The Milosevic Trial by Gideon Boas
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00710_2.x |
| Published date | 01 July 2008 |
| Author | Ray Murphy |
| Date | 01 July 2008 |
primary source, what he ¢nds i s Kelsen apparently arguing that autocracies are not
defective instances of, but ‘defective from the point of view of’ (122), such orders:
‘Kelsen’s democratic state,’ he asserts (citing Kelsen,Vo m We s e n u n d W er t d e r De m o k r a t i e
(2nd ed.,Tˇbingen: Mohr,1929),27),‘is legitimate because it can respect [the indivi-
dual’s] freedom [to form a conception of the good] in a way in which an autocracy
could not’ (114).What, then, did Kelsen actually claim? The answer is important ^
the credibility of Vinx’sown reading of the pure theory of law signi ¢cantlydepends
on it ^ but it is not provided. Again, the line between Kelsen andVinx isblurred.
There is quite a lot aboutVinx’s book that leaves me unconvinced. But it does
not leave me unimpressed.Vinx pays considerable attention to Kelsen’s writings
on constitutionalism, democracyand international law, drawingout and carefully
assessing arguments about which many legal theorists will be only dimly aware.
Some of these arguments ^ such as Kelsen’s ‘perplexing and di⁄cult’ (134) argu-
ments about relativism and its relationship to democracy ^ are perhaps best con-
signed to the past. But Vinx always strives to present them in the best possible
light, and the general assessment of Kelsen’s legal and political theory thatemerges
from the book is nuanced, fair-minded and distinctly modern. I am not sure that
Vinx’s interpretations always achieve what he intends them to achieve: he sees
similarities of perspective as between Kelsen and Lon Fuller (see 74 n 104, 99,
217), but insists that there is an ‘i ncompatibility’between Dworkin’sjurisprudence
and ‘Kelsen’s utopia’ (167); yet his e¡ort to connect thepure theory to rule-of-law
values produces a version of Hans Kelsen who seems partly converted to Law’s
Empire (see, eg, 48, 77, 220). His arguments, nevertheless, are invariably philoso-
phically astute, bold and rewarding.
Most impressive of all is the quality of the writing. Since Vinx is primarily
concerned with challenging rather than presenting received wisdom about the
pure theory, his bookwil l not meet the requirements of anyone seeking a reliable
introduction to the mysteries of Kelsenian legal science. It is, nevertheless, clear
and engaging in the way that any such introduction should be.This is not to say
that the book is an easy read (given its subject-matter, itwould probablybe a sign
of de¢ciencyif it were),but neither is it abstruse, dryor impenetrable ^ words for
which‘Kelsenian’ can sometimesseem a synonym. ThatVinx has strayedfrom this
particular script is entirely commendable.
Neil Duxbury
n
GideonBoas,The Milosevic Trial,Cambridge: Cambridge University Press, 2007,
324 pp, hb d60.
The book begins with a foreword by Geo¡rey Robertson QC, which summarises
the main arguments and analysis of the book. As the title indicates, Dr. Boas pro-
vides lessons for the conduct ofcomplex international criminal proceedings. He is
especially well placed to do so after manyyears as Senior Legal Advisor to the Inter-
national Tribunal for the Former Yugoslavia (ICTY). Chapter 1 discusses the key
n
Law Department,London School of Economics.
Reviews
650 r2008 The Author.Journal Compilation r20 08 The ModernLaw Review Limited.
(2008) 71(4) 641^661
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