4.1 Introduction

In line with a centuries-long tradition of political thought from Niccolò Machiavelli onwards, Kelsen separated the ‘reality’ from the ‘ideal’.Footnote ¹ More precisely, his intellectual production devoted to democratic theory was underpinned by a remarkable concern for identifying and distinguishing the ideal dimensions of democracy from the real dimensions, as well as for those key concepts related to democracy, such as the significance of the people and parliamentarism.

In the first instance, I will consider Kelsen’s attitude towards Jean-Jacques Rousseau, whom he defined as ‘the most significant theorist of democracy’Footnote ²; focusing on such an aspect is essential not only because Kelsen’s distinction between real and ideal democracy originated precisely from a direct comparison with Rousseau but also because – in my opinion – the theory of real democracy that Kelsen aimed to develop assumed a subtle yet relevant ideal component that owed more to the Geneva-born philosopher than has traditionally been acknowledged. I will thus argue how just starting from the distinction between ‘ideal’ and ‘reality’, Kelsen outlined a theory of real democracy that coincided with a theory of indirect democracy, centred around the provision of full fundamental rights, political parties, parliamentarism, compromises, and respect for minorities, while having a proceduralist connotation. He put such a theory against a series of historically, politically and ideologically connotated targets he considered threats to democratic institutions and coexistence: from Lenin to reactionary forces pushing for professional representation and from the resurgence of neojusnaturalism after the end of the Second World War to Joseph Schumpeter’s ‘elitist’ and ‘competitive’ theory of democracy, passing through Eric Voegelin’s theory of representation. As such, I will try to stress how approaching the issue of ideal and real democracy in Kelsen’s work and thus his theory of real democracy also implies, in some respects, confronting the ‘weight’ of the historical and political context.

4.2 Hans Kelsen with Relation to Jean-Jacques Rousseau: Defining Ideal Democracy and Its Critique

Kelsen’s interest in Rousseau dates back a long way, as does his interest in democratic and political theory. Indeed, these interests can be traced back to the late 1910s, specifically to 1918–1919. During winter 1918, soon after the establishment of the Austrian Provisional National Assembly (1918–1919), which proclaimed the birth of the first Austrian Republic, the jurist published a series of brief articles taking a clear stance in favour of political representation and the proportional voting mechanism, which, to his eyes, both embodied relevant blueprints of modern democracy and represented a true breaking point with the Habsburg past. It is interesting to observe how such articles, published for both left wing and right wing newspapers, already contained much of the political and philosophical arguments that he would later fully develop in both editions of Vom Wesen und Wert der Demokratie: Kelsen indeed outlined a theory of democracy based on the centrality of political representation, compromises and the protection of the minority.Footnote ³ Those articles were not written within a vacuum but with an eye to the precise need to intervene in crucial issues regarding the political future of his country, such as the voting system, which was one of the most relevant elements of disputes within the National Provisional Assembly.Footnote ⁴

It was in the article of 1918, entitled Das Proportionalwahlsystem, Kelsen mentioned Rousseau, from whom he admitted having learnt that freedom and equality – considered the two core principles upon which democracy is based – could be fully realised when people obeyed laws that they had directly given themselves.Footnote ⁵ Rousseau’s name returned in Kelsen’s very first version of Vom Wesen und Wert der Demokratie, which was first a conference paper for the Wiener Juristische Gesellschaft in 1919 and then, one year later, a brief yet dense essay for the publisher Mohr Siebeck. Kelsen’s reasoning was very close to that developed in the Das Proportionalwahlsystem: he affirmed that Rousseau’s merit was in defining ‘ideal’ democracy as the realisation of full ‘self-determination’, which implied, in other words, the equally full realisation of the principles of freedom and equality in terms of the identities of the people ruling and the people being ruled. For Kelsen, the Geneva-born philosopher had thus theorised a specific form of democracy, a direct form that assumed the existence of a ‘general will’ that took shape thanks to the ‘social contract’.Footnote ⁶

My intent is not so much to discuss the validity, or lack thereof, of Kelsen’s reading of Rousseau’s democratic theory as it is to redirect attention to the fact that Kelsen, as an interpreter of Rousseau, basically identified ideal democracy with the direct form of democracy.Footnote ⁷

Kelsen argued that in considering the Rousseauian concept of (ideal) democracy, some relevant controversies arose. In the first instance, Kelsen recognised that the direct participation of all citizens in public functions did not eliminate the fact that a minority in discordance with the majority could always exist: denoting a realistic approach to politics, he stressed that an ‘opposition of interests’ was always possible. Therefore, assuming that citizens were actually free because they obeyed laws that they had given themselves, what about those (the minority) who dissented from the majority? Were they not free?Footnote ⁸ In ‘Foundations of Democracy’ (1955), Kelsen would observe that Rousseau’s escamotage for distinguishing between the ‘general will’ and ‘opinions’, according to which the will of the ‘minority’ had to be seen as part of the ‘general will’, was totally unsatisfactory.Footnote ⁹

The point is that in both editions of Vom Wesen und Wert der Demokratie, Kelsen argued that nothing like Rousseau’s ‘general will’ generated through the ‘social contract’ existed in reality.Footnote ¹⁰ His critique of the Rousseauian ‘general will’ could be redirected to the systematic and radical operation of depersonalization of key concepts such as the State, sovereignty, the will of the State, and the people who Kelsen had been developing since the early 1910s with his monumental work Die Hauptprobleme der Staatsrechtslehre (1911)Footnote ¹¹ and that could, in some respects, be ascribed to the influence of the Vienna Circle’s ‘anti-metaphysical’ logical empiricism and Sigmund Freud’s work on psychological anthropology.Footnote ¹² Additionally, Kelsen considered Rousseau’s contractualism controversial because the ‘retention of the contractual order should be subject to the persistence of everyone’s consent […] allowing anyone to abandon the community spontaneously at any time […] at this point the unresolvable conflict with social order comes clearly into view […]’. Social order, which to be such, had to exist and work independently from the consensus and will of everyone.Footnote ¹³ This implied, for Kelsen, that social order was inherently heteronomous. If it were not – that is, if social order depended on the ‘will’ of all those who are submitted to it – at any moment, everyone could decide to avoid it.Footnote ¹⁴

Although he described Rousseau as a great theorist of democracy, Kelsen distanced himself from Rousseau’s concept of ‘general will’, his attempt to reconcile the latter with the ‘opposition of interests’ and his contractualism.Footnote ¹⁵ Against them, the Austrian jurist affirmed the inevitability both of diverse, opposite interests existing realistically per se and of the heteronomous nature of social order, which implied an insuppressible dichotomy between the rulers and the ruled. Kelsen’s idea of social order as intrinsically heteronomous was coherently in line with his concept of law as a ‘social technique’, which clearly emerges in all his writings, including those devoted to political theory.Footnote ¹⁶ Particularly emblematic is his essay, dating back to 1941, significantly titled The Law as a Specific Social Technique: ‘for the word [law] refers to that specific social technique of a coercive order which consists of bringing about the desired social conduct of men through threat of a measure of coercion which is to be applied in case of contrary conduct’.Footnote ¹⁷ In turn, both the idea of an unavoidable heteronomous social order and law as a ‘social technique’ were underpinned by a fundamentally pessimistic anthropological vision. For Kelsen, in fact – as we can still read in his essay of 1941 – we need social order and law because humans are far from being ‘good by nature’.Footnote ¹⁸

Ideal democracy as direct democracy in which the principle of ‘self-determination’ can be fully realised was, for Kelsen, infeasible mainly because it conflicted with both the ‘opposition of interests’ and the objective existence of social order, which was heteronomous per se and thus implied a persisting dichotomy between the rulers and the ruled. Kelsen’s recognition of both aspects – which also assumed, in the case of heteronomy, a certain dose of anthropological pessimism – represents for me a fundamental step that he took in developing a theory of real democracy.

4.3 The Unattainability of an Ideal Democracy due to Heteronomy Being Impossible to Overcome

The incipit of the first edition of Vom Wesen und Wert der Demokratie was an accusation and a declaration of intent: although democracy had become the ‘key-word’ of the nineteenth and twentieth centuries, and for Kelsen, this noble word had gradually lost its ‘true significance’, which he wanted to re-evaluate: indeed, he denounced that the ‘notion’ of democracy was employed for ‘all possible purposes’, which often contradict each other, contributing to making it a ‘conventional phrase’.Footnote ¹⁹

In 1920, Kelsen identified Bolshevism and, notably, Lenin’s political ‘neo-communist’ theory as forces that had completely perverted the meaning of democracy. For the jurist, it was precisely the concept of the ‘proletariat dictatorship’ that represented a threat to democracy, in both theoretical and practical terms.Footnote ²⁰

His distinction between ideal and real democracy could be partly situated within the more general effort to understand what democracy was in practice (real democracy, precisely) and what it could never be, in opposition to a series of targets, among which was the claim by the Bolsheviks and Lenin that the ‘proletariat dictatorship’ was the most perfect and advanced form of democracy. The polemical reference to both is consistent if looking at Kelsen’s intellectual production. In his 1919 Vom Wesen und Wert der Demokratie and in Sozialismus und Staat (1920; 1923), Kelsen critically addressed Marx and his political theory, which, in his opinion, contained an ill-concealed anarchic tendency that he also attributed to Lenin: Kelsen argued that both Marx and Lenin shared a belief – which for him was inadmissible – in the possibility of going beyond the heteronomous character of social order once a true communist society made up of truly free and equal people was created.Footnote ²¹ This aspiration clashed – as Kelsen polemically stressed – with the profoundly oppressive nature of the Soviet system itself.Footnote ²² In 1920, Vom Wesen und Wert der Demokratie, Kelsen mentioned Lenin’s State and Revolution (1918), which he considered one of the ideological pillars of the Soviet Revolution. In the book written during his Swiss exile, Lenin defined the State in Marxist terms as an instrument for class oppression that would be eliminated through the Revolution.Footnote ²³ In particular, what interested Kelsen the most was reminding us that in the State and Revolution, the Bolshevik leader had explicitly recalled Marx’s work on The Civil War in France, devoted to the Paris Commune of 1871, recognising the Treviri philosopher’s great merit of having interpreted that experience as a form of direct democracy, based on the removal of traditional bourgeoisie institutions such as parliamentarism and bureaucracy.Footnote ²⁴

For Kelsen, when the State and Revolution were published and the Red Revolution had already flared up, Lenin looked at the Soviet system itself as an experiment of direct democracy in line with the Paris Commune. After all, as Kelsen himself stressed, the Soviets – at least at the very beginning – seemed to be animated just by the will to enact a form of direct democracy by granting ‘a short duration to the mandate, the possibility of revoking the deputies to the people in the various Soviets at any time and their consequent complete dependence on the electors’.Footnote ²⁵

However, for Kelsen, the outcome of the Soviet experiment had been completely the opposite; for him, the Soviets were comparable to ‘microparliaments’, which, along with a plethora of ‘complementary bodies’ institutionalised by the Soviet constitution of 1918, ultimately generated a ‘hypertrophy of parliamentarism’ that testified to the unfeasibility of ‘self-government’ and thus the dichotomy, which he saw as unavoidable, between the rulers and the ruled. The illusion of overcoming the latter denoted the inability to understand an important lesson from the father of modern sociology, Max Weber, according to whom ‘labour division’ and ‘competence specialization’ in a modern society all contributed to impeding the direct practice of public functions while rendering necessary the existence of a bureaucratic apparatus.Footnote ²⁶

Here, Kelsen adopted a sociological argumentation to sustain his idea of heteronomy and the inevitable division between the rulers and the ruled, which was not only discordant with Lenin’s claims but also with the Rousseauian concept of ‘self-determination’ in the form of a direct democracy. It is precisely within this kind of reasoning that I situate Kelsen’s peculiar definition of the parliament as an ‘organ of the State’, as he formulated it just in the 1920 Vom Wesen und Wert der Demokratie.Footnote ²⁷ In my opinion, by defining parliament in such terms, Kelsen sought to emphasise the impossibility of overcoming the split between the rulers and the ruled, that is, the impossibility of creating an ideal democracy. From his point of view, the Soviet system had failed in its ambition not only to establish a true ‘self-government’ but also to establish a democratic one.Footnote ²⁸ The government born from the ashes of the Romanov Empire was everything but a democracy in Kelsen’s eyes for two very precise reasons: first because equal fundamental rights were not granted and second because the Soviet constitution of 1918 had introduced a series of heavily discriminatory policies eliminating the principle of universal suffrage, which the Austrian jurist considered one of the blueprints of real and ideal democracy.Footnote ²⁹ He defined the Soviet voting mechanism not only as discriminatory, specifically to the detriment of the bourgeoisie, but also as ‘ständisch’ (class driven) because it reintroduced political discrimination on a socioeconomic basis: he used the term ‘Ständeverfassung’ to describe the Soviet constitution of 1918.Footnote ³⁰ For me, Kelsen’s critique of the ‘ständisch’ component of the Soviet voting system seems to echo the thoughts of German social-democrat Karl Kautsky – a fierce opponent of Lenin. After all, Karl Kautsky’s essay Die Diktatur des Proletariats (1918), which was a j’accuse against Lenin and the way in which his party had conquered power, was among the (actually very few) works quoted by Kelsen in the first edition of Vom Wesen und Wert der Demokratie. Kautsky himself harshly attacked the Russian version of the Marxist ‘proletariat dictatorship’ for drastically limiting freedom rights.Footnote ³¹

Additionally, I think that Kelsen’s reference to the ‘ständisch’ nature of the right to vote in Russia was perfectly in line with what he argued in his previously mentioned articles, which stressed the importance of the new Republican Austria cutting ties with its Habsburg past and, chiefly, with the ‘ständisch’ logic that had characterised the empire’s voting system. In contrast to the Soviet experiment, Kelsen thus outlined what he conceived of as real democracy: starting from the distinction between the ideal and the real through a personal interpretation of Rousseauian thought, the jurist argued why the Soviet system could not be defined as a direct democracy, and in doing so, he identified real democracy with an indirect form of government assuming the equally recognised freedom of all citizens. The true breaking point between real democracy and the Soviet system was not the principle of heteronomy and thus the split between the rulers and the ruled per se, which was present in both, but rather the peculiar form of heteronomy that took shape between the two. In Soviet Russia, heteronomy existed in the absence of freedom, which was intended as equally granted civil and political rights, and the political system in Russia was thus different from real democracy.

4.4 Heteronomy and Freedom in Real Democracy, while Subtly Approximating Ideal Democracy

Once it was established that ideal democracy as a realisation of full ‘self-determination’ in the form of a direct democracy was not feasible, a major question remained: how were freedom and heteronomy politically reconciled in real democracy? In my opinion, Kelsen developed his peculiar response through a frontal critique of one of the pillars of classical democratic theory and most importantly, of Rousseauian theory, that is, the traditional concept of the people as a unitary sovereign subject equipped with a defined will.Footnote ³²

Kelsen developed a theory of democracy without the people – at least according to the abovementioned meaning of the term – starting again from a clear-cut distinction between the ideal and real dimension. Ideally, the people were in perfect unity; in reality, and more exactly from a ‘sociological’ viewpoint, they were a plural, diversified entity in which the ‘opposition of interests’ was always possible. Most importantly, in the latter, the people could not be neutralised by theorising – as Rousseau did – an alleged ‘general will’ generated by a ‘social contract’. Only legally, that is, in normative terms, did the people constitute a unity.Footnote ³³ In my opinion, the emphasis put on the plural dimension of the people was in line with that process of depersonalization that the jurist initiated in Hauptprobleme der Staatsrechtslehre and within which his critique of the Rousseauian ‘general will’ can be partly reconducted. Additionally, I think that it was coherent with his personal background as a former citizen of the multinational Habsburg Empire, which was literally a puzzle of different ethnic stocks, languages, and religious denominations.Footnote ³⁴

However, if the people were a plural entity, how did they rule in real democracy? To me, Kelsen’s response is encapsulated in the concept of ‘integration’, which I retain is crucial for understanding his way of interpreting the reconciliation between freedom and heteronomy in real democracy. The preliminary condition for the process of integration was the existence of citizens provided with civil and political rights. However, comprehending how realistically such a process functioned implied, for Kelsen, admitting the split between citizens as ‘subjects of political rights’ and those who exercised them.Footnote ³⁵ Within the latter, Kelsen included the so-called subdifferentiations between, for example, those who exercised their right to vote influenced by the others and those who ‘give a certain direction to the formation of the state will’.Footnote ³⁶ The latter were those gathering together in political parties, which thus helped integrate real people as a plural entity. Kelsen’s judgement was clear-cut: ‘democracy can only exist if individuals group themselves according to their political affinities, to direct the general will towards their political ends, so that between the individual and the state, […] political parties find their place’.Footnote ³⁷

I find that Kelsen brought his reasoning to the most logical consequences, given the preconditions, when he finally argued that a people per se did not exist as long as citizens decided to form political parties ‘stirring up all those social forces that, in some respects, we can call the people’.Footnote ³⁸ In real democracy, social, ideal, and political pluralism did not disappear; it was not even neutralised: it was instead integrated. Kelsen’s theory of real democracy left no room for Rousseauian preestablished ‘general will’ and did not express any form of hostility towards pluralism that was accepted as a matter of fact.Footnote ³⁹ Heteronomy thus could be reconciled with freedom in the form of an indirect democracy in which, starting from the full guarantee of fundamental rights, political parties integrated real people. It was through the process of integration and thus through political parties that real people could rule. In light of this, we can understand why, for Kelsen, ‘modern democracy is entirely founded on political parties’.Footnote ⁴⁰

His defence of political parties should nevertheless be put in its proper historical context, that is, as Kelsen’s personal response to the German jurist Heinrich Triepel, who had blamed political party pluralism for expressing an atomistic view of politics that threatened the State as a unitary body.Footnote ⁴¹ Unlike Triepel, Kelsen argued that there was no original unity to protect or restore as a plural condition for integration.Footnote ⁴²

If political parties were the driving forces of the integration process, the peculiar way in which such a process took place and manifested was, for Kelsen, parliamentarism coinciding with ‘the formation of the executive will of the state through a collegial body elected by the people on the basis of universal and egalitarian suffrage, i.e., democratic, according to the principle of the majority’.Footnote ⁴³ Regarding the concepts of democracy and the people, Kelsen drew a distinction between the ideal and real meaning of parliamentarism. Regarding the former, parliamentarism allowed the people to express their political will. In this sense, parliament itself was defined as the ‘organ of the people’. Parliament thus represented the people because it represented the will of the people. This equated to, for Kelsen, justifying parliamentarism ‘from the perspective of people’s sovereignty’.Footnote ⁴⁴ He contested precisely such a definition because to him, parliamentarism was, realistically, nothing but the outcome of a compromise between the principle of freedom and the ‘division of competences’. In the second edition of Vom Wesen und Wert der Demokratie, Kelsen again recalled Weber’s sociological lesson to explain why direct democracy was materially unfeasible.Footnote ⁴⁵ He could thus affirm that ‘the more numerous associated collectivity is, the less the people as such are able to directly perform the proper creative action of the formation of a state will, and all the more they are forced, also for reasons of pure social technique, to limit themselves to creating and controlling the special body for the formation of this will’.Footnote ⁴⁶ The major subjects of such a body were political parties taking decisions on the basis of the majority principle, which – as Kelsen himself stressed – almost immediately evoked the ‘domination of the majority over the minority’.Footnote ⁴⁷ His objective instead was to prove how such domination in real democracy did not degenerate into a form of oppression, namely, the ‘tyranny of the majority’, undermining the reconciliation between freedom and heteronomy itself.Footnote ⁴⁸

‘In terms of reality’, the jurist argued that the majority did exist in relation to the minority, and both existed as the result of a complex process by means of which social and political pluralism systematically integrated first in structured political parties and, once within the parliament, in the form of a majority and a minority, whose relationship was dynamic because today’s minority could aspire to become tomorrow’s majority. In other words, he affirmed that the principle of the majority in real democracy did not correspond to a majority imposing its will (‘diktat’) on and to the detriment of the minority. For Kelsen, this embodied the ultimate essence of the whole ‘parliamentary practice’, in which the so-called principle of the majority signified not so much that decisions (laws) were made and imposed unilaterally by the majority – if it were so, for him, the effective reconciliation between freedom and heteronomy would be irremediably undermined – as such decisions resulted from a compromise between the majority and the minority dialectically confronting each other. As Kelsen himself noted, it would be more correct to define the principle of the majority acting in real democracy as the ‘majority – minority principle’.Footnote ⁴⁹ For him, the principle of the majority thus implied the existence of the minority, which was recognised as a crucial component in democratically making political decisions.Footnote ⁵⁰

To Kelsen, the more the role of the minority was politically consistent, the more the laws – binding the whole community – would be the result of a compromise with the majority rather than the unilateral expression and imposition of the latter, which allowed, for him, the softening of the unavoidable heteronomous character of social order. This sentiment reinforced Kelsen’s view of the proportional system as an effective means to provide the minority with articulated representation, strengthening its influence on the content of laws.Footnote ⁵¹

Kelsen’s reflection discussed thus far is doubly relevant to my work. Historically speaking, he was openly replying to those reactionary forces that, during the late 1920s, inside and outside Austria were pushing to replace Parliament with a professional chamber and a corporatist representation, which would have granted, according to its supporters, a more effective representation of the true interests of the people. Kelsen’s judgement was without appeal: a corporatist representation would have never been capable of instigating integration while reconciliating heteronomy with freedom just because – unlike what happened in real democracy – it rejected the principle that by virtue of being part of socioeconomic groups, citizens were subjects equipped with the same rights of freedom.Footnote ⁵² Additionally, from a theoretical point of view, I think that the way in which he delineated the majority – minority dialectic and the proportional mechanism allows critical consideration of the ideal – real democracy dichotomy. As previously seen, Kelsen drew a clear line, in contrast with Rousseau, between ideal and real democracy by stressing how heteronomy was unavoidable. However, within Kelsen’s reasoning, the minority – majority principle and the proportional granting of a resounding voice to the minority to influence the majority appeared functional in mitigating the ‘burden of heteronomy’.Footnote ⁵³ It is here that I see a sort of subtle opening towards the ideal dimension of democracy; even though the latter, in terms of the perfect realisation of the ‘self-determination’ principle, could never be fully reached, a sort of approximation seemed partly feasible within an indirect democracy centred around political parties and based on fundamental rights and parliamentarism, in which political decisions in the form of laws did not result from the mere imposition of the majority will or, even worse, of a tyrannical majority. The ‘tyranny of the majority’ concept contributes, in my opinion, to further problematising Kelsen’s theory of real democracy. In fact, I think that he showed a twofold attitude towards the ‘tyranny of the majority’: as previously observed, when addressing the meaning and functioning of parliamentarism, Kelsen greatly emphasised the intrinsic, positive aspects of the majority – minority principle to the point that he argued that since the majority could not exist without the minority, the dialectic relationship between the two, with all the consequences that this implied, was a matter of fact.Footnote ⁵⁴

Following this perspective, parliamentarism thus seemed to be a perfect antidote to the ‘tyranny of the majority’ and to assume a certain dose of trust and optimism regarding political participants’ abilities to rationally act and interact, which for me, partly underpinned the subtle opening to the ideal dimension itself that I was referring to: softening the ‘burden of heteronomy’ implied the ability to construct effective compromises that could be reached – as Kelsen stressed – through a dialectical and rational confrontation between political forces within the legislative body.Footnote ⁵⁵ However, Kelsen was far from idealising parliamentary life: he admitted the relevance of clashes of ideas and interests within the parliament while arguing that they could be solved by identifying ‘meeting points’, compromises, in fact, between political players.Footnote ⁵⁶ Nonetheless, the jurist was realistic enough to recognise that – regardless of the quality of the parliamentary mechanism – the ‘tyranny of the majority’ was potentially possible.Footnote ⁵⁷ He indeed stressed the importance of providing fundamental rights, which he defined as a ‘bulwark’ in defence of the minority as well as being firmly in favour, for example, of the proportional system as a means to provide just the minority with a robust political voice.Footnote ⁵⁸

Beyond agreeing or not agreeing with the solutions that he proposed to avoid the ‘tyranny of the majority’, his consciousness of the fact that such a peril could take shape was, for me, coherent with a certain dose of anthropological pessimism. I think that his theory of real democracy thus assumed a sort of ambivalence between optimism and pessimism, between an optimistic trust in people’s ability to rationally confront challenges on the one hand and a fundamental anthropological pessimism on the other hand. To me, the crux of the issue is not about establishing which of the two attitudes was prevalent but rather recognising that both did exist and, most importantly, how his optimistic trust in human rationality mitigated his anthropological pessimism, while the latter and his ‘polemological’ concept of political life represented two powerful antidotes against an excessive idealisation of democratic and parliamentary life.

4.5 Real Democracy as ‘Government by’

Kelsen’s last contribution to democratic theory dates to the mid 1950s when he published ‘Foundations of Democracy’, a long essay written for the U.S. journal Ethics, in which old and new polemical references were addressed.Footnote ⁵⁹

Starting again by identifying the split between ideal and real democracy, with reference to Rousseau, Kelsen further elaborated on the meaning and components of real democracy as a compromise between freedom and heteronomy.Footnote ⁶⁰ Already in his European writings, he had reflected on the way in which such a reconciliation took shape in real democracy, starting from a condition of granted fundamental rights and the recognition of real people as a plural entity. However, I think that in his U.S. essay, Kelsen focused on the dimension of the ‘how’, making it explicit that for him, real democracy was essentially a ‘political procedure’ by means of which political decisions in the form of laws binding the community were taken.Footnote ⁶¹ Similar to the past, Kelsen drew up such a concept that contradicted a series of doctrines, theories and intellectuals whose ambition was, he believed, to define democracy in terms of a ‘common good’, the existence of well-defined values or of an alleged better form of representation than the parliamentary one. Among these, Kelsen primarily identified the so-called Soviet doctrine of democracy.

Recalling his argumentation of 1920, Kelsen denounced the Soviet doctrine for being based on the ‘perverse’ identification between the ‘proletariat dictatorship’ and democracy, which was conceptually possible only if assuming democracy as being a ‘government for’, namely, as a government established to achieve a specific purpose considered objectively valid and true. In the case of Soviet doctrine, such a purpose was the realisation of the ‘proletariat’s interests’ by means of the Communist Party, assumed to be the only entity capable of correctly interpreting them.Footnote ⁶² He developed a similar reasoning against the school of neojusnaturalism that took shape during the second postwar period as a critical response to juspositivism and as an attempt to theorise a refoundation of democracy in a post-totalitarian age on the basis of well-defined values, mainly ascribable to Christian tradition.Footnote ⁶³

Kelsen argued that in different ways, neojusnaturalists shared the belief that a true democracy corresponded to a social and political system oriented around achieving the ‘common good’, attributed to Christian values. The latter, for neojusnaturalists, had to be internalised by the legal – political system itself to avoid what they considered one of the sources of totalitarianism, namely, the separation of legality and moral principles – for them ascribable just to juspositivism.Footnote ⁶⁴

I think that Kelsen saw the same forma mentis in both neojusnaturalists and the Soviets, namely, the idea that democracy was basically a ‘government for’. In his view, the ultimate meaning and legitimacy of democracy relied on both the identification of a ‘common good’ to carry out, namely, ‘proletariat interests’ for the Soviet doctrine, and the realisation of Christian values for neojusnaturalists. Kelsen’s critique followed two directions. As previously seen, his distinction between ideal and real democracy assumed the recognition of the ‘opposition of interests’ as something that could not be eliminated. In light of this, the belief in a ‘common good’ towards which the people or a whole social class tended to seem unrealistic,Footnote ⁶⁵ and the belief that human intellect could objectively determine true principles or values was likewise completely unrealistic to him.Footnote ⁶⁶ Most importantly, in the case of both the Soviet and neojusnaturalist doctrines, the issue of freedom, rights, their guarantee, and how to protect them became of secondary importance, as did the issue of ideal, political and even pluralism of values, with all the dangerous consequences that this might generate (and had actually produced in Soviet Russia, for example). In fact, to Kelsen, a dictator could depict him or herself as the one carrying out the supreme ‘common good’, using this as the ideological smokescreen for his or her absolute power, while suppressing any form of pluralism.Footnote ⁶⁷

Interestingly, he identified the same potential peril in the work of his former pupil, Eric Voegelin, specifically in his ‘doctrine of new representation’.Footnote ⁶⁸ The German political scientist – an émigré like Kelsen – distinguished between two core types of representation: the ‘elemental’ – coinciding with the political and parliamentary – and the ‘existential’, which he defined as the relationship between the ruler and society as a whole.Footnote ⁶⁹ Kelsen interpreted Voegelin’s theory of ‘existential representation’ as the expression of a fundamental indifference towards the issue of freedom. In fact, for Kelsen, once it was established that the ruler represented the whole of society, any concern about rights and their preservation became of secondary importance, as did concerns about pluralism, thus opening the doors to a potentially authoritarian regime.Footnote ⁷⁰

As in reality, Kelsen believed that if there were no people who existed as a unitary subject equipped with a defined will, then in reality, no ‘common good’ towards which the people leaned – as instead theorised by Rousseau himselfFootnote ⁷¹ – existed either. ‘Common good’ appeared to him to be a smokescreen for authoritarian purposes. Conversely, a just democracy as a ‘government by’ served the principle of freedom and the reconciliation between the latter and heteronomy much better than democracy as a ‘government for’: it did not untenably assume the existence of a ‘common good’ but rather a recognition of equal fundamental rights among citizens, specifically the right to vote, which made the electoral process and thus the selection of the rulers by the ruled possible. Indeed, assuming the peculiar perspective of democracy as a ‘government by’, rulers were not rulers because they possessed some ‘divine right’ or because they and only they knew what the ‘common good’ or the ‘objective interests’ of a social class were. They were rulers because they were democratically elected. This implied that rulers were responsible for their decisions and, most importantly, that the ruled could aspire to become the rulers of tomorrow. From Kelsen’s perspective, the reconciliation between freedom and heteronomy thus took the shape of a fluid relationship between the rulers and the ruled.

The procedural connotation of Kelsen’s theory of real democracy seems to bring him closer to Joseph A. Schumpeter, who was friends with Kelsen and, most importantly, one of the polemical references of ‘Foundations of Democracy’. Immediately, some interesting similarities between the two Austrians emerge: first, both clearly distinguished between real and ideal democracy. For both, addressing the ideal meaning of democracy implied a comparison with Rousseau, who, for Schumpeter, was one of the champions of the ‘classical theory of democracy’ based on the idea of the people as a unitary subject, equipped with a will and oriented towards the ‘common good’. Similar to Kelsen, Schumpeter took the distance from both concepts in the popular Section 4.4 of Capitalism, Socialism and Democracy (1942), in which he argued that a ‘common good’ objectively determined and rationally conceivable by the people could not exist in a changing world subject to ‘the habits of the bourgeoisie’.Footnote ⁷²

In my opinion, the critique of the existence of a ‘common good’ made up, in both Kelsen’s and Schumpeter’s work, one of the conceptual premises underpinning their common definition of real democracy in terms of ‘how’ rather than ‘what’. Like the jurist, Schumpeter developed a procedural theory of real democracy and identified the dynamic relationship between the rulers and the ruled, in which the former were selected and could be ‘evicted’ by the latter as a crucial component of real democracy.Footnote ⁷³ However, in ‘Foundations of Democracy’, Kelsen expressed a critical attitude towards Schumpeter’s political theory, which makes it relevant, I believe, to reflect again on the particular interplay between the ideal – real dimension of democracy in Kelsen’s work. The main element of controversy was Schumpeter’s procedural definition of real democracy as ‘that institutional arrangement for arriving at political decisions in which the people acquired the power to decide by means of competitive struggle for the people’s vote’.Footnote ⁷⁴

Schumpeter followed the critique of the people as a unitary entity – which he shared with the jurist – to the most radical consequences of the concept: to him, there was neither democracy as ‘government for the people’ nor democracy as ‘government by the people’. There was rather democracy as ‘government by competition’. In light of this, the economist and political scientist considered free elections and the electoral mechanism itself as functional in enhancing ‘political competition’. Kelsen blamed Schumpeter for overestimating the importance of ‘political competition’, which for him instead ceased to be quite so crucial after the elections.Footnote ⁷⁵

In other words, both thinkers attributed to real democracy a procedural connotation; both stressed that in real democracy, the relationship between the rulers and the ruled was determined through elections that allowed the latter to choose the former. However, for me, the similarities stop here. Schumpeter argued that political leaders competed for the elector’s vote and that the whole electoral mechanism was functional to such competition. Real democracy was thus a political procedure whose scope included selecting leaders.Footnote ⁷⁶ In this sense, Schumpeter’s proceduralism had a declared and strong ‘elitist’ connotation that was absent in the work of the Austrian jurist.Footnote ⁷⁷ In contrast, in Kelsen’s view, real democracy was a political procedure capable of reconciling heteronomy with freedom, in some respects while reducing the ‘burden’ of heteronomy and thus subtly opening up a road to ideal democracy, thanks to, among other things, the peculiar dialectic between the majority and minority within the parliament, based on compromises.

The distance between Kelsen’s proceduralist view of real democracy and Schumpeter’s view, here outlined using some of its components, also implied a different approach to Rousseau. For the Austrian economist, the Swiss philosopher and his work, as representative of the ‘classical doctrine of democracy’, had to be totally rejected.Footnote ⁷⁸ Conversely, Kelsen’s judgement was much less one-sided and peremptory. Although, as I have tried to stress, Kelsen’s theory of real democracy was distant from the Rousseauian theory in many crucial aspects, he considered the father of the contract social as the one who – better than anybody else – had defined the ideal of democratic freedom as ‘self-determination’. The fact that, for Kelsen, the full realisation of ‘self-determination’ in the form of a direct democracy could not be fully achieved did not diminish the great importance of Rousseau’s philosophical work. Kelsen’s concern for softening the ‘burden of heteronomy’, which I interpret as a sort of tendency towards the ideal dimension of democracy, to me represents an admission of his attentive (although critical) consideration of Rousseau’s theory of democracy itself.

4.6 Conclusion

This chapter focused on Hans Kelsen’s democratic theory through the distinction that he established between ideal and real democracy. I have shown that such a distinction originated from a direct comparison with Jean-Jacques Rousseau, through which Kelsen concluded that ideal democracy as the attainment of full political freedom in terms of self-determination and thus as direct democracy was infeasible: therefore, real democracy was inevitably based on the dichotomy between the rulers and the ruled. Once this was argued, explaining the meaning and function of real democracy for Kelsen implied understanding how heteronomy, being impossible to overcome, could reconcile with the principle of freedom. By discerning the ideal dimension from the real dimension of key concepts such as the people and parliamentarism as well as by criticising the concept of ‘common good’, Kelsen stated that such reconciliation was made possible in the form of a ‘government by’ the people, centred around freedom rights, political parties, parliamentarism, respect of minorities, and compromises. However, I have stressed how, in some crucial respects, Kelsen’s theory of real democracy maintained a sort of subtle opening to an ideal dimension – in terms of softening the ‘burden of heteronomy’ – whose recognition allows us to further problematise his concept of democracy and his attitude towards Rousseau himself.

While discussing how Kelsen developed a theory of real democracy starting from the distinction between the ideal and the real, I have argued and stressed how such a theory stood in a sort of critical ‘dialogue’ with a series of ideological and political projects and visions related to precise historical and political changes and figures. From Kelsen’s viewpoint, what brought together all these projects and visions was both their critical – not to say hostile – attitude towards parliamentary democracy. In light of the serious challenge that, for Kelsen, they represented democracy and its founding principles, I think that the jurist sketched out the difference between ideal and real democracy to further reflect on what democracy was in practice and what it could never be or become if it wanted to preserve itself.

Thus, I retain that Kelsen’s distinction between ideal and real democracy and his theory of real democracy were also functional to argue that all those theories and political projects that he addressed in his works and that criticised or wanted to go beyond real democracy, as ‘government by’, based on fundamental rights, political parties, parliamentarism and the dialectic between the majority and the minority, were doomed, in his opinion, to create a political system marked by heteronomy without freedom and thus immeasurably distant not only from real but even from ideal democracy itself. In this respect, starting from the distinction between ideal and real democracy, Kelsen developed a theory of real democracy that was, at the same time, a theory of democracy as a balance between heteronomy and freedom and a defence of it against politically and ideologically connotated targets.