Hans Kelsen: International Peace through International Law 7 Conclusion What theoretical value can be assigned overall to Kelsen's internationalist doctrine - from the monist conception of law to the primacy of international law, to judicial-cosmopolitan pacifism - over and above the individual features that have been pointed to in this essay? Even the harshest critics have acknowledged Kelsen's great historical merit: to have brought about a decisive change in direction in the study of international law, moving away from the narrow perspective of statist legal positivism towards a presentation of the problem of the world order in radically new terms. There is no doubt that Kelsen, fifty years ago, anticipated many of the legal and institutional problems that have emerged at the international level in the second half of our century. Consider the processes of globalization that have dramatically raised the issue of the crisis of nation-states and of the Westphalian system founded on their sovereignty. Consider the growing assertion of the doctrine of human rights and the new practice of `humanitarian intervention' to protect them, phenomena that have both contributed de facto to extending the subjectivity of international law to individuals. Consider, over and above all, the recent creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda - mandated to judge war crimes and crimes against humanity committed by individuals - which are very likely preludes to the creation before too long of a permanent international criminal court. Moreover, one cannot fail to recognize the profound originality and theoretical greatness of Kelsen's internationalist constructions, supported by many, among whom Norberto Bobbio, Richard Falk and Antonio Cassese.54 Finally, one cannot but recognize that, despite the proclaimed purity of his theory - indeed, incorporating in it, with systematic inconsistency, a quantity of value assumptions and historical and empirical references - Kelsen has proved himself a jurist attentive like few others to the international events of his time: from the `nationalist madness' that invaded European culture with the failure of the League of Nations, to the primary imperative of the construction of a more ordered, peaceful pattern for the world after the scourge of the two world wars. In my opinion this recognition should be flanked by the critical points I have set forth in this essay, which call into discussion not Kelsen's historical merits but the consistency of his general theory and the realism of his political proposals. These observations can be summarized, in conclusion, in the following four points: 1. On the plane of the epistemology of legal knowledge, Kelsen's monistic assumption stands or falls with the neo-Kantian philosophy from which it derives. Today a post-positivist and post-empiricist philosophy of science would fundamentally challenge the idea that the logico-mathematical model can be taken as the paradigm of legal knowledge. And a systemic approach would supply important premises for a relativist, pluralist and polycentric conception - non-objectivist, non-monist and non-hierarchical - of legal phenomena, both domestic and international. It would also advise against treating international law with the same categories as state law. 2. The thesis of the primacy of international law (with its four corollaries, in particular acceptance of the doctrine of the iustum bellum) cannot aspire to any objective scientific validity, not even in the attenuated version that presents it as a hypothesis needed in order to construct legal knowledge. From the cognitive viewpoint, it is no more necessary than the opposite `subjectivist' hypothesis that argues the primacy of state law, and does not subordinate the individual dimension to the objective validity of law. In Kelsen - an Austrian intellectual personally involved in the tragedy of the Second World War - legal internationalism is very likely a (noble) ethico-political option. 3. Kelsen's pacifism is inspired by a twofold normative optimism. On the one hand, it starts from the rationalist presupposition that it is possible to abolish war, disarm states, attenuate political conflicts and overcome the immense economic and cultural disparities that cleave the planet, relying essentially on legal and institutional instruments; that is, giving rise to a supranational power which is supposed to be by definition impartial, rational and morally inspired. On the other hand, Kelsen's pacifism is based on a great trust in penal instruments. For it assumes with certainty that the exemplary punishment of a few individuals responsible for war crimes by an international court may act as an effective deterrent in relation to possible future wars. Kelsen is firmly convinced that supranational judicial action can be capable of affecting the macro-structural dimensions of war much more than diplomatic, political or economic activity. 4. Kelsen's legal cosmopolitanism hopes for the achievement of a peaceful world community on the basis of the postulate of the unity of the human species. A universal morality, a universal law and a universal state constitute for Kelsen a compact normative unity. It is in this attempt to transplant into the `chaos' of the twentieth century and to propose for the whole of mankind the classical, Christian and Enlightenment idea of universal harmony that the fascination and the fragility of Kelsen's internationalism lie.55 54 See in this issue, Bobbio, `Hans Kelsen, the Theory of Law and the International Legal System - A Talk with Danilo Zolo', passim; N. Bobbio, Diritto e potere. Saggi su Kelsen (1992). Richard Falk regards Kelsen as a `great international lawyer of our era who has developed and sustined a coherent interpretation of the international order', R. Falk, The Status of Law in International Society (1970), at x. More soberly, Antonio Cassese maintains that Kelsen's doctrine of the primacy of international law `has been instrumental in consolidating the notion that State agencies should abide by international legal standards and ought therefore to put international imperatives before national postulates', A. Cassese, International Law in a Divided World (1986), at 22. 55 In this connection see W. Bauer, Weltrelativismus und Wertbestimmheit im Kampf um die Weimarer Demokratie (1968), at 112-113; cf. also Carrino, supra note 3, at xliv-xlv.
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Wednesday, November 19, 2003 02:17AM