131214840-Carl-Schmitt

Page 42
3—
The Concept of Law and Legislation in Parliamentarism
The parliamentary conception of legislation is already recognizable with the
Monarchomachians. In his Droit des Magistrats, Beza writes: "One should not judge by
cases, but by the law." 24 The Vindiciae of Junius Brutus was directed against the "pernicious
doctrine" of Machiavelli, and displays not only a passionate feeling of justice but also a
certain kind of rationalism. The author wanted to advance "mathematical ethics" and replace
the concrete person of the king with an impersonal authority and a universal reason, which
according to Aristotelian-scholastic tradition constitutes the essence of law. The king must
obey the law as the body obeys the soul. The universal criterion of the law is deduced from
the fact that law (in contrast to will or the command of a concrete person) is only reason, not
desire, and that it has no passions, whereas a concrete person "is moved by a variety of
particular passions." 25 In many different versions, but always with the essential characteristic
of the "universal,'' this concept of legislation has become the foundation of constitutional
theory. Grotius presents it in the scholastic form of the universal in contrast to the
particular. 26 The whole theory of the Rechtsstaat rests on the contrast between law which is
general and already promulgated, universally binding without exception, and valid in
principle for all times, and a personal order which varies case to case according to particular
concrete circumstances. In a well-known exposition, Otto Mayer talks about the inviolability
of the law. 27 This conception of law is based on a rationalistic distinction between the (no
longer universal but) general and the particular, and representatives of Rechtsstaat thinking
believe that the general has a higher value, in itself, than the particular. This becomes
especially clear in the juxtaposition of law and commission, which belongs to the center of
Locke's argument. This classical theorist of the philosophy of the Rechtsstaat 28 is only one
example of the controversy that has gone on for more than a century over the question of
whether the impersonal law or the king personally is sovereign. 29 Even "the gov-
Create PDF with PDF4U. If you wish to remove this line, please click here to purchase the full version