Teoria da Constituição - Carl Schmitt
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Teoria da Constituição - Carl Schmitt

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Carl Schmitt 
7
constitutional 
theory
translated and edited by jeffrey seitzer
foreword by ellen kennedy
Schmitt
7constitutional theory
7
Duke
Political theory/Legal studies
Carl Schmitt\u2019s magnum opus, Constitutional Theory, was originally published in 1928 and has 
been in print in German ever since. This volume makes Schmitt\u2019s masterpiece of comparative 
constitutionalism available to English-language readers for the first time. Schmitt is considered 
by many to be one of the most original\u2014and, because of his collaboration with the Nazi party, 
controversial\u2014political thinkers of the twentieth century. In Constitutional Theory, Schmitt 
provides a highly distinctive and provocative interpretation of the Weimar Constitution. At 
the center of this interpretation lies his famous argument that the legitimacy of a constitu-
tion depends on a sovereign decision of the people. In addition to being subject to long-stand-
ing debate among legal and political theorists in Western Europe and the United States, this 
theory of constitution-making as decision has profoundly influenced constitutional theorists 
and designers in Asia, Latin America, and Eastern Europe.
Constitutional Theory is a significant departure from Schmitt\u2019s more polemical Weimar-era 
works not just in terms of its moderate tone. Through a comparative history of constitutional 
government in Europe and the United States, Schmitt develops an understanding of liberal 
constitutionalism that makes room for a strong, independent state. This edition includes an 
introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, 
and political contexts in which Schmitt wrote Constitutional Theory; they point out what is 
distinctive about the work, examine its reception in the postwar era, and consider its larger 
theoretical ramifications.
\u201cWhat Heidegger\u2019s Being and Time is to European philosophy, Constitutional Theory is to Eu-
ropean political philosophy. It is astounding that one of the most important works of twenti-
eth-century political theory has remained untranslated until now. But this edition makes the 
wait worthwhile.\u201d\u2014 john P. Mccor Mick, University of Chicago
\u201cConstitutional Theory represents an unparalleled milestone in Schmitt translations. Indis-
pensable to scholars in political and legal theory, it will undoubtedly occupy a pivotal place in 
debates over Schmitt. In itself, the Seitzer-Thornhill introduction constitutes one of the most 
authoritative and intellectually sophisticated contributions to this field in decades.\u201d\u2014josePh 
w. bendersk y, author of Carl Schmitt: Theorist for the Reich
carl schMitt (1888\u20131985) was a leading German political and legal theorist. Among his 
many books are The Crisis of Parliamentary Democracy, Political Romanticism, The Concept of 
the Political, Political Theology, and Legality and Legitimacy, which is also published by Duke 
University Press. 
jeffrey seitzer teaches at Roosevelt University. He is the author of Comparative History 
and Legal Theory: Carl Schmitt in the First German Democracy and the editor and translator of 
Carl Schmitt\u2019s Legality and Legitimacy.
duke university Press
Box 90660, Durham, NC 27708-0660
www.dukeupress.edu
 
Constitutional theory
Carl Schmitt 
Constitutional theory 
Translated and edited by Jeffrey Seitzer 
Foreword by Ellen Kennedy 
Duke University Press Durham and London 2008
© 2008 Duke University Press
All rights reserved
Printed in the United States on acid-free paper
Designed by C. H. Westmoreland
Typeset in Warnock Pro by Tseng Information Systems, Inc.
Library of Congress Cataloging-in-Publication Data
Schmitt, Carl, 1888\u20131985.
[Verfassungslehre. English]
Constitutional theory / translated and edited by Jeffrey Seitzer;
foreword by Ellen Kennedy.
p. cm.
Includes bibliographical references and index.
isbn-13: 978-0-8223-4011-9 (cloth : alk. paper)
isbn-13: 978-0-8223-4070-6 (pbk. : alk. paper)
1. Constitutional law\u2014Germany. 2. Constitutional law.
I. Seitzer, Jeffrey. II. Title.
kk4450.s3613 2007
342.43\u2014dc22 2007026690
The first edition was published in German as Verfassung-
slehre by Duncker und Humblot, with all rights reserved
© 1928 Duncker und Humblot, Munich and Leipzig.
for 
Bob and Sherry Seitzer 
Rob and Aleta Smith
Contents
Foreword Ellen Kennedy xv
Translator\u2019s Preface xvii
An Introduction to Carl Schmitt\u2019s Constitutional Theory: Issues and 
Context Jeffrey Seitzer and Christopher Thornhill 1
Constitutional theory
Schmitt\u2019s Preface 53
Part I. Concept of the Constitution 57
§ 1. Absolute Concept of the Constitution (The Constitution as Unified 
Whole) 59
 I. Constitution as the collective condition of concrete unity and order or 
as state form (\u201cform of forms\u201d)\u2014or as the principle of the formation of the 
political unity 59
 II. Constitution in the normative sense (\u201cnorm of norms\u201d) 62
§ 2. Relative Concept of the Constitution (The Constitution as a Multitude 
of Individual Laws) 67
 I. Dissolution of the constitution into constitutional laws 67
 II. The written constitution 68
 III. Qualified alterability as a formal characteristic of constitutional 
law 71
§ 3. The Positive Concept of the Constitution (The Constitution as the Com-
plete Decision over the Type and Form of the Political Unity) 75
 I. The constitution as the act of the constitution-making power 75
 II. The constitution as political decision\u2014Decisions of the Weimar 
Constitution\u2014Practical significance of the distinction between constitu-
tion and constitutional law (constitutional amendment, inviolability of the 
constitution, basic rights, constitutional disputes, oath to the constitution, 
high treason) 77
 III. The compromise character of the Weimar Constitution, genuine 
and apparent compromises (school and church compromise) 82
viii Contents 
§ 4. Ideal Concept of the Constitution (\u201cConstitution\u201d in an exemplary 
sense, thus named because of a certain content) 89
 I. Ambiguity of the ideal concept, in particular freedom 89
 II. The ideal concept of the constitution of the bourgeois Rechts-
staat 90
 III. Both components of the modern constitution 93
§ 5. The Meanings of the Term \u201cBasic Law,\u201d Basic Norm or Lex Fundamen-
talis (Summarizing Overview) 94
 I. Nine meanings of the word basic law 94
 II. Connections between the different meanings 94
 III. In this book, constitution means constitution in the positive 
sense 96
§ 6. Origin of the Constitution 97
 I. A constitution arises either through one-sided political decision of 
the subject of the constitution-making power or through reciprocal agree-
ment of several such subjects 97
 II. Historical overview of the origins of the modern European constitu-
tions (1. medieval feudal state and state of estates, in particular the Magna 
Carta; 2. the German Reich until 1806; 3. the state of the absolute princes; 
4. the Revolution of 1789; 5. the monarchical restoration 1815\u20131830; 6. the 
July Revolution 1830; 7. the constitutional monarchy in Germany; 8. North 
German Federation 1867 and German Reich 1871; 9. the Weimar Constitu-
tion 1919) 97
§ 7. The Constitution as Contract (The Genuine Constitutional Con-
tract) 112
 I. Distinction between the so-called state or social contract from the 
constitutional contract 112
 II. The genuine constitutional contract as federal contract. Non-genuine 
constitutional contracts inside a political unity 113
 III. The genuine constitutional contract as status contract (criticism of 
the principle: pacta sunt servanda) 117
 IV. Constitution and international law contracts 120
§ 8. The Constitution-Making Power 125
 I. The constitution-making power as political will 125
 II. The subject of the constitution-making power (God, people or na-
tion, king, an organized group) 126
 III. Initiation of the