Constitutional Theory

Schmitt Carl Schmitt, Seitzer Jeffrey Seitzer

Description

Carl Schmitt's magnum opus, Constitutional Theory, was originally published in 1928 and has been in print in German ever since. This volume makes Schmitt's masterpiece of comparative constitutionalism available to English-language readers for the first time. Schmitt is considered by many to be one of the most original-and, because of his collaboration with the Nazi party, controversial-political thinkers of the twentieth century. In Constitutional Theory, Schmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory of constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe.Constitutional Theory is a significant departure from Schmitt's more polemical Weimar-era works not just in terms of its moderate tone. Through a comparative history of constitutional government in Europe and the United States, Schmitt develops an understanding of liberal constitutionalism that makes room for a strong, independent state. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Constitutional Theory; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications. This volume also contains extensive editorial notes and a translation of the Weimar Constitution.

Sujets

• Droit et juridique

Informations

• Publié par: Duke University Press
• Date de parution: 23 janvier 2008
• Nombre de lectures: 0
• EAN13: 9780822390589
• Langue: English
• Poids de l'ouvrage: 4 Mo

Extrait

Carl Scmitt

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Carl Scmitt     

Translated and edited by Jeffrey Seitzer

Foreword by Ellen Kennedy

Duke University Press Duram and London 

©  Duke University Press

All rigts reserved

Printed in te United States on acid-free paper

Designed by C. H. Westmoreland Typeset in Warnock Pro by Tseng Information Systems, Inc.

Library of Congress Cataloging-in-Publication Data Scmitt, Carl, –. [Verfassungslere. Englis] Constitutional teory / translated and edited by Jeffrey Seitzer; foreword by Ellen Kennedy. p. cm. Includes bibliograpical references and index. -: ---- (clot : alk. paper) -: ---- (pbk. : alk. paper) . Constitutional law—Germany. . Constitutional law. I. Seitzer, Jeffrey. II. Title. .  .—dc 

he first edition was publised in German as Verfassung- slereby Duncker und Humblot, wit all rigts reserved ©  Duncker und Humblot, Munic and Leipzig.

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Bob and Serry Seitzer

Rob and Aleta Smit

Contents

ForewordEllen Kennedyxv

Translator’s Preface xvii

An Introduction to Carl Scmitt’sConstitutional Heory: Issues and ContextJeffrey Seitzer and Cristoper Hornill

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Scmitt’s Preface

Part I. Concept of te Constitution 

§ . Absolute Concept of te Constitution (he Constitution as Unified Wole)  I. Constitution as te collective condition of concrete unity and order or as state form (“form of forms”)—or as te principle of te formation of te political unity  II. Constitution in te normative sense (“norm of norms”)  § . Relative Concept of te Constitution (he Constitution as a Multitude of Individual Laws)  I. Dissolution of te constitution into constitutional laws  II. he written constitution  III. Qualified alterability as a formal caracteristic of constitutional law  § . he Positive Concept of te Constitution (he Constitution as te Com- plete Decision over te Type and Form of te Political Unity)  I. he constitution as te act of te constitution-making power  II. he constitution as political decision—Decisions of te Weimar Constitution—Practical significance of te distinction between constitu- tion and constitutional law (constitutional amendment, inviolability of te constitution, basic rigts, constitutional disputes, oat to te constitution, ig treason)  III. he compromise caracter of te Weimar Constitution, genuine and apparent compromises (scool and curc compromise) 

§ . Ideal Concept of te Constitution (“Constitution” in an exemplary sense, tus named because of a certain content)  I. Ambiguity of te ideal concept, in particular freedom  II. he ideal concept of te constitution of te bourgeois Rects- staat  III. Bot components of te modern constitution  § . he Meanings of te Term “Basic Law,” Basic Norm or Lex Fundamen- talis (Summarizing Overview)  I. Nine meanings of te word basic law  II. Connections between te different meanings  III. In tis book, constitution means constitution in te positive sense  § . Origin of te Constitution  I. A constitution arises eiter troug one-sided political decision of te subject of te constitution-making power or troug reciprocal agree- ment of several suc subjects  II. Historical overview of te origins of te modern European constitu- tions (. medieval feudal state and state of estates, in particular te Magna Carta; . te German Reic until ; . te state of te absolute princes; . te Revolution of ; . te monarcical restoration –; . te July Revolution ; . te constitutional monarcy in Germany; . Nort German Federation  and German Reic ; . te Weimar Constitu- tion )  § . he Constitution as Contract (he Genuine Constitutional Con- tract)  I. Distinction between te so-called state or social contract from te constitutional contract  II. he genuine constitutional contract as federal contract. Non-genuine constitutional contracts inside a political unity  III. he genuine constitutional contract as status contract (criticism of te principle: pacta sunt servanda)  IV. Constitution and international law contracts  § . he Constitution-Making Power  I. he constitution-making power as political will  II. he subject of te constitution-making power (God, people or na- tion, king, an organized group)  III. Initiation of te constitution-making power, in particular te demo- cratic practice (national assembly, convention, plebiscite)  § . Legitimacy of a Constitution  I. Types of constitutional legitimacy 

viii

Contents

II. Legitimacy of a constitution does not mean tat a constitution origi- nated according to previously valid constitutional laws  III. Dynastic and democratic legitimacy  § . Consequences of te heory of te Constitution-Making Power, of te People’s Constitution-Making Power in Particular  I. Continuous presence (permanence) of te constitution-making power  II. Continuity of te state during te elimination and statutory violation of te constitution, to te extent tat only te constitution-making power remains uncanged  III. he problem of te continuity in te cange of te subject of te constitution-making power (constitutional elimination), in particular te continuity of te German Reic in /  IV. Distinction of te people’s constitution-making power from every constituted autority, specifically tat based on constitutional law  § . Concepts Derived from te Concept of te Constitution (Constitu- tional Cange, Statutory Violation of te Constitution, Constitutional Sus- pension, Constitutional Dispute, Hig Treason)  I. Overview  II. Canges of te constitution involving constitutional laws (revision and amendment of te constitution), boundaries of te autority for con- stitutional amendment, statutory violations of te constitution and doubt- ful acts of sovereignty, suspension of te constitution  III. Constitutional disputes  IV. he constitution as an object of attack and protection during ig treason 

Part II. he Rectsstaat Component of te Modern Constitution 

§ . he Principles of te Bourgeois Rectsstaat  I. Distinction between te Rectsstaat and political components of te modern constitution; bot principles of te bourgeois Rectsstaat: basic rigts (principle of distribution) and separation of powers (organizational principle)  II. he concept of te Rectsstaat and individual distinguising marks (legality, administrative jurisdiction, definability of all state autorizations, independence of judges, conformity to judicial forms, problem of political justice)  § . he Rectsstaat Concept of Law  I. Law and statute in te bourgeois Rectsstaat  II. he so-called formal concept of law 

Contents

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