Self-Reference of the Constitutional State: A Systems Theory Interpretation of the Kelsen-Schmitt Debate

Jurisprudence 2 (2):309-328 (2011)
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Abstract

This article reinterprets the Kelsen-Schmitt debate in the context of social systems theory and rethinks its major concepts as part of legal and political self-reference and systemic differentiation. In Kelsen?s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law. Similarly, Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. The author argues that the process of legal and political globalisation rules out the possibility of formulating substantive theories of the state associating this particular social organisation with metaphysical values and a self-validating collective identity. Kelsen and Schmitt continue to inspire current theories of non-metaphysical globalised law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalised legal and political communications and not as their ultimate end

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References found in this work

The Concept of the Political.Carl Schmitt - 1996 - University of Chicago Press.
The Leviathan in the state theory of Thomas Hobbes: meaning and failure of a political symbol.Carl Schmitt - 1996 - Chicago: University of Chicago Press. Edited by George Schwab.
Hobbes and the legitimacy of law.David Dyzenhaus - 2001 - Law and Philosophy 20 (5):461-498.
Law and sovereignty.Pavlos Eleftheriadis - 2010 - Law and Philosophy 29 (5):535-569.

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