Emancipation from the Legal Order: Carl Schmitt and Hans Kelsen on the Use and Misuse of the Miracle Analogy

Abstract

In this paper, I discuss the strategic place of miracle in Carl Schmitt’s political theology. God’s transcendence of the natural order and the possibility of escaping the laws of nature via miracles are analogous, on the one hand, to the sovereign—the one who decides on the exception—and, on the other, to the sovereign’s emancipation from the legal order. The paper shows that transcendence, which Schmitt upheld against a Kelsenian conception of power as immanent, was translated institutionally into the neutral power vested in the Reich president during the Weimar period. The sovereign receives the powers of exception because of its superior and sacred mission: the preservation of public order. In Schmitt’s controversial interpretation, only the Reich president can embody transcendence in the democratic order. I also present Hans Kelsen’s objections to Schmitt’s attempt to establish the independence and, by analogy, the transcendence of the Reich president. In Kelsen’s view, the prevailing interdependence between the various organs as provided for in the Constitution of the Weimar Republic does not allow for the establishment of an independent, neutral power in Schmitt’s sense of the term. The Kelsenian critique is therefore relevant because it questions Schmitt’s endeavors to introduce an element of transcendence into a democratic order— a crucial issue in his political theology and a recurrent element in the disputatio between Schmitt and Kelsen, especially during the interwar period.