Lukina on Beyond Political Decisionism and Legal Normativism: Schmittian-Kelsenian Synthesis

Anna Lukina, London School of Economics & Political Science, has published Beyond Political Decisionism and Legal Normativism: Schmittian-Kelsenian Synthesis. Here is the abstract.

Hans Kelsen and Carl Schmitt, two most prominent legal minds of the interwar era, are always imagined as antagonists as they repeatedly clashed on the relationship between the law and the state. To Kelsen, the state and the legal order shared the same space, as the former could not exceed the latter. To Schmitt, every sovereign had a latent power to declare an emergency and set the law aside. Nevertheless, their two stances are similar in their convergence against attempts to mix moral and legal validity. As a result, in exploring how the law and the state interact, one can draw on the best of both positions by looking at that relationship on two levels. In normal circumstances – when we look at the boundaries of the legal order – one can easily adopt a modified version of the Kelsenian positivist picture to identify its content. In the situation of exception, when emergency action is required, this legal order can, as per Schmitt, be transcended. Adopting this mixed ‘Schmittian-Kelsenian’ stance would be preferable in both descriptive and normative terms, as both law and politics are and should be equally important and do not exclude each other, but work together.

Download the article from SSRN at the link.