Spatiality, Sovereignty and Carl Schmitt

Geographies of the Nomos

Stephen Legg

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136717789
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The writings of Carl Schmitt are now indissociable from both an historical period and a contemporary moment. He will forever be remembered for his association with the National Socialists of 1930s Germany, and as the figure whose writings on sovereignty, politics, and the law provided justification for authoritarian, decisional states. Yet at the same time, the post-September 11th 2001 world is one in which a wide range of scholars have increasingly turned to Schmitt to understand a world of "with us or against us" Manichaeism, spaces of exception which seem to be placed outside the law by legal mechanisms themselves, and the contestation of a uni-polar, post-1989 world. This attention marks out Schmitt as one of the foremost emerging theorists in critical theory and assures his work a large and growing audience.

This work brings together geographers, and Schmitt experts who are attuned to the spatial dimensions of his work, to discuss his 1950 work The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Explaining the growing audience for Schmitt's work, a broad range of contributors also examine the Nomos in relation to broader debates about enmity and war, the production of space, the work of Michel Foucault and Giorgio Agamben, and the recuperability of such an intellect tainted by its anti-Semitism and links to the Nazi party.

This work will be of great interest to researchers in political theory, socio-legal studies, geopolitics and critical IR theory

1 Introduction

Geographies of the Nomos

Stephen Legg and Alexander Vasudevan

This is a moment to seize. The kaleidoscope has been shaken. The pieces are in flux. Soon they will settle again. Before they do, let us re-order this world around us.

(Tony Blair, Prime Minister, 2 December 2001)¹

There should be no doubt that the decision of whether or not armed force is to be used is a decision for the executive. Formal constraints, in statute or convention, do not work when faced with the reality of planning and deployment.

(Lord Falconer, Lord Chancellor, 7 April 2006)²

The writings of Carl Schmitt are now indissociable from both an historical period and a twenty-first-century moment. He will forever be remembered for his association with the National Socialists of 1930s Germany, and as the figure whose writings on sovereignty, politics and the law provided justification for authoritarian, decisional states. Yet at the same time, the post-September 11th 2001 world is one in which a wide range of scholars have turned to Schmitt to understand the enmity of a new century of conflict characterised by the emergence of spaces of exception placed outside the law by and through the law and the wider contestations of a global American imperium through which such legal geographies owe their provenance. Such analyses have been applied to representatives of sovereignty at the centre of political hierarchies, such as Lord Falconer’s defence, above, of the decision-making power of the executive to decide on the use of force in concrete, material situations. George W. Bush and his advisors ape Schmitt’s doctrines to an extent that would be comic had their consequences not been so tragic: the friend–enemy distinction of warning Iran that ‘Our nation and our fight against terror will uphold the doctrine: either you’re with us or against us’³; the lawful yet exceptional spaces of Guantánamo Bay (Hussain, 2007); the empire-denying logic of America’s absent-presentism in Donald Rumsfeld’s insistence in April 2003 that ‘We’re not imperialistic. We never have been’ (cited in Ferguson, 2003); and Bush’s (2010) autobiographical meditation on his Decision Points (also see Kearns, this volume). Others, under the guidance of the philosopher Giorgio Agamben (1998, 2005), have blended Schmitt’s work on sovereignty with Walter Benjamin’s suggestion that the exception becomes the norm, to examine the ‘petty sovereigns’ (Butler, 2006, 56) of exception who divide, profile and insecure us in the spaces of the airport, the mall, the passport office or the Internet.

Yet, these Schmittean analyses can lapse into caricature. They can simply become too easy; and this is the very thing Schmitt is not. Chantal Mouffe (2007, 148) has stressed how opposed the Bush regime’s slack conflation of aesthetic, moral and economic categories in the ‘war on terror’ has been to Schmitt’s (1996 [1932]) insistence on a purely political distinction between friends and enemies based on a public, existential threat. But she also points out that Bush embodies the messianic humanitarian universalism that Schmitt so loathed. The world vision he promoted was not one of a global friend– enemy divide, but of a more ambiguous with–against division that instituted geographically complex processes of incorporation and integration (see Elden, 2009, 27–31). As the Blair quotation with which we began shows, one of the responses to the September 2001 attacks was to seize an opportunity to forge a new world order out of the kaleidoscopic disordering of … what? No territorial boundaries had shifted and state-based sovereignty remained ostensibly intact at that point. What, many people argue, had been shattered by the aerial partisans on September 11th was what Schmitt termed the ‘nomos’.

Nomos conventionally referred to the law, or the ‘principles governing human conduct’ (Oxford English Dictionary, 2009). But Schmitt reinterpreted nomos, drawing upon its Greek etymology, as referring to something both more concrete, and transcendental, than the law. In terms of the latter, the nomos was described as prior to every legal, economic and social order. Rather, it was constituted by three processes: of appropriation, distribution and production (Schmitt, 2003 [1950], 329). But these processes were applied to and through the land, and thus gave each nomos a grounded and specific nature. In The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, published in 1950, Schmitt used these concepts to consider how the Earth had been apportioned (Schmitt, 2003 [1950], 79). After tracing the history of the term nomos from antiquity, Schmitt then traced the historical geographical appropriation, distribution and production of the globe through colonisation and jurisprudence (see the appendix to this introduction for the contents of The Nomos of the Earth). This took place through ‘global lines’, the first of which were the rayas that orchestrated the claims of Catholic colonial land claims. Pope Alexander VI’s 1494 edict set a pole to pole line 100 miles west of the meridian of the Azores and Cape Verde (marked on Guillaume de Lisle’s 1722 map on the cover to this volume), which was superseded by another line drawn 370 miles west of Cape Verde by the Spanish-Portuguese Treaty of Tordesillas (1494), and sanctioned by Pope Julius II. All newly discovered territories east of the line went to Portugal, while Spain took those lands to the west. These lines internally dividing European conquests were later supplemented by amity lines, beyond which force and violence, not law and treaty, would govern land appropriation in an historical move, and one reproduced entirely in Schmitt’s world-view, which considered native people and their territories as ‘free space’ (see the division of North America between French, Spanish and English empires in de Lisle’s map). This instituted the beginning of a comprehensive world spatial order, devised, administered and enforced by Europe, which allowed its state system to function stably by exporting war to the rest of the world between 1713 and 1914. Anticipating recent attempts to express the interdependence of the imperial ‘core and periphery’ (Hall and Rose, 2006), Schmitt recognised (and celebrated) that the entire European state system was dependent upon colonialism and imperialism. Only with the emergence of American informal economic imperialism and the ‘spatial sovereignty’ of its Monroe Doctrine did the European nomos crumble. Although Schmitt refused to predict the coming nomos, his work provides endlessly provocative ways for considering the contemporary world.

To be sure, as Timothy Luke argues in this volume, the Cold War bipolar order collapsed between 1989 and 1991, while the global recession has further forestalled any calcification of a new global order. But in attempting to analyse this twenty-year period, it ironically remains the case that most commentators use Schmitt’s 1920s–30s work on decisionism, legality, jurisprudence, constitutionalism and exceptions, rather than his 1930s–50s works on America’s absent-present global sovereignty, the relationships of politics and law to the land, and the collapse of the ordering nomos of the Jus Publicum Europaeum. While Schmitt’s (2003 [1950]) The Nomos of the Earth has started to receive serious attention in international relations and international law (Hooker, 2009; Odysseos and Petito, 2007), there has been no detailed analyses of the complex geographies which, this volume will argue, were central to Schmitt’s biographical context, his analysis of the world around him, his appreciation of global order, and also to the very ontological orientation of his work. This introduction will consider the necessity and dangers of reading and periodising Schmitt before summarising his pre-nomos works, and their inherent spatiality. It will then summarise existing discussions of Schmitt and the nomos, within geography and beyond, before introducing some of the key features of the Nomos and associated works to emerge in this volume.

Reading Schmitt

Just as the use of Schmitt in the contemporary demands careful consideration, so must any appreciation of his biography. The tag of ‘Nazi legal theorist’ simplifies consideration of the fact that his 1921 writing on Die Diktatur explicitly advocated ‘commissarial’ dictatorships that dealt with extraordinary circumstances so as to restore, or create, a ‘normal’ situation, rather than a sovereign, unlimited dictatorship (Müller, 2003, 21). If Schmitt became a full and official member of the Nazi party in 1933, he also remained committed to concepts of the state and of jurisprudence which it became increasingly apparent were being undermined by the party and the movement to which he was tethered, but from which he was cut free in 1936 (Müller, 2003, 41). The SS openly attacked Schmitt, recalling suspicions about his Catholic background and former Jewish acquaintances, forcing him to resign from almost all his party positions. But before, and after, this brief period of official party duties, Schmitt worked to curry the favour of Nazi officials, just as he cultivated a deeply conservative, anti-liberal and anti-Jewish corpus of works. This presents us with the much broader dilemma of how to deal with ‘Nazi intellectuals’, as discussed by David Atkinson in this volume. Howard Williams (2005, xi) proffered the Aristotelian adage that wisdom and intelligence need not make one decent and just; William Rasch (2005, 180) argued that we do not have to sympathise with Schmitt to benefit from his insights; Andrew Neal (2010, 136) chose to treat Schmitt as symptomatic of those practices he claimed to diagnose; while Paul Piccone and Gary Ulmen (1987, 4) asked why shouldn’t we learn from our opponents, reading them, as Walter Benjamin had done, against the grain? This is, indeed, the route adopted by an astonishing range of thinkers and activists in the twentieth century. Jan-Werner Müller (2003) has tracked Schmitt’s influence through thinkers such as Hannah Arendt and Hans Morgenthau, to the lawyers of the Franco and Salazar regimes, to West German constitutional debates and 1968 student revolutionaries. Each of these interpreters has drawn on a particular phase of Schmitt’s writing, and has chosen to remember or actively forget parts of his biographical narrative. His is not a life that can be adequately summarised here (see Balakrishnan, 2000; Bendersky, 1983; Müller, 2003, 14–47). But it is important to address the ways his life has been narrated, and the periodisations these narratives have bequeathed us.

As suggested above, Schmitt’s engagement with the National Socialists will forever brand his writings. At the same time, recent scholarship has traced the complex genealogy of Schmitt’s writings from early experiments in literary expressionism to Weimar-era monographs on jurisprudence and legal decisionism (Müller, 2003). Mika Ojakangas (2004) breaks Schmitt’s work into three periods or phases: decisionism (Weimar); movement (Nazism); and finally concrete order thinking (nomos). This roughly corresponds with Jean-François Kervégan’s (1999, 55) suggestion that Schmitt’s writings form two bodies, of pre- and post-National Socialism, with a period of change precipitated by his joining the party in 1933, when he started to question his theories of the state and to consider the international, which ended in 1943 with his turn to historical and philosophical meditations on world order. Yet tied to this narrative is one of the most emotive approaches to Schmitt’s life, concerning his relationship to the ‘Jewish Question’. Raphael Gross (2007) divides Schmitt’s life into three phases of anti-Semitism: a structural phase before 1933 expressed in his legal and political writings; an explicit phase between 1933 and 1945 during his collaboration with the Nazi party; and a post-war period of reinterpretation and disowning of his more radically anti-Semitic activities. The ongoing publications of Schmitt’s letters and diaries (see Bendersky, 2009) adds further richness to the contrasts between his early Jewish friendships and the intellectual engagements that spanned his long life, and the conference he organised in 1936 to discuss the influence of ‘Judaism in Legal Studies’, or the continual strain of anti-Jewish sentiment in his writings. Much of this writing merged with the broader scapegoating of Jews for the undermining of state sovereignty and economy. But more persistent was Schmitt’s aligning of Jewish thought with placeless liberal positivism, which posited norms that could be applied anywhere, with no attachment to locality. Schmitt firmly argued in 1940 that Jewish (diasporic) existence had no natural relationship with concrete land or ground, thus emptying out the concept of territory (Carty, 2001, 36, citing Schmitt’s Völkerrechtliche Grossraumordnung, as discussed by Elden in this volume). He remained committed to this point, repeating during his interrogation at Nuremberg in April 1947 that, although he had little to do with the Jewish Question: ‘I wrote only once that Jewish theorists have no understanding of this territorial theory’ (Schmitt in Bendersky (trans.), 1987, 99). His work more broadly shifts blame away from Germany for the two World Wars and shifts it to those parties who undermined a nomos that allowed bracketed wars. While the Holocaust is painfully silent from Schmitt’s work, in one audacious passage he comes close to hinting that it was humanism that provided the underpinning for this total dehumanisation:

The expulsion of the inhuman from the human was followed in the 19th century by an even deeper division, between the superhuman and the subhuman. Just as the human presupposed the inhuman, so, with dialectical necessity, the superhuman entered history with its hostile twin: the subhuman.

(Schmitt, 2003 [1950], 104)

What the above indicates are the complex underpinnings to Schmitt’s thought and his positioning regarding the Nazi party. But what it also suggests is how deeply influenced his opinions were by his ongoing, lifelong campaign against liberalism. This was the obverse face of his obsession with sovereignty. He posited the two as locked in battle; not just in juridical or philosophical realms, but in the material and political world. Here, liberalism was corroding state sovereignty from within, by promoting discussion over decision, and from without, by promoting landless universalism over land-based territorial statehood (Axtmann, 2007, 541). Running subjacent to Schmitt’s shift from domestic to international law, and throughout his party affiliations and anti-Semitism, was this profound anti-liberalism. As discussed below, Schmitt’s Political Theology (2005 [1922]) and The Concept of the Political (1996 [1932]) articulated a now (in)famous attack on the quantit...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• List of contributors
• Acknowledgements
• 1. Introduction: geographies of the nomos
• Part I: Positions and concepts: Schmitt translations
• Part II: Historical geographies of the nomos
• Part III: Analytical geographies of the nomos
• Part IV: Responses to the Nomos
• Index