Constitutional Theory

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Duke University Press, Jan 2, 2008 - Law - 488 pages
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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.

 

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Contents

Issues
1
Schmitts Preface
53
Absolute Concept of the Constitution The Constitution as Unified
59
Relative Concept of the Constitution The Constitution as a Multitude
67
The Positive Concept of the Constitution The Constitution as the Com
75
and apparent compromises school and church compromise
82
Ideal Concept of the Constitution Constitution in an exemplary
89
The Constitution as Contract The Genuine Constitutional Con
112
geois Rechtsstaat principles with principles of political form
249
equality
257
The People and the Democratic Constitution
268
tutional theory
279
servants
283
Boundaries of Democracy
302
tions
318
tion of the bourgeoisie education and property public discussion
331

The ConstitutionMaking Power
125
nated according to previously valid constitutional laws
136
constitutionmaking power constitutional elimination in particular
142
and amendment of the constitution boundaries of the authority for con
148
treason
164
legality administrative jurisdiction definability of all state authorizations
172
The Rechtsstaat Concept of Law
181
The Basic Rights
197
constitutional law obligations
212
Separation SoCalled Division of Powers
220
Bourgeois Rechtsstaat and Political Form
235
tary system representation the public discussion
338
Overview of the Possibilities for the Formation of the Parliamentary
359
28 Dissolution of Parliament
373
Fundamental Concepts of a Constitutional Theory of the Federa
381
nation through the requirement of homogeneity
388
3o Consequences of the Fundamental Concepts of the Constitutional
396
tion
400
The Weimar Constitution
409
Notes
441
Biographical Notes
464
Copyright

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About the author (2008)

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.

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