Ian Bryan

Conclusion: Positive Law and the Kelsenian Project

The Kelsenian project of a legal science of positive law remains, as demonstrated by the majority of contributions to this volume, a source of continued relevance for contemporary legal theory. In the subsequent development of legal theories of positive law, the Kelsenian project has, however, effectively ceased to be accorded a significant degree of pertinence. The loss of pertinence is marked by the marginalization of the methodological questions and framework of the Kelsenian project and the shift in orientation to other theoretical forms of conceptualization of positive law. The effective jettisoning of the Kelsenian project, predicated upon a transformation in the understanding of the purpose of a theory of positive law, has itself resulted in a significant differentiation and disagreement concerning the foundation for, and parameters of, a legal theory of positive law. This differentiation and disagreement has centred, in contemporary Anglo-American work in particular, upon the question of the degree to which the legal theory of positive law excludes or includes morality (see, for example, Gardner 2001; Kramer 2003; Himma 2001, 2002, 2005; Marmor 2001, 2002, 2007; Raz 1975, 1979, 2011; Shaprio 2009; Waluchow 1994) and upon the wider question of the theoretical or methodological basis for the elaboration of a legal theory of positive law (see, for example, Coleman 2001; Leiter 2007; Shapiro 2013).

Hans Kelsen's Theory of Legal Monism. A Critical Engagement with the Emerging Legal Order of the 1920s

This article concentrates upon Hans Kelsen’s theory of legal monism, as presented in his Lecture delivered at the Academie de droit international, The Hague, in 1926. This Lecture propounds a legal theory which enables a critical engagement with the emerging legal order of the 1920s. The article draws upon recent scholarship regarding the international legal agreements adopted in 1924 (the London Accords) and 1925 (the Locarno Accords) to demonstrate their potential for a new form of European and international stability. This potential, however, remained constrained by the logic and limitations of the primacy of State sovereignty. Within this context, Kelsen’s Lecture sought to set the emerging international order within a unified legal framework of national and international positive law. This framework enabled Kelsen to identify two variants of legal monism, differentiated by the role of State sovereignty in the relationship between national and international law. For Kelsen, it is the choice between the broader ethico-political consequences of these two variants which will shape the further evolution of the global legal order.

War Crimes Prosecutors and Intelligence Agencies: The Case for Assessing Their Collaboration

Whilst recognizing important distinctions between different types of intelligence agency, and a range of possible contradictions between the imperatives governing the two types of agency, it is necessary to overcome the one-side quality of much existing literature, whose critique of the subversion of the rule of law by intelligence agencies tends to preclude any appreciation that such agencies can play a supportive role for war crimes prosecutors. This article challenges the assumption that analysis of the histories of Western intelligence agencies and the study of war crimes trials must be studied as entirely separate and sharply demarcated fields of inquiry; it advocates an interdisciplinary research programme, informed by a series of indepth historical case studies, capable of addressing issues arising from the interaction between these two institutional fields. The proposed research agenda could illuminate aspects of the contemporary role – and future potential of both intelligence agencies and war crimes prosecution bodies. It would investigate tensions between the prosecutors need to employ intelligence agencies to gather trial credible evidence and detain indicted defendants, often by covert and legally questionable means, and the constitutional justifications for holding war crimes trials by reference to the need to reassert the rule of law in the wake of lawless genocide.

'The Role of Evidence in War Crimes Trials: The Common Law and The Yugoslav Tribunal'

With the passing into law of the War Crimes Act 1991, the United Kingdom joined such nation states with common law legal systems as Canada and Australia in conferring jurisdiction upon its domestic courts to try individuals suspected of having committed war crimes in Europe during the Second World War. On April 1, 1999, Anthony Sawoniuk became the first person to be convicted under the 1991 Act. The conviction came after an eight-week trial, before a jury at the Central Criminal Court in London, into allegations that Sawoniuk had murdered several Jewish civilians when he took part in ‘search and kill’ operations directed towards those who had escaped the mass slaughter of some 2,900 Jewish civilians in September 1942 on the Jewish festival of Yom Kippur. This research considers the significance of R v Sawoniuk. The case is used as a backdrop for an assessment of the role played by rules of evidence in securing a fair trial for, and testing the case against, war crimes suspects. The study examines whether and to what extent, evidential and procedural rules generally associated with common law legal systems and as applied in domestic, common law trials of suspected war criminals, present barriers to conviction distinct from those discernible in war crimes trials considered in international criminal tribunals.

The Place of Slavery in the Aristotelian Framework of Law, Reason and Emotion

This chapter considers the Aristotelian examination of slavery in Book I of the Politics in order to question the relationship between slavery and the wider Aristotelian framework of law, reason and emotion. A detailed analysis of Book 1 reveals that it is orientated by an appropriation and transformation of the Platonic conception of virtue and rulership. The Aristotelian response defines the slave as the particular determination of the connection between nature and necessity which, in turn, shape the notions of law, reason and emotion. The relationship between the slave and notions of law, reason and emotion are conferred after the initial determination of, and justification for, the division between (natural) master and (natural) slave. The division is a form of rulership within the household. The slave’s subjection to the master determines that the relationship to law, reason and emotion is coextensive with household management. It is only the free population and, in particular, free men, who are capable of developing a political regime. The political regime is the sole form through which the relationship between law, reason and emotion is to be established in order to realize the ideal or good life. The further development of the Politics is predicated upon the simultaneous recognition and disappearance of a relationship of subjection.

Kelsenian legal science and the nature of law

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher. The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of the book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law. Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm (Grundnorm). The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights. The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law.

Introduction: Kelsen, Legal Science and Positive Law

Kelsenian legal science is a distinctive theoretical project for the comprehension of positive law. It distinguishes itself from the broader, nineteenth century German tradition of legal science through a process of critical interpretation and reworking. The process, initiated with Kelsen’s habilitation of 1911, Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (Kelsen 2008), represents a reconsideration of the fundamental elements of this tradition which preserves the methodological requirement for a theory of law to be a science. The adoption of this interpretative position entails that the Kelsenian project assumes both the continued pertinence of a notion of legal science and the historical legitimacy of the tradition of legal science in relation to preceding conceptions of a theory of law. The tradition of legal science is held, in the 1911 habilitation, to denote the origin from which further work on a theory of law is to develop.