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Political Theory

40(6) 688 713


2012 SAGE Publications
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DOI: 10.1177/0090591712460651
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460651PTX40610.1177/009059
1712460651Political TheoryBenhabib
2012 SAGE Publications
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1
Yale University, New Haven, CT, USA
Corresponding Author:
Seyla Benhabib, Department of Political Science, Yale University, 115 Prospect St., Rosenkranz
Hall, Room 225, New Haven, CT 06520-8
Email: seyla.benhabib@yale.edu
Carl Schmitts Critique
of Kant: Sovereignty
and International Law
Seyla Benhabib
1
Abstract
Carl Schmitts critique of liberalism has gained increasing influence in the last
few decades. This article focuses on Schmitts analysis of international law in
The Nomos of the Earth, in order to uncover the reasons for his appeal as a
critic not only of liberalism but of American hegemonic aspirations as well.
Schmitt saw the international legal order that developed after World War I,
and particularly the criminalization of aggressive war, as a smokescreen to
hide U.S. aspirations to world dominance. By focusing on Schmitts critique of
Kants concept of the unjust enemy, the article shows the limits of Schmitts
views and concludes that Schmitt, as well as left critics of U.S. hegemony,
misconstrue the relation between international law and democratic sover-
eignty as a model of topdown domination. As conflictual as the relationship
between international norms and democratic sovereignty can be at times,
this needs to be interpreted as one of mediation and not domination.
Keywords
international law, non-discriminating concept of war, the unjust enemy,
cosmopolitanism, sovereigntism, Immanuel Kant, Carl Schmitt
Articles
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I. The Winds of WarFor Whom Do They Blow?
In 1922, Carl Schmitt published Political Theology: Four Chapters on the
Concept of Sovereignty.
1
Reissued in 1934 with a new Preface by Schmitt,
this text, along with The Concept of the Political (1932) and The Crisis of
Parliamentary Democracy (1923),
2
established Schmitt as one of the most
trenchant critics of the liberal democratic project. Schmitt documented not
only the sociological transformation of liberal parliamentarianism into the
rule of special interest groups and committees that eventually undermined
parliaments from functioning as deliberative bodies. He also drove home the
rationalistic fallacies of liberalism until its limit conceptsdie
Grenzbegriffewere uncovered. These limit concepts, in Schmitts view,
constituted the secret and unthought foundations on which the structure of
the modern state rested. Sovereignty is one such limit concept; government
by discussion, and the assumption that all opinions will eventually converge
through deliberation upon a rational outcome, are among the other unques-
tioned presuppositions of liberalism.
Schmitts sociological and philosophical critiques have proven formidable
and have inspired thinkers on the right as well as the left. From Otto
Kirchheimer and Walter Benjamin to Hans Morgenthau and Leo Strauss, to
Chantal Mouffe and Ernesto Laclau
3
, as well as many others in our times,
Schmitt is the minence grise to whom one turns when the liberaldemocratic
project is in deep crisis. There is no need here to document the extensive
Schmitt renaissance that has flourished in Europe as well as the United States
in the past decades. Instead, I would like to briefly recall some theses of
Schmitts Political Theology in order to demarcate the continuities as well as
discontinuities between contemporary concerns that may be gathered under
political theology and Schmitts own preoccupations.
There are at least three interrelated and not always clearly distinguished
theses in Schmitts Political Theology. First is a thesis in the history of ideas,
sometimes referred to by Schmitt as the sociology of concepts as well (PT,
45), and best expressed through the following claim: All significant con-
cepts of the modern theory of the state are secularized theological concepts
not only because of their historical developmentin which they were trans-
ferred from theology to the theory of the state, whereby, for example, the
omnipotent God became the omnipotent lawgiver (PT, 36). In the second
place, Schmitt explores legal hermeneutics, that is, the dialectic of the gen-
eral rule and the particular case, the law and the instances to which it applies.
In the third place, Schmitt develops a thesis about the construction and pre-
rogatives of sovereignty as the seat of legitimacy in the modern state. What
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690 Political Theory 40(6)
resonates most in contemporary debates about political theology are neither
the first nor the second of Schmitts theses, but rather the third, that is, his
theory of sovereignty as the exception. It is as if the political Zeitgeist of our
times has given new life to the famous opening lines of Schmitts Political
Theology, Sovereign is he who decides on the exception (PT, 5).
The concept of sovereignty has an internal as well as an external dimen-
sion: considered as a norm in domestic law, it refers to the highest source of
authority in a legal regime, and significant aspects of Schmitts work are
dedicated to analyzing the constitutional dilemmas of legality and legitimacy
that surround sovereignty.
4
Sovereignty also has an international dimension: after the Treaty of
Westphalia (1648) that concluded Europes wars of religion, it means that a
unitary political entity, whether a monarchy or a democracy, is recognized by
other political units as an equal and interacts with them on the basis of certain
norms, laws and treaties. In the postSeptember 11th, 2001 world, many
scholars have turned to this dimension of Schmitts writings on external sov-
ereignty and international law.
5
While some see in this new twenty-first cen-
tury the spread and emergence of cosmopolitan norms, others argue that it is
the bid for power of the American imperium or of the sole rogue superpower
that drives the international conflicts of our age.
Thus, in an article entitled A Just War? Or Just a War?: Schmitt, Habermas
and the Cosmopolitan Orthodoxy, William Rasch concluded with these
astonishing claims:
Call it dialectic of enlightenment, if you like, or just perverse irony, but
the resurrected spirit of that old Catholic, Carl Schmitt, is certainly
one of the Heines [meaning Heinrich HeineSB] of the present who
fight the completion of our contemporary Geistes Bastille, the mono-
lithic cosmopolitan law envisaged by Habermas. . . . On one hand, in
the name of perpetual peace, Habermas advocated the perpetual war of
gentle compulsion and continuous police actions; on the other hand,
in the name of belligerent, homogenous [sic SB] particularity, Schmitt
urges on us the universal value and possibility of politics as both affir-
mation and opposition. Thus, Schmitt, the nationalist, might also be
Schmitt, the international multiculturalist, who offers those who
obstinately wish to resist the West a theoretical foothold.
6
(first
emphasis in original; second emphasis added)
Published in 2000, Raschs article preceded the attacks on the World Trade
Center and the Pentagon of September 11th; the Afghan War; the war on Iraq;
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Benhabib 691
Abu Ghraib, Guantanamo and much else. While Raschs judgment that Schmitt
could be named one of the Heines of the moment, is certainly an instance of
perverse irony (Rasch, 1683), nevertheless, he was correct in sniffing the
odor of the times, which would come to identify cosmopolitanism with
global imperialism and, in particular, with the project of U.S. world hegemony.
Carl Schmitt has since then, and even earlier, become the indispensable refer-
ence point for all those who want to unveil the hypocrisies, inadequacies, and
maybe even bankruptcy, of liberal democratic politics, at home and abroad.
7
My goal in this article is to go to the root of Carl Schmitts critique of
liberal international law as being a ruse to hide hegemonic aspirations by
considering his neglected discussion of Kants concept of just war in The
Nomos of the Earth in the International Law of Jus Publicum Europaeum.
8

Contrary to what Rasch asserts, we will see that Schmitt is no innocent
defender of multiculturalism resisting the Western hegemon. He is an author-
itarian state theorist who wishes war to remain the sole prerogative of sover-
eign nation-states and who fights against international law restrictions on
aggressive war by denouncing the League of Nations, the KelloggBriand
pact and Woodrow Wilson for criminalizing war.
After examining the multiple layers at which Schmitts argument in his
Nomos of the Earth proceeds (II and III), I focus on a close reading of his
critique of Kants concept of the unjust enemy (hostis injustus) in the
Metaphysical Elements of Justice (1799). Schmitt is not wrong in claiming
that Kants discussion presents a profound moral argument to limit the jus in
bello (right in war) but that it also contains certain slippages and ambiguities
that may justify humanitarian interventions such as to enable the building of
a liberal international order (IV). My approach is both criticalinterpretive
and reconstructive, in that I wish to engage Schmitts reading of Kant to draw
out broader issues pertaining to international law and sovereignty.
In conclusion (V), I turn to contemporary discussions of these issues,
also raging in the U.S. Supreme Court, and argue that Schmitt, as well as
left critics of U.S. hegemony, misconstrue the relation between interna-
tional law and democratic sovereignty as if this were a model of topdown
domination. As conflictual as the relationship between international norms
and democratic sovereignty can be, it needs to be interpreted as one of
mediations and not one of domination.
II. Schmitts Nomos of the Earth
The Nomos of the Earth is a late work of Schmitts, first published in
1950, although some of the articles concerning these themes had appeared
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throughout the 1940s.
9
It is a magisterial work that establishes Schmitts
significance as an expert of international law. The text moves at three levels
at once, which we may characterize as the ontological, the real-political,
and the personal. At the ontological level, Schmitt is establishing a link
between Ordnung and Ortung (order and orientation), between the law
as nomos and the earth. Nomos is broader in meaning than just law and is
usually rendered as the commonality of the polis, the content of the con-
stitution, laws and customs.
10
In terms that cannot fail to remind one of
Heidegger, Schmitt writes of die elementaren Ordnungen ihres terres-
trischen Daseins (the elementary orders of mans terrestrial being), and he
adds, We seek to understand the normative order of the earth (Nomos, 6;
39). The German, however, speaks of a Sinnreich der Erde, possibly bet-
ter translated as the domain of meaning of the earth.
These ontological theses about law as nomos, the earth and its meaning,
order and orientation have their sources in an old and ongoing debate that
Schmitt was involved in with neo-Kantians such as Hans Kelsen.
11
As Raphael
Gross explains in an illuminating article, Schmitt adopted the concept of
nomos, inherited from the political theology of German Protestantism, such
as advocated by Wilhelm Stapel, who in turn had developed this concept as
part of his theological confrontation with Judaism.
12
What is the source of the
authority of law: human will or reason? Or some more fundamental order that
precedes human acts of law-giving? Does the law express principles of human
justice, or is the law grounded in some other order that precedes but neverthe-
less constrains human justice? Schmitt is not a natural-rights theorist, and he
cannot respond to Kelsenian positivism by invoking natural law; rather, he
appeals to an order of the earth, and of place (Raum), as opposed to posi-
tivist understandings of law that see law as covering both earth and sea and as
emerging whenever the will of one must be brought under a law of freedom
to coexist with the will of the other, to use a Kantian locution. Instead, for
him the German concept of law, Gesetz, is deeply implicated in the theologi-
cal opposition of Jewish law and Christian grace. (Nomos, 39; 70).
13
At the level of Realpolitik, the second half of Schmitts work engages in a
ruthless, but not always unjustified, polemic against Anglo-Saxon and par-
ticularly American attempts to develop a new law of nations. The modern
state formation in the West begins with the territorialization of space. The
enclosure of a particular portion of the earth and its demarcation from others
through the creation of protected boundariesand the presumption that all
that lies within these boundaries, whether animate or inanimate, belongs
under the dominion of the sovereignis central to the territorially bounded
system of states in Western modernity. In this Westphalian model, territorial
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integrity and a unified jurisdictional authority are two sides of the same coin;
protecting territorial integrity is the obverse side of the power of the state to
assert its jurisdictional authority.
The modern absolutist states of western Europe were governed by the Jus
Publicum Europaeum as their international law. However, this model was
unstable from its inception, or in Stephen Krasners famous phrase, sover-
eignty is hypocrisy.
14
The discovery of the Americas in the fifteenth century,
the imperialist ventures into India and China, the struggle for domination
over the Indian Ocean and the nineteenth-century colonization of Africa
destroyed this form of state sovereignty and international law by chipping
away at its peripheries.
15
Not only the Wests confrontation with other conti-
nents, but the question whether the non-Christian Ottoman Empire belonged
to the Jus Publicum Europaeum, showed the limitations of this order.
Though Schmitt himself is not far from idealizing this Westphalian moment
in the evolution of the law of the earth, his own account documents its
inherent limits and eventual dissolution. The deterritorialization of modern
states goes hand in hand with their transformation from early bourgeois
republics into European empires, be they those of England, France, Spain,
Portugal, Belgium, the Netherlands, or Italy.
16
Accompanying these developments have been attempts to formulate a new
law of nations to succeed the Jus Publicum Europaeum. Foremost among
these were the failed League of Nations efforts to devise a new legal spatial
order between 1919 and 1939 (Nomos, 225; 25758). For Schmitt, the deci-
sive problem in this periodeven more than that of the coloniesis the rela-
tionship of the United States to the League. As he puts it quite bitingly,
Once the priority of the Monroe doctrinethe traditional principle of
Western Hemisphere isolation, with its wide-ranging interpretations
was asserted in Geneva, the League abandoned any serious attempt to
solve the most important problem, namely the relation between Europe
and the Western Hemisphere. Of course, the practical interpretation of the
ambiguous Monroe Doctrineits application in concrete cases, its deter-
mination of war and peace, its consequences for the question of inter-
allied debts and problem of reparationswas left solely to the United
States. . . . Whereas the Monroe doctrine forbade any League influence in
American affairs, the Leagues role in European affairs . . . was codeter-
mined by these American member states. (Nomos, 224; 25455)
In a turn of phrase that could have flown from Jacques Derridas pen,
Schmitt concludes: The United States was, thus, formally and decisively not
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694 Political Theory 40(6)
present in Geneva. But they were, as in all other matters, and hardly ineffec-
tively and very intensely present as well. There thus resulted an odd combina-
tion of official absence and effective presence, which defined the relationship
of America to the Geneva Convention and to Europe (Nomos, 22425, my
emphasis; I used my own translation here since the English version has been
somewhat abbreviated).
Schmitts diagnosis of American exceptionalismits absent presence
with respect to the League of Nations, and to international organizations
and international law in general, is quite accurate, and in the period between
the Gulf War of 1993 and the Iraq War of 2003 has found fresh and recep-
tive audiences. It is this ambivalent relationship of American understand-
ings of sovereignty to a new law of nations that is at the source of the
contemporary concerns of Supreme Court Justices, vis--vis international
law.
17
Indeed, the United States remains an absent presence, even today,
from the International Criminal Court.
While I find Schmitts commentary on the historical, geo-political, and
legal gyrations and inconsistencies of the United States as a world power
unobjectionable, we must also be clear that Schmitt critiques American
behavior not to offer a new law of nations but rather to undermine it alto-
gether by showing it to be based on hypocrisies. American hegemony may be
economically and militarily irresistible but it is by no means juridically justi-
fied in his eyes.
Schmitts personal interest in this matterand this is the third level men-
tioned aboveis to destroy the legitimacy of the emergent world order
between 1919 and 1939, and in particular the criminalization of war through
the doctrine that wars of aggression are legal crimes. With this argument,
Schmitt is not only trying to save the honor of Kaiser Wilhelm II who was
rendered a war criminal by the Allies as a result of the Versailles Treaty of
1919, but he is also trying to save his own honor, since he would refuse to
cooperate with the investigation of the Denazification Commission and would
have his own right to teach (venia legendi) revoked by the Allies after World
War II.
18
If the legal order that emerged in this period under the influence of
the League of Nations and the criminalization of aggressive war was based
upon juridical, moral, and geo-political hypocrisies and contradictions, then
how could the Nremberg legal order that resulted from the Third Reichs
defeat be anything but a continuation of this bankrupt order? It is in this con-
text that Schmitts attacks against the discriminating concept of war, and his
plea to restore the non-discriminating concept of war need to be evaluated,
although the preoccupation with these themes derive from his deeply seated
theoretical concerns and do not reflect motives of self-justification alone.
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III. The End of the Pre-Modern
Doctrine of Just War
Schmitts eulogy to the Jus Publicum Europaeum in the first part of Nomos
emphasizes that this system neutralizes war by moving away from the medi-
eval notion of just war. In this transformation the enemy is no longer
viewed as inimicus but as justi hostes (categories which also return in
Schmitts concept of the political).
19
The enemy is not one with whom one
has religious, moral or existential conflictsan inimicusbut one with
whom it is possible to have potential or actual conflicts of interests.
Schmitt, however, is never consistent in his attempts to distinguish hostis
from inimicus, the public from the private enemy, because of his contention
that the enemy is the one with whom one has the most intense kind of con-
flict. In the final analysis, this distinction leads back to his racially grounded
theory of the people as a Volksgemeinschaft. As Karl Lwith, one of the earli-
est and most penetrating observers of Carl Schmitt, notes:
On the one hand he must seize upon a substantiality which no longer
befits his own historical situation and from which enmity derives sub-
stantive content; on the other hand, as a modern, postromantic human
who thinks far too occasionally to be able to believe in divinely willed
and naturally given distinctions, he must again relativize the substan-
tial presuppositions and shift his whole fundamental distinction into a
formal existentiality. As a consequence, his decisive formulations of
the friend-enemy distinction shift indecisively back and forth between
a substantial and an occasional understanding of enmity and friend-
ship, so that we do not know whether what is at stake here is those of
like kind and those of different kind, or whether instead what is at stake
is simply those whoeither with one or against oneare occasionally
allied. Upon the shifting ground of this ambiguity Schmitt builds up
his concept of the political, whose essential feature is no longer life in
the polis but instead is simply the jus belli.
20
On a more positive level, Schmitts reconstruction of the eventual decline
of just war, used by Christian theologians in their encounter with the New
World, is prescient (Nomos, 69ff.; 102ff.), and anticipates some of the best
work done by contemporary scholars of post-colonial theory.
21
But matters
are never simple with Schmitt, since he not only intends to criticize the medi-
eval doctrine of just war but to denounce altogether the discriminating con-
cept of war that would outlaw wars of aggression.
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696 Political Theory 40(6)
Based on relations between states, writes Schmitt,
post-medieval European international law from the 16th to the 20th
century sought to repress the justa causa. The formal reference point
for determining just war no longer was the Churchs authority in inter-
national law, but rather the equal sovereignty of states. Instead of justa
causa, international law among states was based on justus hostis. Any
war between states, between equal sovereigns, was legitimate. Given
this juridical formalization, a rationalization and humanizationa
bracketingof war was achieved for 200 years. (Nomos, 91; 121)
This concept of war is based upon the separation of moraltheological
from juridicalpolitical premises, and the separation of justa causa,
grounded in moral arguments and natural law, from the typically juridical
formal question of justus hostis, distinguished from the criminal, i.e. from
becoming the object of punitive action (Nomos, 91; 121, emphasis in origi-
nal). Schmitt also names this the neutralized concept of war: All inter-
state wars upon European soil, which are carried out through the militarily
organized armies of states recognized by European law of nations
(Vlkerrecht), are just in the sense of the European law of nations of this
inter-statal period (Nomos, 115; 143, emphasis in original).
The international law of 1918 to 1939, by contrast, undermines these dis-
tinctions by outlawing wars of aggression, thereby also eliminating the dis-
tinction between hostis and inimicus, the public versus the private enemy.
Wars opposed to this new legal order become unjust wars, and the enemy
becomes a criminala criminal against humanity. Kant, the author of
Perpetual Peace, already anticipated something of these developments in
his confused concept of the unjust enemy.
IV. The Critique of Kant
No war of independent states against each other can be a punitive war (bellum
punitivum), writes Kant in his late work The Metaphysical Elements of Justice
of 1797.
22
In the state of nature, states possess both a right to go to war as well
as the right to retaliate for offenses committed against them (Kant, MEJ, 56,
116). In this condition, there is no judge to arbitrate among states, nor is there a
superior in relation to them,
23
and precisely because of this Kant concludes that
nor, again, can any war be either a war of extermination (bellum inter-
necinum) or of subjugation (bellum subjugatorium), which would be
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the moral annihilation of a state. . . . The reason there cannot be a war
of subjugation . . . is rather the idea that the right of nations involves
only the concept of an antagonism in accordance with principles of
outer freedom by which each can preserve what belongs to it, but not
a way of acquiring, by which one states increase of power could
threaten others. (Kant, MEJ, 57, 117)
One can demand supplies and contributions from a defeated enemy, but
one cannot plunder its people, nor subjugate them, nor rob them of their
civil freedom (MEJ, 118). So great is Kants attempt to circumscribe war in
accordance with moral precepts respecting the dignity of the person and the
moral status of peoples, that he even prohibits states from using their subjects
in such a manner as would make them unfit to be citizens once hostilities
are concluded (MEJ, 117). This includes using people as spies, assassins,
poisoners, snipers and for spreading false rumors. Wars must be concluded by
treaties and prisoners must be exchanged without ransom.
It is clear that Kant is at pains to limit both the right to go to war (jus ad
bellum) and the right within war (jus in bello) in as much as possible to accord
with the principle of treating human beings as ends and never only as means.
Schmitt also praises Kants greatness and humanity (Nomos, 142; 170), but
is greatly puzzled by the turn Kants argument then takes in paragraph 60 of
The Metaphysical Elements of Justice, when Kant introduces the concept of an
unjust enemy [der ungerechte Feind] (MEJ, 60, 118). Whereas the idea of
a non-punitive war among states is, in Schmitts terms, a non-discriminatory
concept of war, with the introduction of the concept of an unjust enemy,
Kants thought threatens to regress back to viewing war as justa causa and to
see the enemy, the hostis, as a criminal. But who is the unjust enemy,
against whom the right of those who are threatened by him or who feel threat-
ened by him have no limits?
24
(MEJ, 60, 118; Nomos, 141; 169).
Kants answer is that this is an enemy whose publicly expressed will
(whether by word or deed) reveals a maxim by which, if it were made a uni-
versal rule, any condition of peace among nations would be impossible and
instead a state of nature would be perpetuated (MEJ, 60, 119, my empha-
sis). As examples of this maxim, Kant only cites violations of public contracts,
but it is clear that he has a much more expanded notion of what this might
involve. And this is the source of Schmitts anxiety. Schmitt confidently
asserts that it is certainly not the opponent who has broken the rules of war
and has violated the right to war by perpetuating crimes and atrocities. [I
must add that I am not sure about how Schmitt arrives at this through a reading
of Kant but I will not pursue this point further here.] If freedom is threatened,
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698 Political Theory 40(6)
then by whom, and who will concretely decide? asks Schmitt. All this
remains open. . . . . And sounds like the old doctrine of just war . . . (Nomos,
141; 169).
As a jurist, Schmitt is right to be concerned with the distinction between
word and deed and to question whether words alone would suffice to make
one an unjust enemy. Is ideological propaganda by a state that supposedly
contradicts the established international order sufficient to declare it an
unjust enemy, for example? Think here of contemporary Iran. Is not Kants
principle dangerously expansive and vague in that it seems to eliminate dis-
tinctions between wars of words and wars of deeds?
There is a more direct way of introducing some content to Kants defini-
tion and this would involve reading this principle in the light of Kants earlier
work on Perpetual Peace of 1795. An unjust enemy could be interpreted as
one who would reject the three definitive, as opposed to provisional, princi-
ples of Perpetual Peace. These are: The Civil Constitution of Every State
should be Republican; The Law of Nations shall be founded on a Federation
of Free States; and The Law of World Citizenship Shall be Limited to
Conditions of Universal Hospitality (Kant [1795] 1923, 43446; 1994,
99108).
25
Any state that refuses to enter into a lawful condition with other
states, by explicitly refusing to acknowledge these principles, remains in a
state of nature, that is, a state of hostility. That there is textual evidence
for my reading is provided by two further arguments of Kants.
First, since the freedom of all nations would be threatened by those who
deny these principles, other nations can wage war against them but cannot
make them disappear from the earth since this would be injustice against its
people, which cannot lose its original right to unite itself into a common-
wealth, though it can be made to adopt a new constitution that by its nature
will be unfavorable to the inclination for war (MEJ, 60, 119). A people
can be made to adopt a new constitution; in other words, regime change to
make the unjust enemy respect the principles of perpetual peace is permissi-
ble. Schmitt is not wrong then in seeing in Kants text the beginnings of a
vision of a liberal world order within which the range of regimes that would
be considered legitimate is narrowed to those that would respect the laws of
nations, defined through the principles of perpetual peace. But this answer
raises further difficulties: Are only republics to be tolerated in the new world
order then? How about empires such as the Chinese, for which Kant has some
kind words in other texts? Or non-sedentary and nomadic peoples who may
not want to be subjugated by European powers and whom Kant praises in
other writings? How extensive and intensive are the principles of perpetual
peace? Questions remain.
26
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Benhabib 699
Second, in the paragraphs following his discussion of the unjust enemy,
Kant returns to his idea of an association of states (ein Vlkerbund) that
would renounce the state of nature prevailing among states, and thereby also
give up the unilateral right to go to war (MEJ, 61, 119). As is well known,
Kant finds it quite difficult to articulate the exact political form of such an
association; he rejects the idea of a world-state; and wishes to defend the prin-
ciples of a world-republic and ends up with an association of several states to
preserve peace, which can then be called a permanent congress of states,
which each neighboring state is at liberty to join (ibid., my emphasis). May
be then the unjust enemy is the one who refuses to join such an association
altogether; or who wishes to exit once having joined, or may be even a group
of states who form a competing association based on different principles, thus
hindering the development of world-society towards a condition of law.
I think that at least two readings of Kant are possible on these issues: on
one reading, the unjust enemy would be the one who would reject all three
definitive articles of perpetual peace as a package; on a second reading, some
states may reject some versions of Articles 1, 2, and 3 but may accept some
form of the law of nations and a peaceful federation.
27
In particular, not all
nations may be willing or able to adopt a republican constitution. Should
they also to be considered unjust enemies?
It is hard to deny that in the obscurity of these passages we encounter some
of the paradoxes of a liberal law of nations in the Kantian sense. First and
foremost, nations must of their own accord wish to enter a pacific federa-
tion, that is, at a minimum, they must establish a condition of lawful coexis-
tence with each other such that conflicts can be adjudicated and the option of
war is severely limitedeven if not wholly eliminated. Schmitt, unlike Kant,
doubts there can ever be such a condition of legality among nations, based on
the authority of a neutral judge. For him, the political governs human actions
all the way down. Thus, rather than try and eliminate war among nations or
subject it to the judgment of only seemingly neutral instances, Schmitt recom-
mends that one accept the inevitability of war among sovereign states and treat
the enemy not as a criminal but as a worthy opponent. For Schmitt, interstate
wars are more like duels than wars. But Kant is more radical here: he sees wars
not as duels but as inflicting most harm on ordinary people who, unless they
live in a republic, are neither able to resist serving in the army nor resist losing
life and limb for the glory of sovereigns.
Although much of this may sound arcane to our ears, and many historical
nuances may escape us,
28
we should note that Schmitt does not mince his words
and sees Kant as initiating doctrinal changes that will eventually undermine the
non-discriminatory concept of war. But, just as obviously, it was possible for
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700 Political Theory 40(6)
Kant, he writes, as it was earlier for theologians, to use a philosophical ethic
to deny the concept of a justus hostis, and by introducing discriminatory war, to
destroy the work of jurists of the jus publicum Europaeum (Nomos, 143; 171).
These changes will lead to the outlawing of wars of aggression through the
KelloggBriand Pact of 1928 and the extension of international law to include
not only the crime of war but also the category of crimes against humanity.
Already in Kants injunctions against using human beings as spies, snipers and
propagandists, some sense of human dignity that places limits on what can be
done with and to human beings in war is evident.
Although all his criticisms of Kant are consistent with Schmitts claim that
the political is the most intense kind of human conflict, and that therefore it
cannot be made subservient to the legal, religious, moral or aesthetic domains,
there is also a dimension of personal bitterness that accompanies many of his
assertions. Schmitt sees the Nremberg and Tokyo trials as a form of
Siegerjustiz, victors justice, and illegitimate bootstrappingNullum cri-
men, nulla poena sine lege (No crime, no punishment without the law) is his
judgment. Or, as he puts it more caustically with regards to the Holocaust:
Was it a crime against humanity? Is there such a thing as a crime against
love?
29
; and further, Genocidethe murder of peoplesa touching con-
cept; I have experienced an example of it myself: the extermination of the
German-Prussian civil service in 1945. Finally: There are crimes against
humanity and crimes for humanity. Crimes against humanity are committed
by the Germans. Crimes for humanity are perpetrated on the Germans.
Schmitt is not simply the theorist of agonistic and contentious politics but
the theorist of the rights of states to conduct war for their own preservation
and also the theorist who rejects concepts such as human rights and crimes
against humanity as being moralizing glosses on superpower politics.
30
In Kants Idea of Perpetual Peace: At Two Hundred Years Historical
Remove, Jrgen Habermas discusses Schmitts critique of Kant. The poli-
tics of a world organization, writes Habermas, that takes its inspiration from
Kants idea of perpetual peace and is directed to the creation of a cosmopolitan
order, harkens to the same logic, according to Schmitt: its pan-interventionism
would inevitably lead to pan-criminalization, and hence the perversion of the
goal it is supposed to serve.
31
In particular, Habermas disputes Schmitts
claim that the politics of human rights leads to wars which under the guise of
police actions take on a moral character; and second, that this moralization
brands opponents as enemies, and the resulting criminalization for the first
time gives inhumanity a completely free hand (Habermas, KIPP, 18889).
Undoubtedly, the last two decades since the end of the Cold War and the
fall of the Berlin Wall in 1989 have been some of the most confusing and
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Benhabib 701
bewildering in terms of international alliances and world politics, and strange
bedfellows have been created in the process. We still hear echoes of this
Schmittian critique that the first Gulf War, the NATO intervention in Kosovo,
and the Afghanistan and Iraq Wars conducted by the United States were
instances of the moralization of war, that declared enemies to be crimi-
nals.
32
Certainly, contemporary Left-Schmittians who see each conflict in
terms of the bid to global empire of a single hegemon have an easier time
than the rest of us as public intellectuals and citizens, whose moral intuitions
and political judgments on these issues have often been confused and conflic-
tual, but not for lack of clear thinking or information. As Hannah Arendt
observed in quite a different context, it is the mark of ideological thinking to
have a key to unlock every riddle
33
; in the absence of such a key, we have to
learn the art of making hard distinctions, such as may be yes to the original
U.S. action against the Taliban but no to the Second Iraq War; may be yes
to Kosovo, even in the absence of a UN Security Council vote; may be no
to Libya even with a Security Council resolution etc. Making such judgments
are the burden of our times.
In conclusion, I wish to explore new ways of thinking about international
law and cosmopolitan human rights norms that give the lie to the qualms of
some on the Left that international law yields a Geistes Bastillean intel-
lectual or spiritual prison. There are many dimensions to Schmitts discussion
of external sovereignty and international law, but I would like to focus on one
alone. Are human rights treaties that limit sovereignty in the postWorld War
II period moralizing impositions upon the will of democratic peoples? How
can we conceptualize the relationship between international human rights
norms to democratic sovereignty? There is an important debate among liberal
and democratic thinkers on these issues and Schmitts thought is of little
guidance in helping us think through our contemporary dilemmas.
Varieties of Sovereigntism
One of the most important developments in international law in the post
World War II period is, in addition to the criminalization of wars of aggres-
sion, the normative limitations placed on state sovereignty through the
spread of human rights norms. I will refer to the many treaties that have been
concluded since the Universal Declaration of Human Rights of 1948 as cos-
mopolitan human rights treaties.
34
These treaties confirm the status of
humans as rights-bearing beings not in virtue of their national citizenship but
in virtue of their human personality, although such rights can be meaning-
fully exercised only in the context of specific polities. It is quite correct to
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702 Political Theory 40(6)
see in these developments the flourishing of certain normative principles
forcefully articulated by Kant.
Schmitt is just as cynical about limitations placed on internal sovereignty
as he is about limitations imposed on external sovereignty. By not distin-
guishing between human rights norms limiting internal, domestic sovereignty
and norms prohibiting wars of aggression, limiting external sovereignty, pro-
gressive thinkers who wish to use Schmitts thought to critique the hypocri-
sies of the current international order are risking throwing the baby out with
the bathwater. In conclusion, I want to briefly argue that the model of a hege-
monic imposition of cosmopolitan norms on self-determining polities misun-
derstands the contemporary world of treaties and states institutionally as well
as normatively.
The normative objections raised by sovereigntists against recent legal
developments can be separated into the nationalist and democratic variants.
The nationalist variant traces the laws legitimacy to the self-determination
of a discrete, clearly bounded nation whose law expresses and binds its col-
lective will alone.
35
The democratic variant says that laws cannot be consid-
ered legitimate unless a self-determining people can see itself both as the
author and the subject of its laws. For the democratic sovereigntist it is not
paramount that the law express the will of a nation, of an ethnos, but that
there be clear and recognized public procedures for how laws are formulated
and in whose name they are enacted and how far their jurisdiction extends in
the name of a demos.
The democratic sovereigntist argument has many adherents, among them
Thomas Nagel, Quentin Skinner, Michael Walzer and Michael Sandel.
36
One
way to introduce some clarity into the debate between cosmopolitans and sov-
ereigntists is to focus on a family of global norms which enjoys widespread
support. These are international human rights norms, originating with the
Universal Declaration of Human Rights of 1948. A democratic sovereigntist
such as Thomas Nagel and a cosmopolitan such as Habermas both agree
thatpace Schmittin addition to international law concerning the prohibi-
tion and conduct of war among states, human rights constitute the foundations
of the postWorld War II international system.
37
The spread of international
law need not take the form of a social contract for the formation of a world-
state that would transcend the political autonomy of existing states.
38
Instead,
as Habermas argues, Today any conceptualization of a juridification of world
politics must take as its starting point individuals and states as the two catego-
ries of founding subjects of a world constitution (ibid., 449, emphasis in
original). So the question is not whether one can move to a world without
competing states but whether there are modes of mediating international
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Benhabib 703
norms with nationaldemocratic ones that would not involve subordinating
the national to the supranational and would safeguard legitimate plurality in
the interpretation, adjudication and application of human rights norms.
I would like to distinguish among three different, but mutually supporting,
models that try to conceptualize this mediatization between cosmopolitan
human rights norms and democratic processes of will and opinion formation.
Such mediatization can take place through jurisgenerative processes of
democratic iterations that interpret and contextualize the national in the
light of the cosmopolitan, giving both sets of norms new and unexpected
hermeneutic context. A second form of mediatization involves the institu-
tional impact of international human rights covenants on states subscribing to
them; and a third form pertains to the impact of such treaties on courts and
adjudication. My argument is that many left critics of cosmopolitanism
ignore the actual workings of the system of international law and view this
new legal order as if it were a smooth command structure, but it is not. The
challenge today is to develop an institutional, normative and conceptual
model for articulating the universe of this new law of nations.
39
Jurisgenerative Mediation of International
Norms and Democratic Sovereignty
By jurisgenerativity, a term originally suggested by Robert Cover,
40
I under-
stand the laws capacity to create a normative universe of meaning that can
often escape the provenance of formal lawmaking.
41
Laws acquire mean-
ing in that they are interpreted within the context of significations that they
themselves cannot control. There can be no rules without interpretation; rules
can only be followed insofar as they are interpreted.
42
But there are also no
rules that can control the varieties of interpretation they can be subject to
within all different hermeneutical contexts. Laws normativity does not con-
sist in its grounds of formal validity, that is, its legality alone, though this is
crucial. Law can also structure an extra-legal normative universe by develop-
ing new vocabularies for public claim-making, by encouraging new forms of
subjectivity to engage with the public sphere and by interjecting existing
relations of power with anticipations of justice to come. Law anticipates
forms of justice in the future to come. Law is not simply an instrument of
domination and a method of coercion; the force of law (to use a phrase of
Jacques Derridas)
43
involves anticipations of justice to come which it can
never quite fulfill but which it always points toward.
Democratic sovereigntists ignore that international human rights norms can
empower citizens in democracies by creating new vocabularies for claim-making
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704 Political Theory 40(6)
as well as by opening new channels of mobilization for civil society actors who
then become part of transnational networks of rights activism and hegemonic
resistance.
44
Human rights norms require interpretation and vernacularization;
they cannot just be imposed by legal elites and judges upon recalcitrant peoples;
rather, they must become elements in the public culture of democratic peoples
through their own processes of interpretation, articulation and iteration.
Such contextualization, in addition to being subject to various legal tradi-
tions in different countries, attains democratic legitimacy insofar as it is car-
ried out through the interaction of legal and political institutions within free
public spaces in civil society. When such rights principles are appropriated by
people as their own, they lose their parochialism as well as the suspicion of
western paternalism often associated with them. I call such processes of
appropriation democratic iterations.
45
Institutionalist Mediation of International Norms
A more empirical and institutional approach to analyzing the impact of
human rights norms on signatory states has been provided by Beth Simmons.
In her influential work, Simmons looks at empirical case studies to analyze
the impact of states ratifications of various human rights treaties on domes-
tic adherence to human rights norms. Simmons observes that the more
interesting cases . . . are those in which governments ratify an international
human rights agreement, yet make no move to implement or comply with it.
Why should a ratified treaty make a difference in such cases?
46
One reason
may be that since treaties constitute law in some jurisdictions, they could
strengthen civil rights litigation. Yet it is more challenging when ratified trea-
ties enable citizens mobilization. Simmons focuses on non-democratic
states to argue that ratification injects a new model of rights into domestic
discourse, potentially altering expectations of domestic groups and encour-
aging them to imagine themselves as entitled to forms of official respect
(Simmons, 445). Simmons presents an analysis of the impact of the ICCPR
on civil liberties and religious freedoms across several countries. These
results suggest, she writes, a modest but important conclusion: interna-
tional treaty commitments quite likely have made a positive contribution to
civil rights practices in many countries around the world (Simmons, 480).
Adjudicative Models of Mediating International Norms
Yet a further approach is developed by Alec Stone Sweets work on the
emergence of a cosmopolitan order through the interplay of legislation and
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Benhabib 705
adjudication between the European Court of Human Rights, the European
Court of Justice and national courts within the ever-expanding European
legal sphere. Stone Sweet writes:
A cosmopolitan legal order [CLO] is a transnational legal system in
which all public officials bear the obligation to fulfill the fundamental
rights of every person within their jurisdiction, without respect to
nationality or citizenship. In Europe, a CLO has emerged with the
incorporation of the European Convention on Human Rights [ECHR]
into national law. The system is governed by a decentralized sovereign:
a community of courts whose activities are coordinated through the
rulings of the European Court of Human Rights.
47
Human rights norms assume flesh and blood through democratic itera-
tions, as well through institutional incorporation via states treaty obligations
into civil society, and also through the interplay of adjudication and legisla-
tion. The democratic sovereigntists fears that cosmopolitan human rights
norms must override democratic legislation is unfounded, because the very
interpretation and implementation of human rights norms are radically
dependent upon the democratic will formation of the demos, which is, of
course, not to say that there can be no conflict either of interpretation or
implementation.
Conclusion
We have entered a new stage in the development of global civil society in
which the relationship between state sovereignty and various human rights
regimes generate dangers of increasing interventionism but also paradoxi-
cally create spaces for cascading forms of democratic iteration across bor-
ders. It is the perplexities of this new legal and political landscape that send
many critics on the left and the right to Carl Schmitts work. Yet Schmitts
work, as historically rich and conceptually challenging as it may be, is not
easily extricated from its ideological moorings in his own political entangle-
ments with the Nazi regime. Nor was Schmitt wrong to see in Kants doctrine
of the unjust enemy certain ambiguities and obscurities that may lead to a
coercive regime of liberal cosmopolitanism. Yet the evolution of human
rights norms in the postWorld War II period ushers in a new phase of inter-
national law, which cannot be interpreted as a coercive regime of neo-liberal
hegemonic intentions. Critics who do so fail to understand the structure of
mediations between international law and democratic sovereignty that are
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706 Political Theory 40(6)
created by these developments. In conclusion, I have briefly suggested three
different but complementary approaches to understanding such mediations.
Certainly, superpower hypocrisies in upholding or violating norms of aggres-
sive war cannot be prevented by a regime of the spread of human rights
norms alone, but by distinguishing between these two aspects of the interna-
tional legal order, citizens become more empowered to criticize their own
governments. Carl Schmitts legacy, in contrast, disempowers citizens by
giving the state the monopoly of interpretation over its own strategic inter-
ests of survival in the multiversum of states.
Acknowledgments
I thank William Scheuerman, John McCormick, Andreas Kalyvas, Thomas McCarthy,
Adam Tooze, Stefan Eich and the reviewers and editors of Political Theory for com-
ments on an earlier draft of this article.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.
Funding
A Guggenheim Fellowship and a stay at New York University Law Schools Straus
Institute for the Advanced Study of Law and Justice in spring 2012 made its comple-
tion possible.
Notes
1. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty,
trans. with an Introduction by George Schwab (Chicago: University of Chicago
Press, 1985), based on the revised edition of 1934 (PT hereafter).
2. Carl Schmitt, The Concept of the Political, trans. and with an introduction by
George Schwab, expanded edition with Leo Strausss Notes on Schmitts Essay
(Chicago: University of Chicago Press, 1996); hereafter referred to as TCP; Carl
Schmitt, Crisis of Parliamentary Democracy, trans. and with an introduction by
Ellen Kennedy (Cambridge, MA: MIT Press, 1988); referred to as TCPD.
3. Otto Kirchheimer, Remarks on Carl Schmitts Legality and Legitimacy, in
The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto
Kirchheimer, ed. William Scheuerman (Berkeley: University of California Press,
1996), 6498. On the influence of Carl Schmitt on Walter Benjamin who wanted
to dedicate his doctoral dissertation on German baroque drama to Schmitt,
see Richard Wolin, Between Proust and Zohar: Walter Benjamins Arcades
Project, in The Frankfurt School Revisited and other Essays on Politics and
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Benhabib 707
Society (London: Routledge, 2006), 2145; on Hans Morgenthau and Carl
Schmitt, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and
Fall of International Law 18701960 (Cambridge, UK: Cambridge University
Press, 2002), 41340; William Scheuerman, Carl Schmitt and Hans Morgen-
thau: Realism and Beyond, in Realism Reconsidered: The Legacy of Hans.
J. Morgenthau in International Relations, ed. Michael C. Williams (Oxford:
Oxford University Press, 2007), 6292; on Leo Strauss and Carl Schmitt, see
Leo Strauss, Notes on Carl Schmitt, The Concept of the Political, in Schmitt,
TCP, 81109, and Heinrich Meier, Carl Schmitt, Leo Strauss und Der Begriff
des Politischen (Stuttgart: J. B. Metzler Verlag, 1998); Chantal Mouffe, The
Challenge of Carl Schmitt (London: Verso, 1999); Chantal Mouffe and Ernesto
Laclau, Hegemony and Social Strategy: Towards a Radical Democratic Politics
(London: Verso, 1986; 2nd ed., 2001).
4. Carl Schmitts Verfassungslehre (Berlin: Duncker & Humblot, 1928) in: J. Seitzer,
Constitutional Theory (Durham: Duke University Press, 2008); and special sec-
tion Carl Schmitts Constitutional Theory, Constellations 18, no. 3 (September
2011).
5. Cf. the recent volume, Spatiality, Sovereignty and Carl Schmitt. Geographies of
the Nomos, ed. Stephen Legg (London: Routledge, 2011).
6. William Rasch, A Just War or Just a War?: Schmitt, Habermas and the Cosmo-
politan Orthodoxy, Cardozo Law Review 21 (19992000): 166584, here, 1683.
7. A Rezeptionsgeschichte of the Schmitt revival on both sides of the Atlantic would
be a book in itself, but it appears to have started with Italian Leftists in the 1970s
who, at the height of the violence of the Red Brigades, were unsatisfied that there
was no theory of the state and of violence in Marxism. This interest then jumped
over to the United States, and principally to the journal Telos, which started pub-
lishing articles and translations by Gary Ulmen and Joseph Benderskythe rest,
as they say, is history. See Paul Piccone and Gary Ulmen, Introduction to Carl
Schmitt, Telos 72 (Summer 1987); this was preceded by a controversial article
by Ellen Kennedy, Carl Schmitt and the Frankfurt School, Telos 71 (Spring
1987): 3766, with responses by Martin Jay, Alfons Sollner, and Ulrich Preuss.
Tracy B. Strong gives a balanced overview in Foreword: Dimensions of the
New Debate Around Carl Schmitt, in TCP, ixxxix. In the twenty-odd years
since the publication of this material in Telos, the English-language literature
devoted to Schmitt has, in Richard Bernsteins words, turned into a virtual tsu-
nami. Richard J. Bernstein, The Aporias of Carl Schmitt, Constellations 18,
no. 3 (September 2011): 40331.
8. Carl Schmitt, Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum,
4th ed. (Berlin: Duncker & Humblot, 1997), 99; The Nomos of the Earth in the
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708 Political Theory 40(6)
International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New
York: Telos, 2003), 12829. All references in the text to this volume are cited as
Nomos, and followed first by page numbers of the German and then of the English
editions. I have consulted but not always used the English translation.
9. See Carl Schmitt, Vlkerrechtliche Groraumordnung mit Interventionsverbot
fur raumfremde Mchte, translated as The Groraum Order of International
Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution
to the Concept of Reich in International Law (1939-1941) in Carl Schmitt,
Writings on War, trans. and ed. Timothy Nunan (Cambridge, UK: Polity Press,
2011), 75125. It is impossible to render the German associations of concepts
such as Groraum and raumfremde Mchte accurately in English. The concept of
Raum does not simply mean space for Schmitt; it is related to Ort (place)
and Nomos. See footnotes 12 and 13 below. See also Benno Teschke, Deci-
sions and Indecisions: Political and Intellectual Receptions of Carl Schmitt,
New Left Review 67 (JanuaryFebruary 2011): 6195, on this period in Schmitts
writings, particularly 65ff.
10. Gerhard Nebel, Griechischer Ursprung, vol. I, Platon und die Polis (Wuppertal:
Marees Verlag, 1948), 22 and 39, as cited by G. L. Ulmen, Translators Intro-
duction, in Schmitt, Nomos, 20. The implications of this concept for Schmitts
contrast between Germanic and Semitic understandings of the law are too exten-
sive to be traced here. The Jews were the people who believed in law without an
orientation or attachment to the land, since they were diasporic and had no piece
of the earth they could call their own. See Raphael Gross, Carl Schmitt und die
Juden (Frankfurt: Suhrkamp, 2000), 60142.
11. See Dan Diner and Michael Stolleis, eds., Hans Kelsen and Carl Schmitt: A
Juxtaposition (Gerlingen: Bleicher, 1999).
12. Raphael Gross, Jewish Law and Christian GraceCarl Schmitts Critique of
Kelsen, in Diner and Stolleis, Hans Kelsen and Carl Schmitt, 10113, here
106. Cf. Wilhelm Stapel, Sechs Kapitel ber Christentum und Nationalsozialis-
mus (Hamburg: Hanseatische Verlagsanstalt, 1931), as cited by Gross, 112 fn. 2.
Schmitt cites Stapel approvingly in his attempts to translate nomos as Lebensge-
setz, (the law of life) but notes: It disturbs me that the word life which has
degenerated (entartet) into biologism, as well as the word law (Gesetz), which
under all circumstances needs to be avoided here, are still preserved in this trans-
lation (Nomos, 39; 70). Inexplicably, the English translation makes this passage
into a footnote that is not there in the German version (70 fn. 10).
13. Cf. Schmitt: Nevertheless, unlike the Greek word nomos, the German word
Gesetz is not an Urwort [primeval word]. It is deeply entangled in the theological
distinctions between (Jewish law) and (Christian) gracethe (Jewish) law and
the (Christian) gospel (Nomos, 39; 70 fn).
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Benhabib 709
14. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princ-
eton University Press, 1999).
15. For a masterful account, which is also a sustained critique of Schmitt, see
Koskenniemi, The Gentle Civilizer of Nations, 98179.
16. For further explorations of this theme, see S. Benhabib, Twilight of Sovereignty
or the Emergence of Cosmopolitan Norms: Rethinking Citizenship in Volatile
Times, Citizenship Studies 11, no. 1 (February 2007): 1936; now in Seyla Ben-
habib, Dignity in Adversity: Human Rights in Troubled Times (Cambridge, UK:
Polity, 2011), 94117.
17. This strange affinity between the theory and practice of American exceptionalism
and Schmitts political thought is well explored by Paul Kahn in Political Theol-
ogy: Four New Chapters on the Concept of Sovereignty (New York: Columbia
University Press, 2011). But Kahns methodology obscures Schmitts politics and
takes the bite out of some of his most outrageous theses. See below, footnote 30.
18. See W. Scheuerman, Carl Schmitt and the Nazis, German Politics and Society
23 (summer 1991): 7179; and W. Scheuerman, Carl Schmitt: The End of Law
(Lanham: Rowman & Littlefield, 1999); R. Mehring, Carl Schmitt: Aufstieg und
Fall (Munich: C.H. Beck, 2009).
19. For inconsistencies in Schmitts own usage, see Der Begriff des Politischen, Text
von 1932 mit einem Vorwort und drei Corollarien, 7th ed. (Berlin: Duncker &
Humblot, [1932] 2002); TCP, 2627; 28; 33; 36.
20. Karl Lwith, The Occasional Decisionism of Carl Schmitt, in Martin Hei-
degger and European Nihilism, ed. Richard Wolin, trans. Gary Steiner (New
York: Columbia University Press, 1995), 151.
21. Cf. Uday Mehta, Liberalism and Empire: A Study in Nineteenth-Century British
Liberal Thought (Chicago: University of Chicago Press, 1999); Sankhar Muhtu,
Enlightenment against Empire (Princeton: Princeton University Press, 2003);
Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Impe-
rialism (Princeton: Princeton University Press, 2010); Bhikhu Parekh, Rethink-
ing Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA:
Harvard University Press, 2002); Richard Tuck, The Rights of War and Peace:
Political Thought and the International Order from Grotius to Kant (Oxford:
Oxford University Press, 1999); James Tully, A Discourse on Property: John
Locke and His Adversaries (Cambridge, UK: Cambridge University Press, 1983),
and James Tully, Public Philosophy in a New Key, Vol. 2, Imperialism and Civic
Freedom (Cambridge, UK: Cambridge University Press, 2008); Anthony Pag-
den, ed., The Languages of Political Theory in Early-Modern Europe: Ideas in
Context (Cambridge, UK: Cambridge University Press, 1987); A. Pagden, Lords
of All the World: Ideologies of Empire in Spain, Britain and France c.1500
c.1800 (New Haven, CT: Yale University Press, 1998).
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710 Political Theory 40(6)
22. Immanuel Kant, Die Metaphysik der Sitten in zwei Teilen, In Immanuel Kants
Werke, ed. A. Buchenau, E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno
Cassirer, [1797] 1922); English translation, The Metaphysics of Morals, trans.
and edit. Mary Gregor, Cambridge Texts in the History of Political Thought
(Cambridge, UK: Cambridge University Press, 1996). This edition is referred to
in the text as Kant, MEJ, followed by paragraph and then page number.
23. That Kant is surprisingly close to Hobbes in some of his formulations regarding
the state of nature has been emphasized by Richard Tuck in The Rights of War
and Peace. Political Thought and the International Order from Grotius to Kant
(New York: Oxford University Press, 2001), 2079.
24. Cf. Hauke Brunkhorsts discussion of Kant and Schmitt, The Right to War:
Hegemonial Geopolitics or Civic Constitutionalism, Constellations 11, no. 4
(2004): 51225; cf. also Wolfram Malte Fuss, The Foe: The Radical Evil, Politi-
cal Theology in Immanuel Kant and Carl Schmitt, Philosophical Forum (2010):
181204.
25. I have consulted several English translations of Kants Perpetual Peace essay,
amending the text when necessary. See Immanuel Kant, Zum Ewigen Frieden.
Ein philosophischer Entwurf, in Immanuel Kants Werke, ed. A. Buchenau,
E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno Cassirer, [1795] 1923);
English translation: H. B. Nisbet, trans., Perpetual Peace: A Philosophical
Sketch, in Kant: Political Writings, ed. Hans Reiss, Cambridge Texts in the
History of Political Thought, 2nd and enlarged ed. (Cambridge, UK: Cambridge
University Press, 1994). The first date and page number refer to the German text
and the second to the English editions.
26. Here Kants doctrine of relations among states leads to his theory of cosmopoli-
tan right, which Kant made the Third Definitive Article of Perpetual Peace:
Cosmopolitan Right shall be limited to Conditions of Universal Hospitality
(Kant 1795 [1923], 443; 1994, 105). There is considerable debate as to how
expansively we should interpret Kants cosmopolitanism: did Kant expect the
whole world eventually to converge around the principles of a republican
constitution? How was this to be distinguished from a world state which he
sharply criticized as a form of soulless despotism etc.? Tuck is among those
who tend towards e a minimalist understanding of Kants doctrine of cosmopoli-
tan right. Cf. Tuck, The Rights of War and Peace, 220ff. Cf. S. Benhabib, Intro-
duction: Cosmopolitanism without Illusions, in Dignity in Adversity: Human
Rights in Troubled Times, 120.
27. Cf. the collection, Perpetual Peace: Essays on Kants Cosmopolitan Ideal, ed.
James Bohman and Matthias Lutz-Bachmann (Cambridge, MA: MIT Press, 1997).
28. For an illuminating and detailed account that also surveys some of the reasons
for the revival of interest in this aspect of Kants thought, see Martin Frank,
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Benhabib 711
Kant und der ungerechte Feind, Deutsche Zeitschrift fr Philosophie 59, no. 2
(2011): 199219.
29. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947-1951 (Berlin:
Duncker & Humblot, 1991). The first quote is from 113, dated March 12, 1948;
the second from 265, dated August 21, 1949; and the last is from 282, dated
December 6, 1949.
30. Interpretations of Schmitt have given rise to a battle of readings in contempo-
rary thought. Paul Kahn writes of his approach: My approach, then, is to engage
Schmitts texts in an effort to uncover the phenomenon of the political. This work
is neither an exegesis of his text, nor an intellectual history. I assume no famil-
iarity with Schmitts text and none with his historical situation (Kahn, Political
Theology, 29). I disagree. This kind nave reading, without prejudice, can lead
to distortions and does not help us understand Schmitts fighting words and con-
tradicts Schmitts own methodology of concept formation. Schmitt writes: Words
like state, republic, society, class, and also: sovereignty, constitutional state, abso-
lutism, dictatorship, planning, neutral or total state, etc., are unintelligible if one
does not know who in concreto is supposed to be encountered, fought, negated,
and refuted with such words . . ., TCP, 30ff. Cf. also Lwith, The Occasional
Decisionism of Carl Schmitt, 28081, fn. 76. Chantal Mouffes rather decontex-
tualized treatment of Carl Schmitt has had the purpose of excising some of the
most troubling dimensions of his thought, and presenting him as a theorist of ago-
nistic politics. Cf. Chantal Mouffe, ed., The Challenge of Carl Schmitt (London:
Verso, 1999); C. Mouffe, Carl Schmitt and the Paradox of Liberal Democracy,
Canadian Journal of Law and Jurisprudence 10, no. 1 (1997): 2133.
31. Jrgen Habermas, Kants Idea of Perpetual Peace: At Two Hundred Years
Historical Remove, in The Inclusion of the Other: Studies in Political Theory,
trans. Ciaran Cronin and Pablo de Greiff (Cambridge, MA: MIT Press, 2001),
165203; here 188. Referred to in the text as Habermas, KIPP, followed by page
numbers. For a reading of the HabermasSchmitt connection that reveals some
affinities, see Reinhard Mehring, Der Nomos nach 1945 bei Carl Schmitt
and Jrgen Habermas, http://www.forhistiur.de/zitat/0603mehring.tm (March
31, 2006).
32. Perry Anderson, Arms and Rights: Rawls, Habermas and Bobbio in an Age of
War, New Left Review 31 (JanuaryFebruary 2005): 540.
33. This is a theme that is prevalent in much of Hannah Arendts work; cf. The Ori-
gins of Totalitarianism (New York: Harcourt, Brace and Jovanovich, 1979); first
published as The Burden of Our Time (London: Secker & Warburg, 1951). On
judgment, propaganda and understanding, see Understanding and Politics (The
Difficulties of Understanding), in Arendt. Essays in Understanding 1930-1945,
ed. Jerome Kohn (New York: Harcourt, Brace and Co., 1994), 30728, here 313.
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712 Political Theory 40(6)
34. See Benhabib, Introduction: Cosmopolitanism without Illusions, in Dignity in
Adversity, 120.
35. Cf. the following statement by John Bolton: While the term sovereignty has
acquired many, often inconsistent, definitions, Americans have historically
understood it to mean our collective right to govern ourselves within our consti-
tutional framework. And Sharing . . . will diminish the sovereign power of
the American people over their government and their own lives, the very purpose
for which the Constitution was written. The Coming War on Sovereignty,
Commentary 127, no. 3 (March 2009), http://www.commentarymagazine.com/
the-coming-war-on-sovereignty (accessed March 25, 2009). Bolton served
briefly and controversially as the United States Permanent Representative to the
United Nations in 20052006.
36. Thomas Nagel, The Problem of Global Justice, Philosophy and Public Affairs
33 (2005): 11347; Quentin Skinner, Liberty before Liberalism (Cambridge, UK:
Cambridge University Press, 2008 [1998]); Michael Walzer, Spheres of Justice:
A Defense of Pluralism and Equality (New York: Basic Books, 1983); Michael
J. Sandel, Democracys Discontent: America in Search of a Public Philosophy
(Cambridge, MA: Belknap Press of Harvard University Press, 1996).
37. Nagel, The Problem of Global Justice, 114. See Habermass comments on
Nagels article: The Constitutionalization of International Law and the Legiti-
macy Problems of a Constitution for a World Society, Constellations 15, no.
4 (December 2008): 44455; on human rights, see 445 and 447. I have dealt
with this issue more extensively in Benhabib, Claiming Rights across Borders:
International Human Rights and Democratic Sovereignty, American Political
Science Review 103, no. 4 (November 2009): 691704.
38. Habermas, The Constitutionalization of International Law, ibid. 44849.
39. See most recently, Jeremy Waldron, Partly Laws Common to All Mankind:
Foreign Law in American Courts (New Haven, CT: Yale University Press, 2012).
40. See Robert Cover, Foreword: Nomos and Narrative, The Supreme Court 1982
Term, Harvard Law Review 97, no. 4 (1983/84): 468. Some of this material is
taken from Benhabib, Claiming Rights across Borders.
41. Cover, Foreword: Nomos and Narrative, 18.
42. This, of course, is the crucial insight of H. L. A. Harts work, cf. The Concept of
Law, Clarendon Law Series (Oxford: Oxford University Press, 1997), 79100.
43. Jacques Derrida, The Force of Law: The Mystical Foundation of Authority,
Cardozo Law Review 11, no. 919 (19891990): 9201046 (bilingual text, trans.
Mary Quaintance).
44. Margaret E. Kick and Kathryn Sikkink, Activists beyond Border (Ithaca, NY:
Cornell University Press, 1998); Thomas Risse, Steven Rapp, and Kathryn Sik-
kink, The Power of Human Rights: International Norms and Domestic Change
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Benhabib 713
(Cambridge, UK: Cambridge University Press, 1999); Beth Simmons, Mobiliz-
ing for Human Rights: International Law in Domestic Politics (Cambridge, UK:
Cambridge University Press, 2009).
45. By democratic iterations, I mean complex processes of public argument, delib-
eration and exchange through which universalist rights claims are contested and
contextualized, invoked and revoked, posited and positioned throughout legal
and political institutions as well as in the associations of civil society. For a more
recent statement which addresses several critical objections, see Seyla Benhabib,
Democratic Exclusions and Democratic Iterations: Rethinking The Rights of
Others, in Dignity in Adversity, ch. 8, 13866.
46. See Beth Simmons, Civil Rights in International Law: Compliance with Aspects
of the International Bill of Rights, Indiana Journal of Global Legal Studies
16, no. 2 (Summer 2009): 43781, here 443. Abbreviated in the text as Simmons,
followed by page number.
47. Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and
Rights Adjudication in Europe, Global Constitutionalism 1, no. 1 (2012): 5390.
About the Author
Seyla Benhabib is the Eugene Meyer Professor of Political Science and Philosophy
at Yale University. She has previously written on critical theory, Jrgen Habermas,
feminism, migration, citizenship and the political philosophy of Hannah Arendt. Her
most recent publication is Dignity in Adversity: Human Rights in Troubled Times
(Polity, 2011). A Guggenheim Fellowship recipient, she is currently at work on a
project on transformations of sovereignty and international law.
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