Schmitt, Carl (1888–1985)

2018 ◽  
Author(s):  
David Ludovic Dyzenhaus
Keyword(s):  
Political Philosophy ◽  
Legal Theory ◽  
Public Law ◽  
Legal Order ◽  
Carl Schmitt ◽  
Right Wing ◽  
Liberal State ◽  
Liberal Democratic ◽  
Democratic Constitution

Carl Schmitt was a conservative critic of the Weimar Republic’s liberal-democratic constitution. After Hitler’s rise to power, he allied himself briefly to Nazism, and despite having fallen from favour and having revised his position even before the war, was never able to rehabilitate himself from the Nazi taint. Interned at Nuremberg in 1945, he was never brought to trial, but was banned from teaching thereafter. His critique of liberalism lay in liberalism’s alleged inability to deal with the nature of politics. Schmitt continues to exert a vast influence on German public law, legal theory and political philosophy, as well as on European right-wing thought. His work remains important for liberals and opponents of liberalism for the challenges it poses to the neutrality of the liberal state and its legal order.

The Invisible Center: Christian Liberalism in American Religious Freedom Jurisprudence

2019 ◽  
pp. 174387211986467
Author(s):  
Hannah Dick
Keyword(s):  
Religious Freedom ◽  
Legal Theory ◽  
Religious Studies ◽  
Establishment Clause ◽  
Liberal State ◽  
Conceptual Tool ◽  
Free Exercise ◽  
Liberal Democratic ◽  
Antidiscrimination Law ◽  
The One

This article interrogates the notion of liberal state neutrality when it comes to adjudicating religious freedom claims. Drawing on work in political theory, legal theory, and religious studies, I argue that Christianity is a central and invisible feature of liberalism. I then examine how Christian liberalism has shaped American religious freedom jurisprudence, analyzing contradictory Supreme Court decisions involving free exercise and establishment claims. On the one hand, the language of secular purpose has safeguarded several Christian expressions from Establishment Clause scrutiny. On the other hand, since the passage of the Religious Freedom Restoration Act (1993), some Christian conservative legal advocates have repositioned Christianity as a persecuted religion requiring free exercise exemptions from antidiscrimination law. That the Court has recently obliged this more narrow understanding of religious freedom demonstrates the resilience of the Christian liberal state. While the cases are drawn from the American context, I suggest that the language of Christian liberalism is a useful conceptual tool for analyzing religious freedom claims in a variety of liberal democratic contexts.

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.

Legal Theory in the Collapse of Weimar: Contemporary Lessons?

1997 ◽  
Vol 91 (1) ◽  
pp. 121-134 ◽  
Author(s):  
David Dyzenhaus
Keyword(s):  
Political Theory ◽  
Rule Of Law ◽  
John Rawls ◽  
Legal Theory ◽  
Public Law ◽  
Carl Schmitt ◽  
Court Case ◽  
Liberal Democracies ◽  
The Rule Of Law ◽  
Hans Kelsen

The Weimar Republic is frequently invoked in political theory as an example when the issue is the appropriate response of liberal democracies to internal, fundamental challenges. I explore that example through the lens of a 1932 court case that tested the legality of the federal government's “coup” against Prussia. In my analysis of the court's judgment and of the arguments of three political and public law theorists, Carl Schmitt, Hans Kelsen, and Hermann Heller, I argue for Heller's democratic vision of the rule of law. In my conclusion, I compare problems in Kelsen's position with problems in the recently articulated position of John Rawls in order to suggest what lessons Weimar may have for contemporary political theory.

Confucian Perfectionism

2013 ◽  
Author(s):  
Joseph Chan
Keyword(s):  
Political Philosophy ◽  
Civil Liberties ◽  
Moral Rights ◽  
Democratic Institutions ◽  
Political Equality ◽  
Philosophical Foundations ◽  
Liberal Conception ◽  
Liberal Democratic ◽  
Conception Of The Good ◽  
The Right

Since the very beginning, Confucianism has been troubled by a serious gap between its political ideals and the reality of societal circumstances. Contemporary Confucians must develop a viable method of governance that can retain the spirit of the Confucian ideal while tackling problems arising from nonideal modern situations. The best way to meet this challenge, this book argues, is to adopt liberal democratic institutions that are shaped by the Confucian conception of the good rather than the liberal conception of the right. The book examines and reconstructs both Confucian political thought and liberal democratic institutions, blending them to form a new Confucian political philosophy. The book decouples liberal democratic institutions from their popular liberal philosophical foundations in fundamental moral rights, such as popular sovereignty, political equality, and individual sovereignty. Instead, it grounds them on Confucian principles and redefines their roles and functions, thus mixing Confucianism with liberal democratic institutions in a way that strengthens both. The book then explores the implications of this new yet traditional political philosophy for fundamental issues in modern politics, including authority, democracy, human rights, civil liberties, and social justice. The book critically reconfigures the Confucian political philosophy of the classical period for the contemporary era.

scholarly journals EU Operational Powers and Legal Protection: A Legal Theory Perspective on the Operational Powers of the European Border and Coast Guard

2021 ◽  
Vol 22 (4) ◽  
pp. 625-649
Author(s):  
Bas Schotel
Keyword(s):  
Legal Theory ◽  
Legal Protection ◽  
European Parliament ◽  
Blind Spot ◽  
Public Law ◽  
Coast Guard ◽  
Public Power ◽  
Legal Constraints ◽  
First Time ◽  
The Eu

AbstractFor the first time in its history, the EU is in the process of acquiring significant and genuine permanent operational powers. A new Regulation on the European Border and Coast Guard provides Frontex with a permanent corps of 10,000 border guards—3,000 of which will be EU agents—its own equipment, and its own competences to intervene along the EU borders and beyond. The operational powers will allow the EU to directly and physically intervene in tangible reality.This Article argues that the conferral of operational powers on the EU poses a risk to individual legal protection. This is because once authorities have acquired operational powers of a certain extent and quality, they can afford to act against or without the law by simply overpowering or eluding the legal mechanisms that normally constrain the exercise of public power. So far, Members of the European Parliament and academics critical of Frontex and the new Regulation have overlooked this issue and concentrated exclusively on how to legally constrain the exercise of operational powers. This Article addresses this blind spot by examining whether and how public law should place legal constraints not only on the exercise but also on the build-up of operational powers.

The Alt-Right’s continuation of the ‘cultural war’ in Euro-American societies

Thesis Eleven ◽  
2021 ◽  
pp. 072551362110059
Author(s):  
Tamir Bar-On
Keyword(s):  
Carl Schmitt ◽  
New Right ◽  
Right Wing ◽  
Antonio Gramsci ◽  
Left Wing ◽  
Anti Semitism ◽  
The Usa ◽  
The Masses ◽  
Hearts And Minds

In this paper, I argue that the Alt-Right needs to be taken seriously by the liberal establishment, the general public, and leftist cultural elites for five main reasons: 1) its ‘right-wing Gramscianism’ borrows from the French New Right ( Nouvelle Droite – ND) and the French and pan-European Identitarian movement. This means that it is engaged in the continuation of a larger Euro-American metapolitical struggle to change hearts and minds on issues related to white nationalism, anti-Semitism, and racialism; 2) it is indebted to the metapolitical evolution of sectors of the violent neo-Nazi and earlier white nationalist movements in the USA; 3) this metapolitical orientation uses the mass media, the internet, and social media in general to reach and influence the masses of Americans; 4) the ‘cultural war’ means that the Alt-Right’s spokesman Richard Spencer, French ND leader Alain de Benoist, and other intellectuals see themselves as a type of Leninist vanguard on the radical right, which borrows from left-wing authors such as Antonio Gramsci and their positions in order to win the metapolitical struggle against ‘dominant’ liberal and left-wing political and cultural elites; and 5) this ‘cultural war’ is intellectually and philosophically sophisticated because it understands the crucial role of culture in destabilizing liberal society and makes use of important philosophers such as Friedrich Nietzsche, Carl Schmitt, Julius Evola and others in order to give credence to its revolutionary, racialist, and anti-liberal ideals.

scholarly journals Significado y alcance de la inviolabilidad del Rey

2021 ◽  
pp. 357
Author(s):  
Patricia García Majado
Keyword(s):  
Legal Order ◽  
Legal Regime ◽  
Democratic System ◽  
Democratic Constitution

El objeto del presente artículo es analizar el papel que la inviolabilidad regia desempeña en el marco del sistema democrático español y su particular régimen jurídico. Para ello, aquélla tratará de desvincularse de concepciones pretéritas que justificaban su existencia, tratando de hallarle su fundamento en el marco de una Constitución democrática, desentrañando, a partir de la misma, la función que dicho instituto ostenta en el ordenamiento español. A continuación, tratará de estudiarse su alcance, tanto en términos temporales como materiales, a efectos de comprobar si resulta compatible o no con la función que la inviolabilidad tiene asignada; todo ello a efectos de determinar si nos hallamos ante una justificable prerrogativa o ante un intolerable privilegio.The aim of this paper is to analyze both the role that the royal prerogative plays in the Spanish democratic system and its particular legal regime. For that purpose, it will be detached from past or historical conceptions which before justified its existence, trying to find its present foundation in the framework of a democratic Constitution, which will determine the function it is called to play in the Spanish legal order. Then, the paper will explore its legal scope, both in substantive and temporal terms, so as to verify whether it is compatible with the function the inviolability holds and, consequently, if we are dealing with a justifiable prerogative or an intolerable privilege.

Does Liberal Democracy Require a Gandhian Approach to Religion?

Acorn ◽  
2019 ◽  
Vol 19 (2) ◽  
pp. 101-129
Author(s):  
Sanjay Lal ◽  
Jeff Shawn Jose ◽  
Douglas Allen ◽  
Michael Allen ◽  
Keyword(s):  
Liberal Democracy ◽  
Democratic Theory ◽  
Political Liberalism ◽  
Religious Values ◽  
Public Justification ◽  
Liberal State ◽  
Absolute Truth ◽  
Democratic Socialism ◽  
Liberal Democratic ◽  
Unity In Diversity

In this author-meets-critics dialogue, Sanjay Lal, author of , argues that Gandhian values of nonviolence raise aspirations of liberal democracy to a higher level. Since Gandhian values of nonviolence are closely associated with religious values, liberal democracy should make public commitments to religions on a non-sectarian basis, except for unreasonable religions. Critic Jeff Shawn Jose agrees that Gandhian values can strengthen liberal democracy. However, Jose finds a contradiction in Lal’s proposal that a liberal state should support reasonable religions only. A more consistent Gandhian approach would focus on everyday interactions between citizens and groups rather than state-directed preferences. Critic Douglas Allen also welcomes Lal’s project that brings Gandhian philosophy into relation with liberal democratic theory; however, he argues that universalizing the Absolute Truth of genuine religion is more complicated than Lal acknowledges. D. Allen argues for a Gandhian approach of relative truths, which cannot be evaluated apart from contingency or context, and he offers autobiographical evidence in support of his critical suspicion of genuine religion. Critic Michael Allen argues that Lal’s metaphysical approach to public justification violates a central commitment of political liberalism not to take sides on any metaphysical basis. M. Allen argues that democratic socialism is closer to Gandhi’s approach than is liberalism. Lal responds to critics by arguing that Gandhi’s evaluation of unreasonable religions depends upon an assessment of violence, which is not as problematic as critics charge, either from a Gandhian perspective or a liberal one. Furthermore, by excluding unreasonable or violent religions from state promotion, Lal argues that he is not advocating state suppression. Finally, Lal argues that Gandhian or Kingian metaphysics are worthy of support by liberal, democratic states seeking to educate individuals regarding peaceful unity in diversity.

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