Concrete orderly thinking

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Concrete order thinking (or concrete order and design thinking ) is a term from the legal theory of Carl Schmitt and is understood by him as an expression of an institutional legal theory in the sense of Maurice Hauriou . According to this, "the law is not based on an abstract ought of normative statements or postulates or on arbitrary decisions, but rather in the concrete life orders and supra-personal institutions of historical-social reality that precede the dualistic tearing apart of being and ought."

The expression is mentioned for the first time in the publication On the Three Types of Legal Thought from May 1934, published by Reichsrechtsführer Hans Frank as part of the series “Writings of the Academy for German Law ” . When creating the typescript, Schmitt was supported by his student Günther Krauss supported, who was temporarily active as a consultant in the Reich office of the National Socialist Legal Guardian Association as an employee of Schmitt.

Schmitt distinguishes three basic types of legal thinking in the narrow font:

Schmitt sees the "rule of law as opposed to the rule of people" as the concern of normativism. In a misinterpretation of the word “ Nomos basileus ”, “Nomos as king” becomes “law as king”. In short, law is understood as a norm or law. However, expressions that are essential for law, such as “king, ruler [...] but also judge and court”, refer to orders “that are no longer mere rules.” Therefore, normativity reaches its limits when it comes to understanding the phenomenon of “law” do not fully explain this. For Schmitt, normativism leads to an intensification of the opposition between being and ought, since the normativist is only interested in the order of the applicable legal norms, but not in the relative disorder of the situation. Schmitt also links this with anti-Semitic expressions by linking normative legal thinking with the “peculiarity” of the Jewish people, who are dependent on formal legal certainty .

For Schmitt, the core of decisionism is “the authority or sovereignty of a final decision ”. Only the decision of the sovereign creates the legal order. In this way, decisionism could answer questions about the application and validity of the law. The decision itself is not deducible and arises “from a normative nothingness and a concrete disorder.” Schmitt sees the danger of “missing the dormant being contained in every major political movement by punctuating the moment”. Since decision-making locates the origin of law in the ought, this too is not suitable for overcoming the gap between being and ought. Since the decision also relates negatively to order in that it strives to overcome disorder, it is dependent on the dimension of order.

With the concrete orderly thinking , Schmitt took a turn against his own decisionist theory formation without giving up his anti-normativist position. At the same time, Schmitt turned against legal positivism , which he understood as a mixed type of normativism and decisionism. Schmitt counters this with his concrete orderly thinking, in which rule and decision no longer have any independent meaning, since they are "canceled" in a higher third party.

The concrete order thinking is described as "neo-natural law elements" as well as containing a "variety of the natural law thinking ". It is unclear to what extent this actually applies, since Schmitt does not fully explain the relationship between the orderly thinking and the decisionist element of design.

After 1945, Schmitt continued his reflections in “ Nomos der Erde ”, where, in addition to his order-based definition of law, the element of design is more clearly worked out.

literature

Individual evidence

  1. ↑ Böckenförde: Sp. 1312 f.
  2. ↑ Three types: p. 14
  3. ↑ Three types: 15.
  4. ^ Carl Schmitt: National Socialist Legal Thinking In: Deutsches Recht Vol. 4, p. 226.
  5. ↑ Three types: p. 25.
  6. ↑ Three types: p. 28.
  7. ↑ Carl Schmitt: Political Theology , Second Edition 1934: p. 8.
  8. ↑ Bernd Rüthers : Degenerate Law . Legal teachings and crown lawyers in the Third Reich, Munich 1988, p. 65.
  9. ↑ Andreas Anter : The power of order : Aspects of a basic category of the political, Tübingen: Mohr Siebeck 2nd A. 2007, p. 195