WHO RULES? SCHMITT ON THE FICTION OF NEUTRAL LAW
- Staff Writer
- 1 hour ago
- 11 min read
The modern liberal mind has a curious superstition: that politics can be made safe by being made procedural. It dreams of a world in which conflict is dissolved into competence, in which the state becomes an office, law becomes a machine, and sovereignty becomes—at most—a well-behaved signature at the bottom of a rule. In this dream, power no longer decides; it merely “applies.” Authority no longer commands; it merely “administers.” And the great question—who rules?—is converted into a smaller and supposedly more civilized one: which norm governs?
Carl Schmitt’s political theology is written as a profanation of that dream. It does not deny norms; it denies their sufficiency. It does not scoff at legality; it scoffs at the pretense that legality is self-grounding. It insists that behind the bright façade of neutral rules stands a darker, older thing: decision. And decision, Schmitt argues, reveals itself most clearly not in the calm of ordinary life but in the storm.
Schmitt’s opening provocation remains indecent because it is too simple to be politely argued away: “Sovereign is he who decides on the exception.”¹
The sentence is just as diagnostic as it is definitional. It claims that sovereignty is not exhausted by everyday administration; it becomes visible precisely where administration breaks. Liberalism prefers to speak of sovereignty as a set of competences and procedures, a jurisdictional outline. Schmitt speaks of it as a capacity to decide when the outline burns.
One central contention to develop: modern normativism—classically expressed in Kelsen’s “pure theory”—is not the escape from political theology but one of its most subtle permutations. Liberal legality, far from abolishing the “miracle,” merely hides it;² it builds a liturgy of rules in order to conceal the priesthood of decision. When the exception arrives (and it always arrives), the mask slips, and what is revealed is not the reign of neutral law, but the return of a sovereign power that liberal theory had trained itself not to name.
The Exception as Revelation
Schmitt’s claim about the exception is often misunderstood as a lawyer’s fascination with emergencies. It is larger than that, and more philosophical. The exception exposes what the rule presupposes but cannot produce. A norm can tell you what to do under conditions it can already describe, but it cannot guarantee that those conditions obtain. Law requires a “normal situation” in which legal predicates make sense, institutions function, and commands can be executed. But the establishment and preservation of such normality is not itself a matter of mere norm-application.
Here is the fundamental scandal for any legalism that wants to be metaphysically complete: a legal order cannot generate the factual normality it presumes. It can regulate but it cannot conjure the world in which its regulation is meaningful. When that world shakes—civil disorder, existential threat, revolutionary rupture—the legal order does not calmly apply itself. Someone must decide what counts as the emergency, who may act, which guarantees remain operative, and what sacrifices will be demanded.
Schmitt’s point is not that exceptions are frequent. His point is that they are constitutive. The polity may spend most of its days in the realm of the ordinary, but the ordinary depends upon an original, continuing act of political consolidation. Every stable legal order rests on earlier victories—over rivals, over factions, over the dissolution of authority. And the capacity to reassert unity in moments of crisis is not an accidental ornament.
A pictorial anecdote may perhaps be more illuminating than just an argument. Take the image of a cathedral, a monumental structure that dominates the skyline. Liberal legality is the equivalent of the cathedral's architects denying that it has foundations. They will offer you a tour of its arches and windows, its refined proportionality, its carefully distributed load. But ask them what holds it up, and they point—absurdly—back to the arches. Schmitt insists you look down. He insists you see the buried stone, the older violence of establishment, the prior act that made the structure possible.
And because this insistence is intolerable to the liberal conscience, liberalism offers a counter-move: it treats the exception as a pathology, a deviation from “real” legality, something that should be minimized, proceduralized, domesticated. But Schmitt’s whole method reverses the perspective. It is precisely the abnormal case that clarifies the meaning of the normal. We do not truly know what law is until we see what law does when it cannot do what it claims to do.
Kelsen’s Purity and the Phantom of Self-Grounding Norms
Hans Kelsen’s project—at least as Schmitt reads it—is the most ambitious attempt to evacuate decision from the concept of law. Kelsen wants a “pure theory”: a theory of law as law, cleansed of metaphysics, politics, sociology, theology, and morality. The juridical order becomes a hierarchy of norms, each deriving validity from a higher norm, culminating in the famous presupposition: the basic norm.
Schmitt’s objection is not that the picture is elegant. It is that the picture is incomplete precisely at the point where completeness matters. In the editorial introduction to Political Theology, Schmitt is summarized as targeting Kelsen’s view of the state as a “system of ascriptions” in which a “last basic norm” anchors the structure.³
One immediately sees why this is attractive to liberal modernity. A basic norm is a substitute for a sovereign person; validity replaces authority, and the state becomes an impersonal order rather than a decisive agent. But Schmitt’s argument is that this does not abolish sovereignty. Rather, it displaces it.
What is a “basic norm,” after all, except a demand for obedience that cannot be derived from the legal order without circularity? Kelsen must presuppose it because it cannot be proven within the system whose validity it grounds. Thus, “purity” becomes a kind of metaphysical hygiene that, in fact, leaves one metaphysical object in place: the ungrounded presupposition that the system ought to be treated as valid.
Schmitt’s deeper criticism is that Kelsen’s norm-hierarchy cannot account for the moments when the system confronts what it cannot legally articulate. A norm can be applied only within an already secured political unity. But who secures it? Who decides what counts as the legal order when rival claimants contend? Who determines that this constitution is the constitution when revolution, occupation, or civil fracture occurs? The basic norm is silent. It is the ghostly neutrality of a system that wants to be sovereign without confessing sovereignty.
Schmitt’s own emphasis, by contrast, is relentlessly personalistic. The reality of legal life depends, ultimately, on who decides. The text presses this not as a mere sociological observation but as a formal insight into jurisprudence: “What matters for the reality of legal life is who decides.”⁴ That line is dynamite under normativism. It does not mean that substantive correctness is irrelevant; it means that substantive correctness cannot replace competence, authority, and decision. A system of norms can offer rules, but it cannot compel someone to treat them as binding unless a political power exists that can, in the decisive case, secure the conditions of their bindingness.
Political Theology as the Anatomy of Modern Concepts
Schmitt’s most famous claim is often quoted as a slogan but perilously ignored as a method. Yet it is central to his entire enterprise: modern state concepts, he argues, bear the imprint of theological structures. The reason is twofold: historical translation (concepts migrate from theology into political theory) and systematic analogy (the conceptual architecture remains similar even after the sacred vocabulary is discarded).
Schmitt states this thesis with the bluntness of someone who knows he is about to offend a whole century: “All significant concepts of the modern theory of the state are secularized theological concepts….”
Note the phrase quoted in part: “secularized theological concepts.” If Schmitt is right, then liberalism is not a neutral alternative to theological politics; it is theology’s masked continuation. Liberalism did not kill the sacred or abolish metaphysical structure; it rearranged it, replacing an explicit God and His miracles, providence, and sacraments with an implicit Lawgiver, imbued emergency powers, hellbent on progress, but limited by procedure.
Schmitt sharpens the analogy further by insisting that “the exception in jurisprudence is analogous to the miracle in theology.” The Enlightenment banishes miracles, and the constitutional state, in its rationalist self-understanding, wants to banish exceptions. It wants a closed system governed by regularity, predictability, and immanent law. But Schmitt’s point is that neither nature nor politics truly tolerates this dream. Nature may be conceived as lawful, but theology insists on God’s freedom to intervene. Liberal jurisprudence may be conceived as a closed order of norms, but political reality insists on the power to intervene when the order cannot preserve itself.
And here Schmitt makes a move that should interest any reader whose intellectual sympathies lean toward similar clarity: he explicitly identifies the Catholic philosophers of the counterrevolution as offering the richest political application of these analogies—naming Bonald, de Maistre, and Donoso Cortés as exemplars.⁵
The modern liberal might dismiss this as reactionary romance. But Schmitt’s claim is the opposite: these thinkers are not merely playing with symbols; they are perceiving the structure that liberalism is trained to deny. The liberal speaks of neutral institutions and impersonal legality because he cannot bear the theological implications of politics. The counterrevolutionary speaks of authority, providence, and decision because he sees that the state cannot survive on procedure alone.
The Medieval Template: Kantorowicz and the Transference of Sacred Forms
Schmitt’s method invites a historical deepening: if modern political concepts are secularized theological concepts, then the medieval period, where theology and political order were explicitly intertwined, should provide a laboratory for seeing these forms in their original intensity.
Ernst Kantorowicz’s The King’s Two Bodies supplies precisely such a laboratory. His analysis traces how ecclesial notions of mystical unity and transcendence migrate into political forms. He shows, for example, how the concept of the Church as a corpus mysticum is “transferred…from the theological sphere to that of the state the head of which is the king.”⁶
The medieval king is not merely a man. He is also an office, a continuity, a corporate head. The doctrine of the “two bodies”—the king’s natural body and the political body—reveals the political need for continuity beyond mortality. A polity cannot allow the death of the ruler to become the death of order. The king must be, in Kantorowicz’s striking summary from the legal tradition, a “Name of Continuance,” such that “the King never dies.”⁷
Kantorowicz also notes the process by which the “lofty idea” of the corpus mysticum becomes politicized and secularized, then “fell prey” to the conceptual world of jurists and statesmen constructing new ideologies for territorial states.⁸ The key term here is not merely “secularized” but the reality it names: transference. The political order borrows sacred vocabulary because it needs the metaphysical weight the sacred once supplied.
Schmitt’s insistence that modern sovereignty is structurally analogous to theological omnipotence becomes less shocking when one sees how earlier political orders openly clothed themselves in sacred concepts to stabilize authority.
The Concept of the Political: Friend and Enemy, Unity and Decision
Schmitt’s political theology is inseparable from his concept of the political. The exception is not merely a juridical curiosity; it is the point at which political unity confronts its existential boundary. In The Concept of the Political, Schmitt presses the question liberal pluralism wants to evade: who decides in the extreme case? The text asks which entity determines the “decisive friend-and-enemy grouping.”
This is the heart of Schmitt’s provocation: the political is not reducible to moral debate, economic bargaining, or æsthetic preference. It concerns the possibility of collective existence and the willingness to defend it. Liberalism, especially in its more sentimental forms, wants to treat the state as a neutral umpire among interest groups. Schmitt replies that an umpire presupposes a game, and a game presupposes boundaries, and boundaries presuppose an authority.
Here one must be careful. To state Schmitt’s analysis is not to applaud every political passion, still less to glamorize conflict. It is to notice that politics, unlike the liberal fantasy, does not disappear when we refuse to speak its name. The refusal merely produces self-deception. The liberal continues to make enemy distinctions—he simply moralizes them, disguises them, and then congratulates himself on his neutrality.
Schmitt’s insistence is that the political entity, if it exists, is in the decisive case, the authoritative entity. This is sovereignty again, but now seen through the lens of political unity rather than legal competence. The sovereign is the guardian of norms, yes, but he is also the guardian of the conditions in which a common life can continue.
If Schmitt is right, liberalism should eventually be forced into an admission: in the extreme case, the rule of law cannot fully rule. Modern liberal jurisprudence has indeed produced a vocabulary for this admission, though it often presents it as an unfortunate anomaly rather than a constitutive truth.
David Dyzenhaus describes the phenomenon of “legal black holes”—zones created by law in which officials act unconstrained by ordinary legality.⁹ The phrase is vivid because it captures the metaphysical embarrassment: a “black hole” is not merely an exception; it is a region where the normal laws of the system no longer apply. Liberal legality, in creating such zones, demonstrates that it is willing—under pressure—to suspend the very principles it celebrates as fundamental.
Dyzenhaus also cites Dicey’s scandalous phrase for the legislative sanitizing of executive violations: an indemnity that “legalises illegality.”¹⁰ The formula is almost Schmittian in spite of itself. It acknowledges that legality can be manufactured after the fact, that law can be used to baptize what was lawless, and that the system’s self-image as a continuous reign of legality is—at best—aspirational.
Dyzenhaus seeks, of course, to resist Schmitt’s conclusion. He wants to keep faith with a rule of law, to demand that judges and constitutional culture push back against statutory or executive attempts to create these holes. That is honorable, perhaps as a normative project. But it concedes Schmitt’s descriptive premise that the extreme case presses law to the point where law either breaks or must be supplemented by political decision.
In another passage, Dyzenhaus observes that when liberal legality fails, its failure reveals a legislative “decision to govern arbitrarily rather than through the rule of law.”¹¹ The word “decision” is, well, decisive. Liberalism cannot avoid it; it can only relocate it. It dreams of a world governed by norms, but it wakes—again and again—to the reality that someone must decide whether norms govern at all.
Schmitt’s suspicion is that liberalism’s greatest danger is not hypocrisy in the moral sense, but self-blindness in the political sense. The liberal imagines that the exception is an aberration, and thus fails to build a responsible theory of who should decide and under what conditions. The result is not the abolition of the exception, but its return in a more irresponsible form, now concealed, improvised, and justified after the fact in the language of administrative necessity.
The Counterrevolutionary Lesson: Authority, Not Neutrality
Schmitt’s sympathy for counterrevolutionary Catholic thinkers should not be treated as mere biographical flavor. It discloses the kind of clarity Schmitt believes modernity has lost. The counterrevolutionary writers Schmitt names do not fear the theological structure of politics. They fear its denial. They understand that every political order rests on judgments about ultimate things like human nature, authority, sin, conflict, the necessity of coercion, and the limits of rational consensus.
To speak like de Maistre is to refuse the liberal euphemisms. It is to say: the state is a real power because the world is real, and men are not angels, and communities do not maintain themselves by procedure alone.
This is why Schmitt’s seemingly technical thesis about the exception becomes, in his hands, a philosophical weapon. It unmasks the liberal fantasy that law can replace politics. Law can channel politics, but it cannot abolish it. Law can adorn power but not eliminate the need for power. And when liberalism forgets this, it becomes more fragile—and fragility, in politics, is an invitation to emergency.
Modernity wanted a closed system of norms, a stable geometry of rights, a neutral state that does not decide but merely administers. Schmitt’s political theology replies that such a state is either impossible or dishonest. The exception arrives, the decision must be made, and the sovereign reveals himself.
Schmitt’s definition of sovereignty forces political theory to stop pretending that the decisive act is not decisive. It forces jurisprudence to acknowledge that validity is never merely logical but always politically sustained. And it forces liberalism to admit that its supposed neutrality is built on unspoken decisions about the friend and the enemy, about the normal and the abnormal, about what must be preserved when preservation becomes most costly.
One may reject Schmitt’s conclusions, preferring instead the moral comforts of liberal constitutionalism, but one cannot do so without confronting the structure he exposes. Modern legality is a secular liturgy built around a hidden priesthood of decision. The exception is its miracle. The sovereign is its god—not because he is divine, but because the system cannot finally explain itself without him. Politics, like theology, ultimately concerns ultimacy: the boundaries of order, the meaning of authority, and the final decision when words run out. That is why political theology will not die.
¹ Schmitt, Political Theology, p. 5
² Ibid. p. 36
³ Ibid. p.xliii
⁴ Ibid. p. 34
⁵ Ibid. p. 37
⁶ Kantorowicz, The King’s Two Bodies, p. 16
⁷ Ibid. p. 23
⁸ Ibid. p. 207
⁹ Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency, p. 77
¹⁰ Ibid. p. 201, quoting Dicey, Law of the Constitution, p. 412–13
¹¹ Ibid.