Charakter władzy suwerennej w koncepcjach ładu konstytucyjnego Hansa Kelsena i Carla Schmitta
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Date
2013
Advisor
Editor
Journal Title
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Volume Title
Publisher
Wydawnictwo Naukowe Instytutu Filozofii
Title alternative
The nature of sovereign power in the constitutional concepts of Hans Kelsen and Carl Schmitt
Abstract
The purpose of this article is to review the controversy
between two, potentially most influential legal theorists in 20th
century, Hans Kelsen and Carl Schmitt. Their philosophical
concepts: Schmittian decisionism and Kelsenian normativism,
were based on different assumptions, leading their authors
to variant practical conclusions. It is reasonable to infer that the
differences in their visions of constitutional order were deeply
rooted in different intellectual traditions – not only political
(Kelsen’s involvement in defense of liberal democracy unlike
Carl Schmitt, whose conservative attitude and critique of liberalism
led to support totalitarian state and extreme right-wing
ideology), but also theological (pantheistic idea of God and fideism;
conflict between rationality and faith). So from this perspective
„Pure theory of law” can be seen as pantheistic political
theology, because „pantheism overcomes the opposition of God
and World; the Pure Theory of Law accordingly overcomes the
opposition of State and Law”. On the other hand legal philosophy
of Carl Schmitt is inspired by the Roman Catholic theological
concept of the miracle, whereby God is free from the laws of nature – and in consequence – the sovereign is not bound by
the law and may decide exceptions to it.
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Keywords
sovereignty, normativism, authoritarianism, constitution, liberalism
Citation
Filozofia Publiczna i Edukacja Demokratyczna, Tom 2, 2013, Nr 2, s. 154-168.
ISBN
978-83-7092-158-3