Constitutional Theory

Constitutional Theory
Book Pages: 488 Illustrations: 2 tables, 5 figures Published: January 2008

European Studies, Law > Legal Theory, Politics > Political Theory

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.


“Read by itself, Constitutional Theory offers a rigorous, in-depth study of the ideas informing the modern Rechtsstaat constitution. Read together with The Concept of the Political, Constitutional Theory presages an ominous grouping of mutually hostile nation-states, each formed on the basis of a homogeneous people that has willed its separateness and is enclosed by impermeable boundaries. . . . Seitzer's translation is readable and faithful to the original.” — Robert D. Rachlin H-German, H-Net Reviews

Constitutional Theory represents an unparalleled milestone in Schmitt translations. Indispensable to scholars in political and legal theory, it will undoubtedly occupy a pivotal place in debates over Schmitt. In itself, the Seitzer-Thornhill introduction constitutes one of the most authoritative and intellectually sophisticated contributions to this field in decades.” — Joseph W. Bendersky, author of Carl Schmitt: Theorist for the Reich

“What Heidegger’s Being and Time is to European philosophy, Constitutional Theory is to European political philosophy. It is astounding that one of the most important works of twentieth-century political theory has remained untranslated until now. But this edition makes the wait worthwhile.” — John P. McCormick, University of Chicago


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Author/Editor Bios Back to Top

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.

Table of Contents Back to Top
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
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Paper ISBN: 978-0-8223-4070-6 / Cloth ISBN: 978-0-8223-4011-9
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