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Kammerhofer on Constitutionalism, International Law, and Kelsen

By Lawrence Solum

Jörg Kammerhofer (University of Erlangen-Nuremberg, Department of Law) has posted Constitutionalism and the Myth of Practical Reason. Kelsenian Responses to Methodological Confusion on SSRN. Here is the abstract:

While today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalisation, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound their methodologies; that scholarship arrogates to itself competencies which it does not have and that this confusion nullifies the benefits of the constitutionalist project for international law. The key mistake is called a methodological circle: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen?s arguments against practical reason.

Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the re-discovery of a strictly legal, i.e. structural, constitution as highest echelon of legal regulation.

Full post as published by Legal Theory Blog on March 18, 2010 (boomark / email).