Skip to content
Licensed Unlicensed Requires Authentication Published by De Gruyter February 8, 2017

On the Disruption of Post-colonial Constitutional Order: Hans Kelsen or Carl Schmitt?

  • Syed Sami Raza
From the journal ICL Journal

Abstract

In wake of a coup d′état in 1958, the Supreme Court of Pakistan is asked to decide on its legality. The court, faced with lack of precedent, relies on Hans Kelsen's legal positivism. Over the next five decades the key theoretical basis of the decision is summoned in several other cases in different post-colonial states. This essay develops a critique of the application of Kelsen's theory. The aim of the critique, as well as an added theoretical contribution, is that I engage Carl Schmitt's critique of Kelsen. Accordingly, I redeem the 1920s debate between Kelsen and Schmitt in order to caste critical light on the court decisions. Moreover, I engage Schmitt's own constitutional theory in order to provide an alternative answer to the question of constitutional disruption. The task is twofold: first, to evaluate Kelsen's (liberal) constitutional theory, which purportedly seeks to answer the non-liberal or non-democratic challenge posed by constitutional disruption and dictatorship, and second, to explore the democratic element in the non-liberal theory of Schmitt. My conclusion is that although Kelsen gives politically correct principle of “the efficacy of change” as the basis of legality of constitutional disruption, however, the main steps in his theory do not support the principle. Moreover, the principle draws him away from his liberal constitutionalism. On the other hand, Schmitt's explanation of the same principle based as it is in a non-liberal or realist theory, answers well the question of disruption and dictatorship. Thus the courts that engage Kelsen remain hardpressed to defend their decisions, while those other courts that challenge Kelsen come close to Schmitt.

Published Online: 2017-2-8
Published in Print: 2012-9-1

© 2017 by Walter de Gruyter Berlin/Boston

Downloaded on 29.2.2024 from https://www.degruyter.com/document/doi/10.1515/icl-2012-3-405/pdf
Scroll to top button