Constitutional Theory

Constitutional Theory

by Carl Schmitt

ISBN-10: 0822340704

ISBN-13: 9780822340706

Pub. Date: 01/23/2008

Publisher: Duke University Press Books

Carl Schmitt’s magnum opus, written during the Weimar regime, wherein Schmitt challenges the theories and practices of Western constitutional government, claiming that classical conceptions of democracy cannot be transposed onto modern political lif


Carl Schmitt’s magnum opus, written during the Weimar regime, wherein Schmitt challenges the theories and practices of Western constitutional government, claiming that classical conceptions of democracy cannot be transposed onto modern political lif

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Duke University Press Books
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New Edition
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6.13(w) x 9.25(h) x (d)

Table of Contents

Foreword   Ellen Kennedy     xv
Translator's Preface     xvii
An Introduction to Carl Schmitt's Constitutional Theory: Issues and Context   Jeffrey Seitzer   Christopher Thornhill     1
Schmitt's Preface     53
Concept of the Constitution     57
Absolute Concept of the Constitution (The Constitution as Unified Whole)     59
Constitution as the collective condition of concrete unity and order or as state form ("form of forms") - or as the principle of the formation of the political unity     59
Constitution in the normative sense ("norm of norms")     62
Relative Concept of the Constitution (The Constitution as a Multitude of Individual Laws)     67
Dissolution of the constitution into constitutional laws     67
The written constitution     68
Qualified alterability as a formal characteristic of constitutional law     71
The Positive Concept of the Constitution (The Constitution as the Complete Decision over the Type and Form of the Political Unity)     75
The constitution as the act of the constitution-making power     75
The constitution as political decision - Decisions of the Weimar Constitution-Practical significance of the distinction between constitution and constitutional law (constitutional amendment, inviolability of the constitution, basic rights,constitutional disputes, oath to the constitution, high treason)     77
The compromise character of the Weimar Constitution, genuine and apparent compromises (school and church compromise)     82
Ideal Concept of the Constitution ("Constitution" in an exemplary sense, thus named because of a certain content)     89
Ambiguity of the ideal concept, in particular freedom     89
The ideal concept of the constitution of the bourgeois Rechtstaat     90
Both components of the modern constitution     93
The Meanings of the Term "Basic Law," Basic Norm or Lex Fundamentalis (Summarizing Overview)     94
Nine meanings of the word basic law     94
Connections between the different meanings     94
In this book, constitution means constitution in the positive sense     96
Origin of the Constitution     97
A constitution arises either through one-sided political decision of the subject of the constitution-making power or through reciprocal agreement of several such subjects     97
Historical overview of the origins of the modern European constitutions     97
medieval feudal state and state of estates, in particular the Magna Carta
the German Reich until 1806
the state of the absolute princes
the Revolution of 1789
the monarchical restoration 1815-1830
the July Revolution 1830
the constitutional monarchy in Germany
North German Federation 1867 and German Reich 1871
the Weimar Constitution 1919
The Constitution as Contract (The Genuine Constitutional Contract)     112
Distinction between the so-called state or social contract from the constitutional contract     112
The genuine constitutional contract as federal contract. Non-genuine constitutional contracts inside a political unity     113
The genuine constitutional contract as status contract (criticism of the principle: pacta sunt servanda)     117
Constitution and international law contracts     120
The Constitution-Making Power     125
The constitution-making power as political will     125
The subject of the constitution-making power (God, people or nation, king, an organized group)     126
Initiation of the constitution-making power, in particular the democratic practice (national assembly, convention, plebiscite)     130
Legitimacy of a Constitution     136
Types of constitutional legitimacy     136
Legitimacy of a constitution does not mean that a constitution originated according to previously valid constitutional laws     136
Dynastic and democratic legitimacy     138
Consequences of the Theory of the Constitution-Making Power, of the People's Constitution-Making Power in Particular     140
Continuous presence (permanence) of the constitution-making power      140
Continuity of the state during the elimination and statutory violation of the constitution, to the extent that only the constitution-making power remains unchanged     141
The problem of the continuity in the change of the subject of the constitution-making power (constitutional elimination), in particular the continuity of the German Reich in 1918/19     142
Distinction of the people's constitution-making power from every constituted authority, specifically that based on constitutional law     145
Concepts Derived from the Concept of the Constitution (Constitutional Change, Statutory Violation of the Constitution, Constitutional Suspension, Constitutional Dispute, High Treason)     147
Overview     147
Changes of the constitution involving constitutional laws (revision and amendment of the constitution), boundaries of the authority for constitutional amendment, statutory violations of the constitution and doubtful acts of sovereignty, sppension of the constitution     148
Constitutional disputes     158
The constitution as an object of attack and protection during high treason     164
The Rechtsstaat Component of the Modern Constitution     167
The Principles of the Bourgeois Rechtsstaat     169
Distinction between the Rechtsstaat and political components of the modern constitution; both principles of the bourgeois Rechtsstaat: basic rights (principle of distribution) and separation of powers (organizational principle)     169
The concept of the Rechtsstaat and individual distinguishing marks (legality, administrative jurisdiction, definability of all state authorizations, independence of judges, conformity to judicial forms, problem of political justice)     172
The Rechtsstaat Concept of Law     181
Law and statute in the bourgeois Rechtsstaat     181
The so-called formal concept of law     184
The political concept of law     187
The meaning of the general character of the legal norm     191
The Basic Rights     197
Historical Overview     197
Historical and legal significance of the declaration of rights     200
Substantive distribution of the basic rights     202
Institutional guarantees are distinguishable from basic rights     208
In the bourgeois Rechtsstaat, basic duties are nothing more than constitutional law obligations     212
Division of the basic rights in regard to the protection against limitations and intrusions     213
Separation (So-Called Division) of Powers     220
The historical origin of the separation of powers theory     220
Separation and balancing of powers; schema of their strict separation; schema of a few attempts at balancing     223
Bourgeois Rechtsstaat and Political Form      235
The constitution of the modern bourgeois Rechtsstaat is always a mixed constitution; state forms become forms of separated and divided powers (legislative, executive)     235
The two principles of political form (identity and representation)     239
Concept of representation     242
The modern constitution as a linkage between and mixture of bourgeois Rechtsstaat principles with principles of political form     249
The Political Component of the Modern Constitution     253
The Theory of Democracy, Fundamental Concepts     255
Overview of a few conceptual definitions     255
The concept of equality (general human equality, substantive equality)     257
Definition of democracy     264
The People and the Democratic Constitution     268
The people anterior to and superior to the constitution     268
The people within the constitution (elections and votes)     268
The people compared with the constitutional regime (public opinion)     271
Overview of the meanings of the word "people" for a modern constitutional theory     279
Consequences of the Political Principle of Democracy     280
General tendencies     280
The state citizen in democracy     280
Officials (democratic methods for the selection of officials and civil servants)     283
Application of the Political Principle of Democracy to Individual Areas of State Life     286
Democracy and legislation (in particular referendum and initiative)     286
Democracy and government (especially production of direct relations between government and people)     291
Democracy and relations among states under international law     295
Democracy and administration     297
Democracy and the judiciary     299
Boundaries of Democracy     302
Boundaries of the principle of identity     302
Boundaries stemming from the nature of the people     302
Boundaries of the practice of contemporary democracy     303
Critique of the principle "majority decides"     303
The Theory of Monarchy     308
Foundations of monarchy (theocratic, patriarchal, patrimonial, civil servant, and Caesarist forms)     308
The significance in constitutional theory terms of the different justifications of monarchy     311
The position of the monarch in the modern constitution     313
The state president in a republican constitution     315
Aristocratic Elements in Modern Bourgeois-Rechtsstaat Constitutions     318
The aristocratic principle as a means of the separation of powers      318
Idea of and justification for the two-chamber system     318
The historical types of the two-chamber system (upper house, house of lords, senate, house of states)     320
The jurisdiction of and grants of authority to the upper house     323
Incompatibility of double membership     327
The Parliamentary System     328
Ambiguity of the term "parliamentarianism," especially the four subtypes (presidential, parliament, premier, and cabinet system)     328
The ideal foundations of the parliamentary system (historical situation of the bourgeoisie, education and property, public discussion)     331
Practical consequences of the fundamental idea of the parliamentary system (representation, the public, discussion)     338
Historical Overview of the Development of the Parliamentary System     343
Most important dates of the historical development in England     343
The course of development in France and Belgium     348
The course of development in Germany     351
Overview of the Possibilities for the Formation of the Parliamentary System     359
Decisive consideration: agreement between parliament and government     359
Means of producing the agreement     359
"Instances" of parliamentary responsibility (cabinet collapses)     359
The Parliamentary System of the Weimar Constitution     362
The linkage of the four subsystems     362
Overview     363
The practice of the parliamentary systems of the Weimar Constitution     364
The confidence of the Reichstag (Art. 54, 1 and 2)
"the Chancellor determines policy guidelines" (Art. 56)
the cabinet system; 4. the presidential system
Dissolution of Parliament     373
Types of dissolution (monarchical, presidential, ministerial, self-dissolution, dissolution in response to an initiative)     373
The President's dissolution authority     375
Constitutional Theory of the Federation     379
Fundamental Concepts of a Constitutional Theory of the Federation     381
Overview of the types of interstate relations and connections (international legal community, individual relations, alliance, federation)     381
Consequences of the conceptual definition of the federation (pacification, guarantee, intervention, execution)     385
The legal and political antimonies of the federation and their elimination through the requirement of homogeneity     388
Consequences of the Fundamental Concepts of the Constitutional Theory of the Federation     396
Every federation as such has a political existence with an independent jus belli     396
Every federation as such is a subject in terms of international as well as public law     396
Every federation has a federation territory     399
Federation representation, institutions and officials, federal jurisdiction     400
Treasonous undertakings against the federation     403
Democracy and federalism (especially Art. 18)     404
The Weimar Constitution     409
Notes     441
Biographical Notes     464
Index     465

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