Hans Kelsen on political Catholicism and Christian Democracy

Abstract

Hans Kelsen was one of the most important legal thinkers of the 20th century, and he is known for mounting an elaborate defense of liberal party democracy at a time when the latter was hardly the most popular form of regime. This article examines how Kelsen responded to two major political movements he experienced in his intellectual prime: political Catholicism, which he was confronted with in interwar Austria, and Christian Democracy, which became a hegemonic political force in Western Europe after World War II, when Kelsen was already in exile. The article reconstructs Kelsen's complex critique of these two religious movements and ends by reflecting on what we can learn from his arguments about current attempts to revive Christian political thought.

Introduction

Recent times have seen the rise of a new Christian anti-liberalism with barely disguised authoritarian leanings (e.g., Marzouki et al., 2016; Vergara, 2022; Wolkenstein, 2022, 2023). Arguably the most striking examples are the current governments of Hungary and Poland, both of which are led by parties that not only emphasize their commitment to traditional Christian values but also advocate an “illiberal” understanding of democracy that observers have described as amounting to a “competitive authoritarianism” (e.g., Way and Levitsky, 2019). These political projects no doubt bear resemblance to earlier expressions of Christian politics: while the Polish Law and Justice (PiS) party has formed an alliance with the Polish Catholic Church that mimics the Church-party coalitions of early-20th-century political Catholicism (see, e.g., Żuk and Żuk 2019), Hungary's prime minister Viktor Orbán explicitly frames his broader political vision as inspired by mid-20th-century Christian Democracy, and even claims to be “leading Europe in a renewed commitment to Christian democracy” (Geva and Santos, 2021: 1400).

In tandem with these developments, “long-abandoned, robust discourses of Christian politics [have been brought] back to the fore” by conservative Christian—and especially Catholic—intellectuals in Europe and the United States:

Criticisms of liberalism levied by the nineteenth-century Popes and shelved in recent decades have found a new audience among Catholics who feel that liberalism, having become both more aggressive and more fragile, should be confronted afresh. This turn betokens not merely renewed criticism, however. Animated by a sense that liberalism can no longer lay exclusive claim to justifying political authority, Christians of an anti-liberal vein have begun to suggest alternatives; from viewing politics from the standpoint of the Church (integralism) to advancing more classical political concepts like the common good (Pappin, 2021: 56).

Some of these new Christian conservatives have found a wide and diverse audience. Books like Rod Dreher's The Benedict Option (2017) and Patrick Deneen's Why Liberalism Failed (2018) have become bestsellers and been translated into multiple languages. Other, more scholarly works, including Crean and Fimister's (2020) book-length “manual” on integralism and Vermeule's (2022) legal-theoretical case for “common good constitutionalism,” have thus far not been received outside a small, but increasingly vibrant intellectual community. The same goes for the growing parallel world of conservative Christian blogs, such as the integralist discussion forum The Josias, whose self-declared mission is to “articulate an authentically Catholic political stance from which to approach the present order of society.” ¹

To the extent that liberal-democratic scholars have critically engaged with this new Christian anti-liberalism, they have done so mostly from a Rawlsian point of view, suggesting that doctrines such as Catholic integralism, with their emphasis on substantive moral truth, conflict with the requirements of “reasonability” and thus fail to respect “the freedom and equality of citizens who hold a wide … range of religious, ethical, and philosophical conceptions of the good” (e.g., Schwartzman and Wilson, 2019: 1042; also see Vallier, 2020). In this article, I want to present an alternative critical perspective by returning to the work of an author who personally experienced, and intellectually responded to, increasingly radicalizing forms of Christian politics in the interwar period—the Austrian legal and constitutional theorist Hans Kelsen. Kelsen was a left-leaning liberal, legal positivist, and committed democrat. He was also a political “realist” (Schuett, 2021), who rejected not only theories of natural law but also moralized conceptions of politics. For him, liberal democracy was a historically contingent political option that was desirable because it presented the best possible (though by no means perfect) compromise between humans’ desire to be free and their need for social order. His penetrating critique of different forms of Christian-inspired politics and political doctrines unfolds against this backdrop.

What I specifically want to do is to examine Kelsen's hitherto widely-ignored analyses of interwar political Catholicism and its postwar successor, Christian Democracy. ² As we shall see, Kelsen did not engage systematically with the larger body of political theory and theology that informed these movements, but he did make acute critical observations about both of them. His strongest arguments against political Catholicism target the power-insensitivity of the latter's normative theory of a corporative state, as well as the underlying presupposition that people's political interests are reducible to the interests that they have in virtue of being members of certain occupational groups. Christian Democracy, in turn, is approached by Kelsen as a doctrine that postulates a necessary link between democracy's essence and Christianity, which Kelsen decisively rejects as implausible. In closing, I return to the new Christian anti-liberalism and show, in a cursory and illustrative fashion, how Kelsen's arguments could inform a realist liberal-democratic critique of contemporary Christian anti-liberalism. I do so by interrogating Vermeule's (2022) “common good constitutionalism” with some of the questions that Kelsen posed to the anti-liberal Catholics of his age.

Kelsen's theory of democracy: a brief outline

I begin with a brief outline of Kelsen's democratic theory, which, as noted, forms the basis of his critique of political Catholicism and Christian Democracy. Put simply, Kelsen's writings on democracy deal with three different sets of issues: (a) the fundamental values that democracy is meant to realize; (b) the institutions that enable the realization of those values; and (c) what might be called the attitudes that politically engaged citizens must hold in order for those institutions to perform their enabling functions. Throughout, Kelsen is careful to distinguish between the ideal of democracy, on the one hand, and its reality, on the other. This analytical distinction is quite central to his thinking, since he is concerned with clarifying common misunderstandings between those who speak about democracy in purely normative terms, and those who are concerned with understanding its empirical functioning (Kelsen, 2013: 35).

Now, as far as core values (a) are concerned, Kelsen argues that democracy is essentially about the maximization of individual freedom. He starts from the observation that there is a necessary tension between individual freedom and social order. “For society and the state to be possible,” he writes, “there must be a valid normative order regulating the mutual behavior of men, i.e., there must be rule” (Kelsen, 2013: 28). Traditionally, though, “rule” meant being subject to the will of another—a monarch, for example. The modern idea of democracy emerged in reaction to this: channeling a natural human desire for freedom, it is an expression of “protest against the subjection of one's own will to the will of another and … resistance to the agony of heteronomy” (Kelsen, 2013: 28). Its aspiration is to ensure that, given that rule is necessary for social order, the members of such an order can rule themselves. A transformation of the meaning of freedom was necessary for this aspiration to take shape: the romantic ideal of natural freedom qua being completely free from any rule had to give way to a more bounded notion of social and political freedom. The latter seeks to minimize the “agony of heteronomy,” but it cannot entirely overcome it. It cannot entirely overcome it because, as Kelsen explains with reference to Rousseau, “[e]ven if the ruling will of the state is formulated by direct popular vote … the individual is free only at the moment he casts his vote, and even then only if he votes with the majority, not if he belongs to the overruled minority” (Kelsen, 2013: 29; on Kelsen's reading of Rousseau, see Baume, 2014). The same is true if he later “changes the will expressed in his vote” (Kelsen, 2013: 30).

Kelsen emphasizes that it would be misleading to demand more from democracy than “a mere approximation of the original idea of freedom” (Kelsen, 2013: 30). Indeed, as Vinx (2007: 112) puts it, “Kelsen fears that if we attribute to the democratic ideal the ambition to do away with the torment of heteronomy altogether we will put intolerable stress on democracy as it actually exists, warts and all. … [W]e are likely to end up with the assessment that actual democracy, as opposed to some yet to be realized ideal democratic state that would allegedly guarantee total deliverance from heteronomy, does not differ qualitatively from nondemocratic positive constitutions since both fail to fully realize the emancipatory ambition of ‘true democracy.’” That said, Kelsen still believes that democracy can be justified as providing a way of approximating the ideal of an identity between rulers and ruled. For him, the central democratic principle of majority rule ultimately “strikes the best balance between the interest in individual freedom and the necessity for a binding social order” (Vinx, 2007: 120), for it embodies the idea that, “if not all, then at least as many individuals as possible should be free” (Kelsen, 2013: 31).

This leads us to (b) the institutions that facilitate the realization of social and political freedom thus understood. Chief among those institutions are political parties, which Kelsen takes to be the primary agents that make democracy possible (on this, see Wolkenstein, 2019). Tellingly, he discusses parties primarily in the chapter of the 1929 edition of The Essence and Value of Democracy—his main book on democratic theory—that is concerned with the concept of the people (which builds on reflections on that very concept in the earlier, 1920 edition of the work). Trying to clarify the difference between the ideal and real conception of the people, Kelsen first notes that it is “a self-evident fact that not all those who belong to the People as persons subjected to rule (that is, norms), can constitute the People as the ruling Subject as well, that is, participate in the norm-creating process, which is the decisive way that rule is exercised” (Kelsen, 2013: 37). If we start looking for the real people, he continues, a people that is a ruling subject in the just-mentioned sense, then we quickly “encounter one of real democracy's most important elements: the political party, which brings like-minded individuals together in order to secure them actual influence in shaping public affairs” (Kelsen, 2013: 38). Kelsen goes even further and claims that “[d]emocracy is only feasible if, in order to influence the will of society, individuals integrate themselves into associations based on their various political goals,” thus forming parties that “mediate between the individual and the state” (Kelsen, 2013: 39; also see Baume (2018)). In short, democracy is party democracy.

Note that Kelsen wrote these lines in late 1920s Vienna, a time and place where both liberal democracy and parties were under attack. Critics of parties (whom Kelsen regarded as anti-democrats) routinely complained that parties, as collective agents that represent the (supposedly) narrow interests of different societal groups, corrupt the political process and prevent the state from realizing the common good (Kelsen, 2013: 39–40; a paradigmatic example of an anti-party treatise that Kelsen engaged with is Triepel, 1927). To this, Kelsen replied that

depicting the state as a tool for the common interests of a unified community confuses the ought with the is, the ideal with reality. … Incidentally, the ideal notion of a common interest, which stands above and apart from group interests and, hence, “above partisanship,” [überparteilich] proves to be a metaphysical – or, better, meta-political – illusion. This illusory idea of a solidarity of interests among all of society's parts – free from religious, ethnic, economic, and other differences – is commonly expressed in terms of an “organic” or “organically” arranged community, which is then contrasted with the so-called multiparty state and with mechanical democracy (Kelsen, 2013: 40).

Kelsen then turns the anti-party argument on its head and argues that if no “meta-political” common will can plausibly be appealed to, and if one does not want “the will of society” to be the “expression of the interests of one group alone,” then one needs to conceive the common will in terms of a “compromise between opposing interests”—and it is precisely the “division of the People into parties” that creates the “organizational preconditions for the achievement of such compromises” (Kelsen, 2013: 40, emphasis added).

The second democratic institution that Kelsen considers central is, unsurprisingly, parliament. Trying again to keep ideals and reality separate, he describes parliamentarism as “a necessary compromise between … political freedom and … the division of [political] labor” that is inescapable in modern societies, rather than a pure expression of political freedom, as the “fiction of representation, according to which parliament is only a proxy for the People, and … the People can only express its will in and through parliament,” would have us believe (Kelsen, 2013: 51, 49; on Kelsen's use of “fictions,” see Kelsen, 1919; Olechowski, 2020: 897–98). Even if we accept this, we can value parliament as an institutional setting that allows different societal groups that are organized in political parties to voice their interests and demands, and to seek to find a compromise between their competing proposals. Indeed, for Kelsen, “the aim of the entire parliamentary process is to achieve a compromise” between opposed partisan groupings (Kelsen, 2013: 70). Again, though, he emphasizes that the “synthesis” that should result from the “opposition of the thesis and antithesis of political interests” is not “a ‘higher’ absolute truth or an absolute value standing above group interests,” but simply an agreement between rivals that privileges “that which binds over that which divides those who are to be brought together” (Kelsen, 2013: 70). This is neither a second best to the anyways illusory ideal of a supra-partisan common good, nor a weak alternative to unanimity; it is “a real approximation to the unanimity that the idea of freedom demands,” and under conflictual circumstances, it is probably the best we can realistically aim for (Kelsen, 2013: 76).

I turn now to the final core element of Kelsen's democratic theory, that is, the attitudes that politically engaged citizens must hold in order for democratic institutions to perform the functions Kelsen ascribes to them. This aspect of Kelsen's writings on democracy is easily misunderstood. Especially confusing is Kelsen's central contention that the “idea of democracy … presupposes relativism as its worldview” (Kelsen, 2013: 103, emphasis added). What exactly does he mean by that? As many have noted, Kelsen uses the term “relativism” in several different senses (see Lagi, 2021: chap. 3; Spaak, 2022). In his magisterial reconstruction of Kelsen's democratic theory, Vinx (2007: 140) singles out the following: (a) a general subjectivism about values; (b) a conditional justification of democracy that does not commit those who accept his account of democracy's nature to the normative claim that democracy is the most desirable form of rule; and (c) the notion that “democracy presupposes a rejection of claims to infallible a priori insight into the good on the part of a social elite and … is based on acceptance of a fallibilist conception of moral judgment that makes public discussion about the good meaningful.” Of these three possible meanings of relativism, the third one (c) figures most prominently in Kelsen's work, in addition to being probably the most defensible one: it describes the “attitude that is required of someone who adopts the point of view of a law-abiding citizen in a democratic state” (Vinx, 2007: 141). Its counter-image is what Kelsen (2013: 102–3) calls a “metaphysical” or “religious-mystical” worldview that is marked by the belief that “knowledge of absolute truth and insight into absolute values [is] actually possible.” For Kelsen, this worldview sits uneasily with the requirements of democracy, notably the need to compromise with rivals.

Political Catholicism

With this brief overview of Kelsen's democratic theory in place, let us turn now to the movement of political Catholicism. Kelsen was directly confronted with political Catholicism in his life and work in interwar Vienna, not least in his capacity as judge at the Austrian constitutional court, where he served from 1919–1930. And he critically engaged with some of political Catholicism's more central theoretical and political claims in his writings on democracy. To fully understand Kelsen's reflections and the context in which he formulated them, a short introduction to political Catholicism in general and its Austrian variant in particular is necessary.

Political Catholicism first emerged in the mid-19th century as a concerted effort by Catholic forces to defend their interests against the liberal bourgeoisie and nascent socialist movements, both of which sought to minimize the societal and political influence of the Catholic Church (e.g., Lönne, 1986; Conway, 1997). To this end, often such “modern” means as organization in parties or trade union-like associations were chosen—all, of course, within the limits of restricted suffrage and curtailed political freedoms. To be sure, in Kelsen's native Austria, there was rather little conflict between Catholics and the state. Under the reign of Francis Joseph I (1848–1916), the Habsburg dynasty in fact renewed its “traditional symbolic role as defender of the Roman Catholic Church” (Judson, 2018: 235). Still, Austria came to have an electorally successful, mass-based party of political Catholicism—the Christian Social Party. As Boyer (2001: 38) put it, that party “began as an uneasy amalgam of religious protest and socioeconomic unrest.” “Energized by strong anti-Semitic and economic protest rhetoric and supported by sympathetic lower clerics with a keen sense for the benefits of social as well as confessional protests, a coalition of ill-tempered bürgerlich social groups came together in Vienna in the early 1890s and … won control of the city government of Vienna 1896–96” (Boyer, 2001: 38; also see Arendt, 2017: 48). This was the dawn of organized political Catholicism in Austria.

Most relevant for the topic of the present article is the development of the Christian Social Party after the First World War, for this was the period when Kelsen consolidated his career as a scholar and constitutional judge in Vienna. The Christian Social Party's leaders (grudgingly) accepted the transition from monarchy to republic, which facilitated the drafting of the 1920 constitution under Kelsen's direction. With the concomitant introduction of universal suffrage, the Social Democratic Workers’ Party established itself as a significant political force and also became the Christian Social Party's main political rival. The rivalry intensified in the 1920s, eventually leading to violent clashes between the two parties’ supporters. One reason for this was that, in both parties, moderate leaders were gradually crowded out by more radical figures. In the Christian Social Party, the representatives of the aggressively anti-Social Democratic Wiener Richtung gained the ascendancy early on, marginalizing the centrists. The most influential member of this faction was the prelate and moral theologian Ignaz Seipel, who became party leader in 1921 and Chancellor of Austria in 1922. He also assumed the role of his party's “chief ideologue” (Olechowski, 2012: 327; on Seipel's life more generally, see Klemperer, 1972).

Though harboring an “intense, visceral hatred” for Social Democracy that “bordered on the irrational,” Seipel was intellectually and politically very much a “child of Leo XIII”—the pope whose famous 1891 encyclical Rerum Novarum on the conflict between capital and labor inspired numerous Catholic movements across Europe (Boyer, 2010: 414–5, 422). That is to say that Seipel was politically flexible and pragmatic, yet also confident and steadfast in his belief that state and society should be shaped according to Catholic principles. One sees both sides of Seipel already at work in 1918, when he pragmatically guided his party toward an acceptance of the First Austrian Republic while reiterating the standard Catholic critique that modern liberal democracy with universal suffrage, party competition, and parliamentarism is based on an erroneous atomistic individualism that fails to honor humans’ embeddedness in “organic” communities like families and occupational groups (for an excellent discussion of this view, see Rommen, 2016: chap. IV). Thus, Seipel (1918: 1) wrote in an article in the Catholic Reichspost, “we still consider the state to be healthier and better ordered which does not consist of unconnected individuals, who in theory are all equal [in terms of political rights] but in reality are quite unequal, but rather includes its citizens … through their families, professions and classes. Accordingly, we would also wish that … representative bodies … should be elected according to a different system.” This was, in essence, a plea for a corporative state, though in 1918 Seipel (1918: 1) merely suggested that corporative bodies should supplement parliament and parties, not supplant them.

As the rivalry between the Christian Social Party and the Social Democrats grew increasingly antagonistic in the late 1920s, dissatisfaction with the First Republic and its liberal-democratic order began to grow among Catholics and conservatives more generally. In the wake of severe street violence in the summer of 1927, Seipel was only one of many Catholic leaders who began turning away from democracy (Klemperer, 1972: 281). Meanwhile, the idea that an authoritarian corporative order should replace the country's unstable liberal democracy was gaining currency. Sources of inspiration were legion: in addition to an older Austrian tradition of corporative political thought, the most prominent exponent of which was Karl von Vogelsang (see Bader, 1990), Kelsen's colleague at the University of Vienna, Othmar Spann, had developed an influential theory of an ultra-hierarchical corporative “true state” (Spann, 1972; also see Haag, 1976; Wasserman, 2017: chap. 3). For those who longed for such a total makeover of the state, the 1929 amendment of the constitution proved unsatisfying, too. Although it introduced for the first time the idea of corporate representation into the constitutional text, it was the product of a political compromise with the Social Democrats and so left intact the country's liberal-democratic institutions (Wohnout, 2001: 195–6; Kelsen commented on the amendment in Kelsen, 1929).

An authoritarian state with a corporative constitution would become a reality in Austria in 1934, with the Christian Social Party's Engelbert Dollfuß as dictatorial leader. At that point, Kelsen had already left the country, having resigned his multiple positions due to mounting hostilities from the right in general and the Christian Social Party in particular (Olechowski, 2020: 437–78). Nonetheless, Kelsen witnessed first-hand the spreading skepticism toward democracy among Catholics and conservatives in the late 1920s. He also took note of the growing popularity of visions of a corporative state, and thus believed it necessary to respond to this intellectual trend in his writings on democracy. ³

Kelsen's critique of political Catholicism

Kelsen engages with the political Catholicism of his age in a number of different ways, some of them more direct and explicit than others. In this section, I discuss three sets of arguments against political Catholicism that Kelsen puts forward. The first and least developed one targets the “organic” view of state that most advocates of political Catholicism subscribed to. The second argument, which I briefly touched on in my summary of Kelsen's democratic theory, rejects the notion of a common good that is more than a compromise between competing societal interests. The third and strongest argument is a two-pronged criticism of corporative representation that on the one hand questions the assumption that people's political interests could be reduced to the interests they have qua being members of certain occupational groups, and on the other hand seeks to expose the power-insensitivity of corporatist ideology.

To understand the first of these three arguments, note that Kelsen was a fierce critic of the natural law tradition and developed his own, positivist legal theory as a counter-image to the former (see, in particular, Kelsen, 1928 and 1949). One of his more persuasive criticisms is that theories of natural law are based on the fallacious assumption that there exists an absolute, nonrelative morality that (positive) law is a function of. Another holds that assuming that law is essentially moral easily leads one to unquestioningly accept a particular state's coercive order as legitimate (Kelsen, 2016: 137–8). In these arguments, Kelsen's “realist” concern with power is sensibly palpable: for him, appeals to natural law amount to little more than attempts to veil relations of power in the language of morality. ⁴ Yet, Kelsen also advances less-than-persuasive arguments against the natural law tradition, in particular the spurious claim that natural law theorists commit the logical error of trying to deduce a moral “ought” from a natural “is”—or, alternatively, that they confuse legal norms with laws of nature (Kelsen, 1949). As even committed Kelsenians admit, this argument misunderstands that key natural law theorists were not doing either of these things (Spaak, 2022: 175; also see Finnis, 1980: 33–4). Principles of natural law are not derivations from natural facts.

This misunderstanding also feeds, I think, into Kelsen's critical engagement with the “organic” view of the state that partisans of political Catholicism like Ignaz Seipel subscribed to. Kelsen loosely and dismissively mentions the distinction between “organic” and “mechanical” views of the state in the 1929 edition of The Essence and Value of Democracy (Kelsen, 2013: 40, 63), yet in his 1925 Allgemeine Staatslehre he discusses in greater detail—though without a single citation—what he refers to as the “theory of the state as organism” (Kelsen, 2019: 42–9). ⁵ His argument there is analogous to his questionable suggestion that natural law theorists wrongly derive an “ought” from an “is”: the organic view of the state, he claims, “presents ethical-political norms as laws of nature,” and thus “must be rejected as an attempt to absolutize certain value judgments, which can only be justified relatively, by presenting them as causal laws and thus arrogating to them, as it were, a higher degree of validity, namely the character of indestructibility, of inviolability” (Kelsen, 2019: 49). Just like the argument about natural law theorists’ ought-is-confusion, this is unpersuasive.

The reason why it is unpersuasive is that Kelsen is not only or primarily talking about theories that apply insights of biology to state and society, such as the work of Herbert Spencer—which may indeed be vulnerable to Kelsen's criticism (cf. Kelsen, 1922/3, 1924). He also refers to rather specific arguments from “natural inequality” that were deployed, not least by Ignaz Seipel, to dismiss universal suffrage as a mode of selecting political representatives that jars with people's “natural” organization into families and occupational groups (Kelsen, 2019: 48–9; on Seipel's views, see above). These kinds of arguments are, however, based on a very different kind of organic theory of the state, one that is rooted in Catholic natural law, not biology. Catholic thinkers have clearly distinguished these two versions of the organic theory of the state. Rommen (2016: 99), for example, almost echoes Kelsen's reasoning when he objects that, in theories of the state that take inspiration from biology, the “usefulness or harmfulness to the hypostasized social organism is the basis of an ethics in which the traditional terms ‘good’ or ‘bad’ become merely a sign, an irrational reflex of the basically useful or harmful.” In his view, even the methodologically individualist, liberal theory of the state is still preferable to this, since it “at least acknowledges the world of the mind,” however reductive its focus on self-interest and utility might be (Rommen, 2016: 99).

We need not find the Catholic version of the organic theory of the state convincing to see that Kelsen's argument misfires. There are good reasons to think that he indeed wanted to address the Catholic organic view under the heading of the “theory of the state as organism,” but perhaps because he generally held some mistaken views about what natural law theory was, he also misunderstood what the Catholics he sought to criticize actually thought about the state. Does this problem extend to his second criticism of political Catholicism, that is, the argument that there is no common good “which stands above and apart from group interests and, hence, ‘above partisanship’” (Kelsen, 2013: 40)? After all, as we saw above, Kelsen (2013: 40) explicitly links what he calls the “illusory idea of a solidarity of interests among all of society's parts—free from religious, ethnic, economic, and other differences”—to the (in his view) equally implausible theory of an “‘organic’ or ‘organically’ arranged community.”

The short answer is no—but Kelsen's second criticism is not without problems, either. The first thing to note is that Kelsen is absolutely correct to highlight the connection between the organic theory of the state and the notion of a supra-partisan common good: Catholic political theory indeed regards the bonum commune as the principal objective end of the state, conceiving it as a moral “law” that “turns the external amorphous mass, the mere conglomeration of individuals, into a solidarist body of mutual help and interest, into the organically united nation” (Rommen, 2016: 274). One may reasonably ask what that actually means, but Kelsen is not exercised about the notorious vagueness of these sorts of propositions. ⁶ Instead, his primary argumentative move is to oppose the “meta-political illusion” of a common good that is more than an aggregation of individual interests with an aggregative conception of compromise that does not make recourse to any shared principles that could regulate the “dialectical process within parliament” where the “the thesis and antithesis of political interests” are opposed to one another (Kelsen, 2013: 40, 70). The only thing that can guarantee that this process adjudicates between interests in a freedom-preserving way is that a critical mass of political actors holds “relativist” attitudes, as described earlier.

What should we make of this? If Kelsen is saying that we should entrust the parliamentary process with producing compromises that serve the vast majority of the citizenry, rather than hand power over to individual political actors who claim to have insight into the nature of a meta-political common good, then his second criticism of political Catholicism is persuasive from a democratic point of view. But Kelsen seems to be saying more than that. He seems to be saying that we are faced with a binary alternative: endorsing the idea that there exists a “meta-political” common good or a “realist,” purely aggregative conception of partisan compromise. This is an unduly restrictive understanding of the kinds of things the parliamentary process can generate. We need not renounce our commitment to describing politics in a realistic fashion to acknowledge that compromises can be more or less integrative, that they can reflect the relative power positions of the agents that negotiate them to a smaller or greater degree, and that there is a difference between compromise and bargaining that is crucial if interests are to be negotiated fairly (see White and Ypi, 2016: 152–3; on types of compromise, see Warren and Mansbridge, 2013); nor need we “confuse parliamentarism's reality with its ideology” to accept that these differences affect the extent to which parliamentary procedures yield freedom-preserving results (Kelsen, 2013: 70). Missing these crucial nuances due to his view of politics as a clash of irreconcilable interests, Kelsen's second criticism of political Catholicism is arguably more persuasive than the first one, but it also remains somewhat reductive.

Finally, the strongest arguments against political Catholicism that Kelsen advances concern the corporative form of political regime that the Christian Social Party's leaders increasingly came to regard as an attractive alternative to liberal democracy in the late 1920s. Kelsen in fact explicitly mentions a growing “demand that democratic parliamentarism be replaced completely by corporativism,” and given his own preference for democratic parliamentarism, it is possible to register a sense of urgency in his words (Kelsen, 2013: 63). Kelsen specifically makes three observations.

First, he argues that the case for a corporative regime that organizes citizens in their occupational groups or Berufsstände gets off the ground only if one assumes that this form of regime allows for a better translation of citizens’ shared interests into laws and policies than a parliamentary regime, where citizens’ interests are represented by parties. This, however, is implausible, since a purely corporative regime necessarily “fails to capture all of the interests that are relevant to the governmental process” (Kelsen, 2013: 63). The reason is that “[v]ocational interests compete with other, entirely different and often vital, interests (religious, broadly ethical, and aesthetic concerns, for example). Just because someone is a farmer or a lawyer does not mean that he or she is only interested in agricultural or legal questions” (Kelsen, 2013: 63). This is why political parties that form freely to promote those interests that matter most for a particular group of people are more adequate to the task of creating freedom-preserving laws than organized occupational groups. Kelsen's view that parties are indispensable institutions of democracy comes to the fore again here.

Second, Kelsen criticizes what one could call the power-insensitivity of the Catholic idea of a corporative regime. On the one hand, he wonders whether “the easier agreement between employers and employees within the same vocational group, which is often boasted about [by advocates of corporatism], is not principally due to the fact that here the economically weaker side is deprived of the support of its comrades in other groups” (Kelsen, 2013: 64). This worry proved prescient: not only in Austria, the corporative regimes of the 1930s “rapidly became unwieldy bureaucratic structures in which … it was the interests of the employers that predominated” (Conway, 1997: 45; also see Tálos, 2017; Senft, 2013). From Kelsen's point of view, political parties that are organized along class lines may not be conducive to the sort of social harmony that corporative political thought prizes; but by pooling the power of employees, such parties at least put the latter in a better position to avoid being dominated by employers. If one prizes the maximization of autonomy, this again underlines the superiority of liberal party democracy.

On the other hand, Kelsen is not wrong either to point out that corporatism has no “principle of its own” to decide conflicts of interest between different occupational groups. It needs higher, non-corporative decision-making authorities (a parliament, a monarch, or an authoritarian leader) that can settle these conflicts. But this means that corporatism is actually “insufficient for solving the problem of regime type,” such that an expressed preference for a “corporative regime” is always and necessarily also a preference for a regime that combines corporative organization with some non-corporative form of decision-making authority (Kelsen, 2013: 65). ⁷ What we should be interested in, I interpret Kelsen to argue, is then what kind of decision-making authority those who call for a corporative regime de facto would like to install, and indeed, by whom this authority should be controlled. In Kelsen's image of liberal party democracy, no single party (and thus, social grouping) should be able to rule over all the others, for this would jeopardize the central democratic value of freedom—do proponents of a corporative state demand a form of political authority that is freed from institutional constraints and the need to compromise? Historically speaking, the answer was yes. Not least the constitutionally similar corporative regimes of Dollfuß (in Kelsen's native Austria) and Salazar (in Portugal) placed a dictatorial leader at the helm of the state.

Finally, in Allgemeine Staatslehre, Kelsen makes an interesting, more theoretical argument that is addressed to precisely the type of criticism that Ignaz Seipel made already in 1918, shortly before Austria adopted a democratic constitution: that a form of corporative representation is superior to an elected parliament because the latter fails to authentically give expression to the popular will, which is not the will of atomized individuals who exercise their equal right to vote, but of persons who are embedded in organic communities (notably Berufsstände) and ought to be represented through those corporate groups. Ever keen to distinguish between democratic ideals and realities, Kelsen (2019: 840–2) counters this argument by suggesting that it relies on a misguided view of parliament based on the “fiction of representation.” This view misunderstands the (to Kelsen at least) self-evident fact that parliament is not a site where the people expresses its authentic will, but an institution that is designed as a compromise between the possibility of the people directly articulating its will and the need for a division of labor in modern societies. The critique articulated by Seipel and others thus fails because it operates on false premises: it claims that parliamentarism is undesirable because parliament does not deliver something that it anyways was never meant to deliver. It is difficult to disagree with Kelsen here.

Kelsen and Christian Democracy

We have now seen how Kelsen responded to interwar political Catholicism. Though some of his arguments miss their target, others add up to a powerful liberal-democratic critique of political Catholicism. In this section, I want to examine what Kelsen had to say about postwar Christian Democracy, an important political innovation that represented a major break with the ambivalently democratic or outright undemocratic political Catholicism of the 1920s and 1930s while still being shaped by salient continuities with the latter. On the one hand, early Christian Democratic leaders relatively consistently committed to democracy and human rights (see Carozza and Philpot, 2012; Duranti, 2017: chap. 10; Kaiser, 2007; Moyn, 2015; Müller, 2011). On the other hand, Christian Democratic parties inherited much of the personnel as well as many of the more central substantive policy commitments from their interwar predecessors (Chappel, 2018: 151; also see Mitchell, 2012; Wolkenstein, 2022: chap. 3).

Kelsen's thoughts on Christian Democracy are also of interest because Christian Democracy was a dominant political force in Europe after 1945. In the seven European nations where such parties emerged (Austria, Belgium, Germany, France, Italy Luxemburg, and the Netherlands), they won twelve of the fifteen parliamentary elections held between 1944 and 1950, while coming in a close second in the remaining three. Having emigrated to the United States in 1940, Kelsen had little direct experience of those parties and their aims; nor is there any evidence that he was particularly interested in them. Naturally, then, his intellectual engagement with Christian Democracy differs from his critical interest in political Catholicism, which he was personally confronted with in his Vienna years. In fact, Kelsen's reflections on Christian Democracy are largely limited to his discussion of the work of the influential Christian-Democratic philosopher Jacques Maritain (whom he discusses, together with Emil Brunner and Reinhold Niebuhr, as exponent of a new “jusnaturalism,” see Lagi (2014)).

Although Maritain's philosophical ideas cannot be treated as synonymous with the ideology of Christian Democracy as advocated by Christian Democratic parties (and Maritain ended up being deeply disappointed by those parties, see Maritain, 1968: 22–23), they were of considerable importance for the emergence of a new, democratized Catholicism (e.g., Müller, 2013; Vatter, 2013) and had a great impact on the newly-founded Christian Democratic parties of Italy (e.g., Thomassen and Forlenza, 2016), Belgium (e.g., Conway, 1996), and France. As Invernizzi-Accetti (2019: 23) notes, Maritain for this reason “came closest” to attaining a “universally recognized position of maître à penser among all the different strands of Christian Democratic thought and action.” ⁸

What Kelsen primarily takes issue with is Maritain's claim that there is a necessary link between the essence of democracy and Christianity—that democracy “springs in its essentials from the inspiration of the Gospel and cannot subsist without it” (Maritain, 1986: 15). This may at first appear like a meta-theoretical issue that was of little relevance to “real world” Christian Democracy. But note that many early Christian Democratic leaders expressly insisted on this supposed connection. To cite just one example, Missong (2006: 358–9), who in 1945 co-founded the Christian-Democratic Austrian People's Party—the direct successor party of the Christian Social Party—argued that “Christianity is the form-giving and content-determining system of ideas on which the ethical consciousness of civilized mankind is based. The democratic principle belongs only formally to the political sphere, whereas materially it represents an ethical ought. The entire civilized humanity today has almost unanimously committed to democracy. Democracy and Christianity accordingly have an inner connection.” Missong (2006: 362) goes even further and argues that “without the centuries-long work of educating and forming consciences through Christianity, the spontaneous awakening of human rights that took place in the French Revolution could never have occurred,” either.

What was Kelsen's objection to this sort of reasoning? First of all, he understandably expresses bewilderment given Maritain's (1986: 21) parallel assertions that “Christianity and Christian faith can neither be made subservient to democracy as a philosophy of human and political life,” and that “[o]ne can be a Christian and achieve one's salvation while militating in favor of any political regime whatsoever, … on the condition that it does not trespass against natural law and the law of God.” It is not difficult to infer from these proclamations that the connection between Christianity and democracy is much weaker and more contingent than Maritain suggests. Kelsen (1955: 64, emphasis added) argues, along similar lines, that if “Christianity as religious creed is politically indifferent, … there cannot be an essential connection between Christianity and any political system.” The same holds true if, as Kelsen (1955: 64) suspects, “[w]hat Maritain actually tries to show is not exactly an essential relationship between democracy and Christian religion, but a relationship between democracy and certain moral-political principles which he supposes to have the character of natural law.” Then, too, this relationship remains contingent, for, as Maritain admits, it is very well possible that nondemocratic political regimes respect the principles of natural law.

Maritain would still insist, in a somewhat Schmittean fashion, that Christianity and democracy are essentially linked because the modern idea of democracy is but a secularized crystallization of ethical impulses from Christian teachings (cf. Schmitt, 2009). In his view, the idea of democracy emerged when “the secular conscience,” under the “inspiration of the Gospel at work in history,” began to understand eternal moral truths such as the dignity of the human person (Maritain, 1986: 29). Similarly to what Missong said about the French Revolution, he furthermore suggests that Kant and Rousseau's Enlightenment democratic theories merely dressed up older Christian moral truths in “sentimental and philosophical formulas” (Maritain, 1986: 36). Kelsen (1955) has little time for these arguments: he quickly dismisses the possibility of a “secularized Christianity” as a “contradiction in terms” and argues that the central notion of the dignity of the human person is “not specifically evangelical” either (64), “since it is advocated also by philosophies and religions which are independent of the Gospel” (66).

Kelsen's dismissal of Maritain's argument is no doubt rash. Arguably the secular or, to speak with Jürgen Habermas, “post-metaphysical” philosophy of the European Enlightenment is the product of complex processes of mutual learning between religion and philosophy. To say that “secularized Christianity” is a “contradiction in terms” does not do justice to the great extent to which the key thinkers of that era absorbed and transformed religious teachings. Yet this observation can also be turned against Maritain, for by reducing post-metaphysical philosophy, in particular the democratic theories of Kant and Rousseau, to a “sentimental and philosophical” disfigurement of earlier Christian ethical truths, Maritain entirely misses the distinctiveness of a philosophical tradition that emancipated itself from its religious heritage and became something new. We may conclude that the diametrically opposed views of Kelsen and Maritain are both somewhat reductive, though Kelsen is ultimately correct when he charges Maritain with trying to subsume too much under the heading of “Christian inspiration.” Post-metaphysical philosophy is not merely an unfortunate and confused (Maritain uses these adjectives) attempt to secularize the wisdoms of the Gospel, but burdens individuals in a novel fashion “to make autonomous use of their reason and to practically shape their social existence” (Habermas, 2019a: 13; also see Habermas, 2019b: section VIII).

Finally, Kelsen advances a rather unpersuasive argument about the difference between “Christian” and democratic equality, namely that “the idea that men are equal before God applies much better to autocracy than to democracy. For it is based on the absolute inequality which exists in the relation between the ruler and the ruled,” while democratic equality “implies the equality that is supposed to exist in the relation between those who exercise the government and those who are subject to that government” (Kelsen, 1955: 66). Kelsen here conflates secular political and religious authority, though Maritain never claimed that these two should become one in a Christian Democracy.

Much more compelling would be a critical argument that Kelsen does not make explicitly, but that can be derived from his broader democratic theory as outlined earlier in the article. This is that Maritain's supposedly democratic political philosophy revolves around precisely the kind of reasoning that, more than a decade earlier, led Kelsen to call Heinrich Triepel and like-minded others anti-democrats: a dangerous combination of the assertion that political parties “are not essential to democracy” and vague claims about what “true democracy” required (for Maritain, it required not least strong leaders who are “appointed by heroism and devotion”) (Maritain, 1986: 45, 49). Indeed, from a Kelsenian standpoint, it must be said that the structure of Maritain's reasoning looks rather similar to that of those interwar theorists who defended organic and corporative views of the state, however much he couches his commitments in the language of democracy. On this count, Maritain's views also contrast with the practice of most Christian Democratic parties of the postwar era, who fully committed to party democracy and refrained from appealing to some unspecified notion of “true democracy” that was supposedly superior to party democracy.

Kelsen's critique and contemporary Christian anti-liberalism: an example

That concludes my discussion of Kelsen's critiques of interwar political Catholicism and Jacques Maritain's Christian-Democratic philosophy. Though Kelsen's argumentation is not without problems, I want to suggest that it can still be a useful guide for realist liberal democrats when they want to engage with Christian political and constitutional theories that claim to offer a superior alternative to liberal party democracy. By way of illustration, I want in these final paragraphs to sketch how some of Kelsen's arguments might be applied to the perhaps most sophisticated anti-liberal Catholic constitutional theory that is currently available—Adrian Vermeule's “common good constitutionalism” (CGC). Given space constraints, I cannot offer a thoroughgoing discussion of CGC, and I make no claim to offer any knockdown arguments against Vermeule's theory. What I want to show is simply that it might be instructive to interrogate CGC with some of the questions that Kelsen's posed to the anti-liberal Catholics of his age.

The broader parallels between CGC and the Catholic doctrines Kelsen discusses are not difficult to identify: like the latter, the former is committed to the idea that the common good is “unitary and indivisible, not an aggregation of individual utilities,” as well as regarding the promotion of such a “substantive vision of the good” as “core and legitimate function of authority” (Vermeule, 2022: 7, 37). It also stands in marked opposition to “the liberal goal of maximizing individual autonomy or minimizing the abuse of power,” aiming instead to “ensure that the ruler has both the authority and the duty to rule well” (Vermeule, 2022: 37). Democracy, on this view, has no special value or status either, for “the common good need not justify itself before the bar of democracy, but the reverse: democracy, like any other regime form, is valuable only insofar as it contributes to the common good, and not otherwise” (Vermeule, 2022: 48). In order to direct society toward the common good, then, a regime's constitution—whether democratic or not—should elaborate subsidiary principles such as “respect for legitimate authority,” “respect for the hierarchies needed for society to function,” and so forth (Vermeule, 2022: 37).

With Kelsen, we may begin by asking whether a unitary and indivisible common good is a plausible normative starting point to begin with. Since contemporary societies are characterized by a considerable plurality of interests and values, it is rather difficult to imagine what a unitary and indivisible common good could look like. It is tempting to regard it as a “meta-political illusion” that only makes sense if one insists, quite implausibly, on the absolute truth of a metaphysical doctrine that merely a sub-set of any existing population will consider valid—which, however, is exactly what CGC does. CGC thus rests on an emphatic rejection of the sort of fallibilist conception of moral judgment that, following Kelsen, is a prerequisite for democracy because it makes public discussion about the good meaningful.

Continuing this line of thought, one might then wonder what kind of institutional arrangements advocates of CGC actually prefer? Who is meant to exercise power and how? Kelsen raised these questions when interrogating the vague, institutionally underdetermined demands of interwar corporative thinkers, and we may now relay them to Vermeule (2022: 19), who, much in the same spirit, asserts that “[a] range of institutional technologies can in principle be ordered to the common good.” Even if we acknowledge that CGC is only a theory of “the purposes or ends to which law is aimed” (Vermeule, 2022: 19), what sort of institutions should promote these purposes or ends is hardly a secondary matter, especially given that democracy is not assigned any special normative status relative to other regime forms. Kelsen would probably have harbored the suspicion that CGC veils a clear preference for an authoritarian state behind professions of institutional openness and flexibility, just as certain strands of Catholic political theory did in the long 20th century. This, of course, remains only a suspicion, and I am not suggesting that Vermeule in fact desires an authoritarian state. Kelsen's work and experience merely remind us that there are good reasons to remain vigilant. It is for this reason that his critiques of 20th-century political Catholicism and Christian Democracy are relevant for an age where Christian anti-liberalism has returned with a vengeance.