Recently, Carl Schmitt's critique of the modern liberal state has been deployed in an assessment of political modernity. One of the key ideas underlying this critique is the distinction between legitimacy and `mere legality,' which he identifies with modernity. I begin to asses this distinction first from the point of view of Schmitt's theory of secularization, since his critique of legality is the result of a certain philosophy of history. Secondly, I set Schmitt's critique of legality against a critical theoretical account of law and modernity by means of a discussion of the work of Hans Blumenberg, Franz Neumann and J??rgen Habermas. While taking issue with these theorists, I find in this tradition an account of the modern rule of law as the basis for a normative account of democratic legitimacy.