Podcast
Questions and Answers
What is the primary purpose of an ideal constitution according to Schmitt?
What is the primary purpose of an ideal constitution according to Schmitt?
According to Schmitt, the validity of a constitution is derived from what?
According to Schmitt, the validity of a constitution is derived from what?
How does Schmitt characterize the process of amending a constitution?
How does Schmitt characterize the process of amending a constitution?
What type of positivism does Schmitt advocate for, contrasting with legal positivism?
What type of positivism does Schmitt advocate for, contrasting with legal positivism?
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What does Schmitt imply about laws that do not regard reasonableness or justice?
What does Schmitt imply about laws that do not regard reasonableness or justice?
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What type of law concerns the relations between individuals and public institutions?
What type of law concerns the relations between individuals and public institutions?
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Which of the following is NOT generally considered a category of Public Law?
Which of the following is NOT generally considered a category of Public Law?
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In Kelsen's theory, which norm serves as the highest norm that validates the constitution?
In Kelsen's theory, which norm serves as the highest norm that validates the constitution?
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What is a significant characteristic of democratic government as opposed to popular sovereignty?
What is a significant characteristic of democratic government as opposed to popular sovereignty?
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The distinction between public and private law can be traced back to which historical perspective?
The distinction between public and private law can be traced back to which historical perspective?
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What does Kelsen mean by stating that norms are validated by higher norms?
What does Kelsen mean by stating that norms are validated by higher norms?
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Which of the following is an example of Private Law?
Which of the following is an example of Private Law?
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How does Kelsen view the concept of constituent power in his legal theory?
How does Kelsen view the concept of constituent power in his legal theory?
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What happens if a revolution fails according to Kelsen's view of legal order?
What happens if a revolution fails according to Kelsen's view of legal order?
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According to Kelsen, the validity of laws does NOT depend on which of the following?
According to Kelsen, the validity of laws does NOT depend on which of the following?
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How does Schmitt define the role of the sovereign in the creation of the constitution?
How does Schmitt define the role of the sovereign in the creation of the constitution?
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What is the concept of 'examples of the political' as stated by Schmitt?
What is the concept of 'examples of the political' as stated by Schmitt?
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What is Kelsen's view regarding the relationship between law and the people?
What is Kelsen's view regarding the relationship between law and the people?
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What characterizes Schmitt's concept of an Absolute Constitution?
What characterizes Schmitt's concept of an Absolute Constitution?
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What does Schmitt argue is a misconception associated with amendments to constitutions?
What does Schmitt argue is a misconception associated with amendments to constitutions?
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What does Kelsen mean by the concept of 'constitutional justice'?
What does Kelsen mean by the concept of 'constitutional justice'?
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Which statement best reflects the idea behind the term 'Westphalian System' discussed by Schmitt?
Which statement best reflects the idea behind the term 'Westphalian System' discussed by Schmitt?
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What does Schmitt mean when he refers to the role of the constitutional dictator?
What does Schmitt mean when he refers to the role of the constitutional dictator?
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How does Schmitt differentiate between a 'Positive Constitution' and a 'Relative Constitution'?
How does Schmitt differentiate between a 'Positive Constitution' and a 'Relative Constitution'?
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What is the implication of Kelsen's assertion that statutes can only be valid if they correspond to the constitution?
What is the implication of Kelsen's assertion that statutes can only be valid if they correspond to the constitution?
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Which concept serves as a basis for Schmitt's critique of cosmopolitan liberalism?
Which concept serves as a basis for Schmitt's critique of cosmopolitan liberalism?
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Study Notes
Public vs. Private Law
- Public Law: Governs the vertical relationship between individuals and public institutions, as well as between institutions. Examples include constitutional, criminal, tax, and international law.
- Private Law: Governs the horizontal relationship between individuals. Includes contract, commercial, labor, and family law. Family law bridges public and private.
- Roman Empire Distinction: Public law served the empire's interests, private law, individual interests.
- Middle Ages Distinction: Focus on Canon Law (religious) versus Secular Law (state).
Public Law (Focus on Constitutional Law)
- Popular Sovereignty vs. Democratic Government: Popular sovereignty has no individual rights or due process; the majority decides actions. Democratic government acknowledges individual rights, limiting public authority and popular will.
Hans Kelsen's Theories
- General Theory of Norms: Validity of norms depends on their form, not content. Norms are the fundamentals of law—statements guiding behavior.
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Stufenbau (Hierarchy of Norms): Norms are validated by higher norms:
- Grundnorm (basic norm) → Constitution → Powers → Laws → Decrees → Administrative orders and provisions → Contracts.
- Grundnorm: Highest norm, validating the constitution. A theoretical, presupposed concept. It is contentless and universally applicable. The constitution is the will of the people.
- State as Legal Order: A structured collection of norms, not a political entity. The validity of the constitution cannot be proven by the constituent power; Kelsen seeks only legal validity, not factual reality. State is just its laws
- Validity of Laws: Validity doesn't depend on new fundamental norms, constituent powers exercising their will, etc.; Only a collection of legal acts by the state's members; the law is the basis for the people. Statutes derive from, and thus are valid if consistent with, the constitution; invalid statutes are impossible because statutes are only valid statutes.
Carl Schmitt's Theories
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Sovereign as Decider of the Exception: The sovereign decides when and how to use exceptional power.
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Politics and the Friend-Enemy Distinction: Politics is based on defining friends and enemies.
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Constitutional Theory: Constitutionalism is not the product of legal norms—it is generated by political acts.
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State and the Constitution: The state is the constitution (not just a set of laws that it embodies); the constitution defines the state.
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Four Concepts of Constitution:
- Absolute: Encompasses the whole of the state.
- Relative: The "soul of polity," enduring beyond governments.
- Positive: Outcome of a political decision, often expressed in a preamble.
- Ideal: A polemical view, opposing a past approach. A "never again" constitution.
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Validity of Constitution: Constitution's legitimacy derives from the will of the people. The constitution results from a political decision by the sovereign, who can be a single person or group. Schmitt's theory is political positivism, as valid norms are based on positive acts of the people or state, regardless of morality or inherent justice.
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Amendments: Amendments reduce constitutions to the level of normal laws; they are new political decisions creating a whole new constitution.
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Description
Explore the distinctions between public and private law, and learn about their implications in legal frameworks. This quiz delves into topics such as constitutional law, popular sovereignty, and the theories of Hans Kelsen. Test your knowledge on how these concepts shape individual and institutional relationships.
