Grundrechte in Gänsefüßchen. Kelsens (un-)schlüssige Beziehung zu den „sogenannten Grund- und Freiheitsrechten“

Abstract

Fundamental rights were not a matter of the heart for the liberal‐democratic Kelsen, as they could be used to set substantive limits for the redistributive legislator in shaping the legal order. Kelsen, on the other hand, wanted to protect the maximum legislative power of the parliamentary majority also against an encroaching constitutional court which could have cemented the status quo of the traditional ownership society. To Kelsen, the constitution as a framework protected minorities essentially by setting up only formal hurdles to legislation. The fact that Kelsen – although he became more affirmative to fundamental rights after World War Two – did not develop an adequate legal understanding of those rights for a liberal democracy according to todayʹs comprehension is due not only to the methodological approach of his ʺReine Rechtslehreʺ but also to his political perception of parliamentary democracy.