Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a (...) latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy. (shrink)

Epistemic democracy is standardly characterized in terms of “aiming at truth”. This presupposes a veritistic conception of epistemic value, according to which truth is the fundamental epistemic goal. I will raise an objection to the standard (veritistic) account of epistemic democracy, focusing specifically on deliberative democracy. I then propose a version of deliberative democracy that is grounded in non-veritistic epistemic goals. In particular, I argue that deliberation is valuable because it facilitates empathetic understanding. I claim that empathetic understanding is an (...) epistemic good that doesn’t have truth as its primary goal. (shrink)

This paper focuses on Hans Kelsen’s reflections on political parties. During the interwar period, Kelsen participated in a controversy over whether political parties were a necessary part of the democratic process. The debate forced Kelsen to produce a defence of political parties to emphasise their functionality and define their place in his particular definition of democracy. This contribution considers the following aspects. First, the reasons why Kelsen thought political parties are necessary for democratic life are explained. Second, the doctrinal oppositions (...) against which he elaborated his defence of political parties are clarified. Third, the programme that Kelsen conceived of to enhance political parties in a constitutional democracy is examined. Finally, the contemporary questions that have arisen in relation to Kelsen’s conception of political parties are scrutinised. Kelsen’s contribution to the debate about the role of political parties was intimately related to the presence of strong criticisms of that role. This makes his reflections even more interesting today, considering the present relative decline of the political role and appeal of parties. (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that (...) may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)

Hans Kelsen was one of the most important legal thinkers of the 20th century, and he is known for mounting an elaborate defense of liberal party democracy at a time when the latter was hardly the most popular form of regime. This article examines how Kelsen responded to two major political movements he experienced in his intellectual prime: political Catholicism, which he was confronted with in interwar Austria, and Christian Democracy, which became a hegemonic political force in Western Europe after (...) World War II, when Kelsen was already in exile. The article reconstructs Kelsen's complex critique of these two religious movements and ends by reflecting on what we can learn from his arguments about current attempts to revive Christian political thought. (shrink)

Relativamente difundida na teoria democrática contemporânea, a dicotomia entre democracia epistêmica e democracia agonística é endossada por autores como Luis Felipe Miguel, Chantal Mouffe e Nadia Urbinati. De acordo com eles, a ideia de que a deliberação democrática possa funcionar como uma troca de argumentos racionais que visa à verdade é incompatível com o reconhecimento do conflito como um componente basilar da política. Tudo se passa, pois, como se a abordagem epistêmica estivesse fadada a obliterar a dimensão agonística da política. (...) A fim de problematizar semelhante entendimento, este artigo reconstrói a associação entre democracia e compromisso feita por John Stuart Mill, John Morley e Hans Kelsen e conclui que a conceitualização da democracia como compromisso oferece uma alternativa à dicotomia democracia epistêmica vs. democracia agonística. (shrink)

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of (...) fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy. (shrink)

The agonistic vs. epistemic dichotomy is fairly widespread in contemporary democratic theory and is endorsed by scholars as outstanding as Luis Felipe Miguel, Chantal Mouffe, and Nadia Urbinati. According to them, the idea that democratic deliberation can work as a rational exchange of arguments that aims at truth is incompatible with the recognition of conflict as a central feature of politics. In other words, the epistemic approach is bound to obliterate the agonistic and conflictive dimension of democracy. This article takes (...) this dichotomized way of thinking to task by reconstructing the association between democracy and compromise made by John Stuart Mill, John Morley, and Hans Kelsen. It concludes that the conceptualization of democracy as compromise offers an alternative to the agonistic vs. epistemic divide that disconcerts a significant part of political philosophy today. (shrink)

Starting from Santner’s essay “Freud’s ‘Moses’ and the Ethics of Nomotropic Desire,” the article explores a remarkably intriguing and simultaneously debatable statement made by Sigmund Freud regarding the accusation of the murder of God as a central Christian source of anti-Semitism. This investigation leads into the differentiation between two bodies of the King of the Jews: Jesus Christ and Jesus Barabbas, through which early Christians not only distanced themselves from political messianism (“Barabbas”), but also assumed a political culpability, acknowledging their (...) own responsibility for Jesus’ crucifixion. In doing so, they distanced themselves from those who neither acknowledged nor confessed a shared culpability, thereby designating them as the “Jews.” This demarcation from political guilt serves as the foundation for a “politics of guilt” in the form of a demarcation from “Judaism.” This gave rise to Christian anti-Judaism, which Freud ultimately traced back to the distinction between acknowledgment and non-acknowledgment of guilt in his book Moses and Monotheism. Drawing on the dimension of preserving communal unity through the confession of guilt, this article proposes that the Christian model of collective guilt confession should not be simply understood as a desire to liberate oneself from the superego pressures, as, according to Santner, a “spiriting away of spirits and specters.” Instead, it can be comprehended as a novel means of preserving a community through the exclusion of those who do not join in the declaration of guilt. (shrink)

In the last years, a theological turn had a pervasive influence in the reception of Carl Schmitt’s writings. According to this view, his thought has a strong, substantial religious foundation. With regards to understanding not only Schmitt’s position but also his current influence in authoritarian countries, this essay argues that this interpretation is misleading and proposes a different and comprehensive analysis of Schmitt’s concept of political theology that replaces it in a political-legal framework. Against the theological reading, it argues that (...) Schmitt’s concept of “political theology” refers to his own conception of legal theory as an attempt to relegitimize authority in a secular context. As “political theology,” this legal theory is designed to overcome normativism and parliamentarism by “substantializing” the legal form. Using Schmitt’s post-1933 works as an example, the essay shows that, as theology translates faith into a written doctrine, legal theory must, according to Schmitt, substantialize the legal form by translating the political idea into jurisprudence. Hence, this article concludes that Schmitt’s theory might be described as “political theology” but only in a formal, ideological sense. It is part of an authoritarian theory that is not religious but uses theology to revive an appearance of absolute legitimacy. (shrink)

This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role (...) vis - à - vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution. (shrink)

Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a (...) latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy. (shrink)

ABSTRACT In this article the development of the thought of two important twentieth-century legal theorists is compared. Although Hans Kelsen is primarily known for his Pure theory of law and Hermann Kantorowicz is one of the founders of the Free law movement, the article will revolve around their respective proposals for the post-War restoration of the international legal order. It is argued that these are based on their respective conceptions of ‘law’ and ‘the state’. By virtue of this comparison, it (...) is possible to shed light on the basic thinking behind their complex ideas, as well as show how these were formulated and influenced by the political circumstances of their times. Lastly, the article shall concern the concrete post-War influence of Kantorowicz and Kelsen, as a result of the shared and different philosophical, methodological and scientific convictions of both scholars. (shrink)

Peut-on faire de Platon l’ancêtre des régimes totalitaires? Aussi surprenante qu’elle puisse paraître, cette question s’est posée avec une certaine intensité dans l’histoire de la pensée au lendemain de la seconde guerre mondiale. Cet article entend donner un aperçu de ces débats en confrontant la critique par Bertrand Russell, Karl Popper et Hans Kelsen de l’auteur de La République, à sa défense par Eric Voegelin, ses disciples et Leo Strauss. À l’issue de cette présentation, on pourra tenter d’apporter une réponse (...) à la question posée : celle-ci s’inspirera de la méthodologie en histoire des idées préconisée par l’école de Cambridge, qui, en un sens, n’est pas si éloignée de la méthode suivie par Leo Strauss. (shrink)