Hans Kelsen on Political Competition

Although the concept of competition is at the core of Hans Kelsen’s political theory, Kelsenian scholars rarely scrutinized the notion for itself. However, without considering this notion, it is difficult to understand fully the foundations of his democratic theory. In this paper, I intend to first articulate the specific notion of free competition with other concepts that play a significant role in Kelsen’s democratic theory, such as epistemic relativism and self-determination. I assume that none of these components are fully intelligible without consideration of their interaction with the principle of free competition. In addition, Kelsen’s recurrent criticism of monistic conceptions of the “will of the people” can only be properly understood in the context of his valorisation of competition. In the second section, I intend to relate the notion of free competition with Kelsen’s constant rejection of militant democracy, in other words, his opposition to regulating democratic competition even when democracies face danger from their most resolute enemies. It is striking to note that the rise of fascism in Europe did not change his opposition to militant democracy. In the third section, I would like to consider the tension that arise between Kelsen’s adherence to the principle of free competition and his other concerns, most notably, those related to the protection of minorities. In this third section, I will qualify the lines of continuity and discontinuity between Kelsen and Schumpeter regarding the extension of and the meaning attributed to the concept of competition. In sum, this paper will address the specific and central place occupied by the notion of free competition and its influence on certain of Kelsen’s doctrines, such as his continuous rejection of militant democracy. I will also show that the primacy of competition presents challenges to his constant defence of minorities, which is no less constitutive of his democratic theory.