Legality and Legitimacy

Schmitt Carl Schmitt, Seitzer Jeffrey Seitzer

Description

Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt's collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society.Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer's translation of the 1932 text itself, this volume contains his translation of Schmitt's 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick's introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt's claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.

Sujets

• Droit et juridique
• List of country legal systems

Informations

• Publié par: Duke University Press
• Date de parution: 26 février 2004
• Nombre de lectures: 0
• EAN13: 9780822385769
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

L E G A L I T Y A N D L E G I T I M A C Y

L E G A L I T Y

A N D L E G I T I M A C Y

9

Carl Schmitt

translated and edited by Jeffrey Seitzer

with an introduction by John P. McCormick

Duke University Press Durham & London



©  to English translation Duke University Press

All rights reserved

Printed in the United States of America on acid-free paper 

by C. H. Westmoreland

Designed

Typeset in Trump Medieval with Jaeger Daily

News display by Tseng Information Systems, Inc.

Library of Congress

Cataloging-in-Publication Data appear on the last printed page of this

book.

The first edition was published in German asLegalität und Legitimität

by Duncker und Humblot, with all rights reserved ©  Duncker und

Humblot, Munich and Leipzig. Carl

Schmitt’s untitled comments on

Legalität und Legitimitätappeared in a volume of his essays, titledVerfas-

sungsrechtliche Aufsätze aus den Jahren –: Materialien zu einer

Verfassungslehre. These comments were first published in German, with

all rights reserved ©  Duncker und Humblot GmbH, Berlin.

9

To Janet Smith

C O N T E N T S

Translator’s Preface ix Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’sLegality and Legitimacy .  c xiii

9 Legality and Legitimacy

Introduction: The Legislative State System of Legality Com- pared to Other State Types (Jurisdiction, Governmental, and Administrative States) 

I The System of Legality of the Parliamentary Legislative State

. The Legislative State and the Concept of Law  . Legality and the Equal Chance for Achieving Political Power 

II The Three Extraordinary Lawgivers of the Weimar Constitution

. The Extraordinary LawgiverRatione Materiae: The Sec- ond Principal Part of the Weimar Constitution as a Second Constitution  . The Extraordinary LawgiverRatione Supremitatis: Actual Meaning—Plebiscitary Legitimacy instead of Legislative State Legality  . The Extraordinary LawgiverRatione Necessitatis: Actual Meaning—The Administrative State Measure Displaces the Parliamentary Legislative State Statute 

Conclusion  Afterword ()  Appendix: Selected Articles of the Weimar Constitution  Notes  Works Cited by Carl Schmitt inLegality and Legitimacy Index 

viii

Contents

T R A N S L ATO R ’ S P R E FA C E 9

Much of the current interest in Carl Schmitt centers on his contribution to political theory during the Weimar Republic. However, Schmitt was by training and by inclination a legal theorist, a fact reflected in his work from this period. Not only does he focus on issues where politics and law naturally inter- sect, such as those involving the nature and limits of constitu- tional government; but his mode of argumentation is also de- cidedly ‘‘legal’’ even in those essays that do not address legal questions directly. The legal cast of Schmitt’s political theory, moreover, is deeply steeped in the Continental, particularly German, legal tradition, which deviates in important respects from the Anglo-American one. Because Schmitt was primarily writing for a German audi- ence, and one with some knowledge of German law, he could assume that the reader had a sufficient understanding of the distinctive features of this tradition as well as of how the Wei- mar Constitution constituted both a continuation and a de- parture from it. Also, writing in the midst of a political crisis, Schmitt could assume that the reader was familiar with major political, social, and economic developments and with the main currents of thought, including his own, on how to re- spond to the pressing problems of the Weimar Republic. In preparing the translation, however, I assumed that the intended reader does not have in-depth knowledge in all of these areas. Compensating for the abstractness of Schmitt’s presentation, I have included explanatory notes discussing as- pects of the Weimar context, which provide an unstated back- ground to the work. My aim in doing so is not to argue for or against Schmitt’s position, but rather to provide readers with information that may aid them in understanding and evalu- ating Schmitt’s argument. The translator’s notes are placed in brackets to distinguish them from Schmitt’s. Among the explanatory notes are a number concerning the translation of particular terms. Given the frequent references to the institutions of government, both in Schmitt’s text and

Translator’s Preface

ix