"Grundnorm and Monism in International Law" by FX Adji Samekto, Muh. Afif Mahfud et al.
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Abstract

The Grundnorm is Hans Kelsen’s teaching that was integrated into his theory known as the Pure Theory of Law. The Grundnorm is the highest source of legal imperative, which is accepted by every individual human being, based on his free will to submit orders that are no longer debated because they are accepted as truth. The Grundnorm being the source of the validity of legal imperatives, it means that is the highest source of the validity of regulatory law within the scope of national and international law. This is the background of the justification of the Monism school, which is part of the teachings in the Legal-Positivism school. This paper aims to describe the relationship between The Pure Theory of Law as the basis for justifying the existence of Monism. It also seeks to answer whether Monism can still be the basis for justifying the existence of international law. The results showed that Immanuel Kant’s teaching about the developmental stages of human recognition of the universe culminated in the ratio-practical and became the source of the development of Hans Kelsen’s legal teaching on the Grundnorm. Based on Hans Kelsen’s teaching, the Grundnorm is a pre-supposed source of necessity that is formed based on free will, but it is not created through formal procedures by the state. When examined from a sociological perspective, Monism, as a doctrine in the Legal-Positivism school, presupposes the state of society that develops linearly and statically. Monism’s validity was questioned when fundamental changes occurred in state relations in the post-World War II era. These fundamental changes are further accelerated in the post-globalization era, which is based on the demand for justice in relations between states with international legal instruments.

References

Journal Articles and Periodicals

Allagui, Ilhem and Johanne Kuebler. “The Arab Spring and the Role of ICTs Editorial Introduction.” International Journal of Communication 5 (2011): 1435-1442.

Aydemİr, Emrah. “Dimensions of Francis Fukuyama’s ‘The End of History’ Vision in the Eastern Europe of the Post-Cold War: Reconsideration of Nationalism.” Selçuk Üniversitesi Sosyal Bilimler Enstitüsü Dergisi 53 (2024): 220-32.

Azeem, Mohsin. “Multi-cultural Rivalries in post-Cold War Times: A Critical Discourse Analysis of Huntington’s ‘The Clash of Civilizations and the Remaking of World Order.’” Pakistan Journal of Social Sciences 41, no. 1 (2021): 131–39. https://doi.org/http://pjss.bzu.edu.pk/index.php/pjss/article/view/1071.

Chandra, Aparna. “India and international law: formal dualism, functional monism.” Indian Journal of International Law 57 (2017): 25-45. https: // doi.org/10.1007/s40901-017-00690.

Cohen, Henry. “Kelsen’s Pure Theory of Law.” The Chatolic Lawyer 26, no. 2 (1981): 147-157.

Cohen, Julius. “The Political Element in Legal Theory: A Look at Kelsen’s Pure Theory.” The Yale Law Journal 88, no. 1 (1978): 1-38.

Dąbrowska, Agata. “Radbruch vs. Kelsen? Solving the Dilemma of Punishing Nazi Criminals at Nuremberg from the Perspective of Legal Philosophy and History.” Folia Historica 115, no. 115 (2024): 115–35. https://doi.org/10.18778/0208-6050.115.07.

Geronik, Arie. “The Cold War in retrospect: a continuous international conflict or a world war?” Cogent Social Sciences 10, no. 1 (2024): 1-14. https://doi.org/10.1080/23311886.2023.2300527.

Gragl, Paul. “The Pure Theory of Law and Legal Monism - Epistemological Truth and Empirical Plausibility.” Zeitschrift für öffentliches Recht 70 (2016): 665-736. https://ssrn.com/abstract=2715528.

Feerick, Thomas. “The Crime of Genocide in Australia An Exegetic Analysis.” Australian International Law Journal 47 (2020): 47-98.

Jones, Peter. “The Arab Spring: Opportunities and implications.” International Journal 67, no. 2 (2012): 447-463.

Maier, Clara. “Legal Counterrevolution: Property and Judicial Power in the Weimar Republic.” Modern Intellectual History 1 (2024): 1–21. https://doi.org/10.1017/S1479244324000118.

Mitchell, Ryan. “International Law as a Coercive Order: Hans Kelsen and the Transformation of Sanction.” Indiana International and Comparative Law Review 29 (2019): 245-302.

Paulson, Stanley L. “How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law.” Revus 21 (2013): 29-45.

Pedro, Magalhães. “The One and the Many: A Critical Reflection on the Foundations of Hans Kelsen’s Democratic Theory.” Austrian Journal of Political Science 51, no. 3 (2022): 32-41. https://doi.org/10.15203/ozp.3815.vol51iss3.

Pfordten, Deitmar von der. “On Kant’s Concept of Law.” Philosophy of Law and Social Philosophy 101, no. 2 (2015): 191-201.

Saleus, Nazma. “Social Media and Political Revolution: Re-Understanding the “Arab Spring” Phenomenon in the Perspective of Transnational Public Spaces.” International Journal of Science and Society 2, no. 1 (2020): 320-326.

Sethi, Janum. “Kant on Empirical Self-Consciousness.” Australasian Journal of Philosophy 102, no. 1 (2024): 79–99. https://doi.org/10.1080/00048402.2021.1948083.

Shuman, S.I S.Ed. “Kelsen: Principles of International Law.” Michigan Law Review 52, no. 5 (1954): 768-774.

Charles Leben. “Hans Kelsen and the Advancement of International Law.” European Journal of International Law 9 (1998): 287-30.

Vanzo, Alberto. “Kant on Empiricism and Rationalism.” History of Philosophy Quarterly 30, no. 1 (2013): 53–74.

Zolo, Danilo. “Hans Kelsen: International Peace Through International Law.” European Journal of International Law 9 (1998): 306-324.

Books and Book Chapters

Berry Gray, Christopher. The Philosophy of Law An Encyclopedia. Routledge, 2012.

Bertens, K., Johanis Ohoitimur, and Mikhael Dua. Introduction to Philosophy. Kanisius, 2018.

Brownlie, Ian. Principles of Public International Law, 4th edition. Clarendon Press, 1990.

Crawford, James. Brownlie’s Principles of Public International Law, 9th edition. Oxford University Press, 2019.

Doyle, William. The French Revolution A Very Short Introduction. Oxford University Press, 2001.

Fukuyama, Francis. Political Order and Political Decay From the Industrial Revolution to the Globalization of Democracy. Farrar, Strauss and Giroux, 2014.

Huijbers, Theo. Philosophy of Law in Historical Trajectory. Kanisius, 1982.

Kelsen, Hans. Introduction to the Problems of Legal Theory. Translated by Stanley L. Paulson and Bonnie Litschewski Paulson. Oxford University Press, 2002.

Kelsen, Hans. Principles of International Law. Rinehart and Company, 1952.

Kleinman, Paul. Philosophy From Plato and Socrates to Ethics and Metaphysics, an Essential Primer on the History of Thought. Adams Media, 2013.

Landau, Cecile, Andrew Szudek, and Sarah Tomley, eds. The Philosophy Book. Dorling Kindersley Limited, 2011.

Law, Stephen. The Great Philosophers The Lives and Ideas of History’s Greatest Thinkers. Quercus, 2007.

Paulson, Stanley L. and Bonnie Litschewski Paulson, eds. Normativity and Norms Critical Perspectives on Kelsenian Themes. Clarendon Press, 1998.

Shidarta. Legal Reasoning and Legal Reasoning. Genta Publishing, 2013.

Wacks, Raymond. Philosophy of Law A Very Short Introduction. Oxford University Press, 2006.

Weeks, Marcus. Heads Up Philosophy. Dorling Kindersly Limited, 2014.

Wheatley, Natasha. The Life and Death of States Central Europe and the Transformation of Modern Sovereignty. Princeton University Press, 2023.

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