IL DIBATTITO GIUSFILOSOFICO TRA CARL SCHMITT, HANS KELSEN E RUDOLF SMEND SULLO SFONDO DELLA CRISI DELLA REPUBBLICA DI WEIMAR

The present research work deals with the legal-philosophical thought of Carl Schmitt, Hans Kelsen, and Rudolf Smend during the Weimar period, with the priority aim at making clear the topicality of the constitutional experience of the Weimar Republic, qualified as a laboratory of ideas and facts that make understandable the reality of the postwar continental European constitutions and the crisis of the modern constitutional democracies, showing the perils, latent at that time, that reveal themselves for the constitutional democratic State today. The Weimar legal-philosophical debate assumes an universal importance, because even if becoming livelier in a specific constitutional situation it produces valid reflections for every type of constitutional-democratic system tuning one’s back on old political regimes or requiring repairing in progress, for the lack of balance of state power, and raises old problems still unsolved in the modern age. In representing the importance and the topicality of Weimar laboratory, the treatment of themes as the State, the balance of state power, the democracy, the constitutionalism, the fundamental rights, the guardian of constitution, the forms of the government and of the State, and the political-constitutional crisis has been developed moving from the Weimar historical context and on the basis of the theories of three Authors selected. Therefore, the present work aims at linking up in a only one scientific product the facts with the ideas of Weimar laboratory, by an interdisciplinary approach, in order to relate the legal-philosophical theories of three giants of Weimar and the related debate with the historical, political, constitutional, institutional, cultural, economic, and social context of the Weimar Republic and the relative constitutional crisis, its heritage, and its lessons, whose analysis is place of understanding of the current crisis of constitutional democracies and moment of reflection on adequate theoretical solutions, going to see the dangers for the democratic constitutional State. Such study looks like a research desideratum in the legal-philosophical survey. The present research work is based on an interaction between an historical-constitutional reconstruction, a theoretical-constitutional analysis, and legal-philosophical reflection, combining different scientific approaches (philosophy of law, constitutional law, political philosophy, constitutional history, and constitutional theory). Specific of the present treatment is the thesis that most of the themes discussed in the theories of ours three Authors are the same of the current legal-philosophical and public law debate, to the point to put forward the conviction that the risks for the constitutional democracy, already identified in Weimar in the form of totalitarianism, are today impending in other different forms over the present constitutional democratic systems.