The basic Norm and democracy in Hans kelsen’s legal and political theory

Philosophy and Social Criticism 32 (5):573-599 (2006)
  Copy   BIBTEX

Abstract

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 Key Words: Hannah Arendt • basic norm • constitu ere • constitutional making • democracy • immanent norm • Hans Kelsen.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 92,369

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Analytics

Added to PP
2009-01-28

Downloads
102 (#172,269)

6 months
8 (#371,375)

Historical graph of downloads
How can I increase my downloads?

References found in this work

Foundations of democracy.Hans Kelsen - 1955 - Ethics 66 (1):1-101.
Value Judgments in the Science of Law.Hans Kelsen - 1941 - Journal of Social Philosophy and Jurisprudence 7:312.

Add more references