ABSTRACT
The ideal of democracy presupposes, according to H. Kelsen, that the law can be shown to be an expression of the collective will of those subject to its rule. However, Kelsen’s legal theory precludes making the validity of law in any way dependent on social facts. The co-originality of rights and democracy, or to put it in Habermasian terms, the co-originality of private and public autonomy, implies that legal subjects must understand themselves as both authors and addressees of the rights through which they give shape to the principle of democracy. And simultaneously the denial of the human rights of those subject to power is the way in which a particular actor will be able to authoritatively occupy the place of power, and preclude the possibility of democratic debate. Human rights are the key to the formation of a democratic polity, and to the reflexive identification, by the subjects of the law, with ‘a people’ as authors of that law.
