Authority, Law and Democracy

Approaches to Hans Kelsen and Carl Schmitt

Abstract

The meaning of democracy has been disputed nowadays, a topic that refers to the memorable debate between Kelsen and Schmitt, at the dawn of the 20th century and, supposedly buried by the passage of time and the advent of neo-positive-constitutionalism, returns to reverberate in the contemporary neo-fascist approach, with shining colors of popular democracy, gradually eroding the concrete foundations of liberal democracy, the genesis of the Roussean model. The outlined text seeks to record the main ideas of Kelsen's positivism, the avoidance of methodological syncretism in the science of law, without neglecting its penchant for the parliamentary model of popular representation, and the central role of law in the origin and limits of constituted powers, including minorities in the range of protections and guarantees of freedoms, notably by force of jus, while, on the opposite line, in Schmitt's theory, the main line of his thought is in power of the sovereign, popularly acclaimed, and bastion of democracy, who is responsible for decreeing the exception and eliminating the enemy of the majority, using law as a tool to legitimize political decisions; the incorporated method is dialectical with reinforcement of theoretical-doctrinal explanation.