Law And Peace
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Publicado: 24 de febrero de 2013
Citation: 1942 Hans Kelsen Law and Peace in International The Oliver Wendell Holmes Lectures 1940-41 3 1942 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Mar 2 11:33:16 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDFis generated from uncorrected OCR text.
LECTURE I
THE CONCEPT OF LAW HAT is the nature of international law? Or, in other words, are the rules called international law to be regarded as "law" in the same sense as those norms that are considered "law" par excellence, the rules of national law? The answer to this question depends upon how one defines the concept of law.
I. DEFINING THECONCEPT OF LAW
W
If the concept of law is to be defined not from a political but from a scientific point of view -that is to say, if no subjective judgment of value in regard to the shaping of social relations is to play a role consciously or unconsciously - the phenomenon generally called "law" must be regarded as a social phenomenon among other social phenomena. Any attempt to define a conceptmust proceed from the usual meaning of the word by which it is intended to designate the concept. One must see whether the social phenomena called "law" present a characteristic in common distinguishing them from other social phenomena, a characteristic sufficiently significant to constitute a general concept for the rational understanding of social life. In so doing, for reasons of economy ofthought, one must proceed from the most comprehensive meaning
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LAW AND PEACE
of the word "law." This is not to say that one might not set up a narrower concept of law, such that certain phenomena generally called law would not be included, but a concept whose extent coincides by and large with the common usage is to be preferred. An example may illustrate what has been said. There isnothing to prevent defining the concept of law in such a way that a social order is recognized as law only if it guarantees to the individuals whose relations it regulates a certain minimum of personal freedom and the possibility of possessing private property; the social orders of Russia, Germany, and Italy, in general parlance called the "law" of these states, would not be regarded as law in thesense of this definition, although they have very significant elements in common with the social orders of democraticcapitalistic states likewise called "law" in common usage. This example also shows how political ideals can influence the definition of law. The guaranty of personal liberty and the institution of private property are elements of
democracy and liberalism. From the standpoint ofscientific consideration, however, free from any moral or political judgment of value, liberalism and democracy are merely two possible principles of social organization, as are socialism and autocracy. From the point of view of social science, it is impossible to prefer democracy and
liberalism to autocracy and socialism, or vice versa. The
basis of such a preference would be a moral or politicaljudgment of value, which has no scientific character. There is, therefore, no scientific reason for limiting the
5 concept of law to a social order which corresponds to the political ideal of democracy and liberalism, or for excluding from the concept of law any social order which has an autocratic or socialistic character. The guaranty of personal liberty and the institution of privateproperty are not in themselves essential elements of law. The criterion by which law can be distinguished from any other social order has nothing to do with the difference between democracy or liberalism on the one hand and autocracy or socialism on the other. There are democratic and liberal legal systems just as there are autocratic and socialistic legal systems. But wherever and whenever they may...
LECTURE I
THE CONCEPT OF LAW HAT is the nature of international law? Or, in other words, are the rules called international law to be regarded as "law" in the same sense as those norms that are considered "law" par excellence, the rules of national law? The answer to this question depends upon how one defines the concept of law.
I. DEFINING THECONCEPT OF LAW
W
If the concept of law is to be defined not from a political but from a scientific point of view -that is to say, if no subjective judgment of value in regard to the shaping of social relations is to play a role consciously or unconsciously - the phenomenon generally called "law" must be regarded as a social phenomenon among other social phenomena. Any attempt to define a conceptmust proceed from the usual meaning of the word by which it is intended to designate the concept. One must see whether the social phenomena called "law" present a characteristic in common distinguishing them from other social phenomena, a characteristic sufficiently significant to constitute a general concept for the rational understanding of social life. In so doing, for reasons of economy ofthought, one must proceed from the most comprehensive meaning
4
LAW AND PEACE
of the word "law." This is not to say that one might not set up a narrower concept of law, such that certain phenomena generally called law would not be included, but a concept whose extent coincides by and large with the common usage is to be preferred. An example may illustrate what has been said. There isnothing to prevent defining the concept of law in such a way that a social order is recognized as law only if it guarantees to the individuals whose relations it regulates a certain minimum of personal freedom and the possibility of possessing private property; the social orders of Russia, Germany, and Italy, in general parlance called the "law" of these states, would not be regarded as law in thesense of this definition, although they have very significant elements in common with the social orders of democraticcapitalistic states likewise called "law" in common usage. This example also shows how political ideals can influence the definition of law. The guaranty of personal liberty and the institution of private property are elements of
democracy and liberalism. From the standpoint ofscientific consideration, however, free from any moral or political judgment of value, liberalism and democracy are merely two possible principles of social organization, as are socialism and autocracy. From the point of view of social science, it is impossible to prefer democracy and
liberalism to autocracy and socialism, or vice versa. The
basis of such a preference would be a moral or politicaljudgment of value, which has no scientific character. There is, therefore, no scientific reason for limiting the
5 concept of law to a social order which corresponds to the political ideal of democracy and liberalism, or for excluding from the concept of law any social order which has an autocratic or socialistic character. The guaranty of personal liberty and the institution of privateproperty are not in themselves essential elements of law. The criterion by which law can be distinguished from any other social order has nothing to do with the difference between democracy or liberalism on the one hand and autocracy or socialism on the other. There are democratic and liberal legal systems just as there are autocratic and socialistic legal systems. But wherever and whenever they may...
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