THE LEGAL THEORY OF CARL SCHMITT by MARIANO CROCE and ANDREA SALVATORE

Publication Date01 Nov 2013
AuthorRICHARD MULLENDER
DOIhttp://doi.org/10.1111/j.1467-6478.2013.00646.x
Book Reviews
THE LEGAL THEORY OF CARL SCHMITT by MARIANO CROCE and
ANDREA SALVATORE
(Abingdon: Routledge, 2013, 204 pp., £75.00)
There are good reasons for regarding Carl Schmitt as a nasty piece of work
and they have, as we will see, relevance to his views on the relationship
between law and society. In the 1920s, Schmitt clearly revelled in the task of
pointing up the frailties of Germany's liberal (Weimar) constitution.
1
In
1933, he joined the Nazi Party and acted in ways that yield `unambiguous
evidence' of a `fervent quest to ally himself with the National Socialist
regime'.
2
For example, in State, Movement, People, he argued for an
understanding of law as the product of a homogeneous community. While
unfolding this argument he declared that `[t]he legal scientists of the new
German jurisprudence' should `become aware of the systematic force of
[the] concept of ethnic identity that pervades all judicial deliberations'.
3
The
authors of The Legal Theory of Carl Schmitt, Mariano Croce and Andrea
Salvatore, note these features of Schmitt's biography. However, they urge us
to take Schmitt's On the Three Types of Juristic Thought (1934) seriously.
4
Moreover, they argue that his `main goal' in this book is `genuinely
theoretical' and that he engages in `careful reflection on the nature of society
and law'. The argument Croce and Salvatore offer in support of this view
emphasizes the `institutional turn' that assumed a definite shape in Schmitt's
work in the first half of the 1930s. The upshot is a book that throws light on
the development of Schmitt's thinking and raises important (and still open)
questions about the relationship between law and society.
While Croce and Salvatore dwell at length on the institutional turn in
Schmitt's thought, they offer a helpful overview of his earlier contributions
to legal and political philosophy. The most prominent and influential of these
contributions are his writings on decisionism and sovereignty and his pursuit
of the theme that politics is best understood in terms of relations between
friends and foes. Schmitt is dismissive of the view that existing norms (rules,
and so on) provide a sufficient basis on which to explain a legal system's
operations. He argues that a decision (that of the sovereign exercising
681
1 W.E. Scheuerman, Carl Schmitt: The End of Law (1999) 103±4.
2 id., p. 15.
3 C. Schmitt, State, Movement, People:The Triadic Structure of the Political Unity
(1933/2001) 48.
4 C. Schmitt, On the Three Types of Juristic Thought, tr. J.W. Bendersky (1934/2004).
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

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