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The rule of law under siege: Carl Schmitt and the death of the Weimar Republic

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Despite the fact that the authoritarian German political thinker Carl Schmitt devoted much of his intellectual energy to an analysis of the profound transformations undergone by the rule of law in the twentieth century, few commentators in the Anglo-American intellectual world have grappled systematically with Schmitt's contributions to legal scholarship. It is the central contention of this essay that precisely such an undertaking is essential if we are to appreciate the depth of Schmitt's hostility in the early 1930s to liberal democracy. An interpretation of Schmitt's writings from the late 1920s and early '30s which places special weight on his highly provocative critique of the liberal rule-of-law ideal suggests that Schmitt was far less eager to defend the liberal democratic core of the Weimar Republic than a number of influential recent commentators would like us to believe (Part I). Indeed, Schmitt's ‘deconstruction’ of the liberal rule of law needs to be answered by those of us concerned with defending and reformulating the rule-of-law ideal in a political and social universe profoundly unlike that which generated it centuries ago. By means of recourse to one of Schmitt's contemporaries and most perceptive of critics, Otto Kirchheimer, I conclude by offering a few tentative comments on how we might respond to Schmitt's deeply illiberal ideas from the late 1920s and early '30s about the rule of law (Part II).
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Document Type: Research Article

Affiliations: University of Pittsburgh.

Publication date: 1993-02-01

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