This chapter introduces the main approach developed in International Leviathans through (1) a sociological understanding of sovereignty and (2) the concept of international administration. First, the chapter presents a new take of the debate between Kelsen and Schmitt around sovereignty and presents the sociological understanding of sovereignty by unpacking sovereignty practices. It makes the case for analysing the socio-political or socio-legal struggles happening between competing claims of political authority and accountability. It then discusses and theorises the concept of ‘international administration’, pointing out the limitations of two strands of the literature: the functionalist approach, defining international administrations through the functions they ought to perform as underlined in their mandate, and the normative approach, focusing on self-proclaimed goals and objectives. I posit that sovereignty practices deployed by international officials are social practices which cannot be understood solely through mandates or stated goals – they need to be understood through the reality on the ground, created by claims of political authority deployed by actors and the concomitant claims of accountability these practices elicit.

This chapter concludes the book by revisiting its key findings and by reflecting on their meaning from a broader perspective. The first half of the chapter consists of a summary of the rise and fall of the classical doctrine of civil war as explained in the preceding chapters. The second half assesses the overall legacy of the classical doctrine in the light of modern legal theory, and observes how the classical law was hardly better able to overcome the problems of indeterminacy and recognition than current principles are. Yet this does not mean that the classical doctrine would have been meaningless, as its practical utility may have been based precisely on its limited effectiveness and inevitable ambiguity.

The traditional narratives of Austrian constitutional law are evolving. Long decried by scholars and practitioners to be ‘in ruins’, the Austrian Constitution has recently been lauded as ‘elegant and beautiful’ by Austria’s President, thus attempting a paradigm shift in the Austrian public’s perception of its constitution. While some textbooks claim it (still) is a merely formal, ‘value neutral constitution of game rules’ much in the spirit of Hans Kelsen, the Austrian Constitution and its interpretation show more and more signs of converging into a principled, value-oriented and purposive approach common in many other countries. The multinational legal legacy of the Habsburg Empire and its potential for understanding the European integration have been recognized as an asset, just as the ensuing creation of the world’s first constitutional court is of pride and the Austrian Constitution’s leading export.

At first glance, Hans Kelsen (1881–1973) remains a marginal figure within US political discourse. However, this chapter argues that revisiting Kelsen is crucial if we are to understand present-day intellectual tendencies supportive of autocratic threats to US democracy. A neglected, yet pivotal, anti-Kelsenian moment proves decisive among influential right wing intellectuals, so-called ‘west coast’ Straussians based at California’s Claremont Institute, who enthusiastically supported Donald Trump and embraced his authoritarianism. The lawyer and Claremont affiliate John Eastman, for example, worked to prevent a peaceful transfer of power to then President-elect Joe Biden in 2020 to keep Trump in power. Trump’s Claremont Institute defenders have absorbed crucial facets of Leo Strauss’s critical rejoinder to Kelsen: Strauss’ longstanding anti-Kelsenianism has morphed into their subterranean anti-Kelsenianism. To validate this claim, the chapter revisits Strauss’ complicated theoretical dialogue with Kelsen, while also highlighting crucial moments in the arcane history of postwar American Straussianism. What is gained theoretically, and not just historically or politically, by doing so? The Claremont Institute’s apologetics for Trump corroborate Kelsen’s worries that attempts to revive natural law under contemporary conditions invite autocracy.

Hostility towards parties has never ceased; revisiting Hans Kelsen’s ideas is particularly significant today when critiques of parties are meeting the revival of the myth of People as One, which Kelsen devoted much of his work as a legal scholar and political theorist to opposing. Kelsen addressed the issue of parties at two significant historical moments when the constitutional government was succumbing to the assault of autocracy (Fascism and Nazism) and revolutionary experimentations (Bolshevism) and when parties regained momentum with the Cold War. These were two very different circumstances: in the former, the issue was opposing and resisting monocratic dictatorship; in the latter, the issue was defending party pluralism within liberal democracy itself. Kelsen never resorted to ‘militant democracy’ to protect democracy. The reason was both theoretical and empirical. As a ‘formalist’, Kelsen kept substantive politics out of procedural politics, which he considered normative or ‘not metaphysical’ because its task was channelling public doing and not achieving certain specific goals; the sole purpose of the rules of the game was the exercise and reproduction over time of political freedom. Therefore, pluralism, legal equality, and individual liberties were non-negotiable norms of democracy, whose process was based on the spirit of compromise and majority rule.

Contemporary constitutional theorists typically assume that a system of constitutional adjudication inevitably stands in tension with a majoritarian understanding of democracy. Kelsen’s influential defence of constitutional review, by contrast, goes along with an affirmation of a procedural and majoritarian understanding of democracy. Did Kelsen fail to spot the supposed conflict between constitutional review and democracy? Or did he identify a solution to the counter-majoritarian difficulty? Michel Troper has vigorously argued that Kelsen’s defence of constitutional review is confused and fails to cohere with his conception of democracy. This chapter defends Kelsen’s argument for constitutional review against Troper’s charges. It argues both that Kelsen’s case for constitutional review is fundamentally sound and that it carries the potential to make an important contribution to contemporary debates on the legitimacy of judicial control of constitutionality. Kelsen’s argument for constitutional review offers a compelling case for constitutional review that focuses on the conditions of the proper functioning of electoral democracy rather than on the protection of liberal rights.

Since the 1930s there have been intense debates about how far democracy can go to protect itself against its enemies. Hans Kelsen’s antagonistic relationship to militant democracy is well established in the literature and is not controversial. First, this chapter anchors Kelsen’s opposition to militant democracy more deeply and systematically in his own theory of democracy. This sheds light on the reasons why his opposition to militant democracy remained consistently immune to the defeat of democracies – as painfully observed in the 1930s – and to the conviction, shared by many of his contemporaries, that such vulnerability legitimises the prevention of anti-democratic parties from abusing the democratic process. Second, the chapter challenges the common view that Kelsen’s rejection of militant democracy would have no contemporary adherents. It discusses similarities and discontinuities between Kelsen and a new generation of thinkers who also express doubts about militant democracy. In doing so, the chapter offers a fresh look at the strengths and weaknesses of Kelsen’s perspective on militant democracy and assesses its influence on the issue in contemporary literature.

This chapter explores the relationship between Hans Kelsen’s philosophical relativism and his theory of democratic leadership. First, it argues that Kelsen’s theory of democratic leadership cannot be fully understood unless placed within his broader political thought, which includes a commitment to philosophical relativism. Second, it suggests that Kelsen provided an original answer to the puzzle of democratic leadership that is significant in its own right. Writing during the rise of fascism, Nazism, and Soviet communism, Kelsen made a crucial distinction between autocratic and democratic forms of leadership: while autocratic leaders are seen as possessing absolute knowledge and, therefore, hold unlimited power, democratic leaders are thought to carry only relative truths, and their power is consequently limited. Kelsen demonstrated that if we believe moral absolutes exist, it is logical to have an absolute leader with unfettered power. In contrast, if we hold that moral absolutes are inaccessible to human knowledge and only relative truths exist, it follows that leaders should have limited power and be subject to constant scrutiny and control. Contrary to the common characterisation of Kelsen as an abstract and idealist thinker, this chapter shows that his approach to political leadership was normative yet realist. Rather than eliminating leadership, Kelsen associated democracy with multiple, temporary leaders who have limited and relative political power.

The notion of political compromise in party democracy is a cornerstone of Kelsen’s democratic theory. In the legislative, he argued, one party (or several parties) constituting a majority need(s) to somehow get along with a party (or several parties) in the minority if democratic government is to work and last. However, this vision goes against common sense understandings of what it means to have a democratically elected majority; it is also likely to raise some eyebrows among majoritarian theorists of democracy. This chapter explores whether Kelsen’s central idea can possibly be redeemed. Unlike Kelsen’s multiple critics in contemporary democratic theory, it argues that his account of compromise rests on numerous ambiguities that leave it underdetermined on both normative and institutional levels. It also argues and demonstrates that the most plausible understanding of Kelsen’s imperative to compromise rests on the notion of respecting the members of parties in the minority as co-rulers – an intuition derived from a Rousseauian conception of democracy as collective self-rule and adapted to societies characterised by persistent conflicts of interest and moral disagreements. It concludes that, despite its shortcomings, Kelsen’s valorisation of political pluralism, in the legislative and in the public arena, remains an important source of arguments for a time often characterised as a ‘crisis of democracy’ and in the face of rampant anti-partyism.

United by their realistic approach to the study of democratic politics, Hans Kelsen and Joseph Schumpeter similarly sought to de-ideologise ‘classical’ accounts of popular sovereignty. Both developed an analytical framework to explain how modern democracy, based on parties and the electoral selection of representatives, functions and realises its ideals. Both emphasised that democracy lasts only if it successfully generates a ‘compromise’ between the contingent majority and the temporary minority (in the terminology for Kelsen) or if current majorities exercise ‘self-control’ (in the language of Schumpeter). However, neither explained the mechanisms that induce democratically elected majorities to limit themselves in the practice of governmental power. The chapter first charts the innovations introduced by Kelsen and Schumpeter into our understanding of democracy; then, it teases out their views on how majorities abstain from aggrandising their power beyond some limits. For both, such limits must be self-enforcing and observing them must constitute an equilibrium. Yet, a proper understanding of how this equilibrium emerges remains one of the greatest challenges for contemporary scholars of democracy. ‘Compromise’ or ‘self-restraint’ is almost definitionally a requisite of democratic politics, but it cannot be imposed from outside, and it cannot just follow from agreements about certain rules, unless those rules are self-enforcing. As the chapter explains, it must be in the best interest of the democratic rulers to stop monopolising power given the potential reactions of the opposition, and it must be in the best interest of the opposition to participate peacefully given that the incumbent stops. Despite the significant progress in the normative and empirical study of democracy over the past several decades, the greatest challenge faced by Kelsen and Schumpeter has not been completely resolved.

Vom Wesen und Wert der Demokratie is certainly Kelsen’s best-known contribution to democratic theory. To be adequately understood, however, it must be seen not as a one-shot theoretical effort, but as the epitome of a decade-long inquiry into the foundations of democracy. Indeed, the book was not written at a single stroke: it was first published in 1920 as a short essay and reappeared in 1929 in a revised and significantly expanded form. This chapter unearths the forgotten genealogy of Kelsen’s seminal work by comparing its two editions and exploring their profound and overlooked differences; by doing so, it unearths, contextualises, and unpacks the transformations, both normative and practical, that took place in Kelsen’s democratic theory between the two versions of Vom Wesen und Wert der Demokratie. A careful textual and contextual analysis shows that Kelsen’s most famous publication on democracy was a response to the multiple challenges that gradually emerged throughout the 1920s. It also reveals how Kelsen’s analysis of party democracy grew out of a careful study of actual democratic institutions and their fragile stand in the intellectual and political landscape of interwar Europe.

Decidedly understudied and still unavailable to Anglophone readers, Die Staatslehre des Dante Alighieri (1905) was Kelsen’s first monograph, published one year before his doctoral graduation and six years before the release of his Hauptprobleme der Staatsrechtslehre (1911). His incisive book, which would become a reference point for the study of Dante’s political thought among German legal and political theorists, offered a comprehensive, historically situated, and critical account of the Poet’s recipe for global peace: namely, a universal and – most importantly – secular monarchy capable of bringing order into a world plagued by factionalism, institutional instability, and the competing aspirations of the two universal authorities of the Middle Ages (the Pope and the Emperor). Without falling into anachronistic readings, this chapter unearths and explores Kelsen’s first book to ask whether we can discern, in the flow of its analysis, an embryonic anticipation of notions, thoughts, and frameworks that he would articulate over the following decades. It argues that Kelsen’s later work on legal cosmopolitanism and pacifism, with its critique of the dogma of nation-state sovereignty and its emphasis on the unitary nature of the legal universe (and on the primacy of international law therein), pushed in new directions two concepts at the core of Dante’s De Monarchia: the monistic construction of a legal system free of contradictions and the creation of an impartial global authority that would solve disputes among contending parties and thus ensure lasting peace on a planetary scale. Both elements mesmerised the mind of the young Kelsen and left an enduring mark that is today worth revisiting and contextualising to recover his first steps as a political and legal theorist.

Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

This chapter critically reviews dualism, as developed by Heinrich Triepel, and monism, mainly formulated by Hans Kelsen. It argues that these theories can no longer comprehensively explain the relationship between international and EU or EU and national law and that, due to their emergence almost a century ago, these theories must be understood in their historical context. Historically, dualism was progress as the separation of international and national law helped international law become independent. Thus, dualism liberated international law from being understood as “external State law,” and was even referred to as a “cleansing thunderstorm” by the monist Alfred Verdross. The main characteristic of monism is the assumption of a single unified legal system. Kelsenian monism must face the criticism of having a highly fictitious understanding of the world: nothing less than the “unity of the legal world order” is proclaimed. To depict the most important assumptions of Kelsenian monism, this chapter looks into the Kelsenian adherence to neo-Kantian epistemology, and shows that this understanding refers to a very specific philosophical position, which has been rightly criticized by many philosophers.

This chapter begins from the proposition that the conventional narrative suggests that there are unwritten constitutional rules and principles that exist adjacent to, or supplementary to, the official written constitution. But the spatial metaphor suggested by this framing of the issue is mistaken, the author says. He notes that we have learned from the enduring jurisprudential contributions of Hans Kelsen and H. L. A. Hart that the status as law of a constitution rests on a necessarily unwritten social practice establishing what counts as the constitution. This unwritten social practice might exclude some of what the official written document includes and might include some rules or principles that are not found in the official written document, but the basic point is that a written document’s status as “the constitution” rests itself on unwritten foundations, making the idea of an unwritten constitution central to the very idea of constitutionalism.

This chapter aims to outline the contours of a non-naturalist account of legal phenomena. Although it does not address the relevance of cognitive sciences to law specifically, the argument developed here aims to demonstrate that the said relevance depends on the antecedent question about the requirements of explanation of legal phenomena in terms of non-legal, more basic facts. By demonstrating the failure of naturalistic facts to meet the requirements of explanation, the chapter calls into question the relevance of cognitive science to law. In the first section I propose to understand naturalism in law as an explanatory claim about the (metaphysical) determinants of legal facts. Then I explore a family of objections against physicalism in the philosophy of mind (epistemic gap arguments) and argue that they apply equally to naturalistic explanations in the legal domain. But there is a key disanalogy between the two domains: while in the philosophy of mind explanatory gap arguments show that mental phenomena involve fundamental, non-physical facts, which are explanatorily basic, in the legal domain explanatory gap arguments show that the explanation of legal facts requires us to appeal to additional non-naturalistic facts which can bridge the gap of explanation between the legal facts and their non-legal determinants. I discuss briefly two versions of legal non-naturalism, and proceed to develop the one that is based on Kelsen’s account of legal cognition which, as it turns out, is surprisingly compatible with the ground-theoretic debates in contemporary metaphysics.