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Hans Kelsen and Democratic Political Order

One of the most significant legal theorists of the 20th century, Hans Kelsen, is primarily recognized for his legal writings, particularly for his pure legal theory. However, a deeper comprehension of the theory of democracy also greatly benefits from an appreciation of Kelsen's political beliefs and ideas. Especially during a time when representative democracy was being questioned, Kelsen insisted on his theoretical claims about the democratic order and further strengthened and solidified the relationship of these claims with legal theory. His work established a meaningful and causal relationship between democracy, which he dealt with from a conceptual and theoretical perspective, and the pure legal theory that made him one of the most influential thinkers of his time.



Both the development of Kelsen's political beliefs and the influences of the political milieu of his day can be observed in his writings on the nature and importance of democracy. Despite not being a political theorist, Kelsen was careful to keep his legal philosophy intact within the political framework, which allowed him to present a cohesive approach in this work. In a book that focuses on the nature and value of democracy, Kelsen actually emphasized and defended the normative principles and features of the constitutional order against the possible implications of his identity as a positivist jurist. In doing so, Kelsen also made an effort to uphold the principles of the purity of law theory while addressing and elucidating the politics of the law. Indeed, Kelsen's method shows that his concept of the "purity" of the legal system has to do with enhancing its political responsibility and activity. To put it another way, Kelsen argues that democracy and the integrity of the law as expressions of political will do not necessarily have to conflict with one another; rather, they frequently do so and even strengthen one another while remaining independent.

In a way, The Essence and Value of Democracy by Kelsen serves as a theoretical defense of democracy. The book aims to reveal the value of democracy through the nature of parliamentary democracy in a time when representative and parliamentary democracy are under intense criticism. It can also be read as a polemic against seemingly anti-democratic arguments expressed in various venues, though not directly.

Kelsen began his defense of parliamentary democracy by emphasizing the idea of freedom. Kelsen has explored and attempted to explain freedom in the context of "autonomy," basing his defense on this idea. The foundation of Kelsen's theory of democracy is an approach that regards autonomy as the primary political standard. Kelsen argues that the legitimacy of coercive measures and rules within a legal order is contingent upon the participation of the actors and subjects to whom these rules apply and are binding. This condition's existence suggests "autonomy." The foundation of other regimes, or non-democratic types of governance, is heteronomy, or the lack of free will. In summary, the legitimacy of democracy is predicated on the autonomy of subjects, or free will.

Why then does Kelsen believe that democratic legitimacy cannot exist without the consent and will of the governed, or their autonomy? The most basic explanation, in Kelsen's opinion, is that we have no idea what "reality" is. Stated differently, the basis of legitimacy is mass consent and autonomy, and this is primarily due to the relativity of reality. There is a significant allusion to the pluralistic nature of parliamentary democracy, as is evident from this. The most acceptable way for the governed to seek reality is to participate in politics in accordance with their own realities, since no one has a monopoly on truth or reality. It becomes necessary to pay attention to the mass reality because we lack an objective yardstick and scale for truth and reality, but it also doesn't diminish the significance of what those who are marginalized in comparison to the majority have to say.

From an alternative angle, Kelsen claims that democracy is a system that is required by necessity. Looking at the historical process, intellectual pluralism can only continue to be meaningful and play its part in a democratic regime if it eliminates approaches and viewpoints that highlight the singularity, homogeneous, and monolithic nature of political authority and renders them meaningless. As a result, the freedom to justify coercive laws does not preclude the masses from being able to govern themselves with a common will based on equality.

Freedom is the cornerstone of democracy according to Kelsen's theory. Beyond this basis, Kelsen demonstrates that parliamentarism is the primary way to achieve autonomy—that is, widespread free will—from the political community. Two key pillars form the basis of Kelsen's theory of parliamentarism. Among these, political representation comes first. As a result, an institution or body that will be created through the election of the participants and subjects who will carry out the decisions should make decisions pertaining to the community. The principle of majority is the second. This principle states that decision-making should naturally give more weight to the views and wishes of the majority. Talk about the existence of a mutual compromise mechanism is made possible when these two principles are taken into consideration together. This is the simplest and most practical way to move toward mass autonomy under the current circumstances from an idealized, abstract form of popular sovereignty.

It is at this point that one wonders what Kelsen believes about direct democracy. Kelsen is a proponent of representative democracy and is dubious of direct democracy, which seems to be the better option. Under the current circumstances, Kelsen argues, attempts to make democracy more direct would undermine it. Put differently, Kelsen believes that parliamentarism is a more democratic system than direct democracy. According to Kelsen, it is not feasible for every subject to contribute in an equally significant way to political processes in modern societies that are defined by the division of labor. As a result, elite and privileged groups with an aristocratic nature are more likely to arise and take the lead in direct democracies. On the other hand, political subjects can more amicably negotiate the power relations that inevitably develop within the community in the space of political representation that parliamentarism provides.

Thus, although Kelsen stresses the significance of the "People" as the human political community that gives rise to democracy, he also worries about the popular will's manifestation in a form that is rational and almost ideal. According to Kelsen, in a democracy, the Subject and the Object are the same, despite the appearance of difference between the two being represented by the Ruler and the Governed. Put another way, the "People" as a unit form the cornerstone of democracy and are, at least in theory, the subject and the goal of governance. Kelsen begins his characterization of the people from a position that is far ahead of his time. Recognizing that the issue of the "unity" of the people can be an important source of dispute, Kelsen prefers to construct a unity based on a legal and judicial conception rather than a concept built on national, ethnic or religious common bonds that point to a fiction. Put another way, this idea of unity is predicated on the unity of the legal system, wherein subjects' behavior is governed by infallible norms and regulations. This unity in question represents the community of people, which is an important component and element of the state as a particular social order. However, Kelsen reminds us that this unity does not imply a community composed of the sum total of individuals, but rather individual human behavior regulated by the legal order.

 

Although such an approach may seem strange at first glance, Kelsen requires a very clear and simple explanation of the relationship between a democratic legal order and the individual. Accordingly, the legal order should be contented with regulating only a certain and limited number of behaviors of the individual, and human behaviors other than these should not be subject to state intervention or even interest. For this reason, Kelsen states that when people are claimed to belong to a people as individuals, a fictitious unity is actually created, and what is really happening is the construction of the people by subjecting certain behaviors to the legal order. Consequently, the idea that individuals as a whole belong to a people is an illusion. What makes the people possible is the unity and integrity of human behavior taken into account by the political order.

If what is meant by the unity of the people is the unity of human actions that are normatively taken into account by the political order, then in this normative sphere the unity of the people can only be realized in the form of the object of the rule. Only to the extent that individuals can participate in the state order can they become the subjects of the rule. This points to a crucial distinction for the idea of democracy. In his book, which is dominated by an idealist and normative perspective, Kelsen also proposes a more workable democratic order within the framework of his balanced and realistic views. This realism is reflected in the content of the participation of individuals, who are presented as subjects, in the political process. Kelsen recognizes that an order may not require the participation of all individuals in order to be considered democratic. Accordingly, Kelsen states that the fact that slaves were deprived of their right to political participation in the past and women were deprived of their right to political participation in his time does not prevent a political order from being seen as a democracy, while emphasizing that citizenship is not a criterion in the conception of the people. According to Kelsen, anyone who is addressed and influenced by the political order can become a part of the people that creates democracy through their behavior by having the right to political participation.

Kelsen emphasizes political parties as another criterion related to human behavior that makes the conception of the people possible. According to Kelsen, it is not possible to talk about the participation of amorphous, unconscious and unorganized masses of people in the process of creating a democratic order. The most important apparatus to ensure the meaningful and effective participation of individuals in political processes is political parties. Here, we see that Kelsen includes another element that operationalizes both representative and parliamentary democracy and parliamentarism in his definition and conceptualization of pluralist democracy. Representative and parliamentary democracy is also party democracy, and parties are the most important apparatus that makes democracy operational and functional according to contemporary political science literature. According to Kelsen, the fact that political parties gain a constitutional framework and become organs of government by becoming part of electoral democracy also points to the process of rationalization of power. The most important function of parties here is to bring into the political sphere individuals who are doomed to remain isolated in the absence of unorganized political parties. Therefore, the autonomy of the people gains a meaningful and realistic content only in the presence of political parties and contributes to the creation of a democratic legal order by making political participation possible.

Kelsen sees the division of the people into political parties as an inevitable development in democracies. According to Kelsen, since people cannot exist as a visible political force before they become organized in the form of parties, the development of democracy is possible through the integration of isolated individuals into political parties. With the organization of political parties, a social force that we can refer to as "the people" emerges.

It is through political parties that individuals become an integrated part of the people, and it is through parliament that the voice of the people is heard. Kelsen attributes a special importance to parliament for the functioning of a democratic order. Moreover, he does so at a time when even political parties exclude parliament as an institution and political mechanism and parliamentarism is being questioned. According to Kelsen, democracy and parliamentarism are not the same thing. However, as mentioned above, since direct democracy is not possible in the modern state, it is necessary to accept that parliamentarism is the only form of government capable of implementing the ideal of democracy in today's social conditions. Therefore, according to Kelsen, a decision on parliamentarism is also a decision on democracy.

Stating that the perception that parliamentarism is in crisis is actually an illusion and a misunderstanding of parliamentarism, Kelsen emphasizes that, in essence, parliamentarism consists of governance by a body elected by the people in a democratic election held according to universal, equal suffrage and majority principles. Precisely for this reason, when we take into account the elements that define a parliamentary system, it is easy to conclude that the idea of parliamentarism actually consists of democratic self-government, i.e. the freedom mentioned at the beginning. For the same reason, the struggle for parliamentarism is also a struggle for political freedom. However, Kelsen's realistic and balanced approach once again shows itself in the debate on parliamentarism. Kelsen is of the view that parliamentarism is more effective when it emerges as a result of a process of compromise and compromise between the ideal of absolute freedom and the conditions dictated by the division of labor.

This leads us to the conclusion that parliamentarism can be reformed when necessary. According to Kelsen, the idea of reforming parliamentarism should not be ruled out. However, the search for reform in parliamentarism should always be aimed at further strengthening the democratic element of parliamentarism. Reiterating once again that it is not possible to create the state order through direct democratic methods, Kelsen nevertheless states that higher popular participation is more likely within the parliamentary system than in the current situation. In other words, a more functional and effective parliamentarism means a democratic order that is more participatory and expands the space for freedom.

Recalling that political participation in his time was limited to voting, Kelsen considers some extra-parliamentary options for expanding the content and framework of political participation. According to Kelsen, these options strengthen rather than weaken the idea of parliamentarism. The first of these options is direct popular referendum. Stating that the popular vote can be considered as an option for a certain dispute as a process in which the parliament is not directly involved, Kelsen also evaluates the right to petition in the same context. Accordingly, a certain number of voters should be allowed to develop a joint legislative proposal outside the parliamentary process. It should be noted that in this option, it is a certain number of voters who initiate the legislative process. However, the process does not mean a weakening of parliamentarism. The proposal will still be considered and evaluated by the parliament. Here, in addition to the process of parliamentary formation, voters are given the opportunity to use parliament outside the election period. This option, which is now practiced in Switzerland, Sweden and even at the EU level, was mentioned by Kelse long before these practices.

Two other important points raised by Kelsen in the debate on reforming parliamentarism are to ensure that parliamentary representatives are held accountable to the electorate and to develop closer and more effective communication between representatives and the electorate. If these are done, according to Kelsen, the masses' skepticism towards parliamentarism will be overcome to a great extent. However, what Kelsen is referring to here is political responsibility. On the other hand, Kelsen reminds that representatives should not be held accountable to legal bodies and institutions. This approach, which finds its expression today in the form of legislative immunity, actually has a long history, as Kelsen notes. However, Kelsen reminds that the executive still has significant powers against legislative representatives, despite the immunity of the parliament against judicial bodies. Therefore, Kelsen implies that in a parliamentary democracy, the executive's power of control over parliament should also be significantly limited.

Although Kelsen's proposal for a democratic order shows a pluralist character, Kelsen argues that the majority principle must be applied in parliamentarism in order to prevent class rule. Emphasizing that the existence of the majority directly entails the existence of the minority, Kelsen states that the rights and freedoms of the minority must be protected in a democratic order. Therefore, the principle of majority must be applied in a way that does not contradict pluralist democracy. Otherwise, when the fiction that the majority somehow represents the minority and that the will of the majority is the will of all is ignored, the majority principle will be perceived as a legitimate justification for the domination of the majority over the minority.

Kelsen, who examines the fiction of democracy and democratic order step by step, remembers that the will of society is not manifested at a single level. In other words, Kelsen does not consider the formation of parliament as a result of the expression of free will sufficient. Kelsen reminds that the will of society is manifested at least at two levels, namely the general norm and individual action, and emphasizes that the existence of these two levels brings about the tendency to establish another parliament-like body in every state or state-like society. Therefore, the executive branch also has an important place in Kelsen's theory. Kelsen states that the legislative branch makes general norms and is subject to relatively weaker restrictions, whereas the actions of the executive branch are more restricted. Unlike the legislature, the executive branch is subject to significant and effective limitations of legality. Thus, paradoxically, democratic principles are less effective in the functioning of the executive branch. In fact, for the sake of a more democratic legal order, the executive should be held accountable to the parliament, in other words, the executive should be more constrained. This is the theoretical expression of the idea that the executive should be accountable to the legislature, as envisaged by contemporary parliamentary democracy.

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