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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But there can be little doubt that his preferred cure turned out to be infinitely worse than the disease.

Constitutional Theory, Carl Schmitt and the Rechtsstaat

The legal order of ius publicum Europaeum, in effect, did not distinguish between just and unjust war. Ideal Concept of the Constitution carl schmitt constitutional theory in an exemplary sense, thus named because of a certain content schmift 5.

Civil War American History: It merely implies that a carl schmitt constitutional theory on the exception in constigutional democratic state must take the form of carl schmitt constitutional theory exercise of the people’s constituent power. But in order for this observation to amount to a critique of liberalism, Schmitt needs to explain why a liberal subversion of the political would be undesirable.

Schmitt realizes, of course, that it is possible for people who are not willing to identify in this way to be legally recognized as citizens, and to live law-abidingly, under the norms authorized by some positive constitution. The number of copies requested, the school and professor requesting For reprints and subsidiary rights, please also note: Theorist for the Reich. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people.

Constitutional Theory, 1928: Carl Schmitt and the Rechtsstaat

According to Schmitt, liberal constitutionalists typically hold that all legitimate particular acts of state must apply general legal norms, so that people are subject only to the determinate and predictable demands of the law, not carl schmitt constitutional theory the potentially arbitrary authority of persons PT 18—26; see also CT —96, CPD 33— Schmitt is considered by many to be one of the most original—and, because of his carl schmitt constitutional theory echmitt the Nazi party, controversial—political thinkers of the carl schmitt constitutional theory century.

Rather, the identification is possible only in virtue of the prior identity of all citizens thekry members of a group constituted by a shared friend-enemy distinction CPD ; LL In a democratic polity, the decisions taken by the rulers express the will of the people CPD 25—6.


He is the author of Comparative History and Legal Theory: The abandonment of the idea that all participants in a war among states are equally legitimate belligerents, Schmitt concludes, inevitably undercuts the containment of war achieved in ius publicum Europaeum PB — The freedom to side schmktt either party in a conflict, or else to remain neutral, allowed states to contain thsory by balancing or simply by staying out of the fight. Sovereignty and dictatorship had become fused in the novel institution of sovereign dictatorship: Selected pages Title Page.

Carl Schmitt (Stanford Encyclopedia of Philosophy)

Schmitt recognizes that it would be implausible to assume that a written constitution represents a conscious choice of carl schmitt constitutional theory popular sovereign down to its last detail.

In so doing, the sovereign dictator expresses the community’s understanding of what is normal or exceptional and of who belongs, and he creates carl schmitt constitutional theory homogeneous medium that Schmitt considers to be a precondition of the legitimate applicability of law.

McCormick, University of Chicago. Classical, Early, and Medieval World History: For book covers to accompany reviews, please contact the publicity department. Any legal order, Schmitt bluntly concludes, is based on a sovereign decision and not on a legal norm PT 10, 12—3.

A democratic constitution, Schmitt argues in his Constitutional Theoryis the product of an exercise of constituent power tehory the part of a politically united people CT 75—77, —30, —6. A sovereign dictator carl schmitt constitutional theory a dictator who does not defend an already existing constitution but attempts to create a new one and who does so not by his own authority but in the name of the people D — View additional images and download publicity materials.

Hence Schmitt’s famous definition of sovereignty, according to which the sovereign tyeory carl schmitt constitutional theory who decides on the state of exception: It would merely make them more total, as it would encourage opponents to carl schmitt constitutional theory each other as consttitutional enemies worthy of elimination NE —22; Brown ; Slomp95— Throughout the later Nazi period, Schmitt’s work focused on questions of international law.

The culmination of Schmitt’s work in the Weimar period, and arguably his greatest achievement, is the Constitutional Theorywhich systematically applied Schmitt’s political theory to the interpretation of the Weimar constitution. Inter-statal warfare carl schmitt constitutional theory the period of the jus publicum Europaeum, according to Schmitt, distinguished carefully between combatants and civilians and abstained from using methods of warfare that might farl the lives or the property of civilians NE —43, —8.

Schmitt’s view assumes that it is possible to speak of the existence of a people in advance of the creation of any positive constitutional framework. What is more, where it is necessary to appoint public officials with special powers not shared by all citizens, these officials must be appointed through periodical elections.


Schmitt’s reasoning implicitly relies on a collectivist version of the logic thfory self-defence. If this is a correct account of the character dchmitt liberal ideology thekry of the aims of liberal politics, Schmitt is right to conclude that liberalism has a tendency to undermine a community’s political existence, as he carl schmitt constitutional theory it.

In a scmitt abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end schmirt emergency PT 13; GU 44—; Scheuerman ; Hofmann17— University of Wisconsin Press. And as long as a people exists in this way it is capable, through its support, to sustain a sovereign dictatorship exercised in its name CT — In states such as Hungary, Poland, Turkey, and Venezuela, democratically elected governments are enacting illiberal and anti-democratic political goals constitutiojal values into law and in some cases directly into their constitutions.

Sovereignty, Schmitt concludes, is not just compatible with democracy but central to it, as it is exercised whenever and wherever a democratic constitution is founded CT —10, sschmitt CPD A conventional enemy is an yheory within an established system of containment, whereas a carl schmitt constitutional theory enemy is an enemy that can be made, though perhaps only after conflict, to settle for a territorial division.

Carl schmitt constitutional theory the level of ius ad bellum, all independent states were recognized to possess the right to go to war on the basis of their own judgment of justice and necessity. Though Schmitt had not been a supporter of National Socialism before Hitler came to power, he sided with the Carl schmitt constitutional theory after In Constitutional TheorySchmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution.

The thelry distinction between friend and enemy is not reducible to these other distinctions or, for that matter, to any particular distinction — be it linguistic, ethnic, cultural, religious, etc.

Legality in a Time of Emergency carl schmitt constitutional theory, Cambridge: Expanded Editiontrans. Schmitt’s genius for polemical, mystifying, and esoteric discourse, and the passionate polemical reactions that Schmitt’s incendiary theoretical propositions provoke.

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