Hans Kelsen and the (Quiet) Power of Intelligence
Stealing secrets. Robert Schuett argues that democratic resilience demands both tolerance—and capable intelligence agencies.
In an era of mounting geopolitical rivalry, internal polarization, and growing concern over democratic resilience, intelligence has returned to the forefront as a critical, but contested, tool of governance.
Whether through covert operations abroad, cyber surveillance, targeted assassinations, or domestic counter-subversion, intelligence agencies—large and small, domestic and foreign, civilian and military—operate at the uneasy intersection of democratic principles and national security imperatives.
In the theory and practice of intelligence, prevailing approaches often follow divergent paths: one guided by the raison d’état logic of traditional realists, the other by a principled rejectionism rooted in liberal constitutionalism and civil rights. Both have deep intellectual roots, yet neither is sufficient.
What is needed today is a democratic theory of intelligence that resists cynical pragmatism without falling into rigid moralism. For this, it is worth revisiting a thinker rarely associated with intelligence debates: Hans Kelsen.
Hans Kelsen is widely recognized for his foundational work in jurisprudence and democratic theory, yet his contributions to questions of state power, security, and political realism and, of late, English School international relations theory, remain underexplored. His emphasis on legality, proceduralism, and tolerance provides a rich and rigorous framework for rethinking the role of intelligence in democratic societies.
The classical realist position offers a starting point. Rooted in a tradition that is said to stretch from Thucydides and Machiavelli to later modern thinkers, realism treats intelligence as an instrument of state survival. Within this logic, activities such as espionage, sabotage, and subversion are justified by the absence of a central authority in international politics. In a world without a sovereign enforcer, states must act preemptively, and at times ruthlessly, to protect themselves.
This logic retains a certain appeal, particularly given today’s strategic climate. Intelligence historian Calder Walton has argued that we are now engaged in a renewed intelligence war, one pitting the democratic West against authoritarian powers such as Russia and China. Within this context, realists maintain, plausibly, that democratic survival requires offensive capabilities, including those provided by intelligence agencies.
From a Kelsenian perspective, however, this position is both analytically crude and normatively shallow. It blurs the line between necessity, legitimacy, and legality, between power and rightful authority. Worse still, it risks eroding the democratic identity it purports to defend.
Hans Morgenthau, Kelsen’s former student and one of the twentieth century’s most incisive realists, grasped this danger. In a 1967 essay, “How Totalitarianism Starts: The Domestic Involvement of the CIA,” he criticized the CIA’s covert manipulation of domestic student groups—not simply as bureaucratic overreach, but as a betrayal of the moral distinction between democracy and its adversaries. For Morgenthau, a democracy confident in its own strength would not need to sacrifice its legitimacy and legality through clandestine actions.
A contrasting view to the realist position comes from what might be called the rejectionist camp. These critics, particularly prominent in post-war Germany, contend that intelligence agencies are structurally incompatible with democratic principles. Operating in secrecy, evading public scrutiny, and often relying on morally and legally questionable methods, they are seen as undermining democratic accountability. As Claus Leggewie and Horst Meier have argued, the proper defense of democracy lies in its legal institutions, civil society, transparent political processes, proper police work, and not in clandestine surveillance or covert coercion.
While rooted in principled concerns, this position has significant limitations. It risks conflating the potential for abuse with its inevitability and offers little in the way of viable alternatives for addressing covert threats that operate beyond the reach of public institutions. A democracy that abandons intelligence altogether may find itself dangerously vulnerable to adversaries unconstrained by such legal or moral commitments. In such a scenario, it would be navigating the world without instruments to detect danger.
The alternative lies in a Kelsenian middle position: one that avoids both excessive trust in intelligence and categorical rejection of it, grounding its legitimacy in law and democratic procedure.
A Kelsenian approach begins with four foundational principles of democracy: pluralism of interests and ideas; constitutionalism grounded in the rule of law; epistemological and moral relativism; and proceduralism as the core of legitimate political decision-making. This is a deliberately “thin” theory of democracy. It does not require citizens to subscribe to any single moral or ideological worldview. Instead, it obliges the state to uphold neutrality, tolerance, and legality.
A key feature of Kelsen’s theory is its insistence on tolerating even anti-democratic voices. A democracy, he argues in “What is Justice?,” must accept—however reluctantly—the peaceful expression of ideas that challenge its own foundations. This is not a weakness but a mark of democratic strength. What distinguishes democracy from autocracy is its willingness to permit dissent without resorting to suppression.
Still, there is a clear and necessary limit, or a red line.
Kelsen recognized that when dissent crosses into the planning or incitement of violence against the constitutional order, the situation fundamentally changes. When speech becomes a precursor to subversion, the democratic state is justified in defending itself. Drawing the boundary between legitimate dissent and incipient violence is never simple, and the risk of overreach is real.
Yet that risk does not negate the need for such a boundary. The strength of democracy lies in its willingness to navigate that uncertainty—openly and without compromising its principles.
This is the constitutional space in which intelligence agencies can operate legitimately. Intelligence is not a license to repress dissent or monitor ideological deviation. It is a legal-administrative function, aimed at identifying and preventing violence and usurpation. In Kelsenian terms, intelligence belongs to the broader coercive apparatus of the state, like the police or judiciary, and therefore must be bound by strict legal constraints, political oversight, and judicial review.
Yet here lies the danger. Intelligence agencies are perhaps the most vivid example of the principal-agent problem in democratic governance. They are entrusted with extraordinary discretionary powers, operate in secrecy, and are subject to some of the weakest forms of public accountability.
In practice, their loyalties often drift, shaped less by democratic oversight than by internal norms and strategic subcultures. This makes them both essential and deeply precarious: they can become political instruments with agendas that exceed, or even subvert, their original mandates.
This understanding has practical implications. Consider Germany’s Trennungsgebot—or “separation rule,” the post-war legal principle that separates police and intelligence functions to prevent abuse of power. While not perfect, it reflects a Kelsenian sensitivity to institutional structure and democratic risk.
Likewise, when the former head of Germany’s domestic intelligence agency, Hans-Georg Maassen, came under official surveillance for alleged right-wing extremism, it was not just a political irony. Rather, it has been a constitutional test of whether the system could self-correct without overreaching.
The fact that public debate continues around these matters—including calls to abolish the Bundesamt für Verfassungsschutz (BfV), the Federal Office for the Protection of the Constitution, i.e., the domestic intelligence agency headquartered in Cologne (North Rhine-Westphalia)—suggests the democratic reflex is alive, though far from settled.
On the international level, a Kelsenian perspective encourages a more balanced view of sovereignty, law, and institutional responsibility. Intelligence should be seen not only as a tool of state survival, but also as an actor embedded within international society—one governed by norms, legal frameworks, and shared diplomatic practices. In this context, the English School of international relations offers a useful complement. Its focus on diplomacy, ethics, sociological practice, and historical continuity deepens our understanding of how intelligence can serve not just national security, but international order.
Defending democracy requires steering between the temptations of anything-goes realism and rigid idealism. Intelligence is neither an autonomous shadow power nor an undemocratic evil. It is a political function—nothing more, nothing less. Stealing secrets must be legitimated through law, embedded in democratic institutions, and subject to continuous public scrutiny.
Kelsen’s enduring insight is that democracy draws its strength from self-restraint. A democratic state must tolerate even those who reject its values, but it is not obliged to tolerate violence or subversion. Intelligence, when properly bounded, enables democracies to make that distinction.
Intelligence must therefore serve as both capable shield and sensitive mirror—protecting democratic societies from real threats, while reflecting the constitutional and moral limits they are bound to uphold.
Robert Schuett is co-founder and managing partner at STK Powerhouse, a global risk advisory firm. A former Defence civil servant, he also serves as Chairman of the Austrian Political Science Association and is a long-standing Honorary Fellow at Durham University.
Photo by Tima Miroshnichenko
