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By William E. Scheuerman

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As early as 1912, Schmitt therefore suggested that only a homogeneous judiciary could resolve the crisis of legal indeterminacy. After 1933, Schmitt elaborated this idea into a full-fledged defense of National Socialist law. Interestingly, recent defenders of the underdeterminacy thesis have struggled to demonstrate that a far-reaching reliance on nontraditional legal materials and methods need not generate antipluralistic results. Posner, for example, argues in my view unconvincingly that his preference for a judiciary committed to free-market values is basically uncontroversial since the formal tenets of Law and Economics rest on a broad consensus within contemporary society.

Alk. paper) 1. Schmitt, Carl, 1888- . 2. Laws Philosophy. I. Title. II. Series. 48-1984. Page v For Julia and her dreams Page vii The doctrine has taken its place, if not as a received opinion, as one of the admitted sects or divisions of opinion: those who hold it have generally inherited, not adopted it; and conversion from one of these doctrines to another, being now an exceptional fact, occupies little place in the thoughts of their professors. Instead of being, as at first, constantly on the alert either to defend themselves against the world, or to bring the world over to them, they have subsided into acquiescence, and neither listen, when they can help it, to arguments against their creed, nor trouble dissentients (if there be such) with arguments in its favor.

Thus, power realist views of law ultimately reduce law to nothing but facticity: they can only speak coherently about the social and political "facts" of empirical power, but hardly of "norms" and the problems of legal justification. Schmitt then relies on this otherwise persuasive criticism of power realist conceptions of law in order to justify a conclusion that by no means automatically follows from it. He believes that an assault on a crude reductionist interpretation of law allows him to defend a thesis no less extreme than the view he challenges.

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