Antoni Abat i Ninet, University of Copenhagen, has published The Messianic Phenomenon in Political and Legal Thought: Where Kelsen and Schmitt Match. Here is the abstract.
The theological origin of legal and political concepts has been an accepted belief by figures such as Locke, Hume, Smith, Machiavelli and Hobbes. The list of legal authors can also include Robert Cover´s narrative on legal violence, Fitzpatrick or Sanford Levinson. The constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. In the US example, the flag, the Declaration and the Constitution constitutes the holy trinity of what Tocqueville called “American civil religion”. The drafters of the US Constitution consciously played the role of a civil God; the US Supreme Court developed the role of secular prophets; the Constitution was the sacred tablets; and the people of the United States became the chosen people. As the law was received by Moses on the tablets, so too did the constitution adopt a legal, moral and religious character. This paper focuses on the study of messianism and its application to political and legal-constitutional thought aiming to enlighten some of the elements of Carl Schmitt's conceptualization of the “Sovereign” and Hans Kelsen's definition and legitimacy of the “Basic Norm”. The main goal is to identify theological characters of both theories and to analyse the transposition of mystical elements to the secular world to achieve non-disputed legitimacy.
The paper begins facing a difficult challenge, to find out a comprehensible definition of the messianic idea. The first segment is related to definition and elements of the Jewish spirituality on messianism. To achieve this purpose the paper uses the work of Gershom Scholem as a main baseline, but completed with an historical approach of messianism in the Old Testament, the medieval age and in modern Jewish philosophy. The study of the historical evolution is particularly important in this paper because it reflects the wide variation of meanings, aspects and features that the theory of messianism has suffered. The second section analyses the Christian account on messianism, even that an increasing number of scholars consider that Paul never broke away from Judaism but opposed non-Jewish involvement in the Torah, but encouraging Jesus-believing non-Jews to accept their ethnic identity. The Christian spiritual version of messianism deals mainly with the Gospels and the letters of Paul, with the work of Taubes, Saint Paul and Saint Thomas Aquinas’ Summa Theologica.
Once concluding that messianism is no esoteric or simply mysticism, but a theory than can be transposed to politics and law, the paper goes further with the work of Carl Schmitt and Hans Kelsen. How the political (Schmitt) and legal-constitutional (Kelsen) thought have adapted messianic trends in order to achieve legitimacy, recognition or obedience. The role that the “Sovereign” plays in Carl Schmitt’s apocalyptic political theology is analysed and compared with the position and features that the Messiah develops in Jewish and Catholic mysticisms. The second example, which is at the same time more provocative but also innovative, consists in a comparison of the messianic thought with Hans Kelsen’s “Basic Norm”. More concretely, the redemptory role that the first constitution plays in Kelsen's “Pure Theory of Law” and the “faith” needed to accept the no matter how, the constituent process of the basic norm. The field of the paper is theoretical, the realm of the theory more than in the realm of praxis, the paper does not look for practical intentions even that some of the conclusions may have practical effects in the understanding of our constitutional systems. In this sense, the conceptualization and claims of terms such as “rule of law”, “proportionality” and lately “human dignity” in comparative constitutional law can also be defined as messianic.
The full text is not available from SSRN.