Sources in Legal Positivist Theories: The Pure Theory's Structural Analysis of the Law

Abstract

We look for the law in its ‘sources.’ However, as many recognise, the main-stream riverine metaphor is fatally flawed. This chapter argues that there is an unlikely saviour - the Kelsen-Merkl Stufenbau theory of the hierarchy of norms. This may seem far-fetched, but this theory is the closest we have to a legal common-sense theory of the sources of international law. It is close to the main-stream, but provides a solid theoretical basis. It does so by fashioning the only necessary link between norms into the ordering principle of legal orders: the basis of validity of one norm is another. A special type of rule - the empowerment norm - is this basis; norms are created ‘under it.’ In other words, law regulates its own creation. This chapter demonstrates that this understanding of hierarchy avoids many of the misconceptions of orthodox scholarship. False necessities are deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, this chapter concludes by sketching out the possibilities of ordering the sources of international law. A structural analysis of the international legal order clears the way for level-headed research on this legal order’s daily operations: norm-conflict and its application/interpretation.

Keywords: sources of law, relationship of sources, hierarchy of law, customary international law, Stufenbau theory, Hans Kelsen, Adolf Julius Merkl, Pure Theory of Law, empowerment, law-creation