The Origins of the Fragility of Interwar Democracies

Multi-party, representative democracy is, according to Kelsen, an intrinsically fragile achievment – one that never can nor should be taken for granted. The fragility of multi-party democracies, based on party pluralism and free, competitive elections is the topic he explores in a lesser-know work published in the mid 1930s: La Dictature du Parti (1935). It focuses upon the underlying weaknesses of European interwar democracies which make possible their transformation into party dictatorships. The chapter explores Kelsen’s broader theoretical framework and contribution through a comparative analysis with those in the contemporaneous, early work of Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (1936), which, through a critique of Kelsen’s legal positivism, developed a distinctive, sociological approach to the relationship between law and state. The comparison of the two works reveals the significant engagement of Continental political theory and jurisprudence, throughout the 1930s, with the question of the underlying fragility of European interwar democracies. It, thereby, adds depth and breadth to the study of the genesis of Kelsen’s theory of democracy allowing one to capture more vividly the argument at the core of his La Dictature du Parti : the transformation of democracy into autocracy rests not on the dissolution of the rule of law and the rise of a state without law (as for Neumann), but on the transformation of the very content of the legal system.