The Crisis of Democracy and the Legitimate Rule of Law: Kelsen, Populism, and the Politics of Recognition

Abstract

RESEARCH OBJECTIVE: This essay examines how deliberation and recognition contribute to our understanding of democracy as a form of government combining two sources of legitimacy, one based on a legal procedure and the other based on ideological faith commitment.
 THE RESEARCH PROBLEM AND METHODS: Although joint deliberation about policy aims and recognition of person’s political identities are often assumed to be complementary (Habermas, 1996; Honneth, 2014; Taylor, 1994), I argue that this need not be the case. Political identities oriented by faith commitments pose a challenge to deliberation oriented by rational compromise. A one-sided emphasis on deliberation or recognition as exclusive sources of democratic legitimation threatens to debase the res publica to an arena of identity politics whose populist proclivities are antithetical to liberal democracy. Exacerbating this trend is the phenomenon of political polarization caused in large part by the economic stratification and socio-cultural fragmentation of a global, digital form of capitalism. My method for examining and resolving the problem relies on notable philosophers who have written about the legal and political implications of deliberation and the politics of recognition: Charles Taylor, Jürgen Habermas, and Hans Kelsen.
 THE PROCESS OF ARGUMENTATION: The paper begins by summarizing the importance of recognition for political life and its ambivalent humanistic and nationalistic (and sub-nationalistic) senses (Part 1). I then turn to Kelsen’s critique of recognition as incompatible with the rule of law, followed by his qualified endorsement of recognition, understood as a necessary political ethos underwriting a liberal, deliberative form of democracy (Parts 2 and 3). Turning to our contemporary democratic crisis, I show how structural transformations within and between political parties and the public sphere have given rise to authoritarian forms of populism (Part 4). I conclude by noting how imperatives within digital capitalism produce ambivalent effects regarding the restoration...