Author: David Dyzenhaus
Publisher: Oxford University Press
Release Date: 1999-09-02
This book investigates one of the oldest questions of legal philosophy---the relationship between law and legitimacy. It analyses the legal theories of three eminent public lawyers of the Weimar era, Carl Schmitt, Hans Kelsen, and Hermann Heller. Their theories addressed the problems of legal and political order in a crisis-ridden modern society and so they remain highly relevant to contemporary debates about legal order in the age of pluralism. Schmitt, the philosopher of German fascism, has recently received much attention. Kelsen is well-known as one of the main exponents of the philosophy of legal positivism. Heller is virtually unknown outside Germany. Dyzenhaus exposes the dangers of Schmitt's legal philosophy by situating it in the legal context of constitutional crisis to which he responded. He also points out the severs inadequacies of Kelsen's legal positivism. In a wide-ranging account of the predicaments of contemporary legal and political philosophy, Heller's position is argued to be the most promising of the three.
Author: Carl Schmitt
Publisher: Duke University Press
Release Date: 2004-02-05
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.
Sovereignty marks the boundary between politics and law. Highlighting the legal context of politics and the political context of law, it thus contributes to the internal dynamics of both political and legal systems. This book comprehends the persistence of sovereignty as a political and juridical concept in the post-sovereign social condition. The tension and paradoxical relationship between the semantics and structures of sovereignty and post-sovereignty are addressed by using the conceptual framework of the autopoietic social systems theory. Using a number of contemporary European examples, developments and paradoxes, the author examines topics of immense interest and importance relating to the concept of sovereignty in a globalising world. The study argues that the modern question of sovereignty permanently oscillating between de iure authority and de facto power cannot be discarded by theories of supranational and transnational globalized law and politics. Criticising quasi-theological conceptualizations of political sovereignty and its juridical form, the study reformulates the concept of sovereignty and its persistence as part of the self-referential communication of the systems of positive law and politics. The book will be of considerable interest to academics and researchers in political, legal and social theory and philosophy.
Author: Ernst-Wolfgang Böckenförde
Publisher: Oxford University Press
Release Date: 2017
Ernst-Wolfgang Bockenforde (b. 1930) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Bockenforde has been a major contributor to contemporary debates in legaland political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. Hiswritings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Bockenforde has influenced the way inwhich academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, thelaw on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Bockenforde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III)constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these four cornerstones of Bockenforde's legal and political thinking features introductions to the articles as well as a running editorial commentary to the work. A secondvolume will follow this collection, focusing on the relation between religion, law, and democracy.
Author: Ellen Kennedy
Publisher: Duke University Press
Release Date: 2004-09-29
DIVThe author's argument that Carl Schmitt's critique of Weimar Republic liberalism cannot be countered by reforming liberalism is also a contribution to current political theory and an analysis of contemporary liberalism./div
Author: Carl Schmitt
Publisher: Duke University Press
Release Date: 2008-01-02
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.
Author: William E. Scheuerman
Publisher: Rowman & Littlefield
Release Date: 1999-01-01
This is the first full-length study in English of twentieth-century Germany's most influential authoritarian right-wing political theorist, Carl Schmitt, that focuses on the central place of his attack on the liberal rule of law. This is also the first book in any language to devote substantial attention to Schmitt's subterranean influence on some of the most important voices in political thought (Joseph Schumpeter, Friedrich A. Hayek, and Hans Morgenthau) in the United States after 1945. Visit our website for sample chapters!
Author: David Dyzenhaus
Publisher: Cambridge University Press
Release Date: 2006-10-05
Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.
Author: Uta Bindreiter
Publisher: Springer Science & Business Media
Release Date: 2002-12-31
Who presupposes Kelsen's basic norm? Is it possible to defend the presupposition in a way that is convincing? And what difference does the presupposition make? Endeavouring to highlight the role of basic assumptions in the law, the author argues that the verb "to presuppose', with Kelsen, has not only a conceptual but also a normative dimension; and that the expression 'presupposing the basic norm'is adequate in so far as it marks the descriptive-normative nature of utterances made in specifically legal speech-situations. Addressed to legal theorists in general, the treatise purports to show that Kelsen's doctrine lends itself to an interpretation according to which the very act of "presupposing" the Grundnorm can be understood as a Grund, i.e. normative source of all positive law; and, what is more, that this interpretation admits of addressing the issue of the (formal) legitimacy of supra-national and directly applicable rules and other norms.
Author: Jo Eric Khushal Murkens
Publisher: OUP Oxford
Release Date: 2013-01-17
Germany has long been at the centre of European debates surrounding the modern role of national constitutional law and its relationship with EU law. In 2009 the German constitutional court voted to uphold the constitutionality of the Lisbon Treaty, but its critical, restrictive decision sent shockwaves through the European legal community who saw potential threats to further European integration. What explains Germany's uneasy relationship with the project of European legal integration? How have the concepts of sovereignty, state, people, and democracy come to dominate the Constitutional Court's thinking, despite not being defined in the Constitution itself? Despite its importance to the whole enterprise of the European Union, German constitutional thought has been poorly understood in the wider European literature. This book presents a historical account of German conceptions of constitutional law, providing the understanding necessary to see what is at stake in contemporary debates surrounding the constitution and the European Union. Examining the modern development of German constitutional thought, this volume traces the key public law concepts of state, constitution, sovereignty, and democracy from their modern emergence in the 19th century through to the present day. It analyses the constitutional relationship between Germany and the EU from a sociological and historical perspective, looking at how German constitutional law has conflicted and compromised with EU law, and the difficulties this has raised. Filling a significant gap in comparative constitutional law literature, this book provides an account of the major schools of German constitutional thought and their development. Against this backdrop it offers a fascinating insight into Germany's relationship with the European Union.
Author: Ian Kershaw
Release Date: 2016-01-02
Μια βαθιά διορατική κοινωνική ιστορία της ανόδου του Χίτλερ στην εξουσία και των στάσεων που τήρησε ο γερμανικός λαός κατά τη διάρκεια της περιόδου του Τρίτου Ράιχ.Βασισμένο σε τρεις και πλέον δεκαετίες εξαντλητικής ιστοριογραφικής έρευνας γύρω από τη ναζιστική Γερμανία, το βιβλίο του Kershaw συνθέτει για πρώτη φορά τις σημαντικότερες και πιο σημαίνουσες πτυχές της έρευνας του διαπρεπούς Βρετανού ιστορικού για το Ολοκαύτωμα. Τα κεφάλαια είναι δομημένα σε τρεις ενότητες –ο Χίτλερ και η Τελική Λύση, η κοινή γνώμη και οι Εβραίοι στη ναζιστική Γερμανία, και η Τελική Λύση στην ιστοριογραφία– ενώ ο συγγραφέας προσφέρει επίσης μια εισαγωγή, και έναν επίλογο για τη μοναδικότητα του ναζισμού. Ο ιστορικός Ian Kershaw είναι θεμελιωτής της κοινωνικής ιστορίας του Τρίτου Ράιχ και σε όλη τη διάρκεια της καριέρας του διεξήγε πρωτοποριακές έρευνες για τα κοινωνικά αίτια και τις επιπτώσεις της ναζιστικής πολιτικής. Με το έργο του έχει φέρει στο φως αμέτρητα στοιχεία ως προς τους τρόπους με τους οποίους οι διάφορες στάσεις που υιοθέτησε ο γερμανικός λαός διαμόρφωσαν ή δε διαμόρφωσαν τη ναζιστική πολιτική. Ο παρών τόμος προσφέρει μια σφαιρική, πολυεπίπεδη εικόνα τόσο της ολέθριας δυναμικής της ναζιστικής ηγεσίας όσο και της στάσης και συμπεριφοράς απλών Γερμανών ενόσω ο διωγμός των Εβραίων κλιμακωνόταν για να πάρει τη μορφή ολοσχερούς γενοκτονίας.