Radbruch’s Rechtsstaat and Schmitt’s Legal Order: Legalism, Legality, and the Institution of Law

This article forages the fruits of Radbruch’s Legal Philosophy of 1932, taking into account his writings after the horrors of National Socialism in Germany. This contribution builds on the findings of my chapter concerning Radbruch’s inquiry into the origins of the criminal law, in Foundational Texts in Modern Criminal Law. In that chapter I present the rise of the sovereign state as a precondition for a Rule of Law that institutes a balancing act between the different powers of the state. In the current article I briefly present the rise of the Rule of Law in the course of the nineteenth and twentieth centuries, exemplified by the rise of the German Rechtsstaat, the French État de Droit and the Anglo-American Rule of Law. This provides the background for a discussion of the contribution that Radbruch’s antinomian concept of law can make to a better understanding of the difference between legalism and legality. I argue that a mistaken view on legality informs the prevalent confusion around the notion of the Rule of Law. The investigation is complemented with the introduction of a procedural conception of both law and the Rule of Law, taking the discussion beyond formal and substantial conceptions of both. Finally, I integrate an analysis of Schmitt’s keen attention to the institution of law, observing that legalism and legality align with different institutionalizations, different legal orders and different modes of existence of law and the Rule of Law.