Legality and LegitimacyCarl Schmitt, Hans Kelsen, and Hermann Heller in Weimar

Abstract

This book investigates one of the oldest questions of legal philosophy —the relationship between law and legitimacy. It analyses the legal theories of three eminent public lawyers of the Weimar era, Carl Schmitt, Hans Kelsen, and Hermann Heller. Their theories addressed the problems of legal and political order in a crisis-ridden modern society and so they remain highly relevant to contemporary debates about legal order in the age of pluralism. Schmitt, the philosopher of German fascism, has recently received much attention. Kelsen is well-known as one of the main exponents of the philosophy of legal positivism. Heller is virtually unknown outside Germany. The author exposes the dangers of Schmitt's legal philosophy by situating it in the legal context of constitutional crisis to which he responded. He also points out the inadequacies of Kelsen's legal positivism. In a wide-ranging account of the predicaments of contemporary legal and political philosophy, Heller's position is argued to be the most promising of the three.

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