Legal positivism is considered as one of the most influential theoretical approaches to analyzing international law.

In analyzing whether public international law can be considered ‘law’ Hans Kelsen argued it from the perspective of attaining international peace.

He described the international community as one that is decentralized and that in order for peace to be achieved it is a natural process that individual states should unite as a world-state, concentrating their means of power and placing them at the exclusive disposal of a central government body.[3] However for this to occur it must be done so within the frame of international law.

In comparison a state is best described as a centralized community, with a central government.[5] Individual States have in most cases achieved peace within their borders, save for those still facing a revolution or a civil war, but in the states that have achieved peace the use of force between citizens has mostly being eliminated, and is instead reserved for a central organ, authorized to use such force only as a way of stopping illegal acts.

Kelsen goes on to expand this theory to the wider sphere of international law, stating that international law can be consider as ‘law’ if certain elements as described above are present. For Kelsen it can be considered as law if a state is engaging in a coercive act; that act being the “forcible interference of a state in the interests of another,” only due to the action being a reaction against a “delict,” and using force to achieve any other goal is forbidden.[7] The act being taken by the State must also be able to be interpreted as the international legal communities reaction to the “delict”.

In terms of international law the “delict” is the conduct of a State, which is considered illegal by other States.[9] Kelson describes international law as a regarded system of norms, which govern the conduct of States.[10] Therefore if a State invades the territory of another State, or breaches a treaty that is in place, without a specific reason recognized by international law, then its conduct is considered contrary to the order, in the same way in which the illegal actions of an individual are, meaning that the same principles can apply at an international level as they do at a national level.[11] He refers to a reprisal as a “sanction of international law.”

International law stems from international morality, as it is morality, which determines the direction of international law development.[13] Meaning that if something is considered morally ‘just’ in an international sense, then it has a high tendency of becoming international ‘law.’

H.L.A. Hart takes a different tact to that of Kelsen, viewing international law as ‘law’ but not as a ‘legal system.’

For Hart international law consists of rules, which do not constitute a legal system, bur rather a set of rules that are to be considered law.[16] He describes these rules as primary rules, which require states to behave in a certain way, by either engaging or abstaining in certain conduct.[17] These rules impose duties upon states.

Hart finds that centralized sanctions do not exist at an international level, even those imposed by the United Nations Security Council under Chapter VII of the UNI Charter, as the Council can easily be paralysed by the veto.[19] However he does not believe that the absence of sanctions leads to an absence of obligations at an international level.[20] The existence of the primary rules is sufficient, with the use of force as an example prohibited by a rule, while also being permitted to be used as a sanction, acts as a sufficient deterrence for states to engage in violence.

Hart argues that international law is to be considered as more than international morality, as it has the extra characteristic of being subject to deliberate change.[22] States may follow international law under a moral obligation, however there is no compelling reason why this has to be so.

In summing up Hart’s position on international law he believes for it to be regarded as law, or binding, legal rules, then the rules of international law need only be accepted as “standards of conduct and supported with appropriate forms of social pressure.”[24]


[1] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 970.

[2] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 27.

[3] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 27.

[4] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 28.

[5] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 28.

[6] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 27.

[7] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 30.

[8] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 30.

[9] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 31.

[10] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 32.

[11] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 32.

[12] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 34.

[13] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 38.

[14] Hans Kelsen, ‘Law and Peace in International Relations: The Oliver Wendell Holmes Lectures’ (1942) 38.

[15] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 967.

[16] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 973.

[17] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 973.

[18] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 973.

[19] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 975.

[20] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 975.

[21] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 975.

[22] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 976.

[23] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 976.

[24] Mehrdad Payandeh, ‘The Concept of International Law in the Jurisprudence of H.L.A. Hart’ (2010) 21(4) EJIL 967, 977.

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