Hans Kelsen and the Material Constitution of Democracy (original) (raw)

- Introduction Of Constitutions and Constitutional Theory

R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press, 2024), 2024

This chapter is the Introduction to R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press, 2024), Section 1 explores three varieties of constitutional theory: normative, conceptual and positive. Section 2 then offers an account of the basic concept of a constitution, noting how it differs from its various conceptions. This section also defends the analytical structure of this volume into values, modalities and institutions as part of the basic concept of a constitution. Section 3 then turns to constitutional norms, both written and unwritten, and their role within even a codified constitution. Finally, section 4 looks at the variety of constitutionalisms as a product of the essential contestability of the values, modalities and institutions of any conception of the constitution, be that conception theorised normatively, conceptually or positively (or draw on elements of all three approaches). This diversity is exemplified by the contrasting views of the contributors to this volume.

Some misunderstandings concerning Hans Kelsen's concepts of democracy and the rule of law

Although Hans Kelsen's Pure Theory of Law is arguably one of the most influential theories of law in Europe, it has been occasionally misunderstood. One of the most common misunderstandings is the claim that Kelsen's concept of the Rechtstaat (the rule of law) legitimizes any regime, the Nazi one included. 1 This misunderstanding stems from the fact that Kelsen ascribed a double meaning to the concept of Rechtsstaat. While in a broad sense, Kelsen identified every legal order and state with Rechtsstaat, and that meaning is recalled by Holmes, he also recognized the classical meaning of the Rechtsstaat in the narrow sense, which corresponds with the concept of the rule of law. 2 The aim of this paper is to analyze the basis of this fundamental misunderstanding and demonstrate that on the contrary, Kelsen was one of the strongest supporters of democracy of that time. It will involve the analysis of several concepts, such as the pure theory of law, as well as the constitutional and political theories which Kelsen developed during his lifetime. The greatest emphasis will be placed on Kelsen's theory of democracy, since its detailed and precise construction is the best evidence it could not act as a justification for the Nazi regime. This confusion stems from the fact that Kelsen's theory of democracy is very often wrongfully ascribed to the pure theory of law, which has a different aim and a very general character. An analysis of democracy demands

A Political Theory of Constitutional Democracy

This text offers the draft of the third section of a book devoted mostly to the Constitutional Courts in three European countries: Germany, France and Italy. After a section on the new separation of powers and the legislative role of the judiciary, I present a theory of the legitimacy of the constitutional adjudication by agencies, which are non-electorally accountable and have the explicit function of corrective of the majoritarian democracy, based on the principle that " there is no right without remedy " .

The Imaginary Constitution of Constitutions

The modern constitution is predominantly understood as a way of instituting and limiting power, and is expected to contribute to (societal) stability, certainty, and order. Constitutions are hence of clear sociological interest, but until recently they have received little sociological attention. I argue that this is unfortunate, as a sociological approach has much to offer in terms of a complex and historically sensitive understanding of constitutions and constitutionalism. Constitutional sociology has particular relevance in contemporary times, in which the meaning of constitutions and constitutionalism is uncertain, and subject to contestation, and possible transformation. The constitutional sociology developed here is phenomenologically inspired and stresses the importance of understandings of the modern constitution as ‘embedded’ in constitutional imaginaries. Rather than as a visible and rationally designed construct, constitutional sociology understands constitutionalism as ultimately a ‘field of knowledge’. The suggestion is that this field of knowledge or ‘modern constitutional horizon’ is characterized by a tension between two ultimate markers, in terms of what Castoriadis has identified as the social imaginary significations of mastery and autonomy. Mastery and autonomy form prominent constitutional orientations, historically taking the form of solidified, instituted meanings, identified here as the modernist and the democratic imaginaries. In the last section, the two instituted constitutional imaginaries will be ‘unpacked’ in specific components (state sovereignty, absoluteness, fabrication, endurance, and distrust regarding the modernist imaginary; indeterminacy, creativity, dynamism, self-government and popular sovereignty regarding the democratic one). In conclusion, I suggest that constitutional sociology might significantly help elucidating the potential losses and heteronomous tendencies that may result from the contemporary uncertainty and possible metamorphosis that affects the modern constitution.