According to Schmitt, the institution of parliament and the theory of representation are not the only facets of liberalism to have become ill affected by the technical. Modern jurisprudence – liberalism's theory of law, especially as expressed in legal positivism – has also degenerated into what he calls mere technicism. If substantive representation is the foil with which Schmitt negatively contrasts parliamentary representation, in Political Form and Parlamentarismus, then, as suggested in my earlier analysis of emergency powers, Schmitt's appropriation and reconstruction of the early-modern concept of sovereignty is the standard by which he criticizes liberal jurisprudence most forcefully in Political Theology and his subsequent Weimar constitutional writings.

In the first sections of this chapter, I discuss how Schmitt's critique of positivist jurisprudence arises out of a particular interpretation of Max Weber's sociology of law and comes to focus on the legal theory of Hans Kelsen. According to Schmitt, liberal legal theory avoids the reality of jurisprudence by denying the existence of “gaps” within the law and consequently demotes judges to the status of mere vending machines that mechanically dispense the law, without intellectual reflection or active contribution. It also leaves the legal theorist inadequately equipped to analyze law at the level of application. On the constitutional level, this theoretical shortcoming on the part of liberal jurisprudence manifests itself in the avoidance of the phenomenon of “the exception” – as explained in Chapter 3, the political circumstance that cannot be foreseen in extant constitutional provisions.