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

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.