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Filozofi a (teoria) prawa Carla Schmitta?

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Zajadło J.

Przegląd Sejmowy

2016

nr 4(135)

65-94

The main aim of this article is to analyze the small work of Carl Schmitt “On the three types of juristic thought”, fi rst published in 1934. In the literature of the subject, the German scholar is known primarily as a political philosopher and creator of the original, although controversial, ideas and concepts, including: the nomos, the political, the friend and enemy relationship, a state of emergency, sovereignty and political theology. Not forgotten is also the support Schmitt gave the Nazi regime after Hitler came to power. In the fi rst two parts of the article, the author reviews, on the one hand, the current state of research on the thought of the German scholar and, on the other hand, presents his short biography and his achievements as a writer. All of this, however, is only the background for a general review and analysis of the origins and content of the work of Schmitt of 1934. The author emphasizes the unique character of that small volume book as compared to other works of the German scholar. In the book, Schmitt rather appears to us as a theorist and philosopher of law, who goes beyond a dispute between legal positivism and natural law, and proposes a particular mode of thinking based on legal institutions. His sources of inspiration include two of his contemporary authors, representing institutional theory of law, Maurice Harriou and Santi Romano. According to the author of the article, it is hard to claim on this basis that Schmitt developed his own theory and philosophy of law.