  One might reply to this line of thought that it is perfectly possible to establish legal conditions for the declaration of a state of emergency as well as legal constraints on the permissible means of dealing with an emergency. Schmitt argues, though, that attempts to legalize the exceptional situation are doomed to failure. It is impossible to anticipate the nature of future emergencies and to determine in advance what means might be necessary to deal with them. As a result, the positive law can at best determine who is to decide whether there is an emergency that requires a wholesale suspension of the law. But the sovereign decision cannot be guided by existing material law (PT 11–2). In Schmitt’s view, it is not even necessary for the law to determine who can take a decision on the exception. There can be a sovereign authority, in a jurisprudentially relevant sense, even where such an authority is not recognized by positive constitutional law. All that matters is whether there is a person or institution that possesses the ability, as a matter of fact, to take a decision on the exception. If a sovereign, so understood, exists, its authority to suspend the law does not stand in need of positive legal recognition, since the law’s applicability itself depends on a situation of normality secured by the sovereign (PT 12–3). What about cases, though, where sovereignty is not just unrecognized in positive law but where there is no one, as a matter of fact, who could successfully take a decision to suspend the law altogether? This condition seems to apply in many contemporary western democracies. Perhaps such polities are ill-prepared to deal with radical emergencies. But it would be implausible to conclude that they do not possess a legal order. Schmitt’s full response to this objection will only become clear from his discussion of ‘the political.’ The objection suggests, however, that Schmitt’s claims about sovereignty cannot plausibly be understood as claims about the presuppositions of the mere factual existence of a legal system. Schmitt must be arguing that wherever the situation of normality or homogeneity that makes the results of the application of law determinate and predictable is no longer guaranteed by a sovereign, the positive legal system, consisting of material norms and of positive norms of competence, can no longer be legitimate (Mauss 1980, 81–121; Scheuerman 1999, 15–37; Hofmann 2002).