Party Democracy as Political Freedom: A New Reading of Kelsen’s Democratic Theory

• In Event: States of Exception

Abstract

The name of Hans Kelsen is conventionally synonym with one of the most prominent paradigms in 20th-century philosophy of law and jurisprudence. Especially for Anglo-American readers, referencing his work has traditionally meant evoking the theorist of the Grundnorm and, overall, a major representative of the broad and internally diversified family of legal positivists. However, this association, almost by default, between the name of Kelsen and his influential work in legal theory has eclipsed a basic fact: throughout his life, Kelsen wrote extensively on politics and democracy, and the relationship of both with the domain of law.
Over the past few years, also in the wake of the profound empirical transformations of Western democracies and the multiple challenges posed to representative institutions and political parties by populism, technocracy, and a widespread discontent with traditional forms of politics within and beyond the State, Kelsen’s ideas on party democracy have started receiving new attention. Yet, conventional readings mischaracterize him as a theorist of ordinary legality who took for granted the long-term stability of political institutions and dismiss his work for supposedly lacking the normative and practical antidotes to cope with times of crisis, political and/or institutional. Carl Schmitt – Kelsen’s most (in)famous antagonist – voiced this criticism influentially, ridiculing Kelsen’s theory of democratic politics as tailored to the ordinary, rather than extraordinary, circumstances of political life, unable to say anything meaningful about the concrete possibility of the “exception”, and thus ill-equipped to envision the emergency measures that constitutional democracy may need when it is on the verge of implosion. Schmitt’s prejudice – personal, intellectual, and political – inaugurated a long history of distrust towards Kelsen as a democratic theorist that would loom large in the aftermath of WWII and continues to affect the way his political writings are (mis)interpreted, especially in the Anlgo-American world.
Drawing on two volumes that I am currently co-editing on Kelsen’s democratic theory (for Cambridge UP and Oxford UP), my paper challenges this standard misreading. It shows that Kelsen never lost sight of the dangers threatening constitutional democracies in his own times; that he made them foundational to his account of the principles and institutions of democratic politics; and that his democratic theory, developed in the context of one of the darkest phase of world history, offers powerful and overlooked resources to cope with some of the most pressing challenges to liberal democracies in our troubled present. When properly and critically re-examined, his democratic theory provides crucial insights into today’s most pressing debates at the core of democratic theory and practice – from the ambivalent personalization of politics, prioritizing leaders over parties and citizens’ audience over their active participation, to the unsettling rise of anti-democratic actors and parties; from the relationship between democratic societies and absolute values in a post-truth age to the rise of populist constitutionalism.
My paper excavates Kelsen’s seminal book "The Essence and Value of Democracy" (1929), recently made available for the first time in full English translation (2013, eds. Nadia Urbinati and Carlo Invernizzi Accetti), to unearth the powerful, and still largely neglected, contribution it can make to ongoing debates on parties, partisanship, and representative democracy among historical and contemporary democratic theorists. It argues and demonstrates that, contrary to the conventional narrative, Kelsen theorized party democracy as an orchestration of institutional and extra-institutional politics built on the cardinal value of political freedom. Accordingly, he offered an account of democratic politics that realistically assumed, and championed, the importance of political disagreement and conflict; urged a radical rethinking of the meaning and practice of representation in democratic societies; and proposed several reforms to make political parties less prone to elite capture and more representative of citizens’ claims.

Author

• David Ragazzoni, New York University