Abstract
Abstract The nature of law is always one of the most important topics in jurisprudence. The way how a jurist understands the law is related to how she treats the interaction between the lawful life and other cultural aspects of human being. In view of this, this thesis then chose the German philosopher of law and politics Carl Schmitt (1888-1985), who has been controversial for his political stance, and tries to survey his basic juristic stance. Up to now, Schmitt’s juristic stance is still an arguable topic. In his 1934 work On the Three Types of Juristic Thought, Schmitt differentiate three basic juristic stances: normativism, decisionism, and the thinking of concrete order. Due to the points which Schmitt emphasizes in his works, most of the interpreters of Schmitt treated him as someone who began with normativism then changed to decisionism, and finally stopped at the thinking of concrete order. In addition to this, some other scholars insisted that Schmitt was a persistent decisionist. But besides these two stances, almost nobody argues that Schmitt was always a thinker of concrete order. Nevertheless, the thesis will argue for the last position. Because this thesis intents to prove that Schmitt was a thorough thinker of concrete order, the argumentation will be mainly divided into two parts. First, I’ll survey the main works in Schmitt’s whole life, try to find out the presuppositions which Schmitt used in handling problems, and point out the elements of thinking of concrete order concealed in those works. Second, I’ll treat Schmitt’s works after 1934 as a whole in order to organize a positive formulation of the thinking of concrete order and show the deductive relation between norm, decision, and concrete order. Therefore, on the one hand, the result of second stage could be the evidence of the first stage, and on the other hand, it could at last give a rather clear theoretical image of the thinking of concrete order as something “-ism”. Keywords: Schmitt、Jursitc Thinking、Normativism、Decisionism、Concrete Order、Nomos、Nature of Law