The question on which natural law focuses is the eternal question of what stands behind the positive law. And whoever seeks the answer will find, I fear, neither an absolute metaphysical truth nor the absolute justice of natural law. Who lifts the veil and does not shut his eyes will find staring at him the Gorgon head of power. Hans KelsenFootnote 1
In 1934, Hans Kelsen set out his ‘Pure Theory of Law’ (PTL) in Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Problematik.Footnote 2 It is, as the title tells us, a theory of Recht, of legal right, not of Gesetz, enacted law, and Recht does trail an etymological cloud of natural law.Footnote 3 More precisely, it is a theory of the idea of Recht intrinsic to any system of positive law.
In English, ‘law’ does not make this distinction, and in the Anglo–American tradition of legal positivism, ‘law’ is more readily associated with enacted law. Consider how different the connotations of the title of HLA Hart’s major work in philosophy of law would have been had he called it The Concept of RechtFootnote 4 or if Joseph Raz, Hart’s most important student, had called his influential collection The Authority of Recht: Essays on Recht and Morality.Footnote 5 Many people may believe that these etymological issues do not matter. However, as my epigraph suggests, Kelsen, like his Anglo–American legal positivist counterparts, wished to avoid any suggestion that the Rechtlich or normative dimension of law entails some necessary connection between law and morality.
While Kelsen was correct that behind the veil of positive law stands ‘neither an absolute metaphysical truth nor the absolute justice of natural law’, I argue that it is misleading to assert that all one will find staring out is the ‘Gorgon head of power’. There will be power, albeit of a particular kind. It is power governed by law, power conditioned by Recht or ‘legality’, the only single word in English that comes close, as Hart once observed, to capturing the ‘nuances imported by the German word Recht’.Footnote 6 In other words, Kelsen must stray even further away from what he called in 1928 a ‘strict positivism’ in the direction of a natural law position than he was willing to do, albeit not by asserting a necessary connection between law and morality.Footnote 7 Rather, the connection is with a view of legitimacy, itself an ethical position, but one that sounds in political morality in contrast to the kind of moral position that informs judgements concerning correct individual action. As Kelsen noted in the same essay, the attempt by positivist jurists to comprehend law as an objective order through its most fundamental or ‘basic’ norm entails that ‘in a certain sense might is transformed into right [Recht]’.Footnote 8 The key to my argument is the role that he attributes to public international law in the constitution of the legal order of the modern state, a role that resonates with his accounts of state recognition and democracy.
9.1 The First Questions Regarding PTL
Kelsen begins Chapter 5 of Pure Theory, ‘The Legal System and its Hierarchical Structure’, with §27, ‘System as System of Norms’, in which he answers the ‘first questions’ to which PTL must respond: ‘What accounts for the unity of a plurality of legal norms, and why does a certain legal norm belong to a legal system?’ His answer requires an elaboration of his candidate for the fundamental norm of legal order, the basic norm, which leads him, in §30, to a consideration of ‘The Basic Norm of the State Legal System’ and, in (c) within that section, an exploration of ‘International Law and the Basic Norm of the State Legal System’. More succinctly, Kelsen finds that one cannot explain the legality of the state legal order without understanding the relationship between state law and public international law.
Kelsen’s nutshell answer to his first question is: ‘A plurality of norms forms a unity, a system, an order, if the validity of the norms can be traced back to a single norm as the ultimate basis of validity. This basic norm qua source constitutes the unity in the plurality of all norms forming a system’.Footnote 9
His argument starts by distinguishing between two types of norm systems: static and dynamic. Morality is his example of the former because the content of all lower-order moral norms can be ‘deduced’ by an act of ‘intellect’ from the content of the basic norm. The legal order is his example of a dynamic system. In §28, ‘The Legal System as Chain of Creation’, he notes that the basic norm of a ‘positive legal system’ is ‘simply the basic rule according to which the norms of the legal system are created; it is simply the setting into place of the basic material fact of law creation’. As such, it has a ‘thoroughly formal, dynamic character’: ‘Particular norms of the legal system cannot be logically deduced from this basic norm. Rather, they must be created by way of a special act issuing or setting them, an act not of intellect but of will’.Footnote 10
Somewhat later in the same section, Kelsen offers an example. One asks why a coercive act is valid. The answer is that the official who issued the norm has the authority to do so from the standpoint of a criminal law that has been enacted through a valid legislative procedure, one that is mandated by the constitution.
If one goes on to ask about the basis of the validity of the constitution, on which rest all statutes and the legal acts stemming from those statutes, one may come across an earlier constitution, and finally the first constitution, historically speaking, established by a single usurper or a council, however assembled. What is to be valid as norm is whatever the framers of the first constitution have expressed as their will – this is the basic presupposition of all cognition of the legal system resting on this constitution.Footnote 11
However, this example suggests two different candidates for the basic norm: the basic norm as a constitutive idea, the act of constituent power that created the historically first constitution and somehow endowed it with authority, or the basic norm as a regulative idea, the constitution itself that contains norms that regulate the production of lower-order norms. The ambiguity is not mitigated by Kelsen’s complex account of the constitution of a state legal order.
In his earlier work, Kelsen distinguishes between the ‘constitution in the legal-logical sense’ and the ‘constitution in the sense of positive law’, which he also calls the ‘material constitution’.Footnote 12 As Lars Vinx notes, this use of ‘material’ is unusual, since the rules of the material constitution could be confined entirely to procedural rules; thus, it is merely a contingent fact about some state legal orders that they include in their constitutions a ‘catalogue of fundamental and liberty rights’.Footnote 13 It is also a contingent fact that a state legal order contains a ‘formal constitution’, rules that require different enhanced procedures for constitutional amendments in contrast to the rules that govern ordinary legislation. In addition, as Vinx elaborates in his chapter in this volume, Kelsen maintains that for formalisation to be effective, the constitution must confer authority on some group of officials to sanction the enactment of unconstitutional norms.Footnote 14 In the absence of this technique, if the legislature enacts an unconstitutional norm, the provision in the constitution in conflict with the enacted norm will prove cosmetic and will be replaced by the formerly unconstitutional norm. Accordingly, Kelsen advocates the introduction of a dedicated constitutional court as guardian of the constitution: a staff of independent officials who have explicit authority to decide constitutional disputes.Footnote 15
Vinx’s major foil in his chapter is Michel Troper, a distinguished constitutional theorist and Kelsen scholar, who argues that Kelsen’s observations on judicial constitutional review render PTL impure because they inject substance into his account of the state legal order.Footnote 16 Vinx’s response is that the distinction between the material and the formal constitution permits PTL to remain pure because the substance entailed in a commitment to constitutionalism is contingent on the design of particular state legal orders, not intrinsic to all. Constitutionalism begins not with the establishment of a state legal order but rather with the formalisation of its material constitution plus the institution of a court that has the authority to invalidate unconstitutional norms.
It is also important to note that a commitment to constitutionalism in this sense is not yet a commitment to liberal democratic constitutionalism. Kelsen clearly contemplates the possibility that a state legal order could entrench autocracy as a system of government or the institution of slavery and delegate to a constitutional court the task of protecting the slave owners’ rights to their property. Hence, the demand for liberal democratic constitutionalism comes not from PTL but rather from a political theory that claims that the substantive commitment to the equality of all members of a political society requires the effective constitutionalisation of those rights minimally necessary to protect equality. As Vinx shows, such a demand can be supported through arguments based on resources in Kelsen’s work on democracy. However, he argues that while such arguments are consistent with PTL, the demand does not represent their basis.
Vinx’s response is powerful and one that Kelsen would endorse. However, Troper has an important point when he charges Kelsen with contaminating PTL. As I now show, another point of entry for substance can be found in Kelsen’s account of the role of public international law in constituting the legal order of the state. Once that role comes into view, one can make sense of the basic norm as both a constitutive and a regulative idea, so that constitutionalism begins with the establishment of a state legal order, whether or not its constitution is formalised. Moreover, the direction of the process of constitutionalism is towards democracy.
On this view, PTL is not contaminated by substance. Rather, its purity is preserved in the sense that it relies exclusively on legal ideas, particularly on the idea that if a state legal order is established, so politics is subordinated to law. PTL is thus a theory of the Enlightenment ideal that all state power is exercised according to law, both enacted law and constitutional principles. As such, the basic norm is a political presupposition of legal order, the constitution ‘in the legal-political sense’ rather than, as Kelsen puts it, ‘the constitution in the legal-logical sense’.
9.2 The Efficacy of the State Legal Order as a Principle of International Law
In §29 of Pure Theory, ‘Significance of the Basic Norm’, Kelsen claims that the basic norm ‘is valid not as a positive legal norm – since, it is not created in a legal process, not issued or set – but as a presupposed condition of all lawmaking, indeed, of every process of the positive law’.Footnote 17 If the emphasis is on ‘legal’ in ‘legal process’, one might believe that the process is extralegal or political, a claim which Kelsen seems to confirm in §30(a), ‘Content of the Basic Norm’, when he offers as an example of creation of the basic norm a ‘violent coup d’état in a monarchy’ staged by a ‘band of revolutionaries attempting to oust the legitimate rulers and to replace the monarchy with a republican form of government’.Footnote 18 When such an attempt is successful, ‘[o]ne presupposes a new basic norm, no longer the basic norm delegating authority to the monarch, but a basic norm delegating lawmaking authority to the revolutionary government’.Footnote 19 He then asks: ‘What accounts for the content of the basic norm of a certain legal system?’ His answer: an analysis of the ‘ultimate presupposition of legal judgments shows that the content of the basic norm depends on a certain material fact, namely, the material fact creating that system to which actual behaviour (of the human beings addressed by that system) corresponds to a certain degree’.Footnote 20
This answer establishes an indirect relationship between the basic norm and ‘efficacy’. In contrast, the direct relationship is between a valid legal system and efficacy as the system depends on a degree of correspondence with the ‘real behaviour’ of the individuals who are subject to the system; that is, the system’s validity, ‘depends in a certain way … on the efficacy of the system’.Footnote 21 In cases of total correspondence, the basic norm would merely tell everyone to do as they pleased, which would be ‘just as meaningless’ as a system in which there was no correspondence.Footnote 22
Notice that, in Kelsen’s own terms, the title of this subsection is misleading. The basic norm is, in fact, contentless and the same everywhere. Every state legal order has its own material constitution as well as enacted and other forms of law, while its basic norm stipulates only that the law of that order must be obeyed. In other words, the law of the state legal order contains content in the sense of laws that delegate particular authority to officials and in the sense of the ‘law of contracts’ or ‘constitutional law’. However, that content is not to be confused with the content of the legal order’s basic norm, the norm that must be presupposed if one is to understand the legal order as a unified order of norms.
Kelsen thus introduces some confusion when he changes the subject from the content of the basic norm of any state legal order to the relationship between the content of the law of a valid legal order and the behaviour of its legal subjects. Things become clearer in the following section, §30(b) ‘Validity and Efficacy of the Legal System (Law and Power)’, where he states that even this direct relationship does not permit one to ‘identify’ validity with efficacy. ‘[O]nly if reality is not identical with the validity of the law is it possible that reality either conform or fail to conform to the law’.Footnote 23
It is worth noting that in the German text of this subsection, Kelsen uses Recht for ‘the law’ because the way in which ‘the law’ is used in the English translation, although it accurately captures the fact that the law under discussion is positive law, overlooks the fact that Kelsen is primarily concerned in this subsection with its normative dimension. Moreover, he notes that if one substitutes ‘power’ for ‘efficacy’, the problem becomes one of the relationship between ‘law [Recht] and power’.Footnote 24 This relationship elicits the ‘old truth that while the law cannot exist without power, neither is it identical with power. The law is, in terms of the theory developed here, a certain system (or organisation) of power’.Footnote 25 With that thought, we approach the argument of my chapter – that the way in which ‘in a certain sense might is transformed into legality [Recht]’ conditions the content of law such that it cannot have any content. The basic norm both constitutes the normativity of law and regulates its content.
Kelsen does not say why his account of the basic norm requires his very next topic, discussed in subsection §30(c), ‘International Law and the Basic Norm of the State Legal System’. In my view, it is because the integration of the legality of public international law into his philosophy of law explains the relationship between the efficacy and validity of a legal system. He says of this relationship that it is a ‘principle’ to be found in the ‘content of a positive legal norm’, a norm of public international law; and in Chapter 5, he summarises his argument in the later chapter on public international law thus:
international law, by legitimizing power that is actually establishing itself, authorizes it in so far as it actually becomes effective. This principle of effectiveness, a principle of international law, functions as the basic norm of the various state legal systems; the constitution adopted by the first legislator, historically speaking, is valid only on the presupposition that it is effective, that reality corresponds, by and large, to the system unfolding according to constitutional provisions.Footnote 26
Here, Kelsen is not asserting a direct relationship between efficacy and the basic norm of a state legal order. If he did so, he would be guilty not only of contradicting himself but also of violating a fundamental commitment – that an ‘ought’ cannot be derived from an ‘is’. However, it is not the fact of effectiveness that functions as the basic norm of a state legal order but rather a principle of effectiveness, a norm. Moreover, the principle is not a free-standing moral principle. It is a valid norm because it belongs to a valid legal order, the international legal order.
This issue raises the question of the validity of that order, which, while it must be effective to be valid, cannot ground its validity on that efficacy, only on its own basic norm, as Kelsen acknowledges:
A basic norm, then, in the specific sense developed here – namely, a norm not issued or presupposed – can be understood no longer as the foundation of state legal systems, but only as the basis of international law. And the principle of effectiveness, this principle of international law, can be understood only as the relative basic norm of state legal systems.Footnote 27
Here, we come to the very heart of PTL, to the dramatic claim that the basic norm of the international legal order is the basic norm of all state legal orders: ‘The norm providing the foundation for state legal systems can be understood as a positive legal norm, and that will be the case if international law is understood as a system above the state systems, delegating powers to them’.Footnote 28
I have emphasised ‘if’ because, while it points to the solution to the puzzle of normativity, it contains its own puzzle, made up as follows. First, Kelsen suggests in his chapter on public international law and thereafter that there is no choice because one must presuppose a basic norm of one legal order for all other actually existing legal orders if one understands all of them as valid normative systems. However, he also argues that, from the perspective of PTL, one could logically choose the basic norm of one’s own state legal order as the basic norm of all legal orders, including the international legal order. ‘If’ betokens a choice between basic norms – the basic norm of the international legal order and the basic norm of one’s own state legal order. Second, Kelsen often suggests that the factor that drives that choice is personal preference: whether one prefers the ideology of cosmopolitanism, in which case one would choose the basic norm of the international legal order, or the ideology of nationalism, in which case one would choose the basic norm of one’s own state order.Footnote 29
Kelsen cannot mean by this claim that this ideological clash is as insusceptible to rational judgement as are competing preferences for different flavours of ice cream. That view would be in tension with his theory of democracy, which addresses fundamental questions of political theory in the same rigorous fashion as his philosophy of law, as he also does in his polemical exchanges with Carl Schmitt in late Weimar about the politically crucial question of who should be the ‘guardian of the constitution’ – the executive in the person of the president or the court charged with deciding constitutional disputes.Footnote 30 However, in these works, Kelsen seems to suppose that scientific analysis is possible only insofar as one can ascertain what follows from existential choices, for example, the choice for democracy over autocracy or the choice for constitutionalism and the rule of law over dictatorship.
These choices are merely different articulations of the choice that I suggested above explains the choice for constitutionalism, for the Enlightenment ideal that all state power is exercised in accordance with both enacted law and constitutional principle. As I now argue, the choice to understand legal order as normative through the lens of the basic norm is not only political. It is also a choice that does not allow that law can have any content. Further, it is a choice that must be made if one is to understand law as Recht, as legal right not political might.
The fact that there is, in a sense, no choice is best illustrated by Kelsen’s 1941 response to John Austin’s command theory of law, according to which law is the commands of the sovereign, a legally unlimited commander whom we identify by seeing to whom the subjects of state power have a habit of obedience, itself procured by the fact that each command has a sufficient sanction attached to it to motivate general obedience.Footnote 31 Kelsen argued that Austin’s theory is not merely ideologically unsound, a choice for nationalism over cosmopolitanism.Footnote 32 It is also contrary to legal experience in two major respects.
The command theory reduces the philosophy of law to a predictive model about when sanctions will be applied. It understands the norms to which sanctions are attached as a static system in which the content of lower-order norms is derived from the content of higher-order norms. However, in a state legal order, sanctions are inflicted only when they ought to be inflicted, only when there is a legal basis that justifies infliction. One predicts that officials will inflict sanctions on the basis that they will act in accordance with duty, which first requires understanding law as an order of norms. In addition, the determination of the content of the norms on the basis on which they act happens in a dynamic process, not as a matter of static deduction.
Kelsen’s choice to understand law as normative is thus not a matter of personal preference since one must make this choice if one wishes to understand law as it is.Footnote 33 It requires one to choose the basic norm of the international legal order as the basic norm of all legal orders, not as a matter of personal preference but as a matter of political morality, which is not political morality at large. Rather, it is the political morality of legal order.
I now turn to my support for these claims, first in Kelsen’s insistence on ‘monism’ for an account of the relationship between international and state legal order and, second, in his account of state recognition. I argue that his student Hersh Lauterpacht, the most eminent international lawyer of the past century, was largely correct that Kelsen’s preference for the primacy of the basic norm of public international law was the ‘back door’ by which the ‘ghost of natural law’ had ‘crept into the cast-iron logic of … his system’.Footnote 34 However, he was only largely correct because the presence of a natural law element is much more concrete than Lauterpacht believed. As mentioned above, the basic norm in PTL functions more as political presupposition of legal order, as the constitution ‘in the legal-political sense’ rather than, as Kelsen describes it, ‘the constitution in the legal-logical sense’.
9.3 Monism, Dualism, and State Recognition
9.3.1 Monism vs. Dualism
Kelsen rejected ‘dualism’ as an account of the relationship between public international and state law because it requires that one regard one’s own legal order as the only valid order. Because there can be no contradiction between the norms of two valid orders, dualists must hold that only norms certified as valid by their own state legal order count as valid. This, he claims,
is the standpoint of primitive man, who, with utmost presumption, acknowledges as a legal community only his own community, and as a legal system only the system constituting his own community. Accordingly, he considers all those not belonging to his community as lawless ‘barbarians’, and if he considers their system at all, it is certainly not as ‘true’ law, comparable in kind and value to his own law. In this view, there can be no genuine international law either.Footnote 35
Monism is, then, the account of this relationship that asserts there is only one overarching legal order, with its basic norm located in either the international order or the state order. However, I now argue that Kelsen is wrong in two respects, in his description of dualismFootnote 36 and, consequently, in his claim that PTL permits the basic norm of all legal orders to be located in a particular state legal order.
Proponents of dualism do not, as a matter of fact, explicitly deny that international law is law, as Kelsen acknowledges in saying that ‘[i]n practice, it is next to impossible to deny the normative character not only of international law but also of state systems other than one’s own’.Footnote 37 Rather, as perhaps the most important practical example – the UK legal order – illustrates, dualism insists that international norms enter the state legal order only when they fulfil two conditions. First, the state legal order has consented to particular norms, for example, the norms of a treaty, or to a general category of norms, for example, the norms of customary international law; second, if there is a conflict between one of its own norms and an international law norm that would otherwise be recognised as valid, its own norm will prevail. And that stance, according to Kelsen, leads to the adoption of the ‘fiction’ that builds into one’s own system the norms of others, including public international law, by recognising these norms as valid provided they fulfil something like the two conditions just set out.Footnote 38
To use terminology that I have developed elsewhere, dualism becomes ‘national law monism’, which grounds the validity of all other legal orders in the basic norm of its own legal order, in contrast to ‘international law monism’, which, following Kelsen, holds that the basic norm of the international legal order grounds the validity of all state legal orders.Footnote 39 As I also argue, while Kelsen was correct that dualism is incoherent as a theory of the relationship between the international legal order and the state legal order, it does, to some extent, describe a legitimate constitutional design by a state for its relationship with public international law. However, this design is legitimate because it is premised on international law monism. National law monism is the real culprit behind the denial of the legality of public international law.
According to PTL, public international law delegates to states the authority to make law for the territories over which they have jurisdiction. This delegation includes the authority that enables a state to devise its own constitutional arrangements, for example, whether to have a unitary or a federal system, a written constitution, an entrenched bill of rights and so on, including the authority to design its constitutional relationship with public international law along more monistic or more dualistic lines. However, even a dualistic jurisdiction, such as the UK, is dualist only to a certain extent. Customary international law applies directly within that state unless a statute rules out its application, and judges interpret UK law in light of public international law unless a statute explicitly excludes the possibility of doing so. In this legal order, the scope of dualism is thus confined to treaties that the executive has ratified but that are not considered to have direct effect until incorporated by parliament. Even in such a case, these treaties may have indirect application if judges rely on the norms of ratified treaties when interpreting statutes.
Dualism of this sort is not, then, incoherent as a matter of practice, only if it is elevated to the status of a general theory of the relationship between public international and state law. Such a theory claims that there is only one valid legal order, its own, but it finds itself compelled to recognise other valid legal orders, although it strips that recognition of any effect by making the validity of the norms of the other orders contingent on whether they are recognised as valid by its own criteria of validity. In other words, dualism pays only lip service to the validity of other legal orders, and, as Kelsen implies, dualism as a theory reduces to national law monism.
National law monism is, then, viable as a theory of the relationship between public international law and state law, or between one state legal order and others, only so long as the law of the state legal order in question contingently permits entry to the norms from the international legal order and the other legal orders. In such a legal order, the possibility is created for a state to legislate a norm prohibiting entry to norms from any other legal order. In effect, such a prohibition would deny the validity of these orders and there would be ‘no genuine international law’.
Indeed, when it comes to private international law – the law that governs the entry of private law norms into one state legal order from another – Kelsen suggests that public international law delegates to states authority as to what rules of private international law to adopt – a delegation that, he assumes, includes the authority to exclude entry.Footnote 40 There would be only one rule of private international law in such an order – more accurately, a rule on private international law prohibiting officials from giving effect to the private law norms of another state legal order.
Could a state legal order have a similar rule on public international law, one which would deny its status as Recht? Could a state declare itself to be a ‘free state in the world’, the equivalent of individuals in contemporary Western democracies who declare themselves to be ‘Freemen on the Land’ or such like, asserting that they are not bound by state law, only by law to which they have consented? Kelsen must answer ‘no’ to this question. However, he disables himself from doing so by insisting that law can have any content. His claim that ‘[i]n practice, it is next to impossible to deny the normative character, not only of international law, but also of state systems other than one’s own’ makes his argument contingent on the content of the norms of particular state legal orders in the same way that Vinx suggests in regard to a commitment to constitutionalism.
It is not that contingency is itself a bad thing. However, for PTL, contingency is best understood as twofold. International law monism is contingent on the fact of a plurality of state legal orders, which in turn is contingent on there being an international legal order. All state legal orders must acknowledge the Recht of public international law. It is law that binds them because they are states, not because they have consented to be bound. It follows that for a state to declare that public international law binds only by consent is to declare unilaterally its independence from the international legal order. In so doing, the state gives up its status as a legal person with the authority to create rights and duties, either without or within its borders, which brings me to the topic of state recognition.
9.3.2 State Recognition
A persistent debate in public international law pertains to how a state-like entity acquires international legal personality. In its pure form, the ‘declaratory theory’ argues that whether an entity is a state is a matter of fact that, once established, requires recognition by existing states of its legal status, while the ‘constitutive theory’ in its pure form argues that the entity’s legal status is conferred on it by the political acts of recognition of existing states.Footnote 41
The debate raises starkly the question of the relationship between politics and law and, in particular, whether the role of facts in establishing law has the result that politics drives law, that political might drives legal right. At times, as for example, when Kelsen claimed that political preference determines the contest between national and international law monism, it will seem that the fundamental issues in philosophy of law are relative to subjective political judgment. Indeed, in the debate about recognition, the political element may seem to loom so large that it overwhelms the legal; and the constitutive theory was associated in the nineteenth century with the kind of positivist legal theory that understands sovereignty as legally unlimited, denies therefore that public international law is law properly so-called, and concludes that recognition by one state of another is constitutive in that it is a purely political act.Footnote 42
Kelsen is reputed to have moved from the declaratory position to the constitutive position.Footnote 43 However, as in the case of his commitment to monism, for most of his career, he was mainly concerned with finding a position that was consistent with the primacy of public international law, and my argument in this chapter is that this concern was driven by the Enlightenment ideal. If public international law is to be considered law, as authoritative over states, the question of whether a new entity is to be considered a state is a legal question no different from any question of law.
For this reason, Kelsen insists that ‘in the province of law there are no absolute, directly evident facts, facts ‘in themselves’, but only facts established by the competent authority in a procedure prescribed by the legal order’:Footnote 44
International law has to determine its subjects just as national law has to determine who are the subjects of the rights and obligations laid down by it; e.g., only human beings, not animals, or, only free men, not slaves. If international law did not determine what a state is, then its norms, which obligate and empower the states, would not be applicable.Footnote 45
There remains the endemic problem of the international legal order that states for the most part are judges in their own cause because there is no independent international tribunal with compulsory jurisdiction over disputes around statehood. However, as Kelsen explains, the statement ‘A has committed a theft’ is a mere ‘subjective opinion of an individual’ unless there exists a legally ‘decisive’ and ‘authentic’ opinion, that is, that of the ‘authority instituted by the legal order to establish the fact’.Footnote 46 According to this analogy, states are authorised by public international law to determine that an entity is a state in terms of that same body of law, just as judges in a state legal order are authorised by their state’s law to determine that an act is a theft in terms of their state’s law. Certain facts must be in evidence, such as the fact that person A has an object that B once had or that there is a defined territory over which one entity exercises effective control. These brute facts – observable facts about the world – are, however, not legal facts until they have been characterised as such by a competent authority. Kelsen’s allegiance to the constitutive theory thus requires an explanation of why the constitutive act is both legal and a matter of duty for the recognising state. The constitutive theory can achieve this goal only if, in most cases, there is a stable set of facts about statehood that require recognition.
For this reason, as Kelsen acknowledges, any plausible theory is going to give a role to facts, law and politics; such a theory, that is, will contain elements of both the declaratory and constitutive positions. Similarly, Lauterpacht took the constitutive side because he wished to emphasise that recognition is a juridical matter, not something that can simply be read off a set of facts. However, Lauterpacht also acknowledged that ‘while recognition is constitutive in one sphere, it is declaratory in the other. It is declaratory in the meaning that its object is to ascertain the existence of the requirements of statehood and the consequent right of the new State to be treated henceforth as a normal subject of international law’.Footnote 47
Lauterpacht regarded as a ‘grotesque spectacle’ the prospect of a ‘community being a State in relation to some but not to other States’ and said that this prospect was a ‘grave reflection upon international law’. However, he also fully conceded that this problem resulted from the lack of ‘political integration of international society’.Footnote 48 Because he knew that precisely this lack made impractical an international tribunal with compulsory jurisdiction, he resorted to the rather vague idea that the constitutive theory was tempered by a duty to grant recognition on the part of all states that was owed to the international community at large.Footnote 49 His suggestion, that is, was that the acts of recognition are not merely political but also legal.
For this, he came under fire from Josef Kunz, also one of Kelsen’s students. Kunz, who had established himself as a distinguished international lawyer in the US, claimed that Kelsen’s reasons for preferring the constitutive theory were logical whereas Lauterpacht’s were ethical and he accused Lauterpacht of wishful thinking in his claim to have found a basis for the theory in doctrine.Footnote 50 Lauterpacht, he claimed, had forgotten that ‘the science of international law cannot by its fiat correct the structural defects of the primitive international legal order’,Footnote 51 and Kunz maintained that both practice and doctrine support the declaratory theory.
The major attempt to establish a practice that could bring stability to this area of international law was made in 1933 in the Montevideo Convention on the Rights and Duties of States, which set out four criteria for statehood in Article 1: ‘a permanent population’; ‘a defined territory’; ‘government’; and ‘capacity to enter into relations with other states’. As Arnulf Becker Lorca explains, this initiative was led by Latin American states in a bid to substitute objective criteria for the exclusionary standard of ‘civilization’, which had prevailed until that point. He regards their success as evidence of the ability of states hitherto regarded as ‘peripheral’ to make their presence felt in public international law, thus paving the way for other peripherals – that is, the states which emerged in the postcolonial era after the Second World War – to succeed partially in securing ‘formal autonomy and equality’.Footnote 52
For these peripheral states to make their presence felt, the space afforded by public international law had to be one in which it was possible for their claims to be advanced. The promise of ‘formal autonomy and equality’ could not therefore be entirely empty. This was in fact Kelsen’s view in his 1920 book on sovereignty, in which he not only indicates that international law monism provides a uniquely coherent account of the juridical relationship between public international law and state law, but also asserts that a value of political morality underpins the account:
There is a generally accepted understanding of the nature and concept of international law that it constitutes a community of states with equal rights. The proposition of the coexistence of a multiplicity of communities, which despite their actual differences in size, population, and effective means of exercising power are from the perspective of legality [rechtlich] of equal value and, when it comes to their mutually delimited spheres of power, bound in a higher community is an eminently ethical idea and one of the few really valuable and uncontested components of contemporary cultural consciousness. But this proposition is only possible with the help of a juristic hypothesis: that above the communities understood as states stands a legal order [Rechtsordnung] which mutually delimits the spheres of validity of the individual states in that it hinders incursions by one into the sphere of the others, or at least subjects them all to equal conditions for such incursions …Footnote 53
He concludes this line of thought by claiming that ‘when the primacy of international law fulfils this function, the concept of law [Rechtsbegriff] is simultaneously perfected in a formal and substantive sense. The law [Recht] attains the organisation of humanity and thereby a unity with the highest ethical idea’.Footnote 54 In addition, in other works from this time, Kelsen suggests that PTL’s postulate of unity is not merely formal since it is also a postulate of peace.Footnote 55
It must follow that enacted norms that negate this political–ethical idea – the idea of peace on equal terms between states – are in severe tension with the very presuppositions of legal order, while norms that advance and give content to it are not. Moreover, to the extent that the latter types of norms are positivised, whether in the international order or in state legal orders, the tension between any negating norms and the political–ethical idea is exacerbated. If the basic norm constitutes the normativity of legal order in a dynamic process of norm production, it also regulates the content of the law in that norms that negate the postulate of peace tend to be driven out, all the more so as norms which advance it are enacted.Footnote 56
On this view, the basic norm is not a mere logical requirement, necessary to make conceptual sense of the fact that there is a binding set of norms. The basic norm is also deeply pragmatic in nature. It is an achievement of constructive juristic activity that depends on whether the content of particular norms can be interpreted so as to display this identity. It is best described as a regulative assumption – an assumption we need to make before we can make sense of our practice but also one that we must maintain by ensuring that our practice conforms with it.
Thus, the constitutive theory invites states to take stands on recognition premised on the fact that an entity’s claim to be recognised as a state is undermined because it is undemocratic, systematically oppresses part of its population, or does not abide by the rule of law. None of these standards is among the Montevideo criteria, although the rule of law is perhaps the best candidate, as it is plausibly implied in ‘government’. In this regard, in the leading contemporary text, James Crawford observes that ‘[n]o doubt ‘legal order’ is an important element of government, hence an indication of statehood. But its status as a distinct criterion is open to doubt’.Footnote 57 He also says, in regard to the requirement that there must be a government in general control of its territory, that public international law ‘lays down no specific requirements as to the nature and extent of this control, except that it include some degree of maintenance of law and order and the establishment of basic institutions’.Footnote 58
While the normative standard is consequently thin, its content is still determined by the basic norm conceived as a postulate of peace between equal legal state persons. This insight leads to a very different perspective on Kelsen’s account of norm conflicts, the resolution of which seemed to show that the material constitution is vulnerable to being rendered cosmetic if officials either lack the authority to invalidate unconstitutional statutes or fail to use the authority that they have. The point is not that Kelsen is wrong to suppose that this situation is possible, only that he does not take fully into account the damage that this process does to the fabric of legal order. In the case of both the international legal order and state legal orders, the damage is to their systematicity and their effectiveness, and with the state legal orders to their institutional structure as well.
There is, then, a necessary connection between systematicity, effectiveness, and institutional structure on the one hand, and substance, on the other, and substance is not just any old substance. It is substance that tends to preserve interaction between legal subjects, whether states or the subjects of a state legal order, on equal and peaceful terms. Moreover, as I now argue, the necessary connection to substance is also one to what we can think of as the value structure of the state legal order.
9.4 PTL and Democracy
We encountered above Kelsen’s argument that every legal order must be effective to some degree before it can be said to be valid. If there were total compliance with its norms, it would be superfluous; too little compliance and it would not exist as a legal order. To be effective somewhere in between these two points, it must represent a ‘compromise’ between ‘conflicting interest groups in their struggle … to determine the content of the social order’ and so it must be the case that none of these groups is ‘wholly satisfied or dissatisfied’.Footnote 59 That, he suggests, is what makes a legal order an order of peace.
On one view of such an order, peace is just the absence of conflict. On this view, Kelsen’s claim that a legal order is necessarily an order of peace could be said to be the result of the fact that an effective legal order is one in which the state’s claim to a monopoly on legitimate coercion holds. However, Kelsen had something else in mind to do with the fact that the state’s monopoly on legitimate coercion is necessary but not sufficient for an effective legal order to exist.Footnote 60 It is necessary because, in every legal order, some individuals conform to the law due solely to their fear of being sanctioned if they fail to do so. However, it is not sufficient. Long-term stability depends on the fact that a large proportion of legal subjects can understand the monopoly as legitimate, which requires them to understand that their subjection serves their interests, even when they disapprove of the content of some or many laws.
In other words, compromise between conflicting interest groups will not be achieved if the content of the law, as determined by the relevant officials, regularly relegates the individuals on the losing side of the conflict to a second-class status or worse. These individuals will not be able to accept such a compromise as a sufficient basis to make sense of their legal order as an order of right or authority rather than one of unmediated coercive power. The kind of compromise that sustains a state legal order is not one on any terms whatsoever, one that permits the law to have any content. Rather, it is a compromise that maintains legal subjects in their status of equality before the law, just as public international law is committed to maintaining the status of states as, legally speaking, equal.
Kelsen did note that ‘[o]nly one group may be interested in ‘peace’, namely, the one whose interests are better preserved by this order than those of other groups. These other groups may still comply with the law. They may maintain the state of peace not because they consider it legitimate, but because, in view of their own weakness, they must be satisfied with the minimum of protection which this order affords to their interest’.Footnote 61 Put differently, if it is a legal order it will be maintained in part by the weaker group on the basis that it does protect their interests, albeit minimally, a claim supported by this quotation:
The peace of the law is not a condition of absolute absence of force, a state of anarchy; it is a condition of a force monopoly of the community. … A community, in the long run, is possible only if each individual respects certain interests – life, health, freedom, and property of everyone else – that is to say, if each refrains from forcibly interfering in the sphere of interest of the other.Footnote 62
Kelsen’s view in this regard is, not coincidentally, elaborated in his 1920 book on democracy, a central theme of which is the ‘torment of heteronomy’:Footnote 63 the pain that accompanies conceiving of oneself as an autonomous individual who should decide how best morally speaking to live, but who accepts there is reason to abide by mandatory public norms one would not oneself choose if one had the power to do so and that may even strike one as unjust. Democracy can alleviate the torment and help to explain why subjects should have this stance of acceptance because it preserves for them the equal chance of participating in making such norms. There is both a formal and a substantive dimension to such preservation. The formal dimension is that the political process is as open to their participation as it is to that of everyone else in the political community, which makes it possible for the community to decide on the content of the norms that will govern their common life. The substantive aspect is that the maintenance of this openness recognises and preserves their status as free and equal subjects.
Legal order has a symbiotic relationship with this kind of political order. More accurately, if one wishes to establish a political order that will maintain this kind of peace, it must take the form of a legal order, because the latter makes it possible for the political community to ‘posit’ or enact its decisions. Here we have the reason why the idea that enacted law can have any content is so central to debate in modern philosophy of law and the sole focus of many in the legal positivist camp. But the idea is subject to an important qualification, one with which English legal positivism cannot deal, but which for PTL is but a step along its inquiry into legality.
The fact that political order takes the form of legal order affords to the political community something qualitative. This kind of political community is a jural community, one in which political power not only must be exercised through law, but also the officials who implement, enforce, and interpret that law must act within the bounds of their authority. Their decisions must have a legal warrant, must be justifiable as being in accordance with law, which means in accordance with Recht as well as Gesetz.
As Kelsen emphasises, all official activity involves interpretation, a creative exercise of will in determining the content of the law.Footnote 64 In making that determination, officials, whether front-line administrative officials, high court judges, or legislators, must seek to display the content of the norm that they are charged with determining as part of a meaningful whole, which will include showing that it is consistent with the content of other relevant substantive norms of the legal order. And since that content will be an order of peace – one reflective of a compromise of interests between the different social groups subject to law – if any particular norm is to support rather than undermine the postulate of unity, it must be interpretable as maintaining the individuals’ subject status. Just as the democratic political order must maintain the political subject status of those who end up forming the opposition to a particular law, so the particular laws of a state legal order must maintain the legal subject status of the individuals in the jural community.
This jural community is not necessarily a democratic political community. Historically, jural communities were established in monarchies before the emergence of modern democratic political communities, just as families preceded states, and states preceded the international legal order, a point that brings me back to the issue of contingency that I mentioned above. Kelsen’s PTL is a theory of the modern state, nested as it is in the post-Westphalian international legal order. I conclude with a sketch of some implications.
9.5 Conclusion
Within the post-Westphalian, international legal order, the state becomes the legal state, which means that it henceforth operates externally in a political space framed by law in which it assumes legal personality, and the same is true of its internal space in which natural individuals assume their legal personality.Footnote 65 I have suggested that this suffices for constitutionalism in that, when monarchs decide or are forced to establish a jural community for their subjects, to put in place a legal order within an overarching international legal order, constitutionalism is set in motion.
If this motion continues, the direction is democracy because of the combination of two ideas. The acceptance by legal subjects is constitutive of the authority of the legal order, and as I have put things elsewhere, the judgements made by public officials must seek to answer the subject’s question ‘But, how can that be law for me?’Footnote 66 Any form of undemocratic political rule is in tension with this combination, as is the enactment of particular laws that consign groups of subjects to second-class status or worse. However, the other direction is always a practical possibility.
As we are once again learning, even when a democratic legal order is in place there is no guarantee that the subject’s political or legal status will be maintained. Throughout this chapter, I have followed Kelsen’s example of personifying the law, for example, in saying that public international law ‘delegates’ authority to states or that the constitution of a state legal order ‘delegates’ authority to officials. However, as Kelsen often insists, it is important to recall that it is people are who are making the decisions.
The law does not speak through the mouths of officials. Rather, it is made by officials in a dynamic process of norm production. That process is legal in that it is law governed. The basic norm regulates the production process in that officials exhibit their fidelity to law in attempting to interpret the norms of their legal order as a meaningful whole: the norms of the material constitution that delegate authority to them, the norms in the bill of rights if there is one, the norms contained in statutes and in whatever sources of law are made relevant by their law, and of course the relevant international law norms.Footnote 67 Recall that for Kelsen even at the uppermost reaches of the chain of norm production the process is law governed, not only the enactment of statutes, but also amendments to the material constitution.
On this interpretation of Kelsen’s PTL, scientific or ‘pure’ analysis of Recht – of the legality of law – requires the basic norm to be understood as a regulative assumption, a claim about inquiry and what individuals engaged in inquiry must assume, if their inquiry is into the authority of law. As such, this idea has both theoretical and practical dimensions. As a matter of theory, it requires an elaboration of authority as legitimate and attention to the way in which the relationship between those who wield authority and those subject to it can be said to be one of right rather than might. As a matter of practice, it requires attention to the way in which, in the light of legal subjects’ experience of law, legal order is and should be designed with a view to vindicating its intrinsic commitment to the rule of law and its concomitant commitment to constitutionalism.
However, all that cannot be had without acknowledging the drive towards substance in PTL, one that sacrifices its claim to be pure of ideology in the sense of political value commitments. Nevertheless, as I have argued, a kind of purity is preserved in that the theory is one that seeks to show how the interaction of the international legal order with state legal orders affords a set of political spaces in which different ideologies can contest each other on equal and peaceful terms. This allows Kelsen to resolve his dilemma between substance and emptiness without having to choose emptiness to preserve the purity of his theory. And as I have also argued, his account of the relationship between the international and state law points in the opposite direction.
On my account, PTL sacrifices purity in the sense of value neutrality. But it preserves it in that its account is in exclusively legal terms, terms that allow us to understand how politics can take place in a space constructed by law in both the international order and in the orders of modern legal states.
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