Faith, Ritual and Rebellion in 21st Century (Positivist) International Law

Abstract

International legal positivism in some of its radical forms in the 21st century operates as theological voluntarism. It is the ambition to translate an overwhelmingly practical art into a general theory of law that has squeezed these theories into a theological structure of thought. If such a thing could ever exist, a general theory of law ought to reveal the role played by morality in the normative pronouncements about law. However, a general theory can only emerge at the expense of taking the existential decision about identifying law with morality or severing law from morality.2 Hans Kelsen writes that ‘law is an order of human behaviours’.3 But is this order founded upon morality or not? This very question articulates a fragmented view of reality falling between fact (morality) and value (law) that we have learned to take for granted.4 Practitioners know that the correct professional approach is to be interested in the legal aspects of a case and not in its moral aspects. Moreover, both in theory and practice, one can often limit oneself to act as a morally responsible person.5 There are, however, several sensitive areas in which even minimal theoretical work calls for the adoption of a moral-normative standpoint.6 However, the ‘general theory’ type of thinking urges the theological question7 – will the law punish my immorality or not?8 The theoretician devising a general theory will lay out the question of morality and law in absolute terms. Independently of the answer, articulating this question involves the assumption that the lawyer should take a theological approach, which is also reflected in the non-neutral outcome of the following two absolutist approaches.9 If law is to prescribe what is moral, every legal judgment is a moral judgment about good and evil. Law is endowed with power in order to apply a moral code, and secular law becomes superfluous. The second approach, based on the separability of law and morality, denies that the normativity of law makes claims connected with morality. What is at stake is not whether law ignores or refrains from expressing whether a particular behaviour is moral or not but, rather, the assertion of the idea that no violation of the law is a moral evil and no legal judgment is a moral condemnation. Morality is irrelevant to this approach. Both types of general theory work in the realm of the ideal with an a priori type of human being. The sinner belongs to the first category; the god to the second.10 In both cases, the theologian-theoretician devising a general theory employs law that works in history in order to model behaviour in practice. In the first case, the human being becomes absolutely dependent on the ideal type to which she has to conform, the supreme legislator (presumably representing God) being in charge of its implementation. As if in parallel, in the second choice, the morality of human beings is considered to be autonomous from that of the supreme legislator (embodied by the people, the consent of the state and so on). A theory of law that demarcates strictly legal norms declares that moral normativity in its varied forms, including reason, nature, justice, politics, the real world or humanity, never comes into contact with legal judgments.11 A human being’s behaviour ought to be examined through law without this type of considerations. Law as ideality is, as it were, enclosed – it is disconnected from any claim to substantive moral content, but, more importantly, it is also disconnected from the sphere of practical action in which the legal actor takes a moral decision when necessary. The troubled history of natural law theories proves that the first option described above has never been attempted, let alone implemented.12 Moreover, there is no moral code that can produce a complete system of (international) law – not even Sharia does that.13 Equally, the few alleged attempts made in the realm of theory to produce any form of neutral normativity, independent from morality, have failed with similar regularity. The (healthy) inconsistency of the formulations attempted to this end has been laid bare by the fact that their authors have introduced rational considerations of morality and justice when this was felt to be necessary or unavoidable.14 The condition of voluntarism concerns a classical position of Western theology that differentiates between the absolute power of God to adopt any possible course of action without contradiction and the divine ordained power by which God is committed to act in a certain manner. While we are moving within the realm of strict theology, the voluntarist element appears when emphasis is placed on all of the logical possibilities open to God to create different worlds. Everything from the beginning is considered to be contingent (‘it could have been otherwise’) and therefore no rationality can bind the will of God.15 Instead of observing the reality around him, the 14th-century voluntarist theologian felt compelled to focus his epistemological view on the normative character of God’s command. He accordingly focused on the idea that God’s command was binding even though he considered it to be, logically speaking, deprived of inherent rationality, morality and so on – or in modern formalistic terms, empty and neutral.16 In his book, Pure Theory of Law, Kelsen sketches a similar type of theological voluntarism with some wit: From the point of view of a theory of positive law, there is no fact that by itself – that is, regardless of a consequence stipulated by the legal order – is a delict. There are no mala in se, but only mala prohibita. This is only the consequence of the principle, generally recognized in criminal law: nullum crimen sine lege, nulla poena singe lege; and this principle which is valid not only for criminal law, not only for criminal but for all delicts, not only for punishments but for all sanctions, is merely a consequence of legal positivism.17 Kelsen continues by explaining that it was self-evident that certain behaviour was criminalized when the legal authority regarded it as ‘harmful to society’. However, ‘from the point of view of an analysis of the immanent meaning of the legal order, this circumstance is irrelevant for the concept of delict’.18 The invocation of the positivist principle nullum crimen sine lege makes Kelsen’s thought look voluntarist it a of the nullum crimen sine lege and nulla poena sine lege that in to limit the power of the and the of the crimen sine lege a from all that is morally The idea was to the of a as a criminal only on the of what has been as law. Kelsen made his claim to that there was no that this principle to that there are no that are not or only have been by law. it does not as that when one human behaviour from a positive law one a the principle of nullum crimen sine lege the lawyer to to positive law, if there is In the principle to law in criminal law of any but it is not its to morality from a legal point of in his to Kelsen articulates his theory with all the in law of a voluntarist in law is not by any particular rationality or Law could have The two in International A and and the of International A Theory of the of in the epistemological of theological voluntarism. The legal theoretical ambition of the two appears to be to one should of an law that state consent at the that morality be placed law. In a similar to century legal the existential by these is by not by Moreover, the two authors to apply the radical of a positivist general theory of law to this theory but, rather, it – Kelsen’s this both the by their legal theoretician the of in Kelsen’s normativity of law. In the and theoretical first by of normativity by to without about its However, it is no that several of to legal In the of and this theory appears to a of power to the law to which have an of in which legal are being the of of law, one with and of the between the of law and and of the of law to some of the in this law is connected to such a theory the of in of from the of law. However, the theory type of normativity of in International Law and and the of International Law an ideal for law, it to its The of its politics, not to its morality, makes the – the theological type of thinking as Kelsen law is and ought not to be with of morality. as was the case with this type of theory to with to the What are the of the of law the can legal to that and all of the of the to an ideal of law and morality has never of the theoretical of law, and of such as or one to whether be the to take such a However, this is not to that the not and and that in some the modern The International in a a of around the general of positivism and legal theory by and is by a different theoretical In the of the of the two which is that the authors are the of this the a positivist and a and with the of and – and the also in their of the the power of the for law or attempts to the between natural and positivist law. In this the of the of both expressing the in law – which is, in their positivist – and the of positivism in The forms a of with the which this for its to through the the in upon this Moreover, not only is the an independent but of the also form of their that that one can with is that are about law. the theological of positivism are in the the of the in the the adoption of a moral point of view in law, with the of substantive by which the of law can be In morality is with what the of the century has to their in radical positivism in their and have in or even Kelsen’s and – does as with a minimal of natural of the adopt the with to the of However, one the in the on this particular the that the to the several of the in to theological voluntarism are In the one does not that is about the to be a in to the theories of that made claims The of legal is but are with the of with a world in which is to be in of legal In this the legal of the century works in with what is in reality and is not on of of legal theory or – the as on the through This about is with to Pure Theory is to legal theory in in International A In the is often with the legal theory of to a decision of the authority is as as a legal In the have Kelsen’s Pure Theory as both of more to of Kelsen’s work and articulating the of and the law to Kelsen with the create Kelsen this idea Moreover, the of to Kelsen’s legal thinking is not to the emphasis on the of in law. In Kelsen’s was the very question that ought to in the of law. on the of was to whether the to and Kelsen that it was that the itself its to be that the of could be when the felt to be open the question of – the state or the itself was also and Kelsen The question of be by no decision necessary. But such a does not in law. There are no in only by the The is the can never be only two of Kelsen’s one his in to and his in the of the law to be by the are in order to that is not a particular from the of the of the legal the of is and is in the 21st a when several of legal Kelsen have legal and have to and in of It is only natural that the is to be no a in the of law. While there is in law, the century have law itself as the to the state of in In the of law as a to the fact that it was considered to be the when thinking in of book, however, with type of This is one to and to epistemological as Kelsen’s theory within the of theological as of the theory of the is founded on the from no from an of the Pure Theory does not that law is an legal order or that is not by It is in this that in International Law with the of that and of the in of to the that has to and as as the of in International Law is about to itself as both an and a about the of valid law without the of morality and state the of at thought that in he on in the as we as being that which is of have both and aspects take the in the be by the described the of an act of as being on the He that is to the to with so that the act of is from all the of the which are about the or the This in which is about thinking with and about thinking with is in of the idea of voluntarism as an epistemological in in International A as to the Pure Theory will that and are in in International The to a Pure Theory to law calls for to a priori the between and to the The to this in the in which he his work on legal theory to in the very in the to the made the book, in which the Pure Theory is as both and does in theoretical or a of what in the 21st in to law. Moreover, very in the the that is and a in the classical – a to one will not be he to and of when the adoption of the Pure Theory is as an act of one a as to the thought it a on that particular this at the end of the is an of existential to and is Kelsen’s also be as through an act of in the Pure However, he never attempted a of the Pure Theory to of law. This is from of International Law, which is a of the law of his It be the case that he not to to the law of his – which from the – or he felt the was not for that through he his in of law, as to the of the between and law the that in the of the Pure Theory is a in a as as refrains from any of Kelsen’s to of the of a theory of law that was to be to above in of of from the and the regarded that as the only to However, in his theory of law, Kelsen the There is to that his that as a of principle it was a to moral and judgment in law. In the of the of the committed by the Kelsen made no about the and and to the morality of the However, we can only with on the the of his What is is that Kelsen’s theory of law in of Pure from The of to through Law and of International Law the real of of International A is that it what Kelsen never In this its is at the very of The a very to the thought of and the few to work on his and moral However, the and analysis of Kelsen’s – the of The of taking Kelsen’s work and as a that Kelsen in these and of Kelsen’s legal theory on the of the two the only The the Pure Theory to law in International Law is a and from which any interested in legal theory will Moreover, in of the substantive it with – law and and of – the a of thinking that through the of legal the of the Pure as a for the of in its to the of the law, its in the of law, and its to the of and in the case of to the approach of radical This approach, to to with the Pure and that is a valid and through to the of is the of is as the between and to legal makes possible the of norms as is in the as the to every theoretical and even are to for to that In one a with This is in the which are more with legal of the normative to be the of the to apply and law as it is in the of the However, the in no that this to the to what the to the Pure should not act with in of This is for from the of the law of of the in The with a on the different of within the and law legal the for to have to such as or that positive law. on that are open to to in the of the of of the of law to in the of in It is not so an inherent of that the but an of to the for the of both theoretical and practical on the on the of or of laid in of the which in to by in this case to the in the the from which an in of the general of the The idea is to to what the law and the of But law on the of be but as and the of for or for have their and that the of can be also This look However, what is of is that he the – to and through law. on the of normativity was an in the of the century by legal In so the of the of to that a has law. The in legal theory is in the in which this is is the between Kelsen law as and the in at a when law was and could not have been to the and to He was thinking of the when the of law which was the of the and the by the of It is for to know or this to be so in the history of legal However, was in a that the of of law that – that of with the of the about law being law and a in which the an in the normativity of law. and the of International Law belongs to this of the to the of is, one of the one from the appears more to a epistemological for (international) law. This works in with the that the to a in his all the to but, to the between a and a of the of that law is what the makes the of However, it is on the He to in – that is, the idea that have of their – as principle of of The by and the that it – by as and – is what the to on the of in that law be he on the of and the the to this type of theory of of which was a makes more the that the at the As the the of natural law and of the will of the state the to the of law. The on a of natural law and state will the the as being As an natural law can be and – from of natural to the of the or the of law, the of law and the the or will of the state – that – also when as a of of is the of a normativity in of the in the book, Kelsen’s theory is all in the very of and the of International Law in of the by and that their meaning through a in the that in the of the of a theory of law, as the of legal is the makes the question of of the legal order as a and his theory to the and Kelsen the of through the of law is the of the theory in the However, even though the claims that he is not in devising a general theory of law this does not that the does not one – to a of the particular theory introduced in this is Kelsen’s even – it is The of and the of International Law does not merely to a theoretical of but also to produce a theory of in the of the of of Moreover, one can on the of one the of theories that could the work that has the fact that the several and a legal the of theory and is by the of the of theory in the This that the of can be by of such a formalistic However, this is the general of radical and the of International Law is at and to The is to know more about the of this theory in practice, and the at the end of the about only on the of the that in calls for the and of his never at the of to idea idea in such a that we at but legal Moreover, their work about legal and this in their of the works of and and What is in this is the fact that the authors generally adopt to the with to The are and for a and point of In are with the in which law the real world and The the that the the of positivism is to a by the fact of and by the that can into the power to apply law. In this the the classical of law between and are more to the are with the The of the between positivism and in the of the system of law is reflected in the of the to a this is with legal The that for the radical positivist position a good of its more in a Kelsen’s as the assumption of the and the of the he that is at a – this is what when a as a on his a more role in his in the and on the of legal and the of the of the lawyer the of In an the of a at the that be as act of in the of a morality, could the lawyer whether she or he has a responsible In a different that the of law should of professional that the in its form of This and such as on legal analysis of legal on a for positivist legal thinking and on the of positivism and through its as the general of the is the of such legal thinking is by about the of a of authors in legal thinking for their of the power of the has to it is to that he appears to be to an of the the This was by the but is in the several authors and on and to this it have been a good idea to have it in the In the a of natural law. As as this is to of his an question open at the end of the What be the in as which is the of the natural law he law with a theology in the at the beginning of this or is it an of the human necessary to in the more the of the positivist of and for his the classical legal in in his state consent several legal The that more with the with the as to the to which morality is with law. the of of a fragmented view of human beings based on different of ideal normativity with no – morality As it is a that the theological of a theory of law is in its to the between morality and law. This is not to that the authors a the the involves an of the of But of the both at the that work in the legal sphere is with a of morality. is at to the of the positivist principle nullum crimen sine However, his that what is at stake in the of this principle in the case of criminal law is that the by which the or of an is is and does not in a about human but, rather, human are in by positive law. He that human are the of divine a but a of some for which the consent of is therefore the beginning and the the of law when norms to normative considerations and any to be in violation of the the she the of law to forms of law in a general manner. However, analysis also moral-normative considerations as a of course in the of law. The by and is on the law to the of and is the on the of when and moral are at In one could the with in several of the in this without of The following is a good of what have in is by no that positivist to legal should be an when the to a different In this case as by is to upon a or a or a or a such as this the at the beginning about the of the of a general theory of law in to a practical art such as law. the general of the in this on positivism in a world a for responsible by and in different to that the of of If there be to be it be and not very to the to claim that was the There is no that this is However, this position does not to be the in this The from some of only two of the are an fact that one for thought. one can about with some the of in a on an analysis of the of a with law is this of what is a of the in this has to what is are and and one should the for a not only of law but also of some of the from which it with legal or for that with law will from the with to the of and and in law and will from to it from to have in this that theological about morality and law to the that ought to be autonomous or that ought to history and and from the from legal history at two about the between morality and law. both in the in the legal the in with one at the normative of the first of what makes a good or of the of what makes good law and the of we are thinking in of practical it is in that practical law has its in a and The of International in International Law of International Hans Kelsen in International in International Kelsen and on International and Law International and International and International and to International Law International Law International law in and from a International Law International Law and of