Volpi on Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy

Alessandro Volpi, Max Planck Institute fr the Study of Crime, Security and Law, has published Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy as Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2026/01. Here is the abstract.

This paper situates the Carl Schmitt-Hans Kelsen dispute on constitutional guardianship within the now-standard categories of political and legal constitutionalism. It examines the conflict between political and legal understandings of the constitution and of constitutional adjudication, alongside divergent conceptions of democracy that strain this institution (notably, the countermajoritarian difficulty). It begins with a close reconstruction of the Weimar-era debate-its legal and political details-covering competing views of adjudication, the constitution as a set of norms or a political decision, and alternative models of guarantees. Through comparative analysis, the paper then traces lines of continuity and discontinuity between those positions and contemporary discussions of constitutional guardianship within debates over legal versus political constitutionalism. What emerges is the enduring persistence of theoretical alternatives that deeply structure the idea of constitutional guardianship in a democratic system. At the same time, we find differences in interpretation and in proposals for legal politics concerning substantive versus procedural conceptions of the constitution, as well as divergent understandings of democratic conflict and pluralism and their implications for constitutional stability. The paper concludes by showing how certain theoretical contradictions at the heart of constitutional guardianship resist easy resolution and must be inhabited, rather than definitively overcome.

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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.

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Sherwin on The Challenge of Legal Chorology: Rethinking Political Theology

Richard K. Sherwin, New York Law School, has published The Challenge of Legal Chorology: Rethinking Political Theology as NYLS Legal Studies Research Paper No. 4960463. Here is the abstract.

Liberal democracy has historically been associated with an assumption of neutrality concerning religious or moral feelings and beliefs. Illiberal critics like Carl Schmitt have seized on this assumption to argue that moral neutrality deprives liberal democracy of any claim to legitimation or, for that matter, political coherence. But liberal democracy’s core commitment to a creed of freedom among equals belies this critique. As illiberal forms of governance gain strength worldwide, it is incumbent on allies of freedom to articulate a compelling and comprehensive narrative in its defense. To this end, legal chorology brings to light the historical, cultural, emotional, and spiritual conditions under which ‘constitutive power’ founds, transforms, or sweeps away political and legal states. This originary, generative force exceeds, even as it courses through, the names we assign it throughout history. That unbearable excess (“the sacred”) is the defining feature of constitutional over-beliefs. Constitutional over-beliefs embody different clusters of ideas, beliefs, and affective states around which polities arise and cohere. By tracing the rise and fall of discrete, historically privileged, constitutional over-beliefs, legal chorology holds out the prospect of identifying potent cross- cultural and interreligious resources for political belief and commitment. At the same time, reconceiving political theology as a genealogy of the sacred releases the field from Schmitt’s narrow illiberal vision. Liberal democracy, chorologically construed, rests upon an ethical metaphysic that conceives freedom among equals as an offshoot of each other’s infinite worth. As it turns out, liberal democracy’s ethos of epistemological modesty and experiential openness amidst abundance also emulates the very nature and dynamics of khôra herself.

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Bassok on The Absolutist Judiciary @UniofNottingham

Or Bassok, University of Nottingham, Faculty of Law and Social Sciences, has published The Absolutist Judiciary. Here is the abstract.

The judicial authority to strike down constitutional amendments is not an advanced constitutional technology that merely upgrades judicial review. Rather, this authority is part of a jurisprudence of absolute truths that is antithetical to liberal democracy. Treating this authority as a mere technology stands at the core of the attempt to justify it based on fusing the ideas of two of Weimar’s great legal minds, Hans Kelsen and Carl Schmitt. Fusing Schmitt’s ideas with Kelsen’s enabled the transfer of this authority from the president, as Schmitt envisioned, to the constitutional court that Kelsen designated to serve as the guardian of the constitution. Yet, Kelsen rejected the authority to review constitutional amendments because a liberal democratic system cannot include an institution deciding on absolute truths that cannot be changed by the democratic process. Contrary to Kelsen, Schmitt believed that the constitution anchors the fundamental political core truth of the state. Yet, Schmitt rejected the idea that an inherently political function of defending the state’s fundamental political decision can be endowed to the judiciary. I agree that courts may be justified in exceptional and extreme situations to break constitutional constraints—including striking down constitutional amendments—to save democracy from the people. However, the attempt to juridify the authority of reviewing constitutional amendments under a legal doctrine necessarily leads to corruption either of constitutional law as Kelsen predicted or of the judiciary as Schmitt thought. Normalizing the exception by creating a legal doctrine that endows the judiciary with the final say that cannot be amended by any democratic means is the end of liberal democracy, even if it is the judiciary that hands down absolute truths.

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van den Berge on Law, King of All: Schmitt, Agemben, Pindar @UtrechtUni

Lukas van den Berge, Utrecht University, is publishing Law, King of All: Schmitt, Agamben, Pindar in volume 13 of Law and Humanities (2019). Here is the abstract.

Both Carl Schmitt and Giorgio Agamben draw on the ancient Greek concept of nomos as an important element underpinning their legal theories. Aiming to restore that concept to its pre-sophistic meaning, they grant central weight to a piece of poetry in which Pindar famously proclaims that ‘law (nomos) is king of all’, guiding both mortals and immortals while ‘justifying the utmost violence with a powerful hand’. For Schmitt as for Agamben, this means that the Pindaric fragment exposes the violent origins of law that normativist jurisprudence typically shields from view. For one thing, I will explain in this article why Schmitt’s and Agamben’s use of the fragment is at odds with any acceptable interpretation of it in its wider literary and historical context. More importantly, perhaps, my aim is ultimately to reconstruct a Pindaric jurisprudence as it should actually be preferred to that of both Schmitt and Agamben.

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Pottage on Holocene Jurisprudence @LSELaw

Alain Pottage, London School of Economics, has published Holocene Jurisprudence at 10 Journal of Human Rights and the Environment 153 (2019). Here is the abstract.

We are now accustomed to thinking of the Holocene as an epoch that we have left behind. But from what perspective do we close the Holocene and begin describing the Anthropocene? Academic disciplines have their own geology: epistemic or medial strata, sediments or condensations, which condition the apprehension and communication of fresh insight. The phrase ‘Holocene jurisprudence’ draws attention to a particular epistemic sediment: the figure of appropriation or ‘taking’, which is reactivated in many critical commentaries on the Anthropocene. And if, speaking figuratively, one were to identify an index fossil that compellingly expresses the epistemic traditions and potentialities that are sedimented into the Euro-American figure of appropriation, then Carl Schmitt's Nomos of the Earth would be a good candidate.

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Van den Berge on Law, King of All: Schmitt, Agemben, Pindar @UtrechtUni

Lukas van den Berge, Utrecht University, is publishing Law, King of All: Schmitt, Agamben, Pindar in volume 13 of Law and Humanities (2019). Here is the abstract.

Both Carl Schmitt and Giorgio Agamben draw on the ancient Greek concept of nomos as an important element underpinning their legal theories. Aiming to restore that concept to its pre-sophistic meaning, they grant central weight to a piece of poetry in which Pindar famously proclaims that ‘law (nomos) is king of all’, guiding both mortals and immortals while ‘justifying the utmost violence with a powerful hand’. For Schmitt as for Agamben, this means that the Pindaric fragment exposes the violent origins of law that normativist jurisprudence typically shields from view. For one thing, I will explain in this article why Schmitt’s and Agamben’s use of the fragment is at odds with any acceptable interpretation of it in its wider literary and historical context. More importantly, perhaps, my aim is ultimately to reconstruct a Pindaric jurisprudence as it should actually be preferred to that of both Schmitt and Agamben.

Download the article from SSRN at the link.

Bassok on The Mysterious Meeting Between Carl Schmitt and Josef Redlich

Or Bassok, University of Nottingham, Faculty of Law and Social Sciences, has published The Mysterious Meeting between Carl Schmitt and Josef Redlich. Here is the abstract.

In 1934, Carl Schmitt, then the crown jurist of the Third Reich, writes in an essay titled National Socialist Legal Thought about “[a] conversation with a world-famous, world travelled, experienced scholar of more than seventy years of age from the United States [which] belongs to the major experiences and encounters I have had as a jurist in the service of National Socialism.” Schmitt never revealed the identity of the scholar whom he met. Based on Schmitt’s diaries, I reveal that the scholar whom Schmitt met was Josef Redlich. Born to a Jewish family in 1869, Redlich was the Fairchild Professor of Comparative Public Law at Harvard Law School at the time he met Schmitt in 1931. According to Schmitt’s 1934 essay, the conversation focused on insights relating to the indeterminacy of legal norms as well as on a nihilist understanding of the era. Yet Schmitt drew conclusions from the encounter which hardly correspond to Redlich’s views. My essay first puts the ideas that Schmitt adopted from his encounter with the “American scholar” in the context of the era. Second, I examine Schmitt’s diaries as well as other relevant materials in order to prove that Redlich is the scholar whom Schmitt met. In the process, I exclude Roscoe Pound, the Dean of Harvard Law School at that time, who was the previous “prime suspect” for this encounter with Schmitt. Even after my discovery of the identity of the scholar to whom Schmitt refers in his essay, the story of Schmitt and Redlich’s encounter remains mysterious: the ideas of a scholar of Jewish decent, who believed in an Austrian multi-national, federal state, inspired and played a profound role in the formulation of a blatantly antisemitic essay promoting National Socialist legal thought by the crown jurist of the Nazi regime. After examining the contradictions between Redlich and Schmitt’s positions, I offer an explanation for why Schmitt viewed this encounter as so influential on his road to National Socialism.

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Halberstam on the History and Philosophy of Federalism(s) in the United States and Europe @UMichLaw

Daniel Halberstam, University of Michigan Law School, has published 'A People for Certain Purposes': On the History and Philosophy of Federalism(s) in the United States and Europe as U of Michigan Public Law Research Paper No. 619. Here is the abstract.

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

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Meyler on LIberal Constitutionalism and the Sovereign Pardon

Bernadette A. Meyler, Stanford Law School, is publishing Liberal Constitutionalism and the Sovereign Pardon in The Scaffold of Sovereignty: Global and Aesthetic Perspectives on the History of a Concept (Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole Jerr, eds., New York: Columbia University Press, forthcoming). Here is the abstract.

Theorists as diametrically opposed as Carl Schmitt and Immanuel Kant conceive of the pardon as an exception to the normal operation of law and associate that exception with the figure of the sovereign. This should not be surprising to those familiar with early modern political theory, which generally construed the pardon as one of the sovereign’s most significant powers. Those setting up the foundations for liberal constitutionalism, like Kant, failed to generate a new account of pardoning that would render it an important component of either the rule of law or democracy rather than a relic of monarchical sovereignty. Hence the pardon seems to fit more naturally into the anti-liberal Schmittian account of politics than into the contemporary U.S. constitutional order. As this essay contends, such a result was not inevitable; an alternative, non-sovereign conception of pardoning that appeared in early modern drama presented another possible basis for the act, one that was never implemented within politics. Kant associates pardoning with a particular kind of staging of the splendor of the king’s majesty, one trumped only by the horror of the spectacle of revolutionary and counter-revolutionary violence. This theatrical version of the pardon scene as affirming the height of the sovereign above the people — a version that manifests itself in the spectacular finales of early modern plays such as Shakespeare’s Measure for Measure — is countered by another kind of drama, in which forgiveness comes from a stranger or a friend, and is passed among citizens to reconstitute the state. The article concludes by analyzing an example of one such play, The Laws of Candy, and the path offered by its non-sovereign staging of pardoning.

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Defining "The People" In Constitutional and Political Theory

Roman J. Hoyos, Southwestern Law School, has published Who are 'the People'?. Here is the abstract.

The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined. The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere. One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.

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The Jurist and Society

Luca Siliquini-Cinelli, Deakin University Faculty of Business and Law, has published Imago Veritas Falsa: For a (Post-)Schmittian Decisionist Theory of Law, Legal Reasoning, and Judging in volume 39 of the Australian Journal of Legal Philosophy (2014). Here is the abstract.

For decades, while approaching the ‘normativism/pragmatism’ divide and discussing the legitimacy of (and opportunity for) the judge to act as a ‘social engineer,’ socio-legal scholars have tried to ascertain whether the jurist should also consider the impact of his/her activity on society at large, and if so, why and to what extent. The present contribution understands instead the law in terms of a structurally incomplete image (imago veritas falsa) which always needs the decisive intervention of the legal interpreter to exercise its performative instances. In particular, by adopting an unconventional theoretico-philosophical approach that transcends the classic boundaries of foundationalist metaphysics as expressed by the dichotomy of Western logic, this paper argues for the necessity of a tertium comparationis capable of explaining that the real essence of law, legal reasoning, and judging is neither that of normativism, nor of pragmatism, but rather of (post-)Schmittian decisionism.

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Carl Schmitt, Natural Law, and Political Ontology

Tomas Berkmanas, Vytautas Magnus University, Faculty of Law, has published Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation at 7 Baltic Journal of Law & Politics 119 (2014). Here is the abstract.

The article explores the possibility of comprehending natural law, together with an alternative to the Schmittean political, through an inquiry into the layers of professional philosophy with a special focus on epistemology and analytic philosophy. The starting point of the research is the controversy surrounding the ideas of Carl Schmitt, in which it is unclear what lies at the origin of law and the political — sovereign decision or the situation (Part I)? The latter possibility directs the inquiry to the conceptual field related to natural law and epistemology. Proceeding via both diachronic and synchronic perspectives, the inquiry further analyses what has happened to natural law in modernity, and what its current status is, theorizing both streams of inquiry under the concept of political exile (Part II). The Schmittean political happens to be very much at home in this context, opening up the coherent ideological framework that may be called modern political ontology, which at first appears to camouflage Schmittean antagonistic political praxis (Part III). However, through inquiry into ideas mostly attributable to analytic philosophy (or philosophy of language), this ontology is also shown to function as an ‘anti-onto’-logy — that is, as a direct (i.e. open, not hidden) ideological basis for modern political praxis. The analysis here also discloses the rivalry inside professional philosophy in relation to ‘anti-onto’-logy, the latter finding its disciplinary origin(s) in language itself. It shows that at the level of professional philosophy there is a general trend that could be helpful in the attempt to revive natural law (Part IV).

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