Constitutional Theory Schmitt After Derrida

Cover -- Title -- Copyright -- Dedication -- Contents -- Acknowledgements -- Note on translations and references -- List of abbreviations -- 1 Introduction -- Schmitt and Derrida -- Constitutional theory -- Reading Schmitt -- Sequence and overview of chapters -- 2 The concept of the political -- A. Polémios -- Introduction -- Plato -- Schmitt -- Freud -- Heidegger -- The structure of the political -- B. Partisan -- Introduction -- Criteria -- The question of technology -- Philosophy and the Acheron -- The brother as double -- Woman as the absolute partisan -- Today's terror and the structure of the political -- C. Self -- Introduction -- Defining man: nakedness -- Stirner and his ego -- Modern technology -- Being-placed-in-question -- Self-deception -- Descartes and the self as enemy -- Hegel and the enemy -- Echo -- The concept of the political -- 3 Constituent power -- Introduction -- Political unity -- Political theology -- Fear and the Leviathan -- Demos without sovereignty -- Conclusion -- 4 Identity and representation -- Introduction -- The formation of identity -- Representation reconceived -- Conclusion -- 5 The concept of the constitution -- A. Khōra -- Introduction -- Derrida's reading of the Timaeus -- Khōra and the political -- Constitutions as giving place -- B. Crypt -- Introduction -- The Wolf Man -- The Wolf Man's crypt -- Constitution, memory and trauma -- 6 Human rights -- Introduction -- Freedom -- Equality -- Living together -- 7 State, Gro[beta]raum, nomos -- Introduction -- Nomos -- Man, space, nomos -- Conclusion -- 8 Conclusion -- Schmitt 'before' Derrida -- Derrida reading Schmitt -- Schmitt 'after' Derrida -- Bibliography -- Index

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.

Carl Schmitt, one of the most influential legal and political thinkers of the twentieth century, is known chiefly for his work on international law, sovereignty, and his doctrine of political exception. This book argues that greater prominence should be given to his early work in legal studies. Schmitt himself repeatedly identified as a jurist, and Hugo E. Herrera demonstrates how for Schmitt, law plays a key role as an intermediary between ideal, conceptual theory and the complexity of practical, concrete situations. Law is concerned precisely with balancing the extremes of theory and reality, and in this respect, Schmitt associates it with philosophical thinking broadly as being able to understand and explain the tensions in human experience. Reviewing and analyzing prevailing interpretations of Schmitt by Jacques Derrida, Heinrich Meier, and others, Herrera argues that the importance of Schmitt's legal framework is both significant and overlooked.

Can a constitutional democracy commit suicide? Can an illiberal antidemocratic party legitimately obtain power through democratic elections and amend liberalism and democracy out of the constitution entirely? In Weimar Germany, these theoretical questions were both practically and existentially relevant. By 1932, the Nazi and Communist parties combined held a majority of seats in parliament. Neither accepted the legitimacy of liberal democracy. Their only reason for participating democratically was to amend the constitution out of existence. This book analyses Carl Schmitt's state and constitutional theory and shows how it was conceived in response to the Weimar crisis. Right-wing and left-wing political extremists recognized that a path to legal revolution lay in the Weimar constitution's combination of democratic procedures, total neutrality toward political goals, and positive law. Schmitt's writings sought to address the unique problems posed by mass democracy. Schmitt's thought anticipated 'constrained' or 'militant' democracy, a type of constitution that guards against subversive expressions of popular sovereignty and whose mechanisms include the entrenchment of basic constitutional commitments and party bans. Schmitt's state and constitutional theory remains important: the problems he identified continue to exist within liberal democratic states. Schmitt offers democrats today a novel way to understand the legitimacy of liberal democracy and the limits of constitutional change.

It is a commonplace of Schmitt scholarship that the controversial thinker sought to recapture some of the elan of the pre-Weimar state through his advocacy of effectively almost unlimited presidential government. Seitzer demonstrates how Schmitt believed comparative history itself could reinvigorate the ailing German state by subtly altering prevailing understandings of the relation of theory and practice in law and politics. Treating Schmitt's Constitutional Theory and Guardian of the Constitution as methodologically sophisticated comparative histories, Seitzer turns Schmitt's argument against itself. He shows how Schmitt's comparative histories, when properly executed, support a decentralized solution to the Republic's difficulties directly contrary to Schmitt's in terms of its purpose and effect. Problem-oriented, comparative-historical studies of key features of the Weimar system suggest that the dispersion of political power facilitates an institutional dialogue over constitutional principle and practice that better provides for political stability and democratic experimentation. These studies also suggest that linking forms of justification with institutions establishes a productive tension among norms and institutions that is essential to maintaining the viability of constitutional democracy, both in the short- and long-term. This work will be of considerable value to Schmitt scholars and those interested in German legal and political theory as well as those concerned with broad issues in comparative law and European history and political theory.

Deconstructive Constitutionalism explores the relationship between the thinking of Immanuel Kant and Jacques Derrida concerning modern constitutionalism. Kant is widely recognized as one of the philosophical forebears of modern constitutionalism; that is, the notion that state powers should be defined and limited through a constitution. Kant laid the foundation of constitutionalism through his exposition of freedom, practical reason, and moral law. However, constitutionalism is under severe strain due to the challenges posed by inter alia climate change, global health, global conflict, authoritarianism, authoritarian populism, religious fundamentalism, migration, and inequality. Deconstructive Constitutionalism investigates, by way of Derrida's engagements with Kant, how the foundations of constitutionalism can be conceived differently to address some of these twenty-first-century challenges. The book examines the possible implications of such a re-reading of Kant for democracy, the human-animal relation, criminal law and punishment, as well as for a global constitutional order.

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Makes available in English Carl Schmitt's early legal-theoretical writings, the intellectual background of Schmitt's political and constitutional theory.