scholarly journals A AÇÃO DIRETA DE INCONSTITUCIONALIDADE Nº 4.439 EM FACE DAS TEORIAS DA CONSTITUIÇÃO DE HANS KELSEN E CARL SCHMITT

2021 ◽  
Vol 10 (12) ◽  
pp. 1-16
Author(s):  
Jorge Luís dos Santos LOURENÇON ◽  
Ana Maria Ortega ALONSO
Keyword(s):  
Natural Theology ◽  
Carl Schmitt ◽  
The Political ◽  
Constitutional Court ◽  
Public School Systems ◽  
Compatibility Analysis ◽  
Federal Constitution ◽  
The People ◽  
Deductive Method ◽  
Hans Kelsen

No século XX, os pensadores Hans Kelsen e Carl Schmitt travaram um embate sobre a quem incumbiria a guarda da Constituição. Para aquele, a tarefa seria de um órgão técnico, qual seja, uma corte constitucional, capaz de uma análise de compatibilidade entre normas de hierarquia superior com as de hierarquia inferior. Para Schmitt, por outro lado, ao chefe de Estado caberia tal responsabilidade, por ser detentor da vontade política e, assim, mostrar-se afim aos anseios populares; sendo a Constituição uma decisão política, o representante do povo teria legitimidade para protegê-la, de acordo com a vontade pública. Discute-se, neste estudo, a qual teoria o Supremo Tribunal Federal se aproximou, quando do julgamento da Ação Direta de Inconstitucionalidade nº 4.439, em que se decidiu pela compatibilidade do ensino religioso de natureza confessional e matrícula facultativa, na rede pública de ensino, com a Constituição Federal de 1988, isto é, se a argumentação desenvolvida pela Corte Maior se reveste de caráter técnico, como pretendia Kelsen, ou se consideram os pensamentos do povo brasileiro, como defendido por Schmitt. Conclui-se que, pela análise de votos dos Ministros do Pretório Excelso, a argumentação técnica restou vencida por uma argumentação jurídica e de ordem política, em consonância com a vontade popular, distanciando a atuação do STF da guarda da Carta Política tal como pretendida por Hans Kelsen. A metodologia empregada é a revisão bibliográfica, sob o método dedutivo.   THE DIRECT UNCONSTITUTIONALITY ACTION 4.439 UNDER HANS KELSEN’S AND CARL SCHMITT’S CONSTITUTIONAL THEORIES PERSPECTIVE   ABSTRACT In the 20th century, Hans Kelsen and Carl Schmitt raised an issue about who was responsible for The Guardian of the Constitution.  For Kelsen, a technical body would be held responsible, wherever, a constitutional court, qualified to a compatibility analysis between superior hierarchy and inferior hierarchy. For Schmitt, on the other hand, the Head of State would bear such responsibility, for being the holder of the political will, and thus depicting popular aspirations; being the Constitution a political decision, the representative of the people would have the legitimacy to protect it, in accordance with the will of the people. In this study, it is discussed which theory the Supreme Court approached, in the judgment of Direct Unconstitutionality Action 4.439, in which, it was decided in favor of the compatibility of  the confessional natural theology nature and the elective enrollment in public school systems, with the Federal Constitution of 1988, that is, if the arguments developed by the Major Court holds a technical character, as Kelsen intended, or if they consider the thoughts of  Brazilian people, as defended by Schmitt. It is concluded that, by the analysis of the votes of the Ministers of Praetorium Excelso, the technical argument was defeated by a legal and political argument, in agreement with the popular will, intervening the performance of the STF from the custody of the Political Charter as intended by Hans Kelsen. The methodology used was the literature review, under the deductive method.   Keywords: Direct Unconstitutionality Action. Hans Kelsen. Carl Schmitt. Theory of Constitution. Secularism.

Beyond Weimar: The Long Crisis of Liberalism, the Political Economy of the Interwar Conjuncture and the Foundations of Neo-liberalism

2021 ◽  
pp. 44-72
Author(s):  
Michael A. Wilkinson
Keyword(s):  
Political Economy ◽  
Interwar Period ◽  
Historical Perspective ◽  
Carl Schmitt ◽  
The Political ◽  
Karl Polanyi ◽  
Weimar Germany ◽  
The Social ◽  
Hans Kelsen ◽  
Crisis Of Liberalism

<Online Only>This chapter examines authoritarian liberalism as a more general phenomenon ‘beyond Weimar’. It looks outside Weimar Germany and takes a longer historical perspective, revealing deeper tensions in liberalism itself, specifically its inability to respond to the issue of socio-economic inequality in a mass democracy. The major Weimar constitutional theorists—Hans Kelsen, Carl Schmitt, and Hermann Heller—had no answer to the social question as a matter of constitutional self-defence. The chapter then discusses the political economy of the various crises across Europe—in Italy, France, and Austria—revealing a similar quandary. As Karl Polanyi argued, in these contexts, the turn to authoritarian liberalism fatally weakened political democracy and left it disarmed when faced with the fascist countermovement. Later in the interwar period, proposals for neo-liberalism would be introduced, symbolized by the organization of the Walter Lippman Colloquium in 1938.</Online Only>

Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
David Dyzenhaus
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Public Law ◽  
Carl Schmitt ◽  
The Political ◽  
Sovereign Power ◽  
Decision Unit ◽  
Public International Law ◽  
Political Interests ◽  
Hans Kelsen

AbstractEyal Benvenisti has sought to provide an optimistic account of international law through reconceptualizing the idea of sovereignty as a kind of trusteeship for humanity. He thus sketches a welcome antidote to trends in recent work in public law including public international law that claim that international law is no more than a cloak for economic and political interests, so that all that matters is which powerful actor gets to decide. In this Article, I approach his position through a discussion of the debate in Weimar about sovereignty between Carl Schmitt, Hans Kelsen and Hermann Heller. I try to show that Heller’s almost unknown legal theory might be helpful to Benvenisti’s position. Heller shared with Schmitt the idea that sovereignty had to have a central role in legal theory and that its role includes a place for a final legal decision. Indeed, much more than Schmitt, Heller regarded all accounts of sovereignty as inherently political. However, in a manner closer to the spirit of Kelsen’s enterprise than to Schmitt’s, he wished to emphasize that the ultimate decider - the sovereign decision unit of the political order of liberal democracy - is entirely legally constituted. Moreover, Heller argued that fundamental principles of legality condition the exercise of a sovereign power in a way that explains the specific legitimacy of legality and which might supply the link between sovereignty and ideas such as trusteeship and humanity.

scholarly journals Pencalonan Mantan Narapidana sebagai Anggota Legislatif Perspektif Fikih Siyasah

2015 ◽  
Vol 4 (02) ◽  
pp. 561-587
Author(s):  
Musyafiatun Musyafiatun
Keyword(s):  
Legal Status ◽  
The Political ◽  
Constitutional Court ◽  
Public Office ◽  
Constitutional Politics ◽  
Local Leader ◽  
Legal Standing ◽  
The People ◽  
Political Implications ◽  
Article 50

Abstract: This article focuses on the Islamic political jurisprudence perspective against the decision of the Constitutional Court (MK) No. 4/PUU-VII/2009 on the nomination of an ex of a prisoner as a legislator. MK’s decision allows the ex of a prisoner to become a legislator, DPD, and local leader with certain conditions. The basic of the consideration is that the Constitutional Court has the authority to examine, hear, and decide the decision No. 4/PUU-VII/2009. In addition, the applicant also has no legal status in this respect (legal standing) and consideration of the principal arguments of the applicant’s request. MK’s decision No. 4/PUU-VII/2009 has juridical implication on article 12 letter g and article 50 paragraph (1) letter g of Law No. 10/2008 and article 58 letter f of Law No. 12/2008 as well as the political implications on the opportunities for the ex of a prisoner to hold a public office. Based on the Islamic political jurisprudence perspective, MK’s decision No. 4/PUU-VII/2009, which permitted the ex of a prisoner as a legislator, DPD and local leader with certain conditions, is in line with the concept of constitutional politics that includes the rights of the people. It is because the ex of a prisoner is also a member of the community whose rights should be protected if he or she repents.Keywords: Nominations, prisoner, members of the legislature.

Popular Manifestation

2021 ◽  
pp. 19-40
Author(s):  
Jason Frank
Keyword(s):  
French Revolution ◽  
Democratic Theory ◽  
Carl Schmitt ◽  
The Political ◽  
Modern Democracy ◽  
Claude Lefort ◽  
The People ◽  
Political Problem ◽  
The Aesthetic ◽  
Collective Actor

While contemporary democratic theory has explored the paradoxes of peoplehood and the dilemmas of authorization and legality that follow from them, this chapter focuses on a related but conceptually distinct problem: the question of how popular sovereignty’s authorizing entity, the people, publicly appears, how it makes itself tangible to the senses, how the people takes shape as a collective actor when no formal rules and procedures for identifying popular will exist, or when these rules and procedures are so deeply contested as to be effectively deauthorized. This chapter examines how this issue emerges in the work of two seminal theorists of modern democracy who have written extensively on the French Revolution—Carl Schmitt and Claude Lefort—only to be redirected from the aesthetic-political problem of manifestation to the political theological problem of incarnation.

Carl Schmitt and Sovereignty

2020 ◽  
pp. 21-66
Author(s):  
Miguel Vatter
Keyword(s):  
Political Theory ◽  
Legal System ◽  
Political Theology ◽  
Political Representation ◽  
Carl Schmitt ◽  
The Political ◽  
Legal Personality ◽  
Political Unity ◽  
Divine Transcendence ◽  
Hans Kelsen

This chapter reconstructs the origins of political theology in Carl Schmitt’s polemical engagement with the jurisprudence of Hans Kelsen and with the critique of sovereignty in English pluralist political theory. Kelsen sought to dismiss the idea of the state as a legal personality standing above the legal system as the product of an unscientific approach to jurisprudence because reliant on theological analogies with God’s transcendence over nature. This chapter shows that what Schmitt calls ‘political theology’ is a defence of these politico-theological analogies based on the claim that the political unity of a people requires a non-electoral form of representation of divine transcendence. The chapter then discusses Schmitt’s interpretation of Hobbes as recovering for modernity this Christian idea of political representation and compares it with the critique of Hobbes found in English pluralist theory. The chapter ends with a discussion of the debate between Schmitt and the German theologian Erik Peterson on Trinitarianism as ‘Christian’ political theology.

scholarly journals Comentario de los autos del Tribunal Supremo de 17 de octubre y 6 y 27 de noviembre de 2014, relativos a la ley de consultas populares y la «consulta popular no referendaria sobre el futuro político de Cataluña»

2016 ◽  
pp. 595
Author(s):  
Estela Gilbaja Cabrero
Keyword(s):  
Supreme Court ◽  
Central Government ◽  
The Political ◽  
Constitutional Court ◽  
Regional Government ◽  
The People ◽  
The Supreme Court ◽  
The Right

El Parlamento catalán aprobó en 2014 una Ley de consultas populares. Anteriormente, en 2013, había aprobado una Declaración de soberanía y del derecho a decidir del pueblo de Cataluña. Basándose en los citados documentos, el Presidente de la Generalitat convocó una «consulta popular no referendaria sobre el futuro político de Cataluña», que tendría lugar el 9 de noviembre de 2014. No se llegó a celebrar porque el Tribunal Constitucional decretó su suspensión, ya que el Gobierno había impugnado ante él la Ley, la Declaración y el Decreto de Convocatoria. La Generalitat, una asociación y dos particulares entendieron que los recursos del Gobierno fueron una intromisión en los derechos de los catalanes y acudieron al Tribunal Supremo. El presente trabajo estudia los Autos del Tribunal Supremo que les dan respuesta.Catalan Parliament approved in 2014 a Popular Enquiry Act. Previously, in 2013, they had approved a Declaration of Sovereignty and the right to decide of the people of Catalonia. Based on these documents, the President of the regional Government called to a «non-referendum popular enquiry about the political future of Catalonia», which would be held on November 9, 2014. It did not get to celebrate because the Constitutional Court ordered its suspension, as the central Government had impugned the Act, the Declaration and the Decree calling for the enquiry. The regional Government, an association and two people thought those impugnations were an intrusion on the Catalans’ rights and went before the Supreme Court. This paper studies the reply of the Supreme Court.

scholarly journals Ademia: Agamben and the Idea of the People

2019 ◽  
Vol 89 ◽  
pp. 95-110
Author(s):  
Gian Giacomo Fusco
Keyword(s):  
Political Thought ◽  
Carl Schmitt ◽  
Theoretical Development ◽  
The Political ◽  
Modern State ◽  
Political Space ◽  
Giorgio Agamben ◽  
The People ◽  
Ultimate Source

In the volume Stasis. Civil War as a Political Paradigm, the Italian philosopher Giorgio Agamben advances the thesis that ademia – the absence of a people (a-demos) – is a constitutive element of the modern state. When confronted with the fact that modern political and juridical thought elevated the people to the role of the sole chief constituent agent and the ultimate source of the legitimacy of constituted orders, this thesis turns out to be rather problematic. In this work, I will explore Agamben’s notion of ademia, retracing the main lines of its theoretical development and reconsidering it in relation to different interpretations of the idea of the people. Most notably, I will demonstrate how Jean-Jacques Rousseau and Carl Schmitt in challenging the conundrums that the idea of the people inevitably entails ended up in revealing the ultimate absence of the people in the political space of the constituted order of the state. In doing so, I will try to show how Agamben’s notion of ademia is helpful is grasping some of the main paradoxes and conundrums underpinning the meaning and the uses of the idea of the people in legal and political thought.

Hans Kelsen and Carl Schmitt

2014 ◽  
Author(s):  
Stanley L. Paulson
Keyword(s):  
Political Ideology ◽  
Carl Schmitt ◽  
The Political ◽  
Judicial Decision ◽  
Political Dimension ◽  
Hans Kelsen ◽  
The Law ◽  
The Guardian ◽  
Over Time

This chapter traces the intellectual relationship between Hans Kelsen and Carl Schmitt. It is well known that the two legal thinkers had sharply contrasting views on sovereignty, democracy, and the role of unity in the law and in politics. Less well known is Schmitt’s proximity, in his very early work, to Kelsen on certain issues, such as the “is”-“ought” distinction and “points of imputation.” This proximity was short-lived, and the discord between their views increased over time, culminating in the Weimar period in their diametrically opposed views on the “guardian” of the constitution. This chapter reconstructs the evolution of this intellectual antagonism, exploring Schmitt’s arguments under four rubrics: subsumption, the narrow interpretation of “material facts,” the political dimension of the judicial decision, and the neutrality of the Reich president. The thrust of Kelsen’s replies is captured in the idea that Schmitt is engaged in political ideology.

The Political Theology of Carl Schmitt

2014 ◽  
Author(s):  
Miguel Vatter
Keyword(s):  
Early Phase ◽  
Political Theology ◽  
Thomas Hobbes ◽  
The State ◽  
The Other ◽  
Carl Schmitt ◽  
The Political ◽  
Hans Kelsen ◽  
The Trinity

Carl Schmitt once defined himself as a theologian of jurisprudence. This chapter argues that his concept of political theology must be understood within the context of jurisprudence and not as a thesis concerning the use of religion within politics. In its earlier configuration, Schmitt’s political theology is a multifaceted response to two juridical critiques of sovereignty: those of Hans Kelsen; and those of Otto von Gierke and the English pluralist school. In this early phase, Schmitt’s political theology is centered on the juridical conception of representation and on the state as fictional personality, primarily as it is found in Thomas Hobbes. Through his extensive engagement with Hobbes’s interpretation of the Trinity or persons of God, Schmitt shows howjurisprudence aids in the understanding of theology rather than the other way around. Schmitt’s later work is a defense against Erik Peterson’s critique of political theology, itself based on a juridical interpretation of Christology.

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