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In Legality and Legitimacy, first published in 1932, Carl Schmitt analysed the troubles that were drawing the Weimar parliamentary democracy to a close and advanced a potential strategy for the establishment of a new political regime. Most interpreters contend this strategy was principled on the figure of a mighty dictator who could take matters in his hands and cut off the political actors that were causing havoc. On this reading, Schmitt’s 1932 essay comes across as a paradigmatic implementation of his own decisionism of the early 1920s. The present article challenges this reading. Legality and Legitimacy was one of the steps taken by Schmitt to perfect his institutional conception of law and his understanding of political power as a normalising filter. In particular, he made the claim that the second part of the Weimar constitution aspired to be unamendable despite the procedural leeway granted by the first part. On top of a better understanding of Legality and Legitimacy, the present investigation aims to contribute to the more general interpretation of Schmitt’s theorising from 1927 through to the end of his life as falling within the scope of legal institutionalism – though in a way that deviated from this seminal tradition of thought in a few key respects.
Carl Schmitt; constitution; emergency legislation; institutionalism; pluralism.
