Carl Schmitt, Mao Zedong and the Politics of Transition by Qi Zheng

By Qi Zheng

This publication develops a brand new manner of studying and making the most of Schmitt's felony and political theories. It explores Schmitt's theories from the point of view of what I seek advice from because the politics of transition. It additionally contributes to choosing the genuine theoretical courting among Schmitt and Mao.

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The sovereign, as mentioned in Chapter 1, is a constituted entity that protects the legal order in the state of exception in Schmitt’s theory. The origin of sovereignty is still the people, since the constitutional sovereign is the delegate of the people. Constitution-making power and sovereignty, therefore, are two functions, from the state and the people, of the same political authority. 18 They are named in accord with their distinctive functions. Constitution-making power is the founding force, while sovereignty is the protecting force for the legal order in Schmitt’s theory.

The first reason is that this point explains what a legal order means in Schmitt’s theory and reveals Schmitt’s critique of the ‘self-sufficiency’ of the basic norm in forming a legal order. The second is that the gap between a plurality of norms and a legal order is the theoretical basis for his further critique of the role played by the basic norm in providing the unity of a legal order. Schmitt’s second point sheds doubts on the possibility of creating the unity of a legal order through the basic norm.

These two critiques of Kelsen are consistent with each other. They attack the role played by the basic norm and put concrete political substance as the basis of a legal order. Both critical perspectives aim to reveal the insufficiency of the formalistic understanding of the legal order as a pure plurality of legal norms. Therefore, although the two critiques emerge from different perspectives, we can think of them as two aspects of an overall critique of the basic norm by Schmitt. 1 discussed how, in Kelsen’s theory, the basic norm, the starting point of the law-creation process, has the conferring power to create particular norms.

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