Legality and Legitimacy

Legality and Legitimacy

Book Pages: 216 Illustrations: Published: February 2004

Author: Carl Schmitt

Translator: Jeffrey Seitzer

Contributor(s): Jeffrey Seitzer, John P. McCormick

Subjects
History > European History, Law, Politics > Political Theory

Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society.

Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.

Praise

"Jeffrey Seitzer's clear and readable translation, together with John McCormick's learned and judicious introduction, now extend to the Anglophone community an opportunity to consider the summation of Schmitt's original, provocative, though internally inconsistent assault on liberal democracy and the rule of law." — Benjamin Gregg , Law and Politics Book Review

"Jeffrey Seitzer's excellent translation of Schmitt's book will . . . be of interest not only to those interested in the history of legal theory, but also to scholars working on contemporary issues of constitutional theory." — Lasse Thomassen , Modern Law Review

"McCormick's introduction to Legality and Legitimacy is insightful, setting the work in its proper historical context. . . ." — Maureen Norton-Hawk, Bimonthly Review of Law Books

"The interplay between Schmitt's critique of legal formalism, his ideas about sovereignty, and the pressing concerns of the political context make Legality and Legitimacy a crucial text for anyone who seeks to understand the precarious stability of parliamentary government and liberal democracy." — Christian J. Emden , H-German, H-Net Reviews

“An English translation of Carl Schmitt’s Legalität und Legitimität is long overdue. Legality and Legitimacy concludes the critique of legal positivism and the rationality of statute law he began in The Crisis of Parliamentary Democracy and Political Theology and does so in the historical context of Weimar’s final crisis. It was an important argument at the time and is just as significant seventy-odd years later.” — Ellen Kennedy, author of Constitutional Failure: Carl Schmitt in Weimar

“Carl Schmitt is an unorthodox classic. One of the intellectual grave-diggers of the Weimar Republic, he wrote this brilliant book in the middle of the political crisis, opting for presidential dictatorship. Excellent in its analysis, Legality and Legitimacy is unwise regarding political consequences and without a realistic political vision for the future. This first English-language translation should stimulate European-American dialogue about the vitality of democratic institutions in view of the challenges of antidemocratic and antiliberal temptations.” — Michael Stolleis, University of Frankfurt

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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 Idea of Representation, The Crisis of Parliamentary Democracy, Political Romanticism, and The Concept of the Political.

Jeffrey Seitzer is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy. John P. McCormick is Associate Professor of Political Science at the University of Chicago. He is the author of Carl Schmitt’s Critique of Liberalism and editor of Confronting Mass Democracy and Industrial Technology, published by Duke University Press.

Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Idea of Representation, The Crisis of Parliamentary Democracy, Political Romanticism, and The Concept of the Political.

Jeffrey Seitzer is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy. John P. McCormick is Associate Professor of Political Science at the University of Chicago. He is the author of Carl Schmitt’s Critique of Liberalism and editor of Confronting Mass Democracy and Industrial Technology, published by Duke University Press.

Table of Contents Back to Top
Translator’s Preface / Jeffrey Seitzer ix

Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’s Legality and Legitimacy JOHN P. McCORMICK xiii

Legality and Legitimacy

Introduction: The Legislative State System of Legality Compared to Other State Types (Jurisdiction, Governmnetal, and Administrative States) / John P. McCormick 3

I: The System of the Legality of the Parliaamentary Legislative State

1. The Legislative State and the Concept of Law 17

2. Legality and the Equal Chance for Achieving Political Power 27

II: The Three Extraordinary Lawgivers of the Weimar Constitution

3. The Extraordinary Lawgiver Ratione Materiae: The Second Principal Part of the Weimar Constitution and a Second Constitution 39

4. The Extraordinary Lawgiver Ratione Supremitatis: Actual Meaning - Plebiscitary Legitimacy instead of Lgislative State Legality 59

5. The Extraordinary Lawgiver Ratione Necessitatis: Actual Meaning - The Administrative State Measure Displaces the Parliamentary Legislative State Statute 67

Conclusion 85

Afterword (1958) 95

Appendix: Selected Articles of the Weimar Constitution 103

Notes 109

Works Cited by Carl Schmitt in Legality and Legitimacy 161

Index 165
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Paper ISBN: 978-0-8223-3174-2 / Cloth ISBN: 978-0-8223-3161-2
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