This is the final section of the paper by Kelsen we discussed earlier in the course. That was in early February so you may want to review the earlier sections. Of them, §VIII is most relevant to Kelsen’s discussion here; but he also refers to his earlier discussion of “efficacy,” and you can find that in §II, pp. 50f.
Some of Kelsen’s discussion here, just as earlier in the paper, is directed at Austin’s ideas. You can find a statement of Austin’s views on international law in the first selection on the handout for Jan. 25 (pp. 1-2 of the handout); the relevant paragraphs are reproduced at the end of this guide.
Kelsen’s §IX has three parts: a discussion of the sort of legal order represented by international law, an argument for his view of the relation between international and municipal law (which Kelsen calls “national law”), and finally the derivation of a few consequences of his view.
• In §VIII, Kelsen argued that the state is a legal order, but it now becomes clear that it is not the only kind of legal order. What is the difference between a state on the one hand and international law (and what he calls “primitive law”) on the other hand?
• Kelsen argues for his view of the relational between international and national law by eliminating other alternatives. The first he eliminates is a kind of view he calls “dualism.” What is it and why, according to him, won’t it work? We are then left with “monistic” views. He argues for his own by rejecting another sort of monistic view. What is that view and what is his argument against it?
• The first two issues discussed at the end of the section are limitations, respectively, of national and international law; these concern national sovereignty on the one hand and the relation of international law to individual people on the other. Finally, he discusses one part of the content of international law, what he calls the “principle of effectiveness.”
From John Austin, The Province of Jurisprudence Determined (2nd ed.), Lecture VI
A natural society, a society in a state of nature, or a society independent but natural, is composed of persons who are connected by mutual intercourse, but are not members, sovereign or subject, of any society political. None of the persons who compose it lives in the positive state which is styled a state of subjection: or all the persons who compose it live in the negative state which is styled a state of independence.
Considered as entire communities, and considered in respect of one another, independent political societies live, it is commonly said, in a state of nature. And considered as entire communities, and as connected by mutual intercourse, independent political societies form, it is commonly said, a natural society. These expressions, however, are not perfectly apposite. Since all the members of each of the related societies are members of a society political, none of the related societies is strictly in a state of nature: nor can the larger society formed by their mutual intercourse be styled strictly a natural society. Speaking strictly, the several members of the several related societies are placed in the following positions. The sovereign and subject members of each of the related societies form a society political: but the sovereign portion of each of the related societies lives in the negative condition which is styled a state of independence.
Society formed by the intercourse of independent political societies, is the province of international law, or of the law obtaining between nations. For (adopting a current expression) international law, or the law obtaining between nations, is conversant about the conduct of independent political societies considered as entire communities: circa negotia et causas gentium integrarum.* Speaking with greater precision, international law, or the law obtaining between nations, regards the conduct of sovereigns considered as related to one another.
And hence it inevitably follows, that the law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. As I have already intimated, the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.
[* The meaning of this Latin phrase is roughly the same as that of the English phrase “about ...” that precedes it.]