Ingram, David. "Reconciling Positivism and Realism: Kelsen and Habermas on Democracy and Human Rights." Philosophy & Social Criticism 40.3 (2014): 237-267.

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from
social science in defending an international, democratic human rights regime against Carl Schmitt’s
attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism,
Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice
(Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that
may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to
emphasize a conceptual connection between law and morality, and has even been tempted by natural
law arguments in developing his theory of jurisprudence (Part IV), Kelsen is more receptive to
arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments,
as can be seen from his recent acknowledgment that human rights that secure subsistence and
development depend on “global domestic policy” for their full enjoyment. This acknowledgment, I
submit, brings Habermas’s legal philosophy closer to Kelsen’s monistic view that a supranational human
rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy
between domestic and global institutions of governance, I argue (Part IV) that a global human rights
regime must also incorporate features of constitutional review. Conceding this point, however, raises
further questions about the insulation of international law from so-called extra-legal (political)
influences. I conclude that not only do multicultural differences in understanding human rights (conflicts
between legal paradigms) generate political problems for international courts but so do competing
subsystems of international law.

Online:
Loyola University Chicago [pdf]