Who is Afraid of the Total Constitution?
theory featuring the concept of the political at its core.2 Kelsen, on the other hand, develops a theory of legal science committed to eliminating the political (empirical and moral) from its scope to rescue the idea of scholarly detachment.3 Yet, as Kelsen himself rightly points out,4 the Pure Theory of Law, in all its modernist abstraction and formality, reveals legal practice as political all the way down. It is exactly the formal structure and substantive emptiness of Kelsen’s theory that makes it a potent weapon for exposing the prevalence of politics in legal practice and legal scholarship: If a pure theory of law can say nothing about how a law should be interpreted, then every act of legal interpretation is revealed to be a political act, not a requirement of law.
The relationship between law and politics in contemporary Germany is in important ways the mirror image of Weimar. Under the guardianship of the Federal Constitutional Court (hereinafter FCC) the German Basic Law had, over the course of the second half of the 20th century, developed to become what Schmitt might well have referred to as a total constitution.5 If a total state is a state in which everything is up for grabs politically, a total constitution inverts the relationship between law and politics in important respects. If in the total state law is conceived as the continuation of politics by other means, under the total constitution politics is conceived as the continuation of law by other means. The constitution serves as a guide and imposes substantive constraints on the resolution of any and every political question. The validity of any and every political decision is subject to potential challenge before a constitutional court that, under the guise of adjudicating constitutional rights provisions, will assess whether such an act is supported by good reasons. The legislative parliamentary state is transformed into a constitutional juristocracy.6
The defining features of the total constitution can be derived by inverting the features of the total state. First, if the politicization of the relationship between
CARL SCHMITT, DER BEGRIFF DES POLITISCHEN (3d ed. 1963).
HANS KELSEN, REINE RECHSLEHRE (2d ed. 1960).
Schmitt himself never used the term “total” in conjunction with the term “constitution.” In Schmitt’s jargon the term “total” was reserved to states, wars, and enemies, see CARL SCHMITT, Totaler Feind, totaler Krieg, totaler Staat (1937), in POSTIONEN UND BEGRIFFE IM KAMPF MIT WEIMAR – GENF-VERSAILLES 1923- 1939, at 268 (3d ed. 1994). 5
The term “constitutional juristocracy” was introduced to contemporary debates by Schmitt’s probably most brilliant late pupil, E.W. Böckenförde. See E.W. BÖCKENFÖRDE, Grundrechte lals Grundsatznormen, in STAAT, VERFASSUNG, DEMOKRATIE 185 (1991). In the Anglo-American world the term has been popularized by R. Hirschl, TOWARDS JURISTOCRACY (2004). 6