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

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

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.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1177/0191453706064898
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 38,992
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Add more citations

Similar books and articles

Analytics

Added to PP index
2009-01-28

Total views
69 ( #103,750 of 2,319,686 )

Recent downloads (6 months)
24 ( #23,973 of 2,319,686 )

How can I increase my downloads?

Monthly downloads

My notes

Sign in to use this feature