The European Journal of International Law Vol. 18 no. 3 © EJIL 2007; all rights reserved
Kelsen Lives
* Charles E. Floete Chair in Law, University of Iowa College of Law. A first draft of this article was presented in a seminar on theories of public international law that was conducted at the New York University School of Law by Philip Alston, Benedict Kingsbury, and Mattias Kumm
Email: alexander-somek{at}uiowa.edu.
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Abstract |
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Does it make sense any longer to study international law as a system of law? In both theory and practice, the impression of fragmentation and feebleness seems to be currently eclipsing the traditional faith in the unity and efficacy of cosmopolitan benevolence. Repeatedly, state interest has trumped the discipline of norms; international regimes do not form one coherent system, and behind their multiplicity seems to lurk disarray and new modes of hegemony. This article proposes to meet these challenges by reintroducing to the discipline a set of ideas about the foundations and the modest aspirations in the analysis of international law that are associated with the work of Hans Kelsen. To the argument that the system of public international law, as envisaged by Kelsen, is now untenable, the paper replies that phenomena such as hegemony and persistent decentralization are quite compatible with a system of public international law. To the argument that ideas associated with classical Kelsenian legal positivism have been eclipsed by more sophisticated sociological theorizing, it will be replied that Kelsen's insistence on the non-idealization of law remains a convincing answer. It will be shown that, contrary to their haughty pretensions, current sociological approaches are prey to idealizing assumptions as regards the agents and the substantive coherence of the international legal system. One example is social systems theory, which seeks to expose the unity of the international system as a myth, and to convince us that enduring fragmentation is all there is. Another example is that of theories premised on rational choice atomism, which would have us believe that international law is merely the combined factual consequence of self-interested state conduct. In both cases, the relevant sociology implicates a series of idealizations which betray its ideological thrust. Insofar as this kind of sociology provides the misguided basis for the claim that public international law is in crisis, legal positivism – methodo Vindobonense – is the antidote.