Akademik Veri Yönetim Sistemi
Cumhuriyet Üniversitesi İktisadi ve İdari Bilimler Dergisi, cilt.24, sa.4, ss.646-658, 2024 (Hakemli Dergi)
This article examines state-law relations in modern states by comparing the ideas of Carl Schmitt and Hans Kelsen. In this context, the article will first discuss what modern law is and from where its differences emerge. Next, the article will examine Hans Kelsen’s conceptualization of Grundnorm [basic norm], which formed constitutions in modern states, as a source of legitimacy in the modern state. The article compares the state-law relationship that Kelsen constructed upon the basis of his Pure Theory of Law to Carl Schmitt’s consideration of law as the decision of the sovereign. Although Kelsen accepted law as a thing-in-itself and intensified his efforts to build an objective science, juridical science presents a legitimacy in factual order, despite this not being Kelsen’s goal. Kelsen, however, neglected what is political and failed to examine the appearance of factual order/law within the practical social order and their relationship. On the other hand, Schmitt’s emphasis on sovereignty as the constituent will and unique source of legitimacy did not get much closer to Kelsen’s approach to constructing law with Grundnorm. With regard to the political and political unity, Schmitt’s approach was based on factual order by defining the law in terms of the extraordinary decision of the sovereign as a being identical to the society/people. This article’s approach to understanding the modern state attaches importance both to Kelsen’s emphasis on juridical science as well as equivalent value to the notion of sovereignty that Schmitt had rightfully developed. The last section of this article argues that the state-law relationship in modern states emerged through both Grundnorm and sovereignty as a partnership of both.