5.1 Introduction

The inclusion of political parties in the theory of government revealed a split among scholars based on whether they evaluated parties from the perspective of state authority or the political freedom of citizens. This split, which marks the history of the twentieth century, overlapped with the dualism between autocracy and democracy, which Hans Kelsen placed at the core of his political thought and considered in terms of the impact on parties.Footnote ² Hostility towards parties has never ceased; revisiting Kelsen’s ideas is particularly significant today when critiques of parties are meeting the revival of the myth of People as One, which Kelsen devoted much of his work as a legal scholar and political theorist to opposing.Footnote ³ Kelsen addressed the issue of parties at two significant moments in European history, when the constitutional government was succumbing to the assault of autocracy (Fascism and Nazism) and revolutionary experimentations (Bolshevism) and again when parties regained momentum at the end of World War Two.Footnote ⁴ These were two very different circumstances: in the former, the issue was opposing and resisting monocratic dictatorship; in the latter, the issue was defending party pluralism within liberal democracy itself. Kelsen never resorted to ‘militant democracy’ or thought that an electoral majority could legitimately exclude undesirable parties from the electoral process to protect democracy.Footnote ⁵ The reason was both theoretical and empirical. As a ‘formalist’, Kelsen kept substantive politics out of procedural politics, which he considered normative or ‘not metaphysical’ because its task was channelling public doing and not achieving certain specific goals; the sole purpose of the rules of the game was the exercise and reproduction over time of political freedom. Therefore, he believed that pluralism, legal equality, and individual liberties were non-negotiable norms of democracy.Footnote ⁶

Concerning those norms, he listed three elements of democracy: the spirit of compromise, the rule of majority, and the method of universal suffrage. It is true, as Sandrine Baume writes in this volume, that Kelsen did not ascribe pedagogical aims to democratic procedures. However, in a pragmatic vein, Kelsen was confident that the relative nature that elections impress in any political victory could neutralise recalcitrant orthodoxies across time. In 1955, concluding an in-depth analysis of the doctrinal apparatuses of the two parties most reluctant to accept majority relativism, Catholics and Marxists, he made clear that excluding hazardous parties ex ante rested on an assumption that was in and of itself ideological: that people’s beliefs remain unchanged. He held parliamentarianism as compatible with socialism in theory as it was with capitalism and thought first that the challenge for parties was engaging in political competition and impacting society according to their visions and second that all parties had to enjoy the ‘equal rights of expression and participation’ to determine the general direction of the country.Footnote ⁷ These were the stabilising promises of parliamentary democracy, the strength of which seemed to be proportional to the number of parties participating in the game of majority/opposition and the number of parties that agreed to accept the relativity of their electoral victory.Footnote ⁸ To a legal positivist such as Kelsen, the ideological reasons why a liberal democratic party would not accept the ‘majority principle’ were external to the practicing of the democratic procedures, which they simply asked to be obeyed.Footnote ⁹ As we shall see below, he defended parties as a basic expression of political freedom; thus, rather than excluding the adversaries of liberal democracy from electoral competition, he bet on the transformative capacity of the procedures for the behaviour of the participants and accepted the risk associated with it.Footnote ¹⁰ His wager was not meaningless, nor was it an ethical desideratum because political freedom imports not only that parties influence society but also the other way around; so ideological parties rarely remain the same once they accept the logic of parliamentary politics; they cannot avoid changes in their ideology, which predictably result from their public interaction with other parties and ideas. The trajectory of the Italian Communist Party from revolutionary to parliamentary after the Second World War proves Kelsen right.

Underlying Kelsen’s belief in the transformative ability of parliamentary/party politics was the idea that freedom would produce a desubstantialisation of politics, starting with the categories of sovereignty and the people, which were the most resistant to secularisation; as in a circular system, procedures and rules gained consensus and force by being practiced. His formalistic rendering of democracy displeased almost all of his contemporaries and continued to do so.Footnote ¹¹ In effect, Kelsen’s democratic formalism somehow compromised the normative potential of his project. As we shall see at the end of the chapter, in commenting on his interpretation of political representation, Kelsen situated representation within the juristic model with the clause of the imperative mandate attached so that he predictably concluded that representative democracy remains essentially an ideological concept, although parties (which are essential to this regime) can limit the autonomy of the elected and sometimes activate a political mandate. Within Kelsen’s formalistic model, representative democracy remained a hybrid of normativity and functionalism, and a political mandate remains a pure ideological desideratum.

5.2 Democracy as a Theory of Freedom

Kelsen discussed political parties as part of his theory of democracy as comprising freedom and a parliamentary government. Starting with freedom was a must because it made parties not simply functional to the representative government but in fact the hallmark of democracy. To paraphrase the title of his 1929 essay, parties are the ‘essence’ of democracy because democracy starts with citizens being free to publicly express their views and associate accordingly, and parties have a ‘value’ insofar as the efficacy of parliamentary government depends mostly on them. Through parties, citizens renounce secrecy and publicly reveal their political views to the world; they show trust in their fellow citizens’ tolerance, promise to reject clandestine plotting to achieve power, and associate in ways that give effectiveness to their projects and interests in shaping and conditioning the government.

Parties reveal the positive side of political conflict because while they testify to the overcoming of ‘anarchic’ individualism, as we shall see below, they also prove that there will never be a complete identification of individuals with the collectives they are a part of, be they the state or a party. Citizens move freely in and out of parties, and while they cannot do the same with the state, they are not vital to its integrity as the limbs of a body are. Freedom makes political parties change along with changes in citizens’ beliefs and needs. Although not a political sociologist and very suspicious of nonformal approaches to the legal and political order, Kelsen suggested that parties change their physiognomy and structure to better fulfil their representative function, although they persist as long as democracy persists. In other words, parties are the most distinctive form that extra-institutional politics takes in a democracy, whatever their specific identity. This means that to Kelsen, politics is deeply connected to dissent and partisanship, and for this reason, formal procedures are needed that allow the parties to be the only voluntary associations that connect the extra-institutional domain to government activity. One might say that to Kelsen, parties and democracy live and die together. Criticisms of political parties as organisational forms (which were as common in Kelsen’s time as they are today) constitute ‘an ideologically veiled resistance to the realization of democracy itself […]. Democracy is only feasible if, to influence the will of society, individuals integrate themselves into associations based on their various political goals. Collective bodies, which unite the common interests of their individual members as political parties, must come to mediate between the individual and the state’.Footnote ¹²

In conclusion, parties are not solely useful to the functioning of parliamentary democracy; moreover, they are a condition of political legitimacy in a legal order that achieves civil peace through the exercise of freedom; parties are neither a threat to state unity nor a mark of imperfection of the public reason or biases. Kelsen’s defence of parties and party pluralism was intertwined with his defence of political disagreement, both of which resulted in a defence of parliamentary democracy, wherein parties play two roles: they facilitate deliberation and decision, and they limit each other’s propensity towards absolute power, as Weber explained in his essay on ‘Parliament and Government in Germany’.Footnote ¹³ Parliament and parties complement and limit each other.Footnote ¹⁴

5.3 Political Freedom

Kelsen, writing in an age of rampant fascism, included the discourse on parties in the binary frame he adopted to define political regimes – democracy versus autocracy – and in this sense, he made the parties a case of freedom.Footnote ¹⁵ The trajectory of his argument followed two interrelated avenues, one about the definition of democracy as freedom and one about the definition of the people, which are the topics of the first two chapters of his The Essence and Value of Democracy.

Starting with freedom rather than popular sovereignty was a radical move and a departure from the tendency in the political thinking of his time. Kelsen described democracy as a movement ‘against’ something; he situated its roots in autonomia or the absence of unequal authority, whether of the one, the few, or the very many. Much like Immanuel Kant, Kelsen approached freedom as the opposite of domination yet not equivalent to anarchical independence. Moreover, he based freedom on a feeling of equality that is common to the many and opposite of sameness; this was the preamble to his further opposition to the identification of democracy with equality in contrast to liberty, a view that ran throughout the eighteenth and nineteenth centuries and set the tone for the most resilient criticism of democracy in his time.Footnote ¹⁶ The link between liberalism and democracy that Kelsen defended throughout his life came from the Kantian theory that equality is an essential condition of freedom and that representative government is the actualisation of their intertwining insofar as it is a government that dereifies sovereignty.Footnote ¹⁷

To Kelsen, no social authority can ever exist that is endowed with a natural legitimacy to command obedience, and no sovereignty can ever exist that can legitimately claim the incorporation of individuals. Democracy is conflictual in its root because it is anarchical in its origins, and yet as a form of government, it generates a legal order that is unavoidably heteronomous, in which no citizen obeys only the laws she agrees with. Democracy is never going to solve the problem of the verticality of power, although its legal order is neither autocratic nor hierarchical – but the problem remains: democracy as a government generates and entails obedience, yet the principle of democracy is anarchic independence and can never make obedience fully acceptable. This dynamic is the ‘essence’ of democracy (‘essence’ meaning the distinctive nature that belongs only to it) and conditions the way institutions are constructed so that, for instance, parliamentarianism looks more consistent with it than presidentialism.Footnote ¹⁸ How can one conceive of the transition from the anarchical foundation of democracy to democracy as a form of government or from ‘natural’ freedom or freedom as ‘independence’ (in Jean-Jacques Rousseau’s terminology in the Second Discourse) to ‘social’ freedom as interdependent freedom?

To answer this question, it might be useful to revisit Carl Schmitt’s and Kelsen’s interpretation of Rousseau upon which their divergent conceptions of democracy are based. Schmitt wanted to zero in on the individualistic foundation of the state and made Rousseau the leading proponent of the theory of the People as One, or a collective sovereign made of absolutely equal members in which consensus and embodiment are the rules of legitimacy.Footnote ¹⁹ On the other hand, Kelsen seized upon Rousseau’s theory of autonomy but removed its residue of natural freedom that presocial individuals had enjoyed before the social contract was formed; he thus proposed a radically artificial and legal interpretation of political freedom, which allowed him to justify the construction of (and the need for) democratic authority. The roles of the individual citizen and freedom are the points of division between Kelsen’s and Schmitt’s interpretations of Rousseau. Anti-individualism was the driving force of Schmitt’s critique of representative democracy and made any form of collaboration between liberalism and democracy impossible if not irrational, with the implication that a democratic representation had to adopt, to be consistent with the collective sovereign, forms of identification other than parties. The redefinition of representation as embodiment versus an electoral mandate was Schmitt’s answer to the threat of transporting social conflicts within the state, a threat that parties exemplified. In contrast, Kelsen consulted Rousseau to look for a theory of political freedom that, once it was denaturalised, could be adapted to democratic government.

Kelsen’s reading of Rousseau closely recalls Kant’s reading, as both authors argued that Rousseau reached an incomplete artificialism insofar as he extended to the political order the same anarchic freedom that existed in the natural order, with the consequence that his res publica had to always presume a perfect correspondence between individual will and the collective will.Footnote ²⁰ The main ‘question of the confrontation [between Rousseau and Kelsen] concerns the conception of freedom as individual autonomy. It is a matter of converting into a principle of the democratic rule of law the idea that the law has universal validity only if it is produced by those who must obey it’.Footnote ²¹ This is political freedom. Political freedom is not an adaptation of natural freedom to the collective (which is wholly artificial) but is a new kind of freedom that relies on the verticality of power (legal order), which is thus permanently under distress and exposed to conflict. Political freedom mirrors the fact of the tension rather than the ideal of the identification of the individuals’ will with the collective will or of freedom with authority. This was quite a radical departure from Rousseau and towards Kant.

Henceforth, the criterion ruling the state cannot be the achievement or the defence of the ontological identity of the will of the agent(s) (be it monarchical or collective) but is the approximation to the goal of making all citizens equally free as the legal system proclaims – this is the criterion that makes political conflict legitimate, not only realistically possible or functional, and that simultaneously moderates it. It is also the pillar of Kelsen’s procedural conception of democracy. As clarified by Norberto Bobbio, Kelsen believed that legal norms, unlike other norms (i.e., moral), once they are posed necessarily acquire a heteronomous structure because they hold fast even if they are not internalised by citizens. In other words, an individual’s political obligation persists even if he or she dissents or considers a command unjust. Autonomy (the democratic ideal of freedom) is possible only as the activity of an ‘autonomous state’, which guarantees not the absence of heteronomy but the principle that should heteronomy occur, it must be authorised by the citizens.Footnote ²² This requires a unified criterion for the control of all political acts, a criterion that Kelsen derived from another of Rousseau’s ideas – that of bringing the law back to a single decision-making centre. Kelsen proposed the centrality of parliament, as Rousseau did with the assembly of citizens. We will see in the last part of the chapter the impact this move had on Kelsen’s theory of representative democracy.

Thus, political freedom is ingrained in democracy as a process of the denaturalisation of freedom or the artificial creation of a new world, that of the law and institutions: this is where anarchical freedom ‘becomes democratic freedom’.Footnote ²³ This is where limitations to freedom are inscribed, although a question remains regarding which ‘limitations’ exist. Artificial freedom comes with limitations, for anthropological and social reasons as well: because we cannot want everything we desire; because we are ‘forced’ to make decisions since our nature is not programmed to activate intelligent instinctive behaviours; because every time we choose, we give up one thing for something else, and in doing so we cross paths with others who, like us, perhaps choose the same things, so any action to be free concretely presumes coordination or direction – that is, the law; and because our ability to make choices requires limited government and rulers who respect the rules that limit it. ‘Social’ freedom occurs along with not aside from other persons – it exists neither within an organic union nor in an atomistic/anarchic one, yet the presence of others requires laws and imposes obedience – this is the circular democratic movement of freedom and obedience, of autonomy and government. If ‘artificial’ freedom comes with limitations, it is strong and guarded to the extent that a political community succeeds in translating it into legal norms or limitations that are not arbitrary and that ideally coincide as closely as possible with those that we would give to ourselves. This is the mental experiment that underpins democratic freedom: If I could write the laws, what limitations would I give myself such that I would allow myself to live civilly and in peace with others? A democratic constitution is the actualisation of this kind of mental reasoning that all citizens are capable of making and understanding. We might say that voting or participating in the making of the law is exchanged for obedience. As an exchange, it is a form of compromise. The politics of compromise that qualify party democracy are ingrained in the foundation of democratic society.Footnote ²⁴

In circumscribing obedience to never exclude the possibility of disagreement, Kelsen’s idea of democracy as freedom defined the space of conflict: ‘To be politically free means to be subjected to a will, which is not, however, a foreign, but rather one’s own will. The fundamental conflict underlying forms of state and society is therefore established’.Footnote ²⁵ Democracy’s anti-domination origins make it the site of a permanent tension between the ‘ideal’ and the ‘real’ and the theatre of an ever-present autocratic risk. This struggle never ends, not even with a written constitution, yet it persists under legal means, and this is primed to accomplish a notable change because, while these norms inhibit conclusive decisions, they orient politics towards a practice of compromise. Antagonism among citizens regarding their interests and opinions is internal to democracy, just as parties are. It is fair to say that to Kelsen, political disagreement looks like a continuation of the struggle against domination (or autocracy) within the system of rules that democracy establishes. Thus, the form of the political struggle marks the character of a regime: persistent pluralism and party conflict in the case of democracy and overcoming pluralism and whole-ism in the case of autocracy.

In summary, the distinction between ideal freedom and legal/limited freedom is the pillar of Kelsen’s vision of democracy, which underlies the permanent search for a compromise between the aspiration for perfect self-determination and the existence of the social order. The two instances where this tension shows itself are the following: in the ‘majority principle’, which is one of the most important conditions of democracy, as it impresses relativity to political agency and electoral victory; and in the parliament as a limit to perfect political self-determination of the people: ‘Parliamentary representation shows how impossible direct democracy is but also how “fictitious” is the idea – popular in all democratic systems – that the parliament has to be understood as the “organ of the people”’.Footnote ²⁶

5.4 The People

As said, to Kelsen, the political order cannot be apprehended within the logic of a perfect correspondence between the individuals and the people (principle of unanimity). It is the logic of ‘mere approximation’ of the political order to the ‘original idea of freedom’ that better renders the meaning of the principle of majority. ‘Approximation’ entails uncertainty, fallibility, and disagreement and selects the majority principle as the most consistent because it excludes the aspiration to an existential unification of the individual wills composing the people – this is the premise of another unsurmountable difference between Kelsen and Schmitt. In Schmitt’s logic of unity as sameness, the approximation of the political system tended towards the identification of the individual’s will with the will of the collective, with the majority principle being the second best. Kelsen thought, however, that such logic would make democracy purely instrumental: ‘A majority principle derived from the idea of equality would have the mechanical, even senseless, character attributed to it by the autocratic critique of democracy. It would simply be the poorly formalized expression of the experiential fact that the many are stronger than the few’.Footnote ²⁷

For Kelsen, the majority principle served political freedom because it sanctioned the end of any remnant of ‘herd logic’; it was not a pure show of strength but a criterion of decision-making in a context of permanent pluralism that respected the dissonance between the will of the individual and the will of the political order. In making freedom the normative premise of the legal and political order, Kelsen positioned himself against a sovereignty-centred conception of democracy, a metaphysical idea or a ‘mysterious collective will’ that would justify the adaptation to democracy of the same autocratic and hierarchical authority that had previously belonged to absolute monarchy, before the parliamentary revolution of the seventeenth century. Democracy entailed applying the logic of approximation to self-government and endorsing the logic of dissent: any personification of the state (whether individual or collective) would be autocratic because any approximation towards a perfect embodiment of the individuals within the state would need to expel conflict and dissent along with political pluralism. Parties can be valued concerning this anti-whole-ism, as they configure a kind of democracy whose main question is not ‘how to overcome disunion’ but ‘how to protect the equal right to express disagreement’. Hence, whereas Schmitt approached parties’ conflict from the perspective of a good (the People One) that was, in principle, antithetical to it, Kelsen approached it from a perspective that was already predisposed towards parts of or placed within a notion of popular sovereignty that was ‘fictional’. Political conflict partook of a postmetaphysical conception of ‘the People’.

Kelsen deemed the metaphysical fantasy of a ‘collective person’ manifested in people’s consent as a sign of the inability of political theorists to make sense of political authority without resorting to an anthropomorphic imagination of divinity.Footnote ²⁸ His proceduralism was meant to eliminate any reification of power, which he deemed far from innocent: the ‘fictitious isolation’ of the decision maker so that he or she appears to personify a collective is a ruse to give ruler(s) an unchecked authority as ‘organs of a hypostatized ruling Subject’.Footnote ²⁹ All names of collective entities were indications of the ‘ideological’ justification of autocratic solutions; they were names of ‘mysterious’ entities as miraculous as the Holy Spirit in Christian theology. However, ‘the People’ does not exist as a real entity; it is ‘a juridical fiction’ that has the power of creating the illusion that a central decision maker must exist and that must be created for the law to have an undisputable mark of command. The transformation that leads from the ideal to the real conception of the ‘People is […] no less profound than the metamorphosis undergone by the idea of “freedom”.’Footnote ³⁰ It is actually in the chapter on ‘the People’ that political parties find their rationale as alternatives to plebiscitary forms of representation.

Thus, the destiny of democracy is implied in the way ‘the People’ is conceived. Within the logic of the People One, the distinctiveness of individual citizens, their suffrage, their right of association, pluralism, and conflict are phantoms, diseases, or at best, strategic devices for a superior goal; ‘the masses’ serve as an argument for excluding from the public sphere all those parts of the citizenry that question that unity. Within this logic, the only conflict would be, in effect, a warlike antagonism (friend/enemy) that could end only with the expulsion of political pluralism and the reassertion of undivided unity. Citizenship would be the name of an existential belonging in the state and a legal indication of the subjection to the law but not a practice of political freedom.Footnote ³¹

Kelsen was, much more so than Schmitt, the descendant of Thomas Hobbes in this sense. Recall that in De Cive, Hobbes proposed a sort of phenomenology of state formation from a condition of total war of all against all to conflict between groups of individuals for the sake of self-protection. In escaping the state of nature, the first social bond emerged when some individuals began looking for companions; from that moment onwards, there was no longer the war of all against all but rather conflicts between groups, which were not existential unions of identical beings but artificial associations always open to change and instability (hence the need to stabilise the process using absolute sovereignty). In De Cive, individuals sought help and found it by associating among themselves to better resist others; when that happened, the war of all against all was over, and conflict started becoming a form of order itself, although imperfect, precarious, and not absolute. War and conflict represented two different stages of order, the first natural and the second artificial (much like Kelsen proposed in his reading of Rousseau). Although Hobbes would never derive the justification of the Leviathan from parties or groups, he theorised antagonism/association as the pillar of the artificial society, according to an ‘unsociable sociability’ kind of tension of which Kant would speak later on. This was the theoretical horizon of Kelsen’s justification of political parties: ‘Modern democracy virtually rests on political parties, whose importance grows the more the democratic principle is realized in practice’.Footnote ³²

5.5 Political Parties

Thus, Kelsen made parties the expression of freedom and political conflict the condition of stability. He thought of democracy in its modern form as a political system characterised by the formation of a ‘common will’ from ‘the free play of different groups of interests constituted by political parties’.Footnote ³³ Parties are a form of disunion that engages citizens in defining the political direction they want to impress upon the government (‘common will’), and in doing so, they stabilise both the state and their political freedom. The link between democracy and freedom that parties seal can be demonstrated in reverse by dictatorial reactions, whose first move is the suppression of party pluralism and freedom of association and expression along with ‘the clear separation, characteristic for democracy, between the organization of the parties and the organization of the state’.Footnote ³⁴ On this crucial point, it may be useful to revisit once again his distance from Schmitt.

For Schmitt, party democracy was a confirmation of the failure of the democratisation of parliamentary government because while parties were necessary to organise the mass of individuals included through universal suffrage, they also subjugated the state to the logic of interests and compromise; in short, parties made democracy fully liberal. To reassert the authority of the state, it was then necessary to make parties unnecessary using institutional representation that embodied society rather than giving voice to its parts. It was necessary to disrupt the dynamics of partisanship ex ante. Although Schmitt is considered the modern theorist who put conflict at the centre of politics, his idea of conflict primarily concerned the sovereign’s declaration of enmity/friendship against any threat from society that endangers the unity of the state. Schmitt’s interpretation of Niccolò Machiavelli is perhaps a litmus test to grasp the instrumental role of conflict in his theory of politics. As argued by Carlo Galli, Schmitt’s interpretation of Machiavelli remained exclusively that of a theorist of absolutism and the superior power of the state, not of conflict.Footnote ³⁵ Schmitt did not have a theory of politics as conflict, although he certainly had a theory of politics as a war by other means. To paraphrase Nicole Loraux, Schmitt fell victim to the ‘vertigo of the One’ and failed to understand the value of political freedom, a term that did not figure in his vocabulary as a principle, a condition of democracy, or a fact of politics, which for him was essentially a state affair.Footnote ³⁶ Concerning democracy, Schmitt was not unlike an unreformed liberal of the nineteenth century, hostile to a democratic trajectory of representation due to concerns about the decline of state authority. Moreover, he denied that democracy could be adapted to parliament because he thought that sovereignty could not tolerate the limitations of power implicit in electoral representation. Building on Jean Bodin’s conception of sovereignty, Schmitt thought of parliament as an anti-absolutist strategy concocted by the ‘aristocratic principle’ of election against the will of the monarch. Elections could not be adapted to democracy without destroying it because the individualistic composition of the demos required more centralised unity than ever, while elections and representation were genuinely inimical to ‘the principle of identity’.Footnote ³⁷ Concerning both liberal parliamentarianism and the principle of sovereignty, party democracy was an oxymoron.Footnote ³⁸ In the end, representative government could not even be made in ‘a subcategory of democracy’ because elections would make the sovereign the theatre of a restless competition that would tear it apart.Footnote ³⁹ Schmitt was confident that the masses, as equals, could not be represented by parties; they could be represented only by a leader who embodied them all, beyond their diversity of opinions and interests. The alternatives were thus clear: either acclamation or secret ballot; either plebiscite or elections; and either Caesarism/populism or party/parliamentary democracy. This approach to political parties certainly signals an ‘enormous turn’ in the conception of politics, the state, and democracy.Footnote ⁴⁰ This is the context we should refer to fully appreciate Kelsen’s contributions.

Kelsen’s treatment of parties was intertwined with representation and was first summarised in a few dense and rich pages of his 1929 essay, most of them written as a kind of dialogue/discussion with some contemporary leading critics of party democracy. It may be useful to extract from his arguments some features that can help us grasp the meaning, functions, and value of the political parties in his theory of democracy.

1. (1) Political parties are ‘the subterranean springs feeding a river’ that unite scattered opinions and channel them towards the ‘common will’ of the country (laws) as a collective and pluralistic enterprise. Parties are voluntary associations that set people in motion outside state institutions – not all people, however, but a minority who actively feel the desire to participate. As associations active in the sphere of opinion, parties have an impact on politics whose intensity is comparably greater than might be expected from the number of citizens involved as militants. In forming the nation’s ‘common will’, their voice reverberates beyond their borders. Kelsen intuited that because of their role in government, the development of democracy would have required constitutionalising them: ‘attempts to anchor political parties constitutionally and to fashion them legally into what they factually already are – into organs of government – are certainly understandable’.Footnote ⁴¹ Since parties, like all associations, produce a verticality of responsibilities, an institutional system is needed that makes the legal order of the state permanently alert to the struggle for power launched by the leaders of parties. In 1942, Elmer E. Schattschneider stressed the tension between the rule of law and the parties and showed how the constitutional system was conceived as an anti-party strategy that parties thus constantly challenge.Footnote ⁴² However, the tension between the institutional order and political parties is constitutive of democracy rather than a defect in it, so any plan to interfere with the internal life of the parties using the law would be doomed to fail if a multiparty system is to persist and freedom of association is to be guaranteed. Thus, to Kelsen, no law could command parties to protect themselves from the oligarchic tendency they produce: this would be the task of the militants; the liberty that citizens have to adhere to or leave a party is the only valid containment of the ‘natural law of oligarchy’. Kelsen was reasonably anxious for the ‘amorphous’ structure of the parties, which he deemed, alongside Robert Michels, organisations with ‘an explicitly aristocratic-autocratic character’; he lamented that ‘the inner workings of the party offer the individual only a limited degree of democratic self-determination’,Footnote ⁴³ but he did not ascribe to parties only a negative role, as we shall see below.

2. (2) Parties are necessary to amend the structural weakness of citizens; hence, limiting or repressing the formation of parties would mean damaging and ultimately opposing democracy – the ideological claim that ‘political party and the state stand in contradiction to one another are nothing more than thinly disguised attacks on democracy’.Footnote ⁴⁴ This entails, first, that mono-party democracy is nonsense, as parties are by definition ‘parts’, and there is thus always more than one party, unless one party is made to coincide with the whole, as in the case of fascism: ‘A democratic state is necessarily and unavoidably a multiparty’.Footnote ⁴⁵ Parties’ plurality is both a sign of political freedom and the empirical expression of the power of citizens, who, regardless of the political rights they enjoy by law, as ‘isolated beings’ have no ‘real’ political existence, as they cannot exercise any influence on the government.

3. (3) Parties educate citizens to politicise their interests to the extent that they are not single-issue associations and moderate the exclusivity of special interests. This is a crucial point that Kelsen opposed to Heinrich Triepel, who challenged the idea of party politics with the argument that their extraconstitutional identity made them vehicles of social ‘egoisms’ ready to conquer and subdue the state. We find here Kelsen’s defence of his ‘formalism’ against the conception of the ethical state, an ideological move that, in the name of the ‘impersonal’ power of the law, relied upon traditional groups and interests as a barrier against the political forces that the enlarged suffrage brought to the state.Footnote ⁴⁶ In a burst of Kantianism, Kelsen reminded his critics that the ethical state doctrine would entail, in effect, giving the appearance of ‘formality’ to a metaphysical view of the nation that admitted only those political forces it ‘subjectively deems valuable’.Footnote ⁴⁷ A legal order that recognises parties is instead ‘formal’ in the positivist sense, as it derives not from a doctrine of the state but from the dynamic of social and political forces that grows out of political freedom.

4. (4) The existence of parties helps the erosion of the ‘metaphysics’ of a ‘general interest that is superior and transcendent’ to the parts that make up society. Kelsen argued that the pretentious argument of the interest of the state in effect coincides with the interest that state officials and the incumbent political class elect to be the interest of the state, a perspective that is no less partial than that of the parties (‘most states themselves historically prove to be nothing more than organizations, which disproportionately serve the interests of a ruling group’Footnote ⁴⁸). Parties are unique political associations that are not identifiable with any interest organisation (such as unions, corporations, or professional cartels); they filter the partiality of interests and prevent them from capturing the state. Advancing in the late 1920s a reading that Schattschneider later expounded upon in 1960, Kelsen conceived of parties as intermediary agents capable of emending the kind of factionalism implicit in all ‘pressure groups’ without wholly obliterating them.Footnote ⁴⁹

5. (5) Parties are practical schools of tolerance and train citizens in the practice and habit of compromise, two fundamental elements of democracy, according to Kelsen. Indeed, the articulation of the people in parts is the ‘precondition’ for citizens to relate to each other to reach solutions that tend to steer society in one direction over another; this process involves opposition parties, which contribute to lawmaking and are never in a subordinate position. Multiparty politics does not consist of the opposition suffering the decisions made by a majority against them. We can grasp the reason why Kelsen believed that the multiparty system would be democratically preferable to the two-party system: it was capable of leading deliberation towards nonpolarised solutions and the search for alliances. Indeed, for this reason, too, he advocated proportional representation. Hostility towards parties would thus be hostility towards a politics based on compromise in favour of seeking the hegemony of a single principle; even just politics, according to Kelsen, would lose their positive value if imposed as an absolute: ‘Consciously or not, a position, which opposes the formation of parties and so ultimately democracy itself, aids political forces that aim to achieve the sole domination of a single group’s interest’.Footnote ⁵⁰

6. (6) Multipartyism is also valuable because it pluralises leadership, a strategy that contains the power of leaders in a way that neither party discipline nor parliamentary structure can do by themselves. Kelsen deemed the party structure an instrument for strengthening rather than weakening power. He reasserted Michels’s dilemma about organisation as necessary for parties to exist and yet be fatally predisposed to produce verticality (‘the inner workings of the party offer the individual only a limited degree of democratic self-determination’).Footnote ⁵¹ Pluralising parties would alleviate, even if never solve, this problem. This was, to him, an additional argument in favour of proportional representation.

7. (7) Kelsen stressed the limits of state intervention in regulating party life: these organisations ‘usually retain an amorphous character’ as they lack ‘any legal form at all’, and yet ‘a substantial part of the governmental process occurs within these parties’.Footnote ⁵² We should consider that Kelsen wavered on whether the party should have unquestionable authority over the elected. In Essence and Worth of Democracy, he does not support the idea that a representative should lose her seat in parliament if she votes against her party line or changes parties. Quite predictably, he ruled out coercive regulations that give the state the power to remove an elected person from office within the representative body itself because this would run the risk of distorting the verdict of the voters and even help ‘create a new majority’. The party should retain the right to decide on the expulsion of its elected members. This means that the party discipline plays a controlling role and thus limits the autonomy that free mandates allow the representative. While normative coercion cannot be justified in a representative government, the internal power of parties or their discipline can exercise an informal imperative mandate. Kelsen seemed to be saying that the ‘limited degree of democratic self-determination’ that the organisation allows to individual representatives is the price the latter must pay in exchange for their electoral career; in protecting its interest (unity and discipline), the party provides citizens with the only kind of mandate that the representative government allows.Footnote ⁵³ Some years later, Schattschneider argued that parties operate in a ‘no legal man’s land’; that is, parties do with representatives what no law can do if they want to prevent the state from becoming authoritarian.Footnote ⁵⁴

5.6 Representation

We can at this point ask what impact this normative conception of political parties had on Kelsen’s theory of representative democracy. His relationship with Rousseau is the key to answering this question and revealing Kelsen’s ambiguous relationship with representative democracy. On the one hand, his revision of Rousseau’s natural freedom into ‘social’ freedom allowed him to devise a normative justification of the democratic legal order and political parties, not merely a functionalistic justification. On the other hand, he retained Rousseau’s idea of sovereignty as a formal act of will and undermined the possibility of giving representative democracy a normative justification and not merely a functionalistic one. To clarify this point, we need to detour to review his conception of formalism.

Like Rousseau, Kelsen included political representation in the private contractual model (principal/agent relationship) and thought that elections generate a kind of consent that is not purely individual and cannot combine representation with any legal mandate. With that assumption, Kelsen had a hard time adjusting representation to democracy. In effect, while he emancipated artificial freedom from natural freedom, his conception of representation remained associated with the private contractual model of mandate – put otherwise, he reiterated Rousseau’s centrality of individual will concerning representation. Thus, although Kelsen agreed that ‘the imperative mandate cannot return in its old form’, he recognised that democracy must make room for some forms of limitation on the power of representatives, for example, by limiting their freedom to change party groups once in parliament or by taking away their immunity.Footnote ⁵⁵ Beyond that, however, there was room only for a ‘fictional’ or ideological kind of mandate, meaning party-based or political but not normative. Formalism was his main obstacle to apprehending the meaning of a ‘political’ mandate and thus of representative democracy.

Formalism was Kelsen’s weapon to counter the assault of old and new forms of autocracy, as mentioned above. In his 1946 work General Theory of Law and State, he even more clearly stressed his formalistic strategy. Kelsen treated democratic politics as an issue of procedural correctness; this allowed him to defend democracy against both ideological attempts to make it a political game in the service of some supposedly superior or preferable value and finally to treat representation as a means functional to institutional stability. In that context, imposing party discipline on representatives looked to him like a weapon that ideological parties used to obtain what the law could not permit.Footnote ⁵⁶ The issue is that his formalistic definition led him to reach two conflicting solutions: (1) he leaned on Rousseau to stress the contractual nature of representation to counter the ‘ideology of democracy’ or the right of parties to impose discipline on elected representatives from their lists; and (2) he reached the anti-Rousseau conclusion that representation was acceptable, although not democratically justifiable in principle. In sum, representative democracy was formally a violation of both the democratic norm (‘equality of all citizens’) and the contractual norm of representation (legal dependence of the elected on the electors). Representative democracy was an oxymoron and could be justified only by relying upon exogenous factors (functionalism and the organisational division of labour): ‘the legislative power is better organized when the democratic principle, according to which the people should be the legislator, is not carried to extremes’.Footnote ⁵⁷

Kelsen’s incongruities present an important lesson: representative democracy is an oxymoron whenever we extend the rules of juridical representation (contractual model of delegation) to political representation. Let us follow Kelsen’s reasoning. Kelsen synthesised the ‘true relationship of representation’ in the following three norms, wherein the last two derive logically from the first: (1) the representative must be appointed or elected by the represented (principle of autonomy); (2) the representative must be ‘legally obliged to execute the will of the represented’ (imperative mandate); and (3) the fulfilment of the representative’s obligation must be ‘legally guaranteed’ (recall). These three norms denote the institution of representation in the public sphere and imply that for a government to be democratic and representative at the same time, it is not enough that elected officials during their tenure ‘reflect the will of the electorate’ and that elections make them ‘responsible’ to the electors. Indeed, these are simply ‘political’ kinds of binding, and in Kelsen’s sense, they are ‘fictional’ and ideological but not formal or normative. In his terms, ‘simply political’ binding (we would say, representativeness and advocacy) is ‘fictional’ or purely ‘ideological’ because it rests merely on the intention or voluntary commitment of the actors, without being legally binding. It is an imperfect binding as moral duty is imperfect with respect to legal obligation. Political binding can be subjected to ethical norms – such as honesty or disinterested participation (the representative’s loyalty to the promises made to the electors) or to prudence (the representative seeking re-election). Is this enough to contain the autonomy of representatives without violating free mandates? According to Kelsen, relying on these ethical norms amounts to strengthening the power of parties over elected officials. Still, it does not change the fact that the mandate is not bounded. Representative democracy is formally an oxymoron and de facto a system that enhances parties’ power.

The distinction/dualism between ‘legal norm’ and ‘political fiction’ was, for Kelsen, the key to recovering the role of political parties in the theory of democracy, as seen above; he also recognised that the parties do not play the role of the sovereign, as they are voluntary associations that contribute to the formation of opinions that influence and lead the government (he made them ‘amorphous’). Parties side with the electors and have no formal power to impose instructions on the decisions of the elected, but they can exercise a strong dissuasive authority over the elected on behalf of their electors. Hence, Kelsen’s conclusion: ‘Legal independence of the elected from the electors is incompatible with legal representation’.Footnote ⁵⁸

In sum, whatever parties do in the informal domain of political accountability is external to the procedural definition and counts for nothing. In the end, Kelsen sided with Rousseau, who was certainly correct to argue that unless the sovereign provides delegates with instructions, it is no longer sovereign, and thus that representation sanctions the death of sovereignty. Kelsen and Rousseau speak the same language here: in a way, both put ‘individual will’ at the core or top. After recovering political freedom from a naturalistic conception, Kelsen turned to the theory of private contracts to define political representation. The consequence of this move was that he could not give ‘political’ representation any role in his procedural theory of democracy. Indeed, how can representative democracy have a normative foundation if the entire system of control over the elected is a ‘political fiction’? Since Kelsen wanted to defend representative democracy, he could not evade this question.

If representative government is a system in which the will of the representative assembly is the will of the people in a juridical sense, Rousseau’s sarcastic references to the formally free and de facto enslaved Britons would be justifiable. However, Kelsen promised to overcome Rousseau’s extension of the natural will to the political will; the issue is that at the end, he repeated Rousseau’s scheme: he wrote that the mythology of parliamentary sovereignty inaugurated by the English and French revolutions was a sophistry that has done representative democracy a disservice and indirectly justified the critical indictment of its aristocratic nature (such as that by Schmitt).Footnote ⁵⁹ To escape this trap, Kelsen repeated Rousseau, stating that in the absence of an imperative mandate, the idea that representation can be transferred from the people to the assembly without robbing the former of their sovereign power would be naïve and incorrect.Footnote ⁶⁰ Years later, Bobbio argued that Rousseau’s and Kelsen’s sarcasm amounts to a ‘caricature’ rather than a description of representative democracy, which is a political process that is not, and cannot be, rendered in juridical terms of a contract – either as an act of transfer or its opposite, delegation with instructions.Footnote ⁶¹ Rousseau was correct to stress the difference between political and private interests (the general will versus the will of all). Both political representation and contractual/juridical representation are forms of the representation of interests, but the nature of those interests is not the same; moreover, this nature does not emerge if we remain within the purely formal domain of Rousseau’s (or Kelsen’s) discourse.

In the case of a principal/agent relation, the interests to be represented are partial and, in this sense, private; however, in the case of political representation, interests are general in that they pertain to the citizen body as a whole and to each as a general subject. Rousseau made a ‘fatal error’ when he identified the sovereignty of the state with its single members – this was an important point made by Kelsen, as noted above. However, Kelsen himself remained entrapped in the mythical formality of Rousseau’s sovereignty as the general will and did not see that the general interest does not need to be interpreted as having a substantial meaning, as done by the theorists of the ethical state with whom he battled. The political interest of a republic can be seen as a criterion of judgement that both individuals and parties use to make their claims – after all, Kelsen himself spoke of ‘common will’ rather than ‘general will’ when defending parties as associations that lead citizens to participate in the determination of the government of their country.

In the end, Kelsen did not draw all the consequences from his outstanding conceptualising of political parties as the essence and value of representative democracy. He did not emancipate ‘political fiction’ (the parties’ narrative or ideology) from its inferior status to the ‘legal norm’ and did not include in his interpretation of representative democracy the role of ‘informal accountability’ that parties exercise. He did not complete his redemption of parties due to his formalistic disdain of the diarchic character of politics that representative democracy activates with its circular relationship between ‘formal’ and ‘informal’. Kelsen restated the priority of legal norms over the political process citizens put into action; in this sense, he only partially attained a normative justification of representative democracy. In effect, Kelsen failed to apprehend the specificity of representative politics.

6.1 Introduction

Hans Kelsen was one of the most important legal thinkers of the twentieth century. His contributions to constitutional theory and the doctrine of legal positivism have influenced generations of scholars and practitioners of law, and they continue to be a major reference point in legal-theoretical debates. Kelsen’s democratic theory, in contrast, has received comparatively little attention – at least in the anglophone world.Footnote ¹ This is despite the fact that there is an ‘intimate connection’ between Kelsen’s legal and democratic thought.Footnote ² More specifically, his writings on democracy complement his legal-theoretical writings by describing how positive norms can be produced in a democratic fashion. Throughout his work, Kelsen sought to carefully differentiate between democratic ideals and democratic realities. As he noted in 1929, in the second edition of On the Essence and Value of Democracy, ‘In arguments over democracy, a lot of misunderstanding is repeatedly created by the fact that one side only talks about the idea, while the other side only talks about the reality of this phenomenon’.Footnote ³

One of the more central tasks that Kelsen set for himself was, then, to clarify popular confusions about the reality of democracy that arise from the dissonance between ideal and real democracy. This intellectual mission importantly involved theorising and defending political parties. Kelsen was one of the first major thinkers of the twentieth century to make the case that parties are indispensable to democratic lawmaking and that their participation in democratic lawmaking is legitimate. Ever the sober analyst, his view of parties was far from romantic. He certainly did not see them as public-minded agents who genuinely care about advancing the common good, as some contemporary thinkers do.Footnote ⁴ Instead, he simply noted that without parties that reliably represent collective interests in procedures of norm-creation, competing societal demands cannot be effectively articulated and brought to bear on decisions – at least not under modern, pluralist, mass-democratic conditions. In addition, if societal demands cannot be articulated and influence decisions, it will be all but impossible to generate positive norms that strike an acceptable balance among those demands, thus minimising the ‘agony of heteronomy’ that arises from being subject to another’s will.Footnote ⁵

In short, Kelsen thought that parties are procedurally necessary for the functioning of democracy, and he found it difficult to imagine alternative ways of making democracy work. ‘Only self-deception or hypocrisy’, he argued, ‘could lead one to suppose that democracy is possible without political parties. A democratic state is necessarily and unavoidably a multiparty state’.Footnote ⁶ This was certainly not the popular view at the time he was writing, if it ever was. In 1920s legal and political scholarship, many influential figures – on both the political left and right – called for authoritarian institutional fixes to the supposed shortcomings of liberal democracy.Footnote ⁷ Against these antiliberal and antidemocratic pretensions, Kelsen remained firmly committed to a pluralist vision of liberal democracy based on political parties.Footnote ⁸

Perhaps because Kelsen provided one of the first (and still one of the most elaborate) defences of political parties, his writings on parties are the one aspect of his democratic theory that has received some attention in more contemporary anglophone political science and political theory scholarship. Influential scholars such as Adam PrzeworskiFootnote ⁹ and Nadia Urbinati,Footnote ¹⁰ for example, have drawn extensively on Kelsen’s arguments for pluralist party democracy, and numerous contemporary political theorists concerned with the normative defence of parties and partisanship equally look to his work for inspiration.Footnote ¹¹ The main text they engage with is also his major statement in democratic theory, the aforementioned book, Vom Wesen und Wert der Demokratie, which was originally published in 1929 but translated into English only in 2013.Footnote ¹²

Of the many intellectual resources for theorising about parties that Kelsen offers in this book, his proposals for enhancing parties’ capacity to serve their central democratic functions have perhaps attracted the least attention. Even those scholars who recognise Kelsen’s distinctive theoretical contribution to our understanding of representative party democracy tend to direct their focus to other lines of argument.Footnote ¹³ However, there is arguably much to be learnt from the passages where the author of the 1920 Austrian constitution and ‘architect’ of the Austrian constitutional court assumes the role of institutional designer and devises strategies for improving existing legal and democratic institutions.

Perhaps the most interesting and visionary institutional design proposals by Kelsen appear in a number of shorter paragraphs and footnotes of the 1929 version of Wesen und Wert, in connection with reflections on what he saw as the main empirical challenges to the functioning of political parties in the interwar period. My aim in this chapter is to reconstruct and discuss these ideas under the term of ‘party constitutionalism’. Put simply, party constitutionalism refers to the idea of subjecting party organisations to constitutional regulation in order to ensure that they internally conform to democratic principles. The concern is securing the political freedoms of those who actively engage in political parties against the oligarchical top-down rule of power-seeking party elites. Kelsen was most likely the first author to discuss this particular subject in detail.

I begin by examining the details of Kelsen’s party constitutionalism and show that it dovetails with his understanding of parties as enablers of popular rule (Section 6.2). Then, I discuss the practical relevance of Kelsen’s proposal, particularly highlighting that the multiple waves of party constitutionalisation that followed the Second World War did not have the effect that Kelsen had hoped for (Section 6.3). As I note in the final section, this in turn raises some doubts about the democratising force of party constitutionalism, but it also usefully reorients our thinking around the possibilities of a better, more effective party constitutionalism (Section 6.4).

6.2 Kelsen’s Party Constitutionalism

Kelsen’s altogether rather ‘vague’Footnote ¹⁴ reflections on party constitutionalism form a part of his broader defence of political parties that appears in the 1929 edition of Wesen und Wert. Specifically, Kelsen mentions the ‘anchoring [of] political parties in the constitution’ in connection with the ‘possibility for democratizing the aspects of the governmental process that occur within the parties’ sphere of influence’.Footnote ¹⁵ He draws a direct line between the constitutionalisation of parties and internal party democracy. To understand this, we need to look more closely at two parallel views that Kelsen defends: a more general empirical argument about the democracy-enabling structure that a democratic constitution furnishes and a more specific normative argument about the value of intraparty democracy.

The empirical argument about constitutions is essentially an extension of Kelsen’s general understanding of the meaning and point of democratic constitutions in the realm of political parties. For Kelsen, constitutions in the generic sense are documents that provide ‘the rule[s] for the creation of legal norms that form the statal order’.Footnote ¹⁶ They establish a stable structure within which constituted bodies can make laws, ensuring that laws are made in a particular way. While constitutions thus understood need not be democratic, democratic constitutions – such as the one that Kelsen designed for the First Austrian Republic – are accordingly meant to ensure that laws are made in a democratic fashion.Footnote ¹⁷ The point of ‘anchoring’ political parties in democratic constitutions is then to regulate the ways in which parties contribute to democratic lawmaking.

In making this suggestion, Kelsen was willing to go further than any of his contemporaries in defining the reach of the constitution. Several other influential legal scholars of the 1920s, notably Heinrich Triepel, indeed explicitly rejected the idea of constitutionalising parties.Footnote ¹⁸ But what made Kelsen want to impose a stable democratic structure not only on the institutions of the state but also on parties, which in the 1920s – in contrast to today – were not typically seen as agents of the state?

As a first approximation, consider the following passage, where Kelsen argues that

The first sentence powerfully underscores that Kelsen believed that the absence of formalised rules for internal decision-making opens the door to elite domination, but there are two further things that strike me as relevant in this passage.Footnote ²⁰ First, against the backdrop of his apparent commitment to intraparty democracy, it seems only logical that Kelsen would dismiss strong party discipline.Footnote ²¹ However, later in Wesen und Wert,Footnote ²² he puzzlingly argues that parties should be able to recall rebellious representatives who vote against the party line, effectively punishing them for their lack of loyalty. Mersel summarises this second position as follows:

How this can be squared with Kelsen’s criticism of party discipline is not entirely clear.Footnote ²⁴ An alternative interpretation that some scholars have advanced holds that Kelsen envisages that a party’s constituents, and not so much the party leadership, should have the power to recall elected representatives.Footnote ²⁵ This would certainly make the proposal more consistent with his apparent rejection of party discipline. However, this explanation also sits uneasily with the final sentence in the above quote, which critically observes that ‘the inner workings of the party offer the individual only a limited degree of democratic self-determination’.

Second, setting this potential inconsistency aside, the latter remark about ‘democratic self-determination’ within parties is quite important. This is because it reveals what lies at the core of Kelsen’s understanding of party constitutionalism: establishing some sort of formal assurance for members of parties that they can exercise political autonomy within the sphere of the party. However vague Kelsen’s formulations are, it seems to me that he is indeed suggesting that the constitutional regulation of parties should involve equipping party members with certain powers of participation in internal decision-making.Footnote ²⁶

The core components of Kelsen’s argument for party constitutionalism are, then, (1) the idea that the structurally ‘amorphous’ character of parties enables ‘aristocratic-autocratic’ forms of rule that are democratically problematic; (2) a critique of the imposition of party discipline by ‘leading personalities’ within the party; and (3) a corresponding endorsement of party members’ ‘democratic self-determination’. The next thing that needs to be clarified is exactly why Kelsen thought that parties should be internally democratic in the first place. To that end, I turn to Kelsen’s normative argument about the point and purpose of intraparty democracy. This can be gleaned from the more general conception of parties that he develops in Chapter 2 of Wesen und Wert, which is tellingly entitled ‘the people,’ indicating that Kelsen closely linked the institution of party to the exercise of popular rule.

Recall, to start with, that throughout Wesen und Wert, Kelsen carefully distinguishes between democratic ideals and democratic realities. His avowed goal is to clarify the misunderstandings that may result from evaluating the reality of democracy through the lens of (some) lofty ideals that can never actually be fully realised. One of democracy’s most ethereal and intangible ideals is arguably the notion of the people, conventionally understood in terms of a unified collective agent that rules itself. This idea of ‘the people’ is at once central to the modern understanding of democracy and extremely difficult to trace in the real world.Footnote ²⁷ Kelsen emphatically rejected this view of the people as a ‘fiction’ but, at the same time, asked in what sense one could meaningfully speak of ‘the people’ in a real world constitutional democracy. Thus, we turn to political parties and their unique role in connecting citizens to government.

Kelsen begins his argument by introducing a distinction between those who actively engage in politics and those who simply accept the decisions that others make for them: ‘Among those who in fact exercise their political rights by participating in government, one would have to differentiate between the mindless masses who follow the lead of others and those few who – in accordance with the idea of democracy – decisively influence the governmental process based on independent judgment’.Footnote ²⁸

Only the latter are, according to Kelsen, ‘a ruling, and not a ruled, People’ and thus give expression to the ideal of the people as a ruling subject.Footnote ²⁹ ‘Following this line of investigation,’ he continues, ‘we encounter one of real democracy’s most important elements: the political party, which brings like-minded individuals together in order to secure them actual influence in shaping public affairs’.Footnote ³⁰ His argument can be summarised as follows: If the people are to actively rule, then a form of association that promotes and supports the ongoing pursuit of particular political goals is essential. Political parties can provide such an association, supplying citizens with an institutional channel through which their interests can be connected to the relevant legislative and executive mechanisms.Footnote ³¹

Since Kelsen ascribes to parties the unique quality of being the chief enablers of popular rule, it is no surprise that he eventually concludes that ‘the “people” does not actually exist as a viable political force prior to its organisation into parties’.Footnote ³² To him, it is only the ‘integration of isolated individuals into political parties [that] unleashes social forces that can be reasonably referred to as the “People”.’Footnote ³³ Meaningful popular rule in real existing democracies thus ‘rests on political parties, whose importance grows the more the democratic principle is realized in practice’.Footnote ³⁴ In other words, if we are looking for ‘the people’ that rules, then we must look to political parties as the collective agents through which the promise of popular rule is made real. Notice, however, that the popular will – and here Kelsen’s view differs radically from that of the majority of democratic theorists – can never be unified in pluralist party politics; it is the product of compromises between rival parties.Footnote ³⁵

While Kelsen does not explicitly say that political parties need to be internally democratic in order to fulfil the role of enabling popular rule, his normative commitment to intraparty democracy seems to follow logically from his understanding of the role of parties. For if one is committed to liberal democracy (as Kelsen is), and if one singles out parties as those agents that can make the democratic promise of popular sovereignty real (as Kelsen does), it would make little sense to suggest that parties should not be internally democratic. Indeed, even if Kelsen observes that there exist ‘mindless masses who follow the lead of others,’ in a democratic state, those who follow the lead of others should at least have the opportunity to join the ranks of those ‘who … decisively influence the governmental process based on independent judgment’.Footnote ³⁶ This, in turn, means that the organisations that exercise such decisive influence – parties – must be inclusive and democratically organised rather than organised in an oligarchic, top-down fashion that excludes new members from making their voices heard.

To sum up, Kelsen believed that parties were essential for popular rule and that they must be organised in a democratic fashion in order to perform this crucially important role. Identifying the ‘amorphous character’ of parties – the fact, that is, that the parties of Kelsen’s era typically took ‘the form of loose associations or, often, lack[ed] any legal form at all’Footnote ³⁷ – as the primary reason why parties were not internally democratic, he argued for imposing a democratic internal structure on parties by anchoring them in the constitution. Again, Kelsen remained quite vague about the ideal internal organisation of parties, limiting himself to a blanket emphasis on internal democratisation. However, it is nonetheless possible to discern in his writing a clear argument for party constitutionalism, one that – aside from possibly being in conflict with his argument for recalling representatives – is internally consistent.

6.3 Party Constitutionalism after the Second World War

The catastrophic Second World War and the need to re-establish democracy after 1945 created a unique window of opportunity for constitutionalising political parties. Parties themselves played a key role in the formation of democratic republics across Europe, notably in Germany, Italy, and France. Accordingly, the countries’ new constitutions were largely written by people who firmly believed that parties were indispensable in a democracy.Footnote ³⁸ The 1947 Italian constitution and 1949 German constitution in particular included an innovative specification of the democratic rights and duties of political parties. Not only were parties explicitly recognised as essential for the functioning of democracy, but their organisational structure was also regulated to some degree. The influential German constitutional scholar and judge Gerhard Leibholz rightly described this development as ‘revolutionary’.Footnote ³⁹

The constitutional regulation of parties was most extensive in postwar Germany; some commentators have therefore called Germany the ‘heartland of party law’.Footnote ⁴⁰ The first European constitution to propose the extensive regulation of parties was in fact a subfederal constitution, namely, the 1947 constitution of the German state of Baden.Footnote ⁴¹ This constitution stipulated, among other things, that only associations with 30,000 or more members could claim party status (Article 118); that parties participating in a government coalition have ‘a duty to prioritise the interests of the country over the interests of the party,’ while parties that are in the opposition should be ‘fact-oriented (sachlich) and constructive’ when criticising the government (Article 120); and that all elected representatives must be able to follow their own conscience, rather than having to obey the party leadership (Article 121).Footnote ⁴² This last article is important since it goes some way in securing the political freedoms of elected representatives against the enforcement of party discipline, similar to what Kelsen apparently envisaged.Footnote ⁴³

While the influence of the Baden constitution on the 1949 German Basic Law was only indirect, the former’s provisions concerning political parties prefigure some of the content of the famous Article 21 in the latter.Footnote ⁴⁴ What is distinctive about this article is not so much that it stipulates that parties ‘shall participate in the formation of the political will of the people’ or that they ‘may be freely established’. What is distinctive about Article 21 is that it mandates that parties’ ‘internal organization must conform to democratic principles’ (Article 21(1)).Footnote ⁴⁵ This makes the German Basic Law the first constitution to explicitly require parties to be internally democratic. Add to this Article 38 (1), which states that members of parliament ‘shall … not [be] bound by orders or instructions, and responsible only to their conscience,’ and the result looks very much like an embryonic version of the sort of party constitutionalism Kelsen argued for.

The internal democracy requirement of the German Basic Law is significant because it was subsequently adopted in a number of other countries. The Spanish constitution of 1978 (adopted after the fall of the Franco regime) requires parties to be internally democratic, as do the constitutions of Portugal and Croatia (after revisions in 1997 and 2000, respectively). Although these are the only constitutions to explicitly prescribe intraparty democracy, scholars have argued that in the constitutions of Greece, Italy, France, Bulgaria, Lithuania, and Poland, an obligation for parties to be organised democratically is ‘implicitly present in the constitutional requirement that political parties either serve or respect democratic principles or methods’.Footnote ⁴⁶ To be sure, it is not always unambiguously clear that the relevant provisions are concerned with intraparty democracy.Footnote ⁴⁷ However, there is certainly a growing tendency to interpret those provisions as targeting the internal life of parties.Footnote ⁴⁸ Those who favour this interpretation sometimes even resort to arguments inspired by the doctrine of ‘militant democracy,’ suggesting that ‘if we accept the idea that there is no place for nondemocratic parties in a democracy, then we must also find that there is no place for parties that lack internal democracy. Lack of internal democracy may be seen as evidence of external nondemocracy’.Footnote ⁴⁹

While Kelsen would likely have been sceptical about a defence of internally democratic parties that depends on theories of militant democracy,Footnote ⁵⁰ the constitutional prescription of intraparty democracy is, as such, no doubt in line with Kelsen’s original proposals. Equally aligned with Kelsen’s ideas are the more specific regulations concerning the rights of party members that are contained in many of the national party laws that have been written since the postwar era. To date, the party laws of Czechia, Germany, Latvia, Portugal, Romania, Slovakia, and Spain establish a ‘right of party members to challenge internal party decisions’ and/or ‘the existence of internal arbitration boards for the solution of internal disagreements,’ all of which are ‘considered to be important mechanisms to ensure internally democratic procedures within political parties’.Footnote ⁵¹ While this is not party constitutionalism in a narrow sense, it arguably gives expression to the essentially Kelsenian notion that parties’ internal structure can (and should) be democratised through law.

However, the question remains: has the constitutional prescription of intraparty democracy actually made parties more internally democratic? Most likely not. Although both of the two largest German parties – the Christian Democratic CDU and the Social Democratic (SPD) – adopted a formally democratic organisational structure in the immediate postwar era, their internal decision-making procedures remained, to use Kelsen’s terminology, ‘aristocratic-autocratic’ in character. As historians have documented, the electorally strong CDU, for example, was ruled in a heavily centralised, quasi-authoritarian fashion.Footnote ⁵² Its leader, Konrad Adenauer, not only set the agenda on most, if not all, political issues but also routinely circumvented formalised internal decision procedures while demanding strict loyalty from the rest of the party:

The German Social Democratic Party (SPD) has likewise been described as a strongly leader-centred party where most decisions were made by a small number of party elites.Footnote ⁵⁴

One could object that none of this proves conclusively that the postwar constitutionalisation of parties fell short of what Kelsen envisaged. Because Kelsen remained rather vague regarding his aspirational ideal of intraparty democracy, one may even draw the opposite conclusion, namely, that he might have been content with parties’ adoption of a formally democratic internal structure. Indeed, since Kelsen had few illusions about the realities of party politics, he may even have accepted the tendency of powerful party leaders to ignore internal decision-making rules on the double condition that party members (1) assented to this form of top-down leadership and (2) retained the right to replace leaders democratically.

However, this objection, while not entirely implausible, neglects the fact that Kelsen not only considered party constitutionalism necessary ‘to ensure that the principle of democratic control is followed within the party’ and not merely translated into formal decision rules that nobody abides by, but he also believed that it was crucial that ‘the dictatorship of party leaders (Diktatur der Parteiführer) is limited as much as possible’.Footnote ⁵⁵ Even with the most minimalist interpretation of what this could mean concretely, it is difficult to argue that these desiderata were fulfilled in the postwar parties mentioned above. Suppose, in a minimalist fashion, that Kelsen thought that the principle of democratic control is followed within parties when party members can collectively elect and unseat party leaders.Footnote ⁵⁶ This requirement was hardly met. If we take the example of the CDU, it was only in 1967 that the CDU’s parliamentary group was granted the right to directly elect potential future chancellor candidates, and the party members directly elected the party leader for the first time only in 2021!Footnote ⁵⁷ Previously, under the leadership of Adenauer and his successor, Ludwig Erhard, in the CDU, all key personnel decisions were taken in an informal and top-down fashion by a handful of party officials. Although it would be hyperbolic to say that Adenauer and Erhard behaved like ‘dictators,’ it would also be outright absurd to claim that their power was limited in any more substantial sense.

Moving beyond the postwar period, it is worth emphasising that political science scholarship has systematically documented that ‘many political parties have made important and highly visible changes in the opportunities they offer members to influence party affairs’ in the last four decades or so, especially by ‘expanding the use of intra-party ballots for party decisions’.Footnote ⁵⁸ Scholars have also observed, however, that this had no substantial democratising effect on internal decision-making practices. Carty has pointed out that the kind of political participation offered by most parties tends to be ‘atomistic,’ in the sense that members are typically ‘isolated from one another and engaged in direct communication only with the party centre, in a fashion that inhibits their ability to act in common with each other’.Footnote ⁵⁹ This in turn ‘provides the party in public office with the ability to manipulate a formally popular decision-making process, by ensuring that members’ choices are constrained and limited to alternatives acceptable to the existing elite’.Footnote ⁶⁰ The result tends to be an apparent democratisation of the party that de facto strengthens the control of party elites.Footnote ⁶¹ Again, this may be a far cry from the ‘dictatorship of party leaders’ that Kelsen sought to rein in, but if these social scientific analyses are true, it is hardly the case that the reality of intraparty democracy now resonates more with Kelsen’s prescriptions.

Of course, the exact relationship between recent initiatives to democratise parties internally and the constitutionalisation of specific norms concerning intraparty organisation is anything but clear-cut. The causal effect of party constitutionalisation on intraparty organisation is generally very difficult to study, and systematic studies are scarce. However, inasmuch as the pseudodemocratising changes that political parties have made to their organisational structure in the last four decades coincided with a proliferation of party legislation in most democracies (recall, for example, the aforementioned constitutional revisions in Portugal and Croatia),Footnote ⁶² we may provisionally conclude – in line with the best political science research available – that the constitutionalisation of parties (and their legal regulation more generally) has made parties formally more democratic but scarcely placed checks on the power of party elites.

None of this is to deny that some parties have actually become more internally democratic because of the introduction of constitutional provisions (or party laws) that prescribe internal democracy or that some parties have genuinely tried to become more internally democratic. All in all, however, there are good reasons to think that Kelsen’s original argument about the power of constitutions to counter the aristocratic-autocratic character of intraparty decision-making was too optimistic.

6.4 Towards Improved Party Constitutionalism

It is very easy – and hardly intellectually stimulating – to reject the ideas and arguments of earlier scholars by highlighting new facts that expose those ideas and arguments as overly optimistic. What I seek to do in this final section is thus not to dismiss Kelsen’s argument about the democratising effects of constitutionalising parties as ‘disproven by reality’. Instead, and more constructively, I want to reflect on what we can learn about the idea of party constitutionalism from the relative failure of post-Second World War party constitutionalisation to produce internally democratic parties. Specifically, I want to draw attention to two issues that Kelsen did not say more about in his brief mentions of the topic but that are directly relevant to the question of how party constitutionalism might succeed.

First, it is very difficult to see how parties’ (non)compliance with constitutional norms can effectively be monitored and sanctioned. For one thing, there is a real risk that independent monitoring and sanctioning bodies might simply remain passive because, for instance, they do not consider the issue of intraparty democracy a priority relative to more weighty issues such as party finance. There is an abundance of evidence that can be cited to illustrate this point, but perhaps it suffices to point out that towards the end of the 1960s, innumerable German commentators agreed that the intraparty democracy requirement in the Basic Law’s Article 21(1) did not lead to more democracy being practiced within parties;Footnote ⁶³ although the German Constitutional Court affirmed in one of its key rulings the view of parties as integral units of the constitutional order that should be organised democratically,Footnote ⁶⁴ it did little to actually promote or enforce internal democratisation using its sanctioning powers.Footnote ⁶⁵ Such problems of court passivity would likely become even more pressing when Constitutional Court judges have an avowed partisan identity and corresponding loyalties.

However, even more pertinently, the monitoring and enforcement of intraparty democracy norms through independent bodies will often be complicated by the fact that we know very little about the internal life of parties, over and above what we learn about their internal decisions and procedures through the mass media. What may be called the ‘real world’ of internal party democracy – where informal decision-making practices and the tactical considerations of party elites often prevail over formally required decision-making procedures – remains largely hidden from the public eye and has rarely been studied in a systematic and detailed fashion, in part because it is very difficult to obtain the relevant evidence.Footnote ⁶⁶ Many of those who do have access to relevant evidence, notably party elites and ordinary party members, rarely share that evidence with researchers, leaving many questions about how intraparty decision-making truly works unanswered.Footnote ⁶⁷ Such evidence would be necessary, however, for building a convincing legal case for sanctioning parties.Footnote ⁶⁸

There is no answer to any of these issues in Kelsen’s writings. This is not surprising given that he had very little immediate experience with party constitutionalism. In addition, if he had been tasked with writing a party law, he would certainly have paid attention to how to make it enforceable. At any rate, I suggest that we make the question of parties’ compliance with constitutional norms of intraparty democracy a topic of sustained normative and legal reflection. If compliance cannot effectively be monitored and enforced parties will have only weak incentives to comply with constitutional requirements, which all but completely diminishes the point of party constitutionalism. A central desideratum for improved party constitutionalism is thus an effective strategy for monitoring parties’ internal lives and sanctioning relevant norm transgressions.

The second issue that I would like to highlight concerns the question of who is made responsible for the constitutionalisation of political parties. I interpret Kelsen as assuming that parties are meant to, as it were, ‘self-constitutionalise’ by amending the constitution in parliament. To fully understand this, recall that Kelsen conceives of parties as key enablers of popular rule. This implies that parties are not only the primary shapers of ‘ordinary’ laws but also tasked with ‘higher law-making’, that is, constitutional amendment. Indeed, Kelsen rejects the idea of a unified pouvoir constituant on the basis that ‘there can never be a unity of “we the people”’ but only a unified legal order.Footnote ⁶⁹ This leaves him with parties as agents (in the plural) of popular rule and leads him to conceptualise processes of constitutional amendment as just another compromise-based decision jointly taken by multiple parties – albeit with a supermajority requirement.Footnote ⁷⁰

Therefore, the constitutionalisation of political parties that Kelsen called for was meant to be driven by the parties themselves – or at least, that was the path of reform that he had in mind in the 1920s.Footnote ⁷¹ As we saw, this is in fact how the main processes of party constitutionalisation unfolded after the Second World War. As one historian puts it, the first constitutional provisions on parties – in particular the German Basic Law’s Article 21 and the ambiguous Article 49 of the Italian constitution – were the outcome of ‘parties capitalizing on their prominent role in the making of democratic institutions’.Footnote ⁷² That is, parties acted as constitution-makers who – empowered by the Allied authorities, as well as the electorate – defined and consolidated their own status within the constitutional order. The same is true for subsequent ‘waves’ of political parties’ constitutional and legal codification: it was the parties themselves that were the driving force behind them. As Katz and Mair note,

However, the capacity to self-constitutionalise is potentially problematic because it gives parties an exceedingly powerful role that is susceptible to misuse. This is especially so in the present era, where, as numerous studies have documented, parties are largely disconnected from society and the concerns and demands of ordinary citizens.Footnote ⁷⁴ Under these circumstances, it is not unlikely that parties will increasingly use their powers to legally self-regulate in self-serving ways that, for instance, reduce the costs of losing office.Footnote ⁷⁵ There is, furthermore, a nontrivial link to the abovementioned problems of monitoring and sanctioning parties’ compliance with constitutional norms: when parties have extensive authority in the process of writing their own laws, they can also shape the rules regarding compliance-enforcement, thus making it easier to avoid both effective monitoring and possible sanctions.

Using Sieyès’ famous distinction, it may be possible to describe the self-constitutionalisation of parties as a case of pouvouirs constitués acting as pouvouir constituant (constitué). Typically, this is considered troubling because it prevents citizens from exercising control or dramatically minimises their control over the content of the constitutional order under which they have to live. As Patberg writes, the point of the distinction between pouvouir constituant and pouvouirs constitués ‘is to secure a dimension of political autonomy. It calls for a democratic mode of constitutional politics in which citizens can reorganize their political system even if the affected institutions are opposed to such change, while public authorities are not in a position to modify their own terms of operation or autonomously transfer authority to other entities’.Footnote ⁷⁶ If we take these arguments seriously, it follows that parties cannot legitimately self-constitutionalise. Citizens must at least be granted a say over parties’ proposals for constitutionalisation before they are ratified.

While there is arguably no need to always insist on a clean separation between pouvouir constituant and pouvouirs constitués,Footnote ⁷⁷ the distinction helpfully draws our attention to the risks of party self-constitutionalisation. These risks are no doubt very real, and there is again no response to this problem in Kelsen’s writings. True, in his more general reflections about constitutional transformation, Kelsen grants that ‘the doctrine of the pouvoir constituent’ may provide a useful way of thinking about ‘making norm-changes more difficult,’ by, say, introducing supermajority requirements.Footnote ⁷⁸ However, he also decisively rejects as ‘natural law’ (a term of abuse for Kelsen) the idea that the wider citizenry should be in charge of constitutional amendment, since they are the final source of all law.Footnote ⁷⁹ Thus, parties, qua enablers of popular rule, retain the principal authority to amend constitutions.

In the end, it may be possible to remain committed to party constitutionalism while accepting that parties should not have the authority to unilaterally self-constitutionalise. In agreement with Kelsen, we might therefore argue that party constitutionalism is desirable since parties still play a crucial role in making democracy work, organising campaigns and elections, structuring public opinion, and framing and passing laws in parliament. Precisely because they serve democratically important functions, we should ensure that the parties themselves are organised in a way that guarantees members and activists a level of political autonomy or ‘self-determination’, as Kelsen puts it, and here, the constitution remains an important regulating device. Against Kelsen, on the other hand, we might argue that we now know more about the practice and risks of party constitutionalisation and that the experience of the past suggests that more effective monitoring and sanctioning mechanisms must be established, and that the unilateral self-constitutionalisation of parties be avoided.Footnote ⁸⁰

Ultimately, if we want to improve party constitutionalism, we might need to look for strategies for constitutionalising parties in which multiple actors beyond the parties themselves decide how parties should be regulated in the wider constitutional order.Footnote ⁸¹ Incidentally, trying to redefine the role of parties in society together with the wider citizenry and a plurality of civil society actors might also provide a way of reconnecting parties with society. The fact that Kelsen’s brief thoughts on party constitutionalism open the door to thinking about such possibilities testifies to their originality and to the persisting importance of Kelsen’s democratic thought.

7.1 Introduction

In recent decades, constitutional review has spread to many corners of the democratic world. However, the de facto success of constitutional review has been accompanied by a growing chorus of profoundly critical assessments in legal scholarship. The view that there is no compelling way to justify constitutional review in a democratic polity has, in some quarters, turned into a near-orthodoxy.

So-called ‘political constitutionalists’, in both the American and the British contexts, argue that no polity that settles disputes over what rights people possess through politically unaccountable judicial institutions whose decisions are often irreversible even by large legislative majorities can be said to be fully democratic. Political constitutionalists do not deny that democracy requires respect for a number of fundamental rights, such as rights to political participation under fair and equal terms, rights to association and assembly, respect for the freedom of opinion and expression, and protection against politically motivated interference with nonpolitical rights. Instead, they argue that a fully democratic community must settle any disputes concerning the content of these rights, as they are bound to arise in any political community, within the democratic political process itself. Leaving the matter to the courts involves subjecting democratic self-government to the potentially dominating control of an aristocracy of the robe.Footnote ¹

Hans Kelsen was one of the inventors of constitutional review. Kelsen drafted the Austrian Constitution of 1919, which was the first European constitution to provide for a constitutional court endowed with the power to strike down unconstitutional legislation and unconstitutional administrative acts.Footnote ² Kelsen also advocated for the introduction of constitutional review in other European states, most notably through his intervention in the constitutional debate on the issue in Weimar Germany.Footnote ³ Although the U.S. Supreme Court successfully claimed the power to exercise incidental constitutional review as early as 1803, in Marbury v Madison, the Austrian Constitution of 1919 introduced a new model of constitutional review, one that has since become a widely copied template for the institutional design of courts that are meant to act as guardians of the constitution.Footnote ⁴ In the Kelsenian model, constitutional review is exercised by a specialised constitutional court that is explicitly empowered to bindingly settle all constitutional questions; these may arise from cases pending in other courts that have been referred to the constitutional court, from executive decisions against which individuals have brought individual constitutional complaints, or from disputes among different organs of the constitution or different levels of government.

Kelsenian constitutional courts wield their powers by constitutional design, not merely by virtue of some judicial arrogation of power that has been accepted, however grudgingly, by other constitutional actors. A written constitution endows these courts with the authority to invalidate unconstitutional norms and not merely to make declarations of incompatibility which are liable, at least in principle, to be overridden or disregarded by legislative authorities. Unsurprisingly, Kelsenian constitutional courts have sometimes become politically powerful institutions.Footnote ⁵ If constitutional review – or judicial review in general – raises problems of democratic legitimacy, such worries, or so it would seem, would apply to Kelsenian constitutional courts with a vengeance.

All this would lead one to expect that Kelsen would have supported what the late Ronald Dworkin called a constitutional (as opposed to a majoritarian) conception of democracy.Footnote ⁶ According to Dworkin, our view of what institutional frameworks or what mechanisms of decision-making ought to be regarded as authentically democratic must be sensitive to the most attractive understanding of the value of democracy. Dworkin further argued that according to the most attractive understanding of the value of democracy, a democratic political system is one that treats all citizens with ‘equal concern and respect’. Therefore, procedures of political decision-taking, such as the majority rule, ought to be assessed in instrumental terms, that is, by reference to the question of whether they are likely to bring forth decisional outcomes that conform to the procedure-independent moral standard of equal concern and respect.

The constitutional conception of democracy provides a straightforward strategy of justification for constitutional review. If constitutional control exercised by a constitutional court makes it more likely that decisional outcomes conform to procedure-independent standards of justification that demand that each citizen be treated with equal concern and respect and if the institutions of democracy are valuable only insofar as they serve that goal, then constitutional control is democratically justified despite its countermajoritarian character. It is not undemocratic to restrict majoritarian decision-taking or to subject it to judicial control if that makes it more likely that all citizens are treated with equal concern and respect. Dworkin argued that judicial control for constitutionality can indeed be expected to have that salubrious effect. A supreme or constitutional court – the ‘forum of principle’Footnote ⁷ – is often more likely to base its decisions on sound justificatory arguments than the government or parliamentary majority of the day.

Needless to say, the standard political-constitutionalist objection to Dworkin’s argument for constitutional review is the charge that it replaces the democratic self-government of citizens with the rule of judges and liberal philosophers who presume to determine the conditions under which democratic decisions might be acceptable in advance of the political process.Footnote ⁸ Although Kelsen was a staunch defender of a robust practice of constitutional review, I suspect that he would have sympathised with the political-constitutionalist attack on Dworkin’s constitutional conception of democracy. In his argument for constitutional review, Kelsen pointedly refrains from appealing to anything like a Dworkinian constitutional conception of democracy. Kelsen would likely have agreed with the view that a community’s fundamental commitments ought to be defined in democratic politics and not by the courts.Footnote ⁹ This stance suggests that Kelsen’s argument for constitutional review must be either particularly interesting or extraordinarily confused. Kelsen must have either managed to identify an argument for constitutional review that does not rely on a constitutional conception of democracy, thus dispelling worries about the democratic legitimacy of constitutional review, or failed to recognise that a majoritarian understanding of democracy entails that there is no compelling justification for constitutional review.

The latter of these two assessments has been defended, with great clarity and vigour, by Michel Troper, one of the few notable legal and constitutional theorists who have paid close attention to Kelsen’s argument for constitutional review.Footnote ¹⁰ This chapter will take the opposite view. It will be argued here that Kelsen’s case for constitutional review is fundamentally sound and has the potential to make an interesting contribution to contemporary debates on the legitimacy of judicial control of constitutionality.

Troper’s analysis of Kelsen’s case for constitutional review helpfully distinguishes between what might be called a positive and a negative Kelsenian argument for constitutional review.Footnote ¹¹ The positive argument aims to show that the introduction of constitutional review is necessary for establishing the supremacy of the constitution over other, non-constitutional laws. The negative argument aims to establish that there is no conflict between constitutional review and the principle of popular sovereignty. According to Troper, both arguments fail. Kelsen’s positive argument conflicts with his own theory of legal system, while the negative argument is inconsistent with Kelsen’s own understanding of democracy. My defence of Kelsen’s case for constitutional review will address both of Troper’s attacks in turn.

7.2 Kelsen and the Problem of Constitutional Supremacy

Kelsen called his legal theory the ‘Pure Theory of Law’ (henceforth ‘PTL’). The purity of the PTL, according to Kelsen, is to be achieved on two fronts. On the one hand, the PTL is not an empirical or social scientific theory of law. A legal-scientific description of the law does not involve causal knowledge. The science of the law, though descriptive, is expressed in normative statements. The latter state what is to be done according to the law. They do not offer causal predictions, as one might find them in a legal-realist account of the law. For instance, they do not say that one is likely to be punished if one commits a certain act but that having committed the act makes it the case that one ought to be punished. However, in offering such ought-statements, a legal scientist, according to Kelsen, is not expressing their own moral opinion or offering a practical endorsement of the law’s demands. Although they are formulated in normative language, legal scientific statements are intended to do no more than to describe what is in fact required by the law. They do not express any practical evaluation of the law’s demands. Hence, the discourse of legal science is as sharply distinct from moral as it is from empirical discourse.Footnote ¹²

Troper observes that Kelsen’s advocacy for the introduction of constitutional review is a normative demand based on a conception of what kind of legal order we would have reason to evaluate favourably. It therefore stands in conflict, Troper concludes, with the second demand of purity, which blocks the legal scientist from issuing practical prescriptions.Footnote ¹³ Troper concedes that a Kelsenian might reply that when Kelsen argued for the introduction of constitutional review, he was not speaking as a legal scientist, committed to the demand for purity, but rather as a political theorist, reflecting on the conditions of good legal order. However, this reply will not suffice. As Troper rightly emphasises, Kelsen appears to suggest that his advocacy for constitutional review is based on more than a self-standing normative conviction.

Kelsen presents the institution of constitutional review as the necessary means to realise the legal effectiveness of the constitution. According to Kelsen, a constitution purports to impose legal conditions on the valid exercise of legislative and executive power. Such conditions may take the form of purely procedural rules, but they may also contain substantive requirements that are related to the content of legislative and administrative acts. Kelsen argues that in the absence of constitutional review, the legislature and the executive will be free to disregard these conditions or to interpret them in any way they please. Although constitutional conditions for the exercise of legislative and administrative power purport to be conditions of validity, they are bound to remain legally ineffective in the absence of constitutional review. Thus, Kelsen claims that the only way to give full legal effect to the constitution is to introduce constitutional review.Footnote ¹⁴

This argument for constitutional review, which I will call the ‘argument from constitutional supremacy’, responds to a particular stage in constitutional development that was characteristic of many interwar European polities. The Weimar Republic, to name a prominent example, had a written constitution that contained both procedural rules governing a complex federal system of government and a bill of rights purporting to impose substantive restrictions on legislative action. However, the Weimar Republic did not have a fully developed practice of constitutional review.Footnote ¹⁵ Put concisely, Kelsen’s argument is that the apparent commitment to constitutionalism, as it is expressed in the written constitution itself, makes sense only if it is bolstered by constitutional review. Only through constitutional review will the conditions that the constitution purports to impose on legislative and executive action become conditions of the validity of legislative and executive acts and be legally effective.

In Troper’s reading, Kelsen’s argument from constitutional supremacy is intended to be conformable to the demand that the PTL be pure in the sense of being nonevaluative. Troper understands Kelsen to be claiming that there will be no constitution, in the absence of constitutional review, that is hierarchically superior to ordinary law and provides the basis of the validity of ordinary laws. The very existence of a structured legal system, of a consistent hierarchy of norms, or so Troper’s Kelsen argues, requires constitutional review. Thus understood, Kelsen’s argument from constitutional supremacy, Troper claims, does not conflict with the demand for purity because it is entirely technical. In demanding the introduction of constitutional review, the argument merely identifies a necessary condition for the existence of a legal order with a clearly defined hierarchy of norms, one that allows the constitution to function as the ground of the validity of ordinary laws.Footnote ¹⁶

Unfortunately, Troper goes on to claim, the argument from constitutional supremacy conflicts with certain key assumptions of the PTL’s theory of legal system. According to Troper, the problem can be illustrated by reference to Kelsen’s account of the status of unconstitutional statutory norms.Footnote ¹⁷ Suppose the legislator enacts a statutory norm – through an act that sufficiently conforms to the relevant procedural rules to allow us to recognise that norm as a law, as having membership in the legal system – that is believed to violate some constitutional condition. Kelsen denies that such a norm is to be regarded as invalid. Rather, he argues that it is annullable on the ground of unconstitutionality, assuming that there is recourse to constitutional review. However, Kelsen adds that the norm in question will stand as valid and be enforced until it has been annulled by an organ that is specifically empowered to do so, the constitutional court.Footnote ¹⁸

Troper notes that if the annullable norm is to be valid for the time being, until it has been annulled by a constitutional court, there must be a hierarchy of norms, and there must be a constitution that validates the impugned norm for the time being. Kelsen claims that norms exist in the mode of validity. What it means for a norm to exist, to be valid, is for it to belong to a legal system. Hence, we can recognise that a norm belongs to a legal system only if it satisfies the conditions of validity laid out by certain higher-level norms of the system. A constitution – a set of top-level norms that lay down the conditions of the validity of subordinate legal norms – must be in place wherever there is a legal system, whether or not that system provides for an institution endowed with the power to annul norms on the ground of unconstitutionality. There is consequently no room for Kelsen to argue, Troper concludes, that a norm that is valid might nevertheless be unconstitutional, or to claim that there is no clearly defined hierarchy of norms, no constitution capable of validating subordinate legal norms, in the absence of a judicial institution empowered to perform constitutional review. The claim that there ought to be such an institution, then, cannot be portrayed as a value-neutral technical demand that does no more than spell out the conditions of the very existence of a structured legal order.Footnote ¹⁹

Troper’s challenge to the argument from constitutional supremacy is certainly ingenuous, but it is based on a misunderstanding of the character and intentions of Kelsen’s argument from constitutional supremacy. As Troper himself notes, a technical argument is an argumentFootnote ²⁰ that aims to validate a hypothetical imperative. Given that a certain end is to be accomplished, what means are necessary or at least pre-eminently suitable for doing so? Troper goes wrong in assuming that the relevant goal, the goal that Kelsen claims can be accomplished only with the introduction of constitutional review, is that of providing the conditions of the very possibility of a validation of legal norms. Instead, the goal is to give effect to the conditions contained in a written constitution that is not yet protected by constitutional review.

To elucidate the point, Kelsen’s analysis of the concept of constitution needs to be more closely examined. Kelsen distinguishes between what he calls a ‘material constitution’ and a ‘formal constitution’.Footnote ²¹ Any legal order necessarily possesses a material constitution. In any legal order, there must be top-level norms that provide the criteria for the validation of subordinate, lower-level norms. These top-level norms must, at the very least, establish the procedures for the valid exercise of legislative power, of the authority to enact general legal rules. In contrast, a formal constitution does not by necessity exist in any legal order. Rather, it is present wherever top-level norms are shielded against repeal or modification in the (ordinary) process of legislation. Such protection is typically (although not invariably) the result of a written constitutional document that confers enhanced legal force on all the norms contained in it. The most common method for establishing a formal constitution is to enact a constitution that protects constitutional norms with an amendment clause that imposes special procedural hurdles on the repeal or modification of all or some of the norms contained in the written constitution. A written constitution might also make certain norms completely immune to change or repeal, as in constitutions that contain so-called ‘eternity clauses’.

Any reasonably careful reader of Kelsen’s constitutional works should see that the argument from constitutional supremacy is concerned with the question of how to give legal effect to the norms of the formal constitution.Footnote ²² As aforementioned, Kelsen’s argument is addressed to a specific constellation in constitutional politics. It is assumed that the addressees of the argument accept and endorse the desirability of a formal constitution that imposes specific conditions on the validity of legislative and executive action or that a formal constitution that purports to impose such conditions is already in place. Given these background assumptions, constitutional review is necessary to give full legal effect to the formal constitution. Suppose, for instance, that the constitution prohibits laws that condition access to public services on religious belief, but that the legislature has enacted a law that blocks access to certain public services on the basis of religious belief. If there is no opportunity to appeal for the annulment of the law, it will remain on the books and be enforced, notwithstanding the fact that it violates a constitutional condition. In other words, the formal constitution will turn out to be a dead letter. The conditions it purports to impose on the validity of statutory norms will be devoid of legal effect. Kelsen argues that if one is committed to the idea that there should be a formal constitution and that it ought to be more than a dead letter, then one must also approve of constitutional review.

Note that the argument from constitutional supremacy, understood in this way, is an argument de lege ferenda. Kelsen does not claim that the mere fact that a formal constitution is in place empowers courts to engage in constitutional review and to strike down statutory norms. For example, Kelsen’s argument does not entail that the Supreme Court of India was legally justified in introducing basic structure review,Footnote ²³ as Troper would appear to suggest.Footnote ²⁴ Troper claims that Kelsen’s argument for judicial review is in effect the same as that put forward by Marshall in Marbury v Madison.Footnote ²⁵ That view is plainly mistaken. Indeed, Marshall held that the mere fact of the existence of a formal constitution entitled the U.S. Supreme Court to exercise constitutional review. Kelsen’s argument from constitutional supremacy claims no more than that it would be fitting for the legislator or the constitutional legislator to endow a constitutional court with the power to exercise constitutional review where a formal constitution is in place or is to be put in place.Footnote ²⁶

It would have been absurd for Kelsen to take the view Troper attributes to him, that is, the view that there can be no constitution in the legal-logical sense, no legal hierarchy, and no validation of lower-level norms by top-level norms without constitutional review. However, Kelsen clearly did not intend to argue for an absurdity of this sort. Once it is recognised that the argument from constitutional supremacy is concerned with giving effect to the formal constitution, Troper’s challenge to Kelsen’s argument from constitutional supremacy turns out to be based on a simple fallacy of equivocation. Consider a statute that appears to violate a constitutional norm but that is valid and, in the absence of constitutional review, cannot be annulled for its unconstitutionality. Here is what Troper has to say about that scenario:

When he speaks of ‘the constitution’, in this passage, Troper must be referring to the constitution in the material sense. As we have seen, Kelsen indeed holds to the view that there will always be a material constitution and concedes that a material constitution may well give validity to a law that conflicts with conditions of validity a formal constitution purports to impose on statutory norms. As we have also seen, Kelsen does not claim that there is no material constitution where there is no constitutional review. He does not argue that constitutional review is necessary because there could otherwise be no constitution that validates lower-level norms. Instead, he claims that a formal constitution may turn out to be legally ineffective if there is no constitutional review or, in other words, that the actual conditions of legal validity may come to differ from those announced in the formal constitution so that the latter becomes a dead letter. Constitutional review is meant to prevent this potential gap between the material and the formal constitution from opening up. When Troper claims that ‘the constitution’ will exist even without constitutional review, he simply avoids the question in which Kelsen was interested. The question in which Kelsen was interested, in putting forward his argument from constitutional supremacy, was not whether there will be some constitution, some set of conditions that in fact determine what laws will stand as valid. The question was which constitution that will turn out to be – the one that was solemnly promulgated in a constitutional document or the one that political powerholders, who may not be very interested in respecting constraints on their legislative and executive authority, manage to impose.

Troper would likely reply to these observations by invoking a second line of argument that figures prominently in his attacks on Kelsen’s argument from constitutional supremacy. Troper argues that a proponent of the PTL could never be in a position to claim that a statutory norm is unconstitutional, so that any alleged contrast between the constitution in the material sense and the formal constitution must be spurious:

It is true that, according to the PTL, there can be no norms that are null. This much follows from the claim that validity is the mode of existence of norms.Footnote ²⁹ However, it should be emphasised that the claim that there can be no norms that are null does not entail that there cannot be purported norms that are null. The instructions issued by the Hauptmann von Köpenick, frequently referenced by Kelsen,Footnote ³⁰ are a case in point. For a norm to be valid, the norm must at the very least have been enacted, as Troper himself puts it, ‘in accordance with the procedure laid down’,Footnote ³¹ it must proceed from a competent authority.

Disputes about constitutionality typically arise in cases where an act does proceed from a proper authority and is recognised, by citizens and officials, not to be altogether null, but where the act is held not to comply with all conditions imposed by a formal constitution. Here, the notion of annullability comes into play.Footnote ³² Acts that pass the threshold of nullity will have legal force until they are annulled by a competent organ. Regarding annullable norms, Troper argues that it is impossible to claim that they are contrary to the constitution before they have been annulled by a competent tribunal. Troper’s challenge is based on a fallacy of equivocation in this case as well. The claim that any valid legal norm must also be constitutional again confuses the constitution in the material sense with the formal constitution. The fact that an unconstitutional law satisfies the procedural conditions that suffice to make it valid, pro tempore and until it is annulled, does not imply that it cannot conflict with one or another element of the full array of requirements of constitutionality provided in the formal constitution.

I suspect that Troper would reply that someone’s view that a procedurally valid law conflicts with some requirement imposed by the formal constitution can be nothing more than an ‘opinion subjective’ until the tribunal empowered to annul has given its verdict.Footnote ³³ However, this reply is ambiguous between two senses of the term ‘subjective’ that need to be kept separate.

The claim that someone’s opinion that a law is unconstitutional is subjective might be understood to mean that that person is not formally empowered, unlike the competent tribunal, to render an authoritative decision as to whether the law in question is unconstitutional or not. My personal opinion that some statute fails to satisfy some constitutional requirement – however true or well justified – has no legal effect. It is evident that the opinions regarding the constitutionality of laws held by private individuals, including legal scholars, are subjective in this first sense.

However, I suspect that Troper’s use of the adjective ‘subjective’ is intended to make a claim that goes well beyond the anodyne observation that private persons lack the authority to annul a law. Troper’s claim that someone’s view that a law is unconstitutional is always subjective before the competent tribunal has rendered its verdict is meant to convey, apparently, that there is nothing to be right or wrong about here and that no opinion on the substantive constitutionality of a law that has been enacted ‘in accordance with the procedure laid down’ could ever be more justified than any other. Troper suggests that any view on the constitutionality of a law that passes the threshold of nullity must involve a value judgement and thus be a function of the will and not of cognition. It follows, of course, that the decisions of the competent tribunal must themselves be legally groundless and that they can never be more than instances of legislation. Accordingly, constitutional review is objectionable simply because it allows the subjective axiological preferences of unelected judges to determine which laws enacted by parliament will stand.Footnote ³⁴

It should be clear that the fact that an opinion on the constitutionality of a law is subjective in the first of the two senses distinguished above does not entail that it is subjective in the second. That it is the opinion of a competent tribunal that decides whether a law is to be annulled for unconstitutionality does not imply that such a tribunal must be legally infallible or that the opinions of private persons or legal scholars can have no merit if they conflict with the tribunal’s opinion. Moreover, there is no need to invoke the second sense of subjectivity to account for the facts that Kelsen tried to capture in his analysis of annullable laws. The interest in legal certainty sufficiently explains why the positive law typically determines that an annullable statutory norm will stand until it has been repealed by a competent tribunal and why it will become permanently valid if a competent tribunal of last instance decides not to annul it. The tribunal, like anyone else, may be right or wrong in its judgement of constitutionality, even though the law makes its decisions final and binding to allow for the settlement of constitutional disputes.

Certainly, the question of whether some statutory norm violates a constitutional requirement will often be subject to reasonable disagreement. Even competent legal practitioners who are genuinely interested in identifying the correct legal answer to a hard case may disagree with one another. As Kelsen was well aware, defenders of constitutional review must answer the question of why the task of taking a binding decision in a constitutional conflict about which there can be reasonable disagreement ought to be assigned to a court. Kelsen was happy to admit that to assign this authority to a court is to endow a judicial institution with considerable power, and he was not hesitant to admit that this power is political. He believed that there are good political reasons to embrace constitutional review.Footnote ³⁵

In Section 7.3, we will engage with the political dimension of Kelsen’s case for judicial review. Suffice it to say for now that Troper is not in a position to invoke the problem of reasonable disagreement to assail the legitimacy of constitutional review. Indeed, Troper implicitly denies that there is any such thing as reasonable disagreement about constitutional matters. Whether some statute has been enacted in conformity with the relevant procedures, he intimates, is a question that will rarely be subject to reasonable disagreement among competent lawyers, presumably because it is a question that does not involve axiological judgement. Questions as to whether some statute conforms to some substantive constitutional constraint, on the other hand, are supposedly mere matters of taste, which are not amenable to rational judgement. In this latter case, there simply is nothing to disagree about, although preferences may clash. Obviously, this view presses rather hard on the distinction between procedural and substantive questions. The claim that procedural questions are insulated from reasonable disagreement is not much more plausible than the view that people who find themselves in an axiological dispute must simply be shouting at each other.

To conclude the discussion of Troper’s challenge to the argument from constitutional supremacy, I would like to offer anticipatory replies to two obvious objections to the interpretation that I have presented here. According to the first of these objections, the argument, as I understand it, violates the PTL’s demand for purity or value neutrality. According to the second objection, the argument will be much less interesting than it appears to be at first glance and much less general in its scope if we adopt the interpretation that has been suggested here.

In response to the first objection, I am happy to concede that Kelsen’s argument from constitutional supremacy indeed involves value judgement. However, I do not see why that would show Kelsen to have been inconsistent or to have violated the PTL’s demand for purity. As aforementioned, the argument for constitutional review is an argument de lege ferenda or, more precisely, de institutione creanda; it does not claim to describe the law as it exists, nor does it argue that one can draw a justification of constitutional review from the very concept of law. Therefore, it is unclear why the demand for purity should apply to it. Troper is correct to point out that Kelsen’s argument from constitutional supremacy is intended to be technical, but as we have seen, he misidentifies the end that technique is to serve in this context. The relevant end is not to establish some legal order or other, no matter which, but to give legal effect to the formal constitution. That we ought to do so is a value judgement, of course. In presenting his case for constitutional review, Kelsen assumed that this judgement was uncontroversial, especially in cases where, as in the Weimar Republic, a formal constitution was already in existence. That the argument from constitutional supremacy refers to an end assumed to be valuable does not entail, in any case, that the technical reasoning about how to reach that end is evaluative. Even those who deny the value of some end should be able to agree, as Max Weber argued, that claims as to how that end might be accomplished are perfectly amenable to value-neutral scientific investigation.

According to the second objection, the interpretation of the argument from constitutional supremacy that has been presented here makes the argument much less interesting than it appeared to be. In my reading, Kelsen does not argue that any legal order must practice constitutional review to work as intended or that constitutional review must be legitimate wherever it exists. Moreover, he does not argue that the existence of a formal constitution by itself entitles a jurisdiction’s highest courts to exercise constitutional review and to strike down unconstitutional statutes. Kelsen’s argument from constitutional supremacy presents the much more limited claim that constitutional review is needed to give full legal effect to a formal constitution. It assumes, without defending that assumption, that it is desirable for a polity to have a formal constitution and for that constitution to be given legal effect. However, this modesty is not a deficiency of the argument from constitutional supremacy. It puts the focus of the debate on constitutional review where it belongs, namely, in the context of the question of whether it is appropriate for a democratic polity to embrace formal constitutionalism.

7.3 Kelsen on Constitutional Democracy

This brings us to Kelsen’s negative argument, which is intended to show that constitutional review need not conflict with democracy but can be helpful to its full realisation. This argument is not made entirely explicit in Kelsen’s writings, but it can be pieced together easily enough if one reads Kelsen’s writings on constitutional review in light of his theory of democracy.Footnote ³⁶

Before I embark on this exercise in reconstruction, let me add one important preliminary clarification concerning Kelsen’s argumentative goals. Kelsen’s negative argument does not aim to show that constitutional review cannot conflict with democracy. Certainly, it would be absurd to deny that the compatibility of constitutional review with democracy depends on the content of the formal constitution. Needless to say, a formal constitution could contain substantive provisions that are completely incompatible with democracy. If that is the case, the attempt to give full legal effect to the provisions in question by way of constitutional review would, also needless to say, likewise be incompatible with democracy. However, there is no reason to think that a defender of the democratic legitimacy of constitutional review is committed to defending the view that constitutional review has to be welcomed in all its conceivable instantiations. What they are committed to defending is the view, rather, that a suitably designed constitution and system of constitutional review may be conducive to the flourishing of democracy.

At first glance, Kelsen’s theory of democracy admittedly seems committed to a denial of even this modest claim. Kelsen’s analysis of democracy starts from a thesis that seemingly puts it at odds with standard understandings of the value of democracy. It argues that the nature of democracy is not to be explicated with reference to the value of equality but with reference to the value of freedom.Footnote ³⁷

Any social order subjects individuals to a condition that Kelsen describes as the ‘torment of heteronomy’.Footnote ³⁸ Political authorities make laws that purport to be binding, at least until they are repealed, and that are enforced against the recalcitrant by threats of coercion. Individuals who are members of a political society must therefore expect to find themselves compelled to act in ways that conflict with their own preferences and plans. The resulting insult to our autonomy calls for justification. Kelsen argues that democracy differs from other political regime types in that it offers at least a partial reconciliation of our interest in freedom with the unavoidable fact of heteronomy. According to Kelsen, the key characteristic of a democracy is that legislative decisions, or decisions on the enactment of general legal rules, are taken by the use of the majority rule. The majority rule ensures that a collective decision, though it must unavoidably frustrate the preferences of some people, conforms to the preferences of the largest possible number of citizens.Footnote ³⁹

Imagine a community that chooses to adopt a rule of continuing agreement as its rule of collective decision. A collective decision, under a rule of continuing agreement, requires everyone’s approval to come into force, and it remains in force for as long as everyone continues to endorse it. A rule of continuing agreement is tantamount to anarchy. It does not constitute a social order as Kelsen understands the term. According to Kelsen, a social order must be objective in the sense that its demands will continue to bind (and to be enforced) even if some group members come to reject them. A rule of unanimity, in contrast to a rule of continuing agreement, does not run afoul of the requirement of objectivity. Under the rule of unanimity, a collective decision requires everyone to agree to come into force, and it remains in force until it is repealed by a later, equally unanimous decision. A decision that is taken under the rule of unanimity continues to bind individuals who change their mind as time goes on and who come to prefer a different arrangement, at least as long as there are those who would like to stick with the original decision. The rule of unanimity therefore possesses objectivity. It may come to bind members of society in ways that go against their momentary will. The rule of unanimity may even come to bind the vast majority of members of society against their momentary will. A widely shared desire for legislative change might, in the most extreme case, come to be frustrated by the veto of a tiny minority of one. Note that any rule of collective decision that requires a supermajority has a similar effect: It will come into force only if most members of a group agree and will stand unless it is repealed by another, later supermajority, which makes it possible for a minority to hold a majority hostage. As should be evident, any rule of collective decision that puts the power to enact binding rules into the hands of an autocrat or an oligarchic minority will carry a similar potential to frustrate the vast majority of members of a group. Where legislative decisions are taken by one person or by a small group, there can be no assurance that the resulting norms will reflect the preferences of a significant number of addresses of the law.

These reflections show that the majority rule has a unique virtue, as Kelsen argues. The majority rule reduces the tension between the momentary individual preferences of citizens and the legal rules that are concurrently in force as much as possible within a framework of objective social order. Under the majority rule, a decision will come into force if and only if it is approved by a majority and will remain valid and binding until it is repealed by a later majority. The majority rule thus ensures that any collective decision, while it is binding, will continue to be in line with the momentary preferences of a majority of norm-addressees. There will always be more norm-addressees whose preferences are in line with the law than norm-addressees whose preferences are frustrated by the law. This assurance can be provided neither by an autocratic rule of collective decision nor by a rule that moves towards unanimity. Given that social order is necessary, the majority rule is the best we can do. Citizens who suffer a torment of heteronomy, if faced with democratically enacted law, have no reason to complain. The extent of freedom enjoyed by the subjects of the law has been maximised.

Troper rightly points out that this defence of the majority rule appears to conflict with Kelsen’s support for formal constitutionalism.Footnote ⁴⁰ Kelsen defines formal constitutionalism in terms of a rule of constitutional amendment: a formal constitution exists if and only if there are legal norms that are immune from repeal or modification in the ordinary legislative process.Footnote ⁴¹ Where the ordinary legislative process is democratic and majoritarian, the existence of a formal constitution entails that the repeal or change of constitutional norms requires a supermajority of some sort. However, Kelsen’s argument for the majority rule seems to imply that any adulteration of the simple majority rule is liable to reduce the extent of freedom enjoyed by subjects of the law. Kelsen, given the logic of his own argument for democracy, ought to have rejected formal constitutionalism and constitutional review.

The tension between Kelsen’s defence of the majority rule and his commitment to formal constitutionalism is undoubtedly real. However, this observation does not suffice to reject Kelsen’s view of the proper structure of a democratic constitution as incoherent. Kelsen’s reflections on the nature and value of democracy, on closer scrutiny, turn out to contain the resources to mitigate a charge of inconsistency.Footnote ⁴²

The general thesis Kelsen aims to defend in his reflections on democracy is that citizens of a democratic state have reason to regard the norms to which they are made subject as legitimate, even in instances where their own momentary preferences conflict with the law. Now suppose you are a citizen who is outvoted, for the time being, and who must therefore submit to rules that frustrate their preferences. It is not at all clear why the brute fact that the majority have had their way and that the extent of freedom under law has thus been maximised should suffice to reconcile you to your fate. The argument, in this brute form, has the whiff of a utilitarian disregard for the separateness of persons. You will argue that in the democratic state, every citizen’s interest in not seeing their preferences frustrated by the law is equally deserving of respect and consideration.

Kelsen would agree. Although he claims that democracy is to be defended, in the first instance, by appeal to the value of freedom, Kelsen concedes that a full justification of democracy must also consider certain claims of equality.Footnote ⁴³ At the very beginning of his discussion of the value of democracy, in explaining how the torment of heteronomy arises, Kelsen makes the following observation:

To rephrase, if we are all by nature equal in moral status, as a democrat would claim, no one can possess natural authority over anyone else. However, social order must nevertheless be established, and democracy is the form of social order that is most compatible with the assumption of natural equality in moral status. It leaves us all as free as we were before, as Rousseau would have it, or at least with as much freedom as we can reasonably hope to enjoy within the confines of the law, as Kelsen argues, in a somewhat more realistic vein. If Kelsen’s watering down of Rousseau’s promise of equal democratic freedom is not to strip democratic procedure of its legitimating power, then democracy must do more than simply maximise freedom under law. It must affirm our natural equality in political status.

The democratic state respects us as equals only where it gives equal consideration to everyone’s interest in freedom. To meet that requirement, the democratic political process, centred as it is on the majority rule as the dominant rule of collective decision, must therefore be supported by a number of background conditions. Suppose again you find yourself in the position of an outvoted citizen. Here are a number of further observations, observations going beyond the brute claim that freedom under law has been maximised, which, given you find yourself in a healthy democracy, might help you to find reconciliation with social order: The laws to which you are compelled to submit have been enacted as the result of a free and fair process of political competition. All citizens enjoyed an equal right to advocate for their views, individually and in organised groups, without having to fear any disadvantage in expressing their views. All social groups had adequate access to the public sphere to make themselves heard. The decision that has now been made, though it is binding pro tempore, is open to revision. It may come to be repealed at a later stage if a new majority so pleases. All citizens have the right to work, as individuals or groups, towards convincing their fellow citizens to repeal the offending law.

Kelsen is fully aware that the mere presence of legal or constitutional guarantees of freedoms of opinion, assembly and equal democratic participation, however necessary, does not suffice to establish the background conditions for the proper functioning of the majority rule.Footnote ⁴⁵ Outvoted citizens must know that there is a real prospect (and not merely the legal possibility) of an alternation in legislative and governmental authority as a result of the democratic process. There must be a party system that aggregates individuals into two opposing groups that are committed to the indefinite continuation of fair and peaceful political competition that honours the ‘rules of the democratic game’. Both sides must recognise each other as legitimate contenders for legislative authority and be willing to accept outcomes of elections that favour the other side. Where this is the case, one will likely see two large parties or coalitions of parties that aim to occupy the middle ground in an attempt to build an electoral majority. Truly democratic parties are willing to compromise with their opponents and to offer and act on a plausible interpretation of the common good, one that is not designed to buy the support of the narrowest constituency that might have a chance to win out in skewed electoral competition but to appeal to a broad array of voters on both sides of the central political cleavage.Footnote ⁴⁶

If both the legal and the factual conditions of properly functioning democracy are fulfilled, an individual who is outvoted now can reasonably hope to be a member of a future majority and to then enjoy the benefit of being subject to law that is in line with their personal preference. A flourishing democracy honours our equality in political status by making us all potential members of coalitions that exercise legislative authority until they are replaced, in free and fair elections, by a successful opposition. We are all included in a temporally extended popular will. Instead of speaking of the majority rule, Kelsen concludes, it would be more appropriate to speak of a ‘majority-minority rule’.Footnote ⁴⁷ A truly democratic majority can exist only where it is challenged by legitimate opposition, a minority that is a legitimate government in waiting.

To conclude, the simple freedom-based argument for the majority rule does not offer a full account of Kelsen’s conception of democratic legitimacy. Once the necessary supplements that ensure majoritarian democracy’s ability to offer reconciliation with social order have been brought into the picture, one can appreciate the fact that there is no necessary conflict between democracy and formal constitutionalism. Whether formal constitutionalism and constitutional review conflict with democracy depends on the content of the formal constitution. An ideal Kelsenian formal constitution would limit itself to protecting the procedures as well as the individual rights and liberties that are essential to properly functioning democracy. Constitutional review that enforces a formal constitution with that content serves to protect minorities against the tendency of a majority to entrench itself in power by rigging the rules of the game to deprive the minority of a realistic prospect of a democratic alternation in power. Thus, constitutional review defends the equality in political status that we must accord to each other as democratic citizens if the majority rule is to be able to legitimate its outcomes.Footnote ⁴⁸

To reemphasise a point I made at the beginning of this section, Kelsen’s negative argument is a modest one. It does not claim that there can be no flourishing democracy without formal constitutionalism and constitutional review. It could be that conventions and informal norms are strong enough, in this or that polity, to maintain the integrity of the democratic process. Moreover, Kelsen does not argue that formal constitutionalism and constitutional review are compatible with democracy in all their conceivable instantiations. A formal constitution may contain provisions that are designed to frustrate the collective self-determination of equal democratic citizens. What the negative argument claims is that there is no inherent conflict between democracy and formal constitutionalism bolstered by judicial review. A democratic constitution can be designed in a way that makes formal constitutionalism supportive of democracy.

7.4 The Contemporary Relevance of Kelsen’s Argument

It might be argued that the conclusion of the negative argument – that there is no inherent conflict between democracy and formal constitutionalism bolstered by constitutional review – is altogether too modest to be interesting. I will elaborate further to establish that formal constitutionalism and constitutional review, when designed in the right way, can be expected to support the flourishing of democracy.

It might seem that the truth of the claim is obvious. If a formal constitution establishes and protects the rights essential to the functioning of a democratic political system, then giving effect to that constitution through constitutional review, to turn it into a legal reality as opposed to a dead letter, must be conducive to the flourishing of democracy. Unfortunately, the simple combination of Kelsen’s positive and negative arguments does not suffice to establish that democracy must benefit from suitably democratic formal constitutionalism. There are at least two critical replies to Kelsen’s argument that are available to political constitutionalists.

The first arises from what I call the ‘argument from futility’. A proponent of the argument from futility agrees that the legitimating power of democratic procedure depends on more than just the majority rule. The democratic rules of the game must be observed by all parties, political rights must be respected, and there must be a real prospect of alternation in power. The argument from futility claims that the question of whether these background conditions of legitimate majoritarian rule are fulfilled depends entirely (or almost entirely) on political-cultural factors and not on whether there is a formal constitution bolstered by judicial review. Either a society does not need formal constitutionalism to establish a flourishing democracy, because a fully developed democratic political culture exists, or else formal constitutionalism and constitutional review will be powerless to prevent ‘democratic backsliding’, because neither key political actors nor the citizenry at large are deeply committed to democratic conventions.

The ‘argument from disagreement’Footnote ⁴⁹ presents a second challenge to Kelsen’s case for formal constitutionalism and constitutional review. It is best understood as a refined version of the claim that democracy is inherently incompatible with formal constitutionalism and constitutional review. A proponent of the argument from disagreement concedes that formal constitutionalism and constitutional review are not always futile. There may be cases in which judicial guardianship of a democratic formal constitution will turn out to protect democracy. Nevertheless, formal constitutionalism and constitutional review, while they are not inherently incompatible with democracy, are inherently incompatible, or so it is argued, with the full or perfect realisation of the democratic ideal.

The proponent of the argument from disagreement, like the proponent of the argument from futility, concedes that a flourishing democracy can exist only where there is general respect for the rules of the democratic game and the fundamental rights that sustain the democratic process. However, the argument goes on to claim that the interpretation of these rules and rights is subject to reasonable disagreement, even among citizens who are honestly committed to achieving collective self-government. The only democratic way to resolve such disagreement, the only way fully compatible with the fundamental assumption of equality in political status, is to leave such matters to the democratic process itself and not to rely on judicial institutions interpreting and applying a formal constitution.

Proponents of the argument from disagreement concede that it may be worthwhile to adopt formal constitutionalism and constitutional review in some instances. There may be societies whose political culture would not be able to support democracy without these crutches. However, the resulting instantiation of the ideal of democracy will be second rate in quality. It will fail to amount to a ‘core case’ of democracy. Therefore, formal constitutionalism should not be introduced where it is not needed to safeguard democracy, and we should remain aware that its presence, where it might be needed, indicates a deficiency in democratic development.

I will close by offering a defence, if only in very rough outline, of Kelsen’s case for formal constitutionalism and constitutional review against the arguments from futility and disagreement.

The soundness of the argument from futility depends on the truth of its empirical claims. To assess this argument, one would have to investigate empirically whether there are instances in which formal constitutionalism and constitutional review have prevented or at least impeded democratic backsliding. One would also have to determine whether such beneficial consequences of formal constitutionalism are more likely than effects detrimental to the proper functioning of democracy. An investigation of this kind cannot be undertaken here, of course. At any rate, the proponent of the case for futility bears the burden of empirical proof. What they must show to refute Kelsen’s defence of constitutional review is not merely that constitutional review can turn out to be detrimental to democracy, which is undoubtedly true, but that it should be expected to have that effect even where the content of the formal constitution that is to be given legal effect is focused on the protection of the integrity of the democratic process. That one can easily find examples of the abuse of constitutional review for purposes of ‘hegemonic preservation’ is neither here nor there – unless we think that the defender of constitutional review must show that all conceivable instances of the practice must be democratically legitimate.

What, then, about the argument from disagreement? I have already conceded that democracy can flourish without formal constitutionalism. However, we should be wary of the claim that the ideal of democracy is more fully realised in such instances than in formally constitutionalist polities. It may be that the seeming stability of successful democratic institutions that are not supported by formal constitutionalism is owed more to social, ideological, and ethnic homogeneity and to the absence of deep political conflict than to a principled commitment to the rules of the democratic game. Furthermore, the fact that the latter have never been made constitutionally explicit may, in a time of crisis, encourage and facilitate the adoption, in political practice, of a narrowly majoritarian understanding of democracy, one that identifies the will of the people with the will of a current majority, or even only with the will of a plurality whose support, due to vagaries of a distorting electoral system, suffices for a party to attain a majority of seats in a legislative assembly. If democracy is understood as simple majority rule, a minority’s opposition to the majority’s policies and its attempt to engage in political organisation and advocacy with a view to bringing about the democratic repeal of these policies may come to be seen as illegitimate and as a form of undemocratic resistance to the true will of the people. In that case, the minority will no longer be regarded as a majority in waiting but as a group of uncertain loyalty that consists of people who do not truly belong to the polity and who should not be offered a level playing field in electoral competition.

Proponents of the argument from disagreement would concur, I assume, that such a process would amount to a corruption of democracy and that it would turn democratic procedure into an empty shell that must fail to have legitimating force. However, if that concession is made, a blanket rejection of formal constitutionalism seems unnecessary. Formal constitutionalism can be a powerful symbolic repudiation of the majoritarian corruption of democracy. In light of recent events, it would be foolhardy and arrogant to blithely assume that the polities that supposedly qualify as ‘core cases’ of democracy will never find themselves in circumstances in which the opportunity for contestation afforded by formal constitutionalism might turn out to make a difference to the prospects of democracy.

In other words, the argument from disagreement does not speak to our current political predicament. It trades on the optimistic assumption that democracy can be taken for granted, at least in the more ‘advanced’ and ‘civilized’ nations of this world. The main virtue of Kelsen’s case for formal constitutionalism and of his democratic theory more generally is that it turns out, by contrast, to be surprisingly realistic. It does not trade in idealisations but asks how democracy can be stabilised in circumstances of conflict and crisis. This question is now more relevant than Dworkin and his political-constitutionalist opponents could have foreseen when they initiated the modern debate on the democratic legitimacy of formal constitutionalism and constitutional review in the long Indian summer of postwar liberal democracy. Kelsen’s unique blend of legal and political insight deserves much more attention.

8.1 Introduction

Hans Kelsen, writing in 1929,Footnote ¹ and Joseph A. Schumpeter, writing in 1942,Footnote ² were the first realistic theorists of democracy.Footnote ³ Both took it upon themselves to deideologise the ‘classical’ understanding of democracy and analyse how it truly functions. Both attempted to find its ‘essence’, to provide an analytical framework for how democracy in fact operates, and its ‘value’ – the ideals it realises. Likewise, they share several points of departure from classic theories of democracies: democracies function in societies with heterogeneous interests and values, to elect their representatives, individuals are organised by political parties, and the representative body defines the ‘popular will’ with which everyone must comply. Kelsen is precise in identifying the value that this system realises; however, Schumpeter leaves it to ‘the democrats’. They also differ in their institutional models of democracy, perhaps because Kelsen was thinking about Austria and Germany, while Schumpeter, writing in the aftermath of the collapse of the Weimar Republic, modelled democracy after Great Britain. Both believe that democracy can last and be successful only if each time it generates ‘compromise’ between the majority and the minority, in the language of Kelsen, or if the temporary majorities exercise ‘self-control’, in the language of Schumpeter. Both revert to exogenously given cultural conditions of societies in which democracy functions as a prerequisite for self-limitation by majorities. However, neither has much to say about the mechanisms that induce majorities to exercise self-restraint, and this is a fundamental problem for any understanding of democracy.

In what follows, I first briefly summarise the innovations introduced by Kelsen and Schumpeter into our understanding of democracy and the value they attribute to it. Then, I emphasise that theirs is not a ‘liberal’ democracy but a majoritarian one: neither reverts to some super- or contra-majoritarian institutions to explain why democratic governance would be limited. I try to tease out their views about the mechanisms that induce majorities to abstain from aggrandising their power beyond some limits. They both understand that such limits must be self-enforcing, that observing them must constitute an equilibrium in which the current majority stops short of monopolising power and the current minority agrees to act within the democratic framework as long as the majority is not monopolising power. However, analyses of how such an equilibrium may emerge, summarised in Section 8.4, are very recent and still incomplete.

8.2 Analytical and Normative Framework

8.3 Democracy and Liberalism

To reconstruct Kelsen’s and Schumpeter’s understanding of how democracy works – its ‘essence’ – their shared point of departure is that for both of them, democracy is a majoritarian system. However, for them ‘majoritarian’ is not a qualifier, not a distinction from any other type of democracy. Majority rule is definitional for democracy. Both would reject claims such as Rosanvallon’s:Footnote ²⁵ ‘Now power is not considered fully democratic unless it is submitted to the test of control and validation concurrent and complementary to the majoritarian expression’.

To clarify the issue, an essential distinction must be made between ‘the rule of law’ as a prerequisite of democracy and as an ex-post check on decisions reached through the democratic process. As ElsterFootnote ²⁶ observed, ‘Not all regulations are properly thought of as limits to majority rule. Many of them are better thought of as forms without which majority rule could not exist’. Democracy cannot function unless people are free to express and pursue their political opinions for the simple reason that governments cannot be replaced by elections unless people are free to organise and vote. KelsenFootnote ²⁷ says, ‘A democracy without public opinion is a contradiction in terms. Insofar as public opinion can arise only where intellectual freedom, freedom of speech and press and religion are guaranteed, democracy coincides with political – although not necessarily economic – liberalism’. Schumpeter (271) explicitly makes this distinction:

Subsequently, DahlFootnote ²⁸ provided an exhaustive list of ‘Requirements for a Democracy among a Large Number of People’, which are the conditions necessary for a majoritarian democracy to be possible. In turn, while Ginsburg and HuqFootnote ²⁹ refer to the ‘rule of law’, they again list prerequisites of democracy, not limits on majority rule:

However, the currently fashionable ideological language distinguishes ‘liberal’ from ‘electoral’ democracy.Footnote ³⁰ GalstonFootnote ³¹ offers a clear definition:

In turn, according to an influential data source, V-Dem (Codebook: 44), the liberal model takes a ‘negative’ view of political power insofar as it judges the quality of democracy by the limits placed on government. This is achieved by constitutionally protected civil liberties, strong rule of law, an independent judiciary, and effective checks and balances that, together, limit the exercise of executive power.

Democracy is thus ‘liberal’ in this second sense only if some institutions impose limits on the rule of majority that emerges from free, contested elections. These limits may originate either from supermajoritarian or countermajoritarian institutions. A simple majority rule is not ‘liberal’.

Thus, are Kelsen and Schumpeter ‘liberal’? Schumpeter clearly rejects all checks on majority rule: ‘Of course, there cannot be any legal limits to what a parliament, led by the prime minister, might subject to its decision’Footnote ³². He does not even entertain the possibility of the government being restrained by some other, nonmajoritarian organs. However, Kelsen’s view of this issue is not easy to decipher. BaumeFootnote ³³ observes that for Kelsen, ‘the rule of law does not presuppose any restriction on activities of the legislative power’. This is certainly what he says in the 1945 General Theory, where he asserts the supremacy of the parliament and relegates constitutional review to accidents of history:

His 1955 essay on democracy reasserts the supremacy of the parliament even further:

However, Kelsen was the author of the second (by a few months) constitution in the world to introduce judicial review, the Austrian constitution of 1920. Moreover, in an essay published in 1928, he proclaimed that ‘it is therefore not possible to rely on the parliament itself to realise subordination to the constitution. The task of nullifying its unconstitutional acts must be entrusted to a separate organ, independent of it and of any State authority, that is, a constitutional jurisdiction or tribunal’.Footnote ³⁶

Operationally, the issue boils down to whether Kelsen allows for some bodies to invalidate laws already promulgated by the parliament, according to the appropriate procedures. In several countries, the parliament either must or may seek the opinion of some specialised bodies about the constitutional validity of the proposed legislation before promulgating (at least some) laws: for example, according to the 1958 Constitution of France (Article 46), ‘Organic laws can only be promulgated after declaration by the Constitutional Council of their conformity with the Constitution’. However, until 1971 in France and other dates in several other countries, once laws are promulgated, they cannot be questioned: the clearest case is the Constitution of the Netherlands, which states (in Article 120), ‘The constitutionality of Acts of Parliament and treaties are not reviewed by the courts’. Kelsen clearly allows for judicial interventions in the implementation of laws by organs of public administration, but does he reserve the role of constitutional review only to the prepromulgation stage or allow for invalidating already promulgated laws on the grounds of constitutional principles?

The only reference to judicial review in the 1929 book occurs in the chapter entitled ‘Administration’, where Kelsen distinguishes the ‘democracy of legislation’ from the ‘democracy of execution’. His main thesis is that once legislation has been passed democratically, the execution promotes democratic norms if it involves implementing the laws. There is no place for democracy in the actual execution. However, there is this sentence, ‘But it is not only the individual norms laid down by administrative acts, it is also the general norms of regulations and more particularly of laws that can and must be submitted to judicial control, relating for the first to their conformity with the laws, for the seconds to their conformity with the Constitution’,Footnote ³⁷ even if the sentence that follows qualifies this formulation, restricting judicial review to the legislative procedure, not to the content of the laws: ‘the respect of the Constitution in the legislative procedure constitutes an eminent interest of the minority, for which, have seen, the rules about the quorum, the qualified majority, and so forth. have a function of offering it a protection’. Hence, what is subject to constitutional review is only whether laws have been passed in conformity with parliamentary rules, not whether they conform to some constitutional norms. This text, however, is contradicted in the essay written a year earlier: ‘The Constitution is, then, not only a procedural rule but also a substantive rule; therefore, a law may be unconstitutional either because of a procedural irregularity related to its creation or because of content contrary to the principles or directives formulated by the constituent, when it exceeds the preset limits’.Footnote ³⁸

Urbinati and AccettiFootnote ³⁹ see Kelsen as liberal ‘in the sense that [democracy] does not need to import the grounds for limiting its own exercise of political power from the outside, but contains them already inscribed within its own institutional framework’. Furthermore, ‘Kelsen’s point is that democratic self-government is possible only within the framework of a constitutional order because this is what defines the procedures that enable the people to govern themselves in the first place’. However, when he directly confronts the relation of democracy to liberalism, Kelsen treats the latter as a ‘procedural element of secondary importance’:

The only logically coherent interpretation of these apparent contradictions I can think of is as follows. First, as Kelsen observes, the court performs a legislative function. Second, the court is appointed by the parliament. As Castillo-OrtizFootnote ⁴¹ observes, the Kelsenian court has only moderate powers of review and is not insulated from political actors. Hence, the court is an element of parliamentary self-limitation. Parliament cannot trust itself, but it can self-bind itself by creating a body that would check its potential excesses. Comparing the Austrian constitutional adjudication to that of the US, KelsenFootnote ⁴² emphasises that in his model, laws are valid only if they pass the scrutiny of the court: the court is, in effect, the third chamber of the parliament. In this sense, the constitutional court is not different from the finance committee of the parliament when, as is true in several countries, this committee must be headed by the largest minority. In this interpretation, then, the constitutional court is just one element of parliamentary organisation. Indeed, the only paragraph where Kelsen discusses constitutional review ends with a reference to self-limitation: ‘If [democracy] rejects the self-limitation represented by the principle of legality, it dissolves itself’.Footnote ⁴³

This interpretation is logically coherent, but finding sense in apparent contradictions is a hazardous exercise. It may well be that Kelsen held different views at different times or that he said different things when writing as a legal theorist and when writing as a political theorist (something that Urbinati and AccettiFootnote ⁴⁴ reject). In the end, all I can say is that both Kelsen and Schumpeter believe that democracy is feasible only if majorities limit themselves, not when they are limited by some anti-majoritarian devices. Kelsen’s constitutional court is a device adopted by the parliament as a commitment to self-control.Footnote ⁴⁵ If it can check a parliamentary majority, it is because the parliament wants to be subject to checks. ‘Compromise’ or ‘self-control’ is what protects democracy from deteriorating into autocratic rule, but limitations on majority rule must be self-implementing; they cannot be imposed independently of the will of the majority. The essence of democracy, for both Kelsen and Schumpeter, is self-limiting majoritarianism.

8.4 Limited Government

Why then would democracy generate ‘compromise’ or ‘self-restraint’?

The problem Kelsen faces is that the parliament decides by majority rule, so the question becomes why the parliamentary majority would not simply ignore the wishes of the minority. Several passages in Chapter 6, where he addresses this issue, are just a play on words. One could not speak of a ‘majority’, Kelsen casuistically observes, if there were no ‘minority’; hence, the minority cannot be ignored.Footnote ⁴⁶ However, he also invokes what he considers facts and then offers a glimpse of the causal mechanism that presages our current thinking. He admits that ‘it appears that the majoritarian principle signifies the domination of the majority over the minority’, but then claims that ‘in reality, this domination does not realize itself most of the time’.Footnote ⁴⁷ In fact, again, Kelsen claims, ‘The entire parliamentary procedure tends to generate a middle solution (moyen term) between opposing interests’.Footnote ⁴⁸ As statements of fact, these are fragile assertions. However, the causal argument is prescient: ‘A dictatorship of the majority over the minority is not possible in the long run because of the very fact that a minority condemned not to exercise absolutely any influence will finally renounce formal participation’.Footnote ⁴⁹

Stylising somewhat Kelsen’s understanding, his democracy thus works as follows. Proportional representation sends to the parliament parties, the parliamentary size of which reflects their support in the electorate. Parliament makes decisions by a simple majority vote. However, because of parliamentary organisation, it reaches solutions that reflect the weight of the minority. Even if the formal rule is a simple majority, parliamentary procedures are designed to give some voice to the minority because otherwise, the minority would withdraw their participation in democratic institutions. This happens during each parliamentary term: the pie is divided at each time, reflecting the weights of the parties in the parliament at the time. However, all of this can be true only because some cultural, or what Kelsen refers to as ‘psychological’, factors are present: ‘Democracy and autocracy distinguish themselves by a psychological difference in their political state’.Footnote ⁵⁰

Schumpeter is more forthright. At each time, there is a majority, and the majority decides. All that can happen – and it is essential for democracy that it can, in fact, happen – is that the current majority can be removed from office by elections: ‘in making it the primary function of the electorate to produce a government (directly or through an intermediate body) I intended to include in this phrase also the function of evicting it’.Footnote ⁵¹ Hence, the majority can take the entire pie when it is in office but can be removed from office, so that as long as majorities alternate, the pie is still divided over time. However, Schumpeter also argues that for democracy to be successful, the majority must exercise ‘democratic self-control’Footnote ⁵² and that ‘effective competition for leadership requires a large measure of tolerance for difference of opinion’.Footnote ⁵³ This self-control must be exercised by the parliament: ‘in order to function properly all-powerful parliament must impose limits upon itself’.Footnote ⁵⁴ Moreover, this self-control must be exercised not only by the majority:

What, then, induces self-control? Democracy works if the government is ‘effective’, which requires several conditions outlined in chapter 23, including ‘self-control’, to be met. However, Schumpeter is even less loquacious about ‘self-control’ than Kelsen is about ‘compromise’. The only hint I could find is in a footnote on page 290, where the text refers to ‘the conditions which I hold must be fulfilled for democratic method to be a success […]’ and the footnote says: ‘By “success” I mean no more than that the democratic process reproduce itself steadily without creating situations that enforce resort to non-democratic methods and that it cope with current problems in a way which all interests that count politically find acceptable in the long run’.

Reading into both texts our current understanding of the conditions under which democracy survives, both Kelsen and Schumpeter can be interpreted as positing that democracy functions under the ‘shadow of withdrawal’. Unless the majority compromises or exercises self-control, the minority will withdraw their participation in democratic institutions. In turn, this shadow of the minority in abandoning democratic institutions induces the majority to moderate. However, these arguments compose just one paragraph in Kelsen’s work and part of a footnote in Schumpeter’s.

Both Kelsen and Schumpeter revert to exogenous conditions, or traits of the societies in which democracy functions. Thus, for Kelsen,Footnote ⁵⁶ ‘The application of the majoritarian principle carries certain quasi-natural limits. It is necessary that majority and minority could understand each other, if they should agree. This presupposes realisation of some conditions: a relative cultural homogeneity of the society […]’. In turn, according to Schumpeter,Footnote ⁵⁷ ‘If a physicist observes that the same mechanism works differently at different times and in different places, he concludes that its functioning depends upon conditions extraneous to it. We cannot but arrive at the same conclusion’. Hence, the final result all depends on certain traits of the society in which democracy is attempted. Democratic leaders stop short of usurping power if some cultural preconditions are fulfilled. Neither author enquires into why such preconditions would be present in some societies but not in others, and neither considers the possibility that they would be endogenous to democracy rather than exogenous.Footnote ⁵⁸

The spectre of absolute power is perhaps the most enduring theme of political thought. We might assume, like Madison (Federalist # 48),Footnote ⁵⁹ that at least some politicians are vulnerable to the ‘encroaching spirit of power’: the desire for their power to be enduring and unlimited. It makes no difference whether they care about power per se or the material rewards it generates. They want to stay in office for as long as possible and govern with the fewest limitations possible when they are in office. Why would they not do everything possible to aggrandise their power?

To answer this question, we first need to distinguish between sharing ‘spoils’ and sharing ‘power’.Footnote ⁶⁰ Spoils are shared when the incumbent government makes compromises, whether of material or another nature. Power is shared when the majority does not have the capacity to make decisions unilaterally: the opposition has institutionally guaranteed prerogatives,Footnote ⁶¹ or binding decisions require supermajorities, as under bicameralism,Footnote ⁶² or majority decisions are subject to validation by countermajoritarian institutions, such as constitutional tribunals. Increasing power means extending the discretion in making policies by weakening institutional obstacles and/or increasing the ‘incumbent advantage’, the probability that the current office holder will stay in office. However, contrary to centuries of writings that sought the solution in some exogenous devices, such as constitutions or ‘social contracts’, we now understand that limitations on power must be self-enforcing.Footnote ⁶³ It must be in the best interest of the rulers to stop increasing their power beyond some limit, and it must be in the best interest of the opponents to obey democratic norms if the rulers stop increasing their power beyond this limit. Limited government must constitute an equilibrium.

There are two reasons such equilibriums may emerge, but to my best knowledge, they have not been considered together. One is the need for cooperation. Suppose that the welfare of the majority increases when the minority (or minorities) cooperates by complying with the legal orders issued by the majority, and the minority cooperates if the majority is mindful of its interests. Then, the majority may find that it is in their best interest to stop short of fully exploiting their power.Footnote ⁶⁴ The need for cooperation differs across societies depending on their economic structure: societies that can extract rents from mineral resources need little of it, while those that must rely on bankers to loan money, peasants to produce food, and scientists to do research need extensive cooperation. Hence, in this view, limited government is more likely to prevail in societies that have a more complex economic structure.

The second reason is ‘the shadow of force’.Footnote ⁶⁵ Models of democracy formulated in such terms posit two lotteries: an electoral lottery in which control of office alternates according to some probabilities and a conflict lottery in which the relations of physical force determine the outcome of an eventual violent conflict.Footnote ⁶⁶ In this approach, elections generate temporary winners and losers. Elections peacefully process conflicts if the losers do not find their defeat excessively painful and if they expect to have a reasonable chance of winning in the future, which also means that the winners do not inflict much pain on the losers and do not foreclose the possibility of being removed from office by elections. This equilibrium exists if the present value of continuing the electoral lottery is higher than the present value of the conflict lottery for both the current incumbent and the current opposition, which means that the current rulers exercise self-limitation only if they are unlikely to prevail in the eventuality of a direct confrontation. The limitation of this approach, however, is that the power of the current majority and minority is treated as fixed, so that they either comply or do not comply with democratic norms.

A novel approach is offered by Luo and Przeworski’sFootnote ⁶⁷ model of the dynamic of democratic backsliding, which directly addresses the question of ‘self-limitation’ by specifying the conditions under which the incumbent government would desist from trying to increase its electoral advantage beyond some critical level that would be accepted by its opponents. Backsliding occurs either when citizens knowingly consent to the erosion of democracy because they find the incumbent highly appealingFootnote ⁶⁸ or when citizens unconditionally oppose the incumbent, so that the incumbent can remain in office only by backsliding.Footnote ⁶⁹

In all these models, there exist equilibriums in which the incumbent stops at something, and its opponents accept the democratic status quo but also equilibriums in which the elected governments take all possible steps to aggrandise their power. Moreover, these models still take the relations of physical force as exogenously fixed. The question that remains unstudied is whether the democratic rulers would stop aggrandising their power if they could increase their capacity to defeat their opponents by force so as to improve their chances of winning in the event of a violent conflict and by politicising the armed forces and the security apparatus, turning people with guns into political partisans.

The conclusion must be that the conditions for self-restraint are still not completely clear. Yes, ‘compromise’ or ‘self-restraint’ is almost definitionally a requisite of democracy, but no, it cannot be imposed from outside, and it cannot just follow from agreements about certain rules, unless those rules are self-enforcing. It must be in the best interest of the democratic rulers to stop monopolising power given the potential reactions of the opposition, and it must be in the best interest of the opposition to participate peacefully given that the incumbent stops. However, while we have made significant progress, the greatest challenge faced by Kelsen and Schumpeter has not been completely resolved.

In 1934, Hans Kelsen set out his ‘Pure Theory of Law’ (PTL) in Reine Rechtslehre: Einleitung in die Rechtswissenschaftliche Problematik.Footnote ² It is, as the title tells us, a theory of Recht, of legal right, not of Gesetz, enacted law, and Recht does trail an etymological cloud of natural law.Footnote ³ More precisely, it is a theory of the idea of Recht intrinsic to any system of positive law.

In English, ‘law’ does not make this distinction, and in the Anglo–American tradition of legal positivism, ‘law’ is more readily associated with enacted law. Consider how different the connotations of the title of HLA Hart’s major work in philosophy of law would have been had he called it The Concept of RechtFootnote ⁴ or if Joseph Raz, Hart’s most important student, had called his influential collection The Authority of Recht: Essays on Recht and Morality.Footnote ⁵ Many people may believe that these etymological issues do not matter. However, as my epigraph suggests, Kelsen, like his Anglo–American legal positivist counterparts, wished to avoid any suggestion that the Rechtlich or normative dimension of law entails some necessary connection between law and morality.

While Kelsen was correct that behind the veil of positive law stands ‘neither an absolute metaphysical truth nor the absolute justice of natural law’, I argue that it is misleading to assert that all one will find staring out is the ‘Gorgon head of power’. There will be power, albeit of a particular kind. It is power governed by law, power conditioned by Recht or ‘legality’, the only single word in English that comes close, as Hart once observed, to capturing the ‘nuances imported by the German word Recht’.Footnote ⁶ In other words, Kelsen must stray even further away from what he called in 1928 a ‘strict positivism’ in the direction of a natural law position than he was willing to do, albeit not by asserting a necessary connection between law and morality.Footnote ⁷ Rather, the connection is with a view of legitimacy, itself an ethical position, but one that sounds in political morality in contrast to the kind of moral position that informs judgements concerning correct individual action. As Kelsen noted in the same essay, the attempt by positivist jurists to comprehend law as an objective order through its most fundamental or ‘basic’ norm entails that ‘in a certain sense might is transformed into right [Recht]’.Footnote ⁸ The key to my argument is the role that he attributes to public international law in the constitution of the legal order of the modern state, a role that resonates with his accounts of state recognition and democracy.

9.1 The First Questions Regarding PTL

Kelsen begins Chapter 5 of Pure Theory, ‘The Legal System and its Hierarchical Structure’, with §27, ‘System as System of Norms’, in which he answers the ‘first questions’ to which PTL must respond: ‘What accounts for the unity of a plurality of legal norms, and why does a certain legal norm belong to a legal system?’ His answer requires an elaboration of his candidate for the fundamental norm of legal order, the basic norm, which leads him, in §30, to a consideration of ‘The Basic Norm of the State Legal System’ and, in (c) within that section, an exploration of ‘International Law and the Basic Norm of the State Legal System’. More succinctly, Kelsen finds that one cannot explain the legality of the state legal order without understanding the relationship between state law and public international law.

Kelsen’s nutshell answer to his first question is: ‘A plurality of norms forms a unity, a system, an order, if the validity of the norms can be traced back to a single norm as the ultimate basis of validity. This basic norm qua source constitutes the unity in the plurality of all norms forming a system’.Footnote ⁹

His argument starts by distinguishing between two types of norm systems: static and dynamic. Morality is his example of the former because the content of all lower-order moral norms can be ‘deduced’ by an act of ‘intellect’ from the content of the basic norm. The legal order is his example of a dynamic system. In §28, ‘The Legal System as Chain of Creation’, he notes that the basic norm of a ‘positive legal system’ is ‘simply the basic rule according to which the norms of the legal system are created; it is simply the setting into place of the basic material fact of law creation’. As such, it has a ‘thoroughly formal, dynamic character’: ‘Particular norms of the legal system cannot be logically deduced from this basic norm. Rather, they must be created by way of a special act issuing or setting them, an act not of intellect but of will’.Footnote ¹⁰

Somewhat later in the same section, Kelsen offers an example. One asks why a coercive act is valid. The answer is that the official who issued the norm has the authority to do so from the standpoint of a criminal law that has been enacted through a valid legislative procedure, one that is mandated by the constitution.

However, this example suggests two different candidates for the basic norm: the basic norm as a constitutive idea, the act of constituent power that created the historically first constitution and somehow endowed it with authority, or the basic norm as a regulative idea, the constitution itself that contains norms that regulate the production of lower-order norms. The ambiguity is not mitigated by Kelsen’s complex account of the constitution of a state legal order.

In his earlier work, Kelsen distinguishes between the ‘constitution in the legal-logical sense’ and the ‘constitution in the sense of positive law’, which he also calls the ‘material constitution’.Footnote ¹² As Lars Vinx notes, this use of ‘material’ is unusual, since the rules of the material constitution could be confined entirely to procedural rules; thus, it is merely a contingent fact about some state legal orders that they include in their constitutions a ‘catalogue of fundamental and liberty rights’.Footnote ¹³ It is also a contingent fact that a state legal order contains a ‘formal constitution’, rules that require different enhanced procedures for constitutional amendments in contrast to the rules that govern ordinary legislation. In addition, as Vinx elaborates in his chapter in this volume, Kelsen maintains that for formalisation to be effective, the constitution must confer authority on some group of officials to sanction the enactment of unconstitutional norms.Footnote ¹⁴ In the absence of this technique, if the legislature enacts an unconstitutional norm, the provision in the constitution in conflict with the enacted norm will prove cosmetic and will be replaced by the formerly unconstitutional norm. Accordingly, Kelsen advocates the introduction of a dedicated constitutional court as guardian of the constitution: a staff of independent officials who have explicit authority to decide constitutional disputes.Footnote ¹⁵

Vinx’s major foil in his chapter is Michel Troper, a distinguished constitutional theorist and Kelsen scholar, who argues that Kelsen’s observations on judicial constitutional review render PTL impure because they inject substance into his account of the state legal order.Footnote ¹⁶ Vinx’s response is that the distinction between the material and the formal constitution permits PTL to remain pure because the substance entailed in a commitment to constitutionalism is contingent on the design of particular state legal orders, not intrinsic to all. Constitutionalism begins not with the establishment of a state legal order but rather with the formalisation of its material constitution plus the institution of a court that has the authority to invalidate unconstitutional norms.

It is also important to note that a commitment to constitutionalism in this sense is not yet a commitment to liberal democratic constitutionalism. Kelsen clearly contemplates the possibility that a state legal order could entrench autocracy as a system of government or the institution of slavery and delegate to a constitutional court the task of protecting the slave owners’ rights to their property. Hence, the demand for liberal democratic constitutionalism comes not from PTL but rather from a political theory that claims that the substantive commitment to the equality of all members of a political society requires the effective constitutionalisation of those rights minimally necessary to protect equality. As Vinx shows, such a demand can be supported through arguments based on resources in Kelsen’s work on democracy. However, he argues that while such arguments are consistent with PTL, the demand does not represent their basis.

Vinx’s response is powerful and one that Kelsen would endorse. However, Troper has an important point when he charges Kelsen with contaminating PTL. As I now show, another point of entry for substance can be found in Kelsen’s account of the role of public international law in constituting the legal order of the state. Once that role comes into view, one can make sense of the basic norm as both a constitutive and a regulative idea, so that constitutionalism begins with the establishment of a state legal order, whether or not its constitution is formalised. Moreover, the direction of the process of constitutionalism is towards democracy.

On this view, PTL is not contaminated by substance. Rather, its purity is preserved in the sense that it relies exclusively on legal ideas, particularly on the idea that if a state legal order is established, so politics is subordinated to law. PTL is thus a theory of the Enlightenment ideal that all state power is exercised according to law, both enacted law and constitutional principles. As such, the basic norm is a political presupposition of legal order, the constitution ‘in the legal-political sense’ rather than, as Kelsen puts it, ‘the constitution in the legal-logical sense’.

9.2 The Efficacy of the State Legal Order as a Principle of International Law

In §29 of Pure Theory, ‘Significance of the Basic Norm’, Kelsen claims that the basic norm ‘is valid not as a positive legal norm – since, it is not created in a legal process, not issued or set – but as a presupposed condition of all lawmaking, indeed, of every process of the positive law’.Footnote ¹⁷ If the emphasis is on ‘legal’ in ‘legal process’, one might believe that the process is extralegal or political, a claim which Kelsen seems to confirm in §30(a), ‘Content of the Basic Norm’, when he offers as an example of creation of the basic norm a ‘violent coup d’état in a monarchy’ staged by a ‘band of revolutionaries attempting to oust the legitimate rulers and to replace the monarchy with a republican form of government’.Footnote ¹⁸ When such an attempt is successful, ‘[o]ne presupposes a new basic norm, no longer the basic norm delegating authority to the monarch, but a basic norm delegating lawmaking authority to the revolutionary government’.Footnote ¹⁹ He then asks: ‘What accounts for the content of the basic norm of a certain legal system?’ His answer: an analysis of the ‘ultimate presupposition of legal judgments shows that the content of the basic norm depends on a certain material fact, namely, the material fact creating that system to which actual behaviour (of the human beings addressed by that system) corresponds to a certain degree’.Footnote ²⁰

This answer establishes an indirect relationship between the basic norm and ‘efficacy’. In contrast, the direct relationship is between a valid legal system and efficacy as the system depends on a degree of correspondence with the ‘real behaviour’ of the individuals who are subject to the system; that is, the system’s validity, ‘depends in a certain way … on the efficacy of the system’.Footnote ²¹ In cases of total correspondence, the basic norm would merely tell everyone to do as they pleased, which would be ‘just as meaningless’ as a system in which there was no correspondence.Footnote ²²

Notice that, in Kelsen’s own terms, the title of this subsection is misleading. The basic norm is, in fact, contentless and the same everywhere. Every state legal order has its own material constitution as well as enacted and other forms of law, while its basic norm stipulates only that the law of that order must be obeyed. In other words, the law of the state legal order contains content in the sense of laws that delegate particular authority to officials and in the sense of the ‘law of contracts’ or ‘constitutional law’. However, that content is not to be confused with the content of the legal order’s basic norm, the norm that must be presupposed if one is to understand the legal order as a unified order of norms.

Kelsen thus introduces some confusion when he changes the subject from the content of the basic norm of any state legal order to the relationship between the content of the law of a valid legal order and the behaviour of its legal subjects. Things become clearer in the following section, §30(b) ‘Validity and Efficacy of the Legal System (Law and Power)’, where he states that even this direct relationship does not permit one to ‘identify’ validity with efficacy. ‘[O]nly if reality is not identical with the validity of the law is it possible that reality either conform or fail to conform to the law’.Footnote ²³

It is worth noting that in the German text of this subsection, Kelsen uses Recht for ‘the law’ because the way in which ‘the law’ is used in the English translation, although it accurately captures the fact that the law under discussion is positive law, overlooks the fact that Kelsen is primarily concerned in this subsection with its normative dimension. Moreover, he notes that if one substitutes ‘power’ for ‘efficacy’, the problem becomes one of the relationship between ‘law [Recht] and power’.Footnote ²⁴ This relationship elicits the ‘old truth that while the law cannot exist without power, neither is it identical with power. The law is, in terms of the theory developed here, a certain system (or organisation) of power’.Footnote ²⁵ With that thought, we approach the argument of my chapter – that the way in which ‘in a certain sense might is transformed into legality [Recht]’ conditions the content of law such that it cannot have any content. The basic norm both constitutes the normativity of law and regulates its content.

Kelsen does not say why his account of the basic norm requires his very next topic, discussed in subsection §30(c), ‘International Law and the Basic Norm of the State Legal System’. In my view, it is because the integration of the legality of public international law into his philosophy of law explains the relationship between the efficacy and validity of a legal system. He says of this relationship that it is a ‘principle’ to be found in the ‘content of a positive legal norm’, a norm of public international law; and in Chapter 5, he summarises his argument in the later chapter on public international law thus:

Here, Kelsen is not asserting a direct relationship between efficacy and the basic norm of a state legal order. If he did so, he would be guilty not only of contradicting himself but also of violating a fundamental commitment – that an ‘ought’ cannot be derived from an ‘is’. However, it is not the fact of effectiveness that functions as the basic norm of a state legal order but rather a principle of effectiveness, a norm. Moreover, the principle is not a free-standing moral principle. It is a valid norm because it belongs to a valid legal order, the international legal order.

This issue raises the question of the validity of that order, which, while it must be effective to be valid, cannot ground its validity on that efficacy, only on its own basic norm, as Kelsen acknowledges:

Here, we come to the very heart of PTL, to the dramatic claim that the basic norm of the international legal order is the basic norm of all state legal orders: ‘The norm providing the foundation for state legal systems can be understood as a positive legal norm, and that will be the case if international law is understood as a system above the state systems, delegating powers to them’.Footnote ²⁸

I have emphasised ‘if’ because, while it points to the solution to the puzzle of normativity, it contains its own puzzle, made up as follows. First, Kelsen suggests in his chapter on public international law and thereafter that there is no choice because one must presuppose a basic norm of one legal order for all other actually existing legal orders if one understands all of them as valid normative systems. However, he also argues that, from the perspective of PTL, one could logically choose the basic norm of one’s own state legal order as the basic norm of all legal orders, including the international legal order. ‘If’ betokens a choice between basic norms – the basic norm of the international legal order and the basic norm of one’s own state legal order. Second, Kelsen often suggests that the factor that drives that choice is personal preference: whether one prefers the ideology of cosmopolitanism, in which case one would choose the basic norm of the international legal order, or the ideology of nationalism, in which case one would choose the basic norm of one’s own state order.Footnote ²⁹

Kelsen cannot mean by this claim that this ideological clash is as insusceptible to rational judgement as are competing preferences for different flavours of ice cream. That view would be in tension with his theory of democracy, which addresses fundamental questions of political theory in the same rigorous fashion as his philosophy of law, as he also does in his polemical exchanges with Carl Schmitt in late Weimar about the politically crucial question of who should be the ‘guardian of the constitution’ – the executive in the person of the president or the court charged with deciding constitutional disputes.Footnote ³⁰ However, in these works, Kelsen seems to suppose that scientific analysis is possible only insofar as one can ascertain what follows from existential choices, for example, the choice for democracy over autocracy or the choice for constitutionalism and the rule of law over dictatorship.

These choices are merely different articulations of the choice that I suggested above explains the choice for constitutionalism, for the Enlightenment ideal that all state power is exercised in accordance with both enacted law and constitutional principle. As I now argue, the choice to understand legal order as normative through the lens of the basic norm is not only political. It is also a choice that does not allow that law can have any content. Further, it is a choice that must be made if one is to understand law as Recht, as legal right not political might.

The fact that there is, in a sense, no choice is best illustrated by Kelsen’s 1941 response to John Austin’s command theory of law, according to which law is the commands of the sovereign, a legally unlimited commander whom we identify by seeing to whom the subjects of state power have a habit of obedience, itself procured by the fact that each command has a sufficient sanction attached to it to motivate general obedience.Footnote ³¹ Kelsen argued that Austin’s theory is not merely ideologically unsound, a choice for nationalism over cosmopolitanism.Footnote ³² It is also contrary to legal experience in two major respects.

The command theory reduces the philosophy of law to a predictive model about when sanctions will be applied. It understands the norms to which sanctions are attached as a static system in which the content of lower-order norms is derived from the content of higher-order norms. However, in a state legal order, sanctions are inflicted only when they ought to be inflicted, only when there is a legal basis that justifies infliction. One predicts that officials will inflict sanctions on the basis that they will act in accordance with duty, which first requires understanding law as an order of norms. In addition, the determination of the content of the norms on the basis on which they act happens in a dynamic process, not as a matter of static deduction.

Kelsen’s choice to understand law as normative is thus not a matter of personal preference since one must make this choice if one wishes to understand law as it is.Footnote ³³ It requires one to choose the basic norm of the international legal order as the basic norm of all legal orders, not as a matter of personal preference but as a matter of political morality, which is not political morality at large. Rather, it is the political morality of legal order.

I now turn to my support for these claims, first in Kelsen’s insistence on ‘monism’ for an account of the relationship between international and state legal order and, second, in his account of state recognition. I argue that his student Hersh Lauterpacht, the most eminent international lawyer of the past century, was largely correct that Kelsen’s preference for the primacy of the basic norm of public international law was the ‘back door’ by which the ‘ghost of natural law’ had ‘crept into the cast-iron logic of … his system’.Footnote ³⁴ However, he was only largely correct because the presence of a natural law element is much more concrete than Lauterpacht believed. As mentioned above, the basic norm in PTL functions more as political presupposition of legal order, as the constitution ‘in the legal-political sense’ rather than, as Kelsen describes it, ‘the constitution in the legal-logical sense’.

9.3 Monism, Dualism, and State Recognition

9.4 PTL and Democracy

We encountered above Kelsen’s argument that every legal order must be effective to some degree before it can be said to be valid. If there were total compliance with its norms, it would be superfluous; too little compliance and it would not exist as a legal order. To be effective somewhere in between these two points, it must represent a ‘compromise’ between ‘conflicting interest groups in their struggle … to determine the content of the social order’ and so it must be the case that none of these groups is ‘wholly satisfied or dissatisfied’.Footnote ⁵⁹ That, he suggests, is what makes a legal order an order of peace.

On one view of such an order, peace is just the absence of conflict. On this view, Kelsen’s claim that a legal order is necessarily an order of peace could be said to be the result of the fact that an effective legal order is one in which the state’s claim to a monopoly on legitimate coercion holds. However, Kelsen had something else in mind to do with the fact that the state’s monopoly on legitimate coercion is necessary but not sufficient for an effective legal order to exist.Footnote ⁶⁰ It is necessary because, in every legal order, some individuals conform to the law due solely to their fear of being sanctioned if they fail to do so. However, it is not sufficient. Long-term stability depends on the fact that a large proportion of legal subjects can understand the monopoly as legitimate, which requires them to understand that their subjection serves their interests, even when they disapprove of the content of some or many laws.

In other words, compromise between conflicting interest groups will not be achieved if the content of the law, as determined by the relevant officials, regularly relegates the individuals on the losing side of the conflict to a second-class status or worse. These individuals will not be able to accept such a compromise as a sufficient basis to make sense of their legal order as an order of right or authority rather than one of unmediated coercive power. The kind of compromise that sustains a state legal order is not one on any terms whatsoever, one that permits the law to have any content. Rather, it is a compromise that maintains legal subjects in their status of equality before the law, just as public international law is committed to maintaining the status of states as, legally speaking, equal.

Kelsen did note that ‘[o]nly one group may be interested in ‘peace’, namely, the one whose interests are better preserved by this order than those of other groups. These other groups may still comply with the law. They may maintain the state of peace not because they consider it legitimate, but because, in view of their own weakness, they must be satisfied with the minimum of protection which this order affords to their interest’.Footnote ⁶¹ Put differently, if it is a legal order it will be maintained in part by the weaker group on the basis that it does protect their interests, albeit minimally, a claim supported by this quotation:

Kelsen’s view in this regard is, not coincidentally, elaborated in his 1920 book on democracy, a central theme of which is the ‘torment of heteronomy’:Footnote ⁶³ the pain that accompanies conceiving of oneself as an autonomous individual who should decide how best morally speaking to live, but who accepts there is reason to abide by mandatory public norms one would not oneself choose if one had the power to do so and that may even strike one as unjust. Democracy can alleviate the torment and help to explain why subjects should have this stance of acceptance because it preserves for them the equal chance of participating in making such norms. There is both a formal and a substantive dimension to such preservation. The formal dimension is that the political process is as open to their participation as it is to that of everyone else in the political community, which makes it possible for the community to decide on the content of the norms that will govern their common life. The substantive aspect is that the maintenance of this openness recognises and preserves their status as free and equal subjects.

Legal order has a symbiotic relationship with this kind of political order. More accurately, if one wishes to establish a political order that will maintain this kind of peace, it must take the form of a legal order, because the latter makes it possible for the political community to ‘posit’ or enact its decisions. Here we have the reason why the idea that enacted law can have any content is so central to debate in modern philosophy of law and the sole focus of many in the legal positivist camp. But the idea is subject to an important qualification, one with which English legal positivism cannot deal, but which for PTL is but a step along its inquiry into legality.

The fact that political order takes the form of legal order affords to the political community something qualitative. This kind of political community is a jural community, one in which political power not only must be exercised through law, but also the officials who implement, enforce, and interpret that law must act within the bounds of their authority. Their decisions must have a legal warrant, must be justifiable as being in accordance with law, which means in accordance with Recht as well as Gesetz.

As Kelsen emphasises, all official activity involves interpretation, a creative exercise of will in determining the content of the law.Footnote ⁶⁴ In making that determination, officials, whether front-line administrative officials, high court judges, or legislators, must seek to display the content of the norm that they are charged with determining as part of a meaningful whole, which will include showing that it is consistent with the content of other relevant substantive norms of the legal order. And since that content will be an order of peace – one reflective of a compromise of interests between the different social groups subject to law – if any particular norm is to support rather than undermine the postulate of unity, it must be interpretable as maintaining the individuals’ subject status. Just as the democratic political order must maintain the political subject status of those who end up forming the opposition to a particular law, so the particular laws of a state legal order must maintain the legal subject status of the individuals in the jural community.

This jural community is not necessarily a democratic political community. Historically, jural communities were established in monarchies before the emergence of modern democratic political communities, just as families preceded states, and states preceded the international legal order, a point that brings me back to the issue of contingency that I mentioned above. Kelsen’s PTL is a theory of the modern state, nested as it is in the post-Westphalian international legal order. I conclude with a sketch of some implications.

9.5 Conclusion

Within the post-Westphalian, international legal order, the state becomes the legal state, which means that it henceforth operates externally in a political space framed by law in which it assumes legal personality, and the same is true of its internal space in which natural individuals assume their legal personality.Footnote ⁶⁵ I have suggested that this suffices for constitutionalism in that, when monarchs decide or are forced to establish a jural community for their subjects, to put in place a legal order within an overarching international legal order, constitutionalism is set in motion.

If this motion continues, the direction is democracy because of the combination of two ideas. The acceptance by legal subjects is constitutive of the authority of the legal order, and as I have put things elsewhere, the judgements made by public officials must seek to answer the subject’s question ‘But, how can that be law for me?’Footnote ⁶⁶ Any form of undemocratic political rule is in tension with this combination, as is the enactment of particular laws that consign groups of subjects to second-class status or worse. However, the other direction is always a practical possibility.

As we are once again learning, even when a democratic legal order is in place there is no guarantee that the subject’s political or legal status will be maintained. Throughout this chapter, I have followed Kelsen’s example of personifying the law, for example, in saying that public international law ‘delegates’ authority to states or that the constitution of a state legal order ‘delegates’ authority to officials. However, as Kelsen often insists, it is important to recall that it is people are who are making the decisions.

The law does not speak through the mouths of officials. Rather, it is made by officials in a dynamic process of norm production. That process is legal in that it is law governed. The basic norm regulates the production process in that officials exhibit their fidelity to law in attempting to interpret the norms of their legal order as a meaningful whole: the norms of the material constitution that delegate authority to them, the norms in the bill of rights if there is one, the norms contained in statutes and in whatever sources of law are made relevant by their law, and of course the relevant international law norms.Footnote ⁶⁷ Recall that for Kelsen even at the uppermost reaches of the chain of norm production the process is law governed, not only the enactment of statutes, but also amendments to the material constitution.

On this interpretation of Kelsen’s PTL, scientific or ‘pure’ analysis of Recht – of the legality of law – requires the basic norm to be understood as a regulative assumption, a claim about inquiry and what individuals engaged in inquiry must assume, if their inquiry is into the authority of law. As such, this idea has both theoretical and practical dimensions. As a matter of theory, it requires an elaboration of authority as legitimate and attention to the way in which the relationship between those who wield authority and those subject to it can be said to be one of right rather than might. As a matter of practice, it requires attention to the way in which, in the light of legal subjects’ experience of law, legal order is and should be designed with a view to vindicating its intrinsic commitment to the rule of law and its concomitant commitment to constitutionalism.

However, all that cannot be had without acknowledging the drive towards substance in PTL, one that sacrifices its claim to be pure of ideology in the sense of political value commitments. Nevertheless, as I have argued, a kind of purity is preserved in that the theory is one that seeks to show how the interaction of the international legal order with state legal orders affords a set of political spaces in which different ideologies can contest each other on equal and peaceful terms. This allows Kelsen to resolve his dilemma between substance and emptiness without having to choose emptiness to preserve the purity of his theory. And as I have also argued, his account of the relationship between the international and state law points in the opposite direction.

On my account, PTL sacrifices purity in the sense of value neutrality. But it preserves it in that its account is in exclusively legal terms, terms that allow us to understand how politics can take place in a space constructed by law in both the international order and in the orders of modern legal states.