Discussion, conflict and exception: Carl Schmitt and the not quite new paradigm of lawmaking
| Autor | Eduardo Carone Costa Júnior |
| Ocupação do Autor | Bacharel em Direito pela Faculdade de Direito da UFMG |
| Páginas | 1277-1286 |
Special Workshop: Politics is conict - Carl Schmitt and our time • 1277
Eduardo Carone Costa Júnior1
Abstract: When CarlSchmi pronouncedthat opennessand discussionare
the two principles on which constitutional thought and parliamentarism de-
pend in a thoroughly logical and comprehensive system”, he was aiming at
the liberal modus operandi of creating law within a state’s border that is still
presented as an integral part of our democratic way of being. Nevertheless, the
gap between the contemporary discourse of democracy and the everyday prac-
tice of parliamentary lawmaking – one that already existed under the Weimar
ConstitutionthatinspiredSchmito writehiscriticoftheparliamentkeeps
growing. Openness and discussion have a distinct way of impacting the legisla-
tive process that cannot be measured, yet is constantly perceived – often in a not
so generous way – by the common citizen. What the modern constitutions do to
avoid the deepening of this crisis is trade democratic legitimacy for celerity in
a way that can be considered a response to an undesired intervention of time in
themakingofthelawSchmispointistwofoldFirstthatthistradeoshould
represent the exception when the creation of the law is concerned, not the rule.
Second, that there is a paradox concerning the modern liberal state’s praise for
democracy and it’s acceptance that what should be considered the exception in
the state created after the liberal revolutions is – again - becoming the normal
way of creating the law.
Keywords: Lawmaking; crisis; publicity; discussion; time intervention; excep-
tion.
1. Lawmaking in crisis
It doesn’t take a scholar to realize that lawmaking is facing a cri-
sis. The average citizen knows that this crisis - even though he can’t
pinpoint the moment it started or it’s causes – concerns the amount and
1 Bacharel em Direito pela Faculdade de Direito da UFMG. Especialista em Controle
Externo pela PUC/MG. Mestre e Doutorando em Filosoa do Direito pela Faculdade de
Direito da UFMG.
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