نوع مقاله : مقاله پژوهشی

نویسندگان

• سیدناصر سلطانی . ¹
• کاظم احمدی ²

¹ دانشیار گروه حقوق عمومی دانشکدگان فارابی دانشگاه تهران، قم، ایران

² دانشجوی دکتری حقوق عمومی دانشکدگان فارابی دانشگاه تهران، قم، ایران

چکیده

اشمیت به شدت با رویکرد لیبرال به پاسداری از قانون اساسی مخالف بود، رویکردی که او آن را عاری از محتوای سیاسی واقعی و بیش از حد وابسته به اصول حقوقی انتزاعی می‌دانست. او در عوض، از نقشی قاطع‌تر و با بار سیاسی بیشتر برای رئیس دولت طرفداری می‌کرد و استدلال می‌نمود که تنها چنین فردی می‌تواند به‌طور مؤثر از قانون اساسی در زمان بحران محافظت کند. او مفهوم لیبرال از دولت بی‌طرف و عینی را به چالش می‌کشد و ادعا می‌کند که چنین دولتی ذاتاً از اتخاذ تصمیمات سیاسی حیاتی برای پاسداری از قانون اساسی ناتوان است. او همچنین از دموکراسی لیبرال انتقاد می‌کند و استدلال می‌کند که این نوع دموکراسی منجر به فضایی سیاسی تکه‌تکه‌شده و غیرقاطع می‌شود و آن را در حفظ وحدت و انسجام دولت ناکارآمد می‌سازد. اشمیت استدلال می‌کند که قانون اساسی به‌عنوان تجسم هویت دولت، صرفا با سازوکارهای حقوقی قابل محافظت نیست، بلکه نیازمند اراده سیاسی قوی و قاطع است؛ اراده‌ای که بتواند در مواجهه با عدم قطعیت و بحران عمل کند. این مقاله با رویکردی تحلیل محتوا به نقدهای کارل شمیت، نظریه‌پرداز برجسته‌ حقوقِ آلمان، بر لیبرالیسم، دموکراسی و پارلمان‌گرایی در رابطه با پیامدهای آن‌ها بر حفاظت از قانون اساسی می‌پردازد.

کلیدواژه‌ها

• کارل اشمیت
• لیبرالیسم
• نگهبان اساس
• پارلمان‌گرایی
• قانون اساسی

موضوعات

• حقوق عمومی

عنوان مقاله [English]

The Guardian of the Constitution: Carl Schmitt’s Critique of Liberalism, Democracy, and Parliamentarianism

نویسندگان [English]

• Seyed Naser Soltani ¹
• kazem Ahmadi ²

¹ Associate Professor, Department of Public Law, College of Farabi, University of Tehran, Qom, Iran

² Ph.D Student, Public Law, College of Farabi, University of Tehran, Qom, Iran

چکیده [English]

Introduction

It has always been a challenge to determine the institution or authority responsible for safeguarding the highest legal and political expression of a society, namely its constitution. The significance of this issue lies in the critical role of protecting the foundation of society. The constitution, as the embodiment of a society’s political and social unity, preserves its identity and cohesion. Accordingly, every political community and legal system, shaped by its worldview and prevailing ideology, has devised a method to protect its constitution. After gaining independence, Americans entrusted the judiciary with the protection of the constitution, establishing it as the guardian institution. This model became a template for other socio-legal systems. Alongside the American or Anglo-Saxon approach, a new model emerged based on the ideas of Hans Kelsen, an Austrian jurist. Kelsen’s model advocates assigning constitutional protection to an institution independent of political authorities, yet operating with a judicial approach. The Constitutional Court, first established in Austria, would serve as the guardian of the constitution, functioning like a judicial court by adjudicating constitutional disputes and issuing judgments. In contrast, Carl Schmitt, with his keen perception of political realities and his observations of the crises of the Weimar Republic in Germany, proposed a different path. Schmitt’s ideas, shaped by his critique of liberalism in law and politics, have often been described as undemocratic, authoritarian, or power-oriented. His explicit opposition to parliamentarism linked him to fascism and the Nazi Party. Skeptical of liberal ideals rooted in parliamentarism, Schmitt argued that the parliament and its fragile foundations had lost their effectiveness and could no longer be relied upon. For Schmitt, safeguarding the foundation—the cohesive political and social unity of society—is primarily a political task. Liberalism, by reducing politics to debate and discussion on one hand and transforming it into economic competition on the other, was no longer capable of fulfilling this role. Liberal principles, including parliamentary regime, pluralism, and party systems, had lost their effectiveness in protecting the foundation and had instead become major dilemmas in the polity. In response, Schmitt advocated entrusting the guardianship of the foundation to the president, a political figure who could remain above the self-serving conflicts of parliament and parties, and exercise decisive authority when necessary to prevent the destruction of the foundation. The present study aimed to examine Schmitt’s main criticisms of the parliamentary system of his era—rooted in liberalism, democracy, and party politics—and his reasons for rejecting judicial or Constitutional Court oversight as a means of safeguarding the foundation. An attempt was made to understand his concept of the guardian of the foundation (or the guardian of the constitution) more directly and precisely, without the distortions of historical accusations. The analysis focused the critiques of Carl Schmitt, the prominent German political theorist, regarding liberalism, democracy, and parliamentarism, exploring their implications for the protection of the constitution.

Literature Review

There have been a few Persian-language studies discussing Schmitt’s views, primarily focusing on his theory of the concept of the political. However, with regard to Schmitt’s concept of the guardian of the constitution, there is only one research titled “The Guardian of the Constitution in Carl Schmitt’s Thought” (Moradkhani, 2021), which mainly provides an exposition and descriptive account of Schmitt’s theory. In contrast, the present article aimed to critically examine Schmitt’s theoretical and fundamental critiques of liberalism, explore their implications, and present Schmitt’s alternative paradigm for safeguarding the constitution.

Materials and Methods

As a descriptive–analytical inquiry, this study used a library research method to offer a critical analysis of Schmitt’s constitutional theory, in particular his concept of the guardian of the constitution.
 Results and Discussion
According to Schmitt, the foundation (or the constitution) is the manifestation of a nation with a distinct identity and of a comprehensive, all-encompassing statehood. This foundation arises from pure political processes and through political decisions, and its protection depends on specific conditions. Thus, the foundation is the very substance of the constitution, rather than the constitution itself, and cannot be safeguarded through purely legal measures. Given its inherently political nature, only an institution capable of political decision-making—and one removed from the partisan and economic conflicts of parliament and political parties—can serve as its guardian. From this perspective, Schmitt viewed the president of the Weimar Republic as a political figure who, despite being impartial in partisan and parliamentary disputes, was entrusted with safeguarding the most fundamental basis of German society and the unique identity of the German nation. Directly elected by the people, the president possessed the authority to make controversial political decisions—powers that parliament did not hold. Moreover, the protection of this foundation was so crucial that the president was expected to be willing to sacrifice everything for its continuity, including fundamental individual rights and constitutional principles of sovereignty. In his role as the guardian of the constitution, the president is therefore positioned above the constitution, exercising authority over it to protect the political existence of the nation. In Iran’s Constitution, particularly within the text of the constitution, there is an explicit reference to the protection of the constitution. One constitutional article assigns this role to the president, while another designates the Guardian Council as responsible. However, a careful examination of Schmitt’s concepts of the constitution and the guardian of the constitution reveals a significant distinction. In the Iranian constitutional system, the Guardian Council primarily serves as the guardian of the constitution. Its decades-long practice confirms that it has consistently pursued this role. In other words, the Iranian system conflates the foundation with the constitution itself, focusing on protecting the explicit, codified text from violations by other rules. While the Guardian Council was established to fulfill this function, its role is fundamentally different from Schmitt’s concept of the guardian of the constitution.

Conclusion

Schmitt was a staunch critic of the liberal approach to safeguarding the constitution, which he saw as lacking substantive political content and overly dependent on abstract legal principles. Instead, he advocated for a more decisive and politically charged role for the head of state, arguing that only such a figure could effectively defend the constitution during times of crisis. Schmitt’s critique was rooted in his fundamental opposition to liberal principles. He challenged the liberal notion of a neutral and objective state, contending that such a state is incapable of making the decisive political judgments necessary to protect the constitution. He also criticized liberal democracy, arguing that it produces a fragmented and indecisive political sphere, incapable of maintaining the unity and coherence of the state. Central to Schmitt’s analysis is his concept of the political, which he distinguishes from the realms of law and economics. According to Schmitt, the political is characterized by the fundamental distinction between friend and enemy—a distinction that becomes blurred and ultimately meaningless under the liberal framework. He maintained that the constitution, as the embodiment of the state’s identity, cannot be protected solely through legal mechanisms; it requires a strong and decisive political will capable of acting decisively in the face of uncertainty and conflict. Although highly controversial and widely debated, Schmitt’s ideas raise important questions about the nature of political power, the role of the state, and the mechanisms necessary for protecting the constitution in modern democratic societies.

کلیدواژه‌ها [English]

• Carl Schmitt
• Liberalism
• Democracy
• Parliamentarism
• Constitution
• Political Power
• State
• Safeguarding the Constitution