Přibáň on Kelsen

Zdravím čtenáře Jiného práva a vzhledem ke Kelsenově výročí si zde dovolím publikovat část ze studie, která vyjde v nejbližší době v časopise Jurisprudence redigovaném Georgem Pavlakosem a Seanem Coylem (mimochodem, jedná se o další skvělý počin nakladatelství Hart Publishing a časopis vřele doporučuji). Zabývám se v textu hlavně sociologickou metodologií ve vztahu ke Kelsenově (ale i Schmittově) pojmu suverenity. Vypustil jsem poznámkový aparát, ale jinak se jedná o původní verzi. Omlouvám se, že jsem text ještě nepřeložil do češtiny, ale snad to sečtělým příznivcům Jiného práva nebude příliš vadit.

The suppression of sovereignty by legal self-reference: on Kelsen’s pure legal normativity
… Kelsen uses the sociological argument to claim that a democratic polity is typical of social (national, economic, religious, etc.) conflicts and frictions. He is highly critical of Schmitt’s political theory and claims that democratic sovereignty as collective self-rule does not derive from the pre-existent unity of a political collectivity and its self-constitution in the existential sense. The alleged unity of a democratic collective subject is impossible to formulate through the pre-political and pre-constitutional self-reference of this constituent power of a democratic community.

Kelsen admits that constitutional principles can be interpreted sociologically and that, for instance, majority rule appears to be informed by the sheer power of social integration. The application of these constitutional principles may be limited by natural social barriers, such as culture and language. Nevertheless, cultural divisions need to be left to the constitutional principle of political autonomy to avoid the abuses of majority rule and state centralisation.

Kelsen thus firmly insists that the only deparadoxification of the substantive concept of the political community empowered by the legal force of a legal constitution is by converting the social multitude into the self-reference, self-constitution, and pure self-grounding of the positive system of legal norms. Political concepts of democratic self-empowerment and constitutional representation become part of legal semantics regulated by the fictions of the basic norm and the first legislator. Democratic collective agency can be approached only regressively as the end point of legal attribution. The problem of the social multitude, which may be turned into constituent power and act politically, is eliminated, and discussions of the political will and acts of constituent power are replaced by the normative problem of the legal authorisation of constituted power.

Kelsen was absolutely clear about the links between the social multitude, the political unity of the people, and its legal representation in the democratic state when he stated:

[I]t seems to be a basic condition of democracy that a multitude of human beings becomes a unity in it. For democracy, the “people” as a unity is even more essential, as it is not only, or not so much the object as the ruling subject – or should be, according to the idea. … Split by national, religious, and economic conflicts, that unity is – according to sociological findings – more a bundle of groups than a coherent mass of one and the same aggregate state. Only in a normative sense can one speak of a unity.
According to Kelsen, the legal system can accommodate the political agency of constituent power only in terms of power exercised in conformity with the law, that is, as constitutionally self-referential constituted power. The general will of the political community and its political formation as the state’s will are just conceptualisations of the normative order of the community. The state’s will is an anthropomorphic expression of the community’s order that normatively predetermines the behaviour of a multitude of individuals belonging to it. The law can think of power and authority only as legal power and authorisation and not some form of sovereign decision preceding and founding the law’s normativity.

Kelsen was always prominent among critics of the concept of sovereignty, and his call for its radical suppression in the name of pure theory of law is still considered one of the most complex and methodologically persuasive theoretical criticisms of sovereignty. According to his theory, normative logic was expected to spare legal and political scholars the voluntarist extravagancies associated with political sovereignty. The political reality of conflicts, clashes and particular interests was to be eliminated from the realm of pure legal normativity and science.

Kelsen’s doctrine of the basic norm reformulated the self-referential paradoxes of the state and popular sovereignty – respectively constituted and constituent power – as the juridical self-reference of legal normativity. This conceptualisation of sovereignty as a process of legal self-reference permanently communicated through the medium of legality was possible only by theoretically excluding all social and political facts and translating them into legal norms and exclusive legal concepts. Sovereignty was reduced to ‘a quality of a normative order’ devoid of any political meaning, especially the meaning of popular sovereignty as politically constituent power preceding all legally normative qualification of the democratic state.

The constitutive function of the basic norm, therefore, consists of a retrospective normative interpretation of the empowering sovereign act of constituent power as an empowered act (the fiction of the first legislator creating the historically first constitution). This reinterpretation of the exercise of constituent power as an already legally constituted exercise is the only way to bring legal order to its existence.

Kelsen argued that, from the perspective of legal logic, the political concept of self-empowerment was a contradiction in terms and that:

[F]undamentally, only a legal element can be conceived more or less precisely as the unity of the people: the unity of the state’s legal order, which rules the behaviour of the human beings subject to its norms. In this unity and through the content of its norms, the unity of the variety of human action is constituted, which the “people” as an element of the state, as a specific social order, represents.
In Kelsen’s pure theory of law, the paradox of the normativity of the factual thus takes the form of the recursive self-reference of the legal system and gets reformulated as the facticity of the normative authorisation of constituent power. The state is identified with the system of positive laws. Exclusivity, supremacy, independence and other aspects of sovereignty become operations of the legal system.

Self-limiting sovereignty and international legal monism
The concept of sovereignty as self-limitation of the state’s power can already be found in Georg Jellinek’s theory of public law and the state in which he proclaimed that sovereignty was ‘the quality of a state in virtue of which it alone can be linked legally with its own will.’ Unlike the concept of sovereignty as exclusivity and political externality, Jellinek’s notion of sovereignty drew on the self-obligation and limitation of power of the modern state emerging through the medium of constitutional law.

According to this view, exclusive sovereign power coincides with power to constitute legal obligations on exercising this power. However, Kelsen stretched Jellinek’s concept of sovereignty as legal self-limitation further when he replaced it by the concept of legal authorisation and defined in terms of international law. Emphasising legal normativity and connecting it to the universality and objectivity of the international legal domain, Kelsen sought to eliminate the nation state’s institutional and territorial constraints dictated by sovereignty and make it part of a general theory of international legal monism.

Following his earlier refutation of the concept of sovereignty, and in an effort to rebuild international law and politics after the Second World War, Kelsen, as early as in 1944, proposed that:

‘[S]overeignty of the States, as subjects of international law, is the legal authority of the States under the authority of international law … the State’s sovereignty under international law is its legal independence from other States.’
This view radically reformulates the international legal notion of sovereignty because the international legal order is not constituted by sovereign states. Rather, this order constitutes sovereignty as the specific rights and duties of particular states as subjects of international law. In this sense, sovereignty is the dynamic legal status of a state as defined by international law and therefore is part of the evolution of international law and its changes. Instead of representing the unrestricted will of the state, sovereignty is treated as the conceptualisation of legal constraints on the freedom of state actions in the domain of international law.

Kelsen’s early conclusions actually coincided with the post-war shift from the principle of ‘sovereignty’ to the ‘equality’ of states in international law. The historical process of juridifyng international politics, indeed, was theoretically inspired by the Kelsenian concept of legal monism, the normative supremacy of international law and its instrumentalisation as a tool of world ‘peace through law’. The result of this paradigm shift is the ever growing constitutionalisation of international law. In this international legal and political order,

Sovereign equality is the legal authority and autonomy of a state as defined and guaranteed by the constitution of the international community. It denotes the entitlement of a state, and the people constituting it, to autonomous development and self-responsibility within the limits set by international law.
Despite regular and heavily loaded criticisms of Kelsen’s normative formalism, many scholars acknowledge that the project of international legal monism was the first complex response to the social processes of globalisation. According to these voices, Kelsen was the first scholar to ask seriously: ‘What juridical source, what fundamental norm, and what command can support a new order and avoid the impending descent into global disorder?’ Traditional views of international law as a domain of coexistence for modern territorial states, with their central governments exercising internal sovereignty over their territory and citizens and external sovereignty in international law (commonly described as state independence), were shaken by Kelsen’s doctrine of sovereignty as legal authority.

Jiří Přibáň