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Law and Peace in International Relations: The Oliver Wendell Holmes Lectures. 1940-41

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A Kantian approach to law seems anachronistic in this cyberspace age. Internet legal theory, or the lack thereof, underscores critical stress points as the law is stretched to accomodate new mediums. Just as the moon race demonstrated that some of our absolute laws of physics tend to break down beyond the Earth's atmosphere, whole new bodies of law need to be created to regulate cyberspace. The current situation need not be distinguished from the state of the world in 1940-41, when Professor Hans Kelsen, formerly a judge on the Austrian Constitutional Court, delivered the Holmes lectures at Harvard Law College. Having experienced first-hand the terrors of the Nazi police state, Professor Kelsen recognized that when the State qua legal person violates the law only the united action of other states can remedy those delicts.

World War is not a satisfactory legal solution to the abuse of power by a nation-state. That the Allies were conducting a just war is beside the main point: war is an ineffacacious legal sanction. It's severity may be out of proportion with a state's violations; the uncertainity dilutes the coercive power of war qua legal sanction; the employment of force typically focuses on people that are only technically components of the guilty state: Hence, Professor Kelsen described "International Law as Primitive Law."

After WWI, a specific body, the League of Nations, to regulate European conduct was put together in Geneva, but it was neither a legal nor a natural person. As everyone already knows, it had some panache but no real muscle. Professor Kelsen moved beyond the obvious to explain that the error was an attachment of a fully formed head, i.e., the convocation of delegates, to an inchoate body, i.e., primitive positivistic international law. Although law is coercive in nature, its proper operation depends upon "Voluntary Obedience" to it. The monopoly of the power to take away increases the efficacy of the legal system, but its origin is in the shared customs, or centralization of norms, that makes possible a large body of positive law. Thus, the legal system, including (of course) the fully independent judiciary, must be birthed before the executive or the legislative branches.

Professor Kelsen introduced in these lectures a plan for a new world order, based on either or both a European Union and a United Nations, with a new body of international law. While it might be impossible to impose the positive law of one country, say the United States, on another, say Germany, because of the insurmountable cultural hurdles, there are Kantian categorical imperatives that are derivable as a central base of the new law. The base is quite simple really: All civilized nations believe in "Law and Peace."