Carl Schmitt's “Tyranny of Values” in the Context of the Debate on the Nature of Constitutional Rights

Abstract

Discussions about the nature of constitutional rights set out in the Constitution emerged in post-war Germany in the late 1950s and early 1960s, triggered by the judgement of the German Federal Constitutional Court in the so-called “Lüth case”. In this judgement, for the first time, the Court clearly articulated the position that fundamental rights are an objective value system that extends its legal force to all branches of law, including civil law. One of the fiercest critics of the Court decision was Ernst Forsthoff, a disciple of Carl Schmitt. In a series of articles, he attacked the “value” legal interpretation, pointing out that it leads not only to the destruction of the legal method and the loss of jurisprudence autonomy, but also to changes in the institutional structure of the state. E. Forsthoff’s criticism was predominantly juridical, focusing on the actual law enforcement, as well as on the theoretical-legal origins of value interpretation which he found in R. Smend’s “integration theory”. In contrast, C. Schmitt, in Tyranny of Values, practically omitted legal arguments and attacked the philosophical basis of the German Court’s position. Relying on M. Weber, the German legal scholar attempted to demonstrate that the adoption of value interpretation by constitutional justice means the direct application of values, which destroys the rule of law. Despite the different trends of criticism, the conclusions reached by E. Forsthoff and C. Schmitt show a significant similarity in that both call for the autonomy of legal science and a return to the formal legal state.