Locating extra-legal activities of the modern state in legal-political theory: Weber, Habermas, Kelsen, Schmitt and Turk

摘要

This article is concerned with deviations from legal functioning of the modern state, which is supposedly grounded on legal structure, but may conduct extra-legal activities. In this article, special focus is directed to certain extra-legal activities of the following modern states: the Susurluk Affair in Turkey, the Iran-Contra Affairs of the USA, GAL in Spain, the Gibraltar Killings committed by UK soldiers, and enforced disappearances in Argentina. These cases are interpreted from the points of view of Max Weber’s and Jürgen Habermas’s theories of the rule of law, Hans Kelsen’s legal positivism, Carl Schmitt’s theories of the political and sovereignty, and Austin Turk’s theory of political criminality. Our purpose, then, is to evaluate these theories vis-à-vis the cases of extra-legal activities of the state.