The Rechtsstaat as the Justification of the Suspension of the Rule of Law - Carl Schmitt from a Distance of Almost Hundred Years

Abstract

This study examines the political transformation of legal language through two programmatic essays by Carl Schmitt published in 1934, Der Weg des deutschen Juristen and Der Führer schützt das Recht. The analysis focuses on how positive law is transformed from a constraint on political decision-making into the material from which a new order is constructed. In Schmitt’s argument, legal certainty is no longer tied to the stability of normative texts but to the solidity of the state’s overall order, while the guarantees of the liberal Rechtsstaat (state governed by law) appear as obstacles protecting the enemies of the state. At the endpoint of this line of reasoning, exceptional political action is no longer understood as a departure from the law requiring subsequent justification, but as an immediate act of lawmaking and the highest form of adjudication. The study does not seek to evaluate Schmitt’s entire body of work, nor does it retrospectively impose upon it the concept of the rule of law that developed after 1945. Rather, it demonstrates how Schmitt reinterpreted the liberal institutions of the Rechtsstaat of his own time and made the political order as a whole the governing standard for determining the meaning of legal norms.