Hans Kelsen and Hermann Cohen: From theology to law and back

Carl Schmitt famously claimed ‘Kelsen solved the problem of sovereignty by negating it’. For Schmitt, Kelsen’s pure theory of law falsely elides the problem of sovereignty in the same manner as modern political concepts attempt to suppress their theological origins. Kelsen’s view of sovereignty, according to Schmitt, embodies the weakness of modern liberalism – the refusal to acknowledge the friend–enemy distinction that lies at the heart of any living political community. Hence, for Schmitt, the negation of sovereignty is the negation of politics: in the orientation toward the possible extreme case of an actual battle against a real enemy, the political entity is essential, and it is the decisive entity for the friend-or-enemy grouping; and in this (and not in any absolutist sense), it is sovereign.