Archive for Hans Kelsen

Constitutionalism and International Law: Clarity from “Impurity”

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , on October 26, 2008 by jeremyleong

There has been resurgence in discourse relating to the relationship between domestic constitutional law and international law. Further, perhaps in an effort to re-examine normativity in international relations, there has been increased discussion of the prospects of international constitutionalism. The latest edition of the European Journal of International Law has several such articles:- “Human Rights as International Constitutional Rights” by Stephen Gardbaum and “Human Rights, International Economic Law and ‘Constitutional Justice’” by Ernst-Ulrich Petersmann, amongst others. Similarly, the latest edition of the International Journal of Constitutional Law features a number of articles which examine the impact of international law on domestic constitutional law and vice versa. Elements of this body of scholarship draw on disciplines such as moral philosophy and rational choice theory.

 

This enterprise is, however, not new. But it has undoubtedly taken on added sophistication. Hans Kelsen was one of the first to think about the relationship between the domestic and the international legal orders. From his “Pure Theory of Law”, Kelsen posited that international law is a source of validity for changes in the basic norms of domestic legal systems. This suggests that all domestic constitutional orders derive validity from international law. Further, this theory is considered “pure” insofar as it is derived from cognition focused on law alone. To Kelsen, an “impure” theory of law would include ingredients of psychology, ethics and other disciplines or ideologies.

 

What would Kelsen say about the “purity” of current interdisciplinary scholarship in international constitutionalism then? Domestic constitutional law scholarship has itself evolved along inter-disciplinary lines. For one, fairness and justice discourse is seldom far away, as evidenced by the works of Rawls and other moral philosophers. Further, public choice theory and other law and economics theories have had significant impact on domestic constitutional law scholarship. I suppose it is only natural for these and other extra-legal disciplines to have had the same effect on international constitutional scholarship and hopefully, increased scrutiny from multiple angles will help clarify the factors that continue to divide the international and domestic spheres. I believe a collection of essays edited by Professors Joel P. Trachtman and Jeffrey Dunoff on this very topic is forthcoming. We shall update you accordingly.

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Remembering Some Founding Fathers: Interdisciplinary International Law

Posted in General Thoughts and Comments with tags , , , , , on October 6, 2008 by fletcherfila

While FILA… may be new, the interdisciplinary study of international law at the Fletcher School is not new. Some greats in this field have, and continue to, grace our halls.

We start with Roscoe Pound. Roscoe Pound was one of the founding fathers of the Fletcher School while he was Dean of Harvard Law School. With him driving the enterprise, the Fletcher School was founded as a joint enterprise between Tufts College and Harvard University.

Roscoe Pound was one of the first legal realists. He invented a brand of (what he termed) sociologicial jurisprudence which called for judges to make decisions by weighing up social and economic consequences. No doubt, his scientific approaches to legal philosophy also came from his immense interest in the science of botany.

Next, we have Leo Gross, who was a protege of Hans Kelsen (who I believe also taught at the Fletcher School at some point). Leo Gross’s research and teaching always focused on international institutions and paid special interest to the International Court of Justice. In particular, his scholarship was always keenly rooted to political studies and the political evolution of these institutions.

Another founding father, in more recent times, comes to mind. Robert Hudec taught international trade law at the Fletcher School in the 1980s and 90s. Hudec was a giant in the field and was was once described as a better lawyer than most lawyers and a better economist than most economists. He was a legal realist who recognized that international trade law is “inextricably joined with international trade politics” (J. Trachtman, 2003). He was an empiricist and legal scientist (possibly due to his prior training as a chemist).

Current faculty members have stepped admirably into those footsteps, be it in law and economics; law and social constructivism; law and political realism, etc etc. Due to them, the Fletcher School remains a place where the empiricist meets the reductionist philosopher while having coffee with the historian and sociologist. In that light, FILA… has pretty big shoes to fill.   

But having seen those shoulders on which we stand, I’m pretty confident.