http://dx.doi.org/10.18778/8088-410-6.07 Chapter VII Some misunderstandings concerning Hans Kelsen’s concepts of democracy and the rule of law Monika Zalewska * Although Hans Kelsen’s Pure Theory of Law is arguably one of the most inluential theories of law in Europe, it has been occasionally misunderstood. One of the most common misunderstandings is the claim that Kelsen’s concept of the Rechtstaat (the rule of law) legitimizes any regime, the Nazi one included. 1 This misunderstanding stems from the fact that Kelsen ascribed a double meaning to the concept of Rechtsstaat. While in a broad sense, Kelsen identiied every legal order and state with Rechtsstaat, and that meaning is recalled by Holmes, he also recognized the classical meaning of the Rechtsstaat in the narrow sense, which corresponds with the concept of the rule of law. 2 The aim of this paper is to analyze the basis of this fundamental misunderstanding and demonstrate that on the contrary, Kelsen was one of the strongest supporters of democracy of that time. It will involve the analysis of several concepts, such as the pure theory of law, as well as the constitutional and political theories which Kelsen developed during his lifetime. The greatest emphasis will be placed on Kelsen’s theory of democracy, since its detailed and precise construction is the best evidence it could not act as a justiication for the Nazi regime. This confusion stems from the fact that Kelsen’s theory of democracy is very often wrongfully ascribed to the pure theory of law, which has a different aim and a very general character. An analysis of democracy demands * University of Lodz. 1 See: e.g. S. Holmes, Kelsen, Hans, in: Seymour Martin Lipset (ed.), The Encyclopedia of Democracy, Vol. 2, Routledge, London, p. 698. 2 See also: Stanley L. Paulson, Hans Kelsen and Carl Schmitt: Growing Discord, Culminating in the ‘Guardian’ Controversy of 1931 , in: Jens Meierhenrich, Oliver Simons (eds.), The Oxford Handbook on Carl Schmitt, Oxford University Press, Oxford, http://www.oxfordhandbooks.com/view/10.1093/ oxfordhb/9780199916931.001.0001/oxfordhb-9780199916931-e-34 (access: 30.11.2016), p. 12–13.