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To address this controversy we to locate the historical context in which it unfolded. In the early twentieth century triggered a series of momentous events which impacted the economic, political, social and cultural rights of the majority of European countries in the world. After the first imperialist war a watershed case that began in 1919. While in Germany was installed in the Weimar Republic, in the city of Saint-Germain made concrete division of the former Austro-Hungarian empire. The immediate effect of this process was the restructuring of the regulatory system of the new states. Thus, in Austria was promulgated in 1920 a Constitution was advanced for its time. The Austrian constitution was liberal ideological stamp of the jurist Hans Kelsen. Austrian Charting the future was encouraged to devote the exercise of their laws to the supremacy of the brand new constitutional right. Quite the contrary, the Weimar Republic was born mortally wounded. The diktat of Versailles became his executioner direct. A hectic social climate by streamlining the chauvinistic speeches crescendo of an intelligentsia linked to the views of revenge brutal military and strengthening the state apparatus. In these meadows ideological thought was the German political scientist and jurist Carl Schmitt, the opposite of the ideology of his fellow Austrian. Now the controversy is specifically developed between 1928 and 1931. It all begins in 1928 when Han Kelsen published his book The legal guarantee of the constitution, through which builds the foundation for future constitutional right position thanks to the category of constitutional control. What we know today in our country as the Constitutional Court has Kelsen's thesis and the enactment of the historic Austrian Constitution of 1920 as two of its main legal demiurge. Kelsen's work permit prosecution policy. This implies that the scaffolding of politics is limited to the areas of relationships and balances of power and the dynamics of the political and social organizations. This makes possible not only the independence and autonomy of powers, but also the legitimacy of the rule of law. As the constitution the most important rule of a state needs an autonomous power to ensure the validity of its provisions, they are the product of social consensus among citizens. It is the community who, through his constitutional power generates not only the constitution, but the powers that be as the Constitutional Court can protect the legality of laws and regulations issued by different authorities and institutions. Quite the contrary, the theses of Carl Schmitt are confined to political speech. From an ideological perspective Schmitt essentially builds the foundation of the national state around the legal and political will of the Führer. The modern establishment should abide by the decisions of the supreme leader and national leader. The arrests of Nazism materialized Schmitt particular proposal to take them to a tipping point where human dignity was reduced to nothing. In sum, while Carl Schmitt submits the legal discourse of politics, Hans Kelsen addresses the constitutional issue from a purely legal standpoint, publicicístico, stating that the jurisdictio in the areas of constitutional protection corresponds to an autonomous power that marks the political distance. No doubt, the dire consequences of the second imperialist war precipitated the collapse of the thesis of Schmitt, and strengthening the legal and constitutional agenda of Hans Kelsen.
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