The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law

Cambridge Studies in Constitutional Law

by Lars Vinx (Translator)

This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under Article 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories.

Genres: Germany, Law

290 pages, Hardcover

First published January 23, 2015

Reviews

[Henry Schlechta · Rating 5 out of 5]

This book is a translation of a number of writings by Carl Schmitt and Hans Kelsen around the Weimar constitution and the desirability of judicial review. It is remarkably readable for a German translation of legal treatises, and the authors' arguments remain relevant and timely to this day.

[Colm Gillis · Rating 4 out of 5]

Lars Vinx is one of the best contemporary commentators on Carl Schmitt. This is a translation of famous debates that took place between Schmitt & his adversary Kelsen over the powers of the German President and the proposal for a constitutional court. The debates took place between 1931-2, i.e. at a critical point in the Weimar republic.
The introduction by Vinx is very comprehensive & balanced. The core of the debate centres on the role of the Constitutional court/president. Kelsens criticisms of Schmitt are well made but he does deliberately distort Schmitts arguments somewhat. Some of the arguments by Kelsen in orher parta of the book are quite lengthy & more for a specialist. I thought the book could have had an intro to each part with a quick summary as you would need to be an expert on Weimar history to follow some parts. All in all, though, an incredibly engaging discussion which is useful for the scholar.