The Guardian of the Constitution
Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law

The first English translation of Hans Kelsen's and Carl Schmitt's debate on the 'Guardian of the Constitution'.

Lars Vinx (Edited and translated by)

9781107092686, Cambridge University Press

Hardback, published 19 February 2015

290 pages
23.1 x 15.5 x 2.3 cm, 0.54 kg

'The debate between Kelsen and Schmitt is far richer and more timely than the foregoing brief overview can suggest. Vinx has provided a great service in executing a fluent and accessible translation, in writing an illuminating and erudite introduction, and in making the constitutional writings of Kelsen and Schmitt available to a wider audience than was previously the case. And Vinx has provided an additional service in reminding us that many of the important figures in the history of legal theory were also on the front lines of salient legal disputes offering arguments that put their theoretical positions in very concrete contexts.' Frederick Schauer, The New Rambler

This volume provides the first English translation of Hans Kelsen's and Carl Schmitt's influential Weimar-era debate on constitutional guardianship and the legitimacy of constitutional review. It includes Kelsen's seminal piece, 'The Nature and Development of Constitutional Adjudication', as well as key extracts from the 'Guardian of the Constitution' which present Schmitt's argument against constitutional review. Also included are Kelsen's review of Schmitt's 'Guardian of the Constitution', as well as some further material by Kelsen and Schmitt on presidential dictatorship under Article 48 of the Weimar Constitution. These texts show Kelsen and Schmitt responding to one another, in the context of a debate focused on a concrete constitutional crisis, thus allowing the reader to assess the plausibility of Kelsen's and Schmitt's legal and constitutional theories.

Introduction
1. Kelsen on the nature and development of constitutional adjudication
2. The guardian of the constitution: Schmitt's argument against judicial review
3. The guardian of the constitution: Schmitt on the President as guardian of the constitution
4. Who ought to be the guardian of the constitution? Kelsen's reply to Schmitt
5. Prussia contra Reich: Schmitt's closing statement in Leipzig
6. Kelsen on the judgment of the Staatsgerichtshof of the 25th of October 1932.

Subject Areas: Constitutional & administrative law [LND], Law [L], Political science & theory [JPA]