Sandrine Baume

On political theology: A controversy between Hans Kelsen and Carl Schmitt

This article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitts analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the states unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The ‘legal miracle’—in this context meaning the occasional autonomization of the state from law—was for Schmitt the manifestation of sovereign power. However, for Kelsen it represented the negation of the states essence, whose actions must be determined only by the legal order.

Transparency: from Bentham’s inventory of virtuous effects to contemporary evidence-based scepticism

There is growing enthusiasm for transparency in public affairs. Discourses idealising the value of transparency are part of the rhetoric of advocates of ‘good governance’. However, there is little discussion of the justifications for transparency. The view that transparency underpins legitimacy is similar to that of the advocates for ‘publicity’ in the initial era of representative government, when transparency (or publicity) became a crucial issue in political debates. This article identifies the intellectual roots of claims for transparency through a retrospective examination of the initial pleas in its favour. It concentrates on Jeremy Bentham, who provided an extended inventory of reasons for publicity. We examine Bentham’s major arguments and how they are currently analysed. We conclude that the virtuous effects of transparency are today qualified by criticisms in scholarly work which emphasise the possible costs and perverse effects of the search for transparency or demonstrate that it may fail to deliver the expected benefits.

Publicity and Transparency: The Itinerary of a Subtle Distinction

Transparency and publicity are often used interchangeably, despite repeated calls for clearer differentiation in the growing literature on transparency. The chapter investigates whether there is a discontinuity of meaning between the principle of publicity, which appears in classical writings, and the call for transparency emerging in parallel as a metaphor in the eighteenth century. Baume discusses the reasons for distinguishing between the concepts of transparency and publicity and builds on suggestions by Tero Erkkila, Jon Elster, Erin Kelly, and Daniel Naurin. After analyzing the contributions and limitations of these authors, she suggests a different method of distinguishing publicity from transparency by drawing on the polyvalence in the semantics of the latter.

Rehabilitating political parties: an examination of the writings of Hans Kelsen

ABSTRACT This paper focuses on Hans Kelsen’s reflections on political parties. During the interwar period, Kelsen participated in a controversy over whether political parties were a necessary part of the democratic process. The debate forced Kelsen to produce a defence of political parties to emphasise their functionality and define their place in his particular definition of democracy. This contribution considers the following aspects. First, the reasons why Kelsen thought political parties are necessary for democratic life are explained. Second, the doctrinal oppositions against which he elaborated his defence of political parties are clarified. Third, the programme that Kelsen conceived of to enhance political parties in a constitutional democracy is examined. Finally, the contemporary questions that have arisen in relation to Kelsen’s conception of political parties are scrutinised. Kelsen’s contribution to the debate about the role of political parties was intimately related to the presence of strong criticisms of that role. This makes his reflections even more interesting today, considering the present relative decline of the political role and appeal of parties.