The basic norm and democracy in Hans Kelsen’s legal and political theory

Bibliographic Data

ID11340285
AuthorsAndreas Kalyvas (Department of Political Science, New School for Social Research, New York, NY, USA, corresponding author)
Year2006
Volume32
Issue5
Pages573-599
Publication date2006-07-01
Open AccessYes
TypeARTICLE
VenuePhilosophy & Social Criticism (JOURNAL)
Journal identifiersISSN: 0191-4537 • E-ISSN: 1461-734X
PublisherSAGE Publications (PUBLISHER • US)
DOI10.1177/0191453706064898
OpenAlexW2005145765
LanguageEN
Citations received12

Hans Kelsen refused to develop a democratic theory of the basic norm. Given that he expounded a strong distinction between law and politics as two separate scientific disciplines he consistently argued against any attempt to politicize legal science and corrupt its object of cognition. As a result, there has been very little discussion of the basic norm in relation to his democratic theory. This article attempts to fill this gap by tracing the relationship between the basic norm and democracy in Kelsen’s legal and political writings. More precisely, it maps Kelsen’s seminal distinction between autonomy and heteronomy onto his reflections on constitutional making and probes the anti-democratic implications of his theory of the basic norm as they undermine the normative foundations of democratic theory. The article concludes by addressing the question of whether it is possible to articulate a theory of the democratic ground norm, of democratic foundings with a normative content, by proposing the idea of an immanent, performative basic norm as the source of validity of a democratic constitutional order

Autonomy · Democracy · Epistemology · Heteronomy · Law and economics · Norm (philosophy · Normative · Political philosophy · Political science · Politics · Sociology · Judicial and Constitutional Studies · Law · Philosophy · Political Philosophy and Ethics · Political Theology and Sovereignty