The Legal Theory of Carl Schmitt

Author: Mariano Croce,Andrea Salvatore

Publisher: Routledge

ISBN: 1136220666

Category: Law

Page: 213

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The Legal Theory of Carl Schmitt provides a detailed analysis of Schmitt’s institutional theory of law, mainly developed in the books published between the end of the 1920s and the beginning of the 1930s. By reading Schmitt’s overall work through the lens of his institutional turn, the authors offer a strikingly different interpretation of Schmitt’s theory of politics, law and the relation between these two domains. The book argues that Schmitt’s adhesion to legal institutionalism was a key theoretical achievement, based on serious reconsideration of the main flaws of his own decisionist paradigm, in the light of the French and Italian institutional theories of law. In so doing, the authors elucidate how Schmitt was able to unravel many of the impasses that affected his previous conceptual framework. The authors also make comparisons between Schmitt and other leading legal theorists (H. Kelsen, M. Hauriou, S. Romano and C. Mortati) and explain why the current legal debate should take into serious account his legacy.

Carl Schmitt

The End of Law

Author: William E. Scheuerman

Publisher: Rowman & Littlefield

ISBN: 9780847694181

Category: Philosophy

Page: 345

View: 6819

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This is the first full-length study in English of twentieth-century Germany's most influential authoritarian right-wing political theorist, Carl Schmitt, that focuses on the central place of his attack on the liberal rule of law. This is also the first book in any language to devote substantial attention to Schmitt's subterranean influence on some of the most important voices in political thought (Joseph Schumpeter, Friedrich A. Hayek, and Hans Morgenthau) in the United States after 1945. Visit our website for sample chapters!


Carl Schmitt

Law as Politics, Ideology and Strategic Myth

Author: Michael G. Salter

Publisher: Routledge

ISBN: 1136452141

Category: Law

Page: 312

View: 3239

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There continues to be a remarkable revival in academic interest in Carl Schmitt's thought within politics and social theory but this is the first book to address his thought from an explicitly legal theoretical perspective. Transcending the prevailing one-sided and purely historical focus on Schmitt’s significance for debates that took place in the Weimar Republic 1919-1933, this book addresses the actual and potential significance of Schmitt's thought for controversies within contemporary Anglo-American legal theory that have emerged during the past three decades. These include: the critique of liberal forms of legal positivism; the relative ‘indeterminacy’ of legal doctrine and the need for an explicitly interpretative approach to its range of meanings, their scope and policy rationale; the centrality of discretion and judicial law-making within the legal process; the important role played by ideological prejudices and assumptions in legal reasoning; the reinterpretation of law as a form of strategically disguised politics; the legal theoretical critique of universalistic approaches to "human" rights and associated liberal-cosmopolitan 'ideologies of humanity,' including the rhetoric of 'humanitarian intervention'; and the limitations of liberal constitutionalism and liberalism more generally as an approach to law. In Carl Schmitt: Law as Politics, Ideology and Strategic Myth, the author provides an overview and assessment of Schmitt's thought, as well as a consideration of its relevance for contemporary legal thought and debates.

Legality and Legitimacy

Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar

Author: David Dyzenhaus

Publisher: Oxford : Clarendon Press

ISBN: N.A

Category: Germany

Page: 283

View: 8443

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The relationship between law and legitimacy is investigated in this book. The legal theories of three eminent public lawyers of the Weimar era are analyzed and the problems they address of legal and political order in a crisis-ridden modern society remain relevant to contemporary legal debates.

Constitutional Theory

Author: Carl Schmitt

Publisher: Duke University Press

ISBN: 9780822390589

Category: Law

Page: 488

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Carl Schmitt’s magnum opus, Constitutional Theory, was originally published in 1928 and has been in print in German ever since. This volume makes Schmitt’s masterpiece of comparative constitutionalism available to English-language readers for the first time. Schmitt is considered by many to be one of the most original—and, because of his collaboration with the Nazi party, controversial—political thinkers of the twentieth century. In Constitutional Theory, Schmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory of constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe. Constitutional Theory is a significant departure from Schmitt’s more polemical Weimar-era works not just in terms of its moderate tone. Through a comparative history of constitutional government in Europe and the United States, Schmitt develops an understanding of liberal constitutionalism that makes room for a strong, independent state. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Constitutional Theory; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications. This volume also contains extensive editorial notes and a translation of the Weimar Constitution.

Comparative History and Legal Theory

Carl Schmitt in the First German Democracy

Author: Jeffrey Seitzer

Publisher: Greenwood Publishing Group

ISBN: 9780313307928

Category: History

Page: 165

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Seitzer seeks to provide a more effective criticism of Schmitt than commentaries that focus on Schmitt's treatment of key works and concepts in legal and political theory. He elaborates a concrete form of normative theory, which uses comparative history to identify and test institutional changes that enhance the overall system's capacity for self-correction.

Legality and Legitimacy

Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar

Author: David Dyzenhaus

Publisher: Oxford University Press

ISBN: 0198298463

Category: Law

Page: 283

View: 2279

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This book investigates one of the oldest questions of legal philosophy---the relationship between law and legitimacy. It analyses the legal theories of three eminent public lawyers of the Weimar era, Carl Schmitt, Hans Kelsen, and Hermann Heller. Their theories addressed the problems of legal and political order in a crisis-ridden modern society and so they remain highly relevant to contemporary debates about legal order in the age of pluralism. Schmitt, the philosopher of German fascism, has recently received much attention. Kelsen is well-known as one of the main exponents of the philosophy of legal positivism. Heller is virtually unknown outside Germany. Dyzenhaus exposes the dangers of Schmitt's legal philosophy by situating it in the legal context of constitutional crisis to which he responded. He also points out the severs inadequacies of Kelsen's legal positivism. In a wide-ranging account of the predicaments of contemporary legal and political philosophy, Heller's position is argued to be the most promising of the three.

Legality and Legitimacy

Author: Carl Schmitt

Publisher: Duke University Press

ISBN: 0822385767

Category: Law

Page: 211

View: 9396

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Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society. Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.

Carl Schmitt's State and Constitutional Theory

A Critical Analysis

Author: Benjamin Schupmann

Publisher: Oxford University Press

ISBN: 0198791615

Category: History

Page: 232

View: 1738

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Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.

The Oxford Handbook of Carl Schmitt

Author: Jens Meierhenrich,Oliver Simons

Publisher: Oxford University Press

ISBN: 0199916934

Category: Philosophy

Page: 828

View: 2139

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The Oxford Handbook of Carl Schmitt collects thirty original chapters on the diverse oeuvre of one of the most controversial thinkers of the twentieth century. Uniquely located at the intersection of law, the social sciences, and the humanities, it brings together sophisticated yet accessible interpretations of Schmitt's sprawling thought and complicated biography.

The Legal Order

Author: N.A

Publisher: Taylor & Francis

ISBN: 1351674390

Category:

Page: N.A

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First published in 1917 (Part 1) and 1918 (Part 2), with a second edition in 1946, this is the first English translation of Santi Romano's classic work, L'ordinamento giuridico (The Legal Order). The main focus of The Legal Order is the notion of institution, which Romano considers to be both the core and distinguishing feature of law. After criticising accounts of the nature of law centred on notions of rule, coercion or authority, he offers a compelling conception, not merely of law as an institution, but of the institution as 'the first, original and essential manifestation of law'. Romano advances a definition of a legal institution as any group who share rules within a bounded context: for example, a family, a firm, a factory, a prison, an association, a church, an illegal organisation, a state, the community of states, and so on. Therefore, this understanding of legal institutionalism at the same time provides a ground-breaking theory of legal pluralism whereby 'there are as many legal orders as institutions'. The acme of a jurisprudential current long overlooked in the Anglophone environment (Romano's work is highly regarded in France, Germany, Spain and South America, as well as in Italy), The Legal Order not only proposes what Carl Schmitt described as a 'very significant theory'. More importantly, it offers precious insights for a thorough rethinking of the relationship between law and society in today's world.

Carl Schmitt and the Jews

The "Jewish Question," the Holocaust, and German Legal Theory

Author: Raphael Gross

Publisher: N.A

ISBN: 9780299222406

Category: History

Page: 347

View: 4582

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German jurist and legal theorist Carl Schmitt (1888-1985) significantly influenced Western political and legal thinking in the last century, yet his life and work have also stirred considerable controversy. While his ideas have been used and diffused by prominent philosophers on both the left and the right, such as Jürgen Habermas and Leo Strauss, his Nazi-era past, especially his active efforts to remove Jewish influence from German law, has cast a cloud over his life and oeuvre. Still, his many supporters have generally been successful in claiming that Schmitt's was an "antisemitism of opportunity," a temporary affectation to gain favor with the Nazis. In Carl Schmitt and the Jews, available in English for the first time, historian Raphael Gross vigorously repudiates this "opportunism thesis." Through a reading of Schmitt's corpus, some of which became available only after his death, Gross highlights the importance of the "Jewish Question" on the breadth of Schmitt's work. According to Gross, Schmitt's antisemitism was at the core of his work--before, during, and after the Nazi era. His influential polarities of "friend and foe," "law and nomos," "behemoth and Leviathan," and "ketechon and Antichrist" emerge from a conceptual template in which "the Jew" is defined as adversary, undermining the Christian order with secularization. The presence of this template at the heart of Schmitt's work, Gross contends, calls for a major reassessment of Schmitt's role within contemporary cultural and legal theory.

Emergency Powers in Theory and Practice

The Long Shadow of Carl Schmitt

Author: Michael Head

Publisher: Taylor & Francis

ISBN: 1134795297

Category: Law

Page: 256

View: 8073

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Why have the early years of the 21st century seen increasing use of emergency-type powers or claims of supra-legal executive authority, particularly by the Western countries regarded as the world's leading democracies, notably the United States? This book examines the extraordinary range of executive and prerogative powers, emergency legislation, martial law provisos and indemnities in countries with English-derived legal systems, primarily the UK, the US and Australia. The author challenges attempts by legal and academic theorists to relativise, rationalise, legitimise or propose supposedly safe limits for the use of emergency powers, especially since the September 2001 terrorist attacks. This volume also considers why the reputation of Carl Schmitt, the best-known champion of 'exceptional' dictatorial powers during the post-1919 Weimer Republic in Germany, and who later enthusiastically served and sanctified the Nazi dictatorship, is being rehabilitated, and examines why his totalitarian doctrines are thought to be of relevance to modern society. This diverse book will be of importance to politicians, the media, the legal profession, as well as academics and students of law, humanities and politics.

Political Theology

Four Chapters on the Concept of Sovereignty

Author: Carl Schmitt

Publisher: University of Chicago Press

ISBN: 9780226738901

Category: Political Science

Page: 116

View: 3584

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Written in the intense political and intellectual tumult of the early years of the Weimar Republic, Political Theology develops the distinctive theory of sovereignty that made Carl Schmitt one of the most significant and controversial political theorists of the twentieth century. Focusing on the relationships among political leadership, the norms of the legal order, and the state of political emergency, Schmitt argues in Political Theology that legal order ultimately rests upon the decisions of the sovereign. According to Schmitt, only the sovereign can meet the needs of an "exceptional" time and transcend legal order so that order can then be reestablished. Convinced that the state is governed by the ever-present possibility of conflict, Schmitt theorizes that the state exists only to maintain its integrity in order to ensure order and stability. Suggesting that all concepts of modern political thought are secularized theological concepts, Schmitt concludes Political Theology with a critique of liberalism and its attempt to depoliticize political thought by avoiding fundamental political decisions.

Law as Politics

Carl Schmitt's Critique of Liberalism

Author: David Dyzenhaus

Publisher: Duke University Press

ISBN: 9780822322443

Category: Philosophy

Page: 318

View: 5114

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Articles previously published in the Canadian journal of law and jurisprudence.

Constitutional Failure

Carl Schmitt in Weimar

Author: Ellen Kennedy

Publisher: Duke University Press

ISBN: 9780822332435

Category: History

Page: 256

View: 9453

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DIVThe author's argument that Carl Schmitt's critique of Weimar Republic liberalism cannot be countered by reforming liberalism is also a contribution to current political theory and an analysis of contemporary liberalism./div

Spatiality, Sovereignty and Carl Schmitt

Geographies of the Nomos

Author: Stephen Legg

Publisher: Routledge

ISBN: 113671779X

Category: Political Science

Page: 320

View: 8050

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The writings of Carl Schmitt are now indissociable from both an historical period and a contemporary moment. He will forever be remembered for his association with the National Socialists of 1930s Germany, and as the figure whose writings on sovereignty, politics, and the law provided justification for authoritarian, decisional states. Yet at the same time, the post-September 11th 2001 world is one in which a wide range of scholars have increasingly turned to Schmitt to understand a world of "with us or against us" Manichaeism, spaces of exception which seem to be placed outside the law by legal mechanisms themselves, and the contestation of a uni-polar, post-1989 world. This attention marks out Schmitt as one of the foremost emerging theorists in critical theory and assures his work a large and growing audience. This work brings together geographers, and Schmitt experts who are attuned to the spatial dimensions of his work, to discuss his 1950 work The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Explaining the growing audience for Schmitt’s work, a broad range of contributors also examine the Nomos in relation to broader debates about enmity and war, the production of space, the work of Michel Foucault and Giorgio Agamben, and the recuperability of such an intellect tainted by its anti-Semitism and links to the Nazi party. This work will be of great interest to researchers in political theory, socio-legal studies, geopolitics and critical IR theory

The Public International Law Theory of Hans Kelsen

Believing in Universal Law

Author: Jochen von Bernstorff

Publisher: Cambridge University Press

ISBN: 1139488589

Category: Law

Page: N.A

View: 5956

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This analysis of Hans Kelsen's international law theory takes into account the context of the German international legal discourse in the first half of the twentieth century, including the reactions of Carl Schmitt and other Weimar opponents of Kelsen. The relationship between his Pure Theory of Law and his international law writings is examined, enabling the reader to understand how Kelsen tried to square his own liberal cosmopolitan project with his methodological convictions as laid out in his Pure Theory of Law. Finally, Jochen von Bernstorff discusses the limits and continuing relevance of Kelsenian formalism for international law under the term of 'reflexive formalism', and offers a reflection on Kelsen's theory of international law against the background of current debates over constitutionalisation, institutionalisation and fragmentation of international law. The book also includes biographical sketches of Hans Kelsen and his main students Alfred Verdross and Joseph L. Kunz.