Derecho y orden social. Los presupuestos teóricos de la teoría jurídica de Carl Schmitt

Abstract

The purpose of this paper is to pick up a thesis from Schmitt, according to which law is not totally contained in its norms, but requires a concrete order besides these. I claim that by following such a principle, the theory of law increases his descriptive and explicative power. In particular, one can thus go beyond the day-to-day, technical knowledge of lawyers and judges, and render a proper explanation of the genesis and dynamical change of legal systems in general. Among other things, the said principle enables the theorist to construe the process that made it possible for the legal systems of modern societies to become autonomous. Yet, on the other hand, I make a critical remark against Schmitt’s belief that by thus explaining the relationship between a concrete order and its legal norms the latter are justified. Against this, I claim that they most comply with some kind of universal principle of justice. I support my claim against Schmitt on an argument of his own-one that he uses to buttress his view that the acknowledgment of the diversity of the human world is a prerequisite for keeping social conflict from becoming violent, and for turning it into a strictly political practice.