Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship
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Xiaodong Ding
Abstract
This article studies the debate between Schmitt’s theory and legal positivism, which Schmitt identifies as a typical liberal theory of law. Schmitt’s theory, I argue, provides a powerful critique of legal positivism, while offering a meaningful, alternative understanding of law that begins not with norms, but with the will of a legitimate decider. To demonstrate the continuing relevance of the debate Schmitt had with legal positivism, I turn to what I describe as a similar legal positivism/Schmitt debate in American constitutional scholarship. Ultimately, I take a side in this debate, arguing for a fully Schmittian understanding of the Constitution as the will or continuous decision of the people, rather than as positive constitutional norms existing independently of politics.
Acknowledgements
I would like to thank Paul Kahn, Paul Gewirtz, Jack Balkin, Robert Post, Dieter Grimm, David Grewal, Philip C C Huang, Zhang Taisu, Larry Catá Backer, Feng Xiang, Jiang Shigong and Zhang Yongle for reading the manuscript and providing helpful comments.
© 2019 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Articles
- Establishment of a Peace Regime on the Korean Peninsula: Definition, Process, and Cooperation
- Dignity, Integrity, and the Concept of a Person
- International(ized) Constitutional Court: Kosovo’s Transfer of Judicial Sovereignty
- Notes and Essays
- Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship
Articles in the same Issue
- Frontmatter
- Articles
- Establishment of a Peace Regime on the Korean Peninsula: Definition, Process, and Cooperation
- Dignity, Integrity, and the Concept of a Person
- International(ized) Constitutional Court: Kosovo’s Transfer of Judicial Sovereignty
- Notes and Essays
- Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship
