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Carl Schmitt’s ‘Rechtsbegriff’

  • DONG-A LAW REVIEW
  • 2019, (85), pp.51-82
  • DOI : 10.31839/DALR.2019.11.85.51
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : October 30, 2019
  • Accepted : November 22, 2019
  • Published : November 30, 2019

Sung Jung Yeop 1

1인제대학교

Accredited

ABSTRACT

In this article, I review Carl Schmitt’s concept of ‘Recht’ by analyzing his entire works. He is known for a decisionist, but his decision is a mere instrumental measure that can create order from chaos. After Hitler came to power, he emphasized concrete-order legal thinking rather than decisionism, and pointed out that a third type of legal thinking had to be added to his former distinction normativism and decisionism. Schmitt elaborated the relation between these three types of legal thinking and introduced Nomos, including decisionist and institutional elements. According to him, Nomos does not mean law in the sense of rule or Gesetz, but rather both decision and order. He also emphasized the spatial dimension of Nomos by asserting that Nomos is the unity of order(Ordnung) and location(Ortnung). Schmitt continued his inquiry into the original meaning of Nomos by distinguishing three different meanings: The first meaning is “to take” or “to appropriate”; The second meaning is “to divide” or “to distribute”; The third meaning is “to produce”. Furthermore, Schmitt’s concept of Nomos is especially relevant for international relations. He asserted that Nomos has reflected the spatial order of earth throughout the world history. According to him, the first Nomos was a pure terrestrial Nomos lasting until the 16th century. The second Nomos began with the opening of the oceans, the circum- navigation of the earth and the Conquista. This Nomos was purely Eurocentric, because European nations discovered and conquered the new world. After WWⅡ, however, this Eurocentric Nomos was destroyed and the Cold War division of the earth into East and West became the new Nomos. Schmitt foresaw two possibilities of a new Nomos. The first was a complete victory of one of the superpowers over the other and the united world. He rejected, however, this possibility from his anti-universalist standpoint. As a second possibility, Schmitt opted for a pluralistic Nomos of the earth. He did not give up hope for this new Nomos: There are gods and they reign, great is their measure.

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