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Kelsen on Monism and Dualism
Stockholm University, Faculty of Law, Department of Law.
2013 (English)In: Basic Concepts of Public International Law: Monism and Dualism / [ed] Marko Novakovic, Belgrade: Faculty of Law, University of Belgrade , 2013, p. 322-341Chapter in book (Refereed)
Abstract [en]

Kelsen defends (a) monism, that is, the view that international law and the various state legal systems taken together constitute a unified normative system, and (b) the primacy of international law over state law within the monistic framework. He argues in support of the (a)-claim (i) that only monism is compatible with the epistemological postulate, according to which cognition requires the unity of the object of cognition, (ii) that the norm conflicts that are said by the critics of monism to undermine monism are harmless because they are not norm contradictions, but only norm contrarieties, and (iii) that the doctrine of dualism collapses into solipsism due to its dependence on the doctrine of recognition. And he argues in support of the (b)-claim (iv) that the idea of the primacy of international law within the monistic framework is necessary to account for the existence of states that are legally coordinated and separated from one another in their spheres of validity.

In this article, I discuss critically claims (a) and (b) and the arguments (i)-(iv) that Kelsen adduces in support of these claims. I argue, more specifically, (I) that while Kelsen is right that only monism is compatible with the epistemological postulate, the claim is unpersuasive that norm contrarieties, as distinguished from norm contradictions, are harmless from the point of view of this postulate, and (II) that in any case not all the norm conflicts identified by the critics of monism are norm contrarieties. I also argue (III) that if the above-mentioned claim (ii) had been persuasive, the dualists, too, might have invoked it and avoided Kelsen’s criticism of dualism via the criticism of the doctrine of recognition, and (IV) that Kelsen’s claim is well founded that dualism collapses into solipsism because of the collapse of the doctrine of recognition. Finally, I suggest (V) that contrary to what Kelsen appears to think, the epistemological postulate rules out locating law in a higher realm of norms and values that is sharply separated from the world of time and space.

Place, publisher, year, edition, pages
Belgrade: Faculty of Law, University of Belgrade , 2013. p. 322-341
Keywords [en]
monism, dualism, basic norm, contradiction
National Category
Philosophy
Research subject
Jurisprudence
Identifiers
URN: urn:nbn:se:su:diva-160310ISBN: 9788670671812 (print)OAI: oai:DiVA.org:su-160310DiVA, id: diva2:1248967
Available from: 2018-09-17 Created: 2018-09-17 Last updated: 2018-09-28Bibliographically approved

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