Legality and Legitimacy

Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Idea of Representation, The Crisis of Parliamentary Democracy, Political Romanticism, and The Concept of the Political.Jeffrey Seitzer is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy. John P. McCormick is Associate Professor of Political Science at the University of Chicago. He is the author of Carl Schmitt’s Critique of Liberalism and editor of Confronting Mass Democracy and Industrial Technology, published by Duke University Press.Carl Schmitt (1888–1985) was a leading German political and legal theorist. Among his many books are The Idea of Representation, The Crisis of Parliamentary Democracy, Political Romanticism, and The Concept of the Political.Jeffrey Seitzer is the author of Comparative History and Legal Theory: Carl Schmitt in the First German Democracy. John P. McCormick is Associate Professor of Political Science at the University of Chicago. He is the author of Carl Schmitt’s Critique of Liberalism and editor of Confronting Mass Democracy and Industrial Technology, published by Duke University Press.

“An English translation of Carl Schmitt’s LegalitÄt und LegitimitÄt is long overdue. Legality and Legitimacy concludes the critique of legal positivism and the rationality of statute law he began in The Crisis of Parliamentary Democracy and Political Theology and does so in the historical context of Weimar’s final crisis. It was an important argument at the time and is just as significant seventy-odd years later.”-Ellen Kennedy, author of Constitutional Failure: Carl Schmitt in Weimar “Carl Schmitt is an unorthodox classic. One of the intellectual grave-diggers of the Weimar Republic, he wrote this brilliant book in the middle of the political crisis, opting for presidential dictatorship. Excellent in its analysis, Legality and Legitimacy is unwise regarding political consequences and without a realistic political vision for the future. This first English-language translation should stimulate European-American dialogue about the vitality of democratic institutions in view of the challenges of antidemocratic and antiliberal temptations.”-Michael Stolleis, University of Frankfurt

• Translator’s Preface / Jeffrey Seitzer ix Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’s Legality and Legitimacy JOHN P. McCORMICK xiiiLegality and Legitimacy Introduction: The Legislative State System of Legality Compared to Other State Types (Jurisdiction, Governmnetal, and Administrative States) / John P. McCormick 3I: The System of the Legality of the Parliaamentary Legislative State 1. The Legislative State and the Concept of Law 172. Legality and the Equal Chance for Achieving Political Power 27II: The Three Extraordinary Lawgivers of the Weimar Constitution 3. The Extraordinary Lawgiver Ratione Materiae: The Second Principal Part of the Weimar Constitution and a Second Constitution 394. The Extraordinary Lawgiver Ratione Supremitatis: Actual Meaning - Plebiscitary Legitimacy instead of Lgislative State Legality 595. The Extraordinary Lawgiver Ratione Necessitatis: Actual Meaning - The Administrative State Measure Displaces the Parliamentary Legislative State Statute 67Conclusion 85Afterword (1958) 95Appendix: Selected Articles of the Weimar Constitution 103Notes 109Works Cited by Carl Schmitt in Legality and Legitimacy 161Index 165