In this speech at the Annual Meeting of the ASIL, Hans Kelsen's Pure Theory of Law - the most fitting among the ‘modern’ positivist approaches - will be used to answer the question put to the panellists: ‘What use is modern positivism’? The first part focuses on Kelsen's Pure Theory of Law as a decidedly Modernist legal theory wishing to 'purify' legal scholarship. The scholarly ethos that the Pure Theory envisages for a legal science involves the cognition of law as norms without intermixing this cognition with sociological, psychological or other empirical elements. The Pure Theory of Law is a theoretical approach that wishes to instil a humbleness amongst legal scholars.
The second part tests the Pure Theory of Law with respect to a topic in international law-making that it has always had difficulties with. How does Kelsen's positivism - hinged as it is upon the existence of a real act of will as necessary condition for the positivity of norms - fare with respect to the 'obviously' un-willed General Principles of Law (GPL) in Article 38(1)(c)?
Two arguments are key for the Kelsenian take on GPL. (1) One is the fact that Article 38 is only the formulation of the lex arbitri for the ICJ, not an in any sense authoritative statement (or even rule) on the formal sources of international law. The role of a lex arbitri is fundamentally different to the meta-meta-source for all international law. (2) The key to a possible solution is the word ‘recognized’ in Article 38(1)(c). This could be understood to mean a specific recognition that principles common to the legal systems of the ‘civilized nations’ are explicitly recognised and thus created as international legal norms and not merely recognised as principle in domestic law. Here we would have acts of will creating positive international law; principles would thus be a sort of customary international law without the custom.