Hans Kelsen and Carl Schmitt

This chapter traces the intellectual relationship between Hans Kelsen and Carl Schmitt. It is well known that the two legal thinkers had sharply contrasting views on sovereignty, democracy, and the role of unity in the law and in politics. Less well known is Schmitt’s proximity, in his very early work, to Kelsen on certain issues, such as the “is”-“ought” distinction and “points of imputation.” This proximity was short-lived, and the discord between their views increased over time, culminating in the Weimar period in their diametrically opposed views on the “guardian” of the constitution. This chapter reconstructs the evolution of this intellectual antagonism, exploring Schmitt’s arguments under four rubrics: subsumption, the narrow interpretation of “material facts,” the political dimension of the judicial decision, and the neutrality of the Reich president. The thrust of Kelsen’s replies is captured in the idea that Schmitt is engaged in political ideology.