Law and Judgment (Gesetz und Urteil)
Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis is a compact jurisprudential monograph — Schmitt’s first book-length legal study, written while he was still a young jurist in Düsseldorf — and it is entirely a work of legal theory. It contains no biography, no political journalism, and no narrative of the author’s life; it is a dense, technical investigation into a single problem, announced in its subtitle as “the problem of legal practice.” Its question is deceptively simple: what does it mean to say that a judge’s decision is correct?
The problem: the statute does not decide the case
Schmitt begins from the everyday fact that a legal norm does not, by itself, generate the particular judgment that applies it. The dominant legal positivism of his day — and, in a different idiom, the conceptual jurisprudence that treated legal concepts as a self-sufficient system — modelled judging as subsumption: the case is brought under the statute, and the decision follows logically from the norm. Schmitt’s central objection, which runs through the whole book, is that this model remains lodged in the abstraction of the legal text and never reaches the concrete reality to which the norm is supposed to apply. The abstract norm is always indeterminate with respect to the individual case: it leaves open a range of possible decisions, all of them equally compatible with the words of the statute. Even a perfectly drafted law, applied to a living set of facts, does not single out one uniquely correct outcome.
The book accordingly works through the standard attempts to close this gap and shows why each fails. The problem of the “gap” in the law is not an occasional defect to be repaired by better legislation; it is structural. Nor does an appeal to the “idea of law,” in the manner of a regulative ideal of right law, deliver a determinate answer: an idea can orient judgment, but it cannot adjudicate between two decisions that are both defensible. Schmitt is equally sceptical of the free-law movement’s celebration of judicial creativity and of the various sociological and “interest”-based jurisprudences that tried to replace the norm with an account of the interests or purposes behind it. These approaches correctly register the insufficiency of the norm, but they either dissolve the binding character of law altogether or simply relocate the same indeterminacy at a different level.
The proposed criterion
Schmitt’s constructive answer is his best-known contribution in this book. The correctness of a judicial decision is not to be measured by its correspondence to a norm or to a “correct” legal idea, but by its expectability — by whether the decision is one that other judges would reach. He formulates the test in a single sentence that has been quoted ever since: a judicial decision is correct today when it can be assumed that another judge would have decided in the same way.
Two features of this formula matter. First, the reference point is not an abstract norm or an ideal judge but the empirical type of the modern, professionally trained jurist. Correctness is indexed to a real community of decision-makers — to what a legally educated colleague, formed by the same training and the same professional milieu, would do. Schmitt is explicit that the standard is deliberately relativised to the present (“today”): it makes no claim to timeless validity, only to the regularity actually sustained by a working legal profession. Second, the formula converts the problem of truth in adjudication into a problem of determinacy and predictability. What a legal order requires is not that each decision mirror a norm, but that decisions be calculable in advance — that the parties, their counsel, and other judges can anticipate how a case will come out. Predictability, not correspondence, is the operative virtue.
This is why the book has been read as a “thoroughgoing denigration of legal normativism.” Schmitt does not deny that the statute binds the judge; he denies that the binding force can be explained by the logical content of the norm alone. The relationship that guarantees regularity is not the relation between norm and judge, but the relation between judge and judge. The discipline of adjudication comes from the profession’s shared standards of decision, not from the deductive machinery of subsumption.
Decision as an independent factor
Running beneath the technical argument is the theme that would become Schmitt’s signature. If the norm cannot determine the individual decision, then the decision itself is an independent element in legal life — something that is not merely the conclusion of a syllogism. Schmitt insists on the moment of decision as the point at which the abstraction of the law meets the fullness of a concrete situation, and on the irreducible particularity of the case, which resists mechanical application of general principles. This is the seed of the decisionism later developed in Political Theology: the insight that the exceptional, the case not covered by the rule, reveals what the rule normally conceals. The book also registers, in embryo, the priority of the concrete situation over the abstract norm — the argument, taken up by later readers, that Schmitt’s early jurisprudence already rests on a particular understanding of concrete human existence rather than on a formal theory of norms.
Importantly, the book does not conclude that the judge may decide arbitrarily. Schmitt’s aim is precisely to explain how legal determinacy is possible given the indeterminacy of norms — and his answer is that it is possible through the ethos and the trained expectations of the judicial corps. The judge remains bound, but the binding is a matter of professional practice and socially sustained expectation rather than of logical derivation. The “correct” decision is the one that fits within the settled patterns of judicial behaviour; the aberrant decision is the one no colleague would have reached. On this account, legality is preserved not by the norm’s self-application but by the regularity of the institution that applies it.
Character of the book
Gesetz und Urteil is short, tightly argued, and written for jurists. It engages closely with the German legal theory of its moment — with the vocabulary of legal positivism, with the conceptual jurisprudence it opposed, and with the reform movements that sought to loosen the bond between judge and statute — and it proceeds by immanent critique of those positions rather than by programmatic declaration. Its prose is analytical and at times compressed, and its argument is conducted almost entirely at the level of juristic method: what counts as a legal norm, how a norm applies to a case, what the grounds of a judgment are, and what sort of thing a “correct” judgment can be. The book’s significance lies in the fact that a technical treatise on the logic of adjudication ends by relocating the foundation of law from the norm to the decision and from the text to the profession that applies it — the move that made it a lasting point of reference in debates about judicial discretion, legal indeterminacy, and the limits of rule-application.
The critique of free law
Schmitt’s relation to the Free Law movement (Freirechtsbewegung) is not one of simple rejection. The Free Law advocates had correctly identified the indeterminacy of the statute and the creative role of the judge, but they had drawn the wrong conclusion: that the judge is free to decide as he sees fit when the statute is unclear. Schmitt argues that this confuses the indeterminacy of the norm with the absence of bindingness. The judge is not bound by the text alone; he is bound by the practice of the profession, which is no less binding for being unwritten. The Free Law movement’s error was to equate bindingness with textual determinacy — to assume that if the text does not determine the decision, then nothing does. Schmitt’s alternative is to locate bindingness in the institutional context of adjudication: the judge is bound because he is a member of a profession with shared standards, expectations, and traditions of judgment. This is a social rather than a textual conception of legal bindingness, and it allows Schmitt to acknowledge indeterminacy without abandoning the ideal of the rule of law.
Legal certainty through professional regularity
The book’s central practical concern is legal certainty (Rechtssicherheit). If the norm does not determine the decision, how can litigants predict what courts will do? Schmitt’s answer is that prediction is possible not because the norm is determinate but because judicial practice is regular. The decision is predictable without being derivable from the norm. This distinction is crucial: the decision is foreseeable because judges are trained in the same way and share the same standards of judgment, not because the text of the statute dictates a unique outcome. Legal certainty is thus a function of the shared habits and expectations of the judicial profession. Schmitt’s argument is both descriptive and normative: the regularity of judicial practice is what makes the rule of law possible, and the preservation of that regularity is a condition of legal certainty.
The statute as one source of law among others
One of the book’s implications is that the statute is not the whole of law. Schmitt distinguishes between Gesetz (statute) and Recht (law), and he argues that the judge’s decision is not merely the application of the statute but the actualization of law in a concrete situation. The statute is a partial expression of the legal order; the decision is another. This is why the judge cannot be reduced to a mouth of the statute — his role is to determine what the law requires in the case before him, and this determination is not exhausted by the text. The book thus prepares the ground for a more expansive conception of legal sources, in which judicial practice and professional standards are recognized as genuine sources of law alongside the statute.
The decision as creative and bound
Schmitt’s account of the decision is often described as decisionist, but the book is careful to distinguish between the creative element in adjudication and arbitrariness (Willkür). The judge’s decision is creative because it is not derived from the norm; it is bound because it is constrained by the profession’s standards. This is what Schmitt calls the independence of the decision: it is not a mere conclusion but a moment of legal life that has its own logic. The decision is correct not because it corresponds to a norm but because it is the decision that the profession would recognize as appropriate. This is a consensual rather than a correspondence theory of legal correctness, and it is the book’s most distinctive contribution to legal theory.
