Individual sovereignty

from Kelsen to the increase in the sources of the law

Francescomaria Tedesco

pp. 213-237

in: Peter Langford, Ian Bryan, John McGarry (eds), Kelsenian legal science and the nature of law, Berlin, Springer, 2017

Abstract

Kelsenian legal science, centred upon a monist, global legal system fails to acknowledge the complex character of the process of global law making. The process results from an elaborate combination of political and legal principles in a pluralistic legal order composed of three main elements: International law, the State, and the individuals. Within this process, the conventional position of the individual as subject to norms – in a state of subjection– is placed into question, and there arises the possibility of a subject of international law – the participation of subjects in the formulation of the norms which regulate their conduct at the level of international law. In response to this transformation of the position of the individual, the chapter commences from a Kelsenian understanding of positive law which is then extended to the contemporary doctrine of Human Rights. This, in turn, leads to the modification of the modern idea of State sovereignty through the recognition of an individual sovereignty.