5.1 Introduction

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

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

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

5.2 Democracy as a Theory of Freedom

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

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

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

5.3 Political Freedom

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

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

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

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

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

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

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

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

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

5.4 The People

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

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

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

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

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

5.5 Political Parties

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

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

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

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

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

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

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

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

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

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

5.6 Representation

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

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

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

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

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

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

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

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

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