Chapter 5 Hans Kelsen and the Requirement of Self-determination: How the Austrian Jurist Takes Inspiration from Rousseau and How He Emancipates Himself from the Swiss Philosopher
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Abstract
Hans Kelsen’s reflections on democracy converge on a quest for the criteria that distinguishes this form of government from other systems of political organisation. In his view, democracy’s distinctiveness derives from its respect for the principle of self-determination: norms are worked out through the autonomy of the will of the members of the state or their representatives. In common with Jean-Jacques Rousseau, Kelsen asks: How is it possible to be subject to a social order and still be free? Following Rousseau’s example, Kelsen strips from the concept of freedom its previously accepted negative meaning – the absence of restraint – to accord it a positive political sense. Liberty becomes the self-determination of the individual by participating in the creation of the social order. However, even though self-determination is the distinguishing characteristic of democracy, and it underlies the opposition between democracy and autocracy, Kelsen ponders and theorises the limits of self-government. The limitations on self-government proposed by Kelsen are set out in order to defend a particular conception of democracy, namely, constitutional parliamentary democracy. Kelsen limits the principle of self-government for two reasons, which I will discuss, along with the perils – identified by writers such as James Madison, Benjamin Constant, Alexis de Tocqueville and John Stuart Mill – that remain at the heart of debates about democracy today.