International Law as a Coercive Order: Hans Kelsen and the Transformations of Sanction

This Article presents an account of the development of several key concepts in the legal philosophy of Hans Kelsen, whose views (and persona) remain highly influential in current international law scholarship. It argues that Kelsen in his writing during and after World War II extensively adapted his “pure theory of law,” including changing the definition of the all-important Grundnorm (“basic norm”), primarily in order to justify changes in the institutional architecture for the enforcement of international law through coercive sanctions. Specifically, Kelsen profoundly revised his ideas in order to accommodate the ex post facto sanctions imposed by the Nuremberg and Tokyo Tribunals, as well as practices of military intervention under the newly-created UN Charter system. As a result, he developed a unique and characteristically thorough lens through which to study international law as a Zwangsordnung (“coercive order”). The “late Kelsenian” perspective on international sanctions and their justification retains utility today as a lens on issues including the use of force, the jurisdiction of international criminal tribunals, and the sources of international law. In particular, the idea that the basic norm of the international system resides in customary international law is best viewed in connection with his related concept of “negative custom” (negative Gewohnheit), or (as here defined in light of its logical implications) the power to retroactively justify acts of sanction that contravene existing law. In its ability to account for new forms of sanction Kelsen’s late system is both internally consistent and realistic, but also implies a radical and potentially troubling potential for hegemonic actors to “revaluate” (umwerten) existing legal norms.