Carl Schmitt by William E. Scheuerman

By William E. Scheuerman

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20 The relationship between the legal norm and the judicial actor inevitably involves an element of ''indifference" or indeterminacy vis-à-vis the legal norm. 21 But how then is the political community to be spared the obvious ills of a discretionary judiciary unregulated by the letter of the law? " Quite provocatively, Law and Judgment argues that indeterminacy at the level of the law's manifest structure need not generate judicial chaos. Indeterminacy within the sphere of legal norms and standards still leaves open an alternative path to legal determinacy [Rechtsbestimmtheit].

Yet it would be a mistake to dismiss the contemporary relevance of Schmitt's theory simply by noting that his views rest on a critique of traditional formalist jurisprudence at which prominent contemporary liberal jurists, such as Posner and Dworkin, look askance. Like many of his right-wing Weimar peers, Schmitt endorsed antiformalism within the law as a way of undermining Weimar's fledgling democratically elected parliament; in the German setting, antiformal jurisprudence served antidemocratic purposes.

Existing legal practice already hints at the legitimacy of this principle: when judges write legal decisions, they appeal to their colleagues; when a particular case takes on special importance, it is common to insist that a number of judges cooperate in solving the case. But it now needs to gain open recognition as a superior source for an identifiably postliberal concept of legal determinacy. "23 The ''normal" judicial professional of Schmitt's own day is the standard for his proposed test. 26 Schmitt's creative resolution of one of the perennial dilemmas of jurisprudence still leaves an obvious question unanswered: can it work?

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