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  3. Introduction

It is closely associated with the collective egoism of nationalism and of imperialism.

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Kelsen quite perceptively observes that this is the world-view of those who have to identify with a powerful state in order to boost their own self-confidence. Epistemologically, imperialism is an expression of solipsism, which is the view that there is no external reality outside the sensation that the subject creates of his or her reality. The external world can only be conceived of in terms of the internal world.

Not surprisingly, the adherents to this view believe that the interpretation of public international law should be in the hands of those who are submitted to it. Far from idealizing international law into one harmonious system, Kelsen uncovers a remarkable dialectic. The development of the modern international legal system is driven by distorted conceptions of itself. Each conception avails over an impeccable but unappealing core. It expresses a subtle awareness not only that, as a field of law, public international law invites, systematically, its own misreading, but also that its evolution is nurtured by it.

Which of the two misreadings is going to prevail is a historical matter. Classical positivism tried to unmask the legal purport of the international order. According to Austin, public international law was simply positive morality. He thought that no such unified rule existed with regard to the sources of public international law.

Hart believed that, in the case of international law, primary rules, the rules of obligation, form a mere set and are not part of a system. But we need not assess the merits of Hart's position here. Suffice it to say that Hart considered public international law to be constitutionally deficient. It is constitutionally deficient precisely because it suffers from a defect that Hart attributed to any system that merely consists of a set of primary rules, namely, uncertainty: Hence if doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt, either by reference to an authoritative text or to an official whose declarations on this point are authoritative.

The international legal system is constitutionally deficient in precisely the sense of the term which reflects what we have come to expect a constitutional system to accomplish. Under conditions of constitutional deficiency — in decisive matters, at any rate — obligations are not clear. It is not clear, for example, whether and to what extent the European Community law is an entirely self-contained regime. Conversely, a constitutionally adequate system combines rules governing impartial adjudication with a clarification of the forms and procedures that the creation of law ought to follow in order to be given proper effect.

A constitution constrains the powerful, not merely by submitting their conduct to the discipline of rules but also by setting a limit to the resourceful renditions of what they would like to present as legal and constitutional. Kelsen would not deny that public international law is constitutionally deficient. He would, however, not concede that the perceived deficiency does in any way affect the quality of international law to be law.

Constitutionality, as implicitly used in Hart's discussion, is an unnecessary idealization, which has an obscuring influence on the perception of how legal systems work in reality. Kelsen confronted the traditional legal positivist's challenge head on by conceding that for international relations to be susceptible to description in legal terms one idealization is indeed indispensable: it must be possible to attribute to certain acts of states the meaning of being a sanction for the breach of an international obligation.

Needless to say that this idealization lends expression to Kelsen's concept of the legal norm. Since Kelsen, as a legal positivist, abstains from characterizing unlawful behaviour in moral terms e. In any event, the onus explandandi for what accounts for the normativity of a norm rests on the sanction and what it means to have authority to impose it.

Using Hohfeldian parlance, without either disability or liability no normativity would obtain. Presumably, a sanction is something that affects the will — a matter that has not been further explored by Kelsen. No further explanation is needed to realize how Kelsen conceives of the most fundamental challenge to the international system from a legal point of view. In other words, if and when war and reprisals are conceived of, on the level of discourse , as sanctions for breaches of international norms, public international law exists.

This position raises many questions, in particular as regards the objective meaning of acts that purport to enforce international obligations. How can there be legal authority without final interpretive authority? How is objective meaning possible if all legal talk is irredeemably disseminated and scattered in the subjective meanings of parties who take the law into their own hands? Despite scattered and conflicting interpretations the international legal order remains intact so long as the invocation of international legality appeals to the community constituted by it.

Under this condition, the community also avails over a monopoly of force since every authorization of the legal use of force — even if it concerns the notorious bully in the schoolyard — is intended to be derived from that one legal system. Apparently, the unity of appeal is all it takes for the system to be one system.

Even if the principle of self-help prevails, legal and illegal employment of force are to be distinguished. I grant that this may appear to be terribly paradoxical. However, never before has the monopoly of force been formulated in a less state-centred manner. First, the force that accounts for the monopoly of force, according to Kelsen, is nothing short of the legal system.

Realism

The community that is constituted by the system imposes the sanction by empowering the harmed entity to act as its agent. One may wonder whether this does make any sense. How is a mute principal to deal with presumptuous imputations? These principals would not speak either if it were not for the intervening attributions by agents. The monopoly of force can never be the real physical possession of a state or some other institution.

The means for the use of violence will always be subject to the control of some real human being whose acts are linked to a centre through a chain of command. This chain, however, is not composed of the iron links but mediated by norms that constitute a certain degree of subordination and centralization. The monopoly of force, hence, is not a quaestio facti but an idealization.

It is constituted by legal norms. A system avails over a monopoly of force only if it satisfies one or the other normative condition. In determining these conditions, Kelsen's minimalism comes to the fore. Departing from the nation-state as the paradigmatic example of a legal system, we are inclined to believe that a monopoly of force exists only if the system is endowed with two forms of centralization, namely, supreme adjudicative tribunals on the one hand and a hierarchical system of enforcement on the other.

Kelsen must have thought even though he did not put it in these terms that both conditions express unnecessary — and hence false — idealizations.

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We have come to live with an international system in which acts of enforcement remain decentralized, even where adjudication or something remotely similar to it has already been centralized, albeit at the price of functional specification. Kelsen seems to have thought that the belief in the necessity of centralized adjudicative institutions is nothing short of a moral expectation with regard to the alleged impartiality with which an authorization to impose a sanction is granted.

Whether or not it is desirable to have those who have rights also determine the conditions of their exercise is not a question of law, but of legal policy. Hence, there remains only one necessary condition for the existence of a monopoly of force, namely that the various acts of violence or other sanctions are claimed to be authorized by one and the same system. This is the case as long as even nearly complete regime isolation remains traceable to general public international law. As long as it is clear to the members of the community that force ought to be exercised legally only on the community's behalf, the community avails over a monopoly of force.

The one question that is left open, of course, is whether a positivist theory could even accord the existence of mere discourse priority over the effectiveness of the link between sanction and offence.

Introduction

What if the schoolyard bully were to get away with impunity for everything he does because he is feared by everyone else? What if no state complied with international obligations while, at the same time, constantly using them to censor the conduct of others? In other words, would a system of universal hypocrisy be a system of law? As I tried to explain above, a common vanishing point of reference is merely a necessary condition for the existence of a legal system.

Would there be a legal system where the commission of delicts is not followed by sanctions? I am afraid that I am not able to answer this question conclusively, but I think I am able to clarify what it is about. Kelsen discusses the case of the revolutionary change of legal orders.

In such a situation one legal order is replaced by another without a legal rule governing the transition from one to the next. This situation is different from one where the alternative is between the existence of a decentralized legal order and the absence of any legal order whatsoever. In the case of the succession of legal orders, arguably, both the axiomatic condition, according to which participants in the system treat norms and acts of enforcement as elements of one and the same system, and the condition of effectiveness are fulfilled for the new legal order.

Neither holds true for the order that has been superseded. More importantly, the axiomatic condition i. Is an international system a legal system when the bully has the power to act as he sees fit while others who are invested with the legal power to impose a sanction consider themselves too powerless to do so? How would the lack of what can be done affect the characterization of what ought to be done?

I am strongly inclined to believe that it is because otherwise all assertions of illegality would be absorbed into the zeal of political bickering. On a deeper level, Kelsen's endorsement of the legal nature of public international law reveals an almost unruly primitiveness at the heart of law itself. This can be seen by comparing international law, as a system, with any ordinary system of law in which precedents are considered to be pivotal. Whereas systems of precedent are diachronically primitive, public international law is primitive in a synchronic way.

But in both cases, the actual link between conditioning conduct and conditioned sanction is established by forces that obtain in the situation of application. He sketches one system that is fully centralized. The enactment of general norms is vested in a legislature.


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The adjudicating bodies are strictly bound by what has been laid down by the former. He then discusses a system that does not avail of any centralized norm-setting institution at all.


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  • It is a system in which the adjudicating bodies create norms on an individual case-by-case basis for each case. The difference would disappear, however, in a case law system where the adjudicating body, e. The situation would resemble international law under the influence of one hegemonic power.