By Carl Schmitt
Constitutional Theory is an important departure from Schmitt’s extra polemical Weimar-era works not only by way of its average tone. via a comparative heritage of constitutional executive in Europe and the us, Schmitt develops an figuring out of liberal constitutionalism that makes room for a robust, self sufficient country. This variation comprises an creation via Jeffrey Seitzer and Christopher Thornhill outlining the cultural, highbrow, and political contexts within which Schmitt wrote Constitutional Theory; they indicate what's precise concerning the paintings, learn its reception within the postwar period, and think about its greater theoretical ramifications. This quantity additionally comprises wide editorial notes and a translation of the Weimar Constitution.
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It is a corporation, overlying and guiding all of society, but comprising and evolving from a great number of legal agreements formed between distinct smaller corporations. The antagonism between these schools was manifest through all the periods of legal codification and foundation between the unification of Germany in 1870–71 and the establishment of the Weimar Republic. Indeed, the major legal documents of the time, especially the Civil Code of 1900 and the Weimar Constitution of 1918–19, might all be seen, in their technical elements, to revolve around uneasy and fluctuating compromises between positivist and organic ideas about the social origins of the state, about its legal construction, and about the validity of law.
Schmitt did not support Papen’s idea of using a state of emergency to institute constitutional reform, first because this would constitute a sovereign, not a commissarial, dictatorship, but also because it might spark outright civil war. Nonetheless, in his opinion, a violation of strict legality in the form of continuing government by decree without new elections was preferable to a Nazi-led government. Hindenburg, however, declined to pursue either alternative, opting instead to request that Hitler, as leader of the largest parliamentary party, form a cabinet that included traditional nationalists, such as Papen, who believed that his presence would serve to moderate Hitler.
Hence, legality is the constitutional determinant and precondition of all legitimacy. The constitution determines legitimacy by placing legal-moral limits on the authority of the state and the exercise of its power, or even by referring to natural-legal norms as it checks the operations of the state. Schmitt argues, however, that this relation between law and power is badly misconceived in Kantian philosophy. Legality, for Schmitt, is a formal condition that must be given meaning and content by a prior structure of legitimacy: legitimacy is obtained only through the representation of the unified will or the historical existence of the people, and this must be presupposed as the origin of the constitution, and indeed of all law.