Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar

Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar

Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar

Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar


This book investigates one of the oldest questions of legal philosophy---the relationship between law and legitimacy. It analyses the legal theories of three eminent public lawyers of the Weimar era, Carl Schmitt, Hans Kelsen, and Hermann Heller. Their theories addressed the problems of legal and political order in a crisis-ridden modern society and so they remain highly relevant to contemporary debates about legal order in the age of pluralism. Schmitt, the philosopher of German fascism, has recently received much attention. Kelsen is well-known as one of the main exponents of the philosophy of legal positivism. Heller is virtually unknown outside Germany. Dyzenhaus exposes the dangers of Schmitt's legal philosophy by situating it in the legal context of constitutional crisis to which he responded. He also points out the severs inadequacies of Kelsen's legal positivism. In a wide-ranging account of the predicaments of contemporary legal and political philosophy, Heller's position is argued to be the most promising of the three.


The collapse of the Weimar Republic (1918-33) haunts political debate these days, as disaffected groups with increasing support again challenge the most fundamental values of liberal democracies. It is with this challenge that contemporary political and legal philosophy grapples when it tries to deal with the 'fact of pluralism'. And in the debates about how to cope with the fact of pluralism, the topic of the liberal democratic legal order and its legitimacy looms large. Weimar is, of course, fertile ground for this topic since it is often taken as a paradigm case of how the enemies of liberal democracy can use legal order to subvert democracy from within.

In this book, I explore such issues through the lens of the last years of the Weimar Republic. My focus is on the work of three eminent legal and political theorists who were engaged in the debates about law and politics in this period, Carl Schmitt, Hans Kelsen, and Hermann Heller.

Anglo-American legal and political philosophy has recently started to take Schmitt to be an important scholar, rather than just a prominent legal theorist of Weimar who became notorious because of his association with Nazism. I shall argue that the renaissance of interest in Schmitt's work is appropriate--he must be taken seriously as a critic of liberalism. However, I shall also argue that his substantive position must be utterly rejected.

Kelsen is best known in the Anglo-American world as the proponent of a relentlessly value free or scientific theory of law. I argue both that Kelsen's Pure Theory of law makes best sense when it is understood, contrary to his own intentions, and contrary to the understanding of most Kelsen scholars, as nested within a political theory. I shall also argue that Kelsen's intentions subvert the Pure Theory of law.

Heller is hardly known outside of Germany. This is unfortunate for, as I shall argue, his social democratic theory of the legitimacy of legal order is superior to Schmitt's and Kelsen's positions. Indeed, I shall argue that Heller has much to offer the contemporary debate between such figures as Ronald Dworkin, Jürgen Habermas, H. L. A. Hart, and John Rawls.

The works on which I rely are often untranslated and either not well known or virtually unknown in the Anglo-American world. Hence, I have tried to make my exposition of the positions very comprehensive so as to give a substantial basis for evaluation both of the particular position and of my own analysis.

My work follows a model of legal and political philosophy which Harold J. Berman calls 'Integrative Jurisprudence', a model which draws on politics, morality, and history. My arguments move between exposition of . . .

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