От "Нормы" к "Порядку": Эволюция правопонимания Карла Шмитта

Известия высших учебных заведений. Правоведение. 2016. № 1. С. 150–165.

Nazmutdinov B.

The article presents a reconstruction of evolution of Carl Schmitt’s (1888–1985) legal ideas which influenced the theory of state and legal philosophy. The author of the article reflects on the main Schmitt’s writings, their influence on legal positivism, their connection with the institutional theory of Maurice Hauriou, analyzes Kelsen’s critical review of Schmitt’s views, interrelations between the ideas of Schmitt and the views of the Russian scholars Nickolas Alexeyev and Mstislav Shakhmatov.

The author of the article underlines that Neo-Kantian views affected the early Schmitt’s writings. However, the scholar opposed his views to the Neo-Kantian normativism of Kelsen. Defining the problem of correlation between the concepts of “norm” and “decision”, C. Schmitt has established the bases of the Decisionism doctrine within which the “decision” has become the main foundation of legal order, rather than the “norm”. The notions of sovereignty and constitution elaborated by the scientist have become examples of the Decisionism doctrine.

During 1930s Schmitt tried to combine Decisionism with the doctrine of “specific legal orders”. He underlined the “normal” concepts of the legal order, rather than the exception which provokes the “Decision”.

During 1940–1960s Schmitt’s vision led him to the opposition between the orders of “Land” and “Sea”. Schmitt challenged the universal character of international law and tried to pose new academic questions within the international humanitarian law.

Keywords: правопорядок, теория государства, theory of state, децизионизм, нормативизм, normativism, правовая норма, decisionism, legal order, legal normativity