11.1 Introduction
This chapter explores how Hans Kelsen’s philosophical relativism informs his political theory of democracy, focusing in particular on the relatively understudied aspect of his theory of democratic leadership. As several scholars have noted, the relationship between democracy and leadership is fraught with tension: while democracy is associated with equality in political power, leadership refers to a basic power inequality between those who follow and those who lead.Footnote 1 Does this mean that leadership and democracy are incompatible? If not, what is the role of leaders in a democratic regime? Kelsen, we suggest, provided an original answer to this puzzle that is worth recovering. Furthermore, we argue that Kelsen’s theory of democratic leadership is intimately connected to his broader philosophical views. It is only by understanding his profound relativistic commitments that we can fully make sense of Kelsen’s defence of parliamentary democracy and understand the role leaders are meant to play in his democratic model.
We make two central contributions. First, we recover a theory of democratic leadership that is of interest for its own sake. While the problem of leadership is a commonplace in empirical studies of democracy, democratic theorists have not paid sufficient attention to it. We all know leaders exist, and empirical studies are able to tell us how they behave, but we are as of yet unclear as to how leaders ought to behave in a democracy. We lack, in other words, the normative tools to distinguish among different forms of leadership.Footnote 2 Writing in the times of fascism, Nazism and Soviet communism, Kelsen was acutely aware of this problem and carefully distinguished between autocratic and democratic forms of leadership. His insights can therefore be of help as we struggle to solve similar problems at a time when democracy seems to be, once again, swimming in unsafe waters.
Second, we hope that an exploration of Kelsen’s theory of leadership will further illuminate the internal unity of his overall thought. As we will show, Kelsen’s conception of leadership is tied to his philosophical relativism. It is only by understanding the philosophical difference between absolutism and relativism and its political implications that we can grasp Kelsen’s approach to the problem of leadership. If we believe that moral absolutes exist, Kelsen shows, it makes sense to have an absolute leader who rules according to them and whose power is unlimited. In contrast, if we believe that moral absolutes are inaccessible to human knowledge and that all we can have are relative moral truths, it makes sense that leaders should have relative power only and that they should be subject to criticism and control. Against the common binary that is usually presented when it comes to leadership, Kelsen shows that the true choice is not between either powerful leaders or no leaders at all; instead, the democratic answer is to multiply leaders while at the same time limiting their power in scope and time.Footnote 3 A careful examination of Kelsen’s thought, we will conclude, shows that he was not the abstract, idealistic thinker that many still think he was; rather, he was deeply interested in practical reality, and he developed a political theory that was simultaneously normative and realist.Footnote 4
The chapter is organised around three main sections. First, we examine Kelsen’s philosophical views and show how they are connected to his analysis of political regimes. We argue that Kelsen did not establish a necessary connection between philosophy and politics, but he did claim that there exists an affinity between them: while autocracies usually adopt an absolutist philosophy, democracies are most commonly associated with a relativistic worldview. Second, we analyse Kelsen’s conception of democracy and show that contrary to popular belief, he was not an abstract thinker uninterested in practical reality; rather, his chief concern was devising an institutional framework that would allow us to maximise the ideal of democratic freedom in the context of modern, large-scale societies. Third, we examine Kelsen’s approach to the problem of leadership and argue that his response is intimately connected to his philosophical relativism. In contrast to the absolute power of a single autocratic leader, Kelsen argued that democracies involve a plurality of leaders who compete with each other and have relative power only. We end the chapter with a concluding section in which we summarise the most important arguments made throughout the text.
11.2 Philosophy and Politics
In his 1955 article on the ‘Foundations of Democracy’ for the journal Ethics, Kelsen explores how this type of political regime relates to three other domains of life: philosophy, religion, and economics.Footnote 5 As far as philosophy is concerned, Kelsen argues that there is a close connection between one’s philosophical stance and one’s political inclinations. Although the former does not determine the latter, Kelsen claims that, historically, there has been a correspondence between certain philosophical views and certain political affiliations. Even if there is no ‘necessary logical connection’, he concludes that the relationship between them seems to be one of ‘congeniality’.Footnote 6 While an absolutistic worldview is generally associated with an autocratic predisposition, a relativistic philosophy is usually connected to a democratic preference. To clarify this connection, let us briefly outline the ways in which Kelsen defines absolutism and relativism.
11.2.1 Absolutism: Either Metaphysics or Pseudorationalism
This topic is discussed in greatest detail in Kelsen’s farewell lecture at the University of California entitled ‘What Is Justice?’Footnote 7 In this lecture, Kelsen poses the question of whether there can ever be a definitive answer to the problem that has haunted philosophy from the beginning: the problem of justice. Is it possible to define, in universal terms, what this concept entails? In the face of all the towering figures who have ventured an answer to this question, Kelsen is relentless: such an answer is not accessible to rational cognition, he insists. However, because human beings have such a hard time accepting the absence of moral absolutes, Kelsen goes on to argue, multiple theories have emerged to give an answer to this problem. In particular, Kelsen recovers two versions of moral absolutism: a metaphysical version and a pseudorational version.
The metaphysical approach consists of an attempt to answer the problem of the definition of justice by turning to extrarational, that is, transcendental, sources. This is the typical religious response, and for Kelsen, it was most paradigmatically developed by Plato. The central problem of Plato’s philosophy is justice. The solution he finds is the doctrine of ideas, according to which concepts are ‘transcendental entities, existing in an ideal world’.Footnote 8 These ideas represent absolute values, and these values are the ones that should guide human behaviour, even though we will never be able to fully realise them. Perhaps most importantly, Kelsen notes that the most decisive Idea, the Idea of the absolute good, ‘is beyond all rational cognition’. A human being can only access this through a ‘mystic experience’. Furthermore, even if some are fortunate enough to acquire the knowledge of what absolute good is, they cannot pass it on to their fellow citizens because ‘it is impossible to describe the object of their mystic vision, the absolute good, in words of human language’.Footnote 9 This is why, as we will see later in this section, in Plato’s philosophy, it is only the few, or perhaps the one, who have access to this knowledge and are therefore allowed to rule without constraints.
An alternative approach, Kelsen suggests, is the pseudorational one. In contrast to the metaphysical solution, this version of absolutism seeks to provide an answer to the problem of justice by means of human reason. Whereas Plato provided the paradigmatic example of the mystical solution, Kelsen claims that Aristotle can provide an equally archetypical illustration of the pseudorational solution. In his Ethics, Aristotle defines justice with reference to a system of virtues. He claims that human beings can find virtue just as the geometers can find the point equidistant from the two ends of a line: virtue is a mean state between two extremes, which are vices (one of excess and one of deficiency). However, Kelsen points out that if we know the vices, we already know the virtue, given that the virtue is nothing other than the middle point between the two vices. The real question, therefore, is how to define the vices. But Aristotle provides no answer to this question. He merely presupposes that vices are ‘what the traditional morality of his time stigmatizes as such’.Footnote 10 This is why Kelsen concludes that Aristotle’s solution is not truly rational but ‘pseudorational’: his system of virtues is tautological; it cannot be sustained by reason alone.Footnote 11
Because of this weakness in the purportedly rationalistic defence of absolutism, Kelsen does not devote much attention to it in his political and legal writings. The pseudorational approach, he seems to believe, fails to deliver what it promises and is therefore an unworthy contender in the epistemological debate. Metaphysical absolutism, on the other hand, is a serious opponent. Consistent with his own relativism, Kelsen admits that we can never prove such absolutism wrong. Precisely because the metaphysical response claims to find answers in an alternative universe that lies beyond human cognition, this theory is unverifiable: we cannot prove it right, but we also cannot prove it wrong. In the end, Kelsen admits that the choice between relativism and absolutism is a personal one. While he is a staunch defender of relativism, he knows that his choice is subjective. He is a relativist, he tells us, because he is a scientist, and science can only prosper on the basis of the freedom and tolerance that a relativistic framework allows.Footnote 12
11.2.2 Relativism: Between Nihilism and AbsolutismFootnote 13
In contrast to the metaphysical version of philosophical absolutism, Kelsen defines relativism as an empirical doctrine. While the absolutist creed assumes that there is an absolute reality that exists independently of human knowledge, relativism asserts that ‘reality exists only within human knowledge, and that, as the object of cognition, reality is relative to the knowing subject’.Footnote 14 In this regard, Kelsen draws a distinction between fact judgements and value judgements. While fact judgements are verifiable and hence objective, value judgements can never have the same scientific character.Footnote 15 The problem of values, he suggests, is first of all the problem of the conflict of values, and such conflicts cannot be solved in an objective manner. In contrast to fact judgements (judgements about what is), value judgements (judgements about what ought to be) are ‘determined by emotional factors’ and, because of that, are ‘subjective in character – valid only for the judging subject and therefore relative only’.Footnote 16
Accepting the absence of moral absolutes, however, does not mean that we should renounce morality, as a moral nihilist would claim.Footnote 17 Instead, Kelsen shows that the rejection of absolutism requires courage, independence, and responsibility: the fact that moral absolutes do not exist does not imply that there are no moral values whatsoever; it means, instead, that all moral values have relative validity and that it is up to each of us to make a choice among them. Relativism, therefore, imposes upon the individual ‘the most serious responsibility a man can assume’, that is, the responsibility of deciding what is right and what is wrong. Absolutism, Kelsen suggests, makes matters simpler for us: if we believe that there is a universally correct answer, we do not need to make a choice, we must simply follow a moral command. However, in the absence of such absolute answers, we must look inwards and decide for ourselves what the right moral choice is. It is the daunting and almost unbearable seriousness of this task, Kelsen concludes, and not its purported amoral character, that drives people away from relativism: ‘relativism is rejected and – what is worse – misinterpreted’, he writes, ‘not because it morally requires too little, but because it requires too much’.Footnote 18
11.2.3 Philosophy and Politics
As we pointed out at the beginning of this section, Kelsen concedes that the relationship between life philosophies and political preferences is not one of logical necessity. However, he believes that a certain congeniality can be observed: while support for autocracy is usually connected to an absolutist philosophy, support for democracy tends to be based on a relativistic framework. To understand the nature of this affinity, let us analyse each of these pairs in turn.
First, Kelsen demonstrates that there is a congeniality between absolutism and autocracy. Here too, he refers to Plato to illustrate his point. In Kelsen’s view, Plato made a perfectly consistent choice: if one believes, as he did, that moral absolutes exist, it does not make sense to treat all people equally or to let them have an equal say in political matters. If there is an absolute truth, only those who have access to it must be allowed to rule. In a world where an absolute good exists and is knowable to some of us, majority rule would seem irrational. If there is one correct answer, we should allow those who know it to rule. Furthermore, those who have access to the truth must have a permanent claim to power, and those who are ignorant must simply obey. The Catholic Church, Kelsen notices, deployed the exact same reasoning in its fight against democracy during the nineteenth century. Because the Church claimed to have access to an absolute truth and because the majority of people might very well ignore such truth, the Church adopted the slogan ‘authority, not the majority!’Footnote 19
However, if one believes, against Plato and against the Catholic Church, that there are only relative answers when it comes to morality, giving absolute power to any single individual or group of individuals appears less reasonable than it might otherwise. Unless we can refer to a transcendental entity to adjudicate conflicts of values, we must deem all moral judgements equally plausible. And it is this absence of absolutes, Kelsen explains, that makes authority so difficult to justify under a relativistic framework. If there is no absolute truth, none of us can claim to have the right to rule over the rest. Furthermore, the absence of such an external criterion of truth makes it arbitrary to establish hierarchies among human beings as subjects of moral knowledge – at least in matters of morality, we should all be regarded as equal. Consequently, the rejection of authority and the concomitant equality that characterises relativism brings with it another corollary: freedom. In a community that has moved beyond anarchy and dogma, all human beings should be regarded as equally free and hence capable of self-government.Footnote 20
It is precisely because relativism entails both freedom and equality that this life philosophy involves, according to Kelsen, a congeniality with the democratic form of government. As we will see in the next section, Kelsen follows Rousseau and defines democracy in terms of these two principles: in contrast to autocracies, which are defined by a hierarchical authority, both Kelsen and Rousseau define democracy as the political system that best realises the principle of equal freedom. In a democratic regime, all citizens have the same power to participate in the creation of the laws under which they will live.Footnote 21 However, as we will also see in the next section, Kelsen departed from Rousseau in his institutional thinking. Although he adopted the Genevan author’s ideal of autonomy as the normative horizon, he believed that such a goal could never be realised in actual societies, and he was ready to make certain compromises to maximise its achievement in practice.
11.3 A Realist Conception of Democracy
Kelsen constructed his analysis of democracy through a direct dialogue with Jean-Jacques Rousseau, whom he considered ‘one of the most efficient ideologists of democracy’.Footnote 22 Kelsen shared Rousseau’s normative premises and goals: for him, as for Rousseau, the normative core of democracy is an ideal of freedom as autonomy. However, contrary to Rousseau, Kelsen argued that this conception of freedom can never be fully realised in existing human societies. Even though we can maximize the number of people who are free, it is not possible to preserve the complete freedom of all individuals under a coercive order – in fact, the very presence of coercion implies that a certain measure of heteronomy always remains. It is this recognition of the gap between the ideal and the real that makes Kelsen a realist and not an idealist thinker. Unlike Rousseau, who could never accept modern democracies because he could never compromise his ideal of freedom, Kelsen not only accepted the relative character of modern democracy but also developed a normative defence of its most important institutions.
11.3.1 A Normative Defence of Majority Rule
In Kelsen’s rendition, Rousseau formulates the fundamental problem of politics as an issue of freedom. In the state of nature, for Rousseau, humans are born absolutely free. His question is therefore: how can we enter into civil society without losing this original freedom? The solution Rousseau proposes, as the reader will know, is popular sovereignty. By subjecting ourselves to the absolute sovereignty of the general will, we develop a new identity, that of the citizen, and, as citizens, we are collectively free. As long as the general will prevails, the reasoning goes, we obey only ourselves and therefore remain ‘as free as before’.Footnote 23 In addition, Rousseau suggests that the freedom we acquire thanks to the social contract is a superior, moral one: while in the state of nature we were free to pursue our animal appetites, in civil society we obey not these wild cravings but the law that we have prescribed for ourselves.Footnote 24
Kelsen shares Rousseau’s aim, but in the end, he shows that Rousseau’s theory does not hold up. As Rousseau himself already recognised, no actually existing society can rely on a criterion of strict unanimity to pass legislation, since that would make the social order itself superfluous.Footnote 25 However, Rousseau does not provide a normative defence of majority rule, either. In his view, the majority principle is not a legitimate procedure independently of the results it produces. Instead, this principle is legitimate only insofar as the majority correctly grasps the general will. Thus, Kelsen concludes that Rousseau’s refusal to admit a partial loss of freedom ultimately undermines the applicability of his abstract ideal: ‘it is obvious that Rousseau has entangled himself in all these contradictions only in order to save the illusion of natural, i.e., absolute freedom’.Footnote 26
To overcome this problem, Kelsen follows a different – and, we might add, more realist – strategy. Unlike Rousseau, he openly recognises that democracy cannot completely preserve natural freedom. While a democratic regime has freedom as its normative horizon, real democracies can only approximate this ideal. All social orders, he insists, retain a measure of heteronomy. However, majority rule can still be justified inasmuch as it maximizes freedom. In this respect, he writes that simple majority rule ‘constitutes the relatively greatest approximation to the idea of freedom. According to this principle, among the subjects of the social order, the number of those who approve the order will always be larger than the number of those who – entirely or in part – disapprove but remain bound by the order’.Footnote 27
This principled defence of majority rule allows Kelsen to advance a conception of democracy that is normative and procedural at the same time. Unlike Rousseau, Kelsen can do away with the pretension that the majority always rules in accordance with the general interest of the people. In his view, an objective common interest does not exist, and even if it does, it is impossible for us to know what it is. However, Kelsen does not need to make a value judgement about the substantive content of legislation in order to provide a normative defence of majority rule. It suffices to point out that this procedure ensures the smallest possible gap between the law and the individual wills of citizens, which means that as many individuals as possible are free.Footnote 28
In addition, Kelsen’s principled realism allows him to incorporate several characteristic features of modern democratic regimes that Rousseau was not able to account for. First, Kelsen’s recognition of the limits of majority rule becomes the basis for a normative defence of conflict and disagreement. While Rousseau assumed that those who are in the minority are simply wrong – and should therefore be ‘forced to be free’ – Kelsen does not need to follow such an intricate reasoning to justify majority rule. He concedes that those in the minority remain, for the time being, unfree. Since there is no such thing as a general will, we cannot claim that the minority is free even if another will is imposed upon it. However, by recognising this unfreedom, Kelsen is also able to recognise and protect the political existence of the minority. Because his conception of majority rule does away with an objective notion of the common good, Kelsen can provide a normative defence of conflict and dissent. The minority, he argues, cannot be ‘forced to be free’ because we can never be certain that the majority got the answer right. In fact, it is possible that the minority of dissenting people had the correct answer, and it is for that reason that the majority should never be able to annihilate the minority.Footnote 29
Second, this legitimation of conflict justifies a political instrument that Rousseau firmly rejected: compromise. If a general will exists, it makes no sense to seek compromises. However, in the absence of such an objective standard of the common good, compromises become not only necessary but also normatively desirable. If there is no general interest, there are only two options: either one partial interest imposes itself on all others, or a compromise of several partial interests is reached. As we will see later in this section, this is why Rousseau opposed, and Kelsen endorsed, the institution of political parties. If there is one common interest apparent, it makes no sense to have partial associations advancing partial aims. But if such a unifying criterion of legitimacy does not exist, parties and compromises are the only tools we have to avoid the complete domination of one interest over others.
Last, this principled defence of conflict is what drives Kelsen to endorse constitutionalism. Because the majority can never legitimately annihilate the minority, the very survival of the democratic regime depends on the protection of certain ‘fundamental rights’ that guarantee the persistence of a minority as a counterpart to the power of the majority.Footnote 30 Paradoxically, Kelsen argues that the institution of a supermajoritarian requirement proves to be a condition for the full realisation of the majority principle itself. When the most important political decisions are at stake, he contends, the majority cannot democratically pass any legislation without obtaining the support of at least part of the minority. It is thanks to this procedural limitation, Kelsen observes, that most democratic activity ends up being the result of a negotiation between the majority and the minority and not the mere imposition of one partial interest over another.
11.3.2 Indirect Democracy and Its Instruments: Representation, Parties, Leadership
Just as majority rule implies a metamorphosis of the original idea of freedom as self-determination, Kelsen also argues that in modernity, this ideal must undergo yet another transformation. While the democratic ideal of self-government is best realised through direct participation, Kelsen maintains that this is not a feasible option under the conditions of modern, large-scale societies. Once again, he opposes Rousseau’s attachment to the abstract ideal of absolute freedom and claims that in modern, large-scale societies, this principle must be further compromised. Because of the practical impossibility of constant, universal, and direct participation, this principle must be partially checked by another one: the division of labour.Footnote 31 In modernity, Kelsen asserts, democracy can have only an indirect character.
Furthermore, and relatedly, Kelsen’s acceptance of democracy’s indirect character drove him to not only accept but also normatively justify three other political instruments that Rousseau rejected: political representation, parties, and leadership. Let us analyse each of these in turn.
11.3.2.1 Representation
As the reader will know, Rousseau passionately rejected representation and argued that adopting such a mechanism was tantamount to eliminating freedom altogether. Representation, Rousseau believed, creates a fundamental division between two groups of people: the representatives (who rule) and the represented (who obey). Even if representation is beneficial in numerous other ways, it deflates freedom, and for that reason, it can never be legitimate.Footnote 32
Against this view, Kelsen presented, once again, a more nuanced and realist reasoning. Yes, he wrote, it is true that representation entails a compromise. In fact, he granted that parliamentarism presents the ‘most significant’ limitation on the idea of freedom. Under this system, the people do not participate directly in the government but limit themselves to choosing and controlling those who actually do the governing.Footnote 33 However, Kelsen believed that it was naïve to believe that representation could be avoided in contemporary societies. In modernity, he argued, we cannot escape the principle of the division of labour, which is ‘the necessary basis for all progress in social technique’.Footnote 34 The nostalgic desire for direct democracy, he suggested, could not be taken seriously.
Nonetheless, Kelsen had no intention of hiding the critical deflation of the principle of freedom that representation generates. Of course, he granted, representation partially curtails freedom. However, if we want to defend democracies in the real world, he argued, we must find a way to come to terms with it. In modern societies, he suggested, parliamentarism is the only realistic solution to the problem of heteronomy. Moreover, Kelsen had no patience for the so-called fiction of representation, according to which ‘parliament is only a proxy for the People’. In his view, these attempts to hide the real loss of freedom that representation generates can actually backfire. Rather than legitimising the institution of parliament, they can undermine its credibility by helping critics of democracy show that parliamentarism is based on a ‘palpable lie’.Footnote 35
Against Rousseau, Kelsen was able to accept representation because he presented a different conception of it. As we have already seen, he rejected the notion of the general will, and he therefore did not think that the task of representatives was to express the unitary will of the people. Instead, Kelsen accepted that a free society is composed of multiple points of view and diverse interests, and he defended representation as the best political instrument to make those voices heard in the public arena. Much like the other realists of the time, Kelsen defended representation as an unideal but useful device.
Kelsen’s realism, however, was different from that of the better-known realists of the twentieth century, such as Joseph Schumpeter or Robert Dahl. While these thinkers proposed changing the definition of democracy itself to narrow the gap between theory and practice, Kelsen always maintained an orientation towards the original Rousseauian ideal of autonomy while admitting that its concrete realisation requires practical compromises. Against Schumpeter, who replaced the goal of self-government with that of leadership competition,Footnote 36 and against Dahl, who substituted the ideal of equal political power with that of equal opportunities to access political power,Footnote 37 Kelsen maintained that modern democracy represents the best possible approximation of the Rousseauian ideal of popular sovereignty. Much like his later disciple, Norberto Bobbio, Kelsen thought of democracy not as the perfect realisation of an ideal but as a constant process of approximation: democratic regimes should strive to achieve freedom, even if they can never fully attain it.Footnote 38
11.3.2.2 Political Parties
Kelsen’s defence of political parties is closely connected to his defence of representation. Once we accept that the people do not rule directly but through representatives, political parties become necessary instruments of political organisation. With explicit reference to Roberto Michels’ analysis of the oligarchical tendencies of political parties, Kelsen argued that, without organisation, individuals lack the capacity to influence political affairs.Footnote 39 However, unlike Michels, and more like the later American political scientist Eric Schattschneider, Kelsen did not think that the inevitability of organisation entails the destruction of democracy.Footnote 40 In contrast, he believed that parties make democracy possible in the real world. Democracy, he wrote, ‘is only feasible if, in order to influence the will of society, individuals integrate themselves into associations based on their various political goals’.Footnote 41
Paradoxically, it was the more radical Michels who remained tied to a Rousseauian framework and was therefore incapable of reconciling democracy with representation and political parties. In contrast, Kelsen’s rejection of Rousseau’s idealism allowed him to specify and normatively justify the institutional framework under which the ideal of autonomy could be maximised in actual societies. Yes, Kelsen claimed, both representation and parties create power inequalities and, in that sense, they compromise the ideal of equal freedom. However, the ideal, he argued, is just compromised upon, not completely eliminated. Parties, like parliaments, are useful instruments that help us approximate freedom as much as possible within a modern social order.
This is also why, as we have noted above, Kelsen’s defence of parties is closely linked to his normative defence of compromise. Parties, for him, are the ‘precondition’ for the achievement of compromises since it is only thanks to parties that citizens can articulate their interests and form political groups around them.Footnote 42 Although Kelsen admits that some parties claim to stand for general, not particular, interests, he believes that in practice, parties are expressions of the particular interests and values of specific groups within society; for him, this is a core aspect of their normative value rather than a liability. Claims to directly embody the general will, he believed, are dangerous, not only because parties can hide behind this veil to seek domination but also because it is harder to accept compromises if one already claims to have access to the ultimate grounds of political legitimacy itself. Conflicts of interest, as opposed to conflicts between competing claims to absolute ‘truth’, can be easily resolved through negotiation and are therefore more likely to produce moderate and dynamic outcomes.
11.3.2.3 Political Leadership
Finally, in his two most important political works, Kelsen devoted special attention to a third political instrument: leadership. Unlike the discussion of representation and parties, the analysis of leadership is not presented in these texts in direct dialogue with the work of Rousseau. While the Genevan thinker explicitly rejected representation and parties, he did not have much to say about the problem of leadership. Presumably, Rousseau did not think leaders had much of a role to play in his ideal republic.Footnote 43 Because in his political model citizens participate directly and silently, there seems to be no room for leadership there. In his ideal republic, there is no place for leadership for the same reason that there is no place for deliberation, persuasion, or mobilisation. Rousseau’s citizens go to the assembly one by one, without talking and definitely without representing partial interests. Their only aim, as the reader will know, is to reason individually and to determine whether the law is in accordance with the general will.Footnote 44
Because Kelsen, unlike Rousseau, defended a realist conception of democracy that takes representation and parties as its constitutive elements, he also recognised the role that leaders inevitably play in such a regime. In modern, representative democracies, some individuals must assume the responsibility of mobilising and organising the different groups of people towards the achievement of their shared goals.Footnote 45 Although he did not provide a precise definition of leadership, he seems to have understood it in the same way Nannerl Keohane does, namely, as an activity that helps ‘determine or clarify goals for a group of individuals and bring together the energies of members of that group to accomplish those goals’.Footnote 46
Writing in the times of Hitler, Mussolini and Stalin, Kelsen was all too conscious of the threat that leadership entailed. His realism, however, was stronger than his dread, and he did not shy away from this theoretical and practical challenge. Rather than avoiding the topic as many past and contemporary democratic theorists had done, Kelsen confronted it head on, and he sought to develop a democratic theory of leadership. In the following section, we examine this theory in greater detail.
11.4 A Democratic Theory of Leadership
It is surprising that Kelsen’s account of democratic leadership has received so little attention. While his views about representation, parties, and constitutionalism are widely considered a key contribution to modern democratic theory, his approach to the problem of leadership is usually ignored. However, Kelsen was deeply preoccupied with this question and even wrote that the problem of leadership is ‘the most important problem in politics’.Footnote 47 In his 1929 political treatise and his 1955 article in the journal Ethics, he dedicated a special section to the discussion of this problem. In both of these texts, he noted that the gap between the ideal and the real reaches its climax when it comes to leadership.
In an ideal democracy, Kelsen argued, there is no place for leadership. The ideal of freedom entails ‘the absence of rule, and hence, of leadership’. But this ideal, he quickly noted, ‘cannot be realized even approximately; social reality is rule and leadership’.Footnote 48 In response to this puzzle, Kelsen developed an original theory of democratic leadership. Against the radical democrats who refused to accept any kind of leadership and against the realists who acquiesced in an admission of almost any form of leadership, he sought to find a middle ground. Real democracies, he argued, are not defined by the rejection of leaders but by the specific way in which they structure and limit leaders’ power.Footnote 49
11.4.1 The Revolutionary Character of Election
At the level of its most abstract ideal, Kelsen concedes, democracy is incompatible with any form of leadership. In a society of political equals, there is no place for leaders. As Plato’s Socrates had already pointed out, a man of ‘exceptional quality’ cannot be welcome in a democratic community, for he would contradict the equality that characterises it. Confronted with a person of extraordinary attributes, Socrates says in Plato’s Republic that the people must ‘pour myrrh on his head, crown him with wreaths, and send him to another city’.Footnote 50 However, Kelsen asserts that leaders are all but absent in real democratic societies. What distinguishes democracies from all other regimes, he claims, is not the absence of leaders but the ‘special method’ through which they are selected.Footnote 51
While autocratic societies do not have a clear response to the question of how leaders should be selected – other than metaphysical theories or the crude power of the mightiest – democracies have a rational, straightforward mechanism: election. And even though we are now so used to it that we almost take it for granted, Kelsen argues that there is nothing natural in the mechanism of election. In fact, he asserts that this is a rather counterintuitive procedure. Against the patriarchal form of authority, which is the first form of authority we experience and the model that most forms of social authority follow, elections give the subjects the power to decide who their rulers shall be. This process, Kelsen claims, is fairly revolutionary. This means that ‘the creator is produced by those whom he has created’ or that ‘the father is created by his children’.Footnote 52
To emphasise how radical the mechanism of election is, Kelsen develops an analogy with the primitive practice of totemism based on a creative rereading of Freud’s interpretation of it. To make sense of Kelsen’s analogy, let us first provide a brief sketch of Freud’s theory, which is itself based on an original combination of Charles Darwin’s account of the evolution of human society and the psychological theories of totemism that were popular at the time.Footnote 53
First, Freud follows Darwin’s conjecture that the earliest state of human society was the primal horde, which was composed of ‘a violent and jealous father’ who kept all women for himself and drove all his sons away after they grew up.Footnote 54 Second, he asserts that such society, although plausible, has never been the object of observation and that the first form of human society that we have actually observed is the totemic one. Totemism, he explains, was, in its origin, both a religion and a social arrangement. Totemic societies believe that all clan members are tied by blood and that they are the descendants of a common ancestor, the totem – which is usually an animal. These communities have two strict rules: first, they cannot kill (and can therefore not eat) their totemic animals; second, male and female members may not have sexual intercourse. The only moment at which they may break these two rules is the totem meal. During such festivals, clan members solemnly slaughter their totemic animal, eat it together, and then mourn its death and participate in orgies.Footnote 55
While Darwin did not write about totemism, Freud developed a theory that explains how human civilisation might have transitioned from the primal horde to the totemic community. According to him, this was achieved through the killing of the father by his sons. In his view, the totem animal is actually a symbol of the dead father, who was both hated and loved by his offspring. ‘One day’, he wrote, ‘the brothers who had been driven out came together, killed and devoured their father, and so made an end of the patriarchal horde … The violent primal father had doubtless been the feared and envied model of each one of the company of brothers: and in the act of devouring him they accomplished their identification with him, and each one of them acquired a portion of his strength’.Footnote 56
Once the brothers killed the father, however, Freud argues that a sense of guilt arose in them. Even though they resented their father, they loved and admired him, too. After slaughtering him, these positive feelings resurfaced and created a form of remorse. It was in response to that feeling that Freud argues that the totemic community developed the practice of the totem meal, along with its two most important moral rules. Even though the father was dead, the brothers exercised what Freud called ‘deferred obedience’; they imposed upon themselves the same restrictions that their living father used to enforce: they could not have sex with the female members of the clan, and they could not kill the father – his figure now represented by the totem animal.Footnote 57
Furthermore, Freud argues that the totem meal highlights the emotional ambivalence that characterises the parricide: during the festival, clan members reconfirm their decision to kill the father while mourning him at the same time. Because they simultaneously love and hate him, they feel liberation and remorse at the same time. The totem meal is a solemn celebration in which all clan members are obligated to participate. It is the time to assume collective responsibility for their deed, and to renew their promise to observe the new moral restrictions that they have imposed on themselves.Footnote 58
In his Essence and Value, Kelsen takes up the Freudian interpretation of totemism and develops an analogy between it and the democratic mechanism of election. According to Kelsen, the electoral procedure plays a role that is analogous to that of the totem meal. He notices that in the totemic festivals, clan members not only mourn the deceased father but also have the opportunity to wear a mask depicting the totemic animal – which is a symbol of the dead father – and play, in turn, the role of the patriarch. ‘In the primitive practice of totemism’, he writes, ‘clan members periodically don masks depicting their holy totemic animal, the primal father of the clan, during certain orgiastic festivals, so that they themselves temporarily play the father and cast off all bonds of social order’.Footnote 59 Thus, he suggests that the electoral mechanism can be seen as a modern reformulation of the totemic mask: just as happens in the totemic festivals, elections give all citizens the opportunity to play the role of the father for some time.
Elected individuals, however, cannot play the role of father for an indefinite amount of time. Just as no clan member can wear the totemic mask forever, Kelsen argues that no democratic citizen can endlessly play the role of the father. The leaders of a democratic society can retain the power to rule only for a certain period, and after this period expires, they must step down and let someone else occupy that role. Democratic citizens, like the brothers of the totemic clan, are defined by a sharp political equality. Just as none of the brothers of the clan can usurp the position of the father (or else they would initiate a renewed war), none of the democratic citizens can occupy a leadership position forever, or else they would destroy the existing social order. This is why, according to Kelsen, the electoral procedure and the theory of popular sovereignty more generally can be seen as ‘nothing more than a – even if very refined and sublimated – totemic mask’.Footnote 60
11.4.2 Leadership and Relativism
The practice of totemism resonates with Kelsen because it highlights, in an evocative fashion, the radical rejection of patriarchal authority that is at the heart of the democratic ideal. Similar to totemism and against ancient and modern forms of autocracy, democracy does away with the absolute power of the father and gives all members of society an equal opportunity to occupy power positions. Above all, Kelsen defines democracy in opposition to autocracy: while the latter is characterised as a ‘paternal community’, the former can be defined as a ‘fatherless society’. In contrast to the hierarchical, child – father relationship that defines autocratic regimes, a democracy is ‘a community of equals’, in which all humans live like siblings and coordination takes the place of super- and subordination.Footnote 61
In the same vein, Kelsen’s characterisation of autocratic and democratic forms of leadership can be traced back to the different life philosophies that he associates with each of these regimes. In a society where moral truth exists, it makes sense to grant all power to the one person who has full knowledge of the absolute good. However, if we believe that there is no such thing as absolute goodness, or that, even if that exists, we can never know for sure what that is, granting all power to one person appears both implausible and dangerous. If we believe that all human beings are limited in their capacity for making moral judgements, the most plausible choice is to grant leaders relative power only. Moreover, Kelsen suggests that in contrast to autocracies, democracies are defined by a multiplicity of leaders. Precisely because all leaders carry relative and not absolute truths, we are better off having multiple and diverse leaders who compete with each other and check each other’s power.
Autocratic leaders cannot be constrained because they are perceived by their subjects as fundamentally unequal. The autocratic leader, Kelsen maintains, is seen ‘as an entirely different, namely higher being, who is surrounded by a halo of divine origin or of magical powers’.Footnote 62 Because the autocratic leader represents an absolute value that is beyond all forms of rational cognition, it is not only his authority but also his specific deeds that cannot be questioned. Given that ignorant people can never understand the ultimate motives of their actions, autocratic leaders do not need to act publicly; in fact, secrecy usually prevails in these regimes.
The situation is radically different in a democratic society. As we have seen, such societies do away with the notion of absolute goodness, and therefore they also refuse to grant absolute power to a single person. Thus, democratic leaders are not external to but immanent in society; they are selected by and from among the people. Precisely because the leader has no transcendental status, he or she is regarded as an equal – someone who temporarily wears the totemic mask. Furthermore, because leaders have only relative access to moral truth, their actions can and should be the subject of criticism and debate. Contrary to what happens in autocracies, Kelsen insists that in democratic regimes, ‘leadership is the focus of rational reflection’.Footnote 63 The democratic leader is only a leader insofar as the people choose him or her to be one; he or she has no power independently of the wishes of the demos. Democratic leadership, in other words, is defined not only by publicity but also by responsibility and accountability. If, at any moment, the people believe that their leader no longer deserves to occupy that position, they can remove him or her from office.
Last, it is this very relativism that forces democracies to keep leadership relationships dynamic in character and open to everyone. While in autocratic regimes, the relationship between rulers and the ruled has a tendency to freeze, Kelsen argues that democracies are defined by their dynamism and ‘upward mobility’.Footnote 64 In democratic societies, leadership positions have a short duration, and there is rapid turnover. Furthermore, such societies radically expand the pool of potential leaders: while autocracies give the monopoly of power to one person, democracies give all citizens the opportunity to compete for political office.
In the final analysis, Kelsen concludes that it is the relative character of leadership, as well as the fact that everyone has an opportunity to occupy such a position, that makes this activity compatible with democracy. While the democratic ideal of freedom would entail a negation of leadership (and the power inequalities that come with it), ‘in social reality, the idea of freedom … is transformed from a rejection of leadership into the idea that leadership should be open to everyone’.Footnote 65
Kelsen’s reasoning in this respect is therefore analogous to his analysis of philosophical relativism. Just as relativism does not entail the rejection of morality but rather the negation of one absolute moral truth, democracy does not imply a rejection of all forms of leadership but the denial of a single, absolute leader. Democracy and leadership are compatible for Kelsen only because democracies are capable of relativizing the power of their leaders: in contrast to what happens in autocratic regimes, in a democracy, there are multiple leaders who constantly compete with one another for temporary and limited power.
11.4.3 Democracy and Efficiency
Kelsen wrote his two most important political works in turbulent times. The first one, The Essence and Value of Democracy, was first published in 1920 and expanded into a larger version in 1929 while he was living in Austria and fighting for the survival of the newly established parliamentary constitution. The second one, ‘Foundations of Democracy’, was written in 1955, just three years after Kelsen retired from his post at the University of California and in the midst of the Cold War. In this lengthy article, Kelsen restated and, to some extent, reformulated the ideas that he presented in his earlier piece. Although he did not change his views in a fundamental way, the older Kelsen showed greater caution in his discussion of the question of leadership. Having experienced the full force of the two world wars and watched the effects of the new totalitarian regime that had emerged in the Soviet Union, Kelsen became awfully aware of the enormous threats that the activity of leadership entails.
While he did not change his original thesis regarding the role of leadership in a democratic regime, his 1955 essay reflects a greater scepticism towards this topic – a greater apprehension regarding its possible dangers. After restating all the points mentioned above, Kelsen wrote that ‘the tendency to present the problem of democracy as a problem of leadership’ should be seen with suspicion.Footnote 66 History showed Kelsen that the enemies of democracy can easily use the discourse of leadership as a Trojan horse to destroy it from within. Carl Schmitt, Kelsen’s lifelong intellectual and political opponent, actively sought to ‘obliterate the difference between democracy and dictatorship’ by suggesting that a dictator might be able to realise the people’s will much better than a bourgeois parliament.Footnote 67 Likewise, Benito Mussolini – the first fascist leader to reach political office – developed the concept of an ‘authoritarian democracy’ and presented fascism as the purest version of democracy.Footnote 68 These trains of thought greatly preoccupied Kelsen, as they should preoccupy us today.
In response, Kelsen contended that the mechanism that fascists use to equate dictatorship with democracy is usually that of efficiency. While parliamentarism is portrayed as an ineffective tool that sterilises the will of the people, the fascist leader is conceived as the best instrument for the achievement of the common good.Footnote 69 But democracy, Kelsen argued, has nothing to do with efficiency. In fact, if we adopt relativism as our epistemic standpoint, it is not possible to present the problem of leadership as a problem of efficiency. Efficiency presupposes that there is a clear goal for us to pursue, while relativism subjects that goal to constant scrutiny. Democracy, Kelsen writes, is the best form of government only if we value freedom above everything else.Footnote 70 If we believe absolute goodness exists, we might very well decide that there is a different form of government that is better at realising such a goal. However, if we reject moral absolutism and if, consequently, we value freedom above everything else, then democracy is the best form of government.Footnote 71
Kelsen, in fact, never tried to justify democracy in absolute terms. Consistent with his philosophical relativism, he knew that democracy is one of many political regimes, and he admitted that it might not be the best one in all cases and for all people. His relativism, however, did not prevent him from providing a defence of democracy. Although Kelsen opposed the imposition of democracy by force, he was a steadfast democrat, and he stood firm in his beliefs throughout his entire life. In this sense, Kelsen was in agreement with Schumpeter, citing his famous words that ‘to realize the relative validity of one’s convictions and yet stand for them unflinchingly is what distinguishes a civilized man from a barbarian’.Footnote 72
11.5 Conclusion
In this chapter, we made three central arguments. First, we contended that Hans Kelsen was above all a relativist. As Sandrine Baume has pointed out in her insightful work on the Austrian thinker, the entire Kelsenian edifice is built upon this philosophical stance. His legal positivism and his procedural defence of democracy ‘echo each other’ and form one ‘coherent doctrine profoundly marked by relativism’.Footnote 73 It is only because Kelsen rejected moral absolutes – including the notion of absolute justice as well as the notion of an absolute common good – that he also rejected natural law theories of justice and substantive theories of democracy. Furthermore, because Kelsen was a consistent relativist, he accepted the relativism of his own philosophical stance.Footnote 74 In the final analysis, he recognised that nothing could prove that relativism was a better life philosophy than absolutism. Nevertheless, Kelsen stood firmly on the side of relativism and defended this philosophy as the only framework within which we can remain free.
Second, we argued that Kelsen defended a procedural yet normative conception of democracy. Unlike Rousseau and unlike contemporary epistemic democrats, Kelsen explicitly denied that democracy is the best political regime because it produces the best decisions.Footnote 75 Consistent with his philosophical relativism, he rejected Rousseau’s concept of the general will as well as all other attempts to objectively define the common good. Democracy is the best political system not, according to Kelsen, because it is the most efficient or the most competent one but because it maximises freedom.
Kelsen’s proceduralism, however, was different from that of the better-known realists of the twentieth century, such as Joseph Schumpeter and Robert Dahl. While Schumpeter and Dahl abandoned the original ideal of self-government in favour of more realistic and less demanding goals, Kelsen refused to compromise the ideal itself. Although he knew that real democracies can never completely fulfil the promise of collective autonomy, he wanted to retain the ideal as a beacon. Even if we can never achieve perfect freedom, he suggested, this is the principle that should guide our thinking and action.
Finally, we argued that Kelsen’s realist approach to democracy drove him to accept and normatively justify not only the institutions of constitutionalism, representation, and parties but also the activity of leadership. Even though the democratic ideal of equal freedom rejects the power inequalities that all forms of leadership entail, Kelsen recognised that in modernity, the idea of a leaderless society is nothing short of utopian. Yet Kelsen’s realism was, once again, more nuanced than that of the better-known realists of his time. From the inevitability of leadership, Kelsen did not conclude that any and all forms of leadership are legitimate. Instead, he developed a set of conceptual tools that allowed him to distinguish between democratic and autocratic forms of leadership.
Kelsen’s democratic theory is worth recovering for numerous reasons, and the different chapters in this volume underscore many of those. In this essay, we sought to emphasise one particular aspect of his political thought that is not usually discussed: his theory of democratic leadership. In the contemporary world, where populist leaders are not only winning political power but also threatening to undermine democracy from within, Kelsen’s reflections on the problem of leadership prove timely. The activity of leadership, so central to the populist as well as to the fascist ideology, contains within it the seeds of absolutism that threaten to destroy that which a democrat must hold dearest: freedom. However, as Kelsen himself recognised, leadership is also an inevitable feature of all actually existing democracies. Rather than shying away from the challenge, therefore, we must pay special attention to this problem and focus on developing conceptual tools that will allow us to distinguish between democratic and autocratic forms of leadership. The work of Hans Kelsen can be of help in this important endeavour.
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