Kant’s Toward Perpetual Peace as an Intervention

To situate Kelsen’s theory within his contemporary political context, it is essential to undertake a similar historical grounding of Kant’s ideas. This necessitates referencing two key events: one more distant—the autumn and winter of 1795, when Perpetual Peace was written—and another that served as its more immediate inspiration. The first is the French Revolution, which Kant interpreted “as a ‘historical sign’ of the inherent moral trend of the human race towards improvement.”Footnote ³⁵ The second is the signing of the peace treaties between France, Prussia, Spain, and Hesse-Kassel in Basel in summer of 1795. Addressing matters such as the regulation of the banks of the Rhine and Haiti, the treaties were not intended to be permanent: the parties agreed not to engage in hostilities for a period of three months.Footnote ³⁶ They thus constituted “sort of strategic treaty that Kant condemns as illegitimate: it is only the suspension of hostilities, not a peace.”Footnote ³⁷ In this sense, the title of Kant’s work, serving as a commentary on his contemporary political circumstances, carries an ironic undertone, further accentuated by the fact that Kant was not the first to use it. The credit for coining the title goes to Abbé de Saint-Pierre and his 1712 Project of Perpetual Peace. Nor was Kant the first to mock this title; G.W.F. Leibniz remarked that invoking Pax Perpetua reminded him of the inscription over cemetery gates: “for the dead do not fight any longer: but the living are of another humor; and the most powerful do not respect tribunals at all.”Footnote ³⁸ According to Patrick Riley, Kant’s irony served as a cue for readers, guiding them to interpret his essay as addressing the conditions for the possibility, within Kant’s contemporary international order, of the “right kind of eternal peace - not the peace of exhaustion and desperation under universal despotism, but a peace constantly renewed by citizens of a universe of republics.”Footnote ³⁹

The mere engagement with such a subject may have surprised Kant’s contemporary readers. His earlier reflections on the international sphere could have led them to categorize him as a thinker aligned with the Hobbesian tradition, which likened international relations to a state of nature. In The Metaphysics of Morals, Kant writes: “however well disposed and law-abiding man might be, it still lies a priori in the rational Idea of such a condition (one that is not rightful) that before a public lawful condition is established, individual men, peoples, and states can never be secure against violence from one another, since each has its own right to do what seems right and good.”Footnote ⁴⁰ For Kant, the rights that emerge in such a condition are as provisional and temporary as the Basel treaties. Yet, this apparent disadvantage contains an element of optimism: the very emergence of such rights, despite their provisionality, signals what Kant interprets—similarly to Hobbes—as humanity’s moral duty to transcend the state of nature and establish a lawful condition of existence. This creation entails the overcoming of the antagonisms that distinguish individuals from their fellow beings and states from one another, all in pursuit of achieving reason.Footnote ⁴¹ Kant thus appropriates Hobbes’s argument for peace as a rational ideal but reorients its emphasis. While “Hobbes emphasizes peace, Kant progress.”Footnote ⁴² For Hobbes, peace is desirable because it resolves the state of nature within the international sphere; for Kant, it signifies man’s growth in his nature, “full development or actualization of a thing according to its telos,”Footnote ⁴³ the full realization of human potential.

The 1795 text is, however, not necessarily a description of such a peace. As the first word in the title, Zum, suggests, Kant does not provide a fully developed utopian or entelechian vision of the international order. As Jürgen Habermas points out, Kant’s focus is not on norms that are to occur in perpetual peace, but ones that must occur in the domestic order of already existing states in order for world peace to occur at all.Footnote ⁴⁴ I do not use the word “norms” by accident: Kant’s text is juristic nature, what is emphasized by the distinctive structure of the text, written in sections that echo the formal style of treaties such as those signed by France and other states in Basel. This deliberate choice of form “indicates that Kant intended to offer a programmatic formula for peace, rather than a philosophical analysis of the nature of international law and relations. Indeed, he wanted politicians to follow his advice - he specifically enjoins governments to take advice from philosophers,”Footnote ⁴⁵ but this advice is, in the context of Perpetual Peace, legal advice on laws, which, especially the laws of hospitality “were never intended to be the final representation of what would constitute a thoroughgoing condition of cosmopolitan justice. In fact, what seems more plausible is to suggest that the laws of hospitality only represent the minimal conditions that are necessary for peaceful interaction to occur, which may eventually, with consistent application, evolve into a more thoroughgoing condition of cosmopolitan law.”Footnote ⁴⁶ While Kant believes in the natural development of human beings towards living in a state of harmony with others, he writes of a certain point in this development at which human entelechy has not yet occurred. Thus, he focuses only on how “human being’s unlovely qualities - his love of glory, power, and possessions create the conditions for the emergence and development of the human being’s better qualities and his use of reason.”Footnote ⁴⁷ He does not describe the world of the future, but rather shows how competition between states can lead to “the establishment of a completely just civic society in which alone the faculties of men could be fully developed.”Footnote ⁴⁸

The type of political states within which, according to Kant, such a civic society can be established is republican in nature. Kant underscores their fundamental essence, distinguishing them from democracies, where power resides collectively with all individuals; all citizens simultaneously hold both executive and legislative powers, creating a potential for instability and arbitrariness.Footnote ⁴⁹ Republican governments make it possible to avoid this danger, because republicanism is “the political principle whereby the executive power (the government) is separated from the legislative power,”Footnote ⁵⁰ thereby precluding the possibility of arbitrary governance. As Onora O’Neill observes, only within a republican framework can meaningful communication between subjects occur in a manner that ensures respect for authority is not maintained through fear and fosters tolerant relations among citizens, who address conflicts through the mechanisms of commerce and dialogue.Footnote ⁵¹ For Kant, the republican state is a stage in the development of forms of political organization attaining of which proves that a nation “has solved the problem of combining moral autonomy, individualism and social order. … republic preserved juridical freedom - the legal equality of citizens as subjects, on the basis of a representative government with a separation of powers. … tyranny is avoided because the individual is subject to laws he does not also administer.”Footnote ⁵² The term “development” is particularly salient, as Kant references of “mechanism that leads states (willingly or unwillingly) towards republican institutions.”Footnote ⁵³ While all states are destined to adopt this model, some have already achieved this institutional progression.

To be truly republican, for Kant “the state must govern through established law (that which is rechtens), in support of that which is rightful (rechtlich). The basis for legally established justice is the procedure of the Universal Public Reason, which requires laws to be such that they secure equal liberty.”Footnote ⁵⁴ Its provision among citizens can manifest itself in a seemingly paradoxical way, for “in Kant the establishment of the ‘republican’ form of government will come to mean not only the exclusion of the principle of resistance, but also the illegitimacy of every form of public opposition to the sovereign power.”Footnote ⁵⁵ The republican form of governance, therefore, assumes an educative role, fostering the moral and civic development of citizens to the extent that they no longer engage in opposition to the state. At the same time, it guarantees individual liberty, a principle that extends beyond the boundaries of the nation-state. This transnational dimension acts as a deterrent to “aggressive behavior abroad,”Footnote ⁵⁶ as Kant posits that a sovereign that fails to regard its subjects as autonomous agents within its jurisdiction will replicate such disregard in its interactions with other states.

That said, we must inquire how perpetual peace might be achieved, as Kant’s vision diverges from that of international society as conceived earlier by Grotius or de Vattel.Footnote ⁵⁷ Given the historical context of his time, he does not entertain the feasibility of such an arrangement. He does, however, assert that “according to reason there can be no other way for them to emerge from the lawless condition, which contains only war, than for them to relinquish, just as do individual human beings, their wild (lawless) freedom, to accustom themselves to public binding laws, and to thereby form a state of peoples (civitas gentium), which, continually expanding, would ultimately comprise all of the peoples of the world.”Footnote ⁵⁸ This expansion, however, is a distant goal rather than an immediate project. For Kant’s era, the practical proposal is a federation of states—one that is not an organization of political unity, as it neither seeks nor has the capacity to undermine the sovereignty of its member states: “the League would not exercise coercive powers within any national order and every state would be free to leave it.”Footnote ⁵⁹ The federation, being composed of republican states, obviates the need for an external sovereign authority. Instead, disputes among member states would be governed by “the international rule of law, and … the mutual advantages derived from peaceful intercourse.”Footnote ⁶⁰ The likelihood of inter-state conflict within such a federation is minimal, given the unifying force underpinning it: “the spirit of commerce cannot coexist with war and … sooner or later takes hold of every nation’ that will bring together nations.”Footnote ⁶¹

Luigi Caranti, analyzing Kant’s view of the mechanism of the development of states, notes that according to the philosopher “republican citizens internalize the rightness of their institutions and, possibly, citizens of neighbouring countries living under despotic regimes will admire republican achievements, thus exercising pressure on their own rulers to concede a republican constitution.”Footnote ⁶² In other words, Kant believes that the day will inevitably come when all the states of the world he would admit to a peace-ensuring federation enjoy such a constitution, not just some of them. Contrary to Jürgen Habermas’s objection that Kant, in designing a permanent congress of states, does not explain how this union is to be permanent, for the philosopher permanence is designed to come to an end at some point, and the failure to explain the conditions of its duration is a tacit admission that this is its main task.Footnote ⁶³ Was the era of Hans Kelsen, immediately after the First World War, that point in history?

Kelsen’s Theory of International Law in the Early 1920s

In order to understand Kelsen’s theory of international law in the early 1920s, two issues need to be addressed: socio-biographical, which points to the interventionist character of Das Problem der Souveränität, and a dogmatic, which allows the text to be seen not so much as an element of a broader philosophical-legal project as its crowning element—atypical, since the works in which Kelsen was to lay its foundations were written later in 1920s and 1930s.

“Philosophical writing is also autobiographical. Philosophers have pretensions of discovering abstract and timeless truths about the human condition, but they cannot help but draw on their own personal and parochial experiences”Footnote ⁶⁴ —Scott Shapiro and Oona Hathaway state. In the case of Kelsen, born in 1881 and hailed in 1934 by Roscoe Pound as “unquestionably the leading jurist of the time. His disciples are devoted and full of enthusiasm in every land,”Footnote ⁶⁵ those experiences and lands were the Habsburg ones as a multinational empire, where he was born a Jew, educated in a Protestant school, and baptized into the Catholic faith in the early 20th century, only to convert to Protestantism a few years later. “Kelsen was described as an extremely assimilated Jew an admirer of the old Austrian Empire, and in particular the empire’s multinational ideals.”Footnote ⁶⁶ These ideals were particularly evident within the intellectual elites of the Habsburg Empire, where antisemitism was largely absent, and the Jewish heritage of its members, such as Kelsen himself, was regarded as “irrelevancy.”Footnote ⁶⁷ Jews who ascended to these elite circles, motivated by Bildung, often changed their religious affiliations to navigate societal spaces beyond the elite institutions, which were still tainted by antisemitic sentiments. The Habsburg Empire, however, actively sought to counter such prejudices through legislative reforms, including the Universal Suffrage Bill of 1907, which established legal equality for all ethnicities within the Austrian part of the Empire.Footnote ⁶⁸ The intellectual and cultural milieu that defined Kelsen’s formative years was, in the words of Stefan Zweig, “the Golden Age of Security … [where everything in the] thousand-year-old Austrian Monarchy seemed based on permanency.”Footnote ⁶⁹ Kelsen, as a young citizen of the Empire, was an advocate for this stability, while simultaneously engaging with progressive political ideologies. Although not affiliated with any political party, he expressed support for the Social Democrats.Footnote ⁷⁰ His dual commitment to the ideals of permanence and the necessity of progressive reform would later find expression in his legal and international law theories. As Anthony Carty writes, “in response to the developments of 1918 and the overthrow of the monarchical state, Kelsen proposed radical change, but not so as to affect the potentially popular ethos of the political and legal order.”Footnote ⁷¹ Helmut Plessner contends that Kelsen’s legal theory was not only influenced by his immediate socio-political environment but also by the intellectual tradition that gave rise to it. Specifically, Plessner highlights the Kantian emphasis on skepticism, which shaped the German-speaking intellectual bourgeoisie as a class that was politically neutral, hesitant to engage in conflict, and, as a result, politically immature—reluctant to grapple with the complexities of political life.Footnote ⁷² Similar is the perspective of Christian von Krockow, who describes Kelsen’s legal theory as fundamentally escapist, characterized by its helplessness in the face of the facts.Footnote ⁷³

Kelsen did not initially set out to pursue a career in law. As a young man deeply influenced by the works of Schopenhauer and Kant, he intended to study philosophy and found the curriculum at the Viennese Faculty of Law uninspiring, as it focused predominantly on dogmatic legal principles. An intellectual respite from this monotony was his friendship with Otto Weininger, a relationship tragically cut short by Weininger’s suicide. Nevertheless, “during the course of his studies - and with the development of the methodological aspects of his work - his interest in the subject seems to have grown more intense.”Footnote ⁷⁴ In 1911, after writing his habilitation—Staatsrechtslehre—he became a professor. At the University of Vienna, he became friends with his younger colleagues (Alfred Verdross and Adolf Julius Merkl), with whom he founded jungösterreichische Schule: a circle of thinkers interested in combining philosophical and legal issues. Kelsen was also a participant in Viennese intellectual life, frequenting salons, including the one of Sigmund Freud. During the war, he served as an adviser on international law in the Ministry of Defence. He was also involved in peacemaking: the arguments put forward by Karl Renner at the Paris Peace Conference in favor of Austria’s legal existence were invented by Kelsen, to whom also the state turned in 1918 with a proposal for drafting of a constitution.Footnote ⁷⁵ Das Problem der Souveränität—on which he had worked during the war, taking advantage of his ministerial experience—was published two years later and marked the beginning of a productive period of his work.

Let us now turn to the dogmatic issues encapsulated in the subtitle of this work: Beitrag zu einer reinen Rechtslehre, which Kelsen would develop extensively throughout the 1920s and into the following decade. Four key elements of Kelsen’s legal theory, as articulated in the 1920s and 1930s, are particularly significant for understanding his 1920 approach to international law: first, the later identification of law and the state; second, the concept of the hierarchy of norms, underpinned by the Grundnorm as its foundational hypothesis; third, the rejection of facticity as a component in legal theory; and finally, the purification of his doctrine from elements extraneous to the strictly juridical.Footnote ⁷⁶

In Kelsen’s mature formulation of the pure theory of law, there can be no legal order outside the state; a non-state order is not legal, and a state that is not a legal order is not a state.Footnote ⁷⁷ “There is no pre-existing substratum of the state that supposedly gives rise to a legal order. The legal order is the state itself, or in other words, the state is the personification of the legal order”Footnote ⁷⁸ . Kelsen rejects the division between ius publicum and privatum, claiming “that all law is State-made law. … This explains why Kelsen’s analyses are not limited to the ‘law of the state’ or ‘public law’ … They are also applicable to private and criminal law. It examines law in its integrity and complexity.”Footnote ⁷⁹ And since “state is equivalent to a legal order, there is no room for institutions as such, nor for human beings.”Footnote ⁸⁰ If we want to look at law through a pure prism, we have to strip it of its factuality. Rejecting Sein in favor of Sollen and recognizing that “the legal act objectifies what commences as an institutional author’s enactment of a subjective value through a will. For the signification of the will abstracts the will from its social circumstances,”Footnote ⁸¹ Kelsen rejects the possibility of seeking the legitimacy of the law outside of it. The basis of the validity of the legal system turns out to be the fundamental norm, not its legitimacy, but the condition of possibility that allows it to develop. Thus conceived, the legal order is a Stufenbau: a pyramid in which each norm derives its validity from a higher-order norm, culminating in the Grundnorm, which underpins the entire legal system. It is not a static order, as “the doctrine of the hierarchy of the legal order comprehends the law in motion: i.e. in its perpetually renewed process of self-regeneration. It is a dynamic theory of law, as opposed to a static theory which attempts to comprehend the law without consideration of its creation, only as a created order.”Footnote ⁸²

Although only some of these concepts are present in Das Problem der Souveränität, the fundamental problems of his approach to international law either derive from them or are based on them. These problems are: the rejection of the division of law into domestic and non-domestic, and the consequent rejection of the concept of state sovereignty, from which arises the problem of finding a Grundnorm of international law. This rejection is a consequence of the negation of the division between public and private law: if these two branches, usually distinguished, derive their legality from the same basic norms, it makes no sense, and the same is true of the distinction between state and international law. Given this understanding, no distinction can be drawn between them, as “Kelsen argues that all norms of a given municipal legal order are derivable from the basic norm of that order in the sense that they have been created in accordance with it, and that the basic norms of the various municipal legal orders are derived from a norm of public international law.”Footnote ⁸³ Just as the state is conceptualized exclusively as a legal system, so too the globe is envisioned as a unified legal system.Footnote ⁸⁴ Although it may appear as novelty, this approach is, according to Kelsen, not unprecedented in world history: the jurist “notes that it was already present, even before modern international law came into being, in the notion of imperium romanum. It existed right through the entire Middle Ages and reached a crisis only at the dawn of modernity. Now the pure theory of law is able to ransom this idea and demonstrate its scientific validity. It does so by seeing international law as a world or universal legal system.”Footnote ⁸⁵ The argument of non-modernity and the enduring rootedness of what he calls civitas maxima in the European legal system leads Kelsen to conclude that the division not of the continent but of the entire globe into states was only temporary; it represents merely a stage in human development, not its point of arrival. “It is only temporarily by no means forever that contemporary humanity is divided into states, formed in any case in more or less arbitrary fashion. Its legal unity that is the civitas maxima as organization of the world: this is the political core of the primacy of international law, which is at the same time the fundamental idea of that pacifism which in the sphere of international politics, constitutes the inverted image of imperialism.”Footnote ⁸⁶

The quoted passage reveals two layers within Kelsen’s text. On the philosophical-dogmatic level, his argument for the unity of international and domestic law finds practical justification in the conviction that only such a hypothesis can explain the continuity of international obligations. This perspective addresses the question of why international law remains binding on newly created states. In this view, the new legal system neither originates the law nor exemplifies autopoiesis but instead exists as part of the broader legal system. On the level of political intervention, this argument functions as a claim for the supremacy of international law over national law. However, it also transcends this immediate political content, as “a number of political positions followed from the fundamental (though in Kelsen’s own view, fundamentally arbitrary) choice in favor of the primacy of the international legal system. It qualified States as organs of international law and determined their jurisdiction from an international perspective.”Footnote ⁸⁷ Kelsen’s work, shaped by the methodological commitments of pure theory of law, does not explicitly engage with the political circumstances in which it was conceived. Rather, it avoids direct acknowledgment of these circumstances while remaining closely intertwined with them. Kelsen composed Das Problem… “during the First World War in a historical phase when the pacifist-liberal current in Europe and the US regarded the inadequate institutionalization of the international legal system, including compulsory jurisdiction, as the chief reason for the outbreak of the war.”Footnote ⁸⁸ The jurist looks back on his contemporary historical moment, occurring at the time of the writing of Das Problem… (in which the October Revolution, the Treaty of Versailles, and the formation of the League of Nations took place), as “the double revolutionary turn of World War I that originated in the periphery of old Europe, in Russia and America, [which] had destructed the old international law completely, and led to the invention of a new set of international institutions and a new ‘constitution’ of international law.”Footnote ⁸⁹ The conceptual identification of domestic law with international law, while framed as a claim for the primacy of the latter on the political-interventionist layer, also represents Kelsen’s attempt to influence political thought and prepare his readers for a new conceptualization of law. The argument begins within the interventionist layer but transitions toward the philosophical-dogmatic.

A key aspect of this intellectual preparation is Kelsen’s proposition to eliminate from jurisprudence the concept of sovereignty—a concept he would later define as “the supreme power or supreme order of human behavior”Footnote ⁹⁰ attributed to the state. “In his view … the problem of sovereignty can be answered in two principle ways: either the national legal order is the highest order, or the international legal order is superanus. … The sovereignty of the state arises purely and simply when one presupposes a national legal order as a supreme order.”Footnote ⁹¹ Meanwhile, according to Kelsen, seeing law as a hierarchical Stufenbau precludes such a perception of legal order. For if “sovereignty means autonomy of a legal order vis-à-vis the outside and its internal supremacy, and political self-determination meaning non-imposition of political form or rule by outsiders or foreigner powers,”Footnote ⁹² Kelsen wants to think of it in a different way, in so far within the framework of its pure theory, it cannot presuppose these powers. As Natasha Wheatley writes, Kelsen’s “argument was not that international law came first in a historical sense but that it came first in a logical one.”Footnote ⁹³ Since the value of sovereignty can only be shared by separate legal systems arising from the Grundnorm, and since the state is not such a system, to include it among the holders of sovereignty would be to make a breach in the wall that defends the entry of the factual into law. For this reason, according to Kelsen, “the concept of [state] sovereignty ought to be radically eliminated from the vocabulary of international law. … [If] sovereignty is usually described as a highest power or authority that is not dependent on or derived from any other power or authority.”Footnote ⁹⁴ The theory of sovereignty is thus transformed into the theory of the identity of the legal system. “For Kelsen, the normative-logical essence of all great theories of sovereignty since Bartolus was the view of the bearer of sovereignty as an entity occupying the highest place in a given order … According to Kelsen, then, the state as a legal order could be regarded as sovereign only if that order was to be seen in fact as a normative system that was not further derivable.”Footnote ⁹⁵ According to Kelsen, as a philosopher of law who simultaneously anticipates the advent of civitas maxima, the state does not possess sovereignty because its legal order is not a distinct legal system subordinate to a larger one, but rather constitutes a global legal order (not merely a part of it) within a defined territory.Footnote ⁹⁶ In this framework, the concept of sovereignty is dissociated from the state or any other de facto subject of will.Footnote ⁹⁷

Two problems arise here. First, how to establish the Grundnorm of the system of international law as simply law, and second, how to determine who decides and executes its coercion. As for the basic norm, in 1920 text, Kelsen calls it the original norm, apparently moving away from seeing it as empty: he states that it is constituted by the principle of pacta sunt servanda (in later works on international law he will admit that it does not fit into any written form, being simply the adherence of states to custom.)Footnote ⁹⁸ “This traditional rule, although relatively simple and straightforward, does seem a promising basis for an account of the international legal system that is not meant to beg the question as to ‘natural’.”Footnote ⁹⁹ However, Kelsen chooses it because of the reasons valid in the optics of pure theory of law. Firstly, in the 1920 work as a political intervention, he seeks the minimum to answer why the parties which his contemporaries perceive as belonging to international law—the states—are abide by it. Secondly, because “the basis of the binding nature of norms can only be a norm,”Footnote ¹⁰⁰ Grundnorm of that law must, in his view, ensure that it is dynamic, so that it is not a political axiom but a technical premise that allows it to act and change. Pacta sunt servanda as Grundnorm is meaningless because its observance involves the conviction that international law is valid. It is the “recognition of the existence of a legal order and of subjects with legal capacity which act in it. … The pacta sunt servanda is not a right formed by custom but a prerequisite for the existence of legal norms.”Footnote ¹⁰¹ Moreover, this maxim can be derived from international law itself: its existence is not influenced by any state.Footnote ¹⁰² It is therefore not the effect of a treaty as a contract, but the possibility of its existence.Footnote ¹⁰³ As Hersch Lauterpacht writes, “pacta sunt servanda [is] conceived as a necessary a priori assumption of the international legal systems which, although capable of explanation by reference to political or moral considerations, cannot itself be proved juridically, just as the legal force of the highest constitutional rule within the State cannot be proved as a juridical proposition.”Footnote ¹⁰⁴ From the assumption of the validity of the law perceived as international follows the validity of the law perceived as domestic; by the simple constitution of law, the validity hitherto recognized as domestic derives from the norm from which the legality of others follows.

Let us turn to the question of coercion, which, according to Kelsen, “occurs through ‘sanctions’. … Kelsen’s reply is that international law does have sanctions (reprisals and war), although these are decentralized.”Footnote ¹⁰⁵ Without coercion it is impossible for law to be law; its pure theory of it does not recognize lex imperfecta. This implies the problem of the institution which, in the context of international law, is supposed to be responsible for coercion: if an organ entrusted with the application of force and coercion is the distinguishing feature of law, and in Kelsen’s conception of international law such an organ cannot be the state, how can such an institution be found?Footnote ¹⁰⁶ If in the works of the Second World War Kelsen opts for the establishment of an international court,Footnote ¹⁰⁷ in the 1920 text, he does not argue that a body beyond the state is necessary as an adjudicator and administrator of punishment.Footnote ¹⁰⁸ Contrary to the character of political intervention that characterizes the 1920 text, he interprets the state in the concept of coercion not so much as an intermediary element in international jurisprudence (which would imply a partial recognition of its sovereignty), but as a non-centralized body exercising authority over arbitrarily separated, territorial parts of the international community, which constitutes a universal legal community “of human beings’ overreaching the individual state communities, whose validity is rooted in the sphere of morality.”Footnote ¹⁰⁹ The experience on which Kelsen draws is that of the end of the Great War, which brought about a significant shift in perception: not the German Empire as a whole, but Wilhelm II was regarded as a subject of international law—not in his capacity as the sovereign of the Empire, but as an individual. This marked “the first step to create a legal subjectivity of individual human beings under international law.”Footnote ¹¹⁰ Kelsen thus removes from his thinking the notion of the state as a subject of international law—the sovereign of that state can only exist as a subject—and introduces “strict demarcation of the juridical from the moral is the counterpart, in the later Das Problem der Souveränität, of the removal of the Wolffian fiction of the figure of the supreme legislator and its replacement with the transparently fictional notion of the state as the purely heuristic designation for a partial, subordinate element of a world legal order.”Footnote ¹¹¹ In this order, there are only individuals as its subjects, while their judgment is carried out by decentralized courts that thus enforce the law as law. Thus, two elements of his text are intertwined: if “the civitas maxima as organization of the world … is the political core of the juridical hypothesis of the primacy of international law,”Footnote ¹¹² then in seeing the courts as agents of the law, which must be international, he means the establishment of an international community composed of individuals. By omitting the state, Kelsen’s thinking on international law becomes as individualistic as it is universalistic.

Dualism and Monism in Kelsen and Kant

Published in 1920, Das Problem der Souveränität was significant for the perception of Kelsen in contemporary discourse on international law and its science. While “during the First World War, Kelsen had … refrained from publishing pacifist works or works promoting international understanding. But the publication of his monograph … made him into a pacesetter in international law theory within the renewal movement during the interwar period.”Footnote ¹¹³ Believing that the events of 1914–1918 marked a complete reformulation of political conditions in the world, Kelsen, in his fresh internationalism, did not belong to the group of thinkers in this movement who thought, like Leonard Woolf, that while among historical projects of peace “none is more curious and original than Kant’s Zum ewigen Frieden … [however, the effects of World War I were] ruinous condition [of] … the temple of Perpetual Peace.”Footnote ¹¹⁴ Nevertheless, the change of political circumstances which, on the one hand, made possible the existence of an organization expressing the idea manifested in Kant’s text, required, according to Kelsen, a reformulation of the methodological paradigms of his thought in order to make Kelsenian assumptions about international law possible.

I identify two fundamental political problems of Kelsen’s contemporary West for which this reformulation was particularly important. The first, which I will address in this section, is the problem of the institution of the state as a mediator between the legal system and the individual, the Kelsenian solution of which I described earlier. What is important, however, is the larger assumption behind this solution. I identify it as Kelsen’s abandonment of Kantian dualism in favor of monism, which in turn I see as a consequence, first, of Kelsen’s knowledge of what happened to the Kantian project of perpetual peace for a century after its promulgation, and, second, of his specific experience of living in Austria-Hungary at the beginning of the twentieth century: both as a state and a specific milieu of intellectuals.

Let us commence with an examination of the trajectory of Kant’s text as a political intervention articulated in the form of a legal proposition. The optimism it conveys regarding the voluntary adoption of the republican form of government by successive European states ultimately proved to be misplaced. Although a variant of this governmental structure did indeed emerge in many such states as a consequence of Napoleon’s conquests, it was, first and foremost, not voluntary. Moreover, while “Napoleon’s Empire tried to impose upon Europe its vision of peace, based on the assumptions of popular sovereignty, civic rights and the rule of law,”Footnote ¹¹⁵ this imposition did not involve the creation of a league of nations working for establishing peace, but the use of force to enforce new territorial conquests. It was a degeneration of ideas of a philosopher, who “insisted that conquest had to be excised completely from the canon of a truly republican politics, lest it infect and compromise the integrity of a legalized international order.”Footnote ¹¹⁶ After 1815, Kant’s ideas resurfaced with notable influence during the Congress of Vienna, albeit in a manner that subverted their original intent “in favor of absolutism and dress[ing] them in the garb of mysticism.”Footnote ¹¹⁷ The Congress’s principal political architect, Klemens von Metternich, expressed considerable enthusiasm for Kantian philosophy, and Idea for a Universal History with a Cosmopolitan Purpose, “can be seen as providing the foundation for his approach to world politics.”Footnote ¹¹⁸ However, while Metternich shared Kant’s aspiration for peace, his vision for achieving freedom and peace in Europe diverged significantly. Instead of advocating for a federation of states progressing toward a global political organism, Metternich championed the principle of a balance of great powers. Other key political figures of that epoch similarly deviated from Kant’s cosmopolitan vision. “Alexander I explicitly rejected Rousseau and Kant’s proposals to found the European Society on a social contract, which would have gone all the way to establish the res publica.”Footnote ¹¹⁹ Thus, while Kant’s writing was shaped by the revolutionary optimism of his era, anticipating the realization of his ideals across Europe, the course of the nineteenth century unfolded in opposition to such expectations. Even Kant’s propositions regarding the role of trade in fostering peace were reinterpreted within a radically different framework. Johann Gottlieb Fichte’s 1800 concept of the closed commercial state exemplifies this transformation, being a result of the German philosopher’s belief that “only states that had gone to these lengths to insulate themselves from the effects of interstate rivalry could safely allow themselves to engage in international commerce on a permanent basis.”Footnote ¹²⁰

The second important reason for Kelsen’s monism is the legal situation of his native Austria-Hungary before the Great War—a country of which the French jurist Robert Redslob wrote that “if we step into the double monarchy Austria-Hungary, our gaze will be enthralled by other formations that appear as curiosities of state theory.”Footnote ¹²¹ In an attempt to define these curiosities, Georg Jellinek noted that the Habsburg Empire was a time capsule of European history in which different phases of state formation remained alive in the present. For most of the nineteenth century, the Habsburg Empire was “a remarkably explicit workshop for the attempted production of abstract, singular sovereignty out of multinational dynastic empire.”Footnote ¹²² This production stemmed from the specific situation of Austria-Hungary’s different legal and de facto existence: a dual situation that resulted from after Ausgleich or Kiegyezés (the Austro-Hungarian Compromise of 1867), because of which legally Austria (Cisleithania) and Hungary (Transleithania) were separate political organisms with separate constitutional laws: Dezember Verfassung (the December Constitution) and an uncodified old constitution (as well as 1867. évi XII. törvénycikk, Law XII of 1867.)Footnote ¹²³ In legal terms, they remained separate states with their own laws; in Hungary, whose elites saw this form of state as a renewal of Hungarian independence from 1526, Austrians were legally treated as foreigners. (In addition, the Czechs claimed that their state was sovereign in legal terms—acknowledging that it was not sovereign in fact—by recognizing that their “independence and autonomy is not abrogated, but rather persists wholly and completely in law.”)Footnote ¹²⁴ Duality meant the transfer to legal modernity of the legal construct from its origins: the Herrscherpersönlichkeit—whereby several legally separate titles to sovereignty were intertwined in the person of the ruler, who possessed the significant semi-absolutist rights wielded by the imperator across both halves of the realm. After 1867, the formal, legal arrangement of Austria-Hungary was very much different than its de facto arrangement, influencing “differing interpretations of the empire’s state structure.”Footnote ¹²⁵ It was, in the words of Sándor Nagy, “one empire, two states, many laws.”Footnote ¹²⁶ The citizens of such a legal and political project did not consider themselves Austria-Hungarians—as one of them, Bronisław Malinowski, noted, there was no such thing as an Austria-Hungarian identityFootnote ¹²⁷ —but rather inhabitants of certain lands. A separate issue pertains to the Viennese elite, defining itself through a “cultural identity disconnected from territorial sovereignty.”Footnote ¹²⁸ This elite embraced internationalist beliefs best encapsulated in the ironic concept from the novel written by one of their members: the Weltösterreich from Robert Musil’s The Man Without Qualities—Austria as a home for the human spirit, wherever that spirit resides territorially.Footnote ¹²⁹

Let us now examine how Kant’s approach to the concept of a republican polity—understood as a legal proposition that was negatively verified in a factual sense by the historical developments of the nineteenth century—integrates into the broader framework of his philosophy of law. Specifically, this analysis will address Kantian dualism, which, as I argue in this paper, Kelsen reinterprets and ultimately translates into monism. It is based on the “distinguish[ing] in a legal action the question of right (quid juris) from the question of fact (quid facti.)”Footnote ¹³⁰ Kant distinguishes Sein (being, reality, and actuality) from Sollen (oughtness, what should be): “the former relates to the principle of causation arising from natural necessity or, simply, nature as it is, while the latter is indicative of what ought to be done and hence of normative ethical freedom or man’s autonomy in making choices in the field of voluntary ethical conduct.”Footnote ¹³¹ Thus, when Kant writes about the republican system and perpetual peace, he does not write from the perspective of theoretical reason, which knows what is, but from the perspective of practical reason, which determines what ought to be, insofar as he draws on the achievements of theoretical reason, aware of his contemporaries in France. His political intervention, cloaked as a legal text of the international law of his time, is therefore primarily based on premises which, according to Kant’s methodology, are ethical premises. By the same token, however, Kant, within the framework of his own methodology, prevents his proposal from actually being legal. According to Kant, what is legal does not serve the moral perfection of the individual, whereas the project of perpetual peace depends on moral perfection, since it results both from the liberation of man from egoism through the progress of reason and from the perfection of man, leading to a situation in which everyone decides for everyone and everyone decides for himself. The federation of states as a stage on the way to perpetual peace as a project therefore belongs to the realm of Moralität, not Legalität, being “a moral justification for states to be governed by an omnilateral will.”Footnote ¹³² In Kelsen’s time, when was known what happened to Kant’s demands for a republican system, they lose all the more their connection with legality. As a moral project, therefore, it is difficult to accommodate Kant’s work in a pure theory of law, insofar as it stems from an attempt to create a theory of law as law, separate from and independent of both moral philosophy and empirical knowledge. From the perspective of the latter, it is not legal.

The reworking of Kant’s thought that Kelsen undertakes in Das Problem… stems from his observation of the legal-moral charade that the 1795 text proved to be after the experiences of the nineteenth century. Kelsen places it within the framework of Kantian ethics as “utterly worthless”Footnote ¹³³ for legal thought. The transcendence and universalism underlying these ethics are, according to him, for this reason, superfluous in a pure theory of law, because they introduce a basis—not a premise—for its validity. They prevent law from being truly juridical, which is all the more important in the context of its international dimension, since before Kelsen’s preoccupation with it many jurists saw in it precisely “a sort of ‘positive morality’, rather than that of a legal system in a strict sense. … Kelsen cannot maintain the primacy of international law without committing himself to maintaining its juridical nature too.”Footnote ¹³⁴ At the same time, Kelsen, who politically makes an accession to the ideas expressed by Kant, wishes to accommodate his project of international law in the space of pure law; because of this attempt “Kantian cosmopolitanism plays the role of previously gained but subsequently forgotten knowledge, which Kelsen recovered once more, albeit fragmentarily, due to his natural sciences formation; but crucially, without Kant’s ‘ideal of morality’ and purposiveness.”Footnote ¹³⁵ Kelsen, by virtue of his internationalist outlook and integration to the cosmopolitan circles of the Viennese intelligentsia, seeks to conceptualize the norms of international law not as moral rules cloaked by Kant in the guise of legal provisions, but as expressions of will. However, this will, in Kelsen’s framework, is not the will of the state as a constituent element of international law. His theory represents a departure from both post-Kantian naturalism and positivism as fact-centered frameworks, aiming instead to introduce a novel paradigm in jurisprudence. This new approach reframes the quasi-Kantian project of eternal peace, detaching it from moral underpinnings to render it pragmatically effective.Footnote ¹³⁶ At a methodological level, Kelsen’s departure is marked by his rejection of Kantian dualism in favor of monism. While following Kant’s separation of law and morality, Kelsen concludes that morality has no bearing on the nature of law. For Kelsen, law does not require morality as a guiding principle; it operates independently of the Kantian moral imperatives. “The philosophical premise of legal universalism in Kant’s idea of the unity of morality was taken up by Kelsen and reformulated in his innovative and radical theses.”Footnote ¹³⁷ According to Kelsen, the point of arrival of international law is a situation in which “law becomes organisation of humanity and therefore one with the supreme ethical idea.”Footnote ¹³⁸ As such an idea, it is all-encompassing and rests on one single Grundnorm.

Kelsen’s rejection of the foundational framework of Kantian dualism extends to the dismissal of other dualistic structures traditionally underpinning legal thought, most notably the division between national and international law. According to Kelsen, “international law and the various state legal systems taken together constitute a unified normative system, and the primacy of international law over state law within the monistic framework.”Footnote ¹³⁹ If, in arguing for the rejection of the division between state and legal system, Kelsen argued that a state cannot be a state without being legal, and a legal system cannot exist outside the state, in rejecting the division between domestic and international law, he concludes: it is the world what cannot be non-legal, so the Kantian different standpoints from which we can view norms and human motivations for acting under them are superfluous in legal thought. If “under dualism … a state will not be bound by international law, unless it has recognized it,”Footnote ¹⁴⁰ in a monist view of international law recognition is not necessary because no state is necessary. Nor is it possible, therefore, the situation in which Kant’s ideas found itself, encountering the obstacle of “greatest hindrance to the development of such an international legal order … the dogma of sovereignty, because it mistakenly claims that the independence of states is necessarily incompatible with the existence of international legal norms.”Footnote ¹⁴¹ In this way, Kelsen’s concept, not rooted in a moral idea, makes it possible to implement it, making “objections to the realization of the civitas maxima and the unwillingness to accept the subjection of one’s own state to international law … merely politically motivated.”Footnote ¹⁴²

Another aspect of Kelsen’s monism is a consequence of the legal and political problems of Austria-Hungary at the time of his writing, as described earlier. The best introduction to it is an anecdote that Kelsen recalled about his work in the Ministry of War. During a conversation in 1918, when his superior heard that he was, according to Kelsen, the last Minister of War in the Monarchy, he could not believe it. “‘You are crazy, he responded, how can you say something so awful!’ To the very last moment, the old officer, even though he had no illusions about the magnitude of the military defeat, could not believe it possible that an empire of four hundred years could simply vanish from the stage of history.”Footnote ¹⁴³ The significance of this anecdote, representing a belief about which the aforementioned Stefan Zweig writes that “everything in our almost thousand year-old Austrian monarchy seemed based on permanency, and the State itself was the chief guarantor of this stability,”Footnote ¹⁴⁴ is expressed in the question: if, according to Karl Renner, “the Danube Monarchy ceased to exist on 12. November, 1918,”Footnote ¹⁴⁵ how is it possible to think in terms of international law about the existence of states that did not so much replace it as were created as completely new political entities? What was the legal basis for their existence? Were they a political intervention in a system of international law in which they appeared ex nihilo, from a legal black hole? In what legal framework did these new states actually come into being?

Within the Kantian model of double vision of phenomena, this event would be described as political, which only becomes juridical through the recognition of other states as acting in their autonomy, in accordance with the dictates of reason: the recognition of the right of peoples as moral persons to self-determination, in this case: the national and political self-determination. On the basis of monism, however, the problems outlined earlier find a different solution. In arguing for the abolition of the distinction between national and international law and the introduction of the fundamental norm as the content-free premise for the validity of law, Kelsen says: law has no beginning. The question of what principle gives rise to a state organism makes no sense, and attempting to answer it is like pulling oneself out of a swamp by one’s own beard: “the numerous, continually repeated attempts to understand the emergence of states juridically, to legally ground the state, i.e., the legal order, must of course fail.”Footnote ¹⁴⁶ By delineating a clear distinction between law and fact, and positing that the state is initially established as a factual entity and then drawn into the realm of that which arises from reason, we introduce to our thinking, according to Kelsen, the moment of the state as being outside the realm of law, making it impossible to know legally both the moment of the creation of the state and the relation of the new creation to the obligations of the one that existed before it on the given land. Meanwhile, since it is not the state that is the holder of sovereignty, but the legal system as it encompasses the entire globe, “there is no legal cognition in legally empty space.”Footnote ¹⁴⁷ To think otherwise, Kelsen argues, is to plunge into the abyss beneath the bridge connecting two constitutions: the one of the state that has ceased to exist and the one of the state that emerged from the legal void. In this sense, international law is not the bridge constructed to prevent the collapse into chaos during the death of one state and the birth of another. “The rise and fall of the state show themselves to be legal phenomena.”Footnote ¹⁴⁸ A new state, even before its formation, is already legal because it exists within the only possible legal framework, which is a framework of international law.

Through his monist conception of international law, Kelsen transcends the aporias inherent in the Kantian framework. By formulating his theory in the aftermath of the 19th century, Kelsen avoids the pitfall of reducing Kant’s moral postulates to a quasi-legal framework disguised as a treaty of international law. Instead, he directly engages with the nature and function of international law itself. However, the historical disillusionment is not the sole event prompting the Austrian jurist to reformulate his theoretical approach.

Kelsen and Mass Democracy

The transformations between 1795 and the early twentieth century extended far beyond the conditions of warfare identified by Habermas in the passage cited in the introduction to this essay. The parameters of normalcy and the processes of everyday political decision-making also underwent significant changes. This shift was partly due to the fact that “the century since the end of the Napoleonic Wars had been the most peaceful one Europe had known since the Roman Empire.”Footnote ¹⁴⁹ Patrick Cohrs comments on this maladjustment of Kant’s ideas to Kelsen’s era by noting that they were “conceived in a republican tradition rather than for a ‘democratic age’,”Footnote ¹⁵⁰ in which the very notion of democracy, due to the emergence of democratic systems in nineteenth-century Europe, carried a slightly different meaning than it had in Kant’s time. More significant than the mere existence of these systems, however, was the transformation of the masses into the most important political collectivity: “the mass [which] was the dark sun, unapproachable for all the heat it emitted, around which scholarly studies, esthetic experiments, political activities, and social programs moved in the vibrant and violent cultures of interwar Germany and Austria.”Footnote ¹⁵¹ Although Kant wrote about the masses—an example being his discussion in What is Enlightenment?, where he describes the ‘guardians of the masses’ spreading independent thinking among them, including in the form of prejudices, which “will serve as well as old ones to harness the great unthinking masses”Footnote ¹⁵² —he could neither anticipate nor conceive of a situation in which these masses would reject the prejudices imposed by philosophers, resist being instrumentalized as a controlled social force, and instead become a self-sustaining and independent social power. For Kant, the notion of what “no one could avoid encountering them on streets and squares … These masses were more than a weighty social factor; they were as tangible as any individual. … they haunted the imagination,”Footnote ¹⁵³ as Siegfried Kracauer writes about the masses, was beyond the realm of possibility. To fully comprehend Kelsen’s reformulation of Kant’s project in the early 1920s, it is necessary to first engage with Kant’s broader critique of democracy. Although Kant’s interpretation was shaped by the historical limitations of his era, it offers a foundation for arguments that would later become pivotal to Kelsen’s theoretical framework.

I indicated earlier that Kant rejects democracy on the grounds of the impossibility of a tripartite government. The consequence of this impossibility is Kant’s conviction, that “democracy, and only democracy, necessarily leads to despotism. … he saw in democracy something that can alter the very moral standing of a state—what Kant calls the forma regiminis.”Footnote ¹⁵⁴ In his critique of democracy, Kant does not reject democracy in general or what, by the early twentieth century, might have been recognized as its predominant form. Rather, his critique targets a specific type of democracy, which he regarded as the comprehensive embodiment of this political system: direct democracy. As articulated in the writings of his contemporaneous thinkers such as Jean-Jacques Rousseau, this form of democracy operates without representative institutions or, as Rousseau asserted, is inherently incompatible with them.Footnote ¹⁵⁵ “Only in direct democracy, so the argument goes, the mechanism feared by Kant of a faction (probably majoritarian) imposing its will against the other would be triggered.”Footnote ¹⁵⁶ Direct democracy, according to Kant, involves a tendency for citizens to see their vote as a tool for advancing their private interests. In direct democracy, the citizen is even expected to treat the political space as one that serves the realization of what serves him, which in turn relieves the citizen of the need to ground his political decisions in reason: because citizens only represent selfish interests, they do not shape the overall shape of the political community. “Kant equated democracy with mob rule, in which ‘everybody wishes to be ruler’ and minority views (however Rightful) could be quashed.”Footnote ¹⁵⁷ In other words, according to Kant, democracy is a situation in which the principle of autonomy cannot be fully realized because democratic citizens are incapable of realizing that they live together with their fellow citizens in the kingdom of ends. Democracy appears as an impediment to the supremacy of civil society as a mode of organizing a community that emerges from “growing self-awareness … Such self-consciousness can be achieved only when people are free to govern themselves both individually and collectively.”Footnote ¹⁵⁸ Since it obstructs this growth, direct democracy becomes a system in which the dominant trait of human nature is egoism, which, “when taken as the principle of all our maxims, is the very source of evil.”Footnote ¹⁵⁹

For Kant, the facilitation of egoism is intrinsically connected to the obstruction of a critical principle: the rule of law, which he identifies as the guarantor of individual freedom. In his view, direct democracy precludes the possibility of acting in the true interest of the community, as such a system inherently leads to the degeneration of majority rule. While Kant acknowledges its necessity and “proposes a majority principle as necessary in face of disagreement … [he also says that] equal freedom … is not secured by voting and majority rule alone but requires a constitution that establishes an impersonal public authority.”Footnote ¹⁶⁰ Consequently, direct democracy, according to Kant, is fundamentally flawed, as its laws are dictated by the will of the majority rather than by an impartial constitutional framework. In the historical and intellectual context in which Kant writes, he expresses skepticism regarding the capacity of his contemporaries to construct a legal and political order in which the unreasoned will of the masses does not eclipse the rational judgment of the individual. While Kant implicitly acknowledges the historical inevitability and necessity of universal history, he contends that the moral development of his contemporaries must first occur through the establishment of a republican system. This perspective aligns with Cartesian thought, where reason constitutes the essence of individuality, standing in opposition to the passions. If Kant is “describing those who succumb to such passions as mad, sick, and deformed …[he also] admits that we can be overcome by particularly strong desires, such as passions for money or power, which we know will prevent us from satisfying our other desires and leave us unhappy.”Footnote ¹⁶¹ The establishment of a republican system, therefore, is a moral imperative to restrain such overpowering passions and reorient individuals toward rationality.

Does Kant’s critique of democracy render him an elitist? Not necessarily. As Luigi Caranti observes, Kant’s “reservations against democracy are everything but outdated, dully conservative, elitist concerns.”Footnote ¹⁶² On the contrary, his proposal for a representative system can be understood as an effort to protect the majority of citizens from the undue influence of the wealthiest members of society, ensuring that the latter “do not increase their say on political decisions by exploiting their influence on dependents in forms that range from relying on adaptive preferences to explicit blackmailing.”Footnote ¹⁶³ Therefore, for Kant, the rule of law serves as the mechanism to secure genuine equality among citizens, aligning their material conditions with their formal status as described by the legal principles.

Let us now turn to Kelsen and his era. The previously stated invocation of the Cartesian distinction between consciousness and passions is deliberate, as this conceptual dichotomy was frequently reiterated by early twentieth-century intellectuals when confronted with the phenomenon of the masses, mass politics, and mass democracy. “Assuming that the individual was characterized by consciousness, and that the crowd was the opposite of the individual, they concluded that the crowd must be characterized by what was opposite to consciousness, that is, by unconscious passions.”Footnote ¹⁶⁴ Hannah Arendt observed that the masses are inherently alien to the sphere in which political matters are resolved through rational deliberation.Footnote ¹⁶⁵ Guided by instinct rather than reason, the masses, in her view, undermine the values necessary for the successful functioning of a political system. The intellectual response to the emergence of the masses was marked by critical scrutiny and apprehension. While acknowledging that the masses represented “the enormous fact of an era,”Footnote ¹⁶⁶ intellectuals regarded them with unease and resentment, viewing their influence as disruptive.

Did Hans Kelsen diverge from his intellectual contemporaries, who contended that “the crisis of the post-1918 period owed … to the explosion of mass politics”Footnote ¹⁶⁷ in this respect? Like Kant, Kelsen—an undisputed member of the Austro-Hungarian and later Austrian elites—rejected elitism, which he regarded, in the context of early 1930s leadership, as a defining feature of fascism.Footnote ¹⁶⁸ Nonetheless, “his political writings mirror the particular political atmosphere of the 1920s: theoretical reflections on the nature of democracy in the era of mass politics as well as on the complexity of political processes developed alongside considerations tinged by the specific institutional insecurity that characterized the young Austrian and German republics born after the First World War.”Footnote ¹⁶⁹ In 1920, the same year as Das Problem der Souveränität, Kelsen published The Essence and Value of Democracy. In this work, he reveals himself as a proponent of nineteenth-century parliamentarism, which he understands as a social technique in order to politically integrate plurality in the form of laws binding the community via mechanism which “stipulates that the will of the state in all of its manifold manifestations be determined directly by one and the same assembly of all citizens entitled to vote.”Footnote ¹⁷⁰ According to Kelsen, this kind of parliamentarism, in which the split between rulers and ruled is fluid and dynamic because of the fact that all citizens are equipped with fundamental rights and the ruled of today might become the rulers of tomorrow, prevents the democratic cacophony inherent in the fact that each political actor speaks only in his own name, restraining “the people’s ‘natural’ aspirations that might endanger the democratic system.”Footnote ¹⁷¹ By implicitly critiquing mass democracy and extolling nineteenth-century parliamentarism, Kelsen critiques the former in a manner akin to Kant’s critique of direct democracy. He identifies in mass democracy the dual threats of autocracy and the tyranny of the majority, perceiving it as a space dominated by clashing interests that fail to coalesce into meaningful compromise. He attributes the emergence of mass democracy to historical circumstances “as the inevitable outcome of a complex social and political process by means of which people remained free and equal by respecting laws which they could not directly create.”Footnote ¹⁷²

This emphasis on the historical roots of mass democracy is particularly significant, as Kelsen does not, in his second major work of 1920, propose the restoration of nineteenth-century parliamentarism. He is not an antiquarian seeking to revive what has become obsolete. Instead, he asserts that “democracy should be representative rather than direct … representation should be based on assemblies.”Footnote ¹⁷³ In this context, Kelsen, as a political thinker engaging directly with the challenges of his time, identifies the institution central to ensuring democratic representation: political parties. For Kelsen, political parties serve as the facilitators of “compromise, which Kelsen treated as the corollary of majority principle.”Footnote ¹⁷⁴

As Bernard Manin observes, the vision of parliamentarism grounded in political parties represents a marked departure from the model prevalent in the previous century. Whereas nineteenth-century liberal parliamentarism prioritized a narrow elite, parliamentary democracy in the early twentieth century is structured around the people as a collective, without succumbing to populist subjugation.Footnote ¹⁷⁵ Political parties, in this framework, serve to organize the populace and function as “one of real democracy’s most important elements … modern democracy virtually rests on political parties, whose importance grows the more the democratic principle is realized in practice.”Footnote ¹⁷⁶ According to Kelsen, the primary role of political parties is to shift the conception of freedom from an individualistic understanding of absolute freedom from constraints to a political notion of freedom as self-determination. For Kelsen, genuine freedom is inherently political. In this respect, political parties of Kelsen’s time differ significantly from their counterparts in earlier centuries, which were often dismissed as factions acting solely to advance their own interests, attempting to impose those interests on the state as its expressed will. By contrast, in the early twentieth century, “the will of society is not to be the expression of the interests of one group alone … that will must be the result of a compromise between opposing interests. The division of the People into political parties, in truth, establishes the organizational preconditions for the achievement of such compromises.”Footnote ¹⁷⁷ This ongoing and dynamic process of compromise fosters harmony in political life, as such harmony “can only result from a renewable compromise between the different actors in the plurality - political parties.”Footnote ¹⁷⁸ Recognizing their indispensable role, Kelsen calls for the constitutionalization of political parties, what would make possible dismantling the remnants of a previous, aristocratic model of the political sphere.

Kelsen’s reflections on political parties may surprise readers of his second text from 1920. At first glance, one might be tempted to draw a sharp distinction between Kelsen as a legal scholar and Kelsen as a political theorist: on the one hand, in his legal writings, Kelsen “urged us to emancipate ourselves from fictional entities such as the state; or indeed, from the fiction of representation in a democratic state,”Footnote ¹⁷⁹ while on the other, in his political writings, he emerges as a defender of institutions, including political parties, as mechanisms for moderating human instincts. Such a reading of Kelsen’s thought, however, is not entirely accurate, and his remarks in The Essence… should not be interpreted in isolation from Das Problem…, mainly: from a critique of the use of the concept of sovereignty. This aporia will cease to seem aporic once we understand Kelsen’s critique of the concept of representation.

Kelsen, unlike theorists of the masses such as Gustav Le Bon, does not claim that social interactions among individuals give rise to a mass social structure independent of those individuals. Instead, he maintains that only the individual subject possesses a soul.Footnote ¹⁸⁰ Who, then, are people, not only as part of the masses that emerged at the beginning of the twentieth century but more generally as members of a political collectivity? They constitute “a system of individual human acts regulated by the state legal order.”Footnote ¹⁸¹ In this sense, as David Ragazzoni emphasizes, they do not form a sovereign entity governing itself through representation; they are merely the object of governance.Footnote ¹⁸² For this reason, it cannot be said that they express, or are even capable of expressing, any collective will. Fictions such as the common will “do not limit themselves to contain specific juridical facts, but rather they affirm psychological facts, that do not exist, and for that reason are fictions, that neither have a place in the empire of psychology, nor in that of jurisprudence … How should there be a unified will of the people which is divided into hundreds of directions and separated by the deepest oppositions; that must remain a mystery.”Footnote ¹⁸³ In other words, in the pure theory of law, the common will is not a concept to be considered. In the practical aspect of politics, according to Kelsen, “representation, and, more specifically, the parliamentary form of representation can be justified by practical considerations. Essentially, parliamentarianism is mandated by the division of labor.”Footnote ¹⁸⁴ This division entails the effort to reach a compromise, rather than the pursuit of any telos for which a political collectivity might exist. Within the framework of the pure theory of law, such a collectivity cannot be conceived, and therefore, neither can its purpose. As Adam Przeworski notes, Kelsen departs from the belief that representative political systems are grounded in an ideology or even a harmony of values.Footnote ¹⁸⁵ Instead, their foundation lies in compromise, which, like the principle of pacta sunt servanda in international law, has no intrinsic content and serves merely as a precondition for the functioning of political life. Political parties, in this context, extend the function of compromise by providing the practical means to organize it: they bring “like-minded individuals together to secure them actual influence … [constituting] collective bodies, which unite the common interests of their individual members … [they act like] subterranean springs feeding a river … surfac[ing] and channel[ing] into a common riverbed in the popular assembly or parliament.”Footnote ¹⁸⁶ As intermediary bodies between the state and individual legal actors, they are “legally obliged to execute the will of the represented,”Footnote ¹⁸⁷ who are always individual actors and never collectivities. The latter, as Kelsen’s view distinguishes him from the one expressed by Carl Schmitt, possess no will of their own.Footnote ¹⁸⁸

Kelsen’s normativism and pure theory of law is a theoretical construct developed in and for the conditions of the early twentieth century, representing an intensification of the German-language legal tradition that underpinned the liberal parliamentarism of the previous century—namely, positivism, with its focus on, as Michael Stolleis describes it, what actually exists; and what exists is the legal order and individual beings.Footnote ¹⁸⁹ Kelsen’s approach to addressing the challenges of mass democracy, therefore, embodies “extreme individualism. Evidently, in an era when the worst totalitarianisms of history were ripening, that standpoint was not devoid of intrinsic value.”Footnote ¹⁹⁰ By seeing individual subjects in the normative space as subjects not of national law, but simply of international law, Kelsen rejects the danger of mass democracy in depriving the masses of their influence in shaping community affairs through the tyranny of the majority. Rather, democracy is a system that “was still up to its promise of atomization in the sense of satisfying singularly each individual’s yearning for freedom.”Footnote ¹⁹¹ Such a withdrawal of influence prevents the masses from acting politically by influencing a legal system that would depend on them in a moment of clash of interests. If we see the normative space as spanning between the legal system and individuals, it is these subjects who become dependent on the system, not the other way. If, for Kelsen, individuals “have been advanced to essential subjects of international law … As a result they remain indirectly objects of rights and obligations (mediated by states), but also become direct holders of rights and direct recipients of obligations.”Footnote ¹⁹² The word “state” in the quoted passage can be replaced with words: political parties, as well as: international order.

A crucial element in this perspective on law, the individual actor, the state, and political parties is the nature of law as a coercive order, which, in this sense, can wield authority over rebellious masses. As I have shown in section two, the Kantian project of a peaceful federation excludes this character in terms of the influence of any normative order in the internal affairs of the state. This, however, does not change the fact that “Kant understands the state’s function as essentially coercive.”Footnote ¹⁹³ As such, states are coercive orders in the sense that coercion can be applied to their citizens, which, in the case of the project of perpetual peace, gains significance when it comes to the moral education of their citizens. According to Kant, this education does not necessarily have to be nonviolent: “Kant makes it clear that this process occurs without a reorientation of human beings’ wills; it will happen even against their will.”Footnote ¹⁹⁴ Similarly, Kelsen gives coercion a special importance in a pure theory of law; it is essential as “what distinguishes a legal order from an ‘ought-order’ such as morality and religion … Coercion is a constitutive element of the legal order as a whole but not a validity criterion of each of the norms composing that legal order”Footnote ¹⁹⁵ . In it, the state appears not as an institution that is a constitutive component of the international order influenced by mass democracy, but as an agenda of the legal order, devoid of legal but endowed with practical significance, which imposes norms on individuals as subjects of the international order. Individuals, after all, have no influence on this order, and therefore their emotions and passions do not pose a threat to it. In contrast to Kant, however, Kelsen believes that if a state, as a purely mediating institution, deprived of the sovereignty that is part of the international legal order, nevertheless acts against it, it can be coerced by this order—in the form of the activities of other states, also purely mediating at the time: an example of this, for Kelsen, is the institution of just war.Footnote ¹⁹⁶ It does not need to be enshrined in a positive system of international law, because “a legal norm itself need not employ the idea of coercion. But no norm is a legal norm unless it is both valid that is, authorized by some superior norm - and a condition of a coercive sanction.”Footnote ¹⁹⁷ Kelsen’s approach to the problem of coercion is thus not so much different from Kant’s as enriches it—necessarily so, for in Das Problem… Kelsen “attempted to construct a legal theory that reflected the world of the twentieth century.”Footnote ¹⁹⁸