An Examination of the ‘Guardian of the Constitution’ Debate between Schmitt and Kelsen and its Development : Focusing on the Legal-Theoretical Discussion on the Nature of Judicial Decision

The debate on the “Guardian of the Constitution” (Hüter der Verfassung) is the famous controversy between Carl Schmitt and Hans Kelsen over who should possess the authority to control unconstitutional acts of state power and what institutional design would best serve this purpose. Kelsen and many other jurists envisioned the judiciary or a constitutional court as the appropriate institution for such control, whereas others took a skeptical stance toward this arrangement. Schmitt was the most representative among the skeptics. Looking back on the constitutional history of the twentieth century, the model of constitutional review by constitutional or judicial bodies has been widely adopted. Under Kelsen's initiative, Austria established a constitutional court as early as the beginning of the century, and postwar Germany as well as Korea have since adopted similar systems. Nevertheless, there are still many countries that do not recognize the power of constitutional review by judicial bodies. Thus, regardless of whether a particular country currently maintains a constitutional court, the question of who should serve as the guardian of the constitution remains a pressing constitutional-political issue, given the variety of possible institutional arrangements. Another reason this debate continues to attract attention lies in the fact that, although it takes the form of a constitutional policy debate on institutional design, it in fact embodies a fundamental theoretical conflict concerning the nature of judicature and constitutional adjudication. The core arguments underlying Schmitt's and Kelsen's differing perspectives on the institution of constitutional guardianship are rooted precisely in their respective conceptions of these two issues. Therefore, even in countries where judicial constitutional review has long been adopted, their arguments retain enduring theoretical significance. One's understanding of the nature of judicature and constitutional adjudication inevitably shapes one's view on how—and to what extent—such powers should be exercised. In the contemporary context, the increasing phenomenon of the “judicialization of the state” has made this question all the more controversial. Furthermore, in Korea, intense debates often erupt over the political nature of landmark decisions by the Constitutional Court or the Supreme Court—underscoring the need for a deeper reflection on the theoretical foundations of this issue. Against this background, this paper aims to examine the Schmitt-Kelsen debate on the guardian of the constitution with a focus on their jurisprudential conceptions of judicature and constitutional adjudication, and to draw out its implications. To this end, the paper first conducts a close comparative analysis of the two core texts of the debate—Schmitt's Der Hüter der Verfassung and Kelsen's Wer soll der Hüter der Verfassung sein? It then explores whether the positions revealed in this debate were consistent with each thinker's broader legal philosophy by examining their major works written before the debate, and further traces how their respective views evolved thereafter. This inquiry also considers whether the dramatic political changes of the time or institutional developments—such as the establishment of constitutional courts—affected the formation of their theories. In discussing the historical evolution of their ideas, it is also necessary to examine the writings of their students and followers. After World War II, the establishment of the Federal Constitutional Court in Germany shifted academic discussion toward questions about the extent and manner of constitutional adjudication and its possible constraints. In this regard, this paper will not limit itself to the debates within the Schmittian and Kelsenian schools but will also take into account relevant discussions outside these traditions.