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Self-reference of the constitutional state: a systems theory interpretation of the Kelsen-Schmitt debate

Priban, Jiri 2011. Self-reference of the constitutional state: a systems theory interpretation of the Kelsen-Schmitt debate. Jurisprudence 2 (2) , pp. 309-328. 10.5235/204033211798716853

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Abstract

This article reinterprets the Kelsen-Schmitt debate in the context of social systems theory and rethinks its major concepts as part of legal and political self-reference and systemic differentiation. In Kelsen?s case, it is the exclusion of sovereignty from juridical logic that opens a way to the self-reference of positive law. Similarly, Schmitt constructed his concept of the political as a self-referential system of political operations protected from the social environment by the medium of power. The author argues that the process of legal and political globalisation rules out the possibility of formulating substantive theories of the state associating this particular social organisation with metaphysical values and a self-validating collective identity. Kelsen and Schmitt continue to inspire current theories of non-metaphysical globalised law and politics. However, the constitutional state and sovereignty need to be reformulated as a meeting point of functionally differentiated and globalised legal and political communications and not as their ultimate end.

Item Type: Article
Date Type: Publication
Status: Published
Schools: Law
Subjects: J Political Science > JC Political theory
K Law > K Law (General)
Uncontrolled Keywords: Constitutional state; sovereignty; systems theory; legal self-reference; political self-reference
Publisher: Hart Publishing
ISSN: 2040-3313
Last Modified: 04 Jun 2017 04:25
URI: http://orca.cf.ac.uk/id/eprint/38807

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