Behind the theoretical debate between Hans Kelsen and Carl Schmitt: the nineteenth century constitutionalism and German public law

Abstract

This paper aims at identifying the reminiscences of 19th century constitutionalism and German public law behind the theoretical discussion around the constitutional jurisdiction in the doctrines of Hans Kelsen and Carl Schmitt. The doctrines on the question of sovereignty and constitution between the 19th and early 20th centuries also become the object of study as they reflect on the theoretical debate between Hans Kelsen's Neokantian positivism and Carl Schmitt's decisionism. Finally, from the notions of separation of powers, sovereignty, and constitution provided by these authors, the research aims at identifying the theoretical lines and concepts that may have contributed to the construction of the notion of guardian of the constitution. As a  result, it was possible to verify that while Schmitt's constitutional theory carries much of his "political theology" with it, Kelsen sought, with his Pure Theory of Law, to evade from the theological method present in other legal theories (especially in Schmitt's). His intention was to build a legal science free of strange elements to Law, such as morality, politics and religion, which reflected in the choice of who should be the guardian of the Constitution. We developed this research through the analysis of historical sources and bibliographical research in the main writings of Carl Schmitt and Hans Kelsen on constitutional theory. As historiography, we sought specialized literature on the main subjects and theorists researched, from great names from that time and by contemporary well-known authors.