370 Between Yesterday and Tomorrow (1914– )At the same time, the Vienna School departed from nineteenth- century
positivism in several very important ways. Th ree are of special note. First
was the Vienna School’s fi rm rejection of voluntarism combined with a
radical downgrading of state sovereignty. Much in the spirit of Duguit,
Kelsen rejected the idea of states as possessing a real personality— the very
foundation stone of voluntarism. Th e true position, in his view, is that states
are merely governmental mechanisms in the hands of the individual per-
sons who hold de facto power. International-law rules therefore are not
directed to states as such, but rather to those individuals who wield the gov-
ernmental power. “Th e subjects of international law,” averred Kelsen, “are
individuals” and not states.
A second major departure from the positivism of the nineteenth century
was a rejection of the contractual picture of international law, in favor of a
legislative one. Customary law was not seen as a tacit treaty making, but in-
stead as a collective lawmaking act— with the eff ect that all states are legally
bound by the customary laws that emerge. In this sense, therefore, interna-
tional law was regarded by the Vienna School as a law above states and not
merely a law between states. “States are bound by [customary] international
law,” insisted Kelsen, “without and even against their will.”
Th e third major departure of the Vienna School was closely connected to
this second one. Th is was a rejection of the dualistic outlook of mainstream
nineteenth- century positivism— that is, of the belief that international law
and national law are separate systems. Kelsen must go down in intellectual
history as one of the foremost exemplars of holistic thought and grand the-
ory. In his opinion, “[a]ll quest for scientifi c knowledge”— including legal
science—“is motivated by an endeavor to fi nd unity in the apparent multi-
plicity of phenomena.” If law was to be a true science (as it certainly was in
Kelsen’s eyes), then it simply could not be allowed to contain contradictions.
All aspects of law (national, international, and so forth) must necessarily be
“parts of one harmonious system.” Kelsen’s stress on unity at the expense
of pluralism and localism was distinctly reminiscent of Dante’s medieval
dream of a unifi ed global polity— and, not coincidentally, Kelsen’s earliest
academic work had been a study of Dante’s po liti cal and legal theory.
Criticisms of the Vienna School have been many. Some have found it to be
too coldly austere, too far removed from the real world in its principled re-
jection of any appeal to, say, history or sociology. Some have objected that