The Nomos of the Earth

in the International Law of the Jus Publicum Europaeum By Carl Schmitt Translation & Introduction by ! L! "lmen
Telos Press Publishin#$ %&&' erman (ri#inal )*+&, %nd Edition )*-. /-% Pa#es$ "S0/.!*+ ISBN1)&2 &*)./3'/&)

Carl Schmitt 4)3331)*3+5 was a erman 6urist who bears comparison to 7eide##er both
in eminence and bio#raphy! 7e was one of those respectable intellectuals of the 8i#ht who offered their ser9ices as an ideolo#ical clarifier to the Na:i re#ime$ only to find that the Na:is really were not much interested in clarity$ or at least not in any clarity that Schmitt was e;uipped to pro9ide! 7e is best <nown in the En#lish1spea<in# world for his definition of the so9erei#n as the a#ency with the authority to ma<e an e=ception$ for the ability of the so9erei#n to desi#nate an >enemy$> and for the principle that so9erei#nty is defined by the Ernstfall$ the emer#ency case at the point where a concrete decision is made! Schmitt was an anticonstitutionalist$ meanin# he tended to re#ard written constitutions as epiphenomena$ but by no means a nihilist! The last point comes throu#h 9ery stron#ly in this boo<$ The Nomos of the Earth$ written in Berlin durin# the Second ?orld ?ar! 4This edition contains an @ppendi= written durin# the early )*+&s$ plus the translatorAs useful introduction!5 @s the translator su##ests$ thou#h the te=t nowhere says so e=plicitly$ The Nomos was ori#inally intended to formulate the theoretical basis for a erman Grossraum in Europe$ a sphere of influence analo#ous to the Bonroe CoctrineAs demarcation of the ?estern 7emisphere for the "nited States! The boo< we actually ha9e$ howe9er$ is a description of the Eurocentric$ #lobal system of international law that de9eloped after the disco9ery of the New ?orld$ and that Schmitt ar#ues$ with some reason$ ended at the be#innin# of the %&th century! This boo< contains what must be some of the most hilarious assertions in the history of 6urisprudence! Thus$ we learn that the Bel#ians were the ones who finally destroyed the public international law of Europe$ and that the )3th1century partition of Poland was systemically appropriate because the Polish #o9ernment did not e=ercise sufficient control o9er its territory to constitute a state! Nonetheless$ the boo< is 9aluable for its clear e=position of the thesis that the nation is an entity that ma<es sense only in a lar#er le#al conte=t! Indeed$ at this writin#$ the boo< is topical2 its outline of the future nomos of the planet as a choice amon# world #o9ernment$ maritime he#emony$ or multiple Grossrume is pretty much the set of choices that we find in #eopolitical assessments today!

DNomosE is a ree< word uni9ersally translated DlawE in En#lish$ Dle=E in Latin$ and$ usually$ D eset:E in erman! Schmitt ta<es issue with these e;ui9alences$ and especially the last! D eset:E smac<s of the merely positi9e$ statutory$ written law that he belie9ed it was the business of 6urisprudence to di# beneath in search of the real law! "nderneath the modern and 7ellenistic understandin# of nomos as mere law$ accordin# to Schmitt$ we find a meanin# li<e the En#lish term$ Dradical title!E That is the possession from which all later possession deri9es$ and which on the historical le9el means the terms on which land ori#inally entered the le#al structure of the community! The nomos of a territory$ then$ is the terms of its ori#inal appropriation$ its ta<in#! Schmitt points out that the word is co#nate with the erman Dnehmen$E Dto ta<e!E 7e then #oes further and su##ests$ but does not attempt to pro9e$ that nomos is connected with DNameE 4same meanin# and spellin# in erman and En#lish$ but pronounced DnahmehE5$ so that to ta<e a territory is to conceptuali:e it! This$ he concludes$ was the real 6urisprudential basis for the European appropriation of the New ?orld! Before the @#e of Cisco9ery$ there was no #lobal law of the earth! Each ci9ili:ation mi#ht ha9e a history$ and e9en an established procedure$ for dealin# with its barbarous and ci9ili:ed nei#hbors$ but each such relationship was ad hoc! ?ithin the ?est$ there was a sophisticated ci9il and ecclesiastical law to re#ulari:e the wars and other dealin#s of princes$ republics$ and the Church$ e9en thou#h the modern notion of the state did not e=ist! Bedie9al Europe was anarchic$ but by no means lawless! The 7oly 8oman Empire en6oyed a sort of preeminence in the system$ but Schmitt says its ideal characteri:ation as a uni9ersal so9erei#n was an aspect of late medie9al theories about the Dperfect society!E 4The Church was supposed to be the other perfect society!5 8ather$ Schmitt lays emphasis on the early identification of the Empire as the D<atechon$E the D8estrainerE of @ntichrist mentioned in II Thessalonians %2'F-, the end of the Empire would be the end of the a#e! The public law of modern Europe was continuous with medie9al law$ but de9eloped throu#h a process in which moral and theolo#ical content was drained from earlier 6urisprudential concepts$ lea9in# only a formal structure! Schmitt e9inces a #reat respect for the early Spanish 6urists$ who dismissed the ar#uments that the Spanish con;uests in the @mericas could be 6ustified by a #rant from the emperor or the pope$ or e9en by the ri#ht of disco9ery! The indi#enous peoples had human ri#hts to life and property that European so9erei#ns could not wantonly abro#ate! The con;uest of the ?estern 7emisphere was based on 6ust wars nonetheless$ howe9er$ because they were in the ser9ice of an e9an#elical crusadin# enterprise authori:ed by the pope! The Spanish and Portu#uese had to e=ercise effecti9e #o9ernment in the west in order to facilitate the free commerce and tra9el on which missionary acti9ity depended! This was one ori#in of the concept of the Dfreedom of the sea!E The other was the ri#ht to piracy$ which was more con#enial to the En#lish temperament! Gamously$ in the early )'th century$ the pope bro<ered a #lobal di9ision of the Spanish and Portu#uese spheres of influence with a raya$ or line of lon#itude$ that ran north to south throu#h the whole earth! The En#lish 9ersion of this was the Damity line!E (n the hither side of an amity line$ the ordinary usa#es of polite nations applied, European treaties were obser9ed and the pri9ate property of all tra9elers was respected! (n the nether side was the war of all a#ainst all! This could be limited by particular a#reements amon# the parties$ but

the rule was that$ on the hi#h seas and on non1European soil$ the rules did not apply that applied in Europe! The purpose of both the rayas and the amity lines was the purpose of all international law$ at least in SchmittAs 9iew2 not the pre9ention of war$ but the brac<etin# of war! @ clash on the border between two European states was an act of war! @ clash at sea or between colonies need not be! Con9ersely$ war in Europe need not mean war in the colonies! Startin# in the )'th century and e=tendin# e9en into the twentieth$ the colonial situation was an anticipation of the dictum$ D?hate9er happens in He#as$ stays in He#as!E ?e should note that$ sometimes$ Schmitt characteri:es this e=tra1European re#ime as Dinternational lawE properly so called$ and contrasts it with the DEuropean public lawE that #o9erned the states of Europe! Literally$ of course$ the latter is an Dinternational law$E too$ and Schmitt sometimes uses the term in a pre1twentieth century European conte=t$ as we see in the boo<As e=tended title! ?ithin Europe$ the public law of Europe in the )'th and )-th centuries used old concepts to brac<et conflict! The early modern wars of reli#ion were wars of D6ust cause$E fou#ht a#ainst enemies re#arded as criminals whose destruction was a war aim! Neutrality was not an established institution! Societies were tar#eted as well as militaries! By the middle of the )-th century$ howe9er$ European 6urisprudence had ended this unsatisfactory situation! The concept of D6ust war$E in the sense of le#ally reco#ni:ed war$ was not abandoned$ but it became a purely formal ;uestion of le#al sufficiency! The notion of D6ust causeE for war was rele#ated to the conscience of the belli#erents! There was no discrimination between a##ressi9e and defensi9e war! The public law of Europe was concerned only with whether the combatants were D6ust enemies$E a cate#ory that was increasin#ly limited to states! 4The later Dnation state$E the state that represents a people$ was a refinement of le#itimacy that had surprisin#ly little effect on the 9iability of the international system!5 The state was not a new idea$ but it de9eloped a new si#nificance in this period! It absorbed e9ery <ind of ci9il and reli#ious authority that had hitherto e=isted in the lawful anarchy of medie9al Europe! @mon# the thin#s it absorbed was the monarchies 4a point that was missed$ it seems to this re9iewer$ by some of the dimmer monarchs$ who did not reali:e that their absolutist #o9ernments were displacin# them5! The state was reconceptuali:ed as a person$ as an acti9e will$ that mi#ht enter into duels with other$ similar persons$ pro9ided the duels conformed to certain reco#ni:ed forms! In a sense$ each state was independent of e9ery other$ but the independence was brac<eted by understandin#s with its nei#hbors! Neutrals were reco#ni:ed to be interested parties to peace treaties$ for instance$ because each part of the European public space depended for its security on a balance of power$ indeed a balance of consensus$ amon# the reat Powers! @nd of course all of Europe understood that its internal rules did not apply at sea or in the colonies$ e=cept to the e=tent the reat Powers a#reed they did! ?ars were not fou#ht a#ainst ci9ilians or ci9ilian infrastructure! Gor that matter$ durin# an occupation$ the ci9il law of the state from which the land was ta<en still applied! Territory that had been #enerally reco#ni:ed as neutral would stay neutral when it chan#ed hands! The absolute state was tolerable because its claims were limited! @ll of Europe had a rou#hly comparable system of secure property and liberal economics! ?hen one state

occupied anotherAs territory$ or e9en anne=ed it$ there was #enerally no political or social re9olution$ e=cept to a limited de#ree durin# the Napoleonic era! Treaties of peace were understood to include amnesties for the participants on both sides! (n the border of this system was En#land$ which had de9eloped in such a way that the state was subordinate to society! Economics and trade were the ob6ects of En#lish statecraft! En#landAs chief function in the Eurocentric international system was the maintenance of the law of the sea$ which was essentially a system for brac<etin# Dpri:e war$E the war of ta<in# booty! En#land was of Europe but not in it! Be that as it may$ En#landAs relationship to Europe was less ambi#uous$ or perhaps less e=treme$ than that of the "nited States! ?e should note that SchmittAs understandin# of @merican 4in the sense of the "S5 law was perhaps impeded by interruptions in library hours durin# the period when this boo< was written! Still$ we should note that$ in discussin# @merican constitutional history$ he mentions DThe Ceclaration of 7uman 8i#htsE of )--+$ a document that has escaped this re9iewerAs notice! 4(ne surprisin# point2 (li9er ?endell 7olmesAs DrealistE 9iew of law is wholly positi9ist but still similar to SchmittAs Ernstfall2 nonetheless$ 7olmes is mentioned only in a footnote!5 In any case$ Schmitt ma<es two chief points about the "nited States! The first is that$ from the time the "S became prominent in #lobal affairs$ it has applied a principle of forei#n affairs deri9ed from ?ashin#tonAs Garewell @ddress2 D@s little politics as possible, as much trade as possible!E In international relations$ this means that @mericans$ and e9en @merican diplomats$ are usually present when important decisions amon# the #reat powers are made$ but the @merican #o9ernment tends to refuse to ta<e responsibility for political 4and economic5 decisions that it has influenced! This pattern of presence1and1absence was true of the Con#o Conference of )33+$ which Schmitt characteri:es as the last #reat act of the European system! There$ the "S helped to set the terms for neutrali:ation of Central @frica but declined to #uarantee the settlement! Gamously$ the "S was present at the Conference of Hersailles but refused to ratify the treaty! (ne mi#ht ad that the "S helped draft the Iyoto Protocols and then refused to be bound by them 4thou#h one may also note that the "S actually complied with the terms of the a#reement$ unli<e many of the si#ners5! The other point is that the "S$ ;uite early in its history$ sou#ht to ma<e the ?estern 7emisphere a peculiar re#ion of international law$ an @merican Grossraum! The charter for this sphere of influence was the Bonroe Coctrine of )3%/! The moti9e was not that the "nited States did not consider itself part of the ?est, on the contrary$ the "S tended to consider itself the true ?est$ to which Europe was an archaic and de#enerate prelude! The ?estern 7emisphere$ under the Bonroe Coctrine$ thus became the hither side of an amity line$ the side on which pro#ress and peace were possible! The other side was consi#ned to chaos and (ld Ni#ht! But sometimes not! Schmitt asserts that the "S was a nation of the Cal9inist elect that was also a missionary enterprise! 7e notes that the notorious Cal9inist$ ?oodrow ?ilson$ wanted the Lea#ue of Nations head;uarters to be placed at ene9a! 4Curiously$ Schmitt does not note how this characteri:ation do9etails with the Spanish 6ustification for the appropriation of the ?est!5 The @merican impulse to ;uarantine the reprobate to the shabby

side of the planet was always stron#$ but not in the lon# run as stron# as the impulse to redeem them throu#h the pro6ection of @merican ideas of #ood international #o9ernance! Bein# theoretical$ these ideas necessarily too< the form of rootless uni9ersalism! 8eaders may infer that this impulse was facilitated by the limited importance of the state in @merican international relations! 7e#el$ we are reminded$ had said that there was no @merican state$ and Schmitt seemed to thin< that this assessment was still true in his own time! Gar more e9en than was the case with En#land$ @merican society became present in re#ions from which the @merican state was absent$ or at least absent at first! DInternational lawE in the modern sense be#an to be introduced into Europe at the end of the )*th century! It decentered Europe from the #lobal system$ and at the Conference of Hersailles$ it destroyed European public law! @s an e=ample of the transition$ we ha9e already noted the nefarious Bel#ians! @t the Con#o Con#ress$ the Con#o Gree State was created by the reat Powers as an independent entity$ under the unfortunate rule of the Bel#ian Iin# Leopold! Its neutrality was reco#ni:ed by a collecti9e act of Europe$ in the same way that the permanent neutrality of Swit:erland had been reco#ni:ed at the Con#ress of Hienna$ and as Bel#iumAs own neutrality had been reco#ni:ed a few years later! In the early %&th century$ howe9er$ when the Bel#ium state assumed direct control of the Gree State$ it refused to accept reco#nition by the reat Powers as the basis for its so9erei#nty! 8ather$ Bel#ium based its claim on Deffecti9e occupation!E Jou see the distinction! The public law of Europe did not promise much$ but what it did promise it could usually deli9er! The reco#nition of the reat Powers was a concrete fact in which some confidence could be placed! In contrast$ the international law theory of Deffecti9e occupationE was 6ust that$ a theory, essentially a debt that no one in particular was obli#ated to pay! Jou can see why the %&th century became unhin#ed! The law of the outer world$ of the world beyond the amity lines$ was introduced into Europe$ so that the same rule applied on the 8hine as on the Con#o! In neither place did it wor< well! International law had the effect of destroyin# the brac<etin# mechanisms that had been the #reat achie9ement of European 6urists! The concept of D6ust causeE was reintroduced$ lar#ely as part of the effort to criminali:e war in #eneral! The status of D6ust enemyE was distorted beyond all reco#nition! It was stripped from states that would pre9iously ha9e remained parts of the international system and accorded to rebels and re9olutionaries! 7eads of state became sub6ect to prosecution for war crimes$ without possibility of amnesty! ?ars once a#ain became wars to the death for entire societies! To lose a war was to ris< forcible inclusion into a culturally and le#ally alien uni9erse! Clearly$ the old nomos that had be#un to #el in the )'th century had passed away$ and somethin# new would ha9e to replace it! 8e#ardin# the comin# nomos$ as we ha9e seen$ Schmitt offered three options! The first was some #enuinely uni9ersal system$ a world #o9ernment in fact if not in name! 7e mentions the possibility se9eral times$ but offers no specifics2 this is clearly not his fa9orite choice! The option that would entail the least chan#e from historical e=perience would be an au#mented 9ersion of maritime he#emony! "nder this option$ some power$ probably the "nited States would do pretty much what the Britain of Kueen HictoriaAs day did$ but with the addition of air power! The third

possibility$ and perhaps the one Schmitt finds most con#enial$ would be a plurality of international systems! This is what today we would call Dmultipolarity!E @t least in this boo<$ Schmitt offers few clues about which possibility is the most li<ely! In a way$ this is to be welcomed! SchmittAs brand of 6urisprudence is not to e9erybodyAs taste$ but at least it is not bossy$ unli<e the le#al theory that attends early %)st century transnationalism! @ctually$ the problem with it is that it is too willin#$ e9en ea#er$ to be bossed! Perhaps anyone who consults Schmitt about the creation of a new nomos should come away with this useful piece of ad9ice2 to name is to ta<e!