On political theology: A controversy between Hans Kelsen and Carl Schmitt

Abstract

IntroductionHans Kelsen's and Carl Schmitt's political publications, especially those issued between the two World Wars, present many considerations involving political theology, comparisons between God and state, and the question of the miracle. Knowing the strong Catholic roots of Schmitt's political thought, it is not surprising at all to discover many occurrences of that topic. Yet one might be surprised to find so many references to political theology in Kelsen, as he was so much of an opponent of transcendental perspectives in his elaboration of the theory of the state and in his definition of law, which was essentially positivist. He saw all transcendental perspectives primarily as fictions that divert one from the reality of the state's work. This article argues that the unexpected importance of comparisons between God and state in Kelsen's work can be explained by Schmitt's constant references to the institution of the Church in his own work, above all during the 1920s. As radical intellectual enemies, they fought against each other in this field too. This article intends to show how Schmitt and Kelsen's crucial conflicts about the relation between state and law and about the sources of the state's unity were condensed in their discussion about political theology.Both authors developed their comparisons during the same period, between the two World Wars, at the beginning of Germany and Austria's democratic experience. Although they worked with similar analogies, the goals they were pursuing were radically different. On the one hand, Kelsen sought to reject the non-positivist doctrines of the state. On the other hand, Schmitt mostly tried to model the state on the example of the Church. While Schmitt used references to political theology to assert his decisionism or, in other words, a conception of political decisions that transcends law, Kelsen used the comparisons between God and state to show how a transcendental state (autonomous from law) is a political and juridical abuse. A B S T R A C TThis article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitt's analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the state's unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The 'legal miracle'-in this context meaning the occasional autonomization of the state from law-was for Schmitt the manifestation of sovere...

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