The Legal Theory of Carl Schmitt

Croce, Mariano; Salvatore, Andrea

doi:10.4324/9780203096949

Cited by 44 publications

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“…Before we pin down the genuine merits of Schmitt's institutional approach, it is worth deploying our thesis in more detail. The institutional theory of law that Schmitt chiefly develops in The Three Types can be qualified as follows: (1) it represents a genuine milestone in Schmitt's overall theorizing, which radically and irreversibly changes the way he approaches and conceives legal and political 3 See Arvidsson, Br€ annstr€ om and Minkinnen 2015; Croce and Salvatore 2007;Croce and Salvatore 2013;Loughlin 2014. 4 A critical consideration of Schmitt's involvement with the Nazi regime goes far beyond the aim of the present inquiry.…”

Section: Schmitt and Decisionism: A Lasting (And Equivocal) Relationshipmentioning

confidence: 99%

“… We will not attempt to justify all these claims, and will concentrate on some of them. A complete vindication of our position is to be found in Croce and Salvatore .…”

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“… Needless to say, Hauriou's and Romano's institutional models exhibit remarkable differences, which Schmitt deliberately ignores in order to provide a homogeneous picture of legal institutionalism. For a thorough analysis of these differences, see Croce and Salvatore , chaps. 6 and 7.…”

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confidence: 99%

“… This fertile school of thought is, in our reading, the second main source of Schmitt's institutionalism. We address this topic in Croce and Salvatore , chap. 2.…”

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After Exception: Carl Schmitt's Legal Institutionalism and the Repudiation of Exceptionalism

Croce

Salvatore

2016

Ratio Juris

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In the most classical and abstract sense, the exception is the "miraculous" moment of the sovereign decision where the borders between the inside and the outside are fixed through the identification of the enemy. This is a Schmittian legacy that a growing number of theoretical paradigms today look at in order to either build on it or to debunk it. For some interpreters, exceptionalism is a perceptive analysis of the way political power takes hold of society; for others, it is a misleading and mystifying hypothesis that may even end up justifying the increasing overuse of emergency powers all over the world.Whether or not exceptionalism has something sensible to say about today's politics, in this article we will argue that Carl Schmitt himself, the recognized father of this paradigm, came to the conclusion that it is not ultimately tenable. Between the end of the 1920s and the beginning of the 1930s, Schmitt extensively revised his view of law and politics in light of legal institutionalism, a theory that considered law in general to be connected to the phenomenon of social organization and the legal order to be rooted in the laborious and enduring activity of social actors.The present article pursues three chief aims. First, we will provide grounds for holding that Schmitt's theory as a whole cannot be read through the lens of exceptionalism and decisionism. Secondly, we will explain the reasons why he decided to reconsider his approach. Thirdly, and more importantly, not only will our analysis aim to provide a better understanding of Schmitt's thinking, but it will also, and perhaps primarily, aim to shed some light on the limits of exceptionalism by tracing the tormented path followed by its inventor.In order to achieve these aims, we will first illustrate why the exceptionalist reading of Schmitt does not hold (Section 1). Then we will discuss the impact of institutionalism on Schmitt's overall theory (Section 2). We will go on by exploring Schmitt's particular version of institutionalism, as it reveals the chasm between a paradigm based on the exception and one that recognizes the foundational and vital role of social practices (Section 3). Finally, we will make the claim that Schmitt did away with exceptionalism precisely because of its abstract and paradoxical nature (Section 4).

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Section: Schmitt and Decisionism: A Lasting (And Equivocal) Relationshipmentioning

confidence: 99%

“… We will not attempt to justify all these claims, and will concentrate on some of them. A complete vindication of our position is to be found in Croce and Salvatore .…”

mentioning

confidence: 99%

mentioning

confidence: 99%

“… This fertile school of thought is, in our reading, the second main source of Schmitt's institutionalism. We address this topic in Croce and Salvatore , chap. 2.…”

mentioning

confidence: 99%

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After Exception: Carl Schmitt's Legal Institutionalism and the Repudiation of Exceptionalism

Croce

Salvatore

2016

Ratio Juris

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“…For a thorough analysis of Schmitt's revision of decisionism and his final adhesion to legal institutionalism, seeCroce and Salvatore (2013).…”

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Whither the state? On Santi Romano’sThe legal order

Croce

2018

Ethics & Global Politics

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This essay foregrounds the relevance of Italian jurist Santi Romano's theorizing to today's political and legal debates on the relation between state and non-state laws. As Romano's classic book L'ordinamento giuridico (1917-1918) has finally been translated into English, the Anglophone readership can take stock of one of the most enlightening contributions to institutional thinking in the last centuries. Romano put forward a theory of legal institutionalism that has legal pluralism as a basic corollary and contended that the legal order is naturally equipped to temper and overcome conflicts between bodies of law. The present contribution argues that this approach unravels the riddles of recent multiculturalist paradigms and provides invaluable insights on the way the state could and should manage the conflicts between competing normative orders that lay claims to legislative and jurisdictional autonomy.

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Schmitt, Carl

Galli¹

2023

Studies in the History of Law and Justice

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The Legal Theory of Carl Schmitt

Cited by 44 publications

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After Exception: Carl Schmitt's Legal Institutionalism and the Repudiation of Exceptionalism

After Exception: Carl Schmitt's Legal Institutionalism and the Repudiation of Exceptionalism

Whither the state? On Santi Romano’sThe legal order

Schmitt, Carl

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