Constituent Power and Constitution: Schmitt' s Theory of Political Law

Soltani, Seyed Naser; Ahmadi, Kazem

doi:10.30465/crtls.2024.49446.2854

Document Type : Research

Authors

Seyed Naser Soltani ¹
kazem Ahmadi ²

¹ Associate Professor, Public Law, University of Tehran, Farabi Campus, Qom, Iran

² PhD Student of Public Law, University of Tehran, Farabi Campus, Qom, Iran

10.30465/crtls.2024.49446.2854

Abstract

With the advent of modernity, the political and legal order of the world experienced significant changes. One of the outcomes of these changes was the establishment of a constitutional law as the founding document of legal-political systems. Carl Schmitt, a German jurist, endeavored to introduce new concepts in this field during the twentieth century. He distinguished between the concepts of constitutional law (Verfassung) and the foundational decision (Grund). Schmitt argued that the political unity of a nation is established based on political decisions (Grund) rather than established constitutional laws. According to Schmitt, the foundational decision is a political decision that shapes and institutes the government, preceding any constitutional law. The foundational decision, in Schmitt's view, is more than a contract or a set of laws; it reflects the political awareness of the people regarding their identity and their capability to determine their political destiny. Moreover, the foundational decision is the product of the constituent power (Gewalt) which, as a political will, empowers the people to decide on the nature of their political existence. In this approach, the constituent power not only represents the will of the people but also guides them in establishing and distinguishing their political identity from others.

Keywords

Main Subjects

Jurisprudence and Law

References

Böckenförde, Ernst- Wolfgang (2017), »The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory«, in Constitutional and Political Theory, Selected Writings, Edited by Mirjam Künkler and Tine Stein, Oxford: Oxford University Press.

Cristi, Renata (1998), »Carl Schmitt on Sovereignty and Constituent Power« in Law as Politics: Carl Schmitt’s Critique of Liberalism, Edited by David Dyzenhaus, Durham: Duke University Press.

Grimm, Dieter (2016), Constitutionalism: Past, Present, and Future, Oxford: Oxford University Press.

Loughlin, Martin (2007), »Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice« in The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Edited by Martin Loughlin and Neil Walker, Oxford: Oxford University Press.

Loughlin, Martin (2010), Foundation of Public Law, Oxford: Oxford University Press.

Loughlin, Martin (2013), »The Concept of Constituent Power«, Critical Analysis of Law Workshop, Toronto: University of Toronto.

Rubinelli, Lucia (2020), Constituent Power: A History, Cambridge: Cambridge University Press.

Rubinelli, Lucia (2023), The Constitution in the Material Sense According to Costantino Mortati, Edited by Marco Goldoni and Michael A. Wilkinson, Cambridge: Cambridge University Press.

Schmitt, Carl (2005), Political Theology: Four Chapters on the Concept of Sovereignty, Edited and Translated by George Schwab, Chicago: University of Chicago Press.

Schmitt, Carl (2008), Constitutional Theory, Translated and Edited by Jeffrey Seitzer, Durham: Duke University Press.

Schmitt, Carl (2014), Dictatorship: From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle, Translated by Michael Hoelzl and Graham Ward, Cambridge: Polity Press.

Schupmann, Benjamin A (2017), Carl Schmitt’s State and Constitutional Theory, Edited by Martin Loughlin, John P. McCormick, and Neil Walker, Oxford: Oxford University Press.

Schmitt, Carl (1402 [2023]). The Origin of the Foundation, translated by Ebrahim Dehnavi, Critique of Humanities Quarterly, Issue No. 2, Tehran: Institute for Humanities and Cultural Studies. (In Persian)

Qazi Shariatpanahi, Abolfazl (1371 [1992]). The Constitution: The Evolution of Its Concept and Text from a Comparative Perspective, Journal of the Faculty of Law and Political Science, University of Tehran, Vol. 28, Issue No. 1136, Tehran: University of Tehran. (In Persian)

Pizhuhish nāmah-i intiqādī-i mutūn va barnāmah hā-yi ̒ulūm-i insāni (Critical Studies in Texts & Programs of Human Sciences)

Constituent Power and Constitution: Schmitt' s Theory of Political Law

References

References

Volume 24, Issue 3 - Serial Number 117
November 2024
Pages 127-151

Constituent Power and Constitution: Schmitt' s Theory of Political Law

References

References

Volume 24, Issue 3 - Serial Number 117November 2024Pages 127-151

Volume 24, Issue 3 - Serial Number 117
November 2024
Pages 127-151