Research Handbooks in International Law series
Edited by Alexander Orakhelashvili
Chapter 6: Hans Kelsen’s Place in International Legal Theory
Jörg Kammerhofer 6.1 THE PURE THEORY OF LAW AUJOURD’HUI Hans Kelsen and the Pure Theory of Law (Reine Rechtslehre) he founded has recently been subject to a revival, even in Anglo-Saxon countries traditionally critical of that approach. Legal scholars seemingly tired of their discipline being colonised by other areas of knowledge such as sociology, ethics or economics now once again seek to focus on the proper core of legal scholarship – to find out what the law itself says. In international law, this revival is much less marked,1 perhaps because international legal scholarship is a discipline even more steeped in pragmatism than many domestic traditions. This chapter is an attempt to carry the spirit of the Kelsen revival to the international realm. It seeks to apply the Pure Theory of Law to some of the current problems of international law and thus to endow that theory with a new usefulness that Kelsen is not usually accorded by current international legal scholarship. Another goal of this chapter is to get away from a gut-reaction against Kelsen and to avoid the stigma that is associated with his name in legal theory. This can be achieved by re-engaging with the Pure Theory without placing undue emphasis on polemic defence or attack and by thoroughly ‘modernising’ the topics discussed. This chapter aims to convince on the merits in order to get colleagues to engage with the Pure Theory of Law more broadly and to apply it to problems of international law. Hence, the...