| The man named Carl Schmitt, for his special political carrier during the period of The Federal Republic of Weimar and his criticism on liberalism, have been a spokesman of anti-liberalism in 20 century . The understandings of his anti-liberalism position in the academic world are various as well, which almost focus with such a problem: whether Schmitt draw his inspiration form the Roman Catholic Church theology then advocate the Totalism, or just as Strauss have said that Schmitt is a failed anti-liberalist meanwhile on the liberal ground? What is more, does the understanding of Schmitt must begin in such thought called the political Romanism thought in German? Then Schmitt shall be a Casualism with no intention to support or reject liberalism. Anyhow, Schmitt firstly is a public lawyer, especially a constitutional scholar. With the most controversial discussions on him, he claimed the new concept "the political constitution" which intended to replace the traditional concept "the liberal constitution". As a result, This thesis never has a plan to give a critical criterion for those various understandings or does any defense for Carl Schmitt, but intends to demonstrate the true meaning of "the political constitution", beginning with a series of Schmittian famous aphorism, such as "sovereignty is just to decide the non-normative situation", "politic is just to distinguish between friends and foe", "leaders guard the law" and so on. With investigating "the liberal constitution" basic foundation and the ways to operate carefully in which Schmitt do his best endeavors to criticize, then he pointed out "the liberal constitution" lacks of the conception of "public will", that is the biggest difference in both. In some sense, the "the political constitution" can be named of "the decisive constitution", for its stressing in "public decision". That also means "the political constitution" filled with a personal element which is motile and not compatible with "the liberal constitution". That is the "political element", which Schmitt emphasized repeatedly. It proves important to point out that his constitutional thought is "a democratic-legalistic constitution" which is transformed from the "liberal constitution". Schmitt insisted to distinguish the political element and the liberal element in Constitution, in order to highlight the indispensability of "political decision" in a state, meanwhile without denying the protection for human rights, finally construct a constitution integrate the state's political element with the freedom of the citizens.This thesis consists in five parts:The introduction gives a brief clue for the thesis. Schmitt gathered many controversial critics and understandings, because of his Roman Catholic Church educational background and special political experience. Been well-known for his anti-liberalism position, Schmitt claimed the concept "the political constitution" with stressing the political element in constitutional concept, in order to rescue the constitutional crisis occurred by the identification between "the advocate in human right" and the constitution itself which proposed by the liberal constitution.The first chapter, Schmitt hypothesizes the "political community" in any state, by asserting that "sovereignty is just to decide the non-normative situation", "politic is just to distinguish between friends and foe". With this personal element, he gave his concept "political law", laying a jurisprudential foundation for "the political constitution".The second chapter, Schmitt analyzed the liberal constitution's basic principles and its elements. He comes to a conclusion that the liberal constitution neglects the "political decision" that leads to its powerless in taking responsibility in the constitutional life eventually. He even considered the spread of the thoughts of liberal constitution will result to riot. Schmitt acknowledged the political position and the spirit of political decision, which been cultivated in earlier liberal constitution. However, today the overwhelming democratic movements had already replaced the bourgeois revolution, accordingly the liberal constitution which is subject to the bourgeois is outdated and reduced to the double-talks packed with rivals for his own private benefits. The principle which the liberal constitution followed can't communicate with the spirit of "the political entity", that is why the liberal constitution can't hold the responsibility. The reduction of the liberal constitution means that "the political element" must be noticed from the shielding, the freedom for "the political element" also declares a new era for the constitution theory. The third chapter, on the ground of the criticism of the liberal constitution, my thesis gave a further analysis of the basic structure of Schmitt's "the political constitution". Schmitt discussed this problem on the background of modern constitution which works on the premise that the people hold the power in making constitution. In another word, the state was regarded as a political entity composed by ethnic group. The people maintain and realize the political entity by two ways: homogeneous principle and representative principle. These two principles are both existed in every political entity, forming the basic political structure in a state jointly and reproducing the strengths to decide. Based on the two principles, there are three sovereignty systems named for monarchy, parliamentary system and democracy in every state. In this chapter, the thesis gave a particular section to discuss such a problem: Schmitt considered the Weimar constitution had already given the political decision in that peculiar political situation, and the aphorism "leaders guard the law" had its own rights.In the conclusion, Schmitt's constitution theory dedicated to confirm a constitution concept based on will outside the normative constitution. He tried to determine the position of "the political will" in constitution theory without ignoring the basic value of the liberal constitution. Therefore, the traditional constitution theory transformed to the liberal element in constitution. Although the human rights still been protected, this protection would never go to contend against the state, namely "the politic community". A authoritative and liberal value doctrine has been set up. |
