Notes

• [1]
  Sandrine.Baume@unil.ch
• [2]
  In 1979, Joseph H. Carens (123) indicated that “the first definition of ‘compromise’ [was] offered by Webster’s New Collegiate Dictionary (1951)”. Kelsen’s first unnoticed definition of compromise was given in Allgemeine Staatslehre (1925). Note that Nancy Rosenblum mentioned Kelsen and his valorisation of compromise in two specific notes in On the Side of the Angels (2008: n. 109, p. 473).
• [3]
  See (Heller 2000: 261).
• [4]
  See (Smend 1994: 475-481).
• [5]
  See (Jacobson, Schlink 2000: 20).
• [6]
  See (Schmitt 1988: 20).
• [7]
  “Since the Reichstag had no direct influence on the formation of a cabinet, the German parties had developed stubborn ideological convictions and a strong oppositional spirit. They lacked the ability to compromise, let alone to take practical responsibility […]” (Schoenberger, 2000: 112-113).
• [8]
  These five elements are extracted from this occurrence: “Kompromiss aber bedeutet: Zurückstellen dessen, was die zu Verbindenden trennt, zugunsten dessen, was sie verbindet. Jeder Tausch, jeder Vertrag ist ein Kompromiss; denn Kompromiss bedeutet: sich vertragen. Alle soziale Integration ist letzten Endes nur durch Kompromiss möglich. Die Majorität selbst kann ja nur durch solches Kompromiss entstehen. Das abfällige, ja verächtliche Urteil, das nicht selten über das Prinzip des Kompromisses und eine kompromissgeneigte Haltung geäussert wird, stammt nicht aus der Ideologie der Freiheit, nicht aus dem Gedanken der Selbstbestimmung” (Kelsen 1925: 324).
• [9]
  Compromise is defined as “a settlement of differences by arbitration or by consent reached by mutual concession” in Webster’s New Collegiate Dictionary (1951).
• [10]
  Rintala (1969: 327) described compromise in its positive meaning as an “adjustment to the views of others with the aim of common action”.
• [11]
  See also (Nachi 2006: 143–74).
• [12]
  Here is the full definition of compromise that May gave: “This definition [of compromise] captures three essential features of the core meaning of compromise: it is (i) a collective action concept involving (ii) support for an inferior position motivated by (iii) the presence of disagreement between parties” (May 2011: 583).
• [13]
  “To be able to say what constitutes a good compromise, we must first know what a compromise consists of. I shall here adopt a broad and value-neutral definition which is in line with the common usage of the French noun ‘compromis’ and the English noun ‘compromise’: a compromise is an agreement that involves mutual concessions” (Van Parijs 2012: 467, emphasis in the original).
• [14]
  “According to the standard definition, compromise involves disagreement between two or more people who need to make a collective decision, in which all parties settle for less than they believe they are entitled to” (Bellamy 2012: 448).
• [15]
  See n. 16.
• [16]
  “Compromise is a word of Roman origin, designating a reciprocal promise (a co-promise) to solve a dispute by abiding by the decision of an impartial third party, a compromissarius. It was a verbal contract meant primarily to avoid the hassle of a formalized court of justice, and for this reason it was rather popular, especially during the early Middle Ages. It later acquired a second, mostly forgotten, meaning as a method of election, mainly but not exclusively inside the Church. In both cases, the selected compromissarius served as a representative for the parties or the communities involved. These basic facts are rather well known, at least by specialists” (Fumurescu 2013: 4-5).
• [17]
  See (Kelsen 1925: 324).
• [18]
  This element of moderation is also visible in the words of another very zealous defender of compromise, John Stuart Mill: “An indispensable requisite in the practical conduct of politics … is the readiness to compromise, a willingness to concede something to opponents and to shape good measures so as to be as little offensive as possible to persons of the opposite view” (Mill 1977: 514).
• [19]
  See n. 24.
• [20]
  By “hypostatize”, Kelsen means to change one category into another—in this instance, an abstraction into a real entity.
• [21]
  “First of all, basic harmony of interests in all areas does not exist right from the start in any human society; such harmony must be created through constant, continually renewed compromise, as even the most subordinate differences of opinion can become vital conflicts of interest” (Kelsen 2000: 103).
• [22]
  “The majority principle is rejected because – rightly or wrongly – the compromise for which the majority principle provides the requirements is rejected” (Kelsen 2000: 103).
• [23]
  “[Yet] in practice, compromise constitutes a real approximation to the unanimity that the idea of freedom demands in the development of the social order by its subjects, and, hence, the majority principle, in accordance with the idea of political freedom, proves valuable in this regard as well” (Kelsen 2013: 76)
• [24]
  “The mechanics of democratic institutions are directly aimed at raising the political emotions of the masses to the level of social consciousness, so that they can dissipate. Conversely, the social equilibrium in an autocracy rests on the repression of these political emotions into a sphere, which may be compared to the subconscious on the individual psychological level. This easily leads—if one wants to use the modern psychoanalytic theory of repression—to a heightened disputation towards revolution” (Kelsen 2013: 74).
• [25]
  This is more process-oriented: “Kompromiss aber bedeutet: Zurückstellen dessen, was die zu Verbindenden trennt, zugunsten dessen, was sie verbindet” (Kelsen 1925: 324), but this is more outcome-oriented: “Jeder Tausch, jeder Vertrag ist ein Kompromiss; denn Kompromiss bedeutet: sich vertragen” (Kelsen 1925: 324).
• [26]
  “They may be bridged by compromise in some cases but not in others. Americans who say, ‘We want this country to arm to its teeth and then to fight for what we conceive to be right all over the globe’ and Americans who say, ‘We want this country to work out its own problems, which is the only way it can serve humanity’ are facing irreductible differences of ultimate values which compromise could only maim and degrade” (Schumpeter 2012: 427-428).
• [27]
  See (Scharpf 1993: 26).
• [28]
  When Kuflik elaborated the relations between morality and compromise, he considered, notably, that “from a moral standpoint, some claims are non-negotiable” (Kuflik 1979: 38).
• [29]
  “Here, suspicion arises that a true democrat is a person without any sense of the limits of legitimate compromise and that a morality of ‘pure compromise’ is at the foundation of democratic theory” (Kuflik 1979: 41).
• [30]
  I took this expression from (Kuflik, 1979: 39).
• [31]
  This is in opposition to Mill, who assumed that the opposition to opinions and measures among politicians contains elements of truth according to his “fallibility argument” (Thompson 2007: 172, n. 15). This caused Mill to say that: “In politics, again, it is almost a commonplace, that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity” (Mill 2015: 47).