24 January 2022 ( 13 views )

Majority Principle in Hans Kelsen's Democracy

Majority principle is one of the main topics of Kelsen's idea of democracy and he tries to explain the principle by defining and determining its scope. Kelsen's language of expression has a method of expression based on the opposing views, and this also applies to the majority principle. So much so that while explaining the majority principle, Kelsen explains what the majority principle means from a point of view with his own additions, instead of the definition of majority principle criticized by opposing views.

Definition and Scope of the Policy
According to Kelsen, the majority principle is not only a principle where the decisions of the majority are taken in the name of the majority and these decisions express the absolute will of the majority. According to him, the principle does not stand alone against the criticism of the antidemocracy. First of all, he opposes the idea of ​​a despotic regime in which democracy is ruled by the majority, which Aristotle put forward in his work called Politics. Kelsen rejects the dominance of the majority over the minority and puts forward the idea that the will of the majority is also the will of the minority. According to him, in order to talk about the concepts of majority and minority, these two concepts need each other's existence. He explains this with the words "The majority requires the existence of the minority". Those who make up the majority do this by coming together, despite their differences of opinion, taking into account the conflict of interests. This effect created by the majority principle, which Kelsen defines as the "Power of Social Integration", defines this integration. However, the amount of participation in the will of the people during the formation of the majority is also important for Kelsen. By saying that the majority principle should be able to prevent the domination of a class on the axis of parliamentarism, the majority of people must have a high level of participation in the will of the state in order to implement the understanding of democracy. The idea that the minority should not be under the rule of the majority is formed in line with this basis. Minority differences' views and interests can be ignored to a certain extent, but it is necessary to show a general will by mostly representing both together. In Kelsen's system of thought, the application of the principle of majority does not mean the tyranny of the majority, that is, a domination group, on the contrary, it expresses a common will for the realization of ideal democracy with the union of the minority and the majority. It is not possible to talk about the existence of a common will without the combination of majority and minority views. Likewise, in a situation where the majority acquires its existence due to the minority, since it cannot manifest a will alone, it emerges as a consequence of the existence of a common will. Otherwise, it will be accepted that the minority has been rendered ineffective by the majority. In this case, it will also be accepted that the participation of the minority in the will of the state is ineffective, and as a result of this ineffectiveness, it will have to be accepted that the existence of the minority cannot be sustained and it will participate in the general will. However, if this happens, there will no longer be two opposite concepts called minority and majority. As a conclusion of the evaluation of these possibilities, Kelsen concludes that in ideal democracy, the decisions and opinions of the majority do not express the absolute will of a single domination group. As a outcome, the existence of the influence of the minority on the will of the majority is accepted and it is determined that the assembly, which we encounter in the parliamentary system, exists for the purpose of these two opposite parties coming together and shaping their will on a common basis.

Practical Application of the Majority Principle and Parliamentarism
Parliamentarism, in his view, is not an absolute value or righteousness that is superior to the interests of groups, but rather a compromise. The implementation of the parliamentary system, which has a conciliation function, is carried out with the proportional participation method. Accordingly, parties or groups will issue representatives within the framework of a system that will be regulated according to the rate of votes they receive from the individuals forming the state so that they can have a say in the parliament. This system is similar to the election and government determination systems used by many states today. As a result of the rates to be determined, the groups that obtain the majority of the votes will be selected. Here, the situation that Kelsen criticizes and describes as a response to opposing views is that the selected groups or parties form a unity that they are not opposed to. The votes obtained provide the right to participate in every opinion at a determined rate, contrary to the minority opposition. The ratio achieved by the majority does not affect the ratio of the representatives of the minority parties and groups in the parliament. There is a system in which everyone elected is elected by everyone's vote and no one is dismissed by anyone else's vote. This constitutes the assurance of the presence of opposition in the parliament in a system where the parliamentary system exists correctly. Contrary to Kelsen, Carl Schmitt is of the opinion that the parliamentary system poses a different problem beyond providing this. "The problem today is not to convince the opponent of what is real or just, but to get a majority in order to dominate." With his words, he draws attention to the existence of the problem of adjudicating the opposition, which constitutes the minority, by gaining the majority rather than the efforts of parties and groups to reconcile. Despite the problem of trying to provide a verdict by accepting the decisions of the majority in the parliament, Kelsen does not accept this and argues that the proportional electoral system should be given the power of representation to the minorities so that they can express their will, and as a result, they have an impact on the opinion of the majority. Another argument of other opposing views, who think like Schmitt, is that the minority parties that make up different views can easily disperse because they will consist of more than one minority in terms of representation power. Kelsen does not have a direct opposing answer to this criticism. This situation is considered normal in the system of implementation of democracy. While small parties put forward opposing views towards the majority, they should do this by diluting them in line with the aim of joining the common will and coming together. With the neglect of the differences to be determined, reconciliation is inevitable. This reconciliatory orientation of parliamentarism is commonplace in Kelsen's ideal democracy. With this conciliatory understanding, Kelsen was exposed to criticism that he defended the absolute dominance of the majority by defending the participation of the opponents in the decisions of the majority, but he explained that the system of thought was not in this direction, arguing the importance of active opponents in terms of the continuity of the functioning of the democratic parliamentary system. Kelsen explained that a parliament under the domination of two parties would not have a place in his ideal democracy; In an environment where the main opposition party and the ruling parties are periodically transformed, the opposition party loses its activity and waits for its turn to power, and as a result, it stops opposing the decisions and ideas of the ruling party and becomes passive as a situation that should not occur in the parliamentary system. Keeping the opposition active is a criterion that must be present in order to talk about the functioning of parliamentarism in its ideal democracy. "The thing called political power is nothing but the organized power used by one class to oppress another class!" Kelsen's argument is against critics such as Karl Marx, who argues that the government aims to dominate the minorities and that parliamentarism is not a solution for the minority and majority classes, but an organized force serving this purpose. that it will cause. According to him, parliamentary democracy has a consensusbased and peaceful basis and constitutes a better alternative. Contrary to the absoluteness of the majority's decisions, ensuring the consensus mechanism of the minority and the majority constitutes the necessity of an ideal democratic regime in this context.

The Problem of Administration and Jurisdiction
Demands for a democratic regime are faced with some implementation problems that are ignored only when the regulations and needs are taken into account within the framework of the legislature. After the democratic parties gained power, they were faced with the need for an organization to implement ideal democracies. As a result of these needs, the democratization of the administrative authority, that is, the executive body, comes to the agenda. In this context, the existence of foundations with the function of assurance against the individual norms of the executive organ is necessary. The executive body, whose high organs are elected by the parliament, has the function of ensuring that it has responsibilities towards the parliament, but this guarantee does not exist alone and is also not sufficient. However, it is also important to determine the system that will serve the assurance function. Studies on the subject are generally on the cabinet system and the directorial system. According to Kelsen, the cabinet system can be said to provide better assurance as a result of the executive function performed by individuals compared to the directorial system. As a result of the assumption that the cabinet system is more functional in terms of security, there is a conflict between the principle of legality and the democratic principle. The opposition between the principle of legality and the democratic principle becomes more evident as a result of the growing need for decentralization.

While the executive has the function of creating individual norms, the legislature creates general norms. With this individual normcreation function of the executive, there is a greater need for decentralization than the legislature. This situation creates the possibility of paralyzing the will created by the legislature, which can be called the will of the whole, by the will of the parties in autonomous administrative circles. The idea of ​​freedom in this context provides protection from the anarchic tendency that would result in the "dispersion of the social whole into its individual atoms". When it comes to the democratization of the executive and the legislature, there is a debate about the existence of an opposition between bureaucracy and democracy. Kelsen does not accept this and even states that bureaucratization means the preservation of democracy in some conditions. Limiting the executive organs to the discretionary power determined by the law is necessary in order to prevent the illegality of this body and to ensure the legality. For the existence of a democratic administration, the determination of this discretion should be carried out in a broad way. The principle of mixed political form, that is, "the form of organization adopted to determine the distribution of the powers in each state, the place of sovereignty and the goal that the political society aims to achieve", and the limitation of the will of the state, which is in a fully democratic formation at the top level, to the lower levels does not pose a danger to democracy. This principle ensures the strengthening of democracy. On the other hand, the norms that should be subject to judicial review are not only individual norms created by the actions of the executive organ. It is necessary for a control mechanism to be valid for the norms formed by the legislation, which constitute the general norm. In addition to checking whether the regulations comply with the law, the constitutionality of the laws should also be checked. The constitutional judiciary should hold the authority of this supervisory duty. In a democracy, respect for the constitution and the constitutionality of laws are of great importance for minorities. The minority should be protected against the arbitrary acts of the majority, and the right to apply directly or indirectly to the judiciary of the constitution should be granted to everyone so that the constitution is not lex imperfecta here. In order for a modern democracy to function, these control mechanisms must come together in a systematic way. “Democracy cannot survive without supervision.” As a result, the principle of legality expresses a limitation. In the event that this limitation is removed, it results that democracy loses its function.

The Debate of “Who is the Protector of the Constitution?” Axis of Kelsen and Schmitt Views
The subject that will be examined under the title of Hans Kelsen and Carl Schmitt is the discussion of "Who is the Protector of the Constitution?" which is the product of a discussion between these two. The subtitles of this discussion are the modern constitution, the formation of the constitutional order, the functions of the constitution and the control of legal norms in cases of emergency in the axis of fundamental rights and freedoms. Although the subjects they deal with are the same, there are sharp differences in the ideas they put forward. The methods of examining the constitutional order and political elements of both thinkers are different from each other. Although both scholars strongly criticize the concept of sovereignty as the omnipotence of the state, which is typical of nineteenth century positivism, and the identification of law with the will of the state as the bearer of supreme power, the solutions correspond to the opposite approaches envisaged in the question of the protector of the Constitution, respectively. Schmitt put forward ideas as a political realist during the Weimar Republic. According to him, the head of state assumes the role of guardian of the constitution. Despite the criticisms directed at him that he was influenced by the oppressive administration approach of his period, Schmitt's argument that he put forward the head of state as the protector of the constitution is not an idea shaped on this plane. Describing the constitution as the material basis of political existence, Schmitt described the institution of the protection of the constitution as a problem of political existence. Schmitt, who examined how the constitutional order was formed and the transition stages to the normative order, adopted different views with Kelsen. According to Kelsen's point of view, it is accepted that the norm is in force and that the legal order is normally established according to the lawstate relationship. Kelsen, unlike Schmitt, does not examine how the constitutional order and legal system are formed.

With an antiliberal understanding, Schmitt argues that the measures taken by the legislator for stability are based on the material content of the constitution. Schmitt, who legitimizes the use of emergency powers for the continuity of the state, also accepts that this power poses a threat to the democratic functioning. However, it also considered it necessary to include the articles that cannot be changed as a guarantee of the constitution in the texts of the constitution. In his examination of the identity of the constitution, he stated that the acquisition of this identity was realized through the people. As a defender of the constitutional judicial system, Kelsen argued that this system forms the basis of the normative legal system and that judicial review is necessary for constitutionality. This constitutional positioning adopted by Kelsen in continental European political systems has the function of ensuring the existence of constitutional judiciary and the assurance of fundamental rights and freedoms outside the parliamentary system. "The rules of law are arranged vertically from top to bottom, seeing one as the source of the other, within the framework of pure law, with the Constitution at the top." The fact that the Constitution proposes a constitutional judicial mechanism as a protector is subject to criticism in terms of neutralizing the will that creates the constitutional order. remained. In Kelsen's answer to the debate on who is the protector of the constitution, it is accepted that the constitution is the result of a social consensus. However, in this case, although this text aims to be free of political and sociological elements, there is a situation where this is not possible in practice. Schmitt's assertion of the head of state as the protector of the constitution creates a mechanism that will directly contribute to the formation and strengthening of an authoritarian state structure. It will not be possible for individual norms to create a guarantee effect on constitutional norms by strengthening the executive. While the expectation of a balancing mechanism is created in democratic administrations with the powers of the powers over each other, in societies where the executive power is stronger, an environment of trust regarding the protection of the constitution is observed, on the contrary, violation of constitutional norms is observed. However, in Kelsen's view of constitutional justice, it is debatable whether systemic corruption will have an effect on the functioning of the supervisory mechanism. It would not be right to expect the constitutional judiciary to make decisions that are far from political and sociological influences and that the decisions to be made will be effective in this direction.

As a result, although there are common denominators and oppositions of Schmitt's putting forward another state, an executive power, as a constitutional protector, and Kelsen's idea that the constitutional judiciary constitutes a guarantee against the executive and the legislature and assumes the guardianship of the constitution, Kelsen's thought system is more applicable in today's examples. is observed. In this context, it is more consistent in terms of applicability that the constitutional judiciary assumes the guardianship in order to implement the democratic ideal. As a result of the two thinkers' works in response to each other, indepth studies on the institution of the protection of the constitution have been put forward.

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