Abstract
There is little agreement in contemporary political philosophy about how to conceive of human rights, except for a shared concern for freeing the concept of human rights from the legacy of traditional natural law theories. Even so, there is no place for anything like a reconciliation of Kelsen’s political-legal theory with a contemporary concept of human rights. The reason is not that Kelsen’s well-known and notorious criticism of various natural law traditions applies equally to contemporary philosophy of human rights, but that Kelsen’s account of democracy is incompatible with the idea of human rights. For despite all differences in detail, philosophers tend to conceive of human rights as substantive normative principles, which articulate standards of legitimacy for socio-political institutions that protect individual persons from legal or political overreach. By contrast, Kelsen conceives of democracy essentially as a method of legislating based on procedural authorization that imposes no substantive restrictions on the very content of laws. True, Kelsen explicitly defends constitutional “basic and liberty rights” with the argument that insofar as majority rule is essential to democracy, protection of minority rights is so too. But Kelsen’s account of those constitutional rights falls short of any idea of human rights, for constitutional rights are merely instrumental to the maintenance of democracy and articulate constitutional particulars of democratic states, not general substantive standards for legitimate government.
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Notes
- 1.
First published 1920; I will rely on the enlarged second edition (Kelsen 1929), which includes his analysis of the concept “people” in “sovereignty of the people” in its English edition (Kelsen 2013); page numbers without brackets refer to the English edition, page numbers inside brackets to the original 1929 edition.
- 2.
See Dreier (1997) on the way in which Kelsen’s account of democracy opposes those of especially other German theorists during the Weimar Republic and the pre-fascist era.
- 3.
“For society and state to be possible, there must be a valid normative order regulating the mutual behavior of men, i.e. there must be rule [Herrschaft]. But if we must be ruled [beherrscht werden], then we only want to be ruled by ourselves. Natural freedom is transformed into social or political freedom. To be politically free means to be subject to a will, which is not, however, a foreign will, but rather one’s own will [Von der natürlichen Freiheit löst sich die soziale oder politische Freiheit ab. Politisch frei ist, wer zwar untertan, aber nur seinem eigenen, keinem fremden Willen untertan ist.]” (Kelsen 2013, 28; [4; emphasis in the original]).
- 4.
Kelsen, of course, is aware that, in practice, legislation is not exclusively exercised by the legislature, but the point is not of primary importance in the present context.
- 5.
The concept of a “legal fiction” derives from Kelsen’s critical appropriation of the notion of a fiction from Vaihinger; see Kelsen (1919).
- 6.
Surprisingly, nowhere in his discussion of authorization does Kelsen refer to Hobbes, although he seems committed by his constitutional analysis to concede that also non-democratically constituted legislatures can or must be conceived as acting on the basis of “authorization”, even though non-democratic authorization. See Chwaszcza (2012), for an interpretation of Hobbes’ concepts of “authorization” and “representation”.
- 7.
Kelsen is not arguing against plebiscitary elements, quite the contrary, but he does not consider them necessary for a constitutional order to qualify as democratic.
- 8.
Kelsen emphasizes that even Rousseau required unanimous consent only for the original contract, he maintains: “The same principle [unanimity], which first protected the freedom of the individual during the establishment of the social order, now enchains him when he is no longer able to withdraw from that order. The original creation of the social order or of the government is not, after all, part of our social experience. The individual is usually born into an already established social order, in the creation of which he did not participate. Thus, he is confronted with a foreign will from the very beginning. Only the alteration, or development, of the social order is practically in question. And from this perspective, the principle of an absolute, not a qualified majority represents the relatively greatest approximation to the idea of freedom” (Kelsen 2013, 30f. [8f.]; emphasis added). See below for a qualification with respect to constitutional protection of minority rights.
- 9.
See Kelsen 2013, 31 [9f.] quoted above.
- 10.
“From the point of view of social reality, the majority principle does not mean that the will of the numerical majority prevails. Rather, its significance consists in the fact that, under the influence of this ideology, the individuals making up the social community are essentially divided into two groups. What is important here is that the tendency to form or to win a majority has the effect of overcoming the countless impulses in society, which push towards differentiation and division, and reduces them to a single, basic contradiction. (…) Initially it is this force of social integration that sociologically characterizes the principle of the majority” (Kelsen 2013, 69 [55f.]).
- 11.
“The same thing is expressed by the proposition that only citizens of a free state enjoy freedom. Individual freedom is replaced by popular sovereignty, and a free state, or republic [Freistaat], becomes the fundamental demand” (Kelsen 2013, 33 [13]).
- 12.
- 13.
Kelsen’s thesis obviously depends on the implicit assumption that defenders of the distinction are natural law theorists who think of private law in terms of pre-political natural law or pre-political natural rights of individuals.
- 14.
Kelsen (1931) defends a concept of not only unlimited but also indivisible sovereignty.
- 15.
“Such a rational form of self-restraint can only be constitutionally instituted within the parliamentary process [Nur im Parlamentsverfahren ist solche rationale Selbstbeschränkung als verfassungsmäßige Institution möglich]. Here, the purpose of the catalog of fundamental rights and freedoms changes from the protection of the individual from the state to the protection of a (qualified) minority from a merely absolute majority” (Kelsen 2013, 68 [54; emphasis in the original]).
- 16.
It has to be conceded that viewed from a pragmatic perspective, even the best constitutional arrangement might not suffice to deter an illiberal and anti-democratic society from suppressing individuals or minority-groups and from transforming itself into an authoritarian regime. A conception of sovereignty of the people that theoretically allows for the – procedurally legitimate – possibility of the abolition of democracy, however, seems to suffer not from pragmatic weakness, but from weakness of normative premises, such as substantive normative constraints on the purpose and competence of legislation and state activity.
- 17.
Kelsen’s identification of state and legal order seems best understood as the claim that political authority––in contrast to mere power––can “scientifically” or “philosophically” be conceived of (in modernity) only in terms of some normative account of authorization, which he thinks is some form of (quasi-) legal constitution.
- 18.
Somek (2006) has argued that Kelsen’s identity thesis aims at “deontologizing” the concept of the state, whereas I would call it an attempt to present it as a legally-normative order; for deontology is often understood as implying a commitment to intrinsically substantive moral obligations, whereas Kelsen’s understanding is primarily procedural. See section III for the distinction between legal and moral normativity in Kelsen.
- 19.
From a methodological (post-positivistic) point of view, it might be held against Kelsen that not all conventions are “legal” conventions, and that conventions are not mere abstract normative assumptions or presuppositions, but public practices. The identity thesis indeed in no way “follows” from acknowledgement of the conventional nature of the state.
- 20.
Common sense versions of emotivism, such as Hume’s, assume that moral beliefs of people largely converge, and that interpersonal disagreement results from dominance of their selfish inclinations.
- 21.
The question whether Kelsen’s view actually qualifies as neo-Kantian, and, if so, of what school, is contested but not relevant in the present context.
- 22.
Obviously, this is neither universally nor necessarily true, but an empirically contingent fact of public, or political, culture. Insofar as Kelsen is primarily concerned with a normative defence of democracy, however, it might be taken to articulate an empirical precondition for the well-functioning of democracy or even a genuinely normative requirement of democratic attitudes addressed to citizens. For a defence of a normative account, see Rawls (1993).
- 23.
Contemporary accounts of constitutional democracy largely assume that those elements are embedded into a broader constitutional framework that, among other things, also guarantees certain individual rights and liberties for morally substantive reasons, which are removed from the agenda of questions that can be decided by mechanisms of pure procedural justice. See Dworkin (1997) and (1986), for the idea that constitutional rights protect moral values, which function as normative constraints on democractic decision making; see Rawls (1993), who, by contrast, argues for the recognition of a “free-standing” sphere of the political, constrained by a rather restricted list of such constitutional rights as can be justified within a framework of meta-ethical constructivism.
- 24.
In defence of Kelsen, one has to concede that ideological positions in the 1930s tend to resemble Kelsen’s personal commitment picture in several respects. What is special about ideological positions, though, is that they are usually accompanied with the claim that they are “true”, and that exactly seems to be the reason why neither fascist nor communist regimes are strongly committed to democratic government. Thus, Kelsen is in a sense right that democratic politics requires abstention from a claim to truth. Nevertheless, he is wrong in thinking that such an abstention must take the form of what he calls “relativism”.
- 25.
Contemporary constitutionalists and human rights advocates, of course, would insist that there are specific substantive restrictions for the applicability of that mechanism.
- 26.
See Chwaszcza (2011b).
- 27.
- 28.
Whereas Kelsen seems prepared to accept the supremacy of international law, it is not clear whether he would accept that international law may impose any substantive normative constraints upon states. If Bernstorff’s analysis of Kelsen’s conception of international law is convincing, then Kelsen held the view that international law itself is based on a norm that all states ought to be granted equal status (von Bernstorff 2010). Such a basic norm of international law must not necessarily entail a substantive subordination of domestic legal (and political) systems to international law. I am grateful to Peter Langford for pointing out that Kelsen’s views on international law underwent several shifts, and that Kelsen’s initial theoretical orientation was a ‘monistic’ account of the relation of domestic and international law. This was combined with the emphasis upon the establishment of a system of collective security, but one which indicates a number of differences with that envisaged in the UN Charter (see Kelsen 1948, 1951, 1957). In the latter respect he seems to have disagreed with representatives of the so-called “realist” school of international relations theory, as represented among others by Hans Morgenthau, with whom Kelsen was acquainted since he was appointed adviser to Morgenthau’s habilitation in Geneva. Although a system of collective security must reject the principle of non-intervention in the case of external aggression, it is not clear to me whether its adoption must demand any normative standards of domestic legitimacy for the recognition of states as subjects in international law that would be close to Rawls’s understanding of the concept of human rights.
- 29.
See Sønderholm (2012) for references and an insightful synopsis of the debates among Pogge and his critics.
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Chwaszcza, C. (2017). Kelsen on Democracy in Light of Contemporary Theories of Human Rights. In: Langford, P., Bryan, I., McGarry, J. (eds) Kelsenian Legal Science and the Nature of Law. Law and Philosophy Library, vol 118. Springer, Cham. https://doi.org/10.1007/978-3-319-51817-6_11
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