"ДЕЦИЗИОНИЗМ ТАМ, ГДЕ ОТСУТСТВУЕТ ЛЕГАЛЬНОСТЬ": ОБ ОДНОМ ИЗ ТИПОВ ЮРИДИЧЕСКОГО МЫШЛЕНИЯ В ПОЛИТИКО-ПРАВОВОМ УЧЕНИИ КАРЛА ШМИТТА

Abstract

The author of the article attempts to analyze the doctrine of decisionism, presented in Carl Schmitt’s work “On the three types of juridical thinking” (1934). In it, the German political philosopher and lawyer (1888– 1985) sums up some scientific results related to the very concept of decisionism and the corresponding decisionist thinking, having focused his very first treatise “Dictatorship” to that topic. “From the origins of the modern idea of sovereignty to the proletarian class struggle” (1910), and subsequently – the work “Political Theology. Four chapters on the doctrine of sovereignty” (1922). Among the three types of legal thinking considered by Schmitt (normativism, decisionism, thinking in categories of a concrete order), the greatest relevance belongs to decisionism, since it is in it that Schmitt sees the main means of combating abstract, faceless, anonymous and extra-spatial legal normativism, the consolidation of which in Germany contributed to both the reception Roman law, as well as the political and legal teachings of a number of normative legal scholars, the central place among whom was occupied by the Austrian lawyer G. Kelsen (1881–1973) with his theory of “pure” (abstract) law. The main factor that supports Schmitt’s research interest in decisionalism is its multiplicity (expressed in at least three of its subtypes: political, judicial, and autocratic). That feature of decisionalism suggests its relationship to the other two types of thinking considered in the “Three Types” (normative thinking and thinking in the categories of a specific order). In the first section of the article (“On three types of juridical thinking” by K. Schmitt. The decision to declare a state of emergency as the main feature of the sovereign), its author offers his commentary on Schmitt’s review of all three types of legal thinking, focusing his and the reader’s attention on the main thesis of decisionism (“He who makes an emergency decision is a sovereign”), on the distinction between normativism and decisionism and on the dependent nature of the latter on thinking in categories of a specific order. Particular attention in the article is paid to the issue of decisionism in American and English law (the second section “On the issue of the relationship between normativism and decisionism within the framework of case law”), since American law is partially built on judicial precedents, and therefore decisions of judges, and in English law Schmitt sees certain features of decisionism as the basis for the manifestation of thinking in categories of a specific order. The third section of the article (“Critical remarks regarding Schmitt’s political and legal doctrine of decisionism”) is focused on the consideration of at least two goals that Schmitt pursues by critically analyzing the doctrine of decisionism: the first (close) is to justify the feasibility of replacing normativism with decisionism; the second (prospective) is to prove the need to make existential decisions in case of emergency situations. In the process of analysis, Schmitt ignores the obvious fact that decisions of such a kind, not supported by the norms of law, contribute to the lawlessness of authorities acting as the sovereign.