The Perils of "Consensus": Hans Kelsen and the Legal Philosophy of the United Nations


J. Peter Pham


Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important jurists of the twentieth century. Although Kelsen's "pure theory of law" has long been the focus of legal scholars around the world, and despite the fact that he spent the last three decades of his life teaching in the United States, he is generally ignored in American jurisprudence — a state of affairs that goes a long way to explaining the lack of appreciation in U.S. policy circles of the deeply-rooted nature of the attitudes that confront the country's foreign policy.

This study analyzes Kelsen's legal philosophy in the light of its application to international law and organizations, both in theory and in actual practice, and confronts it with U.S. interests. In particular, Kelsen's assertion of the primacy of the international legal system over the national legal systems and his argument that the latter derive their validity from the former are subject to scrutiny in the light of recent developments at the UN and with international criminal jurisdictions. Regardless of one's position on these matters, a "decent respect for the opinions of mankind," to borrow the felicitous phrase of the Founding Fathers, will require an effort to recognize and understand — although not necessarily to agree with — Kelsen's philosophy of law and its significance as the legal philosophy that motivates the insistence of international organizations, like the United Nations, as well as other countries on "consensus" and their drive for a system of global governance that will impact not only states, but also civil society institutions as well.


Comparative and Foreign Law | Constitutional Law | International Law | Jurisprudence | Law and Politics | Legal History

Date of this Version

August 2003