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Hans Kelsen on International Law
3 Concluding Reflections on Legal Monism
Are the reasons for choosing between state-monism (the primacy of state law) and international law-monism (the primacy of international law) really only of an ethical nature?85 Assuming the unity of a legal system, there are nomological arguments in favour of the primacy of international law. One of its principal functions is to determine the scope of validity of national laws,86 which clearly assumes its supremacy. More than any other legal scholar of his time Kelsen advanced the ideological and metajuridical nature of the concept of sovereignty.87 The so-called sovereignty of a state, i.e. of a legal order, is based on the fact that its basic norm does not derive from another legal order. If the state is bound to respect international law it cannot be deemed sovereign;88 it is only a partial order (Teilordnung), no more no and no less than a federated state.89 While not denying the legal character of international law - although justifying it on the overly narrow basis of the coercive nature of war and reprisals - Kelsen only questions whether it derives from state law or the other way around. But once it has been assumed that an international legal order exists, how can it be conceived, according to a monistic approach, other than as having primacy?
One argument which Kelsen relied on in his contemplation of the logical possibility of state-monism was that no subject-matter can be put out of bounds of any legal system. The already noted positive aspect of that doctrine is that any human situation can be internationalized, i.e., apprehended by international law. But there is another consequence of the all-encompassing scope of any monistic legal order - a perverse consequence - namely, the ability of state law to rule on an interstate relationship.90 If, on the contrary, some subject-matters fall outside the scope of state law, international law can no longer be conceived as a branch of state law. In his last works Kelsen affirmed that `there are, it is true, certain matters specific to international law, matters which can be regulated only by norms created by the collaboration of two or several states. These matters are - as pointed out - the determination of the sphere of validity of the national legal orders and the procedures of creating international law itself.'91 Accordingly, there is no longer room for the unity of the legal order under the primacy of national law.
A final topic requiring attention is the inadequacy of Kelsen's monistic approach. Another scientific hypothesis, legal pluralism, can more appropriately tackle the intricacies of the multiplicity of legal orders. Legal pluralism has two meanings: one is that there exist various patterns of legal orders. The fragility of the Kelsenian approach lies in the fact that he defined a legal order on the basis of the traditional features of state law.92 Even assuming that coercion forms part of the constitutive elements of a legal order, one cannot deny the existence of other forms of constraint than physical coercion. The emergence of `soft law'93 is a further indication of other kinds of legal rules than those which rely on physical coercion.
Secondly, legal pluralism means that there exist multiple legal orders, some endowed with common characters (the legal orders of different states or the various systems of sporting organizations), others varying in their nature. International law is unique, not only because its very scope is to be ecumenical but also because no other legal order is cast in the same mould. But within the international community there are regional or particular legal orders as is shown by their institutions. The most fragile aspect of Kelsenism is that it relies on a definition of law which is appropriate to state law and even to the Rechsstaat of a nineteenth-century scientist, while each legal order may define its own juridical nature. Legal science has no jurisdiction over the definition of law.
A final inadequacy of the monistic approach concerns the issue of the conflict of laws. Even the assumption that there cannot be any conflict of laws within a given legal order has been seriously questioned.94 Moreover, different legal systems may subject the same `person' to contradictory commands. Such is the case, for instance, for an Italian wishing to marry a Morrocan woman. The validity of the matrimony will be decided differently in Italian civil law, ecclesiastical law if the man is a practising Christian and in Moroccan law which incorporated the Islamic law prohibiting the marriage of a Moslem woman with a non-Mohammedan. It is correct, according to the Kelsenian theory, that the person of the young girl is not the same in each of the three legal systems. Each of them creates its own juridical relation (Rechtsgeschäft). There is thus no logical contradiction among the three systems operating separately, nor is there any conflict of laws. Nevertheless, it remains the case that the same individual receives three different commands, a situation which can only be dealt with in a pluralistic approach.
85 `Les rapports de système', supra note 32, at
313-314; Principles, supra note 19, at 444-447; `Théorie du droit
international public', supra note 18, at 193; Pure Theory, at
344-347.
86 `Les rapports de système, supra note 32, at 249-262;
`Théorie générale', supra note 18, at 182-311;
Principles, supra note 19, at 205-209.
87 Souveränität, at 240; `Théorie du droit
international public', supra note 18, at 5, 85.
88 `Théorie du droit international public', supra note
18, at 79-85, 81.
89 According to Kelsen's hypothesis of the primacy of international
law, the basic norm of national law is not `a norm only presupposed in juristic
thinking but a positive norm of international law ; and then the question
arises as to the reason for the validity of the international law order to
which the norm belongs on which the validity of the individual national law is
founded - the norm in which this legal order finds its direct, although not its
ultimate, reason for the validity. This reason of validity, then, can only be
the basic norm of international law, which, therefore, is the indirect reason
for the validity of the national legal order. As a genuine basic norm, it is a
presupposed - not a positive norm. It represents the presupposition under which
general international law is regarded as the set of objectively valid norms
that regulate the mutual behaviors of states', see Pure Theory, at
215.
However, under a pluralistic approach, one is
not bound to find the basic norm of any national legal order in a `positive'
norm of international law, which is a far-fetched theory since such a positive
norm did not exist at the time that national states were set up as positive
legal orders. Kelsen's rejection of any bearing of the historical mutual
developments of the national states and an international legal order can be
assumed when dealing with the determination of the autonomous basic norm of
each state's legal order. It does not fit a system where the so-called basic
norm of state law is itself a positive norm of international law, which, by its
very nature, cannot be `presupposed'.
91 Principles, supra note 19, at 406; `Théorie du
droit international public', supra note 18, at 117.
92 One striking application of such an approach is the defining of
Church law as a `Religionsstaat', supra, note 76.
93 See F. Rigaux, `Les situations juridiques individuelles dans un
système de relativité générale', 213 RdC
(1989, I), at n° 256, 264 ; I. Seidl-Hohenveldern, `International Economic
Soft Law', 163 RdC (1979, III), at 165-246.
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