Stephen Turner’s Work on Hans Kelsen: Demystifying Realism, Proceduralism, and the Rule of Law in Democratic Theory

Stephen Turner’s revival of Hans Kelsen looks like intellectual housekeeping. Strip away the romance of democracy. Stop invoking the will of the people. Recognize that the rule of law carries no inherent moral content. What remains is procedure: law as a hierarchy of norms, democracy as a method for producing them, administration as the machinery that executes them. This is bracing and, up to a point, honest.
But the purification does not remove politics. It relocates it.
Once legitimacy is defined procedurally, the entire struggle shifts toward control of the procedures themselves. Who writes the rules. Who interprets them. Who applies them. Elections matter, but they are only the entry point into a far more complex system of transformation. Turner calls this the metamorphosis: preferences become laws, laws become administrative acts, and at each stage there is slippage. His word. What he does not press hard enough is that the slippage is not random noise. It is structured by the incentives of the actors doing the transforming.
Inside the administrative state, career advancement depends on avoiding visible failure. Professional norms reward conformity to peer expectations. Agencies compete for jurisdiction, budget, and relevance. Legal ambiguity becomes a resource because it creates room for interpretation. Over time, the administrative layer stops being a neutral transmission belt and becomes a semi-autonomous coalition with its own survival logic. This is the real significance of Turner’s project. He thinks he is demystifying democracy. He is also revealing a new battlefield.
The older democratic myths Turner attacks were not just errors. They were coordination technologies. The will of the people allowed large, diffuse coalitions to align emotionally across lines of class, region, and interest. The rule of law carried symbolic weight that bound citizens to institutions through something stronger than rational calculation. These ideas were imprecise, sometimes incoherent. They were also effective at mobilizing and stabilizing mass participation.
Proceduralism dissolves that layer. It replaces symbolic cohesion with technical legitimacy. The question is no longer whether this is just but whether the correct procedure was followed. That sounds like progress. It is also a narrowing of the field. It privileges actors who can operate inside complex institutional systems and disadvantages those who rely on broad, identity-driven mobilization. Proceduralism selects for a different kind of coalition: high-information, institutionally embedded, expert in the navigation of regulatory and judicial machinery. Lawyers, administrators, policy specialists, and senior judges gain relative power. They occupy the choke points where the metamorphosis actually happens.
This is where the Weberian layer in Turner’s work matters more than he makes explicit. Weber understood that bureaucracies develop their own internal logic. They are not passive instruments. They are status hierarchies, career systems, and sites of competition. If you take that seriously, the administrative state becomes what might be called a prestige economy. Discretion is not just a technical necessity. It is a source of authority. The ability to interpret rules, to decide borderline cases, to shape implementation in ways that cannot be easily reviewed: these become forms of power that others must defer to. Appellate courts, high-level regulatory bodies, and elite law faculties are not neutral institutions. They are sites where interpretive authority is concentrated and contested. The people who dominate these spaces function as the high priests of the procedural order. They do not claim divine right. They claim procedural correctness, which is harder to challenge because you cannot argue with a valid norm the way you argue with an unjust law.
At this point, Turner’s claim that proceduralism is value-free starts to collapse under its own weight. Every procedural system embeds choices: thresholds for evidence, standards of review, definitions of harm, allocation of discretion between agencies and courts. These are not neutral technical details. They shape outcomes in predictable and often intentional ways. But because they are framed as mere procedure, they are insulated from direct political contestation. This is the quiet power of the Kelsenian framework. It allows actors to say, with a straight face, that they are not imposing values. They are simply following the rules. The real work happens one level down, in the design and interpretation of those rules.
The convenient belief problem Turner raised in a different context applies here with some force. Going beyond convenient beliefs is hard and mostly unprofitable. Procedural systems are extremely convenient for the coalitions that already occupy them. They require challengers to learn the language, hire the expertise, and fight on terrain the incumbents designed. This is not conspiracy. It is the normal outcome of institutional path dependence. The system rewards people who can operate within it and punishes those who cannot or will not.
The deeper irony is that Turner’s demystification, intended to make democratic theory more honest, makes the state more fragile. The myths he attacks were not merely decorative. They performed a function: they gave citizens reasons to accept outcomes they had not chosen and would not have chosen. When a group loses a procedural fight under a purely technical legitimacy framework, they lose their standing rather than their argument. The system does not acknowledge their values. It only acknowledges their failure to follow the rules. This breeds a specific kind of resentment, the resentment of someone who played the game and found the referee changing the rules mid-match.
This is where Turner’s framework connects to the populism analysis in Making Democratic Theory Democratic by Stephen Turner and George Mazur. Populist movements happen when procedural mechanisms have failed simultaneously across multiple domains: courts, parties, agencies, and regulatory bodies have all metamorphosed away from the principal’s intent, and the accumulated slippage has become impossible to ignore. The populist demand for accountability is not a threat to democracy in Kelsen’s minimalist sense. It is a demand that the contribution to the revision of coercive norms, which Kelsen treats as the essential core of democratic legitimacy, be restored. Turner knows this. But he does not fully reckon with the fact that his own proceduralism, by making the machinery more visible and more obviously controlled by specific coalitions, accelerates rather than prevents that loss of faith.
The practical implication is not that proceduralism is wrong. Democracy in large, complex societies is unavoidably procedural. There is no return to an authentic expression of a unified people, and pretending otherwise is its own form of mystification. The implication is that proceduralism without accountability mechanisms strong enough to reach the administrative layer is not a stable settlement. It is a temporary advantage for whoever currently occupies the bureaucratic nodes. Turner’s principal-agent analysis points toward the corrective: accountability is not optional decoration on top of procedure. It is as essential to Kelsen’s minimalist definition as the procedures themselves, because without it the contribution to the revision of coercive norms becomes meaningless at every stage below the initial vote.
The real fight, then, is not between values and procedure. It is between coalitions seeking to design, occupy, and control the procedures that turn contested values into binding outcomes. Turner strips away one layer of mystification. The next layer, that the procedures themselves are neutral, remains. Removing it does not require abandoning proceduralism. It requires treating procedural design as the explicitly political act it has always been.