The Continuing Influence of Kelsen on the General Perception of the Discipline of International Law 1 Introduction In this short space it is proposed to suggest a hypothesis concerning what is believed to be the decisive influence of Kelsen on the subsequent development of the discipline of international law. His genius has been in the realm of the formal. He has been able to give style and shape to the desire of the profession to depoliticize the discipline and to absolve itself from moral and political responsibility with respect to serious analysis of the actual conduct of states. This genius is captured by the one-time Oxford master of the theory of international relations, Hedley Bull. Writing in 1986,2 he remarks of Kelsen that the key to his thought on international law is to be found in passages of his Law and Peace in International Relations.3 To be fair to Kelsen it is thought necessary to quote in full the argument onto which Bull latches. Kelsen asks what is the basis of the efficacy of a social order, the motives for the obedience accorded to it, the secret of power. This, he says, is sociologically a very significant problem. Whether it can be solved scientifically is doubtful. `But it lies outside the field of the question of the nature of law.' The coercive order which is called law must have a minimum of efficacy for its norms to be regarded as valid. The assertion `that back of the legal order is a power means only that the legal order is by and large efficacious', which is true of every social order. If one objects that the essential characteristic of law is that its power back is the state, this answer is misleading. The state is nothing but an order, an organized power, which means an effective order. Bull quotes the following passage of Kelsen: `As a power, the state is the effectiveness of the legal order, and as an order ... it is this legal order itself.' Kelsen goes on to say `The state as a power back of law, as sustainer, creator and source of the law - all these expressions are only verbal doublings of the law as the object of cognition, those typical doublings towards which our thinking and our language incline, such as the Animistic presentations according to which "souls" inhabit things.'4 Bull comments directly `The state as entity exerting power, in disregard of the legal order, engaged both domestically and internationally in contests for power that take no account of law, is thus defined out of existence.'5 Bull remarks that Kelsen does set up international law in opposition to power politics. He presents war as a contest between the law-breakers and the law-enforcers, but takes no account of the possibility that the latter will not have might on their side. Says Bull, Kelsen's `conception of international law as "the force monopoly of the community" makes no concessions to the fact that force is the monopoly of states and that the international community is without force ... Kelsen's only references to power are made in the course of his discussion of the efficacy of law.' At this point Bull introduces the passages from Kelsen cited above. He concludes vis-à-vis Kelsen that the pure theory of law recognizes that law has its own logic, but that legal logic will not help to understand the place of law in international society. This would require a study of international political realities.6 This is what Kelsen absolves international lawyers as lawyers from doing. This is his genius. The profession is now very largely unable to question the foundations of Kelsen's fierce argumentation, because it lacks his general intellectual culture and so is unable to challenge the foundations of his system. Without a return to the wider culture with which Kelsen was perfectly familiar the profession must continue to be lost in its self-contemplation. What this short note will attempt to do in the space available will be to explain how Kelsen himself developed his strange idea about the place of the state as a matter of what he calls legal logic. Then reference will be made to the rather obvious persistent criticism which has been made of his ideas. In conclusion, it will be suggested, through an illustration from prominent international legal doctrine, just how and why his style and form continue to have immense appeal. 2 Bull, `Hans Kelsen and International Law' in R. Tur and W. Twining, Essays on Kelsen (1986) 321. 3 The Oliver Wendell Holmes Lectures 1940-41(1948). 4 Ibid, at 69-70. 5 Bull, supra note 1, at 336. 6 Ibid, 336
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