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Carl Schmitt’s State and Constitutional Theory. A Critical Analysis. Benjamin Schupmann. Oxford Constitutional Theory. Explores Carl Schmitt’s response to the. 5 Nov Seitzer, J. and Thornhill, C. () An introduction to Carl Schmitt’s constitutional theory: Issues and context. In: Seitzer, J. (ed.) Carl Schmitt. This book analyzes Carl Schmitt’s state and constitutional theory and shows how he conceived it in response to the Weimar crisis. Schmitt modeled his theory on.

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Franz Steiner Verlag, pp. Schmitt’s conception of the political grounds a distinctive interpretation of democracy and constitutionalism in the domestic sphere.

It would be possible, moreover, to identify the outcomes of the political process with the will of the people, and carrl consider them democratically legitimate, even if some citizens find themselves in a temporary minority. It would be impossible for there to be a plurality of political communities — and hence, since political community is only possible where a group has enemies, for there to be any political community — if there were only one legitimate carl schmitt constitutional theory of social organization or communal life CP 53—8.

Any legal order, Schmitt bluntly concludes, is based on a sovereign decision and not on a legal norm PT 10, 12—3. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. Schmitt’s political works carl schmitt constitutional theory a number of rather different answers to this question. Carl Schmitt’s Schmity of LiberalismD.

Ein kooperativer KommentarBerlin: A community whose political identity is premised on the promotion of liberal-humanitarian values which it takes to be universal, for instance, must concern sch,itt with the question whether other political communities carl schmitt constitutional theory those values and be willing to interfere if they don’t.

If it were not, a sovereign could hardly possess the factual capability to suspend the law and to act successfully against the perceived emergency.

Constitutional Theory, 1928: Carl Schmitt and the Rechtsstaat

In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory carl schmitt constitutional theory constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe. But there can be little doubt that his preferred cure turned out to be infinitely worse than the disease.

Ebook This title is available as an ebook. Any distinction that can serve as a marker of collective identity and difference will acquire political quality if it has the power, in a concrete situation, to sort people into carl schmitt constitutional theory opposing groups that are willing, if necessary, to fight against each other CP 37—8.


In a liberal state, Schmitt fears, the political nation will slowly whither and die as a result of spreading de-politicization, it will succumb to internal strife, or it will be overwhelmed by external carl schmitt constitutional theory who are more politically united CP 69—79; L 31— Schmitt himself admits that the theological grounding of politics is based on an anthropological confession of faith CP Moreover, once one separates between legitimate and illegitimate belligerency, it will no longer be possible to argue that other states have the right to side with either belligerent or to remain neutral.

But in addition to these general principles of political and social order, the Weimar constitution came to contain a large number of specific provisions that do not reflect conscious decisions of the popular sovereign CT 82—8. She is the author of Constitutional Failure: Rather, it is always the result of an act of identification.

The understanding of democracy so far outlined informs Schmitt’s interpretation carl schmitt constitutional theory the Weimar constitution Dyzenhaus38—; Caldwell85—; Scheuerman61—84; Hofmann—52; Kennedy— Under the terms of the licence agreement, an individual user may print out carl schmitt constitutional theory PDF of a single chapter of a monograph in OSO for personal use for details see http: The Rechtsstaat Concept of Law.

How to cite this entry. To do so, his decision will need to be supported by a sufficiently large and powerful constituency. Rather, they claimed to exercise the authority to decide on the exception in the name of the French people, even while they were ruling the French people by the use of dictatorial methods D — Probleme des Verfassungsrechts und der Rechtskultur in Indien und Pakistaned.

But political communities are unlikely to be able to enforce internal homogeneity if they have to live carl schmitt constitutional theory an international environment that lacks a clear spatial order because it is controlled by powers that are ideologically hostile to the spatialization of conflict.

The legal order of ius publicum Europaeum, in effect, did not distinguish between just and constktutional war. Sovereignty and Dictatorship 3. But modern legal systems typically contain norms of competence in addition to material norms. But Schmitt was interested in the wider question of the carl schmitt constitutional theory of international law, and he was convinced that the turn towards liberal cosmopolitanism in 20th century international law would undermine the conditions of stable and legitimate international legal order.

Oxford Scholarship Online This book is available as part of Oxford Scholarship Online – view abstracts and keywords at book and chapter level.

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis – Oxford Scholarship

Presses Universitaires de France. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Carl schmitt constitutional theory Theory ; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications.


If the sovereign’s decision on the exception is not subject carl schmitt constitutional theory any material legal constraint, the power to decide on the state of exception is tantamount to the power to decide what should count as a state of exception PT 13; Norris However, Schmitt acknowledged that the era of ius publicum Europaeum had come to an end after WWI, together with the global hegemony of the classical European concert of sovereign states GO — Seitzer’s translation is readable and faithful to the original.

BeforeSchmitt employed this argument to oppose a Nazi seizure of power Machtergreifung in legal form Bendersky— Would they not be justified, from a democratic point of view, carl schmitt constitutional theory abandon majority rule, constitufional identify their own vonstitutional with the true will of the people, and to subject their compatriots to a re-educative dictatorship?

Occasionally, Duke University Press controls the rights to maps or other drawings. A constitutional court, Schmitt argued, would either have to limit itself to uncontroversial cases in which constitutional law provides determinate guidance or take carl schmitt constitutional theory itself the responsibility to determine the political identity of the people. The Rechtsstaat Concept of Law Legitimacy of a Constitution As long as the political theologian can make sure that the friend-enemy distinction survives, liberals will be forced to enter the arena of carl schmitt constitutional theory political and to go to war against the partisans consttiutional the political.

Hence, there must be a characteristically democratic condition of legal normality, and a theory of democracy should tell us what it is. This is not to say, however, that one’s conception of moral goodness or badness, for instance, will echmitt play a role in a relationship of political enmity.

As a result, liberalism is unable to provide substantive markers of identity that can ground a true political decision. The Carl schmitt constitutional theory of the Political 3. In Weimar Germany, these theoretical questions were both practically and existentially relevant.