P. Edwards

Hans Kelsen’s application of his Pure Theory of Law to international law was supported by two key theoretical assumptions. According to the systematicity assumption, present in Kelsen’s work between 1920 and 1960, legal cognition constituted international law as a unified system, grounded in a presupposed basic norm. According to the evolutionist assumption, prominent between 1934 and 1945, social institutions underwent a teleological process of evolution, so that international law could be expected to recapitulate the development of domestic legal systems. This paper analyses the evolutionist model, identifying what Kelsen considered to be the minimum content of a legal order and the characteristics of the earliest legal orders, and showing how his analysis of international law followed the model. It then reviews the systematicity assumption and the difficulty of applying it to international law, particularly with regard to the basic norm. These difficulties, and some potentially unsettling implications of the evolutionist assumption, are discussed with reference to the broader history of Kelsen’s theoretical work. In conclusion, the paper argues that the same drive for certainty that led Kelsen to champion these models led him to abandon or downplay them after 1945, discounting the insights that they could offer him – and us.

Hans Kelsen’s application of his Pure Theory of Law to international law was supported by two key theoretical assumptions. According to the systematicity assumption, present in Kelsen’s work between 1920 and 1960, legal cognition constituted international law as a unified system, grounded in a presupposed basic norm. According to the evolutionist assumption, prominent between 1934 and 1945, social institutions underwent a teleological process of evolution, so that international law could be expected to recapitulate the development of domestic legal systems. This paper analyses the evolutionist model, identifying what Kelsen considered to be the minimum content of a legal order and the characteristics of the earliest legal orders, and showing how his analysis of international law followed the model. It then reviews the systematicity assumption and the difficulty of applying it to international law, particularly with regard to the basic norm. These difficulties, and some potentially unsettling implications of the evolutionist assumption, are discussed with reference to the broader history of Kelsen’s theoretical work. In conclusion, the paper argues that the same drive for certainty that led Kelsen to champion these models led him to abandon or downplay them after 1945, discounting the insights that they could offer him – and us.

In the late 1930 s Hans Kelsen supplemented his Pure Theory of law with an evolutionist model of human social institutions, identifying what he considered to be the minimum content of a legal order and the attributes of the earliest legal orders. He argued that more rational alternatives necessarily developed through social evolution, but that the unevenness of the process allowed the survival of relics of earlier rational legal orders. Among these evolutionary relics were the ideology of retributivism and perhaps the practice of retribution. Kelsen made numerous attempts to integrate this insight into the Pure Theory, without success; this in turn may help explain both his abandonment of the evolutionist model in the 1940 s and his radical revision of the Pure Theory in the 1960 s.