The Concept of the Rule-of-Law State in Carl Schmitt’s Verfassungslehre

Abstract

This chapter focuses on Schmitt’s critique of the rule of law in his Constitutional Theory. Schmitt argues that liberalism, which once tied the rule of law to the protection of individual liberty, has deteriorated into an account in which any valid law is considered legitimate just because it is valid. This critique is driven by Schmitt’s conception of politics, and, as his oral argument in a crucial constitutional case of 1932 illustrates, his position affirms that law cannot be more than a mere instrument of political power and that it can stabilize politics only if the political power is exercised to bring about a substantive homogeneity in the population subject to the law. In conclusion, it is suggested that Schmitt points to genuine weaknesses in the liberal tradition that require an elaboration of a secular conception of authority in which principles of legality play a central role.