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.
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.
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