The Democratic Theory and the Challenge of Foundations

Political theory in the 20th century has been particularly successful in problematizing some basic political concepts. Kelsen X-rayed the notion of the state by focusing on the fictions of personification and the mechanism of hypostatization; Schumpeter deconstructed the concepts of the common good and the people’s will; Hayek tried to show difficulties in grounding any concept of social justice. In turn Arendt, Kojève or d’Entreves, among others, have instructed us to distinguish more carefully between power/violence, power/authority, force/violence, legality/legitimacy. The ontological questions are strongly present in all these considerations. My paper deals with the supposed ontological deficiencies of democracy. It is a kind of political regime characterized by Claude Lefort as inherently missing any stable ontological foundation as the locus of power in democracy is “an empty place”. In this paper I will try to recast the constitutional-political quarrels of the Weimar era (particularly between a liberal-democratic theory of the state developed by Hans Kelsen and a Caesaristic theory of the state advanced by Carl Schmitt) along the lines of political ontology. I propose to reassess the debate concerning the nature of the state, constitution and democracy between Kelsen and Schmitt by focusing on the ontological presuppositions and consequences of their theories. So, I propose to contrast them yet on another level. Kelsen’s attempt to exorcise political theology from the modern theory of the state and cancel out the dualism of the state power and the legal order depends on the Neo-Kantian separation of epistemological and ontological questions. It is interesting how his recognition of relativism and pantheism as philosophical underpinnings of democracy, additionally strengthened by the sceptical view of unknowability of “the truth”, corresponds to his pure theory of law. The fundamental separation of “ought” and “is” which grounds the normative character of law in Kelsen issues in the concept of the basic norm not as a real source of validity but only as a transcendental presupposition allowing to posit the unity and closeness of the legal system and safeguard the separation of law and politics. Schmitt rejects this and claims that the constitution of the state demands a grounding in the form of a foundational act understood as the decision of the people about the form of its political existence. In this way the ontological questions seem to be at the heart of the Kelsen-Schmitt debate. However, the unity of the people assumed by Schmitt is never given and it posits additional problems, particularly concerning the political anthropology of the people (as the people are in Schmitt’s perspective passive and negative and in need of being “directed” towards decision by some elites or string-pullers). On the other hand, we can encounter the view that underlines the usefulness of “ontological indeterminacy” in things political. I’ll also engage with arguments that emphasize indispensability of various fictions as well as the constructs of political science. The social-political reality seems to be unable to completely dispense with Vaihinger’s “as if”.