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).
Kelsen writes:
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).
References
Kelsen, H. 1951. Science
and Politics. The American Political Science Review 45: 641-661.
Kelsen, H. 1955. Foundations of Democracy. Ethics 66: 1-101.