Material Anti-Oligarchic Constitutionalism

Systemic corruption is a form of political decay linked to inequality and the oligarchization of society, a process by which the superrich control the political process, pushing for laws and policies that benefit big corporations in detriment of the common people. To account for ever-expanding systemic corruption and oligarchic domination, I have proposed to use a material method to study constitutions, which is premised on the idea that the organization of political power cannot be analysed without taking into account socioeconomic power structures and the ways in which States enable some kinds of actions while disabling others, targeting specific groups through the criminalization and legalization of certain behaviours, as well as through the selective enforcement of rules and penalties that appear as neutral. In this paper I will lay out the basic premises and philosophical foundations of material constitutionalism and compare it to legal formalism and proceduralism.

Lessons from the past for public international law in the future – Remembering Bertha von Suttner and her quest for peace

It has often been argued that one cannot understand the present without the past. The same holds true for the future. I suggest that the debate on the future of public law could benefit from drawing on past experiences and struggles for change. To illustrate this historical approach, I use the example of Bertha von Suttner. In her lifetime, Suttner (1843–1914) was considered the most famous woman in the world. For many public lawyers a laughing stock, for very few others a ‘pillar of fire’ (Walther Schücking) in the night, she never tired of proclaiming her vision of a more peaceful world. In light of the ever-increasing potential of conflicts over vital resources and other interests, Suttners ideas of disarmament, international cooperation and dispute adjudication are still highly relevant today. Focusing on some significant developments in Suttners life, I will propose some conclusions on how her life and work could serve as guidance for public international law scholars today.

Living in the era of semantic constitutionalism without noticing it: the relevance of Loewenstein’s teaching

Karl Loewenstein, notoriously known for being the architect of ‘militant democracy’, had less luck with the introduction in 1957 of the term ‘semantic constitution’, a concept that still remains mostly unexplored and underestimated in the academic literature. Even so, several commentators have indirectly questioned the practical relevance of his classification, that being something that would only be employed in a very few and residual cases, would lead to the conclusion that even an elementary treatise can show that power does not reside where the Soviet constitution seems to place it (Leiman, 1958). Giovanni Sartori in 1962 further developed the original Loewenstein’s scheme, partially departing from it through the first appearance of the pair ‘nominal’ and ‘façade’ which, as he confessed, would often result in a blurring and overlapping distinction. The paper argues for the relevance in the contemporary constitutional democracies of Loewenstein’s semantic constitutionalism.

Legalizing Schmitt’s “Legality and Legitimacy”

The “Preussen Contra Reich” case of 1932 marks a unique chapter in understanding Carl Schmitt’s work. The removal of the Prussian state government by the Weimar federal government, under an emergency decree, would be known as the “Preussenschlag”. The Prussian government would challenge the decree’s legality. During the opening arguments from the Prussian government direct reference is made to Schmitt’s “Legality and Legitimacy”. A first reference is made by Dr. Brecht regarding Schmitt’s principle of “equal chance”. A second reference is made by Dr. Peters regarding Schmitt’s theory on “extraordinary actions”. Acting as counsel for the Weimar government, Schmitt responds to Dr. Brecht and elaborates on his principle of “equal chance”. The first objective of this paper will be to present the arguments referring to “Legality and Legitimacy” in the “Preussen Contra Reich” case. The second objective is to question Schmitt’s principle on “equal chance” and theory on “extraordinary action”.