Theological Foundations of Constitutional Thought: Carl Schmitt’s Analogy between the Exception and the Miracle

Year 2025, Volume: 83 Issue: 4, 1642 - 1660, 16.01.2026

İsmail Mutlu

https://doi.org/10.26650/mecmua.2025.83.4.0016

https://izlik.org/JA92CK74ES

Abstract

This article centres around the question: What are the theological foundations of Carl Schmitt’s notion of the exception in constitutional thought? Addressing this question involves two key premises. The first is that theological foundations play a crucial role in the formation of constitutional thought. The second is that these foundations enhance our understanding of modern constitutional concepts. To establish the first premise, I examine how medieval canon lawyers engaged with Roman law to construct the Church as a corporate entity, a process which contributed significantly to the evolution of constitutional thought. This historical analysis highlights the influence of theological debates on constitutionalism, showing how medieval canon law laid the groundwork for early constitutional ideas. The second premise is addressed through an exploration of Carl Schmitt’s political theology, particularly his notion of the “exception,” which he conceptualizes as analogous to the theological miracle. This framework offers a means to grasp the theological underpinnings in Schmitt’s constitutional theories. The article also considers Giorgio Agamben’s extension of Schmitt’s concept, suggesting that the “exception” has become normalized in contemporary political contexts, as states increasingly govern through states of emergency, blurring the line between legality and extra-legality. This discussion is anchored in the analogy between the miracle in theology and the exception in constitutional theory. The article ultimately concludes by questioning the extent to which so-called secular governments remain influenced by theological frameworks, suggesting that the supposed secular nature of modern governance is, in fact, open to theological inquiry. It argues that theological frameworks remain embedded within the fabric of constitutional thought, challenging the narrative of a fully secular state.

Keywords

Exception , Miracle , Carl Schmitt , Giorgio Agamben , Mediaeval Constitutionalism , Analogy

References

• Agamben G, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen tr, Stanford University Press 1998). google scholar
• ——— Means Without End: Notes on Politics (Vincenzo Binetti and Cesare Casarino trs, University of Minnesota Press 2000). google scholar
• ——— State of Exception (Kevin Attell tr, University of Chicago Press 2005).google scholar
• ——— The Kingdom of Glory (Lorenzo Chieasa and Matteo Mandarini trs, Stanford University Press 2011). google scholar
• Barshack L, ‘Constituent Power as Body: Outline Of A Constitutional Theology’ (2006) 56 University of Toronto Law Journal 185–222. google scholar
• ——— ‘Transcendence and Interpretation: Introductory Notes on Theology of the Rule of Law’ in Marino Diamantides and Adam Gearey (eds), Islam, Law and Identity (Routledge 2012) 23–48. google scholar
• Basinger D, ‘What is the Miracle’ in Graham H Twelftree (ed), The Cambridge Companion to Miracles (Cambridge University Press 2011) 19–35. google scholar
• Berman HJ, Law and Revolution (Harvard University Press 1983). google scholar
• ——— ‘Religious Foundations of Law in the West: An Historical Perspective’ (1983) 1 Journal of Law and Religion 3–43. google scholar
• Brown W, Walled States, Waning Sovereignty (Zone Books 2010). google scholar
• Critchley S, The Faith of The Faithless (Verso 2012). google scholar
• D’Almeida LD and Michelon C, ‘The Structure of Arguments by Analogy’ (2016) 31 Argumentation 359–393. google scholar
• Diamantides M, ‘Constitutional Theory and Its Limits: Reflections on Comparative Political Theologies’ (2015) 11 Law, Culture and the Humanities 109–146. google scholar
• ——— ‘On and Out of Revolution: Between Public Law and Religion’ (2014) 10 Law, Culture and the Humanities 336–366. google scholar
• Dyzenhaus D, Law as Politics; Carl Schmitt’s Critique of Liberalism (Duke University Press 1998). google scholar
• ——— The Constitution of Law; Legality In A Time Of Emergency (Cambridge University Press 2006). google scholar
• Clement, ‘The Political Theology of Prerogative: The Jurisprudential Miracle in Liberal Constitutional Thought’ (2008) 6 Perspectives on Politics 487–501. google scholar
• Gould RR, ‘Laws, Exceptions, Norms: Kierkegaard, Schmitt, & Benjamin on “The Exception”’ (SSRN 2017) http://ssrn.com/abstract=2211016 Date of Access 30 August 2017. google scholar
• Gündoğdu A, ‘Potentialities of Human Rights: Agamben and the Narrative of Fated Necessity’ (2011) 11 Contemporary Political Theory 2–22. google scholar
• Humpheyrs S, ‘Legalising Lawlessness: On Giorgio Agamben’s State of Exception’ (2006) 17 European Journal of International Law 677–687.google scholar
• Larmer RA, ‘The Meaning of Miracle’ in Graham H Twelftree (ed), The Cambridge Companion to Miracles (Cambridge University Press 2011) 36–55. google scholar
• Loughlin M, Foundations of Public Law (Oxford University Press 2010).google scholar
• ——— ‘The Constitutional Imagination’ (2015) 78 The Modern Law Review 1–25. google scholar
• McCormick JP, ‘The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers’ in David Dyzenhaus (ed), Law As Politics; Carl Schmitt’s Critique Of Liberalism (Duke University Press 1998) 217–252. google scholar
• McIlwain CH, Constitutionalism Ancient and Modern (2nd edn, Cornell University Press 1947). google scholar
• Norris A, ‘Sovereignty, Exception, and Norm’ (2017) 34 Journal of Law and Society 31–45. google scholar
• Rosenstock-Huessy E, Out Of Revolution; Autobiography Of Western Man (Berg Publishers 1969). google scholar
• Schmitt C, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 1985). google scholar
• ——— The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol (George D Schwab and Erna Hilfstein trs, University of Chicago Press 1996). google scholar
• ——— Roman Catholicism and Political Form (GL Ulmen tr, Greenwood Press 1996). google scholar
• ——— The Concept of the Political (George Schwab tr, University of Chicago Press 2007). google scholar
• ——— Constitutional Theory (Jeffrey Seitzer tr, Duke University Press 2008). google scholar
• Tierney B, ‘Mediaeval Canon Law and Western Constitutionalism’ (1966) 52 The Catholic Historical Review 1–17. google scholar
• ——— Religion, Law, and the Growth of Constitutional Thought 1150–1650 (Cambridge University Press 1982). google scholar
• ——— ‘“The Prince Is Not Bound By The Laws.” Accursius and the Origins of the Modern State’ (1963) 5 Comparative Studies in Society and History 378–400. google scholar
• Yelle R, ‘The Trouble with Transcendence: Carl Schmitt's “Exception” as a Challenge for Religious Studies’ (2010) 22 Method and Theory in the Study of Religion 189–206. google scholar