Hayek and Schmitt on the Rule of Law

Cristi, Francisca

doi:10.1017/s0008423900031899

Cited by 18 publications

(6 citation statements)

References 6 publications

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“…35 Cristi answers this question correctly and notes that, in Constitutional Theory, Schmitt developed the notion of a 'liberal' legal order which, by being (also) based on 'private property and personal freedom', 36 may be seen as the 'just' (or 'ethical' in the Hegelian sense of the term) variant of the Rechtsstaat, rather than a variant of Dicey's doctrine of the rule of law. 37 Cristi also notes that in The Constitution of Liberty, Hayek adopted a similar view 'and acknowledged his debt to Schmitt'. 38 Once we recognise the necessary relationship between norm and decision, 39 and thus understand the role of this connubium in rendering the law capable of keeping its sociopolitical regulative promises, something becomes evident.…”

Section: Back To 1984 and 1998: Cristi's Innovative Comparisonmentioning

confidence: 99%

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Hayek the Schmittian: contextualising Cristi's account of Hayek's decisionism in the age of global wealth inequality

Siliquini-Cinelli

2015

Griffith Law Review

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DRAFT-FORTHCOMING IN GRIFFITH LAW REVIEW 2015 24(4) 687-06 HAYEK THE SCHMITTIAN Contextualising Cristi's Account of Hayek's Decisionism in the Age of Global Wealth Inequality  That capitalism, in all its variants, produces material inequality is beyond dispute. What is less clear, however, is not only whether Hayek's 'equality of opportunities' is immune to the inegalitarian trend, but also whether liberalism itself is the occult source of this outcome. This paper delves into this by offering a post-national contextualisation and partial critique of Renato Cristi's 1984 and 1998 scholarship on Hayek's decisionism. The aim is to investigate the relationship between liberal thought and wealth inequality in light of the global-order project and crisis in democratic decision-making procedures. This will uncover a clear zone of interaction between Hayek's notion of legal liberty and Schmitt's sovereignty that was not spotted by Cristi and that will shed new light on the dehumanising and inegalitarian essence of the universalisation of liberalism and its notion of 'civilised economy'. Under conditions of superficial political equality, another sphere in which substantial inequalities prevail will dominate politics.-Carl Schmitt 1 The Rule of Law produces economic inequality.-Friedrich Hayek 2 Draw a distinction. Call it the first distinction. Call the space in which it is drawn the space severed or cloven by the distinction.

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Section: Back To 1984 and 1998: Cristi's Innovative Comparisonmentioning

confidence: 99%

“…33 Siliquini-Cinelli (2015c). 34 Schmitt (1985) 37 See also Seitzer's suggestion that with Constitutional Theory Schmitt 'locates his decisionism at the very core of the liberal constitutional tradition'. See Seitzer (1998), p. 281.…”

Section: Back To 1984 and 1998: Cristi's Innovative Comparisonmentioning

confidence: 99%

Hayek the Schmittian: contextualising Cristi's account of Hayek's decisionism in the age of global wealth inequality

Siliquini-Cinelli

2015

Griffith Law Review

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“…Writing about government's ideal scope, Friedman (2002, p. 2) asserts that "its major function must be to protect our freedom both from the enemies outside our gates and from our fellow-citizens: to preserve law and order, to enforce private contracts, to foster competitive markets." Hayek also wants to restrain the state, at the same time that, under the influence of Schmitt (with whom his thinking maintains an ambiguous relationship), he opens the door to its authoritarian role (Cristi, 1984;Scheuerman, 1997).…”

Section: Social Dimension Of Governmentalitymentioning

confidence: 99%

Social Networks as Dispositives of Neoliberal Governmentality

Castro¹

2016

JMC

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This article of theoretical reflection investigates the social networks that emerge in the context of Web 2.0, such as Facebook, as dispositives of neoliberal governmentality in the sense proposed by Foucault. From the standpoint of government of self, the design of social networks establishes a competition for attention that tends to favor the neoliberal culture of performance. In terms of social organization, the way in which users intertwine their connections is paralleled by the neoliberal paradigm of spontaneous market order. Furthermore, the use of personal information on these users, encompassing all their activities within the networks, in order to set up databases to attract advertisers reflects the neoliberal tendency of colonization of the different realms of existence by economic forces. However, the tensions that accompany neoliberal governmentality in social networks reveal its limitations, opening the possibility for these networks to also act as instruments of resistance to neoliberalism.

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“…Chevallier (1994), at 16. 21 Cristi (1984) (indicating that Schmitt followed Hobbes' auctoritas non veritas facit legem against Kelsen's system of general abstract laws; claiming that Schmitt's position was against democracy rather than classical liberalism, thus having more in common with Hayek than the later would care to acknowledge). 22 Cf.…”

Section: Norm Decision and Discretionmentioning

confidence: 99%

The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

Hildebrandt

2010

Criminal Law, Philosophy

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In this contribution I address the type of emergency that threatens a state's monopoly of violence, meaning that the state's competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second-if criminal jurisdiction is not in contradiction with the state of emergency-the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.

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Hayek and Schmitt on the Rule of Law

Cited by 18 publications

References 6 publications

Hayek the Schmittian: contextualising Cristi's account of Hayek's decisionism in the age of global wealth inequality

Hayek the Schmittian: contextualising Cristi's account of Hayek's decisionism in the age of global wealth inequality

Social Networks as Dispositives of Neoliberal Governmentality

The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

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