ABSTRACT
This chapter concludes with a summary of the famous discussion which took place before the war between Carl Schmitt and Hans Kelsen concerning the relationship between the head of state and the constitution. It argues against the idea of Schmitt that the sovereign stands above the law but also against Kelsen's conception of the constitution. The inadequacy of Kelsen's pure legal theoretical point of view, is revealed when he evaluates and then rejects philosophical legal concepts as ideological. The sovereign is not the strongest power but the legitimate force-in-the- last-instance which is constituted through the constitution of the state, and only in the state can sovereign power be said to exist. In political philosophy one encounters two broad conceptions of democracy which initially seem diametrically opposed. Political justice requires that the government policies have a legal foundation. But legality as such is a rather deficient legitimation of authority. The chapter explores the issue of sovereignty.
