Kelsen on democracy in light of contemporary theories of human rights

Christine Chwaszcza

pp. 193-212

in: Peter Langford, Ian Bryan, John McGarry (eds), Kelsenian legal science and the nature of law, Berlin, Springer, 2017

Abstract

There is little agreement in contemporary political philosophy about how to conceive of human rights, except for a shared concern for freeing the concept of human rights from the legacy of traditional natural law theories. Even so, there is no place for anything like a reconciliation of Kelsen's political-legal theory with a contemporary concept of human rights. The reason is not that Kelsen's well-known and notorious criticism of various natural law traditions applies equally to contemporary philosophy of human rights, but that Kelsen's account of democracy is incompatible with the idea of human rights. For despite all differences in detail, philosophers tend to conceive of human rights as substantive normative principles, which articulate standards of legitimacy for socio-political institutions that protect individual persons from legal or political overreach. By contrast, Kelsen conceives of democracy essentially as a method of legislating based on procedural authorization that imposes no substantive restrictions on the very content of laws. True, Kelsen explicitly defends constitutional "basic and liberty rights' with the argument that insofar as majority rule is essential to democracy, protection of minority rights is so too. But Kelsen's account of those constitutional rights falls short of any idea of human rights, for constitutional rights are merely instrumental to the maintenance of democracy and articulate constitutional particulars of democratic states, not general substantive standards for legitimate government.