A Western Cultural Illusion: State and Law or State as Law?

• Published in: Cultura (Iași, Romania) Romania), 2012-01, Vol.9 (1), p.43-55
• Main Author: De Moura Costa Matos, Andityas Soares
• Format: Article
• Language: English
• Subjects: Criticism; Cultural studies; Law and order; Law And State; Legitimacy; Political theory; Public Law; State structure; State theory; Symbol; Theology
• ISSN: 1584-1057; 2065-5002
• DOI: 10.5840/cultura20129120

Considering the basic assumption that the modern Law and State theory does not only bear similarities, but also draws true epistemological parallels to the constructions of Theology, Hans Kelsen intends to lay bare the ideological meaning that lies at the very core of the traditional dualism which constitutes Law and State into autonomous entities. Taking into account Kelsen´s original perceptions - which are seconded by more recent contributions from Claude Lefort and Hans Lindahl's political and symbolic concepts and from Carl Schmitt's notions on political theology - our intention is now to demonstrate the highly conservative role played by the duality of the Law/State structure, whose aim is to remove, from under the sway of legal control, a considerable part of the State's actions. Herebelow, therefore, we will analyse the very legitimacy of the so-called "Public Law," which seems to point to a trend towards shunning the legal power regulation. Finally, based on the functional method pioneered by Ernst Cassirer, legal institutions such as "collective will" and "public interest" will be problematised, in order to ascertain whether they contain theological, conservative and authoritarian traits incompatible with the conceptual and substantial unity intrinsic to the Rule of Law.