Schmitt's Critique of Kelsenian Normativism

Abstract

The aim of this paper is to underline the relevance of Schmitt's critique of Kelsenian normativism in the context of today's debate about the status of legal positivism. Schmitt's underlining of the limits which a certain kind of positivism imposes upon itself highlights a contemporary issue about what legal theory should aim at when accounting for the normative dimension of law. Schmitt's ultimate failure to take up the theoretical challenge he himself raised (with its well-known consequences) is deemed to illustrate-negatively-the importance of providing a plausible account of the social practices which bring law into existence.

Keywords: Carl Schmitt, Kelsen, normativity, Weimar, decisionism