Ratio Juris. Vol. 15 No.

2 June 2002 (206–18)

Instituting Authority. Some

Kelsenian Notes*
BERT VAN ROERMUND

Abstract. A rule of recognition for a legal order L seems utterly circular if it refers to
behaviour of “officials.” For it takes a rule of recognition to identify who, for L,
counts as an official and who does not. I will argue that a Kelsenian account of legal
authority can solve the aporia, provided that we accept a, perhaps unorthodox, re-
interpretation of Kelsen’s norm theory and his idea of the Grundnorm. I submit that
we should learn to see it as the vanishing point rather than the final basis of validity
in a legal order. To prepare the ground for this proposal, I will briefly explore the
claim to authority that is characteristic of politics. Then I sketch a multi-layered
canonical form of the legal norm, including their “empowering” character (Paulson)
in terms of performative operators. I show how it leads to a “perspectival” account
of the basic norm. In conclusion, I briefly point to the example of sovereignty and
acquis communautair in international law to illustrate this view.

1. Authority in Politics
The first leg of my argument is a brief observation on the claim to authority
that is inherent to politics. Politics is not just the struggle for power; it is the
struggle for power over society that can successfully claim to be in the inter-
est of society. From the point of view of the combatants making such claims,
the word “society” is used as a definite description: It is always “the” society
which is at stake when political agents compete for power. In politics,
authority in the sense of granted power can only be gained or kept if subjects
believe that one acts on behalf of a certain society as a whole. Thus, there
is a basic logic of representation pervading each and every political claim.
Now, whatever the criteria for granting such a claim, they cannot evade the
presupposition implicit in it; the presupposition being that, apparently, there

*A first version of this paper was presented in a working group at the IVR World Congress in
New York City, 1999. I am grateful to the Royal Netherlands Academy of Arts and Sciences and
to the Philosophy Department of Tilburg University for financial support. I thank all participants
in the discussion and apologise to Aleksander Peczenik for not (yet) taking into account his
observation that my argument is, at bottom, a coherence theory of legal justification.

© Blackwell Publishers Ltd 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
 Instituting Authority 207

is some viewpoint from which one can identify society “as a whole.” A priori,
no interest or node of interest within this society is a credible candidate for
that point, since these will all count as private interests. So, every political
agent in a certain society, in order to be regarded by all others as represent-
ing the commonwealth, is bound to imagine a point beyond this society, that
will allow him or her to refer to it as a particular whole, i.e., a limited unity.
In other words, the logic of representation in politics is bound up with
the presupposition of a symbolic universe from where a certain society can
be “staged.”1
In order to secure their claim to act on behalf of society as a whole,
political agents may follow various strategies, dependent on their cultural
environment and their political calculations. They may, either willingly or
factually, ignore the symbolic character of the transsocial realm they imagine
and hypostatise this point from where they articulate society as a limited
whole. They may celebrate it as a point in a pre-existent world beyond the
ordinary one, and prepare to pose as the sole representatives of this
transcendent world in the real world. Claiming privileged access to such
metaphysical creatures as the Divine Will, the Invisible Hand, or the Realm
of Freedom is a well-known mode of this strategy. Indeed, there is always a
strong temptation for political agents to erase the memory of their own
imagination and to act as the agents for an “authority with an author”
residing in a transcendent realm.2 But, on second thoughts, there are also
political reasons to resist this temptation and to refrain from hypostatisation;
i.e., political reasons to refrain from doing what political agents invariably
are inclined to do. There are reasons to prevent those in power from
exercising power in an arbitrary way and to make them accountable for
what they decide. Quite apart from moral convictions, these reasons have to
do with the purely strategic belief that, except for those carrying the day in
the struggle of power, it is unwise to engage in immunising mise-en-scènes of
political power. Thus, it is unwise to do so for all political agents who believe
that no one will be able to always carry the day. Note that this, in itself, does
not imply any inclination to democracy. Democracy is just one of the ways
to deal with this belief (though perhaps one we should prefer), on a par with
various other, sometimes rather belligerent, forms.
As Rousseau knew: “The strongest will not be the strongest for long,
unless he transforms force into law and obedience into obligation” (Rousseau
1984, I 3). Rousseau is quick to turn his observation into a critique of “the
law of the strongest.” Meanwhile, however, he has conceded the rather
Machiavellian thought that the idea of law as the ordering of society in the
general interest of all members—that is to say, reference to a basic format of

1
On the symbolic dimension of representation in politics and law, see Lefort 1986; cf. Lindahl
1997, 1998a, 1998b.
2
For a sustained criticism of authority in law always requiring an author, see Conklin 1998.

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208 Bert van Roermund

distributive justice—is inherent to the exercise of political power. Even if

politicians are just pretending and making a fraud of this idea of main-
taining a legal order, they will take care to cover it up, making themselves
vulnerable to disguise. Rather than trying to immunise the exercise of politi-
cal power from whatever form of criticism, they will attempt to monopolise
the basis and the limit of criticism. In this sense, and to this extent, political
agents take “the legal point of view.” What do they see from this point of
view? Before addressing this question head-on, we turn to the second leg of
the argument and study the claim to authority which legal orders
characteristically make.

2. The Legal Norm in a Kelsenian Form

Let me start by giving my version of a Kelsenian “ideal” or canonical form
of the legal norm. I do not claim that this version was actually held by Kelsen
in any of his publications. What I do believe, though, is that this version
represents the most feasible synthesis of his insights that one could bring to
bear on contemporary debates on legal norm theory. It is a scheme like (1),
in which A is a legal authority, S a legal subject, x an action of whatever kind,
C a set of sets of conditions, O an official and φ a sanction.

A1 : “If S does not {x if C}, then O1 ought to φ S” : O1,2,…,n (1)

I hereby empower O1 S1,2,…,n

A few notes are in order here, to cut short a number of theoretical discus-
sions that I cannot explore within the framework of this paper.

2.1 The Generic “Ought”

The “ought” in (1) is a generic ought, in conformity with Kelsen’s explicit
warnings.3 It is generic, because it can take on all deontic modalities, basic-
ally Obligation and Permission. What are these modalisations modalisations
of? Drawing on H.-N. Castañeda’s work (1975, chaps. 4 and 6), I submit that
they are modalisations of the practical copula “to do.” This wording of the
copula is one that we never meet in real language. It is an underlying struc-
ture of language, on a par with the alethic copula in predication—a copula
which of course has its own modalisations (in particular the operators
Necessary and Possible). Thus, the abstract copula of practical thinking—
thinking what “is to be done” by some first, second or third person—is
opposed to theoretical thinking on what is, was, will, may or must be the

3
For instance, Kelsen 1960, 5: “In diesem ‘Sollen’ ist das “Dürfen’ und ‘Können’ mit inbegriffen”
(“This ‘ought’ entails ‘may’ and ‘can’”; my translation). Cf. Kelsen 1979, 77f.

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 Instituting Authority 209

case. Consequently, deontic modalisations do not reflect attitudes towards

propositions (which contain a theoretical copula), but attitudes towards irre-
ducibly practical thought contents, governed by a practical copula. Kelsen
was quite right that, for philosophical purposes, this copula can be perspicu-
ously expressed by a generic ought, leaving deontic operators unspecified.

2.2 Empowerment
Over the years, Stanley L. Paulson has convincingly shown that, as far as
Kelsen’s last word on “the form of the norm” is concerned, the sense or
modality of the whole utterance between the quotation marks in (1) is
empowerment (Paulson 1988). I would argue,4 however, that this overall
sense of the utterance is better accounted for on the level of speech acts than
on the level of practical thought contents.5 A’s utterance, in the appropriate
circumstances, constitutes an empowerment of official O to sanction S, in
case S does not do x in circumstances C. The rather periphrastic reference to
“appropriate circumstances” anticipates what I will explain below: That the
empowering sense of norms is an institutional phenomenon, dependent
on certain conventions and/or constitutive rules. Note that empowerment
can have as different deontic modalities as its deontic content: O can be
empowered in the sense of being obliged to sanction, being forbidden to
sanction, being permitted to sanction, or simply having an option to sanc-
tion. Empowering an official to sanction and constraining his power to
sanction are on a par. Thus, I submit that we should make a distinction: That
the generic ought is embedded in an empowering performative operator is
one thing, but it is not tantamount to the generic ought being itself an
empowering modality.
In the performative approach, empowerment amounts to a promise, made
to O by the author A, to back up O’s exercise of power (ultimately coercive
power) by one’s own (i.e., A’s), exercise of (coercive) power or, alternatively,
by the promise not to resist O’s exercise of power against oneself. State
power is a case in point here, but it is not the paradigm. If I make a contract
with you, I not only state my intention to do my part of the deal, I promise
to do it by putting something at stake in a specific way. I empower you to lay
hand on my property in case I do not perform. I promise not to resist your
power and in that sense to back up your exercise of power. The famous
pound of flesh of The Merchant of Venice is the paradigm of a legal bond.

4
I am aware that this is probably not Paulson’s view, and certainly not Paulson’s interpretation
of Kelsen. See Vernengo 1989, commenting on Paulson 1988 and Paulson’s rejoinder 1990.
5
Kelsen ignores speech act theory almost completely, although in Kelsen (1979, 265, note 79), he
reflects on J. L. Austin’s locus classicus from Other Minds; he only regards Austin’s performatives
as possible conditions for legal consequences and he does not consider the possibility that legal
norms themselves have a shell of “ritual phrases.”

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210 Bert van Roermund

2.3 Application and Compliance

Moreover, while A1 is the speaker of (1), the hearers or addressees of (1) are
S and O: legal subjects and legal officials. Their respective uptakes of (1) are
characteristically different. If the empowered official O1 perceives that S does
not do x in C, O1 is supposed (by A) to respond by thinking in an applicative
mode (App):

As S did not {do x while in C}, I ought to φ S (App)

and to act accordingly by sentencing S in the form of an individual norm:

I hereby exercise my power to φ S (2)

On the other hand, legal subjects who find themselves in C can respond to
(1), as far as A is concerned, by reasoning in either of two different ways,
both “resulting in” compliance with the norm. They can either respond in a
Razian vein (RazCompl) and accept A1’s utterance as an “exclusionary,”
preemptive or authoritative reason to do x6:

If C, then I oughtAlly to do x, (RazCompl)

or they can respond in a Rossian7 vein (RossCompl) and conclude that they
better do x on the balance of reasons, one of these reasons being their
estimation of the real threat of O’s power to sanction:

If C, then I preferall in all to do x. (RossCompl)

Once we see that legal subjects have an option, it is quite easy to understand
why a legal authority will usually forbear from formulating direct prescrip-
tions of behaviour. And also why, I add, Kelsen was quite right in holding
that, in law, the norm “If C, then S ought to do x” conveys a direct prescription
of behaviour only in a secondary sense compared to the primary power-
conferring force of the legal norm.8 The reason hides in what counts as

6
Which I indicated by the subscript “Ally” (= “on the basis of Authority 1”). See Raz’s 1975 and
1979, among many other publications. One of numerous quotes from Raz 1979, 30: “The law’s
claim to authority is not merely a claim that legal rules are reasons. It includes the claim that
they are exclusionary reasons for disregarding reasons for non-conformity.”
7
I probably abuse Alf Ross‘s name to depict a typically “realist” notion of compliance with a
legal norm. However, Ross 1958, 52 provides some ground for it: “What we have here [with the
example of section 62 of the Negotiable Instruments Act; BUR] are not two different norms, but
two aspects of the same norm. It is directed to the judge, and makes the ordering of compulsion
on his part conditional on the behaviour of the acceptor. This gives rise to a reflex effect: It
creates a motive for the acceptor of the bill to avoid behaviour which will bring about the use
of force—it creates a motive for him to pay.”
8
For an extensive discussion of the issue of primary and secondary meanings of the legal norm,
with abundant references to Kelsen’s texts, see Paulson 2000.

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 Instituting Authority 211

effective and efficient communication within the specific framework of a

legal order. At the end of the day, A1 wants S to do x one way or another
(while in C), as long as S complies. Now the most convenient way (a short
cut, so to speak) to make him do x while in C is to empower O to sanction S in
case he does not x in C. Whether the legal subject complies Razly or Rossly
is entirely his business; it depends on his political theory, or even his political
ideology. A would-be legal authority is happy (and wise) to refrain from
discussing political theories or ideologies at the occasion of setting the law,
as it would only stir up precisely what it is supposed to calm down: conflict,
most of all ideological conflict. I would suggest that Kelsen intuitively under-
stood the importance in law of some Gricean principles of communication.
The most efficient and effective way of addressing both species of legal
subjects, the Razians and the Rossians, is by communicating the prescription
of behaviour as a conversational implicature and giving it a secondary
appearance in the background of the power-conferring appearance of the
norm. No wonder that, as again Paulson has shown,9 the point of view of
the legal subject on what he or she is to do, remains of primary importance
throughout Kelsen’s work. Giving the prescription a secondary appearance
is, indeed, a safe way to warrant its primary importance; and addressing
officials is a most effective (and in that sense direct) way to address legal
subjects. To put this in another way: The addressee of a norm is not
necessarily the one in the grammatical second person; the third person
serves as well, when it comes to successful communication.

3. The Grundnorm Revisited

Now I have prepared the ground to explain some characteristics of the claim
to authority that contemporary legal orders make. The first step is to
complicate (1) by the Stufenbau that is peculiar to the dynamic character of
legal systems. Stufenbau or hierarchisation means that A1 empowers O1 on
the basis of his (A1’s) legal power (or competence) to empower. So the
performative act in (1) is backed up by a higher order norm, also embedded
in a performative (2):

A1 : “If S does not {x if C}, then O1 ought to φ S” : S1,2,…,n (1)

I hereby empower O1 O1,2,…,n

A2 : “If A1 does not {y if D}, then O2 ought to φ A1” : S1,2,…,n (2)

I hereby empower O1 O1,2,…,n
9
Cf. the previous note.

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212 Bert van Roermund

We could continue this series of empowering speech acts ad infinitum, each

legal authority authorising or empowering the exercise of a lower one and
being authorised or empowered by the performative of a higher one. At least
that is what we think. But could we really?10 The riddle that Kelsen wants to
solve is not how we can underpin the highest norm, but how we can order
norms in terms of higher and lower in the first place. In fact we cannot even
begin to understand what is meant by the metaphors of lower and higher
unless we grasp what gives the whole picture this spatial dimension. We
only see this picture as a quasi-spatial picture on the basis of something
which is very much like the vanishing point in linear perspective, in this case
the vanishing point of a legal order. The point we have to construct is (3):

A1 : “If S does not {x if C}, then O1 ought to φ S” : S1,2,…,n (1)

I hereby empower O1 O1,2,…,n

A2 : “If A1 does not {y if D}, then O2 ought to φ A1” : S1,2,…,n (2)

I hereby empower O2 O1,2,…,n

If A2 does not {z if E}, then O3 ought to φ A2 (3)

Note that (3) does not feature a performative: We have to drop the quotation
marks, the speaker and the addressees, if we want the chain to end. Since it
is the performative utterance which is the content of consecutive norm-
givings, the end cannot be an act of normgiving. So (3) is not an utterance; in
particular, it is not the setting of a norm. It is not a norm of positive law, a
Kelsen repeatedly stressed. It is the object of presupposing, not positing, law
as a specific sort of order. It is a thought content, one which is basic in
grasping what constitutes the systemic character in a dynamic system of
norms, namely that there is a dimension of higher and lower in the system
of norms, deriving from a highest norm for norm setting. The consequence
is, of course, that (3) itself is not the highest norm. It is not, itself, a norm for
norm setting, as a norm for norm setting would have to be set, too. Rather it
is an assumption that makes it intelligible that O3 is seen as the ultimate

10
Kelsen, at numerous occasions of which (1979, 355, note 174) is only the last one, states rather
bluntly that one cannot accept an infinite regress: “Da dies kein regressus ad infinitum sein kann,
muß mann [sic; BvR] zu einem Grundnorm gelangen, die nicht mehr begründbar ist.” (“As this cannot
be an infinite regress, one has to come to a basic norm that cannot be justified further”; my
translation).

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 Instituting Authority 213

authority in norm setting. My claim is, of course, that (3) is a perspicuous

expression of what Kelsen calls the Grundnorm.

4. The Vanishing Point Account of Authority

There clearly is something “optic” in Kelsen’s account of authority in law.
We find such optic overtones in the wording of his early views on
sovereignty, the notion that comes closest to that of legal authority. “When
do I, the beholder, presuppose an order to be sovereign? What are the
grounds that cogently prompt me to the assumption in question, to the
choice of the decisive presupposition?” (Kelsen 1928, 15).11 Indeed, when it
comes to law, Kelsenian authority, like beauty, is in the eyes of the beholder.12
At the end of the day, Kelsen stresses, the rule in some legal order that
murder “should be punished by life sentence” is not valid because the
parliament, or the King, or the King in Parliament said so. It is valid because
it is “assumed” by “the beholder” that one should do what, e.g., the King in
Parliament says.13
It is important to ask what exactly this position of “the beholder” entails
in order to avoid misunderstandings. In particular, it would be rather absurd
to hold that the authority of law depends on some arbitrary subject(s)
projecting wishful thinking on political contingencies, or that a legal rule is
binding in so far as its subjects treat it as binding. But it becomes an
altogether different matter if, as I argued in the first section, political agents
take an a priori point of view in the sense that they must frame their exercise
of power in terms of law. Then, indeed, we may ask if the assumption of the
basic norm is not the correlate of their viewpoint: the vanishing point, rather
than the final, highest or lowest point of a legal order. The basic norm does
not belong to the legal order, like the vanishing point does not belong to the
11
Not much has changed, in this regard, in his last exposition on the matter of sovereignty from
1962, a text which I quote from the recently published English translation by the Paulsons: “The
question of whether the state is sovereign is the question of whether the state legal system is to
be presupposed as the highest legal system. And this is the case where international law is
considered to be valid for the state only if it is recognized by the state and its basis of validity
is seen as the ‘will’ of the state”. Kelsen 1998, 528; my italics.
12
“(…) eine Voraussetzung im Denken des Staat und Recht erfassenden Betrachters” (“A presup-
position in the thought of a spectator who is to understand state and law”; my translation):
Kelsen 1928, 14.
13
It looks almost as if, for these very reasons, legal authority is bound up, by definition, with
democracy. But it is not. Although my analysis may explain Kelsen’s strong preference for
(liberal) democracy, and although it clearly matches his Freudian characterisation of democracy
as the political order of a “fatherless society,” it does not conceptually compel to organising law
enactment democratically, let alone a specific format of democracy like parliamentarism. Rather,
democracy itself is invited to acknowledge the difference between authority with or without an
author. Other cultures may have other traditions to intercept ontic representations of the author
in authority. To point to just one possible example: The notion of ubuntu underlying the difficult
process of reconciliation in South Africa may prove more feasible for new legal institutions than
the received views on Western democracy. Not every culture fancies a fatherless society. Nor
does it suffer from an Oedipus complex.

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214 Bert van Roermund

picture. It is part of the picture in a different sense: It allows the picture to

represent something in certain, spatial or quasi-spatial, dimensions. We may
as well say that it is part of the picturing rather than the picture. Thus, it does
not entail some sort of ghostly pre-existence. The vanishing point only exists
in virtue of the specific presentation of the different elements of the picture,
their proportional reductions and converging shapes. It opens the space that
the picture represents by a closing technique. Those who use the technique
and yield to the constraints of the format inherent in it, thereby create and/or
go along with the extra dimension. The same seems to apply to Kelsen’s idea
of the Grundnorm; which may explain, at least partly, why Kelsen seemed
unsure about the proper philosophical name for it (hypothesis?, presupposi-
tion?, fiction?). Only if we depart from a vanishing point like (3) in section 3
above, we can philosophically grasp the extra dimension of politics turning
into legal authority. Creating and/or accepting (3) clearly makes author-
itative claims in politics accountable. But again, (3) is not the content of a
speech act. It is a correlate of “the beholder’s” viewpoint of a legal order,
the viewpoint of those who, being officials or subjects, construct this vanish-
ing point.14
Let us look at the reason why the relatedness of a vanishing point to a
point of view does not imply that the place of the vanishing point is depend-
ent on the arbitrary standpoints of individual beholders; why, on the
contrary, the vanishing point, though it indeed reflects the point of the
beholder in general, determines how individual spectators are supposed to
look at the picture. If we look at Vermeer’s painting of a room, we cannot
escape from the point of view that we are supposed to take in virtue of the
vanishing point that determines the perspective (a rather high point of view
in most cases). Indeed we only qualify as “beholders” of this painting to the
extent that we adopt the point of view dictated by its perspective. Note that
being a beholder is just one of the ways of “looking” at the painting. If
someone of the museum’s technical staff looks at it in order to give it proper
fastening, protection, or even light, the vanishing point is the least of his
worries. We may, of course, argue that Vermeer himself, being the artist at
the historical origin of the picture, might have chosen a different viewpoint.
This is true enough, though only in a trivial way. What is not true is that he
could have picked a different point of view without suggesting a different
vanishing point in his painting, if he wanted to remain within the constraints
of the theory of linear perspective. He was bound by the demands of what
the Renaissance Italian painters called costruzione legitima: a construction that,
characteristically, claims validity in virtue of compliance with the laws one
has to accept a priori if one wants to give a mathematical account of vision.
In our time, we are inclined to think that this account of vision is the true and
only, indeed the “natural” and “physical” one. We believe to be entitled to

14
For this and the following argument I draw on Panofsky 1991.

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 Instituting Authority 215

this claim because we actually “see” lines shortening and vanishing in our
visual perceptions of reality. But, as Panofsky has argued, a whole shift in
our concept of space was needed for this feature of visual perception to
become the dominant one and to gradually work its way into not only
painting but also technology. Linear perspective was related to an idea of
space as a systematic continuum containing all bodies, as distinct from an
Aristotelian idea of space being an intercorporeal “aggregate.” This idea also
had its corresponding notion of perspective based on physio-psychological
experience (the fish-bowl perspective of Antique and Byzantine art). To say
that Vermeer had a choice between different conceptions of space amounts
to the truism that he could have lived in a different era.
The modern conception of authority in law that Kelsen wants to analyse
resembles the technique of linear perspective in many respects. The frame-
work of this paper does not allow a broad exposition of these analogies. In
particular, I have to skip the lessons to be learnt with regard to the reduc-
tions that are needed to apply the closing technique of perspective, a tech-
nique quite analogous to the reductions used in law to picture a Stufenbau of
competences. What I do want to stress here is the reciprocity of viewpoint
and vanishing point. Rather than foreclosing it, this reciprocity installs the
distinction between the terms of the well-known dichotomies of fact ver-
sus norm, individual preference versus societal institution, subjective versus
objective, irrational versus rational, as correlates that necessarily hunt in pairs.
There is no truly legal viewpoint without the vanishing point of an assump-
tion on competence that integrates the whole of political space into one
systematic continuum in law. But the reverse is also true: It is the specifically
political claim to authority that we see formalised in a legal system based on
a supreme norm. That is why, in our concept of law, there is this strangely
shared origin of a legal order and its officials. The officials are like “the be-
holders” of a painting. They are officials by virtue of accepting the vanishing
point, that is the assumption about a supreme norm in the political order.
And, inversely, there is only such a vanishing point to accept, if it is the
correlate of the viewpoint these officials adopt qua political agents, to wit
their public attitude that the commonwealth or the interest of society as a
whole is at stake. Thus we might as well say that the legal order exists in
virtue of the behaviour of “officials.” As in the case of the Vermeer painting,
it could be objected that the founding fathers, being the originators of the
supreme norm, were not bound at all when they enacted this constitution.
This is perhaps why Kelsen, at least in some of his writings, submits that the
idea of the Grundnorm refers us to the “historically first constitution.” As in
pictorial art, this is true in only a trivial sense. Even the alleged fathers
would have founded nothing at all, had they not obeyed the law that the
vanishing point both captures and intercepts the pretension of each and
every political agent, thus developing a default format for speaking about
society as a whole.
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216 Bert van Roermund

5. Authority in International Law

Let me briefly point to one of the problems that a perspectival theory of legal
authority might help to solve. It is the problem of sovereignty in international
relations. Sovereignty, in ordinary legal parlance, is first of all regarded as a
sort of “basic right” of states to be independent of other states in dealing
with their internal affairs. Consequently, sovereignty as a right in inter-
national law is appealed to when a state wants to parry interference in its
domestic affairs by (a union of) other states. In general, there are four legally
acknowledged reasons for a state or bond of states B to interfere with the
domestic affairs of another state C.

– C behaves towards B in a way justifiedly taken as offensive by B;

– C allows its subjects (citizens or inhabitants) to behave in a way that
wrongfully harms the interests of B and (or) its subjects;
– C commits, against its own subjects, large-scale violations of human
rights protected under international law standards upheld by B and
other states;
– C allows some of its subjects to commit, against other legal subjects,
large-scale violations of human rights protected under international law
standards upheld by B and other states.

One may argue that only the third and fourth of these reasons regard
interference in domestic affairs in the strict sense, as the first and second
pertain to situations where acts of C or its subjects wrong the interests of B
and its subjects. So let us concentrate on these cases.
In order to legally intervene in C, rather than wage a war against C, in such
cases state B should be in a position to act as an official exercising compe-
tence. B can only become an official in virtue of a legal norm attributing final
competence-competence, or sovereignty, to the international legal order. But
there is no point in denying that there will only be an international legal order
allowing states to act as officials if states like B exercise their sovereignty to
establish one. Does this mean that, in the final analysis, these states remain
the lords of the treaty in the sense that they can undo what they established
and that they remain officials only on their own account of the matter? I do
not think so. In this respect, establishing international sovereignty differs
characteristically from organising intergovernmental co-operation. In the
latter case states will be granted, in principle, the possibility of reconsider-
ing their priorities. In the former, opting out on the basis of reconsidered
priorities would amount to breaching their bond. The notion of acquis com-
munautair, though typically used in an European Community context, is
characteristic of international legal orders in general. It is often said that, as
parties to a treaty establishing an international legal order, states exercise
their sovereignty by handing it over to a higher legal order. This defies
understanding. Since the international legal order only exists in virtue of
© Blackwell Publishers Ltd 2002.
 Instituting Authority 217

states exercising their sovereignty, there is no higher legal order to hand

something over to, at least not pre-existent to the commitment that there be
an overriding legal order. The two are reciprocal conditions. What states do
in establishing a legal order is to commit themselves to the vanishing point
correlative to the viewpoint inherent in their political dealings with one
another: the interest of the whole, all of their citizens included. They exercise
their sovereign power by relating directly—i.e., independent of other
states—to international legal authority while, at the same time, international
legal authority could not do without the “sovereign” behaviour of states.

Tilburg University
Faculty of Law
P.O. Box 90153
5000 LE, The Netherlands
Email: roermund@kub.nl

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