Ying K. Liew, Rationalising Constructive Trusts, London: Hart Publishing, 2017, 416 pp, hb £90.00.

DOIhttp://doi.org/10.1111/1468-2230.12338
AuthorDixon Siu Chung Tse
Date01 March 2018
Published date01 March 2018
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REVIEWS
Lars Vinx,The Guardian of the Constitution: Hans Kelsen and Carl
Schmitt on the Limits of Constitutional Law, Cambridge: Cambridge
University Press, 2015, ix +296pp, hb £67.00.
The debate between Hans Kelsen and Carl Schmitt in the context of the
Weimar constitution chases the ‘big game’ of constitutional theory: The
legitimacy of constitutional adjudication; the nature, role, and proper scope of
executive power; the proper institution to protect fundamental constitutional
principles; the interaction between domestic and international legal orders; the
nature and location of sovereignty within an organised polity; the definition
and delineation of political community; the dynamics of a federal system; and
the limits on majoritarian democracy. Lars Vinx’s presentation of the debate is
structured around the so-called Preussenschlag of 1932—Chancellor Franz von
Papen’s use of emergency powers, granted by President Paul von Hindenburg
under the infamous Article 48, to wrest control of the Prussian state apparatus
in the wake of factional violence in Altona (by Hamburg). The Preussenschlag
was not just a key event in the disintegration of the Weimar Republic; it also
‘marked the culmination of two of the most important jurisprudential debates
that took place in the Weimar era: the discussion on the nature and limits
of executive powers of emergency under Article 48 and the debate on the
legitimacy and desirability of constitutional adjudication’ (5).
Schmitt and Kelsen approach these questions from polar positions, and have
very different styles of argument. Kelsen’s is technical, methodical, and mea-
sured, where Schmitt’s is a furious bluster of (often compelling) polemic. Kelsen
presents the case for a constitutional court to serve as ‘guardian of the constitu-
tion’ based on his concept of law as a hierarchy of norms empowering officials,
and imposing duties on them, that coheres by reference to an imputed ‘basic
norm’, ie a norm that must, logically, exist to make sense of thinking about the
world in legal terms. The law and the state are co-extant and co-extensive—
for Kelsen, every Staat is a Rechtsstaat, sovereignty is dispersed throughout the
legal order, and the answer to every other question follows naturally from this
premise. For Schmitt, on the other hand, the foundation of a constitutional
order is a moment of political will. The unity of the state reflects the unity
of the political community whose will calls it into existence, and this will
cannot be bound by the strictures of a liberal constitution which operates to
the material detriment of that community. Consistent with his view that a
dictator might represent the democratic will of the political community more
faithfully than a parliament debased by fractional interests, Schmitt argues that
the executive should be trusted as guardian of the constitution. (For a more
granular analysis of Kelsen and Schmitt’s views—and how they had changed
over the decades prior—see Stanley Paulson, ‘Hans Kelsen and Carl Schmitt:
Growing Discord, Culminating in the “Guardian” Controversy of 1931’ in
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Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Reviews
J. Meierhenrich and O. Simons (eds), Oxford Handbook of Carl Schmitt (Oxford:
OUP, 2016)).
Vinx’s translation is very good. The collection of essays is well chosen, com-
mencing with Kelsen’s 1929 essay on the nature of constitutional adjudication,
then covering Schmitt’s argument against judicial review, Schmitt’s argument
for the President as guardian of the constitution, Kelsen’s reply, Schmitt’s closing
statement in the Preussenschlag case, and finishing with Kelsen’s critique of the
decision. Vinx sets the stage with an excellent 21 page Introduction. The text
is accompanied by the original footnotes, and reading Vinx’s starred endnotes
provides much of the necessary context and thus illuminates the essays—for
example by explaining points of Weimar constitutional law or references to
dates, names, or places. This makes the debate readily accessible, and readers
will be able to proceed with confidence.
Schmitt’s thought has enjoyed a resurgence of interest since the 1980s, and
again in the 2000s. He is a controversialfigure whose legacy is difficult to define.
Charged by some with providing the juristic legitimation for Adolf Hitler’s
dictatorship and the extermination of ‘internal enemies of the state’, Schmitt
is said by others to have been a mere opportunist, a Mitl¨
aufer marginalised in
the Party, whose thought can be isolated and taken on its own merits. Indeed,
Schmitt is remarkable for his contemporary bi-partisan appeal to the neo-
conservative Right and the post-Marxist Left. Kelsen evokes less passionate
critics and acolytes. Despite his canonical status among active (and recovering)
legal theorists, passing references to his Grundnorm in the Anglophone literature
more generally lend the impression that his thought is placed in the footnotes
too quickly. His highly technical, formalistic style is perhaps ill-matched to the
predilections of the English lawyer, especially one raised on H. L. A. Hart’s
brand of ‘social fact’ positivism. In a rather unfortunate twist, Kelsen’s attempt
to develop a ‘pure’ method of legal science unsullied by moral judgments has
even attracted the disapprobation of some natural lawyers who charge legal
positivism with facilitating the debasement of German law during the Third
Reich. Vinx has done every Anglophone scholar a service, now, by letting
Schmitt and Kelsen speak to us in their own words, and in their proper context.
There is much in this volume which a reviewer ought to mention, but
I shall limit my review to three main points. The first is that the Weimar
debate, as a historical source, shows us the breadth of the debate about the
legitimacy of judicial review. It does not begin with Marbury vMadison and
end with modern English ‘political constitutionalism’, but has played out in
different constitutional contexts which offer worthwhile data for comparison.
Anglophone discussions of the legitimacy of judicial review already take place
against a rich comparative background of English, British, American, and
Commonwealth constitutional laws and histories. But the Schmitt-Kelsen
debate presents a worthwhile point of triangulation, and warrants closer
inspection. Comparing constitutional laws is hard to do well, and easy to do
badly. This volume will prove itself to be a useful aid.
Secondly, the debate gives the startling impression that Kelsen’s theory of
constitutional adjudication is the more realistic of the two. Vinx introduces
this proposition in his Introduction: ‘Though Kelsen favoured the greatest
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possible extension of constitutional legality he may well have had a sounder
understanding of its political limits than Schmitt. This suggestion may come as a
surprise to some readers, but only because Kelsen’s political and constitutional-
theoretical works do not yet, in contrast to Schmitt’s, receive the attention
they deserve.’ (21). The essays, in my view, vindicate Vinx’s interpretation.
Where Kelsen’s hierarchical view of a legal system frankly accepts that norm-
application at one level entails norm-creation at another level (see S. L. Paulson,
‘How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law’ (2013) 21 Revus
29), and that judges will make political decisions, Schmitt adopts a rigid view
of the judge as a norm-applying automaton. As soon as judges start making
political decisions, for Schmitt, they stop judging, or stop judging properly.
For all Schmitt’s supposed realism, his account of judging is an unconvincing
straw man.
Thirdly, with the benefit of almost a century’s hindsight, we should accept
that Schmitt underestimated the capacity of law to constrain executive authority.
While the Weimar constitution did not weather its storm, this is in part because
key figures (including Schmitt) gave up on it. In recent years we have seen
judiciaries in this country, in the United States, and in the Commonwealth
standing their ground in the face of muscular executive action to address
threats seen, rightly or wrongly, as ‘existential’. Liberal democracy may be
facing a new and serious crisis in the f ace of populist nativism, inter alia—a
crisis on which Schmittian perspectives are surely important and worthwhile—
but it is important to remember that while Schmitt won the battle, Kelsen won
the war.
On reading the essays, juxtaposed like this for the first time, I was convinced
that Schmitt simply could not counter Kelsen’s technical sophistication, and
that he took to it with an angry hammer instead. That impression was not, I
think, entirely correct; Schmitt’s earlier writings, which engage with Kelsen’s
intricate neo-Kantianism more directly, show as much. The better view, I
think, is that Schmitt and Kelsen had very different aims, and that Schmitt’s
aims were more rhetorical and pragmatic. He knew his audience better, and
he probably won the debate for this reason. (We know that Schmitt was not
by nature above making an argument he knew was wrong for instrumental
reasons; later, Schmitt the reluctant Nazi would say on the record that Kelsen’s
works should be placed in the ‘Judaica’ section of the library, far from the law
book, see C. Schmitt, ‘Die deutsche Rechtswissenschaft im Kampf gegen den
j¨
udischen Geist’ (1936) 41 Deutsche Juristenzeitung 1193). By contrast, Kelsen
failed to treat, even in the twilight of the Republic, the issue of a constitutional
dictatorship in his essay on who should be guardian of the constitution. Indeed,
nowhere in his writings does Kelsen deal with this question directly, despite
its prominence in Schmitt’s thought. Perhaps he simply had nothing to say on
it beyond what was implicit in his general theory. Again, Vinx suggests that
Kelsen was more realistic in his expectations of legality to constrain political
power than we typically give him credit for, but we also see the men’s different
styles of argument in this rather important gap.
The strike against Prussia ended with what might seem to be a very British
resolution: the Staatsgerichtshof effectively ‘read down’ the President’s decree.
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(2018) 81(2) MLR 361–393 363

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