Private law rights as democratic participation: Kelsen on private law and (economic) democracy
Bibliographic record
Abstract
In the first edition of his famous treatise Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik (translated as Introduction to the Problems of Legal Theory), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a ‘democratic form of law’ and that private law rights are ‘political in the same sense as those rights that are usually characterized as political rights.’ In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the ‘Pure Theory of Law’ and its philosophical underpinnings of relativism and ‘value neutrality,’ culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing ‘ideology.’ To Kelsen’s contemporary audiences, drawing a connection between ‘capitalist’ private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on ‘economic democracy’ (‘Wirtschaftsdemokratie’). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were ‘undemocratic.’ I submit that Kelsen’s statement – flipping the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing ‘bourgeois’ parliamentary democracy with a ‘true,’ ‘social’ democracy that would realize conditions of social and economic justice. By connecting ‘capitalistic’ law with ‘democracy’ and ‘socialistic’ law with ‘autocracy,’ Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.006 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.002 |
| Science and technology studies | 0.004 | 0.041 |
| Scholarly communication | 0.008 | 0.018 |
| Open science | 0.001 | 0.006 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".