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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Marmor on The Ontology of Legal Facts

Andrei Marmor, Cornell University Law School, has published The Ontology of Legal Facts as Cornell Legal Studies Research Paper No. 25-35. Here is the abstract.

Hans Kelsen had three main insights about the ontology of legal facts. First, that there are legal facts in our world, facts of a distinctly legal type. Actions and events in the world can have, objectively speaking, particular legal significance. Second, Kelsen claimed that legal facts belong to the domain of meaning. Law is, by and large, a scheme of interpretation, enabling us to ascribe legal meanings to certain actions and events in the natural world. Finally, and most problematically, Kelsen maintained that legal facts are normative facts, and as such, they require normative grounding, metaphysically speaking. Since Kelsen famously thought that normative grounding can only be done by other norms, he thought that we are eventually led to a Basic Norm that needs to be presupposed. I argue in this paper that Kelsen is quite right about the first two insights, and wrong about the third. Even if we assume that law is mostly about norms and all legal facts are facts about norms, they are not necessarily normative facts. Which also means that their metaphysical grounding does not have to be normative. The metaphysical building blocks of legal facts, like facts about semantic meanings and symbolism generally, consist of what people tend to do, what they think, and intentions they collectively share in the appropriate ways. There is no need for presuppositions. I also ties this view about the nature of legal facts to the kind of fictionalism about law I had argued for in the past.

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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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Kammerhofer on Hans Kelsen

Joerg Kammerhofer, University of Freiburg Faculty of Law, has published Kelsen, Hans in the Elgar Concise Encyclopedia of Legal Theory and Philosophy (John Linarelli, ed., Cheltenham: Edward Elgar 2025). Here is the abstract.

This entry in the Elgar Concise Encyclopedia of Legal Theory and Philosophy traces the life of Hans Kelsen (1811-1973), the founder of the Pure Theory of Law, and summarises his major writings. The Pure Theory itself is described in a separate entry.

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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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Langford and Bryan on The Transformation of the Notion of Civitas Maxima @edgehill @LancasterUni

Peter Langford, Edge Hill University, and Ian Bryan, Lancaster University, have published 'From Wolff to Kelsen: The Transformation of the Notion of Civitas Maxima' in Hans Kelsen and the Natural Law Tradition 161-187 (P. Langford, I. Bryan, and J. McGarry, eds., Leiden; Boston: Brill, 2019).

A significant part of Kelsen’s work is devoted to the theoretical and methodological separation of positive law from natural law. The predominant impression of this process is of a determination to entirely sunder the conceptual framework of positive law from any continuing reliance upon natural law. However, certain of Kelsen’s works involve the appropriation of the notion of civitas maxima from Christian Wolff’s Jus Gentium Methodo Scientifica Pertractatum (1749). The presence of this notion raises the question of the relationship between Kelsen’s theoretical framework and the conception of natural law developed by Christian Wolff. It is through an examination of the transformation of Wolff’s notion of civitas maxima that an important aspect of Kelsen’s relationship to the natural law tradition becomes apparent. The appropriation will be traced through the initial discussion of civitas maxima in Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag Zu Einer Reinen Rechtslehre (1920/1928), and its further exposition and development in Kelsen’s 1926 Lecture Course (‘Les Rapports de Système entre le Droit Interne et le Droit International’) at the l’Académie de droit international, in the Hague. In this manner, the significant methodological divergences between a Kelsenian theory of positive law, as a theory of legal monism according primacy to international law, and the Wolffian theory of natural law, as a theory of the law of nations, will become evident. This methodological divergence, however, should not obscure a more than residual affinity between Kelsen and Wolff concerning the cosmopolitical orientation of their thought.

The full text is not available from SSRN.

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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New From Hart Publishing: Christoph Kletzer, The Idea of a Pure Theory of Law (2018) @hartpublishing @c_kletzer

New from Hart Publishing: Christoph Kletzer, The Idea of a Pure Theory of Law: An Interpretation and Defence (2018). Here from the publisher's website is a description of the book's contents.

Most contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force. The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others. This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence.

 

Paulson on Metamorphosis in Hans Kelsen's Legal Philosophy

Stanley L. Paulson, Washington University Law School (Emeritus), has published Metamorphosis in Hans Kelsen's Legal Philosophy at 80 The Modern Law Review 860 (2017). Here is the abstract.

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his 'Kantian filter'. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.

The full text is not available from SSRN.

Spaak on Legal Positivism, Conventionalism, and the Normativity of Law @Stockholm_Uni

Torben Spaak, Stockholm University, has published Legal Positivism, Conventionalism, and the Normativity of Law. Here is the abstract.

The aim of this article is to investigate and see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavor. As I shall explain, I do not believe that it is possible to offer such an account; and to illustrate the difficulties involved in trying to do so, I am going to consider the accounts of the normativity of law proposed by three prominent jurisprudents, who all work in the tradition of legal positivism, namely, Hans Kelsen, Gerald Postema, and Andrei Marmor. I argue (A) that we need to distinguish carefully between (a) the problem of accounting for the normativity of law, conceived as a necessary property of law, and (b) the problem of accounting for the use of normative legal language on the part of judges, attorneys, legal scholars, and others; (B) that the contemporary debate about the normativity of law, which mainly concerns (a), is in substance, if not in form, more or less identical to the old debate between legal positivists and non-positivists; (C) that one simply cannot account for the normativity of law, conceived along the lines of (a), within the framework of legal positivism, whether or not one invokes the idea of a social convention, and that the problem of the normativity of law thus conceived and considered within the framework of legal positivism, is not an open, and therefore not a very interesting, legal-philosophical question; (D) that the important question for a legal positivist is whether a given legal order (or legal system) is in fact normative, in roughly the sense of justified (or authoritative) normativity (a notion to be explained below), and that to determine whether this is so, one needs to consider the content and the administration of this legal order; and (E) that the idea of conditional normativity, or normativity from a point of view, although of considerable interest when discussing (b), is of little or no interest to those who are concerned with (a). As regards claim (C), I argue, more specifically, (C1) that Kelsen’s theory of the basic norm offers no solution to (a), because it offers nothing more than normativity from a point of view, and that it is better understood as aiming to solve (b), (C2) that Gerald Postema’s coordination convention account, although in many ways a very fine account, cannot (as Postema is well aware of) generate obligations for the citizens, as distinguished from the legal officials, and (C3) that Andrei Marmor’s constitutive convention account, which capitalizes on the idea of conditional normativity, does not and cannot take things further than Kelsen’s basic-norm account does. On route to establishing claims (A)-(E), I also argue (i) that when discussing (α), we should focus on the level of legal orders (legal systems), not on the level of individual legal norms, (ii) that the claim that law is necessarily normative is to be understood as the conceptual claim that necessarily, if x is a legal norm, x is normative, not as the essentialist claim that if x is a legal norm, x is necessarily normative, and (iii) that we should think of the concept of a legal ‘ought’ as having the function of connecting grounds (or conditions) and consequences in legal norms and of the import of the concept of ought (or, roughly, the meaning of the word ‘ought’) as being the same in different fields. Furthermore, I argue (iv) that we should distinguish between different grades (or degrees) of normativity; (v) that the most interesting grade of normativity when discussing (α) is what Joseph Raz has called justified normativity; and (vi) that we may think of moral philosopher David Copp’s notion of authoritative normativity as an illuminating specification of the somewhat loose idea of justified normativity.

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Cyras and Lachmayer on Visualization of Hajime Yoshino's Logical Jurisprudence

Vytautas Cyras, Vilnius University, and Friedrich Lachmayer, University of Innsbruck, have published Visualization of Hajime Yoshino's Logical Jurisprudence, at Trends and Communities of Legal Informatics: Proceedings of the 20th International Legal Informatics Symposium (IRIS) 2017 349 (E. Schweighofer, F. Kummer, W. Hoetzendorfer, and C. Sorge, eds., OCG, Vienna, 2017). Here is the abstract.

Hajime Yoshino’s Logical Jurisprudence (LJ) is an important concept in legal informatics. Yoshino aims for a logic-based systematization in the legal domain. He focuses on legal reasoning and systematization. Inevitably, embracing law as a whole brings us to Hans Kelsen’s Pure Theory of Law. In sum, three issues are important in LJ: logic, Kelsen and legal informatics. In this paper we aim to visualize the architecture of LJ. We suggest expanding this with legal ontologies and words. The granularity of word-phrase-sentence-text is about different methods which apply to different units.

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Ralf Poscher on the Hermeneutical Character of Legal Construction

Ralf Poscher, Albert-Ludwigs-Universitaet, Freiburg, is publishing The Hermeneutical Character of Legal Construction in Law's Hermeneutics: Other Investigations (Simone Glanert and Fabien Girard, eds., London: Routledge, 2016). Here is the abstract.

Ever since Carl Friedrich von Savigny and Francis Lieber introduced the distinction, lawyers and legal theorists distinguish between legal interpretation and legal construction. The article wants to defend and reconstruct the distinction on the basis of an intentionalist account of hermeneutics. Interpretation in the most general sense is a specific form of explanation. It is an explanation at the level of intentional phenomena like believes, desires, intentions, actions and their products. The interpretation of texts is a specific case of this more general kind of explanation. It explains the meaning of utterances on the basis of the intentions of their authors. In legal interpretation the author is the legislator. Legal construction sets in when legislative intentions have run out. Legal construction amends the law. But how could legal construction still be considered a hermeneutical activity if it cannot explain meaning by relying on prior intentions of an author, if it does not interpret existing law, but creates new law? Aren’t many legal theorists – be they legal realists or normativists like Hans Kelsen – right to insist that legal construction is more akin to legislation even if at a different level of abstraction? The article defends the hermeneutic character of legal construction by showing that it distinguishes itself from legislation through its relation to a text. It is the intentionalist structure of justification, which gives legal construction its hermeneutic character and set it apart from legislation even though it creates new law. That the justification cannot relate to an actual legislative intent but has to take refuge to a fictive one distinguishes legal construction from legal interpretation. Once in place the intentionalist account of legal construction can clarify some of its features like its relation to rule of law standards, its generality, consistency and rationality requirements, as well as its truth aptness.

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Mario Losano On Kelsen's Theory of International Law During His Geneva Exile

Mario G. Losano, Accademia delle Scienze di Torino, has published Kelsen's Theory on International Law During His Exile in Geneva at 28 Ratio Juris 470 (2015). Here is the abstract.

Kelsen's monistic theory of international law was shaped during his exile in Geneva (1933–1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neo‐Kantian notion of “system.” According to this conception, a legal system can only descend from a single principle. Consequently, Kelsen constructed a monistic theory of law, i.e., a legal system incorporating all norms into a pyramidal structure culminating in a single principle: the fundamental norm. This Kelsenian pyramid must also include international law, considering that if international law were a legal system different from national law (as the dualistic theory assumes), the theoretical construction would need two fundamental norms. This dualism is as incompatible with Kelsen's monistic vision as Schmitt's theory of “Great Spaces,” creating a hierarchical system of international relations. In the Kelsenian pyramid, international law occupies a position superior to national law: The consequences of this assumption are discussed in some documents recently published in German and French.

The full text is not available from SSSRN.

The Influence of Robert M. Cover

Roy Andrew Partain, Soongsil College of Law, has published Ecologies of Paideic Law: Environmental Law and Robert M. Coverʼs Jurisprudence of 'Nomos and Narratives' , at 24 Hanyang Law Review 423 (2013). Here is the abstract.

This article provides an extensive introduction to the legal philosophy of Robert M. Cover and begins a discussion on how his principles of jurisgenesis could be applied in environmental law. This article suggests that a deeper appreciation of Cover’s jurisprudence could better assist in the development of climate change legislation.
Robert M. Cover was a legal scholar at Yale Law School who died in 1986, tragically early in his career, leaving many aspects of his innovative jurisprudence incomplete. Despite those circumstances, he has become one of the top-most cited legal scholars in American jurisprudence. In particular, he is best known for his “Nomos and Narratives” theory of law. Cover’s legal philosophy holds that the laws and narrative traditions of a culture cannot be critically separated, that they must be understood to operate intertwined. Further, he argued certain aspects of the narrative cultures must be included in the concept of law, in the corpus juris, alongside more explicit forms such as constitutions, legislations, and judicial decisions. Thus, Cover argued, legal scholars have been overly focused on one type of law to the neglect of other types of law.

Cover introduced the concept of paideic jurisgenesis and of jurispathic judges to counter the legal theories of H.L.A. Hart, Hans Kelsen, and Ronald Dworkin. Cover’s theory provides a more complete framework to answer Dworkin’s question of how judges resolve ‘hard’ legal cases. A ‘hard’ case exists when both sides of an adversarial courtroom can provide sound legal support for their arguments; Dworkin posited that jurisprudence is simply the investigation of how judges resolve that conflict. Whereas Hart, Kelsen and Dworkin saw a shortage of law, of a need to explain how law was created by judges, Cover concluded to the contrary that law actually existed in over-supply and that judges act to eliminate surplus laws to resolve ‘hard’ problems.

Cover balanced the development of paideic laws, i.e. narratively evolved laws, with the controls of imperial, i.e. governmental, legislation and jurispathic judges. Cover named this universe of legal meaning and context-rich interpretations ‘nomos’, borrowing from the Greek language for ‘law’. Cover proposed that social groups created laws via social cohesive narratives of obligations, coercion, and socially-endorsed enforcement. But this organic process of legislation could create too many overlapping legal systems as each society contains multiple social groups. Legislatures were seen by Cover as providing a democratic process to select Kelsenian Grundnormen to better align the diverse legal narratives of multiple social groups. Cover then saw the key role of judges as jurispathic, to eliminate legal chaos when too much law exists.

A legal scholar, in Cover’s world, has two roles. First, to observe and appreciate the organic and paideic narratives that create the laws in the legal scholar’s nomos-verse. Second, to provide the legal scientific understandings necessary to support the judiciary’s jurispathic duties. In both cases, a legal scholar has the opportunity to engage and interact in the development of law. A legal scholar can become engaged in the development of the paideic narratives and social dialogs that create paideic law. A scholar can assist in the development of the imperial legal structures that provide stability and unity to the social group. Cover was particularly interested in the development of Human Rights and Civil Rights laws, but his theories and techniques have found applications in many other areas of law.

This article provides a preliminary example of Cover’s theories in regards to the development of climate change legislation. The article takes notice of the historical problems to develop and enforce climate change legislation. The article examines Cover’s theories to uncover the practical legal and policy tools suggested by his theories of jurisprudence. The article suggests a list of methods wherein Cover’s theories could be applied to climate change legislation.

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Hans Kelsen and Modern Law

Christoph Kletzer, King's College London School of Law, has published Primitive Law. Here is the abstract.

This paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.

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