Schmitt v. (?) Kelsen: The Total State of Exception Posited for the Total Regulation of Life
Baltic Journal of Law & Politics, Vol. 3, No. 2, pp. 98-118, 2010
21 Pages Posted: 7 Mar 2011
Date Written: December 15, 2010
Firstly, the article focuses on the ideologies of Hans Kelsen and Carl Schmitt, which are, as a matter of stereotype, considered as being in opposition to each other. By revealing the logics of Kelsenian normativism and the conception of law presupposed therein, the paper aims at re-constructing the opposition into a generative affinity of two ideologies and showing that these two great ideological adversaries of the first half of the twentieth century could be considered co-authors of the same ideological construct. The construct could be called the total state of exception, with the inherent political holism and legal nihilism.
The second main aim of the article is to widen the scope of this insight by relating it to the applied ideas that frame our modern political world. The ideas are those of democracy and human rights, the former appearing as the form of the total state, the latter as the one possible de-former of the total state. However, the foundation – i.e. natural law – of the de-former appears to be inconceivable and, therefore, lost to the modern mind. In the end, the article attempts to show that Schmitt might have reflected on this much more fundamental aspect of legal nihilism. This reflection provides for the possibility of dissonances in his basically anthropocentric decisionism and the centralization of the problem of natural law.
Keywords: Carl Schmitt, Hans Kelsen, State of Exception, Positivism, Normativism, Political Holism, Natural Law
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