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Abstracts of the last 4 Issues

Carl Schmitt’s Diagnosis of the Situation of European Jurisprudence Reconsidered - Autonomy of Basic Elements of the Legal Order?

Christian Tomuschat
 
 
In a groundbreaking study published in 1950, Carl Schmitt highlighted the specific characteristics of European jurisprudence (Europäische Rechtswissenschaft), arguing that before the outbreak of World War I a common legal civilisation had existed in Europe of which little was left in the contemporary epoch. Armin von Bogdandy has recently taken up that evaluation, praising on his part the “autonomy” of legal concepts and institutions as the foundation of every legal order. He believes that the fragmentary ideas expressed by Schmitt can also be usefully resorted to within in the European integration process.
It is the central thesis of both authors that “jurisprudence” may consti-tute a zone apart from political battles, providing a kind of continuity and stability to a legal order. For Schmitt, that state of harmony in Europe came to its end through the hectic development of parliamentary law-making in the 20th century that led to mindless positivism. Von Bogdandy, on the other hand, focuses above all on the beneficial rationalising effect of general concepts that have emerged within the European integration process. He refrains from addressing the substantive standards emphasised by Schmitt, contenting himself with the technical advantages of concepts that clarify and systematise any legal order.
It is a big mistake to assume that the conceptual foundations of a legal system have a neutral nature and are exempt from the antagonisms of a pluralist society. Carl Schmittt’s own intellectual trajectory, his distinction between the primary act of creating a constitution and its later implementation by a constitutional text, contradicts the theses he defended in his study of 1950. Yet, Carl Schmitt rejected the new doctrine of a democratic and liberal State as it had taken shape in 1949 in the Statute of the Council of Europe and the Basic Law of the Federal Republic of Germany. The fact that he ignored these acts of faith in a new Europe of human rights and fundamental freedoms sheds a full light on his aversion of democratic processes where, through dialogue in open confrontation, compromissory outcomes are sought. To him, the monarchical past of the 19th century represented, in accordance with his conservative views, the ideal state of affairs in a human polity. Since for him the distinction between friend and foe was an anthropological ground norm, he could not believe in peaceful consensus to achieve peace and security.
Torn apart by the vicissitudes of his own life, having trampled underfoot all the elementary standards of human decency, he is not a suitable messenger for the paradigm that jurists are the best guardians of the values having emerged by legal practices and teachings in a society. Those values need to be supported by the entire people to keep their decisive impact as living forces.
Carl Schmitt and Armin von Bogdandy have both addressed the autonomy of legal concepts and institutions. In substance, however, they have dealt with rather different subject-matters.

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