On the Guardian of the Constitution and the Essence of Law - A Dispute between Hans Kelsen and Carl Schmitt
2017
Abstract
At the turn of the 1920s and 1930s, a debate about who should be the guardian of the constitution took place in the Weimar Republic. The main protagonists of this debate were the Austrian legal philosopher Hans Kelsen and the German jurist and political theorist Carl Schmitt.
The article sums up, and critically assesses, the positions that the two authors held in the debate. It also draws attention to more general differences in the legal and political theory of Kelsen and Schmitt, relating for instance to their views on the nature of law or on the concept of statehood.
The article shows that the questions that the two authors debated almost a century ago remain topical even today.