Sulla polemica Schmitt-Kelsen: scenari storici e alcuni profili filosofico-giuridici

The essay focuses on some aspects of the relation between Hans Kelsen and Carl Schmitt. The crisis of the philosophical and legal model elaborated by the Hegelian philosophy of State (including its Marxian reformulation), especially in the light of the contribution of Max Weber concerning the bureaucracy and the notion of “charisma”, represents the background of this comparison. Both the philosophers have to face the decisive question of the foundation of Law, within an historical context characterized by the central role of the mass and the problems related to the democratic systems (i.e. the republic of Weimar). In this direction, the analysis of the main theoretical points of the two perspectives puts in light the progressive decline of the historical and theoretical horizon underlying them (i.e. legal order, legal source and so on): the new legal-sociological scenarios, more and more dominated by the reticular models of Law, compromise the traditional pairs ‘norm-decision’ or ‘form-substance’.