Abstract
Kelsen’s legal monism—the claim that it is impossible for legal science to recognize the existence of more than one legal system—is often held to be one of the least plausible aspects of Kelsen’s pure theory of law. This paper challenges the criticism of Kelsen’s monism in the work of H.L.A. Hart. In particular, it will argue that Hart failed to show that Kelsen’s monism rests on a mistaken criterion of the identity of legal system and that it is, therefore, descriptively inadequate. Kelsen’s monism is not only descriptively viable but potentially able to provide an interesting counterpoint to the prevalent legal pluralist orthodoxy in the theory of legal system.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
Hart’s arguments have been developed in more detail by Joseph Raz. See Raz (1970: 95–109) and Raz (2009a: 127–129). Hart’s and Raz’s arguments against Kelsen’s theory of legal system are fairly similar. This paper, therefore, focuses on Hart’s initial development of the critique. For a discussion of Raz’s version of the critique, see Vinx (2007: 184–194).
- 2.
MacCormick subsequently modified his rejection of Kelsen’s monism and argued that the European legal order might be understood as a form of “monism under international law.” See MacCormick (1999, 113–121). The view that is advocated here is close to MacCormick’s later position.
- 3.
- 4.
I have tried to explain why I do not hold Kelsen’s strong monism to be defensible in Vinx (2011).
- 5.
- 6.
Ronald Dworkin’s mild critique of Hart’s attack on Kelsen conceded this key point to Hart. See Dworkin (1968).
- 7.
Needless to say, Hart argues on the basis of his theory of the rule of recognition . See Hart (1961: 97–107).
- 8.
- 9.
- 10.
For Hart’s general development of this attack on the rule of recognition see Hart (1961: 107–110).
- 11.
See, for example, Kumm (2012: 42):
If the highest court of a legal order insists on applying the law of the more encompassing legal order only under conditions defined by its legal order and the decisions of that court are generally taken as authoritative by other officials of that legal order, then the relationship between the legal orders is pluralist as a matter of fact.
Kumm goes on to argue the relationship should not be pluralist as a matter of right. But I think he concedes the descriptive point too readily. His own cosmopolitan ambitions would be better served by taking the view that the facts he talks about here do not establish that there is no unified global legal order as a matter of fact.
- 12.
See Dicey (1982: 87):
The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus stated: There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament.
- 13.
- 14.
To be more precise, a normative system is a legal system, according to Kelsen, if it successfully claims a monopoly of legitimate force, ie, if the behavior of the purported subjects of the law is sufficiently in line with the principle that the use of coercive force is legitimate only in response to a prior delict or violation of the law. For instance, Kelsen claims, with respect to international law, that:
international law is true law if the coercive acts of states […] are, in principle, permitted only as a reaction against a delict, and accordingly the employment of force to any other end is forbidden; in other words, if the coercive act undertaken as a reaction against a delict can be interpreted as a reaction of the international legal community (Kelsen 1952: 18).
This condition could be fulfilled, Kelsen holds, in the absence of centralized adjudication and enforcement of a system’s norms, because injured parties (or their allies) could apply sanctions for delicts committed against them by way of (legally authorized) self-help.
- 15.
Kelsen’s line of argument here is strictly analogous to his argument for the introduction of constitutional adjudication in a domestic context. See Kelsen (1929).
- 16.
On the importance of the idea of peace for Kelsen’s theory of legal system see Notermans (2015).
- 17.
See for instance Neil Walker (2012: 18–19) who describes monism as “a tendency towards a new manifestation of closure and a new reduction to unity; towards the old familiar of everything deemed constitutional being contained—‘constituted’ indeed—within the one hierarchically layered legal and political system.” Such talk assumes, without offering much in the way of argument, that legal unity must be tied to the kind of political unity we associate with the modern state. It also assumes that all forms of unity and closure are equally bad. Kelsen’s willingness to challenge such assumptions strikes me as more progressive and more intellectually enterprising than contemporary legal or constitutional pluralism.
- 18.
We are perhaps too afraid of this at any rate. See Scheuerman (2011: 149–168).
References
Barber, Nick. 2010. The constitutional state. Oxford: Oxford University Press.
Culver, Keith C., and Michael Giudice. 2010. Legality’s borders. An essay in general jurisprudence. New York: Oxford University Press.
Dicey, A.V. 1982. In Introduction to the study of the law of the constitution, ed. Roger E. Michener. Indianapolis: Liberty Fund.
Dickson, Julie. 2001. Evaluation and legal theory. Oxford: Hart Publishing.
Dworkin, Ronald. 1968. Comments on the unity of law doctrine. In Ethics and social justice, ed. Howard E. Kiefer and Milton K. Munitz, 200–206. Albany: State University of New York Press.
Giudice, Michael. 2013. Hart and Kelsen on international law. In Oxford studies in philosophy of law: Volume 2, ed. Leslie Green and Brian Leiter, 148–174. Oxford: Oxford University Press.
Hart, H.L.A. 1958. Positivism and the separation of law and morals. Harvard Law Review 71: 593–629.
Hart, H.L.A. 1961. The concept of law. Oxford: Clarendon.
Hart, H.L.A. 1983. Kelsen’s doctrine of the unity of law. In Essays in jurisprudence and philosophy, ed. H.L.A. Hart, 309–342. Oxford: Clarendon.
Kammerhofer, Jörg. 2009. Kelsen—which Kelsen? A reapplication of the pure theory to international law. Leiden Journal of International Law 22: 225–249.
Kammerhofer, Jörg. 2011. Uncertainty in international law. A Kelsenian perspective. Routledge: Abingdon.
Kammerhofer, Jörg. 2014. Hans Kelsen in today’s international legal scholarship. In International legal positivism in a post-modern world, ed. Jörg Kammerhofer and Jean D’Aspremont, 81–113. Cambridge: Cambridge University Press.
Kelsen, Hans. 1914. Über Staatsunrecht. In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans R. Klecatsky, René Marcic and Herbert Schambeck, 2010, vol. 1, 785–865. Wien: Verlag Österreich.
Kelsen, Hans. 1920. Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer Reinen Rechtslehre. Tübingen: J.C.B. Mohr (Paul Siebeck).
Kelsen, Hans. 1929. The nature and development of constitutional adjudication. In The guardian of the constitution: Hans Kelsen and Carl Schmitt on the limits of constitutional law, ed. and Trans. Lars Vinx, 22–78. Cambridge: Cambridge University Press, 2015.
Kelsen, Hans. 1931. Who ought to be the guardian of the constitution?. In The guardian of the constitution: Hans Kelsen and Carl Schmitt on the limits of constitutional law, ed. and Trans. Lars Vinx, 174–221. Cambridge: Cambridge University Press, 2015.
Kelsen, Hans. 1934. Introduction to the Problems of Legal Theory. A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Trans. B. Litschewski-Paulson and S.L. Paulson, 1997. Oxford: Clarendon Press.
Kelsen, Hans. 1942. Law and peace in international relations: The Oliver Wendell Holmes Lectures, 1940–1941. Cambridge, MA: Harvard University Press.
Kelsen, Hans. 1944. Peace through law. Chapel Hill: The University of North Carolina Press.
Kelsen, Hans. 1952. Principles of international law. New York: Rinehart & Company.
Kelsen, Hans. 1960. The Pure Theory of Law, 2nd edn. Trans. M. Knight 1967. Berkeley: University of California Press.
Krisch, Nico. 2012. The case for pluralism in postnational law. In The worlds of European constitutionalism, ed. Grainne de Burca and J.H.H. Weiler, 203–261. Cambridge: Cambridge University Press.
Kumm, Matthias. 2012. Rethinking constitutional authority: On the structure and limits of constitutional pluralism. In Constitutional pluralism in the European Union and beyond, ed. Matej Avbelj and Jan Komarek, 39–65. Oxford: Hart Publishing.
Langford, Peter, and Ian Bryan. 2012. Hans Kelsen’s theory of legal monism. A critical engagement with the emerging legal order of the 1920’s. Journal of the History of International Law 14: 51–86.
MacCormick, Neil. 1993. Beyond the sovereign state. Modern Law Review 56: 1–18.
MacCormick, Neil. 1999. Questioning sovereignty. Law, state, and nation in the European Commonwealth. Oxford: Oxford University Press.
Merkl, Adolf. 1931. Prolegomena einer Theorie des rechtlichen Stufenbaues. In Die Wiener rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, eds. Hans R. Klecatsky, René Marcic and Herbert Schambeck, 2010, vol. 2, 1071–1111. Wien: Verlag Österreich.
Notermans, Mathijs. 2015. Social peace as conditio tacita for the validity of the positive legal order. Law and Philosophy 34: 201–227.
Raz, Joseph. 1970. The concept of a legal system. An introduction to the theory of legal system. Oxford: Clarendon.
Raz, Joseph. 1990. Practical reason and norms, 2nd ed. Princeton: Princeton University Press.
Raz, Joseph. 2009a. Kelsen’s theory of the basic norm. In The authority of law, 2nd ed, ed. Joseph Raz, 122–145. Oxford: Oxford University Press.
Raz, Joseph. 2009b. The rule of law and its virtue. In The authority of Law. Essays on law and morality, vol. 2, ed. Joseph Raz, 210–229. Oxford: Oxford University Press.
Schauer, Frederick. 1996. Positivism as pariah. In The autonomy of law. Essays on legal positivism, ed. Robert P. George, 31–55. Oxford: Clarendon.
Schauer, Frederick. 2005. The social construction of the concept of law: A reply to Julie Dickson. Oxford Journal of Legal Studies 25: 493–501.
Scheuerman, William E. 2011. The realist case for global reform. Cambridge: Polity Press.
Somek, Alexander. 2007. Kelsen lives. European Journal of International Law 18: 409–451.
Somek, Alexander. 2012. Monism: A tale of the undead. In Constitutional pluralism in the European Union and beyond, ed. Matej Avbelj and Jan Komarek, 343–379. Oxford: Hart Publishing.
Vinx, Lars. 2007. Hans Kelsen’s pure theory of law. Legality and legitimacy. Oxford: Oxford University Press.
Vinx, Lars. 2011. Austin, Kelsen, and the model of sovereignty. Canadian Journal of Law and Jurisprudence 24: 473–490.
von Bernstorff, Jochen. 2010. The Public International Law Theory of Hans Kelsen. Believing in Universal Law. Trans. T. Dunlap. Cambridge: Cambridge University Press.
Walker, Neil. 2012. Constitutionalism and pluralism in global context. In Constitutional pluralism in the European Union and beyond, ed. Matej Avbelj and Jan Komarek, 17–37. Oxford: Hart Publishing.
Acknowledgments
This paper was first presented at a seminar on Kelsen’s international theory organized by Robert Jan Witpaard at Radboud University in Nijmegen. It was presented again at the 2013 Christmas meeting of the Norwegian Association for Legal Philosophy, at the invitation of Jørgen Stubberud, and then at the workshop in Chicago organized by Jeremy Telman. I am very grateful to Jeremy, Robert Jan, and Jørgen for giving me the opportunity to participate in these events. I received a wealth of feedback on all three occasions: Svein Eng’s meticulous comments at Oslo were extremely helpful. I am also indebted to Jochen von Bernstorff, Joseph Fleuren, Michael Steven Green, Jörg Kammerhofer, Christoph Kletzer, Thomas Mertens, Thomas Olechowski, Scott Shapiro, Jørg Stubberud and Jeremy Telman for their valuable questions and suggestions.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Vinx, L. (2016). The Kelsen-Hart Debate: Hart’s Critique of Kelsen’s Legal Monism Reconsidered. In: Telman, D. (eds) Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence. Law and Philosophy Library, vol 116. Springer, Cham. https://doi.org/10.1007/978-3-319-33130-0_4
Download citation
DOI: https://doi.org/10.1007/978-3-319-33130-0_4
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-33128-7
Online ISBN: 978-3-319-33130-0
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)