Lars Vinx
University of Cambridge, Law, Faculty Member
- University of Turku, Department of Philosophy, Department MemberUniversity of Cambridge, Hughes Hall, Department Memberadd
A translation into English of the key texts in the debate between Hans Kelsen and Carl Schmitt on constitutional guardianship. Translated by Lars Vinx, with an introduction and editorial notes by Lars Vinx.
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According to Carl Schmitt, constitutional law and international law are analogous in that they are both forms of political law. Schmitt concludes that neither is open to legitimate judicial enforcement. This paper critically explores... more
According to Carl Schmitt, constitutional law and international law are analogous in that they are both forms of political law. Schmitt concludes that neither is open to legitimate judicial enforcement. This paper critically explores Schmitt’s analogy between constitutional and international law. It argues that the analogy can be turned against Schmitt and contemporary sceptics about international law: Since we no longer have any reason to deny the judicial enforceability of domestic constitutional law, the analogy now suggests that there is no reason to think that legitimate judicial enforcement of international law is impossible.
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The aim of this chapter is to offer a defence of the practice of constitutional review from the point of view of a theory of democratic legitimacy. I will develop this defence by engaging with the strongest criticism to date of the... more
The aim of this chapter is to offer a defence of the practice of constitutional review from the point of view of a theory of democratic legitimacy. I will develop this defence by engaging with the strongest criticism to date of the practice of constitutional review: Jeremy Waldron’s and Richard Bellamy’s argument that constitutional review violates the principle of democratic equality, respect for which is a necessary condition of legitimate political decision-taking in a pluralist society characterised by reasonable disagreement about rights.2
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This chapter supports Frederick Schauer's contention, put forward in the last chapter of The Force of Law, that coercion is one of the differentiating characteristics of law. However, the chapter takes issue with the way in which... more
This chapter supports Frederick Schauer's contention, put forward in the last chapter of The Force of Law, that coercion is one of the differentiating characteristics of law. However, the chapter takes issue with the way in which this contention is defended by Schauer, and it argues that a fully successful case for the differentiating character of coercion ought to focus on the monopolistic character of legal coercion.
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This paper offers a novel interpretation of the theory of the personality of the state put forward in Hobbes's Leviathan. Hobbes's account of political representation does not conceive of the state as a 'purely artificial person' or... more
This paper offers a novel interpretation of the theory of the personality of the state put forward in Hobbes's Leviathan. Hobbes's account of political representation does not conceive of the state as a 'purely artificial person' or 'person by fiction', as Quentin Skinner and David Runciman have argued. Rather, Hobbes regards the state as an artificial person that is closely analogous to natural persons. The state's integrity as
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Abstract: This paper aims to assess the relevance of the notion of the material constitution for democratic constitutional theory. It is argued that the concept of material constitution is a useful antidote for narrowly legalistic... more
Abstract: This paper aims to assess the relevance of the notion of the material constitution for democratic constitutional theory. It is argued that the concept of material constitution is a useful antidote for narrowly legalistic approaches to constitutional theory, but only if its complexities are properly understood. To achieve such understanding, theorists of the material constitution would do well to rely more strongly than they have thus far on Hans Kelsen’s approach to the material constitution of democracy.
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This paper offers an in-depth analysis of Volksentscheid und Volksbegehren, a hitherto untranslated short monograph of Schmitt's that offers both an interpretation of the Weimar Constitution's provisions for popular referenda as well as a... more
This paper offers an in-depth analysis of Volksentscheid und Volksbegehren, a hitherto untranslated short monograph of Schmitt's that offers both an interpretation of the Weimar Constitution's provisions for popular referenda as well as a reflection on the limits of direct democracy. The paper argues that Schmitt was concerned to limit the scope of popular legislative initiative under the Weimar Constitution as much as possible. This result suggests that it is wrong to interpret Schmitt as a defender of direct democracy who was concerned to preserve the constituent authority of the people against a parliamentary system controlled by political elites.
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This paper argues that Santi Romano’s legal institutionalism is driven by implicit normative assumptions that stand in tension with Romano’s commitments to legal positivism and legal pluralism. Romano’s approach to the individuation of... more
This paper argues that Santi Romano’s legal institutionalism is driven by implicit normative assumptions that stand in tension with Romano’s commitments to legal positivism and legal pluralism. Romano’s approach to the individuation of legal orders is indefensible on purely descriptive grounds, as it rests on a picture of good social order. That picture, in turn, gives more prominence to the state, as an institution of institutions, than one would expect in a thoroughly pluralist legal theory. Romano’s reflections on the different ways in which institutions can become legally relevant to one another is nevertheless highly valuable. It provides the toolkit for developing a normatively attractive conception of the legal relations of the state to other institutional orders.
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This paper offers a critique of Ernst-Wolfgang Boeckenfoerde's theory of constituent power. It is argued that any theory of constituent power that appeals to a Schmittian notion of political community must fail to explain the legitimacy... more
This paper offers a critique of Ernst-Wolfgang Boeckenfoerde's theory of constituent power. It is argued that any theory of constituent power that appeals to a Schmittian notion of political community must fail to explain the legitimacy of a democratic constitution.
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Standard accounts of the ideological basis of secularization tend to focus on the emergence of non-religious justifications of the authority of the state in early modernity. This paper argues that successful secularization also requires a... more
Standard accounts of the ideological basis of secularization tend to focus on the emergence of non-religious justifications of the authority of the state in early modernity. This paper argues that successful secularization also requires a certain political theology, one that leads religious believers to accept that the rules of their religion cannot justifiably claim the status of public law. This thesis is developed through an in-depth account of Hobbes's political theology in books III and IV of Leviathan. It is also argued that Ernst-Wolfgang Böckenförde's reflections on the process of secularization and on the proper relationship between church and state can be read as offering a contemporary version of Hobbes's political-theological argument.
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This chapter supports Frederick Schauer's contention, put forward in the last chapter of The Force of Law, that coercion is one of the differentiating characteristics of law. However, the chapter takes issue with the way in which this... more
This chapter supports Frederick Schauer's contention, put forward in the last chapter of The Force of Law, that coercion is one of the differentiating characteristics of law. However, the chapter takes issue with the way in which this contention is defended by Schauer, and it argues that a fully successful case for the differentiating character of coercion ought to focus on the monopolistic character of legal coercion.
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This paper offers a critical rereading of the history of judicial review of constitutional amendments in Turkey. We argue that, contrary to appearances, the claim to a power of amendment review on the part of the Turkish Constitutional... more
This paper offers a critical rereading of the history of judicial review of constitutional amendments in Turkey. We argue that, contrary to appearances, the claim to a power of amendment review on the part of the Turkish Constitutional Court does not fit Ran Hirschl’s model of hegemonic preservation, which aims to explain the genesis of strong constitutionalism and judicial review as the result of an anti-democratic elite consensus that tries to leverage the prestige of judicial institutions. Attempts to impose Hirschl’s model on the constitutional history of the Turkish Republic have been very popular in the jurisprudential literature on Turkey, but the model offers a misleading and incomplete diagnosis of what ails Turkish constitutionalism. It is not the supposed excessive strength of formal constitutionalism and judicial review in Turkey, but rather the normative weakness of the Turkish Constitution of 1982, that is responsible, at least in part, for Turkey’s repeated constitutional crises. We therefore suggest an alternative template for understanding Turkish constitutional history—the theory of sovereignty as the power to decide on the exception put forward by Carl Schmitt.
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Kelsen’s legal monism – the claim that it is impossible for legal science to recognize the existence of more than one legal system – is often held to be one of the least plausible aspects of Kelsen’s Pure Theory of Law. This paper... more
Kelsen’s legal monism – the claim that it is impossible for legal science to recognize the existence of more than one legal system – is often held to be one of the least plausible aspects of Kelsen’s Pure Theory of Law. This paper challenges the criticism of Kelsen’s monism in the work of H.L.A. Hart. In particular, it will argue that Hart failed to show that Kelsen’s monism rests on a mistaken criterion of the identity of legal system and that it is therefore descriptively inadequate. Kelsen’s monism is not only descriptively viable, but potentially able to provide an interesting counterpoint to the prevalent legal pluralist orthodoxy in the theory of legal system.
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Christopher Wellman has argued that legitimate states enjoy a right to freedom of association that necessarily includes a right to exclude immigrants. This paper shows that Wellman’s argument for this conclusion is unsound since it is... more
Christopher Wellman has argued that legitimate states enjoy a right to freedom of association that necessarily includes a right to exclude immigrants. This paper shows that Wellman’s argument for this conclusion is unsound since it is based on a construction of collective rights that is inapplicable to the rights of a state.
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This paper argues that the strong conception of popular sovereignty employed in the German Federal Constitutional Court’s recent decision on the Treaty of Lisbon is incoherent and should not be used as the centerpiece of a democratic... more
This paper argues that the strong conception of popular sovereignty employed in the German Federal Constitutional Court’s recent decision on the Treaty of Lisbon is incoherent and should not be used as the centerpiece of a democratic constitutional theory. Strong conceptions of popular sovereignty are usually defended on the basis of the claim that an appeal to strong popular sovereignty is necessary to ground the legitimacy of constitutional law. In fact, strong conceptions of popular sovereignty eliminate the conceptual space for the idea of legitimate law. This thesis is developed through a critical discussion of Carl Schmitt’s constitutional theory—which appears to be the main inspiration behind contemporary arguments for strong popular sovereignty—as well as through an analysis of the Lisbon decision of the Bundesverfassungsgericht.
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The paper criticizes past attempts to apply Kelsen's theory of legal system to the legal structure of the European Union. It is argued that Kelsen's legal monism can successfully account for the 'pluralist' elements of that structure.... more
The paper criticizes past attempts to apply Kelsen's theory of legal system to the legal structure of the European Union. It is argued that Kelsen's legal monism can successfully account for the 'pluralist' elements of that structure. (Paper in German)