Zaradi vezi z nacističnim režimom in svoje družbene vloge velja Carl Schmitt za kontroverznega pravnega teoretika in nosilca moralne odgovornosti. Hkrati pa je nedvomno eden izmed najpomembnejših evropskih ustavnopravnih teoretikov in pravnih filozofov. Med drugim je tudi avtor ene izmed najznamenitejših teorij o razmerju med legalnostjo in legitimnostjo. To razmerje je utemeljil v sozvočju s svojo politično teorijo o razlikovanju med prijateljem in sovražnikom kot temeljem politične organiziranosti države. Utemeljeval jo je ob koncepciji suverena kot izvorne in konstitutivne odločitve za vzpostavitev države kot homogene politične enote. Temelj in izvor legitimnosti je videl v tej isti suvereni odločitvi, v konstitutivni volji ljudstva. Razlikoval je med plebiscitarno legitimnostjo, ki jo izraža trenutna volja ljudstva ob določenem vprašanju, in demokratično legitimnostjo, ki jo pogojuje vsebina predpostavke o volji ljudstva kot suvereni odločitvi za oblikovanje politične skupnosti. Razlikoval je med legalnostjo in legitimnostjo. Poudarjal je nujnost vsebinske nadgradnje in preseganja gole formalne legalnosti in prednost materialnega dela ustave, s temeljnimi pravicami in načeli, pred organizacijskim delom.
Due to his personal attitude in the time of the establishment of the Nazi regime in Germany and its later governance and also due to his theoretical approach towards national socialism, Carl Schmitt is considered to be a controversial legal theorist and political thinker. Maybe even the most controversial one in the 20th century. And he is considered to be the carrier of a heavy burden of the moral responsibility as far as the Nazi's totalitarianism and its consequences are concerned. At the same time, he is undoubtedly one of the most important European constitutional scholars and legal philosophers of all times. His theoretical legacy is extensive and deserves all of the research attention. Even his most strict critics would probably agree that his political and legal theory was not the reason for the establishment of the Nazi regime or even the events before and during World War II. Just as political and legal theories that were opposite to his were not able to prevent Nazi's totalitarianism and its consequences.Besides many other things, Schmitt is also the author of the one of the most interesting and the most insightful theories about the relationship between legality and legitimacy. He determined this relationship in the balance with his recognisable political theory about the distinction between a friend and an enemy. This distinction, in his terms, is the foundation of the political organization of the State. He determined this theory besides the conception of the Sovereign. It is a necessary theoretical presupposition in Schmitt’s political theory and represents the original and constitutive decision of the people to establish the State as a homogeneous political entity. It is also the foundation and the origin of legitimacy. For Schmitt the homogeneity of such political unity enable it to establish solid and sufficient inner order and to detect and terminate the enemies from inside. It also assures its power in the relations with other states.He determined law as a direct consequence of the above-mentioned sovereign decision for political unity and as the essential element of its existence. Justification of the law is on one side derived from that same sovereign decision and on the other from its function, which is to exercise, maintain and strengthen the established political and legal order. This theoretical conception is called »legitimating decisionism«.Schmitt made a distinction between plebiscitary legitimacy, coming out from the current will of the people regarding a particular political question on the one hand, and democratic legitimacy on the other. The latter is being conditioned with the substance of the essential theoretical presupposition of the will of the people as the sovereign decision for the establishment of the homogeneous political community. According to Schmitt, something is legitimate if it is in the balance with this constitutive political decision and if it serves for the exercising of its aspirations. He had a special attitude towards the institution of the President of the Republic. He saw this institution as the last protector of the Constitution and as the final hideaway of the legitimacy when constitutional order is in dire straits or is exposed to attempts for his overthrow. It is in such periods and in such circumstances that the President takes over a temporary role of the dictator. As such, he can temporarily invalidate the substantial elements of the constitutional order, but only with the intent to assure the preservation and the repeated establishment of the constitutional order on the same substantial grounds. In this manner, Schmitt saw temporarily dictatorship as a function for the protection and preservation of the constitutional order. For him, such a constitutionally institutionalized possibility of the dictatorship is an element of the democratic constitutional order. And only a constitutional order of the constitutional democracy makes such dictatorship even possible as the function of the protection of this same constitutional order.Schmitt had clearly distinguished between legality and legitimacy. He had emphasised the necessity of the substantial upgrade and surpassing of the pure formal legality with some material criteria. These are determined especially in the material part of the Constitution. He argued that the material part of the constitutional order could not be abolished or overridden with the reference to pure formal legality. Constitutional democracy does not offer the tools for its own abolition. Similarly, the legality as such, also determined with some substance, does not offer tools for its formal abolition. Schmitt had given priority to the material part of the Constitution, including the provisions on the fundamental rights and principles, over the organizational part. When we talk today about Schmitt or evaluate his work we should appeal to him as a theorist and a scholar. His interpretation and criticism of the Weimar Constitution should be used for constitutional studies and for research of the conceptualization of the relationship between legality and legitimacy. This conceptualization has arisen from his criticism of the contradictions and helplessness of the democratic liberalism on the one hand and the self-destructing elements of legal positivism on the other. Schmitt's theory should motivate us for critical evaluation of some of the most important issues of our society and its institutional framework. Is legality by the definition value-neutral? Can a plebiscitary will of the people be the last and the only generally recognizable legitimation? Can plebiscitary legitimacy have an equal weight as characteristics and demands of the constitutional state? Can scarification of the means for reaching the intended goals lead to stability of the system? Should our fundamental political goals be found in general humanity and universality of the freedom of each individual and his equal status, instead of in political authority and the power of the State in its relation to other states? Does the constitution only offer methods but not primary and constitutively unchangeable goals?
