Disruption of the Constitutional Order: Hans Kelsen or Carl Schmitt?
Abstract
Pakistan Supreme Court’s decision in Dosso (1958) on the question of disruption of the constitutional order invokes Hans Kelsen’s positive theory. Over next five decades the theoretical underpinnings of the decision are summoned in several post-colonial state courts. In this essay I develop a critique of (the application of) Kelsen’s theory. The major thrust of this critique, as well as an added theoretical contribution, is in fact employment of Carl Schmitt's critique of Kelsen. In this way I bring back the 1920s debate between Kelsen and Schmitt to throw critical light on the shortcomings of the recent courts decisions. Moreover, I read the possibility of employing Schmitt's constitutional theory to explaining the theoretical problems faced in wake of disruption of the constitutional order. Although many scholars have rendered critique of Kelsen’s theory, no one (as to my knowledge) has employed Schmitt to that end so far. The significance of this critique is two-fold: first to analyze the liberal constitutional doctrine, especially as it tries to answer the conservative (or non-liberal) challenge posed by the question of the disruption of constitutional order, and second to explore the democratic element in the so-called non-liberal theory of Schmitt. My conclusion is that although Kelsen gives politically correct principle of the efficacy of change to explain the legality of disruption, however, the main steps in his theory do not support this principle. Secondly with this very principle he diverges from his liberal constitutionalism. On the other hand, Schmitt's explanation of the principle based although in his non-liberal theory, however, answers well the question of disruption. Thus the courts that employ Kelsen remain hard-pressed to defend their decisions, while those that question Kelsen's theory come closer to Schmitt' critique.