Once Again on the “Links” between Carl Schmitt and Günther Jakobs
Abstract
The Günther Jakobs’s theory of criminal law of the enemy has been criticized from different points of views. Many scholars have rejected it and have seen a dangerous position. However they recognize his good intentions. Some critics say that his position is influenced by Carl Schmitt’s thought, above all, the political distinction between friends and enemies. Although Jakobs denies this relation, scholars like Guillermo Portilla Contreras, Eugenio Zaffaroni, Francisco Muñoz Conde, Kai Ambos, Eduardo Demetrio Crespo or Bernd Müssig point out the link between the enemy of Jakobs and the concept of Carl Schmitt. In this paper we prove that this relations is wrong, but not only for the reasons that Jakobs gives. Beyond the value of the theory of criminal law of the enemy, a reconsideration of both German authors shows that neither exist a coincidence between Schmitt and Jakobs, nor Jakobs follows or use Schmittian theory.
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