Regulating Cyberspace – from a Kelsenian point of view

Antonio Marturano


The actual problem of the regulation of the Internet is pretty similar to which Kelsen has faced when he studied the philosophical rooths of the International Law. In fact, International Law shares several features with the proposed cyberspace regulamentations and also it has analogies with the “ontology” of the cyberspace. Kelsen proposed an ethical (i.e. a non-juridical) background for the International Law. In fact, Kelsen compared it to a primitive juridical system within no coercions and no legal boundaries (strictly speaking) are present in it. For these reasons Kelsen argued International Law is like an ethical system.

The aim of this paper is to explain the reasons because exist an analogy between the International Law and the Internet. Secondly, to analyze Kelsen’s proposal and to understand if Kelsen’s suggestions hold good as a framework for the Cyberspace regulation. Thirdly, I will argue that Kelsen’s proposal is pretty similar to some liberal and autoregulamentative views for the governance of the Internet.