Hans Kelsen and the material constitution of democracy

Abstract

This paper aims to assess the relevance of the notion of the material constitution for democratic constitutional theory. It is argued that the concept of material constitution is a useful antidote for narrowly legalistic approaches to constitutional theory, but only if its complexities are properly understood. To achieve such understanding, theorists of the material constitution would do well to rely more strongly than they have thus far on Hans Kelsen’s approach to the material constitution of democracy.