Kelsen-Schmitt Tartışması Aracılığıyla Devlet-Hukuk İlişkisini Yeniden Düşünmek: Eleştirel Bir Giriş
E. G. Kurgan
This article examines the law-state relationship in modern state by comparing ideas of Carl Schmitt and Hans Kelsen. In this context, firstly, what law is where its differences emerge from will be discussed. Then, Kelsen's conceptualization 'Grundnorm', which created constitution(s) state(s), as a source legitimacy state. The that Kelsen builds on basis his 'Pure Theory Law' compared to situation considers 'decision' sovereign. Although has accepted thing-in-itself intensified efforts build an objective science, juridical science presents factual order; even if it was not Kelsen’s goal. Kelsen, however, neglects political failed examine appearance order or practical social their relationship. On other hand, did much get closer approach- building with Grundnorm- emphasis sovereignty constituent unique legitimacy. Over unity, Schmitt’s approach based defining over extraordinary “decision” sovereign identical society/people. understand both attaches importance equivalent value notion rightfully developed. last part, argues emerged Grundnorm 'sovereignty', is, partnership both.
Cumhuriyet Üniversitesi iktisadi ve idari bilimler dergisi|DergiPark (Istanbul University)