Jo Eric Khushal Murkens
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199671885
- eISBN:
- 9780191751196
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199671885.003.0003
- Subject:
- Law, Constitutional and Administrative Law, Legal History
Smend’s Verfassungs und Verfassungsrecht (1928), Schmitt’s Verfassungslehre (1928) and Heller’s Staatslehre (1934) were reactions to Kelsen’s Allgemeine Staatslehre. This chapter juxtaposes the ...
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Smend’s Verfassungs und Verfassungsrecht (1928), Schmitt’s Verfassungslehre (1928) and Heller’s Staatslehre (1934) were reactions to Kelsen’s Allgemeine Staatslehre. This chapter juxtaposes the anti-positivist discussion of key constitutional concepts (state, constitution, sovereignty) against the positivist conceptions that were set out in the first chapter. Chapters 1 and 2 are thus reflective of Jellinek’s ‘two-sided’ theory of the state (normative-legal versus empirical-social). But the value of the first two chapters is not only historical: as the anti-positivist writers were more commonly read and cited than Kelsen, they influenced and shaped the understanding of the state post-1945. Post-war public law and scholarship is discussed in the following two chapters.Less
Smend’s Verfassungs und Verfassungsrecht (1928), Schmitt’s Verfassungslehre (1928) and Heller’s Staatslehre (1934) were reactions to Kelsen’s Allgemeine Staatslehre. This chapter juxtaposes the anti-positivist discussion of key constitutional concepts (state, constitution, sovereignty) against the positivist conceptions that were set out in the first chapter. Chapters 1 and 2 are thus reflective of Jellinek’s ‘two-sided’ theory of the state (normative-legal versus empirical-social). But the value of the first two chapters is not only historical: as the anti-positivist writers were more commonly read and cited than Kelsen, they influenced and shaped the understanding of the state post-1945. Post-war public law and scholarship is discussed in the following two chapters.
Mariano Croce and Marco Goldoni
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9781503612112
- eISBN:
- 9781503613126
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9781503612112.003.0005
- Subject:
- Law, Legal History
Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the ...
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Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.Less
Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.
