The debate between Hans Kelsen and Carl Schmitt in the context of the Weimar constitution chases the ‘big game’ of constitutional theory: The legitimacy of constitutional adjudication; the nature, role, and proper scope of executive power; the proper institution to protect fundamental constitutional principles; the interaction between domestic and international legal orders; the nature and location of sovereignty within an organised polity; the definition and delineation of political community; the dynamics of a federal system; and the limits on majoritarian democracy. Lars Vinx's presentation of the debate is structured around the so‐called Preussenschlag of 1932—Chancellor Franz von Papen's use of emergency powers, granted by President Paul von Hindenburg under the infamous Article 48, to wrest control of the Prussian state apparatus in the wake of factional violence in Altona (by Hamburg). The Preussenschlag was not just a key event in the disintegration of the Weimar Republic; it also ‘marked the culmination of two of the most important jurisprudential debates that took place in the Weimar era: the discussion on the nature and limits of executive powers of emergency under Article 48 and the debate on the legitimacy and desirability of constitutional adjudication’ (5).Schmitt and Kelsen approach these questions from
The Modern Law Review – Wiley
Published: Jan 1, 2018
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