Private Law Rights as Democratic Participation: Kelsen on Private Law and (Economic) Democracy

University of Toronto Law Journal 71:3 (2021) 376-414

39 Pages Posted: 22 Dec 2021 Last revised: 27 Dec 2021

See all articles by Helge Dedek

Helge Dedek

McGill University - Faculty of Law

Date Written: August 1, 2021

Abstract

In the first edition of his famous treatise 'Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik' (translated as 'Introduction to the Problems of Legal Theory'), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a ‘democratic form of law’ and that private law rights are ‘political in the same sense as those rights that are usually characterized as political rights.’ In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the ‘Pure Theory of Law’ and its philosophical underpinnings of relativism and ‘value neutrality,’ culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing ‘ideology.’

To Kelsen’s contemporary audiences, drawing a connection between ‘capitalist’ private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on ‘economic democracy’ (‘Wirtschaftsdemokratie’). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were ‘undemocratic.’ I submit that Kelsen’s statement – which flipped the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing ‘bourgeois’ parliamentary democracy with a ‘true,’ ‘social’ democracy that would realize conditions of social and economic justice. By connecting ‘capitalistic’ law with ‘democracy’ and ‘socialistic’ law with ‘autocracy,’ Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.

Keywords: democracy, economic democracy, formalism, Hans Kelsen, neo-Kantianism, private law theory, Pure Theory of Law, reform socialism, subjective rights, Weimar Republic

JEL Classification: K00, K19, K20, K29, K30, K40, K49

Suggested Citation

Dedek, Helge, Private Law Rights as Democratic Participation: Kelsen on Private Law and (Economic) Democracy (August 1, 2021). University of Toronto Law Journal 71:3 (2021) 376-414, Available at SSRN: https://ssrn.com/abstract=3987498

Helge Dedek (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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