Hans Kelsen on the definition of democracy
In his article ‘Foundations of Democracy’, Hans Kelsen conceives of democracy as government by the people but not for the people. He denies that democracy has the following presupposition, which it would have if democracy is government both by the people and for the people: that there exists an objectively ascertainable good and that the people are able to know it and therefore to make it the content of their will.
Kelsen thinks that democracy is possible and that if democracy had this presupposition, then it would not be possible. He seems to have in mind four considerations against the presupposition, although this is not properly clear from his text. Some of the material comes from elsewhere in his writings.
1. An argument that something is good must appeal to what ought to be. Any valid argument about what ought to be cannot appeal purely to premises about what is the case. From premises about what is the case, no conclusion about what ought to be follows. A conclusion about what ought to be must be derived, in part at least, from a premise about what ought to be. This means that if one tries to uncover the justification for a conclusion about what ought to be, and the reasoning involved is valid, eventually one will arrive at a premise about what ought to be which is not argued for at all (1955: 644). However, no such premise is self-evident. Consequently, the ought premise at the beginning of the justificatory line cannot be known, since it cannot be validly argued for and is not self-evident. Consequently, it is impossible to know that something is good.
2. The first consideration would apply even if there were some non-derived ought premise which everyone in a state agrees on. But people will vary on which ought premise they take as a foundation for deriving other ought claims. An individual ultimately prefers one foundational ought over another because of features of their personality, such as their emotional dispositions (1951: 641).
3. Metaphysically, there is no such thing as the will of the people. There are individual wills: my will, my neighbour’s will, your will, etc. (1955: 2)
4. What is willed by the majority of the individual wills is not necessarily what is good, from the perspective of a given value system, a value system being a system based on a non-derived claim about what ought to be (1951: 642).
But the form of government which is defined as “government by the people” does not presuppose a will of the people directed at the realization of that which, according to the opinion of the people, is the common good. The term designates a government in which the people directly or indirectly participate, that is to say, a government exercised by majority decisions of a popular assembly or of a body or bodies of individuals or even a single individual elected by the people. (1955: 2-3)
Kelsen goes on to criticize Soviet socialism for presenting itself as a democracy but interpreting democracy purely in terms of being for the people, without any element of being by the people. He regards this presentation as a perversion of the idea of democracy (1955: 6). In a modern state, government by the people can only mean government by representatives elected by the people. Whether this condition is met or not is objectively ascertainable. In contrast, whether a government is for the people cannot be objectively ascertained, because to establish that a government is for the people one must identify what is good for the people and that cannot be known.
Kelsen observes that every government claims to be for the people. Since what is for the people cannot be objectively ascertained, this allows for a government to claim that whatever fits with their ideology is for the people (1955: 6).
Kelsen, H. 1951. Science and Politics. The American Political Science Review 45: 641-661.
Kelsen, H. 1955. Foundations of Democracy. Ethics 66: 1-101.