Lars Vinx (ed.), Garantul Constitutiei: Hans Kelsen si Carl Schmitt despre Limitele dreptului Constitutional
Lars Vinx (ed.), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law

Summary/Abstract: Polemics: Hans Kelsen and Carl Schmitt about The Guardian of the ConstitutionDemocracy, according to Kelsen, is a process of peaceful search of a political compromise between different social groups, who are entitled to participate in the game of democratic politics in conditions of equality. This democratic compromise, in Kelsen's view, maximizes freedom and moves away it ideological and functional from the constraint coercive system of law and is also contrary to autocracy. Democracy is essentially constitutional, because search of a peaceful compromise requires accepting the primacy of a system of rules of procedure standing to represent the will of all groups in society. A constitutional court acts as the impartial guardian of these rights and procedures; therefore, it is particularly important in a democratic state.On the other hand, Schmitt argues that legal guardianship of constitutional legality will always inhibit democracy and try to prevent the constituent expression of the will of the people. Also, Schmitt will support the idea that genuine democracy is the only constituent power.

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