Beyond Political Decisionism and Legal Formalism

• In Event: Democracy and the Rule of Law: Lessons from the Weimar Republic

Abstract

Hans Kelsen and Carl Schmitt are always imagined as antagonists as they repeatedly clashed on the relationship between law and 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, one can draw on the best of both positions by looking at the relationship between law and state on two levels. On the micro level – when we look at the boundaries of the legal order – one can easily adopt the Kelsenian positivist picture to identify its content. On the macro level, this legal order can, as per Schmitt, be transcended when emergency action is required. This synthesis is supported by Schmitt’s insistence, in his controversial yet influential text On The Three Types of Juristic Thought (1934), that the conceptualisation of law and state he has in mind is different not only from Kelsen’s ‘formalism’, but also from a more radical ‘decisionist’ position espoused by Hobbes. Adopting this mixed ‘Schmittian-Kelsenian’ stance would be preferable as both law and politics are equally important and do not exclude each other but work together.

Author

• Anna Lukina, University of Cambridge