Conventional readings of Hans Kelsen (1881–1973) mischaracterise him as a theorist of ordinary legality who took for granted the long-term stability of democratic institutions. The cardinal goal of this volume is to show, on the contrary, that Kelsen never lost sight of the dangers threatening constitutional democracies in his time but instead made them foundational to his overarching political and legal writings and, by doing so, authored one of the most significant chapters in the history of twentieth-century democratic theory. This chapter merits renewed attention today for its timely and largely forgotten resources – historical, conceptual, normative, and practical – to ongoing debates about the present and future of constitutional, liberal democracy.
I.1 A Prejudiced Reception
Responsible for the prolonged oversight of Kelsen’s contribution to democratic theory, both in his time and in ours, is a prejudice that has protractedly affected the reception of both halves of his oeuvre – that is, his philosophy of law and his political and democratic theory. This bias still makes Anglophone scholars of democracy largely indifferent to his work. Ever since the short-lived experience of the Weimar Republic (1919–1933), Kelsen’s political writings have been criticised or altogether dismissed for supposedly lacking normative and practical antidotes to cope effectively with moments of crisis. According to conventional (mis)readings, his theory of democracy applies only to ordinary, not extraordinary, political circumstances. As the architect of the ‘pure theory of law’ and the foremost representative of legal positivism in twentieth-century Continental Europe,Footnote 1 Kelsen has been routinely charged with blindness to the complexities and messiness of political life. According to his numerous critics, the flawlessly linear structure of jurisprudential systems built on the postulate of the Grundnorm is inadequate to capture, understand, and solve the disruptions that real world politics creates in the pattern and texture of legal normativity. Precisely because of its signature attempt to make jurisprudence autonomous from both empirical social sciences and moral theory, a Kelsenian approach to democracy allegedly leaves it defenceless on the impervious battleground of politics.
This critique was influentially articulated by Carl Schmitt – Kelsen’s most (in)famous antagonist – in the early Weimar years. In his Political Theology ([1922] 2005), he ridiculed Kelsen’s neo-Kantianism as short-sighted vis-à-vis the concrete possibility of the ‘exception’ and thus unable to envision emergency measures that could protect constitutional democracies on the verge of implosion. Mariano Croce and Marco Goldoni have recently recalled how Schmitt’s decisionism and exceptionalism were engineered precisely as responses to ‘the (alleged) self-sufficiency of the positivist theoretical toolkit’ – specifically, its emphasis on the normal case, its equation between the state and the law, and its silence on the source of the legal order. Schmitt claimed he could flip the legal positivist script on multiple levels. Against Kelsen’s account of the rule of law, his defence of judicial review, and his theory of democratic legitimacy, the future Kronjurist of the Third Reich dismissed normality as secondary in the life of democratic regimes, bringing the ‘jurisgenerative force’ of the state and the constituent power of the exception back under the magnifying glass of legal and political theorists.Footnote 2
Schmitt’s intellectual and ideological critique inaugurated a long history of distrust towards Kelsen that would loom large in the aftermath of the Second World War, affecting the transatlantic reception of his work and significantly impacting the circulation of his democratic theory among Anglophone readers. During the Cold War, the antithesis between Marxism, pervasively critical of the institutions and procedures of the rule of law, and a strand of liberalism built on the primacy of natural law (as in the influential case of Leo Strauss)Footnote 3 did not favour a theory of democracy such as Kelsen’s, which rejected the assumptions of both. Concomitantly, the increasing hegemony of behaviouralism, especially throughout the 1950s and 1960s, made American departments of political science unfriendly to a vision of politics that was perceived as unappealingly abstract.Footnote 4
Interestingly, the critique of Kelsen’s thought as ‘politically anaemic’ extended far beyond his democratic theory.Footnote 5 It was also one of the main charges against his philosophy of law in postwar American academia, at a time when legal realism had established itself as the new dominant paradigm in jurisprudence and legal theory.Footnote 6 The slanderous claim that Continental legal positivism had failed to stand up against Nazism was often cited as evidence of its dangerous implications for political practice. According to their critics, Kelsen’s arguments on law and democracy entailed a moral relativism that was deemed ‘utterly sterile’ (in the words of Karl Llewellyn),Footnote 7 a ‘useless exercise in logic rather than life’ (in the words of Harold Laski, rephrasing the famous dictum by Judge Holmes),Footnote 8 and a paradigmatic example of a ‘legalistic ideology’ obfuscating the delusions of neutrality and the political ideology intrinsic to a system of norms (in the view of Judith Shklar).Footnote 9 Twenty-five years before her influential essay on The Liberalism of Fear (1989), the Harvard theorist developed in her book Legalism a full-throated critique of all approaches that either insulate law from morality and politics (as in the case of Kelsen’s and Hart’s analytical positivism) or conflate these three domains (as in the case of natural law theories). While defending the legitimacy of the Nuremberg trials, she voiced her scepticism towards any ‘peace through law’ approach in the international arena, such as that theorised by Kelsen throughout the 1940s and 1950s. In addition, she rejected Kelsen’s ‘pure theory’ as a ‘homeless ghost’ and the quintessential example of ‘extreme formalism’, treating law as ‘a self-contained system of norms’ and assuming its ‘static timelessness’.Footnote 10
In reinforcing the American bias against the Austrian jurist, Shklar followed in the footsteps of her Harvard mentor, German-American political scientist and theorist Carl Friedrich. His disagreement with Kelsen regarding the study of social theory, philosophy of law, and democracy was partly responsible for the latter’s short-term appointment and subsequent failed contract renewal at Harvard Law School. Roscoe Pound – the Dean of Harvard Law School, who was introduced to Kelsen’s work by Felix Frankfurter (a Viennese immigrant himself) and who had first invited him to Harvard in 1936 – described Kelsen as ‘unquestionably the leading jurist of the time’; however, his endeavours to offer Kelsen a permanent job failed. Despite his cordial personal relationship with Kelsen, Lon Fuller, Professor of General Jurisprudence at Harvard Law School, expressed utter distaste for Weimar legal positivism, which he held accountable for the rise of Nazism due to its inability to distinguish between ‘respect for constituted authorities’ and ‘fidelity to law’.Footnote 11 Whenever a legal system does not deserve our faithfulness, as in the case of Nazi law, citizens – so the argument of Fuller went – need ‘to decide for themselves whether to stay with the system’.Footnote 12 This ‘fidelity to law’, Fuller concluded, cannot be expected from legal positivists à la Kelsen, and this shortcoming is precisely what made the parliamentary democracy of Weimar sink into the abyss of totalitarianism.Footnote 13 After the Oliver Wendell Holmes inaugural lectureship at Harvard Law in 1940–1941, followed by a research associate position in comparative law and a lectureship at Harvard’s Department of Sociology in 1942, Kelsen had no other choice but to leave.Footnote 14
Similar divergencies and oppositions shipwrecked the attempt of the University of Chicago, primarily by Charles Merriam, to recruit Kelsen for a joint appointment between its Law School and its Political Science department. Along with being the first American university to professionally court Kelsen, the University of Chicago was where the aversion to Kelsen’s defence of relativism in liberal democracy gained its most powerful traction. The hostility of Catholic faculty members and of President Robert Maynard Hutchins – a fervent supporter of natural law theories who had quickly appointed Jacques Maritain and Leo StraussFootnote 15 – derailed the initial enthusiasm for Kelsen’s work. Sabotaging it once and for all was a letter to Hutchins by Waldemar Gurian, a Catholic convert who had attended Schmitt’s seminars in the early 1920s and founded the political theory journal The Review of Politics:
He is without doubt a brilliant legal technician, but without any understanding of political realities; though he ‘understands’ everything, he is in his most important works opposed to natural law, metaphysical concepts, etc. I think he represents a mentality which is completely out of date and which is responsible for the threatening breakdown of European civilization by the victory of primitive political religions. These religions arose partially in opposition to the empty logicism and relativism of an attitude à la Kelsen.Footnote 16
Strauss, among the most prominent political scientists teaching at Chicago, echoed this judgement in a long unpublished paper on German nihilism and then, again, in the first pages of Natural Right and History (1953), attacking Kelsen without naming him and presenting his relativism and his rebuttal of natural right as a ‘seminary of intolerance’.Footnote 17
Our volume confronts, challenges, and seeks to overturn this long-standing and deep-seated prejudice against Kelsen both as a political thinker and, more specifically, as a theorist of democracy. It shows that the author of the Pure Theory of Law ([1934] 1967) was neither an ivory tower scholar nor a legal philosopher with a rarefied understanding of democratic politics and its most incendiary questions.Footnote 18 Quite the contrary, he conjoined theory and practice in ways that consistently shaped his scholarship across neighbouring fields – from legal and political theory to constitutional and international law and jurisprudence – allowing him to often play important roles on the chessboard of history, both in his native Austria and abroad.Footnote 19 In this way, our project follows the interpretive strategy deployed by Lars Vinx in his first major monographFootnote 20 in an attempt to reconnect Kelsen’s well-known ‘legal theoretical’ work and his less-mined but equally important ‘political theoretical’ writings as ‘mutually support[ing] each other’.Footnote 21
I.2 Kelsen on Democracy between History, Theory, and Practice
One century after their publication, Kelsen’s writings on democracy – sharply dissecting its principles, institutions, and challenges – command the attention of theorists and historians alike. The chapters in this volume exemplify the collective effort to employ the double prism of history and theory to examine what is still relevant and worth re-examining in Kelsen’s political work and how it can contribute to contemporary democratic theory and practice. However, this ambitious enterprise cannot succeed without proper consideration of the historical contexts (plural) in which the Austrian jurist developed his ideas. One of the main aims of our volume is to show that we lose something valuable – even crucial – whenever we fail to do so – that is, whenever we offer a monodimensional account of his democratic thought.
Predominantly penned throughout the Weimar years while also venturing into the first decade of the Cold War, Kelsen’s political writings provide a razor-sharp analysis of democratic erosion during one of the darkest phases of European and world history. They also explore the challenges of a new age, when the consolidation of constitutional democracies from the ashes of the Second World War and the memory of mono-party dictatorships prompted wide-ranging debate on the procedures of democratic life, the shortcomings and potential of representative institutions, and the relationship between capitalism, socialism, and democracy. Hence, they encapsulate a crucial chapter in the history of twentieth-century democratic theory and offer compelling insights into some of the most pressing challenges facing liberal democracies in the present, as we shall explain in this chapter.
Relentlessly developed over several decades (early 1920s–mid 1950s), Kelsen’s democratic theory stemmed from first hand experience and careful study of the political vicissitudes of Continental Europe between the two World Wars. It started as an attempt to capture ‘the essence’ and ‘the value’ of (multi)party democracy in response to the October Revolution of 1917, the ‘neo-Communist theory of Bolshevism’, and its gospel of the proletariat’s dictatorship. It soon turned into a nuanced and cross-disciplinary analysis of the converging attacks on parliamentary government and liberal pluralism by left and right wing ideologies. Indeed, as the contestation of multipartyism and free elections grew louder and democratic erosion eventually gave way to democratic breakdown,Footnote 22 Kelsen’s political writings acknowledged the urgency of understanding what made liberal democracy so vulnerable at its core. This task entailed the unsettling effort to let go of all the ‘fictions’ of ‘democratic ideology’,Footnote 23 which had turned ‘democracy’ into an empty catchword at the mercy of anti-democratic actors, and the ambitious attempt to explain what ‘real’ democracies were truly about. His critical study of the principles that form the democratic imagination – freedom above all – was propaedeutic to his project to reform how democratic institutions operated and thus to reduce the gap between the ideal and the real state of democracy (a recurring theme of his political theory). This approach to the study of democracy – at once philosophically sophisticated and pragmatically orientated – encapsulates the fulcrum of Kelsen’s multiple political writings, published across decades, countries, and continents, as he fled Nazi Germany and relocated to Geneva, Cologne, Prague, and then Boston (Harvard and Wellesley) and eventually San Francisco (University of California, Berkeley).
As many contributors to this volume aptly show, a contextual study of Kelsen’s political writings allows us to uncover the historical impetus behind his vigorous defence of parliamentarism, constitutionalism, and liberal democracy. In turn, it shows how the unfolding of his democratic theory throughout the decades reflected the changes in the fraught political landscape that he observed and thus reveals his constant endeavour to bridge the domains of theory and practice in the study of constitutional democracy.Footnote 24
Sara Lagi is among the Kelsen scholars who have meritoriously emphasised the importance of a contextual and diachronic analysis of Kelsen’s political writings against the backdrop of the political history of post-First World War Austria, Germany, and Europe. The first edition of Vom Wesen und Wert der Demokratie (1920) was partly built on Kelsen’s 1911 Hauptprobleme der Staatsrechtslehre, especially its critique of the ‘fictions’ of state and sovereignty at the core of late nineteenth-century German legal positivism (Carl Friedrich Von Gerber, Paul Laband, and Georg Jellinek). Published the same year as Das Problem der Souveränität, it primarily targeted the inconsistencies of Bolshevism and rejected Lenin’s calls for ‘direct’ or ‘pure’ democratic self-rule in lieu of parliamentary democracy. Its second – and significantly expanded – edition engaged with the diversified and, unfortunately, much broader range of critics of democratic representation, including the legion of far right ideologies (i.e., the Nazis and the fascists) and those who dismissed elections-based parliamentarism as outdated, calling for a ‘corporative Parliament’ (Ständeparlament) built on vocational representation, that is, on the multiplicity of professional interests at work in the social order.Footnote 25
As Peter Langford recalls in this volume, Kelsen took his first steps as a theorist of democracy in the distinctive context of Austria’s newborn First Republic, at a time when Austria’s Social Democrats were conflicted about the specific state form of their country following the collapse of the Austro-Hungarian Empire. In the mid 1930s, Kelsen placed the backsliding of European interwar democracies at the core of his 1935 La Dictature de Parti, overcoming his earlier dichotomy between democratic and autocratic governments and developing the concept of ‘party dictatorship’ to capture the actual regression of constitutional democracies from multiparty to monoparty regimes. In 1948, in the aftermath of the Second World War and in the context of the Cold War, Kelsen further examined the contested nature of the concept of democracy within a global order polarised between Western powers and the Soviet Union. In his 1948 book The Political Theory of Bolshevism, he unveiled ‘the paradoxical contradiction which exists within Bolshevism between anarchism in theory and totalitarianism in practice’ and alerted his readers to ‘the attempt to obliterate and adulterate the true idea of democracy by presenting a party dictatorship as the political self-determination of a free people’.Footnote 26 In Part Two of that book, titled ‘Democracy or Party Dictatorship’, Kelsen questioned the dual-track logic underpinning the Cold War fight over democracy (either formal—political or substantive—economic) and painstakingly untangled the gradual shifts in the visions of Marx and Engels and then Lenin and Stalin. He also examined the distinctive kind of representation at the core of the Soviet Union (i.e., the most emblematic case of a mono-party state) and assessed the relationship between democracy and two competing orchestrations of economic life – socialism and capitalism. Effectively, The Political Theory of Bolshevism took Kelsen’s long-standing concerns about the fragilities of European (interwar) democracies into a new era of global afflictions. By doing so, it set the stage for many of the ideas discussed in his two-part essay on the Foundations of Democracy that he would publish in the journal Ethics in 1955.
Nadia Urbinati similarly highlights the importance of a historically situated analysis of Kelsen’s democratic theory. Kelsen theorised about the essence and value of parties at two different junctures: first throughout the 1920s and early 1930s, when multipartyism was under the converging attacks of Bolshevism, fascism, and Nazism, and then, in the late 1940s and mid 1950s, when the urgency was no longer to oppose party dictatorships but to preserve party pluralism in liberal, constitutional democracies.
Given Kelsen’s constant struggle to protect democracy from illiberal, authoritarian currents, it is surprising how tenuous, erratic, and truthfully unfair its reception has been in the English-speaking world – at least until recently.
I.3 The Kelsen Renaissance in Anglophone Democratic Theory
Despite the role that Kelsen played in the intellectual history of twentieth-century Continental debates on democracy and his contributions – both theoretical and practical – to democratic constitutionalism after the First World War and the Second World War, Anglophone scholars continue, almost by default, to associate the name of Kelsen with his towering work in legal theory and jurisprudence. Indeed, pervasive across the Kelsen literature in English is a major asymmetry. While his legal philosophy has been thoroughly dissected over the past four decades, turning Kelsen into a classic of twentieth-century philosophy of law ever since his death in 1973,Footnote 27 systematic explorations of his theory of democracy remain scarce. Over the past fifteen years, at least since Vinx’s important monograph (2007), Anglophone scholars have occasionally studied specific aspects of Kelsen’s democratic vision.Footnote 28 Their exegesis has been driven mostly by the attempt to craft new readings of its signature themes: democracy’s relativism and its connection to majority rule;Footnote 29 the role of parties and the nature of partisanship;Footnote 30 the value of political compromise;Footnote 31 the relationship between legal positivism and human rights;Footnote 32 the connection between ethical principles and political institutions;Footnote 33 the temporality of legal validity in democratic orders;Footnote 34 the divide between autonomy and heteronomy in democratic constitution making;Footnote 35 and democracy’s material constitution.Footnote 36 Sometimes, these scholars have excavated his liberal cosmopolitan project to examine the relationship between his Pure Theory of Law and his international law writings.Footnote 37 Previously, they have drawn on Kelsen to provide fresh perspectives on the foundations, normativity, and institutions of liberal democracy in the present.Footnote 38 At the same time, historical narratives of twentieth-century legal and political thought have often studied Kelsen’s ideas vis-à-vis those of other authors – from the broad church of Weimar jurists, their predecessors, and epigonesFootnote 39 to the many Jewish intellectuals whose thought was forged by the traumas of exile, statelessness, and migration.Footnote 40
Consequently, references to Kelsen’s political writings are not difficult to find in articles, volume chapters, and portions of monographs; they have even multiplied over the past several years,Footnote 41 with the most recent handbook on contemporary democratic theory devoting entire sections to Kelsen’s proceduralism and the various strands of ‘Kelsenians’ in early twenty-first-century debates about democracy.Footnote 42 Testaments to the enduring interest in Kelsen’s political life and thoughtFootnote 43 and the increasing traction that both have been gaining in the English-speaking world are the following works, inaugurating possibly new chapters in his Rezeptionsgeschichte: the first English translation of his Weimar-era debate with Schmitt on constitutional guardianship and the legitimacy of constitutional review;Footnote 44 two edited volumes on his place within twentieth-century European jurisprudence and his absence in twentieth-century American legal theory;Footnote 45 a recent biographical study conducted through the lens of his political realism;Footnote 46 and, most recently, a magisterial intellectual biography published in German by the director of the Hans Kelsen Institut in Wien and currently being translated into English.Footnote 47
However, the piecemeal approach to Kelsen’s democratic theory and the overall scholarship on his work, profoundly unbalanced in favour of his legal theory, have failed to alert Anglophone readers to the breadth, depth, and nuances of his decades-long work on constitutional democracy.Footnote 48 Only two books have been published in English on Kelsen, specifically as a political thinker and democratic theorist,Footnote 49 while the first full English edition of his most famous book on democracy (Vom Wesen und Wert der Demokratie, 1929) appeared only in 2013, approximately one century after its original release and several decades after its translation into multiple languages.
Through this volume, we hope to make Kelsen’s account of constitutional democracy a common currency across multiple adjacent fields and finally place his democratic theory on the intellectual map of Anglophone scholars and readers. To date, no publication in English (or in any other language) has offered what our project seeks to offer: an all around examination of Kelsen’s democratic theory, its genesis, its major axes, its internal tensions, its connections to his legal theory, as well as a critical analysis of its relevance and overlooked potential to theorise the challenges of liberal, constitutional democracy in our troubled present.
I.4 A Conceptual Compass for Navigating Kelsen’s Democratic Theory
In the following pages, we would like to draw our readers’ attention to six key themes of Kelsen’s writings on democracy that run through this volume and that remain central to ongoing debates in historical and contemporary democratic theory and the social sciences at large. These six thematic blocks include the role of political parties in democracy; the qualities of democratic leadership; the protection of plurality and minorities through the practice of political compromise; the principles and mechanisms that limit majority powers in constitutional democracy; the tension between the inclusivity and accountability of democratic governments; and the resources that Kelsen offers to theorise and study the populist transformations of constitutional democracy in the early twenty-first century.
I.4.1 Political Parties: From the Ideal to the Reality of Self-Determination
Framing Kelsen’s account of political parties is an overarching theme of his democratic theory: the tension between the ideal and the real state of democracy (which is analysed by Lagi in this volume). In ways that are highly reminiscent of Weber, Kelsen unveils the implications of what he calls, in both his political and legal writings, ‘the fictions of democratic ideology’. The latter range from the personification of the State as a sociopolitical unity to the definition of ‘the People’ as a collective sovereign, from the notion of political representation as popular sovereignty to the idealisation of the Parliament as the cradle of the general will. Deceptively mixing descriptive and prescriptive arguments, political ‘fictions’ propel democratic concepts and practices into the realm of metaphysical abstractions. Thus, they obscure the way in which (multi)party democracy works and ultimately favour its detractors, who, from the left and right alike, champion (mono)party dictatorship as the only way to overcome the shortcomings of representative institutions in the age of mass politics.Footnote 50
Parties are among those institutions that turn the idea of democratic freedom as political self-determination and participation in government into a palpable reality. At the same time, their imperfections – and the party reforms that Kelsen vigorously recommends – offer powerful reminders of the need to constantly, gradually, and perhaps asymptotically implement how real democracy works. Anticipating Eric Schattschneider’s famous lines in the opening paragraph of Party Government (1942) – that is, ‘modern democracy is unthinkable save in terms of parties’Footnote 51 – Kelsen argues that ‘[m]odern democracy virtually rests on political parties’; that ‘[o]nly self-deception or hypocrisy could lead one to suppose that democracy is possible without political parties’; finally, that ‘[a] democratic State is necessarily and unavoidably a multi-party state’.Footnote 52 According to Kelsen, the necessity of parties in democracy is a corollary of his deliberate dismantling of the sociopolitical unity of the People: ‘[f]ollowing this line of investigation’ – that is, the progressive shift from the idea to the reality of democratic life – ’we encounter one of real democracy’s most important elements: the political party’ (our emphasis).Footnote 53
If competing interests are intrinsic to mass democracy, if their clash is inevitable,Footnote 54 and if the will of society always results from a compromise among such interests, it follows that parties are essential. For Kelsen, ‘the People’ as a group agent capable of participation in government comes into being only through the organisation and division of citizens into political parties. From the amorphous mass of scattered individuals, parties carve out the ‘People’ as a ruling, rather than ruled, subject capable of collective political agency, bringing together like-minded individuals, coalescing their claims, granting them a presence and a voice inside representative institutions, and assembling and organising citizens based on issues of common concern.Footnote 55
Kelsen also explores and subsequently rejects the claim that parties exemplify an ‘atomistic – individualistic’ mindset. He defends ‘partisanship’ as a natural feature of real democracies, dismisses the idea of a nonpartisan (überparteilich) common interest and of a general solidarity among all of society’s ‘parts’ as a ‘metaphysical – or, better, metapolitical – illusion’,Footnote 56 and deconstructs the arguments of those – Carl Schmitt and Heinrich TriepelFootnote 57 above all – who accuse parties of undermining the unity and sovereignty of the State. On Kelsen’s account, what makes parties necessary and resourceful for democracy is their twofold function: as collectors of preferences outside institutions and as vehicles for deliberation, negotiation, and decision-making within the legislative assembly.Footnote 58
However, parties are no angels. Kelsen fully acknowledges that the frequent misbehaviour of elected officials seriously undermine the legitimacy of party democracy in citizens’ eyes. In a Parteienstaat based on proportional representation, electors cannot choose individual candidates; they can only vote for a list of candidates compiled and presented by each of the competing parties. Therefore, examining whether parties enhance, or undermine, democratic lawmaking is a key concern for Kelsen. In this volume, Wolkenstein examines the scope of what he calls Kelsen’s ‘party constitutionalism’, that is, ‘the idea of subjecting party organisations to constitutional regulation’ to guarantee their conformity with democratic principles.Footnote 59 Giving parties legal recognition in democratic constitutions,Footnote 60 as Kelsen explicitly advocates, allows to curb the ‘aristocratic-autocratic tendencies’ of intraparty life (extensively and influentially documented by Robert Michels in his book in 1911);Footnote 61 at the same time, it also aims to bring parties closer to democratic citizens in the absence of the imperative mandate.
Kelsen lists several reforms that would make parties better in terms of their accountability and responsiveness to their constituents but also stronger and less prone to internal fragmentation within the legislative assembly, interestingly combining the mechanisms and resources of representative and direct democracy. Such reforms range from legislative (not just constitutional) referenda for both passed and standing laws to minimise the gap between parliamentary decisions and public opinion and thus strengthen the legitimacy of parties in the Parliament, to petitions for enabling citizens’ participation in the lawmaking process between elections. He also insists on the importance for citizens to be able to recall their elected officials whenever their votes in the legislative assembly differ from the agenda they presented while campaigning and for parties to control their elected MPs by means of party discipline. According to Kelsen, restoring the democratic credentials of parties entails two additional steps: party representatives should lose their seat in the legislative assembly whenever they change their party affiliation simply to advance their career, and each party should consult nonpolitical experts to make sounder decisions on highly technical issues that will affect the lives of citizens at large.
Underpinning Kelsen’s account of parties – their nature, functions, shortcomings, and reforms – is an emphasis on the responsibility of political actors, especially towards their electorate. The rationalisation of power in liberal democracy requires accountability, which entails active citizenship, a vigilant public opinion, an open-ended and transformative interaction between civil society and representative institutions, the legitimacy of disagreement and opposition, and the alternation of power through free and competitive electionsFootnote 62 – characteristics of regimes that successfully bridge the gap between ideals and reality and that instantiate the foundational principle of political self-determination.
I.4.2 Political Leadership: Democratic and Autocratic Models
Political leaders are another key factor in the pursuit of self-determination under conditions of representative politics. Kelsen’s conception of leadership is a constitutive piece of his democratic theory that, quite surprisingly, has received significantly less scrutiny in the literature than other concepts at the core of his political and legal writings. According to Invernizzi Accetti and Peisajovich,Footnote 63 the democratic method of appointing rulers rests, for Kelsen, on five pillars: first, the multiplicity of leaders both synchronically (i.e., in the same context – to provide citizens with a plurality of options) and diachronically (i.e., over time) to ensure the circulation of new blood through the democratic body politic; second, the accountability that stems from people’s power to electorally dismiss their incumbents; third, a certain fluidity and dynamism in power relations – unlike in autocracies, which are crystallised and immune to contestation and change; fourth, competition by means of elections; last but not least, the fact that positions of power are truly up for contestation by virtually anyone in the democratic arena. Taken together, these five features outline a theory and practice of political leadership in liberal democracy that points in the direction of enhanced accountability thanks to the multiplicity of contenders, the actual possibility of their rise and fall, the open competition among candidates, and the possibility of electoral disavowal.
As the contributors of this volume point out, Kelsen’s demand for stronger accountability – of parties and leaders alike – stems from the relativism that permeates his entire democratic theory. It is the relativistic mindset that subjects leaders as well as parties to a rational assessment of their behaviour and tenure, in contrast to ‘the system of autocratic ideology’, which turns ‘the origin, selection, and creation of the leader’ into a question of blind faith beyond any possibility for rational inquiry or discussion.Footnote 64
Another crucial aspect of Kelsen’s theory of democratic leadership is the fact that ‘in a democratic “election”, the leader is not only chosen by the subjects but selected from their midst’.Footnote 65 Kelsen eloquently echoes Weber’s phrase ‘autocephalous selection’ to capture this distinctive feature: the leader (the head/kephalē) is not dissimilar to the remainder of the political body but made of the same substance. In other words, the rulers and the ruled come from the same pool in a democratic system since leaders are not imposed from the top down but rather are elected from the bottom up by citizens among themselves. Conversely, as Scheuerman reminds us, ‘in autocratic states, political leaders are viewed as standing above the social community […]. Typically, autocracies rely on a version of the obsolescent idea of a supreme or transcendent moral or political good, accessible only to leaders possessing superhuman or supernatural qualities’.Footnote 66
Kelsen’s concern with how autocratic leaders, unlike democratic ones, present themselves and are in turn perceived as ‘superhuman’, ‘supernatural’ individuals capable of exclusive access to a ‘supreme’, ‘transcendent’ good is noteworthy. As is well known, he was deeply familiar with the psychoanalytical innovations of his time, specifically those by another prominent Austrian – Freud. He drew on Freud’s Totem and Taboo (1913) in his Gott und Staat (1922–1923) to explain the political psychology of authority, as well as on Freud’s Group Psychology and the Analysis of the Ego (1921) to dismantle the ontology of the State in two extensive essays from 1922 to 1924.Footnote 67 In December 1911, Freud and Kelsen met at a seminar held by Hanns Sachs under the auspices of the Viennese Society of Psychoanalysis and soon developed a relationship of mutual intellectual esteem. In 1921, Freud invited Kelsen to give a lecture on the concept of the State and the psychology of the masses that critically engaged with Freud’s work and that Freud, in turn, briefly but critically referenced in the second edition of his Group Psychology and the Analysis of the Ego. In addition, the first edition of the Pure Theory of Law and State (1934) was released by Freud’s publisher, Franz Deuticke. Finally, the question of the roots of authority and the dynamics of obedience and imputation, together with the analogy between God and the State, would continue to be on Kelsen’s mind through the late 1950s, as shown by some of the essays collected in What is Justice? Justice, Law, and Politics in the Mirror of Science (1957). Robert Schuett has recently pointed outFootnote 68 that Kelsen’s ‘Freudian moment’ deeply influenced how a younger generation of political realists – from E. H. Carr to Reinhold Niebuhr and Hans Morgenthau – understood power politics and domestic leadership in the international arena. For many of them, nations were best understood as the macrolevel projection of the individual ego of ‘the man in the street’, with his ‘lust for power and prestige’, ‘indulg[ing] his anarchic lusts vicariously’.Footnote 69 Echoing Kelsen almost verbatim thirty-five years later, Morgenthau, who dedicated Truth and Power to his teacher and friend Kelsen, wrote that ‘the people project their desire for power’ and ‘unsatisfied aspirations onto the international scene’, ‘find[ing] vicarious satisfaction in identification with the power drives of the nation’.Footnote 70
As Jestaedt recalls in this volume, Kelsen’s reflections on democratic leadership properly emerge in the second edition of The Essence and Value of Democracy,Footnote 71 precisely at a time when ‘das Führerproblem in der modernen Demokratie’Footnote 72 is becoming increasingly and dramatically acute. Some twenty-five years later, Kelsen once again addressed the question of the essence and value – one could say, rephrasing the title of his famous book – of democratic leadership. As he explicitly writes, in Foundations of Democracy (1955), the question of leadership in multiparty democratic regimes is not one of efficiency (that is, of merely getting things done according to a logic of inputs/outputs) but of guaranteeing ‘the greatest possible amount of individual freedom’Footnote 73 from an ostensibly relativistic perspective. In the intellectual milieu of the Cold War, Kelsen’s emphasis on relativism in the making and remaking of democratic leaders closes the door on all attempts to justify the replacement of ‘government by the people’ with ‘government for the people’Footnote 74 – most notably by the Soviet doctrine of democracy.
I.4.3 Preserving Plurality: Democratic Compromises and Their Virtues
Despite the safeguards provided by accountable political parties and democratic leaders, party democracy remains fragile, according to Kelsen. As Peter Langford argues in this volume,Footnote 75 Kelsen’s realism unveils the constantly latent possibility of a deterioration of democratic politics, namely, from a condition of party pluralism, where parties interact as parts of the whole, to mono-partyism, where one party becomes the whole. Compromises, for Kelsen, are exactly what curbs parties’ holistic temptation.
On the battlefield of party democracy, no single party can claim a monopoly of truth. Kelsen, in fact, firmly rejected the existence of any predefined and universal notion of the common good. Appeals to moral absolutes are indicative of an absolutistic mindset, whereas democracies, as the Austrian jurist consistently pointed out in his political writings, entail a relativistic mindset. For Kelsen, what makes a regime democratic, rather than autocratic, is precisely the procedure for forming the common will. As Wolkenstein recalls in this volume, Kelsen conceptualises popular will as ‘the product of compromises between rival parties’Footnote 76 and, thus, as a dynamic process that ‘can never be unified in pluralist party politics’.Footnote 77 In a Parteienstaat, where parties coalesce individual and group interests and flow into the Parliament ‘like multiple springs into one riverbed’, compromises are conducive to healthy democratic alchemy, making rival claims interact productively rather than clash destructively. Political views are based on group or class interests that parties make visible and audible in the legislative assembly. By doing so, parties facilitate decision-making processes in real democracies pervaded by pluralism and disagreement, creating ‘the organizational precondition for the achievement of compromises’ and ‘steering the will of society in a moderate direction’.Footnote 78
Within this framework, as Jestaedt emphasises, compromises enable social integration in a liberal democratic state, where decision-making is open-ended and requires mutually constraining interaction among equally legitimate interests and constant interaction between representative institutions and civil society.Footnote 79 For this reason, in Kelsen’s view, the absence of compromises – whereby the interest of one party becomes the common or hegemonic will – is tantamount to the vanishing of democracy itself.
Already in 1918 – in the aftermath of the collapse of the Habsburg Empire and in the same year in which Weber published his highly influential Parlament und Regierung im neugeordneten Deutschland – Kelsen wrote three incisive articlesFootnote 80 vigorously calling for a parliamentary democracy based on proportional representation, the protection of minority rights, and the centrality of compromise in the legislative assembly. Taken together, these three mechanisms ‘soften the hiatus’ between rulers and ruled and thus bring real democracy closer to the ideal of political autonomy.Footnote 81
The nature and functions of compromise become prominent in the second version of The Essence and Value of Democracy,Footnote 82 as Jestaedt emphasises in this volume. However, the significantly shorter text from 1920 already sets the tone: ‘[…] it is precisely compromise that characterizes the politics of democracy’.Footnote 83 Kelsen’s arguments draw explicitly on the considerations of economist and sociologist Gustaf Fredrik Steffen,Footnote 84 whose book Das Problem der Demokratie (1912) challenged the traditional objection to compromise: namely, that it is always at the expense of principle.Footnote 85 Steffen’s reply to this critique of compromise closely aligns with Kelsen’s later account of the formation of state will. Steffen, in fact, wrote that ‘adherence to principle often means nothing more than adherence to the principles of whichever classes or groups within society believe they can best promote their special interests’.Footnote 86 Kelsen also elaborates on another argument by Steffen, namely, the idea that any attack on compromise is, at its core, an attack on democracy. Devaluing compromise is fundamentally anti-democratic – or, more specifically, anti-pluralist – since it promotes one perspective exclusively and, by imposing it on the whole community, eventually suppresses democracy altogether.Footnote 87
In the late 1920s, as representative governments across Europe gradually took an anti-pluralistic turn, Kelsen felt a greater sense of urgency to explore the principles and mechanisms for the aggregation of citizens’ wills under pluralism. The paralysis of parliamentary deliberation in Weimar due to constant deadlocks by parties unable to come together as stable majoritiesFootnote 88 further prompted Kelsen to examine and defend compromises in the theory and practice of democratic representation.
In La Dictature de Parti (1935), Kelsen argued unambiguously that ‘democracy is only possible as long as the interests of opposing groups can be reconciled to reach a compromise’.Footnote 89 Combining majority rule and minority rights, compromises maximise the scope of political freedom in democratic decision-making since they are possible ‘only with the assent, and not against the will, of a qualified minority’.Footnote 90 The ‘majority-minority principle’ (as he suggests renaming it) enables conflicting social forces to coalesce into a popular will while also allowing minority group(s) to continue playing a role – albeit moderately – in the making of collectively binding decisions.Footnote 91 Compromises, as we read in the second edition of The Essence and Value of Democracy, favour ‘that which binds over that which divides’ and thus allow political antagonists to mutually ‘get along (vertragen)’.Footnote 92 Nearly two decades later, in his monumental General Theory of Law and State (1945), Kelsen reiterated the connection between compromises and party democracy: ‘Compromise means the solution of a conflict by a norm that neither entirely conforms with the interests of one party, nor entirely contradicts the interests of the other […] it is precisely because of this tendency towards compromise that democracy is an approximation of the ideal of complete self-determination’.Footnote 93
Kelsen’s vision of compromises also reverberates through his distinctive account of the majoritarian principle,Footnote 94 thereby underscoring the pivotal role they play in capturing the ‘essence’ – and not simply the mechanics or ‘value’ – of democracy itself.Footnote 95 In Kelsen’s view, majority rule has little to offer to pluralist societies. As he puts it in The Essence and Value of Democracy, ‘the majority principle only fully makes sense within a nationally homogenous body’.Footnote 96 He explicitly recalls Marx’s argument that majority rule is not suited to heterogeneous societies, particularly in the context of class struggle; at best, it can resolve disagreements about secondary issues, not ‘vital’ questions.Footnote 97 Therefore, as Vinx suitably reminds in this volume, Kelsen prefers the notion of ‘majority – minority rule’ to emphasise that ‘[a] truly democratic majority can exist only where it is challenged by legitimate opposition, a minority that is a legitimate government in waiting’.Footnote 98 In a similar vein, Urbinati (in this volume) emphasises that ‘[f]or Kelsen, the majority principle […] was not a pure show of strength’ and thus ‘sanctioned the end of any remnant of ‘herd logic’. Distilling the majority principle from the idea of political freedom rather than of equality, Kelsen astutely ‘positioned himself against a sovereignty-centred conception of democracy’ (à la Schmitt), elaborating a democratic theory that seeks not to ‘overcome disunion’ but, on the contrary, to ‘protect the equal right to express disagreement’.Footnote 99
The idea of the minority as ‘a legitimate governing in waiting’ – in the eloquent phrasing of Vinx – makes Kelsen’s democratic theory truly stand out among writings in the early twentieth century. He warns his readers that whenever democracy loses sight of its minorities and embraces unconstrained majoritarianism, it opens the door to plebiscitary temptations or calls for ‘a redemptive “messianic presidency”’ (as Scheuerman points out in this volume). Following this reinterpretation of majority rule is Kelsen’s defence of decentralisation and federalism as vital for the pursuit of political autonomy and even as a ‘democratic postulate’, both in The Essence and Value of DemocracyFootnote 100 and in The General Theory of Law and the State.Footnote 101
DyzenhausFootnote 102 aptly points out that according to Kelsen, for a legal order to be stable and effective, it must be regarded as valid or legitimate not only by the group(s) whose interests are protected by that legal order but also by minority groups, even if they disapprove of the content of specific laws. Stability is possible when groups experiencing the ‘torment of heteronomy’ are not structurally – that is, permanently – relegated to the status of losers or ‘second-class citizens’. Accordingly, the legal order ‘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 103 Therefore, democracy must, in its decision-making mechanisms, mitigate the ‘torment of heteronomy’ by preserving ‘the equal chance of participating in making such norms’. This preservation is both formal and substantive: formal in the sense that the political process is open to the participation of everyone in the political community; substantive in the sense that ‘the maintenance of this openness recognises and preserves their status as free and equal subjects’.
I.4.4 Explaining Democratic Compromises: Institutional Constraints or Majorities’ Self-Restraint?
A major question that Kelsen’s democratic theory raises among readers concerns precisely the structural connection that he assumes between compromises and democracy – that is, whether and why compromises are intrinsic to and distinctive of democratic politics. In this volume, Adam Przeworski considers the mechanisms that encourage governing majorities to exercise self-restraint and Kelsen’s notion that compromise offers an important means of self-limitation. Also, Joseph Schumpeter, the other leading theorist of a realist approach to representative democracy examined by Przeworski, places considerable emphasis on ‘self-control’.Footnote 104 For Kelsen and Schumpeter, limitations on majority power are ‘self-implementing’;Footnote 105 that is, they do not stem from institutional constraints but are ‘an equilibrium in which the current majority stops short of monopolizing power and the current minority accepts’ majority decisions precisely because the majority does not abuse its power.Footnote 106 When Vinx, in his chapter, describes the mechanisms of moderation at work in Kelsen’s democratic theory, he similarly points out a certain naturalness that, according to the Austrian jurist, underpins the practice of democratic compromises. Specifically, opposing groups ‘recognize each other as legitimate contenders for legislative authority’. Accordingly, they ‘accept outcomes of elections that favour the other side’ and are willing ‘to compromise with their opponents’.
One possible answer to a question that Kelsen seems to leave unanswered might be as follows. In liberal democracies, governing majorities have a natural tendency towards self-limitation because they are under the persistent, unspoken fear that minorities might withdraw from the game of politics altogether and thus nullify the very existence of the majority in the majority/minority dialectic. This ‘shadow of withdrawal’, as Przeworski eloquently calls it in his chapter, serves as a constant reminder of the contingency of any majority and thus provides a powerful antidote to their possible abuse of power or – even more radically – to their ‘shadow holism’ (in the words of Nancy Rosenblum).Footnote 107 However, according to Przeworski, this argument is articulated too succinctly by Kelsen (as well as Schumpeter) and, most importantly, lacks empirical evidence.Footnote 108 The centrality of compromise in Kelsen’s theory of democracy – acknowledged and appreciated by a substantial number of influential democratic theorists over the past three decades, from Manin and Urbinati to Rosenblum, Ypi, and White, among others – goes hand in hand with the challenge of explaining the grounds on which such compromises happen on the battlefield of democratic politics. Przeworski voices a widespread frustration with Kelsen’s silence over the allegedly natural occurrences of compromises in democracy when he writes, ‘[…] neither [Kelsen and Schumpeter] has much to say about the mechanisms that induce majorities to exercise self-restraint, and this is the fundamental problem for any understanding of democracy’.Footnote 109
Jan-Werner MüllerFootnote 110 also acknowledges the ‘ambiguities’ and the seemingly ‘undetermined’ considerations supporting Kelsen’s ‘imperative to compromise’, despite its unquestionable appeal in times of vitriolic and polarised partisanship such as his – and ours. ‘Intriguing’ as much as it is ‘downright puzzling’, his account of the majority – minority principle is a powerful antidote to the possibility of hypermajoritarian inebriations; however, it also makes his work somewhat unpalatable to majoritarian theorists of democracy who fear the illegitimate empowerment of minorities and thus the subversion of the cardinal rule of democratic politics – that is, majority rule under conditions of legitimate pluralism and disagreement.
Although Przeworski and Müller similarly point to Kelsen’s insufficiently clear explanation of why ruling majorities compromise with minorities and thereby willingly limit their own power, they do so in somewhat different ways. For Przeworski,Footnote 111 Kelsen and Schumpeter understand ‘self-enforcing’ compromise as an ‘equilibrium [that] maximises the best interest of both parties’, that is, the rulers and their opponents.Footnote 112 For Müller, the self-interest or prudential explanation of compromises in liberal democracy is acceptable: self-limiting majorities acknowledge that it is in their best interest not to abuse the contingent asymmetry of power favouring them today, given that it might disfavour them tomorrow, when new elections will define a new majority and, in turn, a new minority. However, this pragmatic or prudential incentive does not, in his view, exhaust the reasons for an imperative to compromise or explain why the ‘majority and minority have to compromise’.Footnote 113 With respect to pragmatic considerations, Müller adds the maximisation of self-determination: the primary function of compromise is to ‘lessen the experience of heteronomy’. ‘[I]nvolving as many actors in rule as possible’, in the words of Müller, entails an approach to democratic politics that finds in freedom, more than equality, its driving impetus and that owes extensively to Rousseau’s work (as Lagi and Urbinati also emphasise in their respective chapters).Footnote 114 This approach also has a Madisonian flavour, given how it seeks to offer a realistic solution to the problem of factions (a vigorous threat to political self-determination): the most effective way to avoid a majority faction, as Federalist No. 10 famously argues, is to have as many factions as possible, so that none becomes numerically strong enough to impose its will on the remaining community.Footnote 115
While Kelsen’s rationale for democratic compromises seems insufficiently clear to some interpreters (and their thorough criticism is worth taking seriously), others read his emphasis on compromises as a powerful and timely resource to foster a democratic ethos both inside and outside representative institutions. ‘We should read moderation’, Urbinati suggests in a Kelsenian fashion, ‘as a condition of the politics of compromise’. Moderation, in fact, entails that both the majority and the minority disagree, clash, and play their respective roles without burning to the ground the system that houses and orchestrates their legitimate conflict and without contesting the rules of democratic game whenever they do not play in their favour. This mutual humbling of majority and opposition in Kelsen’s democratic theory comes with a crucial reminder: any democratic majority is temporary, that is, ‘[i]f victory were permanent, it would erase the majority-minority dialectics, and so erase democracy itself’.Footnote 116 Relatedly, minorities’ acceptance of majority decisions is a distinctive quality of democracy as a process (rather than an act) of never-ending recreation of the will and of constant interaction between the electoral expression of the will and the fluid realm of public opinion.
I.4.5 Inclusivity, Accountability, and Moderation
Given the importance Kelsen ascribed to self-limiting mechanisms and, in particular, to democratic compromises, Kelsen can be understood as a pioneer of ‘consensus democracy’,Footnote 117 which Arend Lijphart would later famously conceptualise as a more encompassing version of ‘consociational democracy’.Footnote 118 Unlike the majoritarian system (exemplified by the Westminster model), which assumes that democratic majorities should simply govern and minorities should simply oppose, control, and expect the alternation of power (in ways that sometimes resemble elective dictatorships), the consensus model ‘promotes the idea that democracy should represent as many people as possible and provide for multiple checks and balances – thereby limiting the power of the central government while providing for the representation of a broader array of interests’.Footnote 119 As Ferrín and HernandezFootnote 120 have shown through a comparative analysis of citizens’ attitudes in twenty-four European countries, public opinion believes that a consensus system is better for democracy, especially in regard to respecting the rights and preferences of minorities, thus confirming Lijphart’s inclination – in the famous final chapter of his Patterns of Democracy (1999) – towards ‘kinder and gentler’Footnote 121 consensus regimes.
Based on these premises, we may wonder whether and how two cardinal notions at the heart of democratic life are as compatible as Kelsen assumes – namely, inclusivity (especially through compromises) and accountability. In The Essence and Value of Democracy, he insists on the dangers of the ‘lack of accountability of the representative to his constituents [that] is undoubtedly one of the central causes of the ill-feeling which exists today towards the institution of parliament’.Footnote 122 However, inclusivity – as promoted by Kelsen – might be interpreted as an obstacle to accountability.Footnote 123 A broad inclusion of preferences can, in fact, jeopardise a cardinal virtue of our democracies, namely, that of being able to ‘sanction governmental disregard of the [voters’] will’.Footnote 124
Furthermore, Kelsen does not seem to believe that an extensive practice of compromise requires room for discretion on the part of representatives, which sits uneasily with his calls for stronger ties between voters and their elected officials. Once again, a tension can emerge between inclusivity (at the horizontal level, that is, among parties inside representative institutions) and accountability (at the vertical level, that is, between the represented and the representatives). Aligning the will of elected officials with that of electing citizens might contradict Kelsen’s conception of democracy as a space for negotiation and compromise.
Notwithstanding these possible tensions, we must do justice to Kelsen’s pioneering contribution to subsequent formulations of ‘consensus democracy’, championing the representation of a wide range of interests, notably through the mechanism of compromise, and to the vital connection between democracy and accountability.Footnote 125
I.4.6 Kelsenian Democratic Theory as a Deterrent to Populism
The various features of Kelsen’s democratic theory – notably, the predominant role of parties, elected leaders and representatives held accountable by political and judicial oversight, and the value of negotiated decisions in legislative assemblies – suggest that they offer a deterrent to the threat posed today by the global proliferation of populism, in both its left wing and right wing forms. In an article published in the mid 2000s, Koen Abts and Stefan Rummens developed a comparative conceptual analysis of the competing logics of populism and constitutional, liberal democracy. When the attributes of populist politics are considered through the lens of the ideational approachFootnote 126 and enumerated by the two scholars, we can argue that there is indeed something decidedly anti-populist about Kelsen’s theory (even if he never uses this term in his extensive body of work). In particular, Abts and Rummens identified three characteristics of populism that conflict with a Kelsenian model of constitutional democracy.Footnote 127 First, populism champions an ‘antagonistic relationship between “the people” and “the elite” (emphasis in the original)’,Footnote 128 appealing to the former against the latter. Second, it tries to ‘give power back to the people and restore popular sovereignty (emphasis in the original)’.Footnote 129 Third, it conceives of the People as ‘a homogeneous entity (emphasis in the original)’Footnote 130 with a unitarian will. Taken one by one, these three characteristics collide head-on with the foundational tenets of Kelsen’s democratic theory.
The antagonistic dimension – the first characteristic of populism according to Abts and Rummens – is absent in Kelsen. There is no anti-elitist rhetoric. Elites, especially parliamentary ones, result from a logicFootnote 131 that he does not oppose: he repeatedly insists that parliamentarism represents an acceptable and justifiable ‘compromise between the democratic demand for freedom and the division of labour which is the necessary basis for all progress in social technique’.Footnote 132 Notably, the term ‘elite’ never appears in The Essence and Value of Democracy, nor does Kelsen insist on how elites often capture the general interest for their own benefit (as Schmitt does in a strongly protopopulist fashion).Footnote 133
However, Kelsen is far from naïve about the dynamics of political power (as mentioned above, his whole democratic theory is underpinned by a strong realist perspective), and he does not place blind trust in political personnel. His proposals for the implementation of accountability mechanisms, which are the responsibility of both the judiciary and politicians and whose importance he consistently emphasises,Footnote 134 prove the opposite. They are part of a rationalised and relativist approach to the circulation of political power in liberal democracy.
Regarding the second characteristic of populism highlighted by Abts and Rummens,Footnote 135 Kelsen does not juxtapose the will of the people as sacred and unstained and that of their representatives as tainted and impure. While he advocates for the inclusion of certain procedures of direct democracy in the life of modern democratic states (notably, the initiative and the referendum),Footnote 136 he never belittles or devalues the negotiations, compromises, and agreements at the heart of the parliamentary machinery, unlike what routinely happens in populist rhetoric that rejects compromise as a defeat, a sign of weakness, or a collusion with the political establishment that is so viscerally despised.Footnote 137 In contrast, Kelsen calls for a compenetration of representative and direct democracy, particularly for ensuring a constant connection between the institutional and the extrainstitutional dimensions of democratic life and for enhancing the accountability of the contingent majority and the inclusivity of the political process of will formation. Moreover, Kelsen’s defence of judicial review as a bulwark against unconstrained majoritarianism – whether in the form of represented or direct popular will – and his overarching account of constitutional democracy are completely at odds with the populist spirit.Footnote 138
Third, nothing is further from Kelsen’s position than a homogenising conception of the People. ‘Practical politics’ are ‘defined by conflicts of interest’Footnote 139 that are ‘experiential’ and ‘unavoidable’.Footnote 140 Kelsen ingeniously recalls that Rousseau, a philosopher of the general will, ‘requires unanimity only for the original contract that initially creates the state’. The People, as the repository of a single unified will, do not exist for Kelsen. As a collective political agent, the People is never assumed a priori but created through the dynamic work of political parties, which are ‘communities of interest’Footnote 141 and create the conditions for majorities through the process of compromise. As scholars of populism have pointed out,Footnote 142 populist parties in power construe party democracy as simultaneously anti-party and hyperparty, presenting themselves as a ‘pars pro toto’ that acts against the other parts and thus stretches the boundaries of its partyism to the limit. In contrast, compromises for Kelsen are intrinsic to a theory and practice of party democracy that both renounces the virtual aspiration to holism typical of populist politics (that is, populists’ tendency to turn their party, from a part of the whole, into the whole itself) and promotes moderation on the battleground of political conflict.
In light of all the above, Kelsen’s theory of constitutional, liberal democracy can be read as a timely and compelling antidote to present-day populist representations of power and peoplehood, sacrificing nothing to the fiction of a homogeneous demos and fighting revamped illiberal projects with its signature emphasis on pluralism, relativism, rationalism, and intermediary bodies.
I.5 Architecture of the Volume
Inspired by the 100th anniversary of the first edition of Kelsen’s most famous book on the topic (Vom Wesen und Wert der Demokratie, 1920), this volume indeed offers a centennial, wide-ranging, and unprecedented assessment of Kelsen’s democratic theory. It does so by connecting three major axes that, taken together, enable Anglophone scholars and readers to realise the breadth and depth of Kelsen’s work on constitutional democracy, comprehend its nuances and (dis)continuities, and appreciate its enduring relevance in the current pandemic of populist assaults on liberal democratic institutions and politics. Each of these axes corresponds to one of the three sections that constitute the volume.
The first section (‘History’: four chapters) explores the genesis and development of Kelsen’s political thought across the decades – from the early 1900s to the mid 1950s – through a contextual and comparative reading of his texts (and those of some prominent interlocutors). It starts with Kelsen’s first monograph, namely, on Dante Alighieri’s political treatise De Monarchia, to disclose how Dante’s vision of a pacified global order, capable of bringing political pluralism to legal unity, influenced ideas that Kelsen would systematically develop throughout the 1940s and early 1950s in his influential publications on legal cosmopolitanism, pacifism, and international law (David Ragazzoni). The section proceeds by examining the various stages of Kelsen’s political thought and the ways in which specific elements of his account of procedural democracy changed accordingly (Matthias Jestaedt). It also shows how the political and institutional vicissitudes of interwar Europe and the rise of competing alternatives to both liberal parliamentarism and multipartyism shaped Kelsen’s vision of democracy over the years (Peter Langford). It examines and clarifies Kelsen’s borrowings from Rousseau in the distinction between ideal and reality – a seminal dualism at the core of his democratic theory (Sara Lagi). Accordingly, the first section of our volume provides a nuanced account of the making and multiple remakings of Kelsen’s theory of democracy in the longue durée that is quite unprecedented in the Anglophone literature on Kelsen.
The second section (‘Theory’: five chapters) critically explores the conceptual foundations of Kelsen’s democratic theory. It examines the vital role of political parties in the formation of political will, against the backdrop of Kelsen’s unwavering opposition to monoparty dictatorships and his resolute commitment to party pluralism in liberal democracy (Nadia Urbinati). It studies Kelsen’s account of how democratic leaders are appointed, replaced, and held accountable and frames it within the broader context of his political thought and its signature commitment to philosophical relativism, reclaiming a vision of democratic leadership that is normative yet realist (Carlo Invernizzi Accetti and Nicole Peisajovich). It revisits Kelsen’s proposals to subject party organisations to constitutional regulation and thus ensure that they internally conform to democratic principles – a pioneering and bold idea at a time when constitutions had little to say about the status of parties, and even the normative desirability of the party form was contested (Fabio Wolkenstein). It scrutinises the ambivalent relationship between majority rule and constitutional adjudication in Kelsen’s democratic theory, showing how his influential defence of constitutional review focuses on the conditions of the proper functioning of electoral democracy rather than on the protection of liberal rights (Lars Vinx). It ends with a detailed analysis of Kelsen’s arguments about international law in the constitution of the legal order of the modern state, his understanding of state recognition in the post-Westphalian system, and their connections to his democratic theory (David Dyzenhaus). By disassembling and examining the building blocks of Kelsen’s architectonics of constitutional democracy, the second section of our volume pursues three major goals. It provides a detailed account of its internal articulation and core principles. It enables a nuanced understanding of the institutions and procedures that, according to Kelsen, best serve such principles. Additionally, it reconnects his democratic theory to his extensive and notorious work in legal philosophy and constitutional theory. Accordingly, it resists one-dimensional interpretations of the two major halves of his work (the political and the legal).
Finally, the third section (‘Legacy’: four chapters) highlights the afterlives of Kelsen’s democracy theory and its timely contributions to academic and public debates on the present and future of constitutional, liberal democracies. It offers a comparative study of Kelsen’s and Schumpeter’s theories of democracy – united by their realistic approach – in order to assess today the plausibility and resilience of the self-implementing mechanisms of majority restraint (Adam Przeworski). It revisits Leo Strauss’ complicated theoretical dialogue with Kelsen to better understand present-day intellectual tendencies supportive of autocratic threats to American democracy (William Scheuerman). It returns to Kelsen’s defence of compromise in party democracy – a cornerstone of his democratic theory – to consider whether, and how, it sits with common sense understandings of having a democratically elected majority (Jan-Werner Müller). Chapter 13 offers a fresh perspective on Kelsen’s concept of militant democracy, critically analysing its strengths, weaknesses, and influence in contemporary scholarly debates (Sandrine Baume).
The concern with the preservation of peace in the domestic and international arenas, driving Kelsen’s exegesis of Dante in his first monograph and, most powerfully, his later democratic theory, centred upon the principle of self-determination under conditions of disagreement and conflict, becomes the theme that connects the beginning and the end of our volume and, ultimately, the two sides – the legal and the political – of Kelsen’s lifelong theorising about constitutional, liberal democracy.
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