Schmitt’s Spectre and Kelsen’s Promise: The Polemics on the Guardian of the Constitution

Abstract

The following paper begins by briefly stating the position of Carl Schmitt and Hans Kelsen on the question of the guardian of the Constitution, relating it afterwards with each author’s conception of democracy and views of the proper nature of the judicial function. For both authors, the conception of democracy is the key to determine the guardian of the Constitution. Furthermore, just as these conceptions of democracy can be envisaged as the two sides of the same coin so it happens, in a way, with the views of Schmitt and Kelsen over who should be the guardian of the Constitution. Finally, it is argued that the positions of both authors have an enduring relevance that can be demonstrated in the current situation of constitutionalism in Europe.