Publicity and Transparency The Status of Representation and Political Visibility in Kelsen and Schmitt John Pitseys From 1920 to 1933, the political crisis of the Weimar Republic was accompanied by a questioning of the dominant legal theory: legal positivism. The debate at the time between Carl Schmitt and Hans Kelsen was not only a manifestation of two views of law, the Constitution, or political representation. The theme of political visibility also played a primordial role. To what degree does representation actually stand for the people represented? In this regard, what is the difference between political publicity and transparency, and what are the consequences in terms of political legitimacy? Schmitt criticizes the liberal view of political publicity, setting it against a general principle of transparency. Kelsen, however, rejects the principle of transparency, while distancing himself from the elitist liberal ideas of political publicity. In both cases, the status that the two authors assign to the law helps to clarify their view of political visibility, and their view of political visibility helps to clarify their divergences on what constitutes democratic legitimacy. 1 In this way, the discussion echoes the contemporary debates on the necessity (or not) of transparency or political publicity. Based on this, we will first attempt to retrace the key features of Schmitt’s criticism of the Kelsenian view of law and the liberal principle of publicity. We will then describe the theoretical and political program that Schmitt promoted instead, and the underlying notion of political visibility. Schmitt considered it necessary to reject the liberal principle of publicity in favor of a political ideal of transparency, which was both a necessary condition for and the aim of the unity of the people and the manifestation of political truth. Finally, we will return to Kelsen’s work to show how his understanding of political visibility differs from the liberal understanding and from 1 Pasquale Pasquino, “Penser la démocratie: Kelsen à Weimar” in Carlos -Miguel Herrera (ed.), Le droit, le politique. Autour de Max Weber, Hans Kelsen, Carl Schmitt , Paris, L’Harmattan, 1995, pp. 119-32.