The direct election method conforms most to which of the following democratic ideals?

1 – Introduction

1Among the political thinkers who have drawn our attention to the notion of compromise, Hans Kelsen must be rediscovered due to his major contributions to this topic. Surprisingly, he is almost never mentioned today, even in the erudite works on compromise (Fumurescu 2013) [2]. In this article, I intend to focus on the precursory and substantial link that Kelsen established between compromise and democracy. We could say that he anticipated the puzzling question raised by Kuflik in 1979: “Is there a justification in democratic theory for the widespread democratic practice of compromise?” (Kuflik 1979: 41). The theoretical relationship between compromise and democratic regimes that Kelsen established constitutes his main intellectual contribution compared with other works on the understanding of the notion of compromise. I argue in this article that compromise plays a central role in his theory of democracy because it reconciles the essential features within his view of democracy, namely his positivism, his reluctance about the idea of the common good and his definition of democracy, as summarised via the enforcement of the self-determination principle.

2Kelsen’s enthusiastic defence of compromise has to be situated in two specific contexts. On the one hand, Kelsen’s reflections on compromise took place during the interwar period, in a climate of social division and class warfare that was apparent in the political balance of and threat to the new republics, particularly the Weimar and Austrian republics. How could the class warfare that emerged in Europe be prevented from threatening political life? That is the question raised by Kelsen and other writers such as Hermann Heller [3], Rudolf Smend [4] and Erich Kaufmann [5], who constantly thought about democratic political institutions, particularly parliamentary institutions, with a view towards getting a social plurality to coexist politically. If the question of integration in democracy remained essential for Kelsen, his reflection was not oriented towards the quest for social or political homogeneity, in opposition to the works of Smend, Kaufmann and Heller. His scientific contribution remains in theorising compromise as the privileged mechanism for managing and resolving the conflicts that are a part of democratic life.

3On the other hand, Kelsen forged his own conception of compromise in the specific discursive context of the German interwar period, during which this notion acquired a strongly depreciative connotation, mainly by authors such as Carl Schmitt and Rudolf Smend (Caldwell 1997: 125). Note that the strongest critics of compromises or coalitions sometimes emerged from the same source that denounced the deleterious effects of parliamentarism and political parties. For instance, Moisei Ostrogorski, Gaetano Mosca, Robert Michels and Carl Schmitt vehemently rejected this combination of intrinsically linked elements [6]. For these authors, political parties often make compromises that are irresponsible regarding the state’s unity (Schmitt 1996: 88). Consequently, Kelsen’s case for compromise has to be considered as an attempt, on the one hand, to re-evaluate the idea of compromise and, on the other hand, to revitalise the practice of compromise, notably among political parties [7].

4My contribution will take the following steps: First, I will disentangle the ingredients and functionalities of compromise in the context of democracy, as it appears in Kelsen’s works, including Allgemeine Staatslehre, The Essence and Value of Democracy and General Theory of Law and State. Second, I will emphasise the questions that are currently arising regarding the special link that the Austrian jurist established between his conception of democracy and the notion of compromise.

2 – The ingredients of Kelsen’s definition of compromise

5In Allgemeine Staatslehre, Kelsen characterised compromise as containing five elements that are compressed but connected and, above all, consistent with other reflections in several of his works:

1. Compromise means to replace what breaks connections with what makes them.
2. Every exchange, every contract, is a compromise, for to compromise means to contract.
3. All social integration is ultimately possible only through compromise.
4. Indeed, the majority itself can arise only through such compromise.
5. The derogatory, contemptuous judgement that is not infrequently expressed about the principle of compromise, and about an attitude inclined towards compromise, comes neither from the ideology of liberty nor from thinking about self-determination [8].

6Strictly considered, only two of these elements can be thought of as definitional components: Compromise means to replace what breaks connections with what makes them, and to compromise means to contract. The last three elements—the device for social integration, the dialectic process between the majority and the minority that is essential to the survival of both and the instrument of political self-determination—can be perceived as justifications for or rationalities of the principle of compromise. Note that in The Essence and Value of Democracy, Kelsen mentioned another functionality of compromise, which is the regulation of political emotions; this will also be developed. Let us assess these elements in detail:

Tableau 1

Kelsen’s components of compromise

Kelsen’s components of compromise

3 – Was Kelsen right?

24In Kelsen’s view, compromise is one of the means by which parliamentary regimes reduce the risk that majoritarian parties will abuse their power. In our day, comparative political science—notably, the work of Arend Lijphart—has confirmed Kelsen’s intuition: “Consensus democracies” characterised by power sharing are more widely considered by their citizens to be “kinder and gentler” regimes than majoritarian democracies of the Westminster type, which are sometimes seen as elective dictatorships (Lijphart 1999: 300). Kelsen expressed great confidence in the self-limiting capabilities of majorities. He saw the relationship between majorities and minorities as being almost necessarily inclined towards compromise, especially in parliamentary arenas. However, the prominent place that Kelsen gave to compromise in the relations between parties raises some questions:

25First, can every political conflict be regulated by a compromise, as Kelsen suggested? We can object by arguing that not every conflict is compromisable. According to Golding, “The compromisable conflict situation is one in which there is a partial coincidence of interests and which, therefore, contains the seeds of competition and cooperation” (Golding 1979: 10). Mutual concessions are feasible only if there is a “coincidence of interests or values”, as each has to “gain something from a compromise” (Gaus 1990: 343). Also, as Schumpeter expressed, if compromises are related to contradictory and ultimate values, they are tendentially more difficult to realize, because the differences can be irreductible [26]. Kelsen clearly underestimated the conflictual situations in which the protagonists have no latitude and no interface to compromise.

26Second, are self-limitations by the parties that hold the majority and, therefore, the practise of compromise really natural in representative democracies? In Kelsen’s account, the majority never seems to exclude the minority from the formation of the will of the state, out of fear of endangering the democratic process. For him, the application of the majority rule is accompanied almost naturally by self-limitation. In the interwar period, Hermann Heller had already been less optimistic about this when he emphasised the need to ensure that democracies contain integration mechanisms. Thus, Heller suggested that relations between majorities and minorities are not necessarily inclined towards moderation and can sink into violent power relations (Heller 2000: 261). Moreover, if the minority has no realistic prospect of ever ending up in power, especially if its minority status includes structural characteristics that are linked to religion or language, the majority certainly has fewer incentives to include the minority’s preferences. In 1993, Fritz Scharpf, in “Versuch über Demokratie im verhandelnden Staat”, reformulated Heller’s concerns by recalling that the restrictions that the majority imposed on itself do not stand on their own because they require certain conditions, to which Kelsen perhaps paid too little attention. Indeed, accepting that the majority party (or coalition) will limit itself, for example, by not imposing on the minority either unsustainable costs or norms that violate its identity, presupposes some degree of identification of the majority with the minority. To refer to the necessary identification of the different parts of the community with each other, Scharpf talked about a “Wir-Identität” that makes it possible for the majority not to abuse its power, and it is also possible for the minority not to perceive the vote of the majority to which it is subjected as an external domination but rather as a mechanism for collective decision-making. A deficit of “Wir-Identität” would expose the minority to risks that Scharpf very clearly understood. When societies lack a feeling of sameness (Wir-Identität), mutual empathy and trust, there is a risk that majoritarian mechanisms will be used to pursue narrow utilitarian, individualistic or particularistic ends [27].

27Third, if majority decision-making is so naturally self-limiting, notably through compromises, why do we have to think so much about ways to limit it? Kelsen seems remarkably contradictory when, on the one hand, he paid so much attention to political-legal devices for moderating majority decisions, such as constitutional courts, while, on the other hand, he displayed excessive confidence in the majority’s self-restraint. I think this paradox can be explained partly by the discursive context from which these Kelsenian propositions emerged. Kelsen’s optimism acted as a kind of counterweight to an intellectual climate that was suspicious of, or even hostile to, parliamentary systems. At the same time, in his attempt to rescue the reputation of parliaments, he was not blind to their potential abuses. Therefore, he recognised the need to constrain parliaments (i.e., to moderate them).

28Fourth, is it reasonable to build a theory of democracy based on compromise without considering their moral limits or their legitimate bounds? If this can be perceived as a weakness or as a mistake, as Kuflik defended it—without considering the specific case of Kelsen [28]—then it is perfectly coherent with Kelsen’s positivist perspective. Accepting the assumptions of legal positivism means renouncing the claim of producing just solutions to social conflicts. To use Kuflik’s words, Kelsen’s theory of democracy could be synthesised as a “morality of pure compromise” that excludes substantial limitations [29]. Actually, Kelsen’s defence of compromise contains no elements regarding the substantial “end-state” [30] of compromise and nothing about the quality of the output. In Kelsen’s work, compromise has to respect, first of all, the principle of self-determination. Note that although Kelsen did not accept any jusnaturalist bounds in the process of compromise formation, he would have been perfectly in favour of constitutional constraints or limits.

29Moreover, is it sensitive to consider that rules in democracy can rest on compromise if citizens follow only their personal (or group) interests, as Kelsen suggested? On the contrary, does compromise in democracy require some elements of personality or of temperament that would not be oriented just towards the pursuit of self-interest? This is what Kuflik suggested:

30

If the willingness to compromise is only a manifestation of the desire to advance one’s own (individual or group) interests – albeit within the limitations imposed by constitutional democracy – then democratically enacted laws and policies will typically serve an amalgam of private interests at the long-term expense of the public interest.

31Fifth, wouldn’t compromise—which seemed to Kelsen to be so necessary for the proper functioning of democracy for pacifying the relationship between the majority and minority— be endangered by the revival of the imperative mandate that he so greatly endorsed? Kelsen’s support for the imperative mandate, which was aimed at bringing the will of elected officials closer to that of the voters, seems to contradict his concept of democracy that was understood as a space for negotiation and compromise—among party leaders, for example. In fact, negotiation can occur only between agents who have some leeway with their principals—the people being represented—which undermines the imperative mandate. It must be concluded that Kelsen was not aware of this contradiction; the processes of compromise are not compatible with strict injunctions from the members of political parties. To understand this blindness, it is useful to remember the reasons why Kelsen supported the imperative mandate. His support can be explained only by his consistent desire to strengthen the links between elected officials and their electorates. This relationship is inconceivable without political parties acting as intermediaries. In his view, political parties are best able to aggregate and represent voters.

32Sixth, is the art of compromise really typical of democratic regimes? Current research questions whether compromise is a distinguishing feature of democratic life. In the light of studies on dictatorial regimes, is it really true that they do not regularly engage in compromise themselves? For example, Jennifer Gandhi and Adam Przeworski questioned this idea and noted that dictatorships do resort to compromise, especially when confronted with a high risk of rebellion. If, in line with these writers, we accept that observation, then the Kelsenian characterisation of democracy—broadly associated with the idea of compromise—will be weakened:

33

When the opposition is strong, the dictator makes more extensive policy compromises and shares some rents, just enough to prevent the opposition from rebelling. Finally, when the opposition has little chance of overthrowing the dictator but the dictator cannot inflict much damage on the opposition, the dictator offers few compromises and the opposition does rebel.

34Of course, it could be argued that although compromise may be necessary in autocracies when rebellion threatens, it is not the rule. Compromise is not even a natural response in such regimes, in contrast to democracies, as understood by Kelsen and others, such as Norberto Bobbio (Przeworski 2010: 116).

4 – Conclusion

35In this contribution to the existing research, I scrutinized the specific and characteristic places that compromise holds in Kelsen’s theory of democracy. On the one hand, compromise is, for him, a pragmatic instrument of the principle of self-determination. On the other hand, compromise is perfectly compatible with his positivist perspective because it requires no preconception of the good or the just. The regulation of political conflict can occur only through compromise. He treated social and political harmony as dangerous fictions or ideologies. Kelsen’s positive attitude towards compromise is strongly correlated with the awareness that integrating an idea of truth into the public debate is impossible and unachievable [31]. As Edmund Burke suggested, considering compromise as a cardinal virtue goes together with the belief that “man acts from motives relative to his interests, and not on metaphysical speculations” (Burke 1987: 126). John Morley’s epigraph at the beginning of his book On Compromise confirms this idea: “It makes all the difference in the world whether we put Truth in the first place or in the second place” (Morley 1908). In these specific considerations, Kelsen is in line with these authors in describing the political task of parliaments, whose purpose is not to reach absolute truth or an absolute state’s will but to reach the midpoint between the interests of the majority and the minority, which means compromise (Kelsen 1925: 359). If there is no common good and there are no absolute values that can be proclaimed and imposed in democracies, then the only way to overcome differences in a political community is to encourage compromise. Compromise is intimately associated with democracy because, according to Aumann’s expression, every group and each political party “agr[ees] to disagree” (1976: 1236-1239).

36However, and as noticed in the second part of this article, Kelsen’s reflection on compromise entails some weaknesses I would like to sum up briefly. First, Kelsen had a very optimistic approach to the notion of compromise, which he viewed as a panacea to regulate political divergences in democracy. This leads to excessive confidence in the political potentialities of compromise. It means that he did not pay any attention to the minimal conditions in which compromise would be possible. Not every political conflict can be regulated by compromise, especially the ones that involve strong values. Moreover, Kelsen did not ask about the (moral) limits of compromise. Finally, Kelsen remained very optimistic about the majority’s willingness to make accommodations in the direction of the will of the minority. Second, Kelsen’s defence of compromise contains contradictions: On the one hand, why is it so necessary to think of institutions of moderation to counterbalance the majoritarian will, if the majority is so self-limiting? On the other hand, how is it possible to support the imperative mandate and simultaneously to encourage compromise among representatives, knowing that the compromise requires a certain amount of leeway regarding their electors? Third, Kelsen is wrong in creating such an exclusive link between democracy and compromise, taking into account that autocracy can also proceed to making compromises. To conclude, Kelsen’s explicit and excessive optimism regarding political compromise, above all to regulate majority-minority relations as a counterpart, in that sense, prevented Kelsen from reflecting in depth on the feasibility and fallibility of compromise.

37Apart from these criticisms, the great merit of Kelsen’s perspective was certainly to find justifications for compromise in democratic regimes and to stress the significant place that compromise must occupy in the theory of democracy. His contribution was not only significant in that regard but also audacious knowing that, in the interwar period, Kelsen was one of the rare theorists of democracy who considered compromise to be a positively desirable practice and not a second-best option.