Kelsen - The University of Sydney

Sophie York 
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The Philosophy of Law: From Kelsen to Human Rights Theory
Harris Chapter 6 (Kelsen) p 64
Brian Bix Chapter 4 (Kelsen) p57
McCoubrey & White (Kelsen) p 43
Hans Kelsen (1881-1973)
Austrian legal theorist, prolific and influential.
Modern legal positivist.
Described his theory in German as “reine Rechtslehre” or in English “a pure theory
of law”, a ‘science of norms’.
Thought that moral judgements, political biases and sociological conclusions should
be put aside for the purposes of divining what was pure law.
Kelsen wanted to isolate what was unique to legal structures. It was a pure theory
because it would describe law without reducing it to psychology, sociology or the
like. This distinguished Kelsen’s views from the Scandinavian realists.
In describing it as a science of norms Kelsen wanted a description of the structure of
law that was free of evaluative terms.
He thought
1.Normative claims (how things ought to be or how people ought to act) can only be
legitimised only by reference to other normative claims.
2. Such lines of justification come to an end at some point.
Kelsen did not have religious faith. He theorised that there was a foundational
argument presupposed by law, in a comparable way to the one implied by a
religious-based statement.
He also looked at actions and worked out what actions were normative actions eg
putting slips of paper into a box – voting.
Kelsen characterised laws as rules or norms. Laws are always part of a system of
norms having relationships of validity which they derive from higher norms. A
norm was a valid norm if a higher norm authorised the making of the lower norm
and it had been made in accordance with the higher authorising law.
The Grundnorm
Kelsen recognised that the chains of validity do not regress indefinitely and one will
ultimately run out of higher authorising valid norms. What confers validity on the
system as a whole is not therefore another positive rule of law but what Kelsen called
the grundnorm sometimes translated as ‘basic norm’.
Kelsen described the grundnorm as the fundamental assumption made by people
in society about what would be treated as law. It is not the constitution, which for
Kelsen was simply another positive norm.
P58 Bix “It is the understanding that eventually we will come to a point either so
foundational, or so early in society’s legal theory that one cannot go further back,
and no further justification can be offered”. Asserting the normative validity of a
particular legal rule (eg you cannot park here) is to implicitly affirm the validity of
the foundational link of the chain.
This affirmation of the underlying belief in the system is what Kelsen called the
affirming the “Grundnorm”.
eg in religion you might say you cannot do x and y because God says, and that is your
foundational belief… if you follow the basic norm it is because you believe in what
Parliament says and the authority Parliament had for passing the norms/laws.
It is apparent that what particular grundnorm applies in a society simply depends upon
what fundamental assumptions are made by the members of that society. The identity of the
grundnorm is ultimately a matter of sociological fact. (No moral or other judgement or
assessment is being made about it).
Some people have argued that it follows from Kelsen’s theory that if the assumption should
change as a result of a revolution or coup d’état, and people apply the new assumption, then
laws made with the new assumption will be valid. Kelsen’s theory appears consistent with
maxim “might is right”.
Whether or not this controversial assumption flows from Kelsen’s theory has been
considered in cases involving radical norm change.
The Republic of Fiji v Chandrika Prasad (Court of Appeal of Fiji Islands, 1 March
2001) and;
On a decision in Australian law about what appears to constitute the grundnorm
Trethowan v Attorney General for New South Wales (1931) 44 CLR 394; and [1932]
AC 526, in which it was held that the relevant provision of the Constitution Act was
a law which deprived the legislature of the requisite power. The Privy Council
concluded that the words “manner and form” were amply wide to comprehend a
requirement that a Bill must be put to referendum prior to its valid passage.
On appeal, the Privy Council upheld the High Court’s decision.
Summarising Kelsen:
2 things universally true of law:
- coercive
- system of norms
and all legal norms could be understood in terms of an authorisation to an official to impose
sanctions. A does X (wrong act), B imposes Y (sanction) and it applied in both civil and
criminal law (see Bix).
Concept of the basic norm:
4 questions to be asked: [see Harris]
1.Its nature
3.function to choose between competing basic norms
Basic norm was valid due to:
system-membership (eg we in our society are part of a system)
bindingness (this had to be an attribute of the basic norm)
when there is a revolution, OLD LAWS STOP BEING ENFORCED
new laws by the rebels are enforced instead therefore, there is a NEW BASIC NORM
authorising revolutionary constitution. (Might is Right notion)
Critics say: do we really measure legality by effectiveness? (ie the more radical the coup
the more lawful/authorised it is?)
Kelsen – efficacy or effectiveness = pre-condition of legal validity (desirability, ethics or
morality nothing to do with it)
See McCoubrey re impact and understanding of grundnorm concept upon sovereign states
agreeing to create and abide by ‘International Law’.
 Having studied the features of law – is international law actually “law”?
What are its characteristics?
At a philosophical level:
Aspects which can be seen in a domestic context: the existence of obligation, external or
internal, are arguably present: analysis can be the same, that it is obeyed, or should be
obeyed because of arguments re attributes of one or some of the others:
Coercion (Bentham, Austin) (Law = Command of sovereign backed up by sanction)
Social Contract (Socrates, Hobbes, Locke, Rousseau)
Natural Law (Aquinas, Finnis, Fuller, Grotius)
Integrity (Associative obligations, Individual Moral Integrity) (Dworkins)
No obligation (The Razian analysis)
Hallmarks which arguably make it resemble law as a practical matter:
Logical, formal body of written, codified law
Institutions have been set up to create and enforce it – Legislature, Courts (eg ICJ)
Member states affected by it agree to be governed by it
Enforcement sometimes is effective
Absence of an international legislature
Absence of courts with compulsory adjudication
Absence of centrally organised sanctions
Problems of jurisdiction
The obligations of international law are different in character from those of national
John Austin (positivist), following Hobbes, Kant and Rousseau denies the existence of
genuine international law
All that exists is international customary morality
Without a sovereign to enforce it, law does not exist.
International law is therefore only law by ‘remote analogy’.
Who is the sovereign?
The United Nations? And then, even within the UN:(The General Assembly? The
Security Council?)
The United States?
Jurisdiction of The International Court of Justice - world court, judicial organ of UN.
Dual jurisdiction (NB issues determination btw states, not justice in relation to individuals)
Dispute resolution - Decisions on submitted disputes (in accordance with international law)
by States;
Advisory opinions - legal questions at the request of the organs of the United Nations or
authorised agencies .
International Criminal Court (ICC), governed by treaty – ‘Rome Statute’ (1 July 2002) 111
nation-states have ratified as at 2010
Non-UN – is first permanent, treaty based, international criminal court (for perpetrators of
most serious crimes of concern to the international community.)
Some theorists suggest that international law only gives rise to self-imposed obligation
This is rather like the ‘social contract model’
Some of the problems which this gives rise to…
Philosophers beginning with Hobbes have started out from the assumption of self-interested
individuals pursuing their own goals (without a covenant with the state enforced by the
sword, the life of man would be? Solitary, poor, nasty, brutish and short’)!
However, this leads to the following problem:
Most efficient way to pursue one’s goals is either force or fraud
Therefore left to its own devices society would degenerate into the ‘war of each against all’
The solution Hobbes proposes is that individuals agree voluntarily to restrict their selfinterest in pursuit of the common good.
Without some pre-existing framework of rules and institutions, then self-imposed
obligations would lack an obligatory character.
Further, the notion of tacit agreement fails to deal with the fact that new states are
bound by international law which they had no stake in formulating
Nuremberg Trials
Along with the Tokyo trials, the Nuremberg tribunals are at the cornerstone of
modern international law.
Stalin proposed summary execution of some of German General Staff
Both Churchill and Roosevelt initially supported summary execution of perpetrators
From the outset, however, the legality of the trials was subject to question
YES Argument
Germany was acting in clear violation of a number of international treaties
Germany’s actions were in clear violation of international customary law
The Nuremberg tribunal was merely the mechanism for enforcing international law
NO Argument
The charges were ex-post facto (retrospective law? Critics using Fuller’s own
paradigm – retroactive law leads to failure of system)
The allies were also guilty of war crimes- Hiroshima, Dresden, Katyn….
Rules to suit victors
Examples of International Bodies
United Nations Council of Europe
World Trade Organization
Organization of the Black Sea Economic Cooperation
GUAM Organization for Democracy and Economic Development
European Union
the four Geneva Conventions 1949;
the two Additional Protocols 1977;
the Convention Relating to the Status of Refugees 1951;
the Protocol Relating to the Status of Refugees 1966.
 What is International Humanitarian Law? / Law of Armed Conflict
Found in :
Geneva Conventions
Hague Conventions (1899, 1907)
Other treaties
Case Law
Customary International Law
Geneva Conventions: 1864, 1906, 1929, 1949...
First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field" (first adopted in 1864, last revision in 1949)
Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea" (first adopted in 1906)
Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted
in 1929, last revision in 1949)
Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War"
(first adopted in 1949, based on parts of the 1907 Hague Convention IV)
Three additional amendment protocols to the Geneva Convention:
Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts. As of 12
January 2007 ratified by 167 countries.
Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of Non-International Armed Conflicts. As of
12 January 2007 by 163 countries.
Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June
2007 ratified by 17 countries and signed but not yet ratified by an additional 68
Hague and Geneva: both are branches of jus in bello, international law regarding acceptable
practices while engaged in war and armed conflict.
Some References:
Peter Bailey – The Human Rights Enterprise in Australia and Internationally, 1st Edition, 2009
Sam Blay, Ryszard Piotrowicz, Martin Tsamenyi – Public International Law – An Australian Perspective
2nd Edition
Gretchen Kewley - Humanitarian Law in Human Conflicts
Stuart Kaye – Freedom of Navigation in Indo-Pacific Region – Papers in Australian Maritime Affairs No 22
*I.C.R.C. Handbook of the International Red Cross and Red Crescent Movement (1994).
*Dieter Fleck (ed) The Handbook of Humanitarian Law in Armed Conflicts (1995).
*I.C.R.C Bibliography of International Humanitarian Law Applicable in Armed Conflicts (1987).
*Hilaire McCoubrey International Humanitarian Law: The Regulation of Armed Conflicts (1990)
*Hilaire McCoubrey International Humanitarian Law: Modern Developments in the Limitation of Warfare
(2nd ed, 1998).
*Henry Dunant Institute International Dimensions of Humanitarian Law (1988).
*H Durham and T McCormack (eds) The Changing Face of Conflict and the Efficacy of International
Humanitarian Law (1999).
*Karine Lescure International Justice for Former Yugoslavia: The Working of the International Criminal
Tribunal of the Hague (1996).
*R Provost International Human Rights and Humanitarian Law (2002).
N Ronzitti (ed) The Law of Naval Warfare (1988).
Useful Websites
International Committee of the Red Cross
United Nations High Commissioner for Refugees
United Nations
United Nations Treaty Database
United Nations Law of the Sea
International Criminal Court
THE UNDHR is sometimes criticised on the following grounds:
Systematic Vagueness
Conflict of Rights
Cultural Relativity
 What is a ‘just war’?
jus ad bellum - the right to go to war
 Cicero
 St Thomas Aquinas
Hugo Grotius (1625 work - On the Laws of War and Peace - natural laws, independent of
any individual state's legal system, apparent to human reason and should prevail - even
during hostilities)
the suffering inflicted by the aggressor [on the nation or community of nations] must
be lasting, grave, and certain;
all other means of putting an end to it must have been shown to be ineffective;
there must be serious prospects of success;
the use of arms [especially considering power of means/weapons of mass
destruction] must not produce evils and disorders graver than the evil to be
jus in bello - right conduct within war – distinction (combatants), proportionality,
military necessity
jus post bellum - justice after a war - peace treaties, reconstruction, war crimes trials,
war reparations.
(Reference: Louis V. Iasiello - former Rear Admiral in the US Navy.Naval War College
Review (Summer/Fall 04): Jus Post Bellum: Moral Obligations of the Victors of War)
 What is the Law of the Sea?
In summary:
The United Nations Convention on the Law of the Sea (UNCLOS),
International agreement following UNCLOS III (1973 – 1982) (Replaced 4 x 1958 treaties)
The Law of the Sea Convention defines:
rights and responsibilities of member states (nations) in:
use of the world's oceans
guidelines: for businesses, the environment, management of marine natural
resources etc
Philosophical conceptualisation - from Hugo Grotius.