Carl Schmitt, Hans Kelsen and the Supreme Court

Abstract

The debate between Carl Schmitt and Hans Kelsen during the brief, dramatic, and troubled life of the Weimar Republic has yielded significant theoretical contributions to the general theory of law. Kelsen's normativist theory resolves normal situations, those that constitute the rule; while Schmitt's decisionist theory resolves abnormal situations, those that constitute the exception.

This article compares the thinking of these jurists in relation to those decisions that lie on the borderline of the sphere of law -between subjection to a normative framework and the free exercise of sovereign power-. In particular, it focuses on the reaction of the Judiciary to the most important decisions adopted by the Executive Branch.

Through the analysis of five judicial decisions -two from the U.S. Supreme Court and two from the Argentine Supreme Court- the article presents a descriptive theory of judicial decision within the limits of the general theory of law of the Weimar Republic, highlighting an element that cannot be missing in any theory of judicial decision: the correct calculation of the consequences of the decision.