LINO RIZZI 

Il problema della legittimazione democratica in Kelsen e Rousseau

N. 162

Summary — The Kelsenian theory of democracy has historically made itself known in critical contraposition to the Rousseau theory of the direct democracy. The opposition individualizes two requests — the one ethical and the other juridical — of different legitimations, but complementary. Kelsen’s effort is tending to remodel for the modern State a democratic theory which had been considered possible only in small republics, based on the participation and not on the representation. Both the proportional electoral system and the majority principle traduce in the parliamentary form two egalitarian solicitations of the volonté générale: they aim at realizing the maximum degree of democracy through the maximization of the electoral representation. But in the Kelsenian transposition, the aspects that have brought to the Rousseau theory the qualification of boundless democracy, more than being exceeded, it seems to have changed form. Through the identification of the general theory of democracy with the special theory of the juridical order the sovereignty assumes the aspect of an elusive generality. The comparison articulates in five points: 1) the principle of autonomy; 2) the criticism of subjective rights; 3) the principle of majority and the inalienability of rights; 4) the representation and the impossibility of the mandate; 5) the relation between democracy and society.