ABSTRACT
Carl Schmitt’s response to Hans Kelsen was similar to Smend’s. With a sense of disbelief and dismay Schmitt wrote in his Verfassungslehre: The theory of the state that Kelsen repeats in many books presents the state as a system and unity of legal norms, without offering the slightest effort to explain the material and logical principle of this unity. Sovereignty, proclaims Schmitt in his Politische Theologie of 1922, consists of the power to decide the exception – Souveran ist, wer uber den Ausnahmezustand ent-scheidet. Peter Gabel and Duncan Kennedy’s 1984 dialogue-form article “Roll over Beethoven” was surely a clear signal that key exponents of the Critical Legal Studies movement participated in this resistance. Leftism has been a bourgeois cultural project within which many leaders and many followers have believed that they were not just left but also right, in the strong sense of possessing coherent and complete descriptive and prescriptive analyses of the social order.
