Kelsen, in his writings, took the position that in law, particularly international law, there are superior and inferior limits to the law; that is, when a norm is articulated and the society behaves in conformance with the norm, and it would do so even in the absence of the norm, the norm is not serving a legal function; it is not serving a normative function of encouraging behavior because the behavior would be in conformance with that norm in any event. There's also the inferior limit to the law; that is, a situation where a rule is articulated but the behavior of the society is so aberrant from the norm that the society fails to respond to it; the norm fails again to reflect a normative standard encouraging behavior of the society. Kelsen takes the position that if you're going to have effective law--law that functions as law--it somehow must fall within the middle of those two. I think we've been struggling with that here, perhaps, and there's perhaps a risk that each of the panelists might be facing the limits of Kelsen's two limits, and I wonder whether they would address themselves to that. I think Professor Friedlander could be argued to be suggesting a norm that approaches very closely to the inferior level of the norm, that is, if he articulates a fairly substantial ban on terrorism and seeks to enforce it, he will find tremendous violations of the law; the norm would not serve a function of law under those circumstances. It might be argued that Professor Franck, in his attempt to deconstruct idiots' law in particular, might get himself into the position of reaching the superior limit, whereby he has defined what states would do anyway, and the norms really do not have an impact on the society in general.
Professor Jonathan Charney, Professor Thomas Franck, Professor Jordan Paust, Professor John Murphy, Geoffrey Levitt, Professor Kenneth Abbott, Professor Robert Friedlander, Professor Alberto Coll, and Professor Jerome Reichman,
20 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol20/iss2/7