The Messianic Idea in the Schmittean Sovereign and the Basic Norm of Kelsen

The theological origin of legal and political concepts has been an accepted belief by figures such as Locke, Hume, Machiavelli and Hobbes. The list of legal authors will also include Robert Cover's narrative on legal violence, Fitzpatrick, Sanford Levinson and Weiler. The constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. In the US example, the flag, the Declaration and the Constitution constitutes the holy trinity of what Tocqueville called “American civil religion”. The drafters of the US Constitution consciously played the role of a civil God; the US Supreme Court developed the role of secular prophets; the Constitution was the sacred tablets; and the people of the United States became the chosen people. As the law was received by Moses on the tablets, so too did the constitution adopt a legal, moral and religious character. This paper focuses on the study of messianic elements of Carl Schmitt's conceptualization of the "Sovereign" and Hans Kelsen's definition and legitimacy of the "Basic Norm". The main goal are first to identify these theological characters of both theories and to analyse the transposition of mystical elements to the secular world to achieve non-disputed legitimacy in two essential elements of both theories.
The first segment is related to definition and elements of "messianism" aiming to provide a clear concept of the messianic phenomenon. Once concluding that messianism is no esoteric or simply mysticism, but a theory than can be transposed to politics and law, the paper goes further with the work of Carl Schmitt and Hans Kelsen. How the political (Schmitt) and legal-constitutional (Kelsen) thought have adapted messianic trends in order to achieve legitimacy, recognition or obedience. The role that the "Sovereign" plays in Carl Schmitt's apocalyptic political theology is analysed and compared with the position and features that the Messiah develops in Jewish and Christian mysticisms. The second example, which is at the same time more provocative but also innovative, consists in a comparison of the messianic thought with Hans Kelsen's "Basic Norm". More concretely, the redemptory role that the first constitution plays in Kelsen's "Pure Theory of Law" and the "faith" needed to accept the no matter how, the constituent process of the basic norm. This segment identifies these "religious" messianic elements in politics, explains them, and how they can be (and have been) used to achieve legitimacy, recognition and/or obedience. The last segment will analyse other exploited by politicians to gather people together under their leadership.
The field of the paper is theoretical, the realm of the theory more than in the realm of praxis, the paper does not look for practical intentions even that some of the conclusions may have practical effects in the understanding of our constitutional systems. In this sense, the conceptualization and claims of terms such as "rule of law", "proportionality", "European Integration" or "human dignity" can also be defined as messianic.