The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

This chapter addresses Kelsen’s democratic theory through the distinction that he established between ideal and real democracy. Starting from a reconceptualisation of Rousseau’s definition of democracy as full political self-determination, Kelsen negated the feasibility of ideal democracy as direct democracy while stating that heteronomy was impossible to overcome. Kelsen thus posed the problem of how heteronomy and freedom were reconciled in real democracy. By differentiating between the ideal and real significance of concepts such as the people and parliamentarism, Kelsen argued that such a reconciliation was made possible in the form of a ‘government by’ the people, based on freedom rights, parliamentarism, political party pluralism and respect of the minority. The chapter also shows how Kelsen critically addressed a series of political projects, movements and figures, from Lenin to Neo-jusnaturalism, passing through the supporters of corporative representation. Kelsen retained that their common objective to go beyond what he meant by real democracy was destined to create a political system characterised by heteronomy without freedom. In this respect, Kelsen developed a theory of democracy that was both a theory on how freedom and heteronomy could be reconciled and a defence of democracy against ideologically and politically connotated targets.

Vom Wesen und Wert der Demokratie is certainly Kelsen’s best-known contribution to democratic theory. To be adequately understood, however, it must be seen not as a one-shot theoretical effort, but as the epitome of a decade-long inquiry into the foundations of democracy. Indeed, the book was not written at a single stroke: it was first published in 1920 as a short essay and reappeared in 1929 in a revised and significantly expanded form. This chapter unearths the forgotten genealogy of Kelsen’s seminal work by comparing its two editions and exploring their profound and overlooked differences; by doing so, it unearths, contextualises, and unpacks the transformations, both normative and practical, that took place in Kelsen’s democratic theory between the two versions of Vom Wesen und Wert der Demokratie. A careful textual and contextual analysis shows that Kelsen’s most famous publication on democracy was a response to the multiple challenges that gradually emerged throughout the 1920s. It also reveals how Kelsen’s analysis of party democracy grew out of a careful study of actual democratic institutions and their fragile stand in the intellectual and political landscape of interwar Europe.

This chapter engages with activist texts published by DMSC. In conversations with sex worker activists and staff members of the organisation, a reading of these texts are located at their collective organisational site in Kolkata. Through my reciprocal exchanges with the members of DMSC, I draw out the conversations which inhabit their ideas and practices of collectivisation. I show that the formation of their collective thinking emerged through sex workers’ conversations with public health practitioners and state officials in mid-1990s post-liberalisation India. These conversations informed women’s collectivisation in Kolkata as sex workers, or jouno kormi, to form mutual relations between sex workers’ lives and law. The women shaped their role and responsibility in public life as jouno kormi by forming DMSC as a registered society under state-authorised rules. In doing so, they reorganised the specific hierarchical relations of gender, class and caste experienced by sex workers in Kolkata. Mediated by such alteration of hierarchies, sex workers’ relationship to the Indian state was also altered and made distinct from the criminalised status and conditions that are accorded to sex workers by the Indian state.

This chapter builds on the call for ‘Alter-Native Constitutionalism’ due to the inadequacies of South Africa’s transformative constitutionalism in achieving economic and social justice by examining how South Africa’s legal system can realise the necessary shift towards a truly common law. It therefore outlines the technical steps required to amalgamate ‘common’, ‘customary’ and ‘vernacular’ law, proposing a framework where vernacular law – reflecting the lived experiences and cultural norms of the majority population – underpins the whole legal system rather than being confined to isolated ‘cultural’ domains. Drawing on centuries-long debates among scholars of indigenous law, yet recognising that there are foundational similarities between vernacular and state law that can be leveraged, it stresses the care necessary in blending Western and Indigenous knowledges. It highlights that, for this integration to succeed, courts need to adopt a flexible, context-sensitive approach that respects vernacular law’s process-centred-based nature. The chapter thus advocates for preserving vernacular legal processes (because their consultation-based, adaptive structure is key to the law’s legitimacy), as well as vernacular law’s core content (especially around needs-based claims, multigenerational provision and protecting relational structures), as the primary means by which South Africa can achieve a genuinely transformative and common legal order.

Decidedly understudied and still unavailable to Anglophone readers, Die Staatslehre des Dante Alighieri (1905) was Kelsen’s first monograph, published one year before his doctoral graduation and six years before the release of his Hauptprobleme der Staatsrechtslehre (1911). His incisive book, which would become a reference point for the study of Dante’s political thought among German legal and political theorists, offered a comprehensive, historically situated, and critical account of the Poet’s recipe for global peace: namely, a universal and – most importantly – secular monarchy capable of bringing order into a world plagued by factionalism, institutional instability, and the competing aspirations of the two universal authorities of the Middle Ages (the Pope and the Emperor). Without falling into anachronistic readings, this chapter unearths and explores Kelsen’s first book to ask whether we can discern, in the flow of its analysis, an embryonic anticipation of notions, thoughts, and frameworks that he would articulate over the following decades. It argues that Kelsen’s later work on legal cosmopolitanism and pacifism, with its critique of the dogma of nation-state sovereignty and its emphasis on the unitary nature of the legal universe (and on the primacy of international law therein), pushed in new directions two concepts at the core of Dante’s De Monarchia: the monistic construction of a legal system free of contradictions and the creation of an impartial global authority that would solve disputes among contending parties and thus ensure lasting peace on a planetary scale. Both elements mesmerised the mind of the young Kelsen and left an enduring mark that is today worth revisiting and contextualising to recover his first steps as a political and legal theorist.

The book ends with a brief discussion of key conclusions. My four substantive chapters demonstrate different accounts of making-good-again. Read together, they show how the conduct of restitution emerges as a material question of responsibility which is asked through texts and objects in different genres, including law. Responsibility as a material practice is shown to be dynamic, contingent and contextual, shaped by personae and places.

The book begins by situating my key phrase ‘making-good-again’ through contrasting the history of the terms Wiedergutmachung and restitution. I give a brief history of understandings of responsibility and introduce my argument regarding material practice. Part two gives a brief overview of the methods used in the book, situating my approach in relation to jurisprudence and current approaches in law, humanities and their intersections.

This chapter focuses on a relatively unknown Jewish/German jurist, Dr Walter Schwarz. Schwarz returned to Berlin in the 1950s and practiced as a restitution lawyer. He was one of only a few Jewish lawyers working in Berlin at this time. Schwarz set up a legal journal, where he also published ‘glosses’ under pseudonyms. Found in a library in Berlin, I translate and analyse a selection of these glosses written by Schwarz. Going beyond the legal representation he could offer to his clients, I contend the writing of the glosses is a different method for Schwarz to take responsibility for the conduct of the restitution program. This chapter sets up the way giving an account of restitution can be an ethos – of writing, but also of conduct, of practice.

This chapter contends that writing is a practice of taking responsibility for restitution. I focus on works by W. G. Sebald, Alexander Kluge and Heimrad Bäcker. In his last speech before his death, Sebald stated ‘only in literature […] can there be a form of restitution’. I look at the way two of his novels, The Emigrants (1992) and Austerlitz (2001), are literally put together and examine how they correspond to this restitutive obligation. In addition, I examine short stories by Alexander Kluge from 1962 and 2013 and the form of their response to the NS regime. I also show how the concrete poetry of Heimrad Bäcker in his work transcript (1986) demonstrates a writing practice of fragmentation and citation in its confrontation with the NS legal archives. The works in this chapter span three different literary genres and all show a struggle with the persona of the author and the practice of writing – its possibilities and its responsibilities – in the aftermath of the NS regime and the Holocaust.