War, Peace, International Law: Critical Remarks on Hans Kelsen’s Legal Theory

War and peace are, even in Hans Kelsen’s legal theory, two closely related concepts. Nevertheless, the specific relevance of these concepts emerges, in the development of Kelsen’s thinking, at distinct and rather distant moments in time, and the positions they occupy, within the categorical architecture of the reine Rechtslehre, turn out to be quite heterogeneous.

After a brief introduction, in the first part of the talk we shall focus on the concept of war, which is the main subject of Kelsen’s earliest reflection on international law. The legal qualification of war, in fact, constitutes the core around which this reflection orbited during the dramatic years of the First World War, as evidenced by the book on The Problem of Sovereignty and the Theory of International Law (1920).

In the second part of the talk we shall focus on the concept of peace, which comes to the forefront in Kelsen’s thinking much later, in the early 1940s, in a political and legal context profoundly changed as a consequence of the outbreak of the Second World War. The question of the relationship between peace and law remains, in the years that follow, extremely problematic, until the moment when it is the subject of a radical rethinking by Kelsen, in the second edition of Reine Rechtslehre (1960).

Carlo Nitsch (Università degli Studi di Napoli Federico II)