According to Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press, 1985, p. 56:
All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver—but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology.
The presidential power of pardon strikes me as an additional example of this secularization process whereby originally theological concepts are brought down to earth and acquire a political and social meaning. (Does Schmitt discuss the pardon power somewhere? He 'must.' Where?)
The U. S Constitution grants a near-plenary power of pardon to the president. Does this extend to convicted mass murderers such as Timothy McVeigh? (McVeigh, of course, was not pardoned, but executed.) It does so extend, if I understand the matter:
The power to pardon is one of the least limited powers granted to the president in the Constitution. [. . .] The only limits mentioned in the Constitution are that pardons are limited to offenses against the United States (i.e., not civil or state cases) and that they cannot affect an impeachment process.
The theological roots of the pardon power seem obvious: what we have in the presidential case is a secular analog of the old theological problem of justice and mercy. This is, however, at best a close analogy, not an identity. The theological problem of how God can be both just and merciful is not identical to the problem of how a head of state, a president, for example, can be both just and merciful when he grants a pardon. That should be obvious. If not, I will explain.
God is absolutely sovereign. In the divine but not the human case, sovereignty implies omnipotence. The absoluteness of divine sovereignty might be taken to imply that God's omnipotence is his ability/power to do anything at all, including what is logically impossible and morally impermissible. If so, divine power would not be limited in any way, and God would be sovereign not only over the natural order, which he obviously is on any account of omnipotence, but also over every order including the logical and moral orders.
Leaving logical order aside, consider the rule of law as it pertains to right and wrong, crime and punishment. The rule of law is not a particular law but a meta-principle pertaining to all laws. The rule of law requires that particular laws be applied equally, and that like cases be judged in a like manner. So if justice demands the death penalty in one case, then likewise in all relevantly similar cases. What room could there then be for an arbitrary (free) exercise of mercy in any given case? To get a fix on the problem, suppose Tom and Tim are morally indiscernible twins: they share every moral attribute. They are both loyal, and to the same degree. They are both courageous and to the same degree. And so on. But they are mafiosi hit men with no qualms about committing murder for money. God consigns Tom to hell for all eternity, but shows mercy to Tim. How could a good God do such a thing? Surely that is offensive to our human sense of justice.
Simply put, the theological problem is: How could a good God be both just and merciful? Justice and mercy are both divine attributes, but they appear to us to be logically incompatible. The theologians have proposed solutions. This is not the place to review them. For present purposes we assume that the problem is soluble in the divine case. In the human case, however, things look very different.
To make the question concrete, compare Bill Clinton's pardoning of Marc Rich with his pardoning of Patty Hearst. Many of us will consider the latter to be a justifiable, and perhaps even an admirable tempering of justice with mercy. (The poor girl, pun intended, was suffering from Stockholm Syndrome, etc.) But few will fail to consider the former pardon anything other than a moral outrage. But why an outrage? (If you don't think the Rich pardon an outrage, choose one you think is: the illustrious Joe Biden has given us several to choose from.)
I am assuming that in the divine case, justice and mercy are indissolubly one in such a way as to render impossible any differentiation between justifiable and unjustifiable acts of divine mercy. On this assumption no divine pardon is or could be morally wrong. In the divine case, one could not claim that God was violating the moral law by any act of mercy. It is after all false that "no one is above the law"; God is above both the positive law and the moral law inasmuch as he is the source of both. He is the source of positive law inasmuch as he is the creator of the persons who posit the positive law. He is the source of the moral law inasmuch as he is absolutely sovereign and so cannot be subject to anything external to himself. There is a sense in which God is above the law. But no man is above the law.
Now we come to the problem. When a president pardons a convicted criminal is he not violating the rule of law and putting himself above the law? How can that be justified? Surely not by a secularization process whereby the theological unity of justice and mercy gets transferred from God who truly is the unity of justice and mercy to a mortal man, POTUS say, who is obviously not such a unity.
The point I am making is that the secularization of theological concepts must not be confused with the realization in the State of theological realities. Just as the theory of God is not the same as God, the theory of the state is not the same as the State. So if the concepts ingredient in the theory of God are secularized, which is to say, "transferred from theology to the theory of the state," as Schmitt says above, that is not to say that God is being denied and replaced by the State. It is logically consistent to maintain both of the following: (a) "All significant concepts of the modern theory of the state are secularized theological concepts" (Schmitt) and (b) God exists and is not the State.
The question for me, and not only for me, as to what Schmitt believed in the end about these matters remains open. The above is simply a preliminary exercise in understanding what Schmitt is ultimately driving at. He is undoubtedly one of the great political theorists of the 2oth century. His fateful entanglement with the NSDAP from May of 1933 on is no excuse not to study him in detail and in depth. You study Rawls and Nozick but ignore Schmitt? WTF is wrong with you?
But it would have been nice if in retrospect he had accepted and lived by my masthead motto: "Study everything, join nothing."
Why did Schmitt become a Nazi? Reinhard Mehring in his monumental (748 page!) Carl Schmitt: A Biography (Polity Press, 2014, pb 2022, German original 2009, tr. Daniel Steuer, pp. 282-284) lists 47 possible reasons/motives! I schmitt you not.
