Procedural fairness as constitutional justice: an essay on Hans Kelsen’s theory of liberal constitutionalism

Abstract

Kelsen developed in his work on theory of constitutional law a comprehensive understanding of the role of constitutional judicial review in a liberal constitutional order. In this essay, I seek to argue that unlike what his critics have argued, it included a comprehensive and procedure-based understanding of the legitimacy of law and political authority, which he also saw as the basis for democratic constitutionalism. Kelsen’s procedural form of legitimacy is an attempt to depoliticise law, and as an attempt to distinguish form and substance in law in order to make that kind of depoliticisation feasible. However, that also meant that Kelsen was forced to accept that sometimes controversial aspects of judicial discretion were justified only through their procedural necessity, not by any substantive idea of political morality.