The parliamentary legislative state and the principle of political publicity

10For political liberalism, the state is also a “parliamentary legislative” state, characterized by the fact that one body (parliament or a “legislative body”) lays down “impersonal, that is, general and preestablished norms, that are meant to be lasting”. [19] The justification for the parliamentary legislative state is based on the hypothesis that there is an internal relationship between public reason and legality. Legality draws its legitimacy from the supposed rationality of the political decision. This rationality is supposed to arise from public discussion within the parliament. The conditions of public discussion are defined and validated by a law which is in charge of defining its general framework. In this context, the legislative state declares the identity of the law: “The legislative state acknowledges only a single, ordinary legislature, which must hold the monopoly on the creation of substantive law”. [20] As Schmitt had already affirmed in The Crisis of Parliamentary Democracy, “[t]he whole theory of the Rechtsstaat rests on the contrast between law which is general and already promulgated, universally binding without exception […] and a personal order which varies case to case according to particular concrete circumstances”. [21] Those with sovereignty or power only act “because of a law” or “in the name of the law”. [22] On the one hand, the power which produces the norms differs from the authority which enforces the norm: the legislative and the executive are separate. On the other hand, the legislative state substitutes the reign of sovereign laws for command and order, which concern concrete subjects.

11In this context, the parliamentary legislative state is based on a specific understanding of political visibility: the principle of publicity. If publicity encapsulates the general idea that “political issues must be visible to all”, it covers however three distinct types of meanings. On a first level, publicity designates the procedures by which the elements of political decision are made visible to all: the mechanism for political education and representation, the decision and consequent voting process, the existence and the content of the collective norm. On a second level, it designates the formation of public space. Political publicity simultaneously describes and justifies the conditions for constructing the public debate. Of course, in doing this, it includes legal publicity procedures and general access to political information. However, it also includes the existence of bodies in charge of broadcasting political information, managing the discussion, and informing citizen understanding. Political publicity therefore both provides access to speech or information and allows discussion concerning the resulting facts and arguments. Finally, on a third level, publicity is philosophically seen as a hypothetical test of the validity of the decision, and therefore comes close in meaning to the transcendental principle of publicity as defined by Kant in his Perpetual Peace: A Philosophical Sketch: “All actions that affect the rights of others are unjust if their maxim is not consistent with publicness.” [23] Since the test of publicity is hypothetical, it does not imply a real audience, but the putative revelation of the argument. [24] In this understanding, the principle of publicity, therefore, does not oblige political actors to inform citizens of their reasons, but it does oblige them to universalize these reasons by examining whether they can be accepted by all.

12These three definitions concern different subjects and discourses (legal, political, philosophical). Yet they supposedly mutually justify one another, as Luban writes: “The best way to make sure that officials formulate policies that could withstand publicity is by increasing the likelihood that policies will withstand publicity.” [25] An informed public debate is supposed to contribute to the quality of political exchanges, both because these exchanges take into account the exact circumstances of the cause and because they allow the inclusion of a larger number of arguments formulated by a larger number of actors: the improvement of the general conditions of deliberation supposedly favors a progressive universalization of the arguments. The legislator’s control and the respect for the rule of law must encourage a thriving public space open to free expression by the sovereign people. The correct functioning of the political space and the public space is supposed to contribute to the epistemic quality of the decision, or even tend towards a justification process uniting the conditions of the hypothetical publicity test. Finally, conducting rational deliberation must logically favor the development of institutions which respect equal freedom for all.

The Schmittian critique of the parliamentary legislative state and the principle of publicity

13According to Schmitt, for political liberalism as for Kelsen, the distinction between the law and the “political will” produces a formal system cut off from political reality. For Schmitt, parliamentarism and democracy are based on different ideals. Parliamentarism is based on representation. In contrast, democracy is based on the political equality of its members. Reviving the memory of the English Empire or Athenian democracy (whose democratic nature he suddenly takes very seriously), Carl Schmitt nevertheless intends to show that a society of equals can only survive in a likeminded community of friends. [26] Since what is alike must be treated equally and, consequently, what is different must be treated differently, the maintenance of political equality requires a homogeneous people. As Schmitt emphasizes in his Constitutional Theory, “the democratic concept of equality is a political concept and, like every genuine political concept, includes the possibility of a distinction. Political democracy, therefore, cannot rest on the inability to distinguish among persons, but rather only on the quality of belonging to a particular people.” [27]

14Therefore, Schmitt not only distinguishes between parliamentarism and democracy, but also between liberalism and democracy. If parliamentarism and democracy encompass different registers of justification, this is because the principle of parliamentarism is based on a liberal justification and not a democratic justification. Liberalism differs from democracy in two important ways. First, it does not consider the sovereign expression of the people to be the legitimating criterion for a political regime: what matters is the guarantee of citizen freedoms, the preservation and promotion of individual autonomous expression, and thus the public and pluralist exchange of arguments. [28] Second, Schmitt believes that liberalism is mistaken about the authentic meaning of political equality. The liberal understanding of equality assumes that every person is equal in law to other people. For Schmitt, this interpretation of equality is a pure abstraction, because it overlooks the fact that equality can only apply to a distinct political community, which identifies itself as a community of friends. [29] To say the least, Schmitt does not justify the way in which he assimilates identity and equality. However, he appears to take the idea that the state’s ethical and rational foundations come from the sovereignty of the people seriously (albeit rhetorically). [30] Yet liberal democracy postulates the equal liberty of citizens, and therefore the free and pluralist expression of the individual. How could it reconcile the free expression of diverging interests and the promotion of a homogeneous community? For Schmitt, liberal democracy comes up against an insurmountable contradiction, already seen in Rousseau: “According to the Contrat social there can be no parties in the state, no special interests […] nothing that can divide persons […] But if unanimity and agreement of all wills with one another is really so great, why then must another contract be concluded or even construed? A contract assumes differences and oppositions.” [31]

15For Schmitt, the parliamentary legislative state is incapable of promoting both the homogeneity of the people and social pluralism. [32] Meanwhile, public deliberation is not only a contributor to immobility and passiveness: it dissolves the very nature of politics. [33]

16In this, the Schmittian critique of liberalism cruelly emphasizes the gulf between the actual effects of political publicity and the expected effects of the hypothetical publicity test. For Schmitt, the liberal principle of publicity betrays both the democratic ideal and the rationalizing ambition of the parliamentary legislative state.

17On the first point, publicity by no means prevents parliament confiscating the power to participate in the formation of laws from the people. Political liberalism is based on the idea that the fair confrontation of ideas will favor the production of a fair decision. However, this does not mean that people concretely exercise their sovereignty in the formation of a political decision. Schmitt takes article 21 of the Weimar Constitution at its word. The article states: “The members are representatives of the whole people, they are only responsible to their own consciences and not bound to any instructions.” For Schmitt, the idea that the people participate in a political decision by forming a voting body is pure illusion. [34] The contractualist attempts to assimilate law with the general will, [35] such as the progressive extension of the right to vote or the introduction of the referendum, are not enough to achieve an “absolute, direct [political] identity that is actually present at every moment”. [36]

18On the second point, publicity is powerless to civilize public debate. In fact, in the liberal public space, it becomes “a mere function in the eternal competition of opinions”. [37] It thus contributes to the dissolution of political activity into the exchange, calculation, and competition of interests. The principle of publicity transforms the political discussion into a process of reciprocal surveillance, encourages distrust towards all, and makes actors cling to their positions and interests. In doing so, it makes “state power [or] any kind of metaphysical conviction” [38] impossible. For Schmitt, the process of argumentation and review triggered by publicity actually reduces the search for the common good to the achievement of a balance negotiated between divergent interests: “The parties do not face each other today discussing opinions, but as social or economic power groups calculating their mutual interests and opportunities for power.” [39] Paradoxically, the principle of publicity even ends up pushing actors to negotiate their arrangements behind closed doors. The public gaze and free transmission of political information prevent actors getting perspective on the interests they defend, thus reducing the discussion to a simple play of the coordination of interests. Still, they are never effective enough for this game of coordination to be played out before the eyes of the sovereign people rather than in a hidden corner. Like the shipwrecked man who gorges on seawater, thinking he is quenching his thirst, publicity corrupts politics, while claiming to nourish it.

Acclamation as a political model of transparency: is Carl Schmitt Rousseau’s other?

19For Schmitt, publicity is a problem not because it makes political activity too visible, but conversely, because it cannot make it authentically transparent. The Schmittian analysis of the principle of representation inscribes the critique of parliamentarism in a project to rediscover the essence of “politics”, within which the ideal of transparency plays a very specific role.

20The Schmittian theory of sovereignty is often associated with a famous phrase from Political Theology: “Sovereign is he who decides on the exception.” [40] In this text, Schmitt considers that the power to decide on the exception is not a departure from the rules, but that which establishes them. It is not law which founds politics, but politics which founds law. And what characterizes politics is the emergence of the decision. From the publication of State, Movement, People, Schmitt nevertheless moved away from this strictly decisionist understanding. For Schmitt, the power to decide on the exception now had to express, above all, the movement of political unity. The exercise of sovereignty is legitimated by the decision made, but also through it, by “the existence of a common substance in which citizens participate, and which will allow them to be treated as equals in a democracy”. [41] The achievement of democracy requires the pursuit of unity in “politics”, indicated by the “degree of intensity of an association or dissociation of men”. [42] For Schmitt, the only way of founding democracy on the sovereignty of the people is to imagine an ideal form by which the people can be in full contact with itself. [43] Democracy and dictatorship are not antagonistic terms, as long as the dictator can plead a temporary but profound connection between himself and the people. [44] The Volkswillen finds its own presence and “real life force” [45] via the “acclamation” of the decision made.

21How is the people’s connection with itself to be constructed? For Schmitt, democracy founds and expresses an ideal of political transparency. The unity of the people must allow transparent, candid communication, without interference, permitting access to political truth. And it is this transparent communication which in return allows the connection of the people and the political leadership (or Führung [46]). The unity of the people with itself requires that the social body be aware of itself in the same moment as its will takes shape, and in the very movement of the emergence of this will. Without this, political power would always act belatedly in relation to the popular will.

22On this precise point, the Schmittian text appears to display Rousseauist accents. Although the relationship between Rousseau’s work (and, more widely, the republican tradition) and liberalism is complex and widely debated, [47] it is his understanding of political visibility which interests us here. Often criticized for its unitary vision of politics, Rousseau’s work seems to apply to the immediacy of the people more than to the united people. Above all, Rousseau appeals to an ideal of transparency, which is the only thing capable of connecting the will of all, the freedom of each individual, and the search for the common good. For Rousseau, human nature is not better in its natural state, but in it, “men found their security in the ease with which they could see through one another”. [48] In an ideal world, consciences are transparent and reconciled: [49] there is no divide between the soul as it is, as it appears, and as it should be. In this context, Rousseau does not see deliberation as a moment of contradictory public exchange. Either it designates the private process by which each citizen secretly converges towards the expression of the general will: the identification of the general will does not require citizens to communicate between themselves, but to find what is good for all through the internal work of the conscience. [50] Or it refers to direct, transparent, and wordless communication between all members of the political community. This deliberation is paradoxical in terms, because it assumes an “immediate, total, absolute unity: that of one single will”. [51] In a state where “all the individuals knew each other, the obscure maneuvers of vice and the modesty of virtue would not be able to conceal themselves from the view and judgment of the public”. [52]

23Like (but before) Schmitt, Rousseau detaches the ideal of transparency from the domain of magic thought, to situate it within human society. Schmitt does not propose a private morality, but a precise vision of sovereignty and law. Similarly, for Rousseau, the “curse of appearances” is not a perversion of the senses, but a degradation belonging to the human experience of sociability in the triumph of modernity. [53] The construction of a fair society requires that the general will be elevated to total clarity. Like Schmitt, Rousseau introduces the notion of trust into the reflection on transparency. Transparent communication allows subjects to stop fearing pretense and to conduct their relationships with others guilessly, the identity of the people ultimately being no more than the vehicle of transparency. In return, trust makes transparent communication without ulterior motives possible. Transparency cannot survive mistrust, and trust cannot survive opacity.

24Again like Schmitt, Rousseau is suspicious of the principle of publicity. Publicity assumes and constitutes a shared space bringing together different wills, preferences, interests, and modes of communication, and takes on their communicational exchanges. Yet in doing so, it corrupts the principle of pure communication and the ideal of a contiguity of consciences. It creates room for lies and encourages mistrust. The public space leaves consciences isolated from one another. Nevertheless, it provides a public stage for the strategic meeting of individual interests. Thus, communication engenders the formation of factions with specific interests, which they present as general interests.

25Finally, like Rousseau, Schmitt focuses on the foundations of the general will more than on how it is created. [54] If citizens are able to share their mutually transparent desires, the decision resulting from their agreement can only correspond to the common good: this is why members of the community are meant to obey the general will on their own initiative, or when called to by the leadership. Popular participation must re-establish society’s sincere relationship with itself, harmonious communication between its members, and the formation of a virtuous norm. As Lamartine wrote, the people thus become the emblem of “a community free of appearances”. [55]

26Nevertheless, Rousseau’s and Schmitt’s texts also show major differences, which Schmitt himself sometimes points out. In fact, Rousseau is aware that reaching the dream world of The New Heloise is impossible. He knows that the only way of achieving an element of crystalline truth is via the discouraging trial of language and writing. He also knows that the general will cannot be fueled for long by the joyous meeting of minds, and that precisely because modern society has moved away from its natural state, it requires political institutions to express this will. Although he does not appear to give up on the ideal of transparency, Rousseau is aware of the insurmountable problems it faces in the real political space: The Social Contract aims precisely to imagine institutional forms in which freedom for all might be guaranteed within the political community.

27Perhaps the human soul is forever parted from its ability to be open without hypocrisy or hidden will. [56] Society, with all its divisions, expresses the degeneration of a humanity cut off from itself. Achieving the common good thus requires the establishment of a democratic aristocracy which maintains the freedom of individuals but is directed by governors capable of leading the community with the necessary virtue. [57] Good government in particular relies on the presence of a Christ-like figure, who, in Rousseau’s words, can symbolize “the immediate force of conscience”. [58]

28Or perhaps the true face of humanity remains intact, in spite of passions, misunderstandings and personal interests. If society imposes false and insincere exchange between people, contact with others is still necessary to access the self and to construct a truth shared by all and valid for all. The sense of the origins is lost, but can be rediscovered, as long as people succeed in freeing themselves from the distance they maintain with both themselves and others. In this case, transparency relies on esteem and benevolence between people, on the “imperative of virtue” exchanged. [59] In this context, the Rousseauist promotion of celebration and pleasures reveals the outline of a new type of transparency, based on conviviality. [60] Collective action is ideally in the form of banquets, fraternity, and celebratory gatherings of people “in the one and indivisible space of civic ardor and transparency of the heart”. [61] Virtue is the aim of political activity, but also the social cement which allows people to overcome the obstacle of language.

29Rousseau is not fatalistic: “Man is not naturally condemned to live in distrust, in opacity and in the accompanying vices […] Nothing, therefore, prevents us from remaking or unmaking history, in order to find the lost transparency.” [62] Nevertheless, individual and community education barely allow us to touch upon the reflections of the lost transparency. Rousseau’s work can thus be read as the exploration of the desperate need to steer the efforts of the mind towards breaking down these language barriers, which are also paradoxically the main tools of human thought. Starobinski described Rousseauist transparency as the search for immediate and silent clarity. [63] However Rousseau definitively rejects this deathly silence. [64] Whatever the ambiguities of modernity, he puts his faith in the human capacity to participate in building social institutions. The citizen’s freedom is expressed through the general will, which is based on the social contract. The general will is in turn expressed in the “continuous” construction of a democracy, based on the citizen’s permanent participation, investment, and inspection. [65] For Rousseau, the unanimity of the social body is required only for the formation of the political body, and not for the exercise of sovereignty. [66] The latter allows (and even requires) the expression of specific groups, the use of the rule of the majority, and the publication of votes. [67] In this context, Rousseau considers that political publicity plays a useful role. Sovereign action must be public. Ensuring that an act of government conforms with the law requires that this law be known and the act of government be accessible. The Tribunat’s monitoring of the Executive works through various tools for publicizing political information, such as the inspection of the executive power by the citizen.

30However, Schmitt does not share this nostalgic perception of transparency, nor the opinion that it could be achieved through the moral benevolence of people. On the one hand, political unity is not constructed through an exchange of fraternity, but in opposition to the figure of the enemy. [68] For Schmitt, the enemy is not the competitor or the adversary, but the people or persons with whom complicity and fraternity are impossible. Frank conversation is possible with the enemy, and its presence does not strictly speaking fuel hostile sentiments. Exchange with the enemy is not necessarily disadvantageous. The encounter can even contribute to the political community’s understanding of itself. [69] The enemy is only enemy because they are other, opaque, and because this makes sincere and candid communication with them impossible. For Schmitt, enmity is not a state of hostility, but of dissociation. If friendship is maintained through silence, the enemy emerges in the accompanying radical feeling of incommunicability and foreignness: [70] it is the resolution of this antagonism which allows the construction of an authentic political community. [71] Schmitt resolves the problem of transparency through the figure of the friend-enemy, whereas Rousseau defuses it via the figure of the fraternal equal.

31On the other hand, transparency is not just a moral ideal or the characteristic trait of a bygone human society, but a political ideal and a principle of government. As a political ideal, transparency legitimates the sovereign’s power to decide on the exception. As a principle of government, it makes it possible for the sovereign to exercise power. For Schmitt, the legal norm and the decision are part of the same continuum: knowing or producing the norm is knowing or producing the decision. As such, “the authority shows that it does not need law to create law”. [72] It is the Volkswillen which decides the fate of the legal form. If the political leadership is responsible for elucidating the meaning of the people’s will, this will itself is present through the “acclamation” of the decision made.

32The role played by acclamation allows us to understand why Schmitt proposes not only a vision of political unity, but also a messianic understanding of political transparency.

33For Schmitt, “all significant concepts of the modern doctrine of the State are secularized theological concepts”, [73] because they share not only the same historical development, but also the same fundamental structure: political theology, i.e., the structural identity which, according to Schmitt exists (and must exist) between the theory of law and theology. [74] Taking inspiration (to the great displeasure of the party in question) [75] from Peterson’s work on Christianity, Popular Referendum and Proposed Popular Initiative Law justifies the acclamation of the sovereign on the basis of its theological attributes, especially on the characteristics of the language of angels.

34Drawing on numerous epigraphic and papyrological sources, Peterson sees acclamation as a simultaneously theological and political phenomenon. [76] The ancient formula of “one God” (heis theos) is not only a credo, but the formula of the sacred law through which the community’s allegiance to its guide and sense of belonging to itself are expressed: the way in which the community of believers extends God’s word is thus associated with the way in which the political community champions and expresses the word of its guide. However, for Schmitt, there is no difference in nature between the expression of homage heis Theos and political acclamation. In fact, acclamation does not obey the register of classical discussion or political debate. It is an exclamation without interface, without mediation, and without strategic or deliberative intention. As described by Agamben in The Kingdom and the Glory, [77] for Schmitt, declaration represents the worldly translation of angelic language.

35First, it shares its functions. This is shown in the Scriptures (Zach. 1:12; Rev. 5:11-13; Rev. 7:11-12; etc.), as the angels speak to God himself, not to tell him what he already knows, but to express their admiring praise. Praising God is the main aim of the angels’ speech. As God’s servants, [78] their role is to hail God’s glory and carry the declaration of allegiance from the community of believers to the heavens. Similarly, the ecstatic people on earth fulfill the theological nature of politics, by acclaiming without argument the glory of the sovereign. Acclamation is neither a discourse nor a profession of faith, but the “natural and necessary expression” of the sovereignty of the people. [79]

36Second, it corresponds to the same ideal of communication. Although he refers several times to the idea of deliberation, Schmitt never associates it with an ideal of discussion and public debate. Acclamation designates the “direct global will of the people”, of which it is the pure and direct expression. [80] As such, it precisely mirrors what Jean-Louis Chrétien calls “the angelic language”, [81] meaning direct, intuitive communication, free of the obstacles of language, without lies, but complete in its content, candor, and nakedness. [82] This is communication without gray areas, confusion, misunderstandings, translation issues, irony, or implicit intention: [83] in other words, transparent communication. Unlike the language of angels, acclamation does not only or even mainly convey information already produced elsewhere (by God, for example), then transmitted. The public will is formed at the same time as it is manifested in its transparency. The terms of the Social Contract construct this will as an agreement between equal but distinct individuals, and thus, even reluctantly, inscribes political activity in public deliberation and the renunciation of transparency. However, Schmittian political theology supposes that the only true transparency is total transparency, and that only total transparency is selfless. This transparency requires the renunciation of the private part of subjectivity. [84] Acclamation must become blank and empty speech. Only at this price, without engaging with the representation of divergent interests within society, can the Schmittian political space claim to respect the coherence of the democratic ideal.

From transparency to representation: Kelsen and the fatherless society

37Carl Schmitt offers a ferocious critique of liberal democracy and the dead ends of a legal positivism which claims to be strictly “neutral”. However, a re-evaluation of the truly “pure” character of Kelsenism allows us to identify, in turn, the limits of the Schmittian view of law, representation, and political visibility.

38Kelsen’s “pure theory” aims to do for law what Kant’s Critique of Pure Reason attempted to achieve for philosophy: to construct the conditions that would allow objective knowledge. Kelsen attempts to overcome, in the legal field, the traditional opposition between realism and idealism, by imagining a rational system which can be simultaneously subjective and rational. Initially Kelsen sees the basic norm as being the transcending logical condition for recognition of the norm. However, after the war, Kelsen shifted his position. In his General Theory of Norms, the norm is seen as being both the signification of an act of will and a prescription regarding the behavior of others. [85] Meanwhile, the Grundnorm is presented as a hypothetical norm, whose existence is simply assumed, a fiction which we know does not correspond to reality.

39In this framework, it falls to the subject to imagine the existence of an objective foundation for the legal system. The justification of this system thus relies on the value that this subject accords to it. On the one hand, legal reasoning is not analytical in nature, but synthetic. The law is not a real being, an idea already present in nature, or a logical and systematic unity. The science of law therefore aims not to describe an object, but to construct it: the juridical norm is thus defined as the signification of an act of will, aiming to understand, translate and direct (consequently, everything but exclude), social and material realities. On the other hand, the content of norms and the science of law can consequently be the object of a normative discussion. If the validity of a norm is not connected to the truth of its general pronouncement, but to the signification of an act of will [86] and therefore to the value that the subject accords to the norm, the justifications for this foundation can consequently be subject to contradictory evaluations. Law is neither pure nor neutral: in the words of Gontier, Kelsen believes that the “will of the state is nothing other than the legal system, taken in its normative character”. [87] In this context, separating law from morality on the level of the theory of knowledge still equates to imposing a morality. [88] Although the pure theory of law claims to be a legal theory free of any ideology, it includes an explicit political objective: to question the duality between state and law, which for Kelsen constitutes “one of the most effective ideologies of legitimacy”, [89] and to fight against the naturalist or mystical justifications of politics. [90]

40Law, like any social language, is a way of codifying reality. As such, it conveys no intrinsic truth. It is never true or false, but only valid or invalid. [91] It is the critical work of reasoning that selects the ideas (for language) and the prescriptions (for the law) which will be given a social significance. Unlike Schmitt, Kelsen believes that political representation has no intrinsic rationalizing value. Admittedly, Kelsen like Schmitt dissociates the notions of representation and democracy. Kelsen thinks that representation is not intrinsically democratic, and democracy can be conceived without recourse to representation, or even without separation of the executive and legislative powers. [92] Nevertheless, the main aim of representation is to bring individual opinions face to face, and maintain equitable conditions for the revision of the political decision. For Kelsen, the concept of representation is not based on a natural reality or on a priori principles: “The ideal of a general interest which is superior and transcendent over group interests, and therefore to the parties […] is a metaphysical, or more precisely metapolitical illusion, normally expressed by speaking in extremely obscure terminology, of an “organic” collective being or an organic structure of this being, in opposition to the state of parties and mechanical democracy.” [93] Parliament is a pragmatic instrument responsible for reconciling effective political work with a certain idea of public debate. [94]

41The divergences between Kelsen and Schmitt on the status of law and political representation are connected to different ideas of political visibility, which themselves arise from different views of language. For Schmitt, political speech must be as close as possible to divine silence. Political institutions must serve an ideal of directness, which itself requires a transparent connection between the people and the political movement. For Kelsen, in contrast, political speech is a tool for the production of information. This makes publicity a necessary, but not exclusive, means of conducting critical work and a collective control over political decisions. Law should not extend the acclamation of the people, or more widely embody a somewhat hazily defined “general will”: it must make public, known to all, and accepted by everyone that which is not yet so. The political body cannot and must not be transparent. However, political deliberation must be public and open to all.

42According to Schmitt, Kelsen gives in to the modern mirage of representation, but for Kelsen, it is Schmitt who confers disproportionate functions on law and the democratic idea. It was Schmitt who wrote in his Constitutional Theory that “law is order and will, and not a judicious opinion; it does not draw its validity from moral or logical qualities, but precisely from its injunctive nature”. [95] But it is Kelsen who takes this statement at its word, by dissociating the validity of the norm and the logical or moral truth of its expression. Kelsen shares with Schmitt the idea that parliamentary representation is simply a fiction of representation. However, he thinks that the notion of “political unity” which Schmitt opposes to it cedes to the illusory project of total popular representation. By criticizing the way in which political liberalism fuels the dispersion of opinions and political haggling, Schmitt does not want to admit that conflict is not a feature of liberalism alone, but of all political activity. The friend/enemy dialectic exports the figure of conflict out of the strictly political field. By calling for “the unity of the general will” or the “substantial order” of the Constitution, Schmitt conceals the naturally pluralist nature of political activity.

43For Schmitt, political homogeneity allows for the construction of a community which is transparent and immediate unto itself, and heterogeneity prevents the creation of a relationship of trust between members of society. Yet for Kelsen, this transparency is deceptive and artificial. First, it represents an ideological attempt to assimilate “politics” to the values of the conservative bourgeoisie: state action legitimates law as long as this law is based on the substantial values of those who control its institutions. Second, it leads to a form of state hypostasis, the legal rules only acquiring their juridical status if they are in accordance with the political atmosphere and the resulting moral truth. [96] This would mean that nothing distinguishes Schmitt’s theory from political theology. In fact, Schmitt accepts this point. His discourse on the essence of “politics” amounts to reducing law to an order with no connection to reality, because the elaboration of the norm bypasses all possible discussion, objection, or contradiction. [97]

44These divergences on the status of political visibility do not only correspond to opposing visions of representation and collective rationality. They also lead to different normative projects. Kelsen opposes the Schmittian critique of publicity and the parliamentary legislative state not because it is factually false, but because he considers an advantage that which Schmitt interprets as a perversion. In the Kelsenian understanding, the fact that representation drives towards political compromise, or that publicity favors the manifestation of private interests, is not a problem in itself. The Kelsenian defense of the principle of publicity is in opposition not only to the Schmittian understanding of transparency, but also to the epistemic justifications of the parliamentary legislative state. Kelsen’s liberalism is not based on the idea that representation favors rational deliberation, or that it guarantees the natural rights of the individual. Instead, it is based on an artificialist view of politics. Applying Freud’s 1922 reflection on the totemization of the father [98] to the legal field, Kelsen considers in The Conception of the State and Social Psychology that the definition of law should contribute to a “society of brothers”. [99] This “society of brothers” designates not only a fatherless society (i.e., any society without a divine pastor or founding principle), but also the society of individuals, each with the same kind of natural liberty. Kelsen does not justify the supremacy of democracy by its capacity to transmit the preferences of all to the powers, or by its ability to produce rational decisions. Nor does he justify collective life on the basis of its capacity to produce the conditions of a “divine friendship”. Kelsen’s fraternal society is not an association of friends or close fellows, but the alliance by which the children of Chronos collectively decided to eat their father, and to each fully exercise their freedom. [100]

45This artificialist interpretation leads Kelsen to a cross-justification of the principles of equality and freedom. Kelsen does not believe that law is uniquely destined to record the zeitgeist or the existing power relationships with the political community. However, he notes that in modern societies there are divergences in views about what constitutes the good life which are both irreducible and reasonable. On the one hand, the only way of taking the rational justification of norms seriously and leaving this question open is a free and pluralist discussion. On the other hand, Kelsen thinks that the recognition of pluralism characterizes not only a free society, but also a society of equals, which he justifies in fallibilistic terms. On this point, Kelsen is close to contemporary egalitarian liberals: he thinks that there is no a priori criterion allowing the affirmation that one opinion is superior to another, and that there is thus no reason for power to be exercised by one group rather than another on the grounds that they know the “true values”.

46Echoing Schmitt, Chantal Mouffe thinks that “pluralism […] is in no way intrinsic to the democratic idea, as equated with popular sovereignty”. [101] Kelsen counters this: for the author, although democracy represents the best existing technical way of limiting the citizen’s heteronomy, this is not only because the majority rule allows us to ensure that at least a majority of citizens have their will respected, but because a well-designed representative democracy drives the political body to compromise, and therefore to a pluralist respect of the opinions within it. [102] If the Kelsenian justification of democracy is instrumental, because its intrinsic function is to guarantee pluralism and to translate the idea of freedom into politics, this does not mean that it is peripheral. The understanding of politics and law defended by Kelsen opposes the fantasy of equating democracy to the co-presence of members of the political community, but it also opposes an elitist liberalism that defends the granting of individual rights, while seeing representation as a way of immunizing the political decision against the moods of the masses. [103] Democratic society is based neither on the ideal of a community that is immediate unto itself nor on a principle of rational deliberation, but on the recognition and equitable consideration of sometimes irreducibly distinct understandings of power, justice, or public discussion.

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48Carl Schmitt’s work criticizes the liberal interpretation of representation, but also that of publicity, which he wants to replace with an ideal of political transparency. This ideal is close to the Rousseauist idea of transparency, and yet it differs on two important points. First, Schmittian transparency serves an ideal of political similarity, whereas Rousseauist transparency defends an ideal of equality. Second, Schmittian transparency is not a regulating ideal, but the cognitive and moral source for the constitution of law.

49The principles of transparency and political unity are sometimes presented as consubstantial. This article reminds us that the ideas are connected, but distinct, and the principle of transparency displays a conceptual autonomy. In this regard, the ambition to establish an acclamation relationship between the political sphere and the social sphere is not the preserve of dictatorial regimes. Developing in pluralist and democratic regimes, and sometimes in their very name, the forms of nationalist populism currently emerging in Europe do not launch a frontal attack on the rights regime or the principle of popular sovereignty. Nevertheless, they rely on the ambiguous dream of a fraternal society, finally rid of the enemy figure. This dream is not necessarily based on a totalitarian frenzy, but on an ideal of cultural, institutional, and political immediateness, which is meant to resolve all contradictions. “I think like you, so vote for me”: the injunctions calling for transparent identity conveniently spare citizens firstly the burden of being governed, since the rules to which they submit are meant to be their own, and secondly the worry of governing, since this task is meant to be carried out by the leaders.

50Given this, I have tried to show how the Kelsenian understanding of political representation responds to the Schmittian critique of liberal publicity and the parliamentary legislative state, while pointing out the limits of the Schmittian view of transparency. Schmitt reminds us that the justification of a democratic regime relies not only on pluralism, but also on the promotion of a society of equals. Emphasizing the dead ends of the Schmittian ideal of transparency, Kelsen shows that political equality requires recognition of this pluralism. For some, democracy can only avoid giving in to the populist temptations evoked above by developing mixed forms of government, valuing expertise, and creating spaces for negotiation which are ultimately sheltered from the moods of the masses and capable of educating citizens about the right solutions. Kelsen reminds us that the rerouting of the democratic ideal lies not only in the search for the language of angels in the supposed existence of a community of thoughts or feelings, but also in looking for the miraculous way of synthesizing the various opinions in a society through ultimately clear and rational speech.