Work

Judicialization of politics, judicial self-restraint, and the defense of the constitution: Carl Schmitt’s lessons from The Guardian of the Constitution

Year: 2024

Type: article

Abstract: In this paper, I present an interpretation of some of Carl Schmitt’s theses in his work Der Hüter der Verfassung (The Guardian of the Constitution). Initially, I present the Schmittian definition of a “guardian of the constitution” as opposed to a “sovereign ruler of the constitution” and compare it to contemporary approaches to constitutionaltheory. Next, I discuss Schmitt’s theses on the function of the Reich President as the guardian of the constitution, his defense of an attitude of judicial self-restraint in the judicial review of the constitutionality of laws, and his critique of the “judicialization of politics”. Finally, I draw on those theses to raise a discussion on the Brazilian Supreme Court and question its status as “guardian of the constitution”.

Source: DoisPontos

DOI: 10.5380/dp.v17i2.74191t

Author: Claudio Ladeira de Oliveira

Institutions: Universidade de São Paulo, Universidade Federal de Santa Catarina

Language: English

Topic: Political Theology and Sovereignty

Subfield: Sociology and Political Science

Field: Social Sciences

Domain: Social Sciences

SDG: Peace, justice, and strong institutions

Open Access status: diamond

OpenAlex ID: W4409679451

FWCI:

Cites: 12

Cited by:

Related to: 10