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The Legitimacy of Modern Democracy “Pedro Magalhães offers a personal reading of the works of three trained German jurists: Max Weber, Carl Schmitt and Hans Kelsen. He regards legitimation as a key to their vision of politics. Weber as theorist of ac- tion focused on daily debates of politicians, whereas Schmitt reduced politics to dramatic decisions on enmity and exception and Kelsen justi- fied democracy with relativism.” Kari Palonen, Professor Emeritus, University of Jyväskylä “The debate today over how democracy might die easily breeds the equal and opposite paralyses of complacency and fright. In this excellent book, Pedro T. Magalhães returns to three pivotal thinkers in the German tra- dition of conceptualizing the legitimacy of democracy, and argues that their Central European experiences and theoretical enterprise are rele- vant still. Through his sophisticated reconstructions, he shows that the urgency of our times can prompt deliberation and insight.” Samuel Moyn, Yale University “A fresh and tough-minded reevaluation of liberal and authoritarian ap- proaches to the state in Weimar political thought.” John P. McCormick, University of Chicago The Legitimacy of Modern Democracy By re- examining the political thought of Max Weber, Carl Schmitt and Hans Kelsen, this book offers a reflection on the nature of modern de- mocracy and the question of its legitimacy. Pedro T. Magalhães shows that present- day elitist, populist and pluralist accounts of democracy owe, in diverse and often complicated ways, an intellectual debt to the interwar era, German- speaking, scholarly and political controversies on the problem(s) of modern democracy. A discussion of Weber’s ambivalent diagnosis of modernity and his elitist views on democracy, as they were elaborated especially in the 1910s, sets the groundwork for the study. Against that backdrop, Schmitt’s in- terwar political thought is interpreted as a form of neo- authoritarian populism, whereas Kelsen evinces robust, though not entirely unprob- lematic, pluralist consequences. In the conclusion, the author draws on Claude Lefort’s concept of indeterminacy to sketch a potentially more fruitful way than can be gleaned from the interwar German discussions of conceiving the nexus between the elitist, populist and pluralist faces of modern democracy. The Legitimacy of Modern Democracy will be of interest to political theorists, political philosophers, intellectual historians, theoretically ori- ented political scientists and legal scholars working in the subfields of constitutional law and legal theory. Pedro T. Magalhães has a PhD in Political Science awarded by NOVA University Lisbon, where he taught as a Guest Assistant Professor un- til 2018. He is currently a post- doctoral researcher at the Academy of Finland funded Centre of Excellence in Law, Identity and the European Narratives (Eurostorie), hosted by the Centre for European Studies at the University of Helsinki. His main research interests are in the fields of democratic theory, modern political ideologies and twentieth- century intellectual history. Routledge Innovations in Political Theory Reconstructing Nonviolence A New Theory and Practice for a Post- Secular Society Roberto Baldoli Rethinking Positive and Negative Liberty Maria Dimova- Cookson The Problem of Value Pluralism Isaiah Berlin and Beyond George Crowder On Biopolitics An Inquiry into Nature and Language Marco Piasentier Democracy, the Courts, and the Liberal State A Comparative Analysis of American and German Constitutionalism David Miles Legislative Deliberative Democracy Debating Acts Restricting Freedom of Speech during War Avichai Levit The Legitimacy of Modern Democracy A Study on the Political Thought of Max Weber, Carl Schmitt and Hans Kelsen Pedro T. Magalhães For more information about this series, please visit: https://www.routledge. com/Routledge-Innovations-in-Political-Theory/book-series/IPT The Legitimacy of Modern Democracy A Study on the Political Thought of Max Weber, Carl Schmitt and Hans Kelsen Pedro T. Magalhães First published 2021 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Taylor & Francis The right of Pedro T. Magalhães to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging- in- Publication Data Names: Magalhães, Pedro, 1970– author. Title: The legitimacy of modern democracy : a study on the political thought of Max Weber, Carl Schmitt and Hans Kelsen / Pedro T. Magalhães. Description: New York : Routledge, [2021] | Series: Routledge innovations in political theory; Voume 89 | Includes bibliographical references and index. Identifiers: LCCN 2020036996 (print) | LCCN 2020036997 (ebook) | ISBN 9781138068889 (hardback) | ISBN 9781315157566 (ebook) | ISBN 9781351654012 (adobe pdf) | ISBN 9781351653992 (mobi) | ISBN 9781351654005 (epub) Subjects: LCSH: Democracy. | Weber, Max, 1864–1920— Political and social views. | Schmitt, Carl, 1888–1985—Political and social views. | Kelsen, Hans, 1881–1973—Political and social views. Classification: LCC JC423 .M1236 2021 (print) | LCC JC423 (ebook) | DDC 321.8— dc23 LC record available at https://lccn.loc.gov/2020036996 LC ebook record available at https://lccn.loc.gov/2020036997 ISBN: 978-1-138-06888-9 (hbk) ISBN: 978-1-315-15756-6 (ebk) Typeset in Times New Roman by codeMantra In memoriam Idilásio da Silva Tereso (1933–2020) Contents Acknowledgements xi Introduction 1 1 Max Weber’s Diagnosis of Modernity and the Ambivalence of Modern Democracy 21 2 The Neo- Authoritarian Populism of Carl Schmitt 65 3 Science, Relativism and Pluralism: Hans Kelsen’s Conception of Modern Democracy 119 Elitism, Populism and Pluralism: A Conclusion 178 Index 203 Acknowledgements During the decade that has passed since I decided to embark on this research project on the legitimacy of modern democracy and its con- clusion, I have accumulated a debt of gratitude to more individuals and institutions than I can name. But I will do my best here not to forget any- one. First and foremost, I would like to thank Pedro Tavares de Almeida and Diogo Pires Aurélio, supervisors of the doctoral dissertation from which this book emerged. Without their support and guidance, I would not have been able to bring this project to completion. I am also indebted to Martin A. Ruehl, who gave me the opportunity to spend a semester as a visiting PhD student at the Department of German and Dutch of the University of Cambridge, in the academic year 2013–2014. His sug- gestions and constructive criticisms, during and after that research stay, were invaluable. My work on this book was completed while I was a member of the Academy of Finland funded Centre of Excellence in Law, Identity and the European Narratives (Eurostorie), hosted by the Centre for European Studies at the University of Helsinki, where I am currently based as a post- doctoral researcher. The advice and stimuli from all the unbelievably kind and generous people of Eurostorie influenced the final version of this volume in more ways than I could have at first imagined, but a special word of appreciation goes to the intellectual companionship of the three scholars I work most closely with there: Pamela Slotte, Timo Miettinen and Tuukka Brunila. Furthermore, I would also like to thank my students at NOVA University of Lisbon and at the University of Helsinki, with a special mention to those who attended the master’s courses on ‘Political Elites’ (Lisbon, 2018) and on ‘Populism in Europe and Beyond’ (Helsinki, 2020), the last of which I taught together with Tuukka Brunila. If perchance any of the students who attended these courses happens to read this book, they will surely find traces in it of the lively discussions we had during the seminar sessions, where many of my ideas were either tested for the first time or rehearsed again before an attentive and engag- ing audience. Last but not least, I am also grateful to all the colleagues— far too many to mention without unjustly forgetting someone—who were kind enough to read and comment on my work in various academic ven- ues during the last ten years. Paul Behne checked my translations from xii Acknowledgements the German and Heta Björklund prepared the index—I thank them both for their efficient work. Finally, I would like to thank Natalja Mortensen, senior editor of political science at Routledge, for her patience with my inability to keep deadlines. Any errors, omissions and imperfections in this book are, of course, the author’s sole responsibility. For financial support, I am grateful to the Portuguese Foundation for Science and Technology (FCT), which provided the doctoral grant (ref. SFRH/BD/79450/2011) that allowed me to begin the project in January 2012 and supported me until the completion of the dissertation in Febru- ary 2016. As of August 2018, I have benefited from the financial support of the Academy of Finland funded Centre of Excellence in Law, Identity and the European Narratives (funding decision no. 312430). This book is dedicated, with love, to Carolina and our new- born daughter. Introduction As long as a certain form of government is taken for granted, any interest in the problem of its legitimacy is bound to come across as a matter of idle theoretical speculation, with no practical import. The most likely result, in such circumstances, is to move around in circles by emp hasizing the affinities between the presumably self- evident form of government and what is assumed to be equally self- evident in other realms of hu- man thought and action.
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