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Rule of Law and Legal Formalism: Carl Schmitt critical of technical-bureaucratic rationality

Grant number: 23/10874-0
Support Opportunities:Scholarships in Brazil - Scientific Initiation
Effective date (Start): April 01, 2024
Effective date (End): March 31, 2025
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal Investigator:Thiago Reis e Souza
Grantee:Lucas Rocha Bertolo
Host Institution: Escola de Direito de São Paulo. Fundação Getúlio Vargas (FGV). São Paulo , SP, Brazil

Abstract

The present work seeks to investigate the critics to the technical-bureaucratic rationality of the liberal Rule of Law in the main works by Carl Schmitt published during the Weimar Republic, namely Legality and Legitimacy (1932), The Concept of the Political (1932) and Constitutional Theory (1928). For the German jurist, the rationality of European liberal democracies was structured in a supposed neutrality of political values, emptying the concrete contents of the principles of legality and legitimacy in parliamentary politics. Schmitt criticizes the instrumentalization of Public Internal Law, reduced to the procedural form, and indifferent to plebiscitary legitimacy as a system of justification of the constituted Powers. From the legislative processes of the Reichstag to the Weimar Constitution, as a product of this legalistic and technicist rationality, Schmitt's theory moves to the form of the Administrative State, in which parliamentary legality and bureaucratic functionalism seem to concur for the production of a different order from the one denominated by the author of The Nomos of the Earth as a concrete order. We pass, therefore, from the modern belief in "legality" to the contemporary belief in technology, understood as instrumentalization and negation of substantial Law. Our research intends to unveil the main arguments of Carl Schmitt's legal and political thought, in order to shed light on the current institutional problems, in which reason and politics seem irreconcilable terms.

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