Kelsen

'Kelsen’s Contribution to Contemporary Philosophy of International Law' by David Dyzenhaus comments

This paper revisits the Hart-Kelsen debate in philosophy of law through the lens of their views on the legal status of international law. Hart’s unsatisfactory account of that status dominates recent philosophical debate about international law largely because scholars accept Hart’s claim to have refuted Kelsen. But, as I argue, Hart distorted Kelsen in order to ‘refute’ him. With those distortions corrected, we can see that Hart’s own legal theory is not only parochial but incoherent on its own terms. More important, we can appreciate the merits of Kelsen’s theory in two major respects. First, Kelsen, unlike Hart, does not start by constructing a theory of the law of a national legal order, and, only then, ask whether international law is law in its light. Rather, he shows that an understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. Second, we can see that the fundamental divide in philosophy of law is neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication. Rather, the divide is between Kelsenian dynamic and Hartian static models of law, where these labels signify whether the model includes the dynamic process of legal change within the scope of legal theory or consigns it to some extra-legal space.