131214840-Carl-Schmitt

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Legal Positivism and Legitimacy
The ultimate target of his political thought was the German theory of legal positivism, whose
roots lay in the mid nineteenth century. The school founded by Carl Friedrich von Gerber and
carried on by Paul Laband at first provided a clear and modern alternative to the historical
school of law. But by the First World War the value-free perspective of German legal
positivism, which separated the law from political and moral inquiry, was no longer capable
of formulating questions about the legitimacy of the state and political power or a concept of
justice that was relevant to the relationship of power and authority in the state. These were
dismissed as metaphysical and thus unanswerable. Instead, German legal theorists developed
a principle of "the normative power of the factual," first stated by Georg Meyer. Gerhard
Anschütz accepted Meyer's view and provided the standard formulation of it: "The capacity
to use state power is not defined through rightful inheritance [rechtsmässigen Erwerb] but
through its actual possession. . . . The question of the legitimacy of state power can
[certainly] be decided according to the principles of law; but the properties of state power as
legitimate [can] exercise no particular legal effect. Legitimacy is not a characteristic of state
power." 76 After the German revolution this legal theory was helpless even to define a change
as "revolutionary." ''It demanded for its vitality," E. R. Huber has written, "neither the
'permanent use' of the constitution produced by the revolution, nor its sanction through 'a
sense of justice' on the part of those concerned. . . . [According to this theory] there was only
one ground of validity for a revolutionary constitution that arose from the usurpation of state
power: the actual possession of power." 77 Although Georg Jellinek's Allgemeine Staatslehre
(1900) 78 modified this view somewhat by introducing considerations of "convictions"
(Überzeugungen), these were not conceived as truly normative. Rather they were the product
of an unchallenged use of power: "Customary right does not come from the national spirit
[Volksgeist] that sanctions it, [or]
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