64 (Michael E. Brown
et al. eds., 2001).
155 See Press Release No. 2008/23, International Court of Justice (Aug. 12, 2008), available at http://www.icj-cij.org/docket/
files/140/14659.pdf.
156 Jack L. Goldsmith & Eric A. Posner, The Limits or International Law 3 (Oxford University Press 2005).
157 Id. at 14-15.
158 Id. at 25-35.
159 Glennon, supra note 2, at 990-91.
38 LINCLR 41
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HANS KELSEN'S LEGAL POSITIVISM AND INTERNATIONAL..., 38 Lincoln L. Rev.

Lincoln Law Review

Copyright © 2011 by Lincoln Law School of San Jose; Christopher R. Inama

HANS KELSEN'S LEGAL POSITIVISM AND INTERNATIONAL LAW

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1

I. Synopsis of Kelsen's Legal Philosophy

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 2

Later, Kelsen stated:

Further, Kelsen argued:

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 3

B. The Elements of Kelsen's Pure Theory of Law

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 4

While a norm must be effective to be valid, effectiveness is only a condition of validity:

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 5

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 6

Consistent with his positivist scientific theory of law, Kelsen asserted:

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 7

II. Kelsen and Logical Positivism in Post-WWI Vienna

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 8

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 9

It is this deification of history which I am combating.

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 10

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 11

III. Kelsen on International Law

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 12

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 13

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 14

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 15

IV. Critique of Kelsen's Legal Philosophy

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 16

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 17

Similarly, Iain Stewart asserts:

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 18

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 19

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 20

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 21

3 Alexander Somek. Kelsen Lives, 18 Eur. J. Int'l L. 401, 417-18 (2007).

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 22

12 Id. at 378; See id. at 378 n.46.

14 Somek, supra note 3, at 411.

18 Leube, supra note 10, at 163.

19 Kelsen, supra note 15, at 433.

21 Kelsen, supra note 15, at xiv.

23 Kelsen, supra note 16, at 66.

25 Kelsen, supra note 15, at 182-84.

26 Ratnapala, supra note 13, at 11 (emphasis added).

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 23

29 Kelsen, supra note 16, at 1.

45 Id. at 50 (emphasis added).

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 24

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 25

72 Caldwell, supra note 66, at 16.

83 F.A. Hayek, The Counter-Revolution of Science 13 (Free Press 1952).

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 26

86 Hayek, supra note 10, at 17-18.

91 Kelsen, supra note 15, at 328-30.

93 Hans Kelsen, Principles of International Law 401 (Rinehart 1952).

100 Leben, supra note 92, at 291.

101 Kelsen, supra note 5, at 4-5.

103 Id. at 5-6.

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 27

109 Id. at 8-9.

111 Id. at 13.