Full Description
The Legal Theory of Carl Schmitt provides a detailed analysis of Schmitt's institutional theory of law, mainly developed in the books published between the end of the 1920s and the beginning of the 1930s. By reading Schmitt's overall work through the lens of his institutional turn, the authors offer a strikingly different interpretation of Schmitt's theory of politics, law and the relation between these two domains. The book argues that Schmitt's adhesion to legal institutionalism was a key theoretical achievement, based on serious reconsideration of the main flaws of his own decisionist paradigm, in the light of the French and Italian institutional theories of law. In so doing, the authors elucidate how Schmitt was able to unravel many of the impasses that affected his previous conceptual framework. The authors also make comparisons between Schmitt and other leading legal theorists (H. Kelsen, M. Hauriou, S. Romano and C. Mortati) and explain why the current legal debate should take into serious account his legacy.
Contents
Part 1: Concepts: decision, institutions and concrete order 1. The bumpy road to institutionalism: Schmitt's way-out of decisionism 2. Exploring Schmitt's institutionalism: institutions and normality 3. Institutionalist decisionism: law as the shelter of society 4. Institution and identity: reassessing Schmitt's political theory Part 2: Oppositions: his "enemies" and "friends" 5. Schmitt vs. Kelsen: the social ontology of legal life 6. Schmitt vs. Hauriou: the politicization of institutionalism 7. Schmitt vs. Romano: institutionalism without pluralism? 8. Schmitt vs. Mortati: the concretization of the concrete order Part 3. Implications: Schmitt's institutionalism and the current legal debate 9. The impossibility of legal indeterminacy 10. The inconceivability of legal pluralism
