Judging by their titles alone, the books under review occupy vastly different terrains. Reading them together, however, reveals one very significant point of intersection. The famous debate between Hans Kelsen and Carl Schmitt that Lars Vinx has translated and congenially introduced for our edification continues to have ramifications for contemporary legal theory, and that is no less true for Hauke Brunkhorst’s breathtaking magnum opus. Brunkhorst himself explicitly cites the debate, and he makes no bones about where his sympathies lie. In fact, passages of Brunkhorst’s argument read like an extended homage to Kelsen.

Kelsen’s relative neglect in Anglo-American legal theory —despite the long shadow his writings cast in the iconic legal positivism of H. L. A. Hart—is finally coming to an end, thanks in part to sympathetic commentators like Vinx, whose earlier monograph, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (2007), did a great service to Kelsen’s reputation by linking Kelsen’s theory of democracy and rule of law to John Rawls’s and Ronald Dworkin’s respective political and legal philosophies. Kelsen’s neglect on this side of the Atlantic belies his towering influence on the Continent, where his monumental contributions in drafting the Austrian constitution (1920, restored after World War II) and other theoretical writings proved to be extraordinarily seminal.

The Guardian of the Constitution contains the first English translation of the debate between Kelsen and Schmitt, held on the eve of the Weimar Republic’s demise, regarding the delegation of powers laid out in the Weimar Constitution, specifically with regard to the powers of the president to suspend parts or even all of the constitution during states of emergency of the sort that plagued the republic toward its end, leading up to the installment of Hitler as chancellor. More pertinent to contemporary debates, Kelsen and Schmitt address timeless philosophical questions regarding the legitimacy of constitutional review and its role in guarding the constitution against hostile takeover by partisan parliamentary majorities.

The book begins with a short but elegant reprise of the historical and contemporary significance of the debate. Unlike Vinx’s earlier monograph, which sought to defend the mildly heretical thesis that Kelsen was a natural law theorist despite his express rejection of that theory, his introduction lays out the relevant facts surrounding the debate without any hint of interpretative license. The drama of the Weimar Republic’s collapse as narrated by Vinx makes for some exhilarating reading, and underscores the crucial role that Article 48 of the Weimar Constitution played in setting this tragic history in motion. By empowering conservative President Paul von Hindenburg to authorize conservative Chancellor Franz von Papen to dictatorially suspend Prussia’s social-democratic-led Landestag in July 1932—all in the name of restoring public security and order—Article 48 effectively undermined the constitution’s pretense of securing a federal separation of powers. Although Prussia appealed this executive decree to the federal court of justice in matters of state (Staatsgerichtshof), that court did not have effective power of constitutional review, and allowed the coup to stand.

The debate that follows opens with Kelsen’s essay from 1929, “The Nature and Development of Constitutional Adjudication,” followed by Schmitt’s 1931 response, contained in several long excerpts (divided into two chapters), from Schmitt’s book, The Guardian of the Constitution. Kelsen’s defense of constitutional review reflects his own doctrine of legal hierarchy (Stufenbaulehre): Any legal act must be authorized by a higher legal norm ending with the constitution, the effective basic norm (Grundnorm); the function of the constitutional court is necessary to ensure that legislators and executive officers create and apply law according to the highest law. Schmitt retorted that the open-textured nature of constitutions renders their neutral application by judges impossible; constitutional courts do not guard the constitution so much as hijack it for their own political ends, thereby dissolving the separation of judicial and legislative powers. Guarding the constitution against politicization, Schmitt reasoned, would have to fall on the shoulders of a neutral state organ. Here, Schmitt appeals to his own idiosyncratic constitutional theory, which holds that the constitution properly reflects the unitary, sovereign will of the entire nation. This will, he maintains, is embodied in the person of a popularly elected president; therefore it is the president who is the proper guardian of the constitution, and it is he who should have the power to suspend parts of it in the name of protecting it from the destructive partisan acts of the legislature and judiciary.

In his counter to Schmitt, “Who Ought to Be the Guardian of the Constitution?” Kelsen attacks every premise of Schmitt’s reasoning: the distinction between legislation and application, the mythical presumption of a unified people’s will, and above all the regressive, authoritarian dismissal of parliamentary democracy, with its implicit attack on modern pluralism and minority rights. In retrospect, these criticisms seem prescient; for whatever might be said about Schmitt’s constitutional fear of political extremists prior to 1932, by 1933 he had thrown in his lot with the Nazis. The final essays documenting Kelsen’s and Schmitt’s final verdicts regarding the Staatsgerichtshof’s resolution of the Preussenschlag raise a difficult question for these polarizing figures: What if liberal democracy can only be protected from its enemies by being suspended? Vinx’s answer to this question makes clear his own Kelsenian bias: A democracy whose citizens have ceased to believe in it is not worth protecting, least of all by a dictatorship that would controvert its very spirit.

Brunkhorst also displays a Kelsenian bias against Schmitt in Critical Theory of Legal Revolutions. Brunkhorst’s earlier book, Solidarity: From Civic Friendship to a Global Legal Community (2005), as well as his numerous writings on cosmopolitan law, anticipate the present study in their Kelsenian logic. That logic identifies law and state and subordinates all municipal and national legal systems to a single international legal system.

As the title of his book suggests, Brunkhorst adopts the multidisciplinary approach to law characteristic of the Frankfurt School tradition of critical theory. This tradition, which has a venerable pedigree extending back to the 1930s, claims among its earliest legal exponents such stellar figures as Otto Kirchheimer and Franz Neumann. Like many Marxist revolutionaries (then and now), they were attracted to Schmitt’s critique of liberal democracy. The betrayal of the revolution under Stalinism and the rise of fascism, however, led them to turn a very quick about-face. Their defense of liberal democratic socialism brought them closer to Kelsen’s political preferences (convergent with the neo-Kantian spirit of Austro-Marxism), whose own critique of national sovereignty, developed under the banner of cosmopolitan legal monism, is today strenuously advocated by Jürgen Habermas and by Brunkhorst.

Brunkhorst’s theory of legal revolutions builds upon the interdisciplinary legal theory developed by Habermas, albeit with one notable difference. Both theories adopt a dual normative-sociological perspective that is at once explanatory and critical. Brunkhorst, however, denies that the weak egalitarianism contained in Habermas’s theory of communicative action and rational discourse—implicit both in holding speakers mutually accountable for their actions and in the very process of rational account giving (argumentative justification)—suffices to generate norms that are strong enough to explain the logic and dynamic of legal revolutions. Brunkhorst’s adaptation of Habermas’s “communication” paradigm focuses instead on the social evolutionary significance of gestural (and later vocal) dissent, mediated by transcendent religious insight into the inherent dignity of each individual who is created equally by God “in his image.” (Habermas’s most recent account of the genealogy of human rights, as secular legal translations of Judeo-Christian morality, hews closely to this story line as well.)

Aside from this trivial difference regarding the best way to capture the critical force of communication in legal discourse, Brunkhorst’s account of legal evolution hews to the same evolutionary model elaborated by Habermas. The dialectical interplay between legal ideals (the “Kantian mind-set,” as Martti Koskenneimi puts it) and legal realities (the managerial mind-set) generates a theory of permanent legal crisis. Once moral idealism’s presumption of universal human equality—bequeathed from the Judeo-Christian strand of the great Axial Revolution (as Karl Jaspers famously dubbed the monotheistic awakening from 1200 bce to ace 200)—joins hands with the systematization of Canon Law—bequeathed from Roman law—the arbitrary rule of absolute monarchic rule that had hitherto prevailed throughout European history begins to meet its legal limit.

The Papal Revolution (1075–1122) institutionalized the first discourse of moral limits on the evolutionary adaptation of growing administrative power. This revolution, like all subsequent revolutions in the expansion of human rights and legal justice (Brunkhorst mentions eight), simultaneously systematizes and subverts a new administration of law that also unavoidably “legitimates” a new order of class domination, which, as Brunkhorst reminds us, is reflected across economic, political, and educational subsystems. The Atlantic legal revolution that began in Europe and the Americas at the end of the eighteenth century and eventually spread throughout the world further radicalized the concept of moral legal limit by effectively detaching this concept from natural law, with its theological-metaphysical appeal to moral hierarchy. The new legal form specifying equal human rights for all individuals, now conceived as self-determining agents, sets in motion a further demand for democratic self-determination and, commensurate with its correlative supposition of democratic civic solidarity, a demand for equal civil, political, and social welfare rights. Kelsenian legal positivism thus stands vindicated: Modern democratic legal systems generate their normative content from within a reflexive legal learning process that applies and amends a constitution oriented toward realizing the idea of human rights.

The ramifications of the Atlantic Revolution are still being played out today, but on a global scale. For Brunkhorst, the tension between capitalism and social democracy has entered a new phase. In his opinion, a global neoliberal economy that exacerbates social inequality and poverty destroys the material foundation for liberal democracy, promotes civil strife, and violates human rights. A further revolution is therefore needed. The current neoliberal legal-political economy must be radically changed to better reflect its own humanitarian constitutional principles. For Brunkhorst, that cannot be done without implementing Kelsen’s pioneering insight: the explicit abandonment of the old Westphalian system of sovereign states in favor of a global social-democratic alternative.