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◎ Carl Schmitt, 1888~1985 ,German jurist, political theorist, and professor of law.

(pp.13~15)
What was going on in the world of German academic law when Schmitt was a stutdent? Since the 1870s, 'legal positivism' had come to dominate the discipline. 'Positive' in this context meant the opposition of what, by the nineteenth century, had increasingly come to be seen as the chimerical norms of 'natural ' law. Modern legal positivism, as formulated by Laband and Gerber in the 1870s, had sought to eliminate all traces of natural-law language - indeed, political and moral comentary of any kind - from the study of law. The posivitist project was to make the formal anlysis of the meaning of legal terms in statutes the exclusive focus of jurisprudence, and treat the entire body of law as if it formed a seamless system of norms.

While the older legacy of Savigny's Historical School of Law had made it possible for Laband to justify this assumption in terms of the 'organic unity' of German legal culture, the Volksgeist might have seemed too nebulous a thing for those who wanted a more incontrovertibly scientific foundation. The formalism of Maburg neo-Kantianism provided an alternative justfication for conceiving of the legal system as a unified system: unity, it was argued, was simply the transcendental condition of legal judgement. But the fortune of legal positivism did not ultimately depend upon philosophical fashion; positivism became the intellectual common sense of this academically trained legal establishment because it seemed to meet the demand for more uniformity and predictabilty in the legal process. The turn-of-the-century codification of a German civil law code was its crowning intellectual achievement, and provided a seemingly convincing demonstration that the totality of private legal relations could be conceptualized within a self-contained system. The unity of private law was now no longer just an assumption; it had been secured by legislative enactment.