Schmitt's major theoretical statement under National Socialism in the years following Der Leviathan of 1938 is “The Plight of European Jurisprudence,” originally delivered as a lecture throughout the Reich in 1943–44. Although there is a question as to how much of the subtly brazen criticisms of National Socialism were added to the text only after the war, it is indeed possible that Schmitt intended the essay to serve as a kind of apology, if only in the classical sense of the term. In the wake of the arrest and hanging of Schmitt's surviving political mentor, Johannes Popitz, for his role in the plot to assassinate Hitler in July of 1944, Schmitt may have felt sufficiently threatened to leave behind a “testament.” Or with the end of the war not an unforeseeable possibility at this point and the outcome not boding particularly well for Germany, Schmitt may have felt the need to put on his best face for the civilized world.

The object of Schmitt's criticism in the essay is again the legal positivism that he still views as a jurisprudence infected by technology: The “widespread opinion that only a positivist jurisprudence is feasible is a product of the late nineteenth century. In this narrowing [of jurisprudence] into mere technique, the progress of law is confused with the increasing promptness of the legislative machine” (PJ, 56). However, the jurisprudence that Schmitt seeks to protect from this positivist “motorization” of law (PJ, 53) is defended in a manner quite different from that which we observed Schmitt employ in his Weimar works.