by Carl Schmitt translated by Jeffrey Seitzer contributions by Christopher Thornhill
Duke University Press, 2008 Cloth: 978-0-8223-4011-9 | Paper: 978-0-8223-4070-6 | eISBN: 978-0-8223-9058-9 Library of Congress Classification KK4450.S3613 2008 Dewey Decimal Classification 342.43
ABOUT THIS BOOK | AUTHOR BIOGRAPHY | REVIEWS | TOC | REQUEST ACCESSIBLE FILE
ABOUT THIS BOOK
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 BIOGRAPHY
Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Crisis of Parliamentary Democracy, Political Romanticism, The Concept of the Political, Political Theology, and Legality and Legitimacy, which is also published by Duke University Press.
Jeffrey Seitzer teaches at Roosevelt University. He is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy and the editor and translator of Carl Schmitt’s Legality and Legitimacy.
Ellen Kennedy is Professor of Political Science at the University of Pennsylvania. She is the author of Constitutional Failure: Carl Schmitt in Weimar, also published by Duke University Press.
Christopher Thornhill is Professor of Politics at the University of Glasgow. He is the author of German Political Philosophy: The Metaphysics of Law.
REVIEWS
“Constitutional Theory represents an unparalleled milestone in Schmitt translations. Indispensable to scholars in political and legal theory, it will undoubtedly occupy a pivotal place in debates over Schmitt. In itself, the Seitzer-Thornhill introduction constitutes one of the most authoritative and intellectually sophisticated contributions to this field in decades.”—Joseph W. Bendersky, author of Carl Schmitt: Theorist for the Reich
“What Heidegger’s Being and Time is to European philosophy, Constitutional Theory is to European political philosophy. It is astounding that one of the most important works of twentieth-century political theory has remained untranslated until now. But this edition makes the wait worthwhile.”— John P. McCormick, University of Chicago
TABLE OF CONTENTS
Foreword / Ellen Kennedy xv
Translator's Preface xvii
An Introduction to Carl Schmitt's Constitutional Theory: Issues and Context / Jeffrey Seitzer and Christopher Thornhill 1
Constitutional Theory
Schmitt's Preface 53
Part I. Concept of the Constitution 57
1. Absolute Concept of the Constitution (The Constitution as United Whole) 59
2. Relative Concept of the Constitution (The Constitution as a Multitude of Individual Laws) 67
3. The Positive Concept of the Constitution (The Constitution as the Complete Decision over the Type and Form of the Political Unity) 75
4. Ideal Concept of the Constitution ("Constitution" in an exemplary sense, thus named because of a certain content) 89
5. The Meanings of the Term "Basic Law," Basic Norm or Lex Fundamentalis *(Summarizing Overview) 94
6. Origin of the Constitution 97
7. The Constitution as Contract (the Genuine Constitutional Contract) 112
8. The Constitution-Making Power 125
9. Legitimacy of a Constitution 136
10. Consequences of the Theory of the Constitution-Making Power of the People's Constitution-Making Power in Particular 140
11. Concepts Derived from the Concept of the Constitution (Constitutional Change, Statutory Violation of the Constitution, Constitutional Suspension, Constitutional Dispute, High Treason) 147
Part II. The Rechtsstaat Component of the Modern Constitution 167
12. The Principles of the Bourgeois Rechtsstaat 169
13. The Rechtsstaat Concept of Law 181
14. The Basic Rights 197
15. Separation (So-Called Division) of Powers 220
16. Bourgeois Rechtsstaat and Political Form 235
Part III. The Political Component of the Modern Constitution 253
17-1. The Theory of Democracy, Fundamental concepts 255
18. The People and the Democratic Constitution 268
19. Consequences of the Political Principle of Democracy 280
20. Application of the Political Principle of Democracy to Individual Areas of State Life 286
21. Boundaries of Democracy 302
22-2. The Theory of Monarchy 308
23-3. Aristocratic Elements in Modern Bourgeois Rechtsstaat Constitutions 318
24-4. The Parliamentary System 328
25. Historical Overview of the Development of the Parliamentary System 343
26. Overview of the Possibilities for the Formation of the Parliamentary System 359
27. The Parliamentary System of the Weimar Constitution 362
28. Dissolution of Parliament 373
Part IV. Constitutional Theory of the Federation 379
29. Fundamental Concepts of a constitutional Theory of the Federation 381
30. Consequences of the Fundamental Concepts of the Constitutional Theory of the Federation 396
Appendix: The Weimar Constitution 409
Notes 441
Biographical Notes 464
Index 465
REQUEST ACCESSIBLE FILE
If you are a student who cannot use this book in printed form, BiblioVault may be able to supply you
with an electronic file for alternative access.
Please have the accessibility coordinator at your school fill out this form.
by Carl Schmitt translated by Jeffrey Seitzer contributions by Christopher Thornhill
Duke University Press, 2008 Cloth: 978-0-8223-4011-9 Paper: 978-0-8223-4070-6 eISBN: 978-0-8223-9058-9
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 BIOGRAPHY
Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Crisis of Parliamentary Democracy, Political Romanticism, The Concept of the Political, Political Theology, and Legality and Legitimacy, which is also published by Duke University Press.
Jeffrey Seitzer teaches at Roosevelt University. He is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy and the editor and translator of Carl Schmitt’s Legality and Legitimacy.
Ellen Kennedy is Professor of Political Science at the University of Pennsylvania. She is the author of Constitutional Failure: Carl Schmitt in Weimar, also published by Duke University Press.
Christopher Thornhill is Professor of Politics at the University of Glasgow. He is the author of German Political Philosophy: The Metaphysics of Law.
REVIEWS
“Constitutional Theory represents an unparalleled milestone in Schmitt translations. Indispensable to scholars in political and legal theory, it will undoubtedly occupy a pivotal place in debates over Schmitt. In itself, the Seitzer-Thornhill introduction constitutes one of the most authoritative and intellectually sophisticated contributions to this field in decades.”—Joseph W. Bendersky, author of Carl Schmitt: Theorist for the Reich
“What Heidegger’s Being and Time is to European philosophy, Constitutional Theory is to European political philosophy. It is astounding that one of the most important works of twentieth-century political theory has remained untranslated until now. But this edition makes the wait worthwhile.”— John P. McCormick, University of Chicago
TABLE OF CONTENTS
Foreword / Ellen Kennedy xv
Translator's Preface xvii
An Introduction to Carl Schmitt's Constitutional Theory: Issues and Context / Jeffrey Seitzer and Christopher Thornhill 1
Constitutional Theory
Schmitt's Preface 53
Part I. Concept of the Constitution 57
1. Absolute Concept of the Constitution (The Constitution as United Whole) 59
2. Relative Concept of the Constitution (The Constitution as a Multitude of Individual Laws) 67
3. The Positive Concept of the Constitution (The Constitution as the Complete Decision over the Type and Form of the Political Unity) 75
4. Ideal Concept of the Constitution ("Constitution" in an exemplary sense, thus named because of a certain content) 89
5. The Meanings of the Term "Basic Law," Basic Norm or Lex Fundamentalis *(Summarizing Overview) 94
6. Origin of the Constitution 97
7. The Constitution as Contract (the Genuine Constitutional Contract) 112
8. The Constitution-Making Power 125
9. Legitimacy of a Constitution 136
10. Consequences of the Theory of the Constitution-Making Power of the People's Constitution-Making Power in Particular 140
11. Concepts Derived from the Concept of the Constitution (Constitutional Change, Statutory Violation of the Constitution, Constitutional Suspension, Constitutional Dispute, High Treason) 147
Part II. The Rechtsstaat Component of the Modern Constitution 167
12. The Principles of the Bourgeois Rechtsstaat 169
13. The Rechtsstaat Concept of Law 181
14. The Basic Rights 197
15. Separation (So-Called Division) of Powers 220
16. Bourgeois Rechtsstaat and Political Form 235
Part III. The Political Component of the Modern Constitution 253
17-1. The Theory of Democracy, Fundamental concepts 255
18. The People and the Democratic Constitution 268
19. Consequences of the Political Principle of Democracy 280
20. Application of the Political Principle of Democracy to Individual Areas of State Life 286
21. Boundaries of Democracy 302
22-2. The Theory of Monarchy 308
23-3. Aristocratic Elements in Modern Bourgeois Rechtsstaat Constitutions 318
24-4. The Parliamentary System 328
25. Historical Overview of the Development of the Parliamentary System 343
26. Overview of the Possibilities for the Formation of the Parliamentary System 359
27. The Parliamentary System of the Weimar Constitution 362
28. Dissolution of Parliament 373
Part IV. Constitutional Theory of the Federation 379
29. Fundamental Concepts of a constitutional Theory of the Federation 381
30. Consequences of the Fundamental Concepts of the Constitutional Theory of the Federation 396
Appendix: The Weimar Constitution 409
Notes 441
Biographical Notes 464
Index 465
REQUEST ACCESSIBLE FILE
If you are a student who cannot use this book in printed form, BiblioVault may be able to supply you
with an electronic file for alternative access.
Please have the accessibility coordinator at your school fill out this form.
It can take 2-3 weeks for requests to be filled.
ABOUT THIS BOOK | AUTHOR BIOGRAPHY | REVIEWS | TOC | REQUEST ACCESSIBLE FILE