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

Soltani, Seyed Naser; Ahmadi, Kazem

doi:10.30465/crtls.2024.49446.2854

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

Document Type : Research

Authors

Seyed Naser Soltani ¹

kazem Ahmadi ²

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

² Ph.D. Candidate of Public Law, University of Tehran, Farabi Campus, Qom, Iran

https://doi.org/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

Carl Schmidt

Basis

Constitution

Constituent Power

Political Unity

Nation

Subjects

Jurisprudence and Law

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