1. Art Of Coming To An Agreement By Mutual Concession

7The first element that Kelsen criticised – „rejecting what divides and promoting links“ – is consistent with the classic definitions of compromises and can be seen as close to the requirement of „reciprocal concessions“. In the general theory of law and the state, Kelsen expressed more directly the idea of „reciprocal concessions“: „Compromise means the resolution of a conflict by a norm that does not fully correspond to the interests of one party or go completely against the interests of others“ (Kelsen 2007: 288). The component of reciprocal concessions expressed in different ways by Kelsen in the General Doctrine of the State (1925), The Essence and Value of Democracy (1929) and The General Theory of Law and the State (1947), is again reflected in later definitions, notably those of Webster`s New Collegiate Dictionary (1951) [9] and Rintala (1969) [10], Nachi (2006) [11], May (2011) [12], Van Parijs (2012) [13], Bellamy (2012) [14] and Fumurescu (2013) [15]. Therefore, this aspect of Kelsen`s definition of compromise is not very original: it corresponds to the definitions of compromise cited above and is not directly related to his democratic theory, unlike other aspects expressed by the Austrian jurist. 1. Art of agreement through reciprocal concessions 26Seund: is self-limitation by the majority majority parties and, therefore, the practice of compromise in representative democracies really self-evident? According to Kelsen, the majority never seems to exclude the minority from the will of the state, for fear of jeopardizing the democratic process. For him, the application of the majority rule is almost naturally accompanied by self-limitation. Hermann Heller was already less optimistic in the interwar period when he stressed that democracies must contain mechanisms of integration. Thus, Heller suggested that relations between majorities and minorities are not necessarily prone to moderation and sink into violent power relations (Heller 2000: 261). While the minority has no realistic prospect of ever coming to power, especially if its minority status has structural characteristics related to religion or language, the majority of them are certainly less incentivized to integrate minority preferences. In 1993, in „Attempting Democracy in the Negotiating State,“ Fritz Scharpf reworded Heller`s concerns by recalling that restrictions imposed by the majority are not isolated because they require certain conditions to which Kelsen may not have paid enough attention.

Indeed, the assumption that the majority party (or coalition) limits itself by not imposing on the minority unsustainable costs or norms that violate its identity presupposes a certain degree of identification of the majority with the minority. To draw attention to the necessary identification of the different components of the Community, Scharpf spoke of an „identity us“, which allows the majority not to abuse its power, and it is also possible that the minority perceives the majority vote to which it is subject not as external domination, but as a mechanism for collective decision-making. A deficit of „identity us“ would expose the minority to risks that Scharpf understood very clearly. If societies lack identity, mutual empathy and trust, majority mechanisms risk being used to pursue strict utilitarian, individualistic or particular goals [27]. .

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