Revisiting the concept of state in Carl Schmitt. Legality, legitimacy and law

Abstract

In this article we will work on the types of state and their legitimacy in the works of the German jurist Carl Schmitt, avoiding falling into a fragmentary reading or loaded with ideological prejudices. The texts will be reviewed, a selection will be made and the main positions held by the author will be presented, following his own exposition. The anthology will be accompanied by an exegesis of the concept of State, its different types and budgets. As the main result, we will notice the problem of legitimacy in the modern State and its link with the political, which liberalism tried to avoid by equating it with the criterion of legality. Schmitt affirms, on the contrary, that legality and legitimacy could even be contradictory and that is why the types of legislative State, the jurisdictional State and the administrative and governmental State are referenced. Finally, the concept of Law, Law and Democracy is confronted. Schmitt's thesis demonstrates the contradictions that exist between the principle of popular sovereignty and the controls fixed to the parliamentary system. The problems he points out have not been overcome either by current theoretical models or by empirical models. Although the possibilities of an "impartial" third party to solve the contradictions left the possibility open to the Führerprinzip, the truth is that the normative tools of exception are still in force in the presidential systems of our Region.