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The Public International Law Theory of Hans Kelsen : Believing in Universal Law - Jochen von Bernstorff

The Public International Law Theory of Hans Kelsen

Believing in Universal Law

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Published: 31st October 2010
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This analysis of Hans Kelsen's international law theory takes into account the context of the German international legal discourse in the first half of the twentieth century, including the reactions of Carl Schmitt and other Weimar opponents of Kelsen. The relationship between his Pure Theory of Law and his international law writings is examined, enabling the reader to understand how Kelsen tried to square his own liberal cosmopolitan project with his methodological convictions as laid out in his Pure Theory of Law, Finally, Jochen von Bernstorff discusses the limits and continuing relevance of Kelsenian formalism for international law under the term of "reflexive formalism," and offers a reflection on Kelsen's theory of international law against the background of current debates over constiutionalization, institutionalization, and fragmentation of international law. The book also includes biographical sketches of Hans Kelsen and his main students Alfred Verdross and Joseph L. Kunz.

Prefacep. xiii
Introductionp. 1
The quest for objectivity: the method and construction of universal lawp. 13
Method and construction of international law in nineteenth-century German scholarshipp. 15
Kaltenborn and the "objective principle" of international lawp. 15
The "subjective principle" in Kant and Hegelp. 17
Humanity as a "community of law" [Rechtsgemeinwesen] in Kaltenbornp. 18
Bergbohm and Fricker: "The problem of international law revisited"p. 21
Jellinek as synthesisp. 26
The free will of the state as the formal ground of all lawp. 28
The concept of "self-obligation" [Selbstverpflichtung] and the obligatory nature of public lawp. 30
The theory of the guaranteed normp. 32
Jellinek's "objective international law"p. 32
The "nature of the thing" [Natur der Sache] as a principle of objectificationp. 32
"Shared interests" and "purpose of the state" as the final sociological foundation of objective international lawp. 35
Heinrich Triepel and the "common will" [Gemeinwille] as a principle of objectivizationp. 38
Conclusionp. 42
Kelsenian formalism as critical methodology in international lawp. 44
A new methodological tool kitp. 44
Methodological dualism as the starting pointp. 45
Methodological critique through the "identity thesis"p. 50
The anti-ideological thrust of the new methodologyp. 54
The function of the critical methodology: law as a universal medium for shaping societyp. 56
Volk, nation, and state in international lawp. 56
Law as a universal medium of societal changep. 60
The fundamental critique of the conceptual apparatus of international lawp. 61
The conceptual uncoupling of the notion of sovereignty from the "state as a legal person of will" [willensfähige Staatsperson]p. 61
Critique of the conception of sovereignty as a core stock of state competenciesp. 63
Sovereignty as a hierarchy-creating, ordering element of the legal systemp. 64
The critique of the doctrine of self-obligationp. 67
The critique of a dualism of state law and international lawp. 70
A crititue of the duality of sourcesp. 70
A critique of the duality of regulatory objectsp. 71
The opponents of the critical method: Kelsen's abstract conceptual world as a "radical-logicistic metaphysics"p. 73
An "objective" architecture of international law: Kelsen, Kunz, and Verdrossp. 78
Constructing a unitary systemp. 78
Systemic unity as an epistemological postulatep. 79
"Delegation" as a unity-creating structural principlep. 80
The idea of unity in the discourse on international lawp. 82
International law as law endowed with the power of coercionp. 84
Central compulsion and the "world state trap" [Weltstaatsfalle]p. 84
Reprisals and war as decentralized means of coercionp. 87
The coercive character as an evolutionary achievementp. 90
The primacy thesis: the construction of an international law above the statep. 93
The delimitation of the state's spheres of competence through international lawp. 93
The primacy thesis and the problem of norm conflictsp. 96
The defense and further development of the primacy thesisp. 97
The primacy thesis, domestic jurisdiction, and the decisions of the Permanent Court of International Justice (PCIJ)p. 100
The quarrel over the choice hypothesis [Wahlhypothese]p. 104
The opponents of the construction of a universal law and the notion of the "world state"p. 108
Universal law, the "world state," and the civitas maximap. 108
The universal system of law as natural law?p. 112
The abuse of the idea of universalismp. 116
The outlines of the cosmopolitan project - the actors, sources, and courts of universal lawp. 119
The new actors of universal lawp. 123
Legally organized communities above the statep. 125
Unions of states as a dynamic continuum of legal integrationp. 126
Unions of states as a particular international legal communityp. 127
The doctrine of centralization and decentralizationp. 130
Sovereignty as the state's direct subordination to International law [Völkerrechtsunmittelbarkeit]p. 132
The legal nature of the League of Nationsp. 133
The League of Nations as a personified sub-order of international lawp. 136
The League of Nations as a community of joint ownership [Gemeinschaft zur gesamten Hand]p. 140
The opponents of an "integration-friendly" theory of international lawp. 143
The individualp. 146
Positive lawp. 146
The critique of Scelle and Politisp. 148
Universal law as a dynamic system of integrationp. 150
Legal sources as universal instruments of law-creationp. 153
Sources beyond metaphysics and consensusp. 153
The critique of metaphysical dualismp. 154
The critique of the positivist consensus modelp. 157
The hypothetical character of international law: the basic norm of international lawp. 160
The legal sources of international law and the hierarchical structure of the lawp. 165
Customary lawp. 167
Dispensing with the opinio iurisp. 168
The replacement for the opinio iurisp. 170
An objective doctrine of treatiesp. 172
The creation of the treaty-based legal orderp. 173
The international treaty's mode of actionp. 176
The theory of legal sources as a self-limitation of legal scholarshipp. 179
The opponents of a "dematerialized" doctrine of legal sourcesp. 181
Rematerialization as a strategy of revisionp. 181
Pure Theory of Law and the "unjust" status quop. 185
Replacing the ideal of justice with the ideal of peacep. 188
The international judiciary as the functional center of universal lawp. 191
Peace through compulsory jurisdictionp. 191
The politico-legal approach: the Permament League for the Maintenance of Peacep. 193
The socio-historical approach: compulsory jurisdiction as a necessary step toward a centralized, universal legal systemp. 198
The doctrinal approach: the fundamental critique of the doctrinal limitation on the judicial function in international relationsp. 203
The theoretical classification of the judicial decisionp. 212
The function of the judicial decision within the hierarchical structure of the lawp. 212
The nature of judicial decision-makingp. 214
The postulate of compulsory jurisdiction as the consequence of a system-oriented conception of the lawp. 218
Realist opposition to the quest for a strong international judiciary: compulsory jurisdiction as another "distinguished international lawyer's dream"p. 220
The role of the international legal scholar after Kelsen - a concluding reflectionp. 225
Postscript - on Kelsenian formalism in international law (2010)p. 233
Career sketchesp. 272
Bibliographyp. 286
Indexp. 316
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9780521516181
ISBN-10: 0521516188
Series: Cambridge Studies in International and Comparative Law
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 344
Published: 31st October 2010
Publisher: Cambridge University Press
Country of Publication: GB
Dimensions (cm): 22.9 x 15.2  x 2.1
Weight (kg): 0.63