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Theories of Sovereignty Kelsen & Marxist view

Regional Convention on Human Rights

Elucidate the law regarding the relevancy of confession of a co-accused as per Indian Evidence Act

This paper discusses one of the most elaborate attempts at eliminating the concept of sovereignty both
from political theory and international law Hans Kelsens legal critique of sovereignty. I argue that
Kelsens critique is based on a misleading view of sovereignty and show how this misconception
translates into his contested notion of the basic norm and into his monistic theory of a legal system
and international law. The implausibility of the monistic approach is shown not only on the theoretical
level but also in the light of recent processes of pluralization of legal systems. The second part of the
paper takes up Kelsens neglected theory of constitutional democracy. By focusing on Kelsens
conception of the autonomy and the dynamics of lawmaking I try to show that Kelsen in fact relies on a
notion of sovereignty quite different from the one he attempts to displace. I argue that such an
alternative notion of sovereignty represents an indispensable feature of constitutional democracy.
The article concludes by addressing the question of the relationship between sovereignty and
constitutional democracy and the impossibility of the realization of the latter without the former.

What is sovereignty? In general, it might be said that the sovereignty is always either internal or
external, or de facto and de jure [1]. My primary concern in this essay will be to shed some light on
the first of these internal sovereignty. Indeed, it is entirely correct to say that sovereignty cannot be
so easily labelled into two separate categories and it should be acknowledged that the external
sovereignty, in the light of the Westphalian peace treaty, could be regarded as nothing else but placing
a last piece of the puzzle of sovereignty into its place granting the internally acknowledged sovereign
entity also the external recognition of its legitimacy.
John Hoffman suggests that most often, the contemporary view considers sovereignty to be a unitary,
indivisible and absolute power concentrated in the state [2]. However was it always so? If not, when
did the idea of sovereignty as supreme power, as Weberian monopoly on the violence in a given
territory, first appear? My suggestion will be that the concept of sovereignty in its fullness is a very
modern phenomenon, whose emergence can be traced back no deeper than into the early modern
period [3], but which, nevertheless, remains with us almost intact even today still being necessarily
thought of as absolute and indivisible.

In the Marxist worldview, sovereignty is given to the proletariat. Marxists generally trace law back to
the concept of private property. Law was devised by the propertied class to protect its property.
Marxists refer to this as bourgeois law. The basis of proletariat law is to protect social or state
property. Socialist law grants certain human rights but only such rights as assist the advancement of

socialism and communism, or only such rights as advance evolution. Once the full socialist system is
victorious, however, the proletariat class experiences its victory of communist paradise and law ceases
(along with the state). - See more at:

Kelsens pure theory of law posits norm (the normative theory of law) as the basis of law and the
limit within which command is permitted or authorized. Yet this normative theory of law remains on
the realm of imperativism because only the legal norm (as opposed to the moral norm) carries with it,
the penalty of sanctions and the force of coercion. We note here that Kelsens attempt to dress legal
positivism in a new cloth fails because law still remains the command of the sovereign, since the norm
itself is defined by the sovereign (whatever form of regime it is).

discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of nonsovereign territory has the same consequences as the occupation of sovereign territory:
The principle that enemy territory occupied by a belligerent in course of war remains the territory
of the state against which the war is directed, can apply only as long as this community still exists as a
state within the meaning of international law. This is hardly the case if, after occupation of the whole
territory of an enemy state, its armed forces are completely defeated to that no further resistance is
possible and its national government is abolished by the victorious state. Then the vanquished
community is deprived of one of the essential elements of a state in the sense of international law: an
effective and independent government, and hence has lost its character as a state. If the territory is
not to be considered a stateless territory, it must be considered to be under the sovereignty of the
occupant belligerent, whichin such a caseceases to be restricted by the rules concerning belligerent
occupation. This was the case with the territory of the German Reich occupied in the Second World War
after the complete defeat and surrender of its armed forces. In view of the fact that the last national
government of the German Reich was abolished, it may be assumed that this state ceased to exist as a
subject of international law.

Instead, they recognize only the "greater" good for the "greatest number" of persons, and so the
"minority of one" becomes a political zero. Marx set out to destroy the idea of the sovereignty of the
individual, endowing it instead in the "masses". Even if Marx never wanted to see anything like Soviet
Russia, North Korea, China, etc., who use deadly force against individualism, he did want to see what
might be called "community standards", or perhaps voluntary socialism, which has not proved to be

But such "community standards" applied by tradition and by force in the Muslim world is what held it
back for centuries, economically, scientifically, and socially as far as such things as women's and
children's rights were concerned. In the Muslim world these standards are called "Shura" (not Sharia,
which is the law applied to Shura).

Marxisms theoretical foundation has been the shift of the govern-ing or sovereign power, the necessitating or
predestining force,from God to the state. In varying forms and degrees, all over the world,
the state is now the necessitating force or power
By claiming sovereignty, the modern state declares itself to be the necessitating power over man
. As such, it is increasingly denying freedom to the eco-nomic sphere, to the family, to the school, and
to the church. Itcannot claim sovereignty without necessitating all things.

German Marxians coined the dictum: If socialism is against humannature, then human nature must be
changed. They did not realizethat if mans nature is changed, he ceases to be a man.

In due time,dictatorships and democracies saw the entire people mystically in-corporated in the state
and its leaders. The Marxist doctrine of thedictatorship of the proletariat is a current version of this
belief. Thedictatorship incarnates the will of the people. Jean-Jacques Rous-seau, of course, formulated this
before Marx. For him, the general will of the people is embodied in the state and the will of the state.

The modern idea of revolution is an aspect of Romanticism, andKarl Marx is a telling example of this.
Irresistibility is an attributeof true revolution, and the revolutionary elite, the dictatorship of the
proletariat or whatever else it may be called, is seen as the nec-essary and infallible voice of history. Because
sovereignty is an at-tribute of the revolutionary elite, whatever steps are taken by suchmen are
; they represent the will of history, the general will, the people, the folk, or whatever else the revolution
exalts asits justification.

What has happened in recent years is that the doctrine of jus-tice is no longer basic to law and society.
Justice is at best a socialpolicy, not an aspect of the fundamental order of being. The logicof this
position is the Marxist world, where justice is what the statedoes, and justice is simply the will of
the dictatorship of the prole-tariat. The consequence is a world of evil.

Marxism in particular has as its credo the deliverance of manfrom the kingdom of necessity into the kingdom and realm
of freedom. The practical consequence of Marxism has been theenslavement of man, but its theoretical foundation has

been theshift of the governing or sovereign power, the necessitating or pre-destining force, from God to the state. In
varying forms and degrees,all over the world,
the state is now the necessitating force or power

The definition and redefinition of sovereignty for Kelsen in the context of twentieth century modern
law became a central theme for the political philosophy of Hans Kelsen from 1920 to the end of his
life.[61] The sovereignty of the state defines the domain of jurisdiction for the laws which govern the
state and its associated society. The principles of explicitly defined sovereignty would become of
increasing importance to Kelsen as the domain of his concerns extended more comprehensively into
international law and its manifold implications following the conclusion of WWI. The very regulation
of international law in the presence of asserted sovereign borders would present either a major
barrier for Kelsen in the application of principles in international law, or represent areas where the
mitigation of sovereignty could greatly facilitate the progress and effectiveness of international law in

The year 1920 marked, furthermore, the birth of his "Pure Theory of Law." Kelsen introduced the methodological
conception of "purity" as well as the later famous designation itself in his work of that year The Problem of
Sovereignty and the Theory of International Law.

From his first major contribution to the legal theory in 1920, Kelsen attempted to show that the idea of national
sovereignty is an irrational "dogma" and the idea of state itself a possibly useful, but eventually dangerous "fiction".

Marxism, by its nature, consistently seeks to seize sovereignty from all other social order spheres in
order to locate all sovereignty in the state. By doing so Marxism, seeks to attack all other temporal
sovereignty not delegated to it so that it might ascend to the most high in order to convince itself that
the sovereignty it wields is of the eternal type.

By its very tenets Marxism consistently attacks two of the basic spheres God has ordained and it does
so because these basic spheres of family and religion impede the states attempt to garner into its
fists a monopoly on sovereignty, power, and authority. The Marxist state attacks the family through
tax policy, education policy, and its ongoing attempt to take away the familys ability to own private
property. The Marxist state attacks religion by cordoning it off from the public square and by
drawing the circle ever tighter as to where and when religion can be displayed. The Marxist state,
regardless of what degree of Marxism it is currently at works to confiscate property, break up
families, and legislate against faith expressing itself in the public square.
Marxist states, given their dialectic philosophy, may, from time to time, enter into detente with
family or religion but if it does so it only does so as a way to prepare itself for the next blow against
these spheres. Such politically calculated detentes are akin to a hammer lifting itself away from the
nail. The hammer is not in retreat but is only building energy for another blow against the nail. If
Marxist states are successful in this seizing of sovereignty it may allow family and / or religion to
exist but only as satellites that serve as a pretense that the Marxist state has not seized all
sovereignty, and as to lend credibility to the Marxist totalistic rule.
The attempt to seize sovereignty may be violent as in communist take overs or it may be more benign
and incremental in its methodology as is found in Fabian socialism, progressivism, Corporatism,
Liberalism, Welfarism, or the Nanny State. Whereas communism advocates the seizure of
sovereignty by cutting of the head, different forms of socialism prefers to slowly, silently suffocate
those who will not surrender their sovereignty.
Of course this Marxist seizure of sovereignty as it becomes more and more totalistic ends up stealing
another sovereignty and that is the sovereignty found in self-government. As Marxist and collectivist
approaches succeed in sucking up temporal sovereignty the end result is that the individual likewise
loses his / her self sovereignty and they themselves become effective wards of the state. Individuals,
no longer being independent agents and no longer having personal sovereignty are reduced to being
cogs in the Marxist civil-social order machine. Individuals become merely extensions of the state

In the charged political climate of the time, the Vienna School directs a profound and certainly provocative critique
against two very traditional and, in fact, highly valued concepts of the European political and legal thinking: the
concept of the state and the concept of national sovereignty. From his first major contribution to the legal theory in
1920, Kelsen attempted to show that the idea of national sovereignty is an irrational "dogma" and the idea of state
itself a possibly useful, but eventually dangerous "fiction".
Kelsen maintained that Triepel's (as well as Jellinek's) "dualistic" theory of the relationship between state law and
international law, i. e. the idea that they are two completely independent norm systems, has logical flaws. Triepel

affirms that international law regulates the behavior of the states, while considering the state law and the international
law as separate. But for Kelsen, the state and the law are one and the same (the so called "identity thesis").
Consequently, it is a contradiction to regard the international law as a separate legal system in respect to the state
law, precisely because the former regulates certain aspects of the latter. They are thus "normatively linked".

in regulating the interaction between states, international law coordinates in practice the application of different
national legal systems.

Because international law and state law are normatively linked, it is necessary to consider them as parts of one overarching legal system. However, the dualistic theory fails to present its material in a logically consistent way; in fact, it
refuses to do this. From this results a further question. If two legal systems are linked, forming a coherent whole, the
relationship must be considered either as subordination or as delegation. In case of a conflict between norms of the
two systems, it is necessary to establish which one of them prevails. One of the systems is thus "subordinated" to the
other, in other words, the validity of the norms of the first is "delegated" from the validity of the norms of the second.

According to Kelsen, several practical and theoretical reasons make it advisable to consider state law as subordinate
to international law. This point of view became known as the "primacy thesis" (meaning, needless to say, primacy of
the international law) and was strongly endorsed by Kelsen's disciples Kunz und Verdross.

The primacy thesis can be considered as the most important endeavor of the "Vienna School" in the field of
international legal theory. Its political consequences are enormous. The primacy thesis entails the outright denial of
state sovereignty, be it as a scientific idea or as a civilized political belief. In order to show the superior plausibility of
the primacy thesis, Kelsen submits the "dogma" of the state sovereignty to a devastating critique.

The argument proceeds in the form of a "reductio ad absurdum". Kelsen tries to make clear that the idea of state
sovereignty, while seemingly reasonable, has bizarre consequences. He who proclaims the sovereignty of his own
state, affirms Kelsen, regards the validity of this state's law as superior to any other. The idea of state sovereignty, in
fact, is employed to assert the validity of the legal norms of a particular state, whenever there is a conflict between
these and international law. Confronted with a certain obligation founded on international law, the state (or the legal
scholar) can point out that this particular international norm contradicts specific legislation of the state itself, and it
would be contrary to its national sovereignty to comply with the international legislation. In other words, the idea of
state sovereignty provides an enduring justification to resolve conflicts between international law and the law of the
state in favor of the latter. The sovereignty of the nation state and the primacy of state law are one and the same.
From this point of view, international law must be regarded as subordinated to state law.
[18] Moreover, from the perspective of the sovereign state, no legal norm can be considered valid if it is not
"recognized", i. e. declared to be valid by the nation state itself. This applies not only to international legislation but to
the legislation of the other states as well. This point leads to an important discovery: In its original sense, the
sovereignty of the state turns out to be incompatible with the sovereignty of the other states. One particular sovereign
state must be at the center of this construction, and all other legal norms, be it international legislation or the law of
other states, are regarded as subordinated to this state's law. This is certainly bizarre. The one nation state at the
center of the construction must pretend to represent the source of validity for every single legal norm in the world.
[19] The defenders of the idea of sovereignty will try to retire to a dualistic construction, of course, in order to evade
such a counterintuitive outcome. They will affirm that, when proclaiming the sovereignty of one particular state, the
validity of the international law and the sovereignty of other states are not affected. The sovereign state regards
certain international legislation (or legislation of other states) as invalid concerning this particular state, but the same
legal norms remain valid for other states and the international community. For Kelsen, this amounts to proclaiming the
validity and the invalidity of the same norms at the same time. The attempt to avoid the bizarre consequences of the
idea of sovereignty leads thus to logical inconsistencies.

The defenders of the idea of sovereignty must present the legal material as a coherent whole and admit thus that,
from their point of view, the validity of every possible legal norm depends upon the will of the sovereign state at the
center of the construction, namely from the will of their own nation state. Kelsen is even willing to acknowledge that,
presented in this way, the idea of national sovereignty can form the basis of a logically sound conception of the (state)
law. As long as the contradictions of a dualistic point of view are avoided, it is possible to describe all the law as
having its source of validity in the will of the one sovereign state. International law thus becomes "assimilated" by the
state law: Its validity rests on the recognition of the one sovereign state. From the point of view of the sovereignty,
that is to say the primacy of the state law, international law simply does not exist. The attempt to include the idea of
state sovereignty in a theory of international law has no rational justification whatsoever. For the purposes of
international law theory, sovereignty is only a "dogma", an irrational belief with a political purpose.

According to Kelsen, sovereignty and its corollary, the primacy of the state law, are the instruments of a particular
ideology, namely imperialism. The goal of imperialism is to advance the power of one nation state. International law
counts as a possible obstacle to this goal and the "dogma" of sovereignty shall neutralize it when necessary. The
opposite of imperialism in the field of international relations is pacifism, a political position that, needless to say,
champions the primacy of international law. From this point of view, the state law is subordinated to international law
and the state itself must be considered as an "organ" (in the sense of a subordinated organization) of the international
community. It is through the operation of a well-established principle of international law, the "principle of recognition",
that the international community consents to a given political power calling itself a "state" and acknowledges it as
such. The international recognition can be understood, according to Kelsen, as a delegation on the part of the
international community to the state of the authority to create legal norms.

In the name of national sovereignty, the weaker states are wary of lending support to the creation of a world state. But
the idea or rather "dogma" of national sovereignty only benefits the powerful, giving them the legal justification to
ignore international law when it does not suit them. As mentioned before, for Kelsen the idea of national sovereignty
is a tool of imperialism and nothing else. The weaker states of the earth would do well to discard this notion entirely,
and promote instead the creation of powerful international institutions, endowed with authority over and above the
sovereign states.

Kelsen declared that a theory of law based on the primacy of state law (the law of the one sovereign state at the
center of the construction) is logically sound in itself. There are no scientific reasons, in other words, for rejecting the
idea of national sovereignty or the perspective on the law ensuing from it. This is a political (and ethical) decision, and
the Pure Theory of Law, while showing the logical consequences of both fundamental points of view, must keep its
political neutrality, i.e. its "purity".

Kelsen shows clearly that the first alternative, the primacy of the sovereign state's law, cannot serve as the basis of a
conception of international law as such. From the point of view of one's own sovereign state, it is only possible to
construct a theory of one's own state law.

Even though emphasizing the sovereign

equality of states, 43 he realized that collective security was for the grand powers to
guarantee. 44 Kelsen also pioneered recognition of the role of the individual in public
international law, and he did so on the basis (but not as a normative consequence) of
his theory. According to Kelsen, most public international law is addressed to states;
but this does not mean that public international law does not regulate human conduct.
It does so only indirectly by delegating to states the task of obligating individuals
to abide by its precepts. 45 But such delegation is not a necessary feature of the system.

Kelsen had no qualms about conceiving of individuals as the direct addressees of international
laws, either as the addressees of obligations or the bearers of rights.

An important dimension of the power approach to sovereignty is provided by the Marxists. They hold that
sovereignty is a class power. In a class-ridden society this power is used by the economically dominant
class to further its own interests and to oppress the dispossessed and deprived class. Sovereignty is not
shared among various interests, but it is centralised power of the ruling class. In a classless society of the
future, sovereignty (which is a class power) along with the state will have no use. To achieve this ultimate
objective the Working class must capture state power (sovereignty) through revolution and establish its
own dictatorship which will pave the way for the withering away of the state.

Kelsen, on the other hand, sought to eliminate sovereignty entirely

from the legal and political realms. Due to his absolutist interpretation of sovereignty
and his insistence on the separation of law and politics, he was drawn to
an implausible, monistic conception of the basic norm. This hypothetical highest
norm, in Kelsens work, replaced sovereignty as the ultimate source of validity
for all legal norms in a legal order. Democracy, in effect, was thereby reduced to
a method of legislation, the legality of which was derived from the initial historical
constitution of the state through the contingent act of the first legislator.

According to Kelsen, the

notion of the sovereignty of the state rightly or wrongly was standing
in the way of everything that was aimed at forming international legal
order and establishing special organs for further development, application
and implementation of international law, as well as for the further development
of international community from its state of primitiveness into a
civitas maxima.35 The primacy of international law over national law is
also confirmed by Kelsens association of the primacy of international
law with the ideology of pacifism. 36 Although Kelsen does not explicitly
give priority to the primacy of international law, he still presupposes its
primacy over national law: it expands scope of legal cognition. Theory
which presupposes the primacy of national over international law, cannot
legally comprehend more than one state; theory which presupposes the
primacy of international law is legally able to comprehend multitude of

When it comes to the question of sovereignty in particular, the difference

between Kelsen and the German school does not seem so great.
According to Kelsen, sovereignty belongs to the legal order that is not
derived from any other legal order, which, therefore, is not a part of any
other legal order, but is a separate entity. Jovanovi evinces that the terminology
differs from the one of the German school, but the main idea
remains the same. Sovereignty belongs to the public person, that is, the

authority which is not subordinated to any higher person, i. e. authority:

The notion of sovereignty means the same both for Kelsen and for the
German school namely, it is something that is not legally derived from
anything else and it does not depend on anything else. The only difference
is that Kelsen ascribes this attribute to the legal order, while the jurists
of the German school ascribe it to the legal person. 39 Any legal
person might decomposed into its legal norms and all the norms related
to a legal person may personify, i.e. may be understood as legal attributes
of the person: if legal norms may be converted into a legal person, and
the legal person into the legal norms, then those two notions are interchangeable
consequently, it is allowed to apprehend the state as a legal
person, as well as legal order.

Kelsen criticizes Hegels theory of the state sovereignty

according to which International law (das ausere Staatsrecht)
applies to the relations between independent states [...] because it actuality
depends on distinct and sovereign wills.

the second hypothesis, according to which

the legal norms ensues from the authority which is higher than a state,
would not change old theory of state sovereignty. The only difference
would be that the state authority, subordinated to the legal norms, would
not be sovereign any more, and the higher authority would gain sovereignty.
In other words, if the states belonging to an international community
were subordinated to the norms of international law, that would mean
that the sovereignty ceased to be the attribute of the certain states and
became the attribute of the international community; there would be a
sovereign superstate consisting of a great number of non-sovereign
states.56 However, the sovereignty of the global superstate would be the
state sovereignty and not the legal (normative, constitutional) sovereignty.

argue that Kelsens critique

of sovereignty is based on a misleading and obsolete view of sovereignty which
into his contested notion of the basic norm and hence his monistic theory of a
system and international law. The implausibility of the monistic approach to law is
not only on the theoretical level but also in the light of recent processes of
and fragmentation of legal systems.

According to Kelsen, sovereignty represents the fundamental obstruction to

the full
realization of the rule of law. Kelsen chooses a peculiar way to prove his point
and it is precisely
his strictly value-neutral, theoretical strategy due to which his work has been
misread too often as
an obsolete neokantian project that seeks to formulate the pure theory of
law.3 His strategy is to
show that no such concept as sovereignty is necessary for theoretical
explanation of the
imperative character of law and for locating the ultimate source of validity of
legal norms. The
main reason for such an unprecedented and wholesale denial of sovereignty
which grants Kelsen
a solitary place in legal and political theory, remains a normative one
Kelsen believes that the
irreducible dualism of law and sovereignty makes room for the uncontrollable
exercise of
political authority. For Kelsen, sovereignty represents a relic of absolutism
and a disguised
autocratic claim to power which can justify disrespect for existing positive
law. The pure theory
of law is designed deliberately to bypass the concept of sovereignty and thus
to advance legal and
political development toward the formal rule of law which finally displaces
subjectivity from
political governance and confines arbitrariness of personal authority in a
system of objective legal

According to Kelsens legal theory , sov ereignty remains a normativ e concept, but it is a legally
normativ e concept and not a moral or political one. State sov ereignty implies that its legitimacy and
authority can be established ex clusiv ely by reference to the legal sy stem itself. It requires no
reference to principles outside that v ery legal order.

Kelsen argue, on the contrary , that political and legal

sov ereignty are identical because the law subsumes the political and cannot therefore be put in any
relationship of priority .

Kelsen, in response, rather

brusquely observes:

This concept of the sovereign is sociological or political, but not juristic []

This is difficult to reconcile with the theoretic method of analytical
jurisprudence, which derives its concepts only from an analysis of positive
law. In the norms of positive law no such thing as a sovereign, a person or
group incapable of legal limitation, can be found. The central difficulty is
that the jurisprudence of Austin, while it deals with the concept of the
sovereign which is not the state but only an organ of the state, does not
concern itself at all with the problem of the state itself.