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

Part of Cambridge Studies in Constitutional Law

  • Editor and Translator: Lars Vinx, University of Cambridge
  • Date Published: February 2015
  • availability: Available
  • format: Hardback
  • isbn: 9781107092686


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About the Authors
  • 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.

    • Provides the first English translations of some of the key texts in the debate on the limits of constitutional law and the legitimacy of constitutional review
    • Introductory chapter situates the material in its historical context and provides background information as well as references to important literature
    • Sheds light on the relationship between Kelsen's and Schmitt's legal and political theories and on their political consequences in the constitutional crisis of the Weimar Republic
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    Reviews & endorsements

    'The debate between Kelsen and Schmitt is far richer and more timely than the foregoing brief overview can suggest. Vinx has provided a great service in executing a fluent and accessible translation, in writing an illuminating and erudite introduction, and in making the constitutional writings of Kelsen and Schmitt available to a wider audience than was previously the case. And Vinx has provided an additional service in reminding us that many of the important figures in the history of legal theory were also on the front lines of salient legal disputes offering arguments that put their theoretical positions in very concrete contexts.' Frederick Schauer, The New Rambler

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    Product details

    • Date Published: February 2015
    • format: Hardback
    • isbn: 9781107092686
    • length: 290 pages
    • dimensions: 231 x 155 x 23 mm
    • weight: 0.54kg
    • availability: Available
  • Table of Contents

    1. Kelsen on the nature and development of constitutional adjudication
    2. The guardian of the constitution: Schmitt's argument against judicial review
    3. The guardian of the constitution: Schmitt on the President as guardian of the constitution
    4. Who ought to be the guardian of the constitution? Kelsen's reply to Schmitt
    5. Prussia contra Reich: Schmitt's closing statement in Leipzig
    6. Kelsen on the judgment of the Staatsgerichtshof of the 25th of October 1932.

  • Editor and Translator

    Lars Vinx, University of Cambridge
    Lars Vinx is an assistant professor in the Department of Philosophy at Bilkent University, Ankara, Turkey. His main areas of interest are legal and political theory, constitutional theory and the history of political thought.

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