This paper is above all an in-depth analysis of the controversy that Schmitt and Kelsen had between them on sovereignty, the international order and the national state. Schmitt has always tried to distinguish the moment of the formation of sovereignty from that of its explanation, placing sovereign power in the exceptional case; only in this case there is sovereignty. Schmitt’s theoretical attempt is far-reaching and he makes it his own since 1922 with the publication of Politische Theologie (reissued in 1934) in which he states that the birth of the legal order always represents an exceptional moment in which the “sovereign” exerts its maximum power. Instead Kelsen affirms the relevance of the concept of sovereignty in terms of international relations: it is international law that guarantees other states sovereignty. This paper, therefore, through the treatment of the thought of other authors, aims to identify the contribution provided by these doctrines to international law by identifying the foundation not only juridical but also philosophical of the two systems, in order to draw useful reading-keys to interpret the complex contemporary scenario.
Il report IsAG n. 118 a cura di Domenico Mazza.
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