Existential Openness in Law

Diego Pérez Lasserre

Existential Openness in Law

A hermeneutical approach to Carl Schmitt’s early legal thought

by Diego Pérez Lasserre (Author)

Series: Berner Reihe philosophischer Studien, Volume 53

This book delves into Carl Schmitt's early legal works and explores their hermeneutic nature. Drawing on the insights of the giants of existential hermeneutics, such as Heidegger and Gadamer, we illuminate the essence of hermeneutic thought - the existential openness inherent in us as human beings - and then examine its implications for Carl Schmitt's early legal thought.

The journey that this text embarks on reveals that the openness inherent in human beings inevitably extends to the legal phenomenon. This realisation exposes two potential pitfalls or flawed appropriations within juridico-hermeneutical activity. First, there's the scientism that restricts law strictly to positive legislation, depriving it of its broader scope. Second, there's what might be called legal romanticism, in which the interpreter, on the basis of whim and subjectivity, dictates what the law means. The book delves into Schmitt's early works, highlighting his awareness of these extremes and the ways in which he addresses them.

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Title
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About the author
About the book
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Contents
Introduction
1. § 1. From human understanding to law: Heidegger and Gadamer
2. § 2. From law to human understanding: Carl Schmitt’s approach
3. § 3. The problem with “Humanized law”. How do we know if a legal decision is correct?
1. Hermeneutics and law: Heidegger and Gadamer
1. § 1. Knowledge and understanding
2. § 2. Two theories of understanding: Heidegger and Gadamer
  1. a. Subject and object are one: Martin Heidegger
  2. b. Thematization of the characteristics of the subject of understanding: some conclusions regarding Heidegger’s theory of understanding
  3. c. Gadamer’s ontology of the Dasein from the concrete: art, law and language
  4. d. Some conclusions regarding Gadamer’s thought
3. § 3. Conclusions to the first chapter
2. Carl Schmitt “the soldier”
1. § Methodological warning concerning Schmitt’s text selection
2. § Between the universal and the concrete: Carl Schmitt’s early legal thought
3. § 1.Statute and Judgment (1912)
  1. a. The irrationality of “rational” legal positivism: ignoring the facts of life
  2. b. “The other judge”: Schmitt’s criterion for the correction of legal decisions
  3. c. Schmitt’s concept of law in Statute and Judgment
  4. d. The exception, history, and finitude: a recognition about how human understanding operates
  5. e. Legal decisions as a type of reflective judgment
  6. f. Some conclusions regarding Statute and Judgment
4. § 2. Power, law, and people: The Value of the State and the Significance of the Individual (1914)
  1. a. The state and law: a complex relationship
  2. b. Abstraktes Recht and Staatliche Recht: a fundamental distinction
  3. c. The individual before the state and law
  4. d. Conclusions concerning The Value of the State and the Significance of the Individual (1914)
3. Carl Schmitt “the Artist”
1. § 1. Introduction
2. § 2. Carl Schmitt’s theory of understanding? Herrera’s argument
3. § 3. Historicality, temporality, and language
4. § 4. The exceptional, finitude, and epochal historicality
5. § 5. Conclusions and final reflections
4. Towards the middle way in legal thought
1. § 1. Introduction
2. § 2. Legality vs. Indeterminacy: Schmitt’s description of law
3. § 3. Endorsement of the community of judges: understanding Schmitt’s criterion
4. § 4. The “other judge” as a methodology for judicial reflection
5. § 5. Conclusions to the fourth chapter
Conclusions
Epilogue
§. Carl Schmitt and philosophy of life
Bibliography
Disclaimer

Pages:

258

Year:

2024

ISBN (PAPERBACK):

9783034347792 (Active)

ISBN (EPUB):

9783034348058 (Active)

ISBN (PDF):

9783034348041 (Active)

DOI:

10.3726/b21427

Language:

English

Keywords:

language, Schmitt, Hermeneutics, human understanding, historicality, finitude, Existential openness

Published:

Lausanne, Berlin, Bruxelles, Chennai, New York, Oxford, 2024. 258 pp.

Diego Pérez Lasserre is a researcher at the Facultad de Derecho y Ciencias Sociales of Universidad San Sebastián, Valdivia (Chile). He holds a degree in Law from Pontificia Universidad Católica de Chile, a Master's in Contemporary Thought from Universidad Diego Portales, and a PhD in Philosophy jointly awarded by Universidad Diego Portales and FernUniversität in Hagen.

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Existential Openness in Law

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