Schmitt przegrywa z Monteskiuszem. Kilka refleksji o Nauce o konstytucji Carla Schmitta

• Authors: Ujazdowski Kazimierz Michał

Title variants

EN

Schmitt Defeated by Montesquieu. A Handful of Reflections on “The Constitutional Theory” by Carl Schmitt

• Languages of publication: PL

Abstracts

EN

“Constitutional Theory” by Carl Schmitt has undeniable value. The author highlights the difference between fundamental regulations and a set of minor and insignificant norms contained in constitutional acts. The distinction offered by Schmitt opposes dogmatization of reflections on the constitution and encourages synthetic perspectives identifying the constitutional identity of a country. Remarkably, Schmitt inspired the thought about the introduction of supra constitutional norms that may amended using ordinary procedures. Had Schmitt been as sensitive and thorough as Montesquieu, he would not have cut down on the amount of historical materials used in the name of theoretical purity. Meanwhile, his classification of political systems includes only monarchy and democracy. Similarly, Schmitt’s interpretation of legal validity is oversimplified as it is limited to conformity with a nation’s will, even if expressed by silence. In such a perspective, every enacted constitution would have the attribute of legal validity. The theses offered by Schmitt cannot be recognized as a novelty within the field of constitutional law scholarship. The work of classic thinkers shall be subject to critical interpretation. This is a prerequisite for the development of contemporary constitutional thought.

• Publisher: Fundacja „Utriusque Iuris” i Uniwersytet Jagielloński
• Journal: Forum Prawnicze
• Year: 2015
• Issue: 6 (32)
• Pages: 101–110

Contributors

author

Ujazdowski Kazimierz Michał

• Uniwersytet Łódzki