The University of Wrocław

Dr Mateusz Wojtanowski

The University of Wrocław

English abstract: The aim of this article is to expose the concepts of the autonomy of law and, more primary, the nomos of law, together with the problems that these concepts imply. Contemporary challenges of legal practice and legal science, such as crises of the rule of law or the juridification of successive spheres of social life, call for a re-positioning and rethinking of the question of the autonomy of law. As the article points out, the discussions around these challenges can be read as disputes about the nomos of law – its possibility, nature and location. In this vein, the article analyses the concept of the nomos of law and then, with reference to Carl Schmitt’s interpretation of this notion, addresses the question of the possibility of the autonomy of law. The article also reconstructs the basic theoretical positions on the nature of the nomos of law and the autonomy of the legal order, with particular reference to the output of the Wrocław school of legal theory and philosophy of law in this area. Against this background, selected current challenges to the autonomy of law are considered.

Keywords: Autonomy of law, nomos of law, Wrocław school of legal theory and philosophy of law, Włodzimierz Gromski, crisis of autonomy of law, Carl Schmitt

Language: Polish

Published: nr 4(41)/2024, pp. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.5

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Number of downloads: 240

This text is licensed under a Creative Commons Attribution 4.0 International License.

University of Warsaw

Abstract: The concept of a state of emergency is one of the most frequently cited elements of the thought of the German philosopher of the law and political theorist Carl Schmitt. In its discussions, however, the conceptualization of the state of emergency, which Schmitt proposed in 1924 in his juridical comments on Article 48 of the Weimar Republic’s constitution, is often linked with the theory of Ausnahmezustand from Political Theology (1922). Such a juxtaposition is a mistake, because Schmitt was not a consistent thinker and his texts can be mutually contradictory. I propose, therefore, to separate the state of emergency from Ausnahmezustand – translated from German literally as a state without a name. The main difference between them consists in the different types of legitimacy. The state of emergency from the Constitution of the Weimar Republic finds its legitimacy in this document from 1919, however, read by Schmitt in a way that in his Constitutional Theory (1928) he referred to as relativization of the constitution. For the state without a name, as not being included in the legal order and the equivalent of a miracle in theology, such legitimacy is impossible. In order to find it, one must refer to other Schmitt’s works than the strictly judicial ones. I believe that the state without a name may be legally valid – in a word: not a coup d’état – if we acknowledge that Schmitt’s political theology is not just a methodological project that translates theological notions into political and legal ones, but a wider proposal rooted in the faith in Revelation. Therefore, this figure from the work of the German thinker in which the state of emergency finds its legitimacy is taken from St. Paul’s letters; it is the figure of a katechon: the one who comes and stops the world from disintegration. The use of such legitimacy emphasizes the reluctance to accept modernity, which Schmitt did exhibit, and presents him as a thinker who continued the medieval way of thinking, which is completely incompatible with the strictly modern concept of a state of emergency.

Keywords: Carl Schmitt, state of emergency, state without a name, katechon, political theology

Language: Polish

Received: 24.12.2018
Accepted: 14.03.2019

Published: Number 1(19)/2019, pp. 15-26

DOI: https://doi.org/10.36280/AFPiFS.2019.1.15

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Number of downloads: 783

English abstract: In the article “Carl Schmitt Revisited by the United States and the Terrorist” it is shown that Carl Schmitt’s morals, standards and views can be noticed in the United States policy in the context of so-called “war on terror”. According to the article, Islamic terrorists are a mirror image of Schmittan revolutionary partisan. It is discussed how terrorists are, as a problem, treated by the USA, which in author’s opinion displays many Schmittan features. Schmitt is one of the few who claim that the sovereign state is above the legal order and can set boundaries. It is therefore shown that the USA seem to have rushed into Schmittan “state of exception”, where norms are suspended in order to achieve security, resembling the thinking of the G.W. Bush administration. It is illustrated how the USA seem to be following Schmitt’s ideology, especially by making exceptions to international rules, but also putting the terrorist outside of the scope of international regulations. Lastly, author tries to answer the question if it is justified to follow Schmitt and obey to the rule of law.

Keywords: Carl Schmitt, war on terror, state of exception

Language: English

Published: Number 1(10)/2015, pp. 69-78

DOI: https://doi.org/10.36280/AFPiFS.2015.1.69

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Number of downloads: 493