"The Common Enemy: Tyrants and Pirates"

Carl Schmitt's Foreword to The Nomos of the Earth ends with the statement that "The earth has been
promised to the peacemakers. The idea of a new nomos of the earth belongs only to them" (39). The rest
of the book, however, resonates with the fear that the end of the Second World War is merely ushering in a
period of endless warfare. Indeed, in some ways Schmitt seems to anticipate the analysis of Michael Hardt
and Antonio Negri, that "war is becoming a general phenomenon, global and interminable" ( Multitude 3) in
the constitution of limitless sovereignty they term "Empire." For Schmitt, too, in heralding a new " nomos ,"
a new global division and order, sees the possibility that "the dualism of East and West" might be "only the
last stage before and ultimate, complete unity of the world--the last round, the final step, so to speak, in the
terrible rings to a new nomos of the earth" ( Nomos 354). In this coming arrangement of powers and
forces, war is always on or just over the horizon as the territorial securities of land and sea are threatened by
their envelopment in an airspace appropriated militarily and politically by an ascendant United States. At
the very least, even the possibility of the appropriation of airspace heralds a period of new, more deadly and
more disconcerting, forms of war.

We find ourselves therefore with a typology of war, and a typology of discourses on and justifications for war,
serving to establish a historical narrative, characterized by a series of shifts: most importantly for Schmitt,
from land war to sea war and then air war; and the construction, then possible derogation, of the " jus
publicum Europaeum " as a mechanism to regulate war and so also inter-state relations. The Nomos of the
Earth presents as European civilization's great achievement what Schmitt terms the "bracketing" of war, its
management and rationalization, such that "an international legal order" arose, "based on the liquidation of
civil war and on the bracketing of war (in that it transformed war into a duel between European states)," and
this therefore "legitimated a realm of relative reason The equality of sovereigns made them equally legal
partners in war and prevented military methods of annihilation" (142). This achievement is threatened,
however, by the spatial transformations that give us a new world order, a new nomos of the earth, which
brings with it technological changes but also a fundamentally different philosophical character to armed
conflict, for instance in the "purely destructive character of modern air war" (320).

Schmitt's sympathies are thus fundamentally Clausewitzian: war is, or rather war should be, the continuation
of politics by other means. This is simply the corollary to his famous proposition that politics itself should be
envisaged as a form of bellic antagonism between friend and enemy. These propositions, as Hardt and
Negri also observe, are to distinguish war and politics even as they relate one to the other: Clausewitz's
"notion is based, first of all, on the idea that war and politics are in principle separate and different" (
Multitude 6). Yet the achievement of such Clausewitzian equilibrium is a precarious achievement at best,
even during the period of European ascendancy and dominance. Schmitt's fundamental concern is the
historical and technological conditions of possibility for Clausewitzian warfare. The ethical stance that
governs Schmitt's position is the belief that warfare fought justly, or as a rule-governed exercise, is what
enables peace and what legitimates the European state. Schmitt recognizes that the politicization of warfare
is not a given; he also recognizes, unsentimentally, that the price to be paid for such a politicization or
hegemonization is the establishment of an absolute limit, a constitutive outside, beyond which lies the foe,
the enemy beyond reason whose only conceivable fate is annihilation. The culmination of inter-European
agreements to manage and bracket warfare was the Congo conference of 1884-85, whose result was "the
Congo Act--a remarkable final document of the continuing belief in civilization, progress, and free trade"
(216) and whose price was an absolute division between European and non-European violence in that, for
the Bismark the German host of the conference, "there would be grave consequences if natives became
involved in disputes between the civilized powers" (219).

Schmitt then traces the increasing permeability of this absolute limit between the civilized and non-civilized
and the collapse of the European spatial order: soon "Europe was no longer the sacral center of the earth"
and "in this confusion, the old nomos of the earth determined by Europe dissolved" (226). Sven Lindqvist,
from a different but complementary perspective, traces in rather more detail the historical transition from a
clear division between inter-European war and colonial war to increasing confusion as the methods and
technology of colonial police actions were imported into the European theater. Aerial bombing (itself a
transformation but also a continuation of the customary colonial practice of gunboat diplomacy, shelling port
cities from a safe distance offshore) was instrumental in this shift. Bombing was embedded first in colonial
relations of power: "Bombs were a means of civilization. Those of us who were already civilized would not
be bombed. Thus the bombing in Tripoli did not worry most people" ( A History of Bombing 82). This was
1912. When, twenty-five years later, Guernica is represented as the first great atrocity of modern war, this
is because it was an instance of civilization turning its bombs on itself: "Bombing natives was considered
quite natural. The Italians did it in Libya, the French did it in Morocco, and the British did it throughout the
Middle East, in India, and East Africa [. . .] only Guernica went down in history. Because Guernica lies in
Europe. In Guernica, we were the ones who died" (160; emphasis in original). Here "the lawlessness of the
wars outside Europe [seeped] into wars between Europeans" (49).

Though Schmitt does not articulate Lindqvist's moral condemnation of either colonialism or colonial warfare,
they share a common problem: with the abandonment of the European system of international regulation,
and concomitant rise of the new methods of war that dominate when it is the air that is the subject of
appropriation, an airspace that envelops land and see alike, war is now more horrific than ever. The clear
division between Europe and its others has dissolved, but rather than an expansion of liberalism and
prosperity to the periphery, this dissolution bring with it the threat that we could all now be subject to
colonial violence. And though Schmitt identifies American ascendancy with this development, surely there is
the suggestion of a rueful regret at Blitzkrieg in his description of "low-flying pilots [that] dive down and then
ply up and away; [they] execute their destructive function, then immediately leave the scene" (320). In
this transaction of death, what is absent is an exchange or a relation between subjects who can recognize
each other: for both parties, on the ground or in the air, it is an unknowable foe that they confront. It is not
your enemy, or my enemy; it is a common enemy. The enemy becomes abstract for both sides: Hardt and
Negri point out that Empire now faces enemies that are "not merely elusive but completely abstract" (30-
31), but surely the same is also true for those who find themselves on the receiving end of Empire's actions,
victims of bombs dropped from planes whose vapor trails alone can be seen, 30,000 feet up in the Afghan
sky.

Yet this is not the first appearance of the common enemy. Even within modernity, and within (or at least
not quite without) the European inter-state system there were always conflicts that disrupted the laws of
mutuality and recognition governing war as duel between sovereigns. The common enemy has its own
history, which Schmitt, in what is almost an aside, traces through the figures of the tyrant and the pirate:
"For the order of the land, the tyrant was the common enemy, just as, for the order of the sea, the pirate
was the enemy of the human race" (65). Whereas the concept of tyranny refers to a structure of power
within given borders, the concept of piracy invokes a refusal to accept borders or territorial limits. The
concept of tyranny enables an analytic of the exercise of state power within a given polity; the concept of
piracy threatens the authority of states at their geographical margins.

The Tyrant

In The Nomos of the Earth , at least, Schmitt has less to say about tyranny than about piracy. A full
discussion of the concept in Schmitt's thought would require more detailed comparison with his theories of
dictatorship, but one could summarize by suggesting that the tyrant is the non-exceptional dictator: whereas
the dictator overturns the Constitution for a limited period, in order to re-establish and to protect the
Constitution during a "state of exception," the tyrant maintains his power for an indefinite period of time,
normalizing his rule and endeavoring to habituate the people to it. The dictator invokes the exception to
uphold the norm; the tyrant attempts to normalize exceptionality.

One could argue, therefore that the current tendency towards interminable war also sees the institution of a
form of Imperial tyranny. Alternatively one could examine the extent to which all sovereignty is tyranny, in
so far as all state power is no more (but not less) than normalized exceptionality. In "Society Must Be
Defended" , Michel Foucault traces the history of such a discourse on sovereignty: one that suggests that war
is already interminable, if unrecognized as such. Against the contractual model emphasized by Schmitt,
Foucault uncovers an agonistic model that rejoins the discourses of war and politics. He observes that, with
the formation of nation states, "a society completely permeated by warlike relations was gradually replaced
by a State endowed with military institutions" (267), but stresses that war continues within constitutional
arrangements. War is never fully bracketed off. Hence Foucault is concerned to trace "a certain type of
discourse about relations between society and war [. . ., one that] made war the permanent basis of all the
institutions of power" (267). The bulk of "Society Must Be Defended" is devoted to an analysis and
genealogy of this discourse--as a mode of thought that is radically ambivalent, underlying both Marxism and
fascism (if not Schmitt's fascism), but that is in the end preferable perhaps to "the juridical model of
sovereignty" when it comes to "a concrete analysis of power relations" (264). This is a discourse that seeks
to identity or construct a common enemy internal to the polity.

From the perspective that Foucault outlines, the basis or model for all war is the civil war. War is not best
seen as an activity carried out by and between states (or even, for that matter, by and between warlords,
chieftains, or clans etc.); for war pre-exists the state, and indeed pre-exists also the other elements (subject,
law) that are taken as a priori elements of the juridical model of sovereignty. War pre-exists the
constitution of society; but also, and pace Hobbes, it lingers on within constituted societies, rather than being
banished to the margins by some social contract.

By contrast, more conventional theories of war, and more traditional political discourses on war, tend to see
civil war as exceptional, as a particularly troublesome deviation from a standard model. Even the term "civil
war" captures some of this confusion, implying as it does the contradictory co-presence of civility and
violence. In practice, and perhaps especially when faced with partisan uprisings or guerrilla insurgency,
states tend to deny the reality of civil war, in order to re-impose the vision of juridical sovereignty. As
Schmitt argues, such conflicts involving non-state actors are re-configured or re-interpreted in terms of the
state. Either such wars are seen in terms of wars of secession or wars of independence; or they are proxy
wars, wars between states translated into another key for which conflict is explained by reference to outside
agitators (Communists, foreigners) rather than to elements internal to the social order. The juridical model
therefore attempts to re-interpret internal disturbance in terms of a war between external states or between
entities that could become states. Thus the State re-imposes a sense of its own legitimacy.

By contrast, the tradition that Foucault outlines, in which society may be analyzed in terms of a fault line
between illegitimate power and unresolved grievance, depends upon the analytic of tyranny and so common
enmity. It is not so much that two states are in a relation of antagonism, as that there is something rotten
in the state form itself, such that power comes to seem nothing more than an imposition from above. But
perhaps even the concept of "civil war" does not go far enough; perhaps it assumes too much, in
presupposing that the fundamental division lies within the polity. Surely there are social conflicts that are
best seen as "pre-civil" wars, wars for which the boundaries of civility are not given, but are themselves at
stake, produced in and through the conflict itself. Here the actors that will have been in play are only
discovered or revealed after the cessation of hostilities, and this because they are created within the conflict
itself.

Unlike Foucault, in short, Schmitt passes over the creativity of war, its ability to provide a new optic or
framework for interpretation: in and through conflict, tyrants continue to rise and fall. The tyrant,
furthermore, calls forth the insurgent, the partisan, the common that faces the tyrant as enemy. Yet how
can we be sure that this commonality does not itself resolve into tyranny? The tyrant inspires new tyrants,
new state forms, as much as he calls forth other modes of community. The common too often is reduced to
a Stalin, Pol Pot, or Abimael Guzmán as much as it is incarnated in an Augusto Sandino or a subcomandante
Marcos (or whichever other insurgent we might choose to support).

The Pirate

If the tyrant is the figure of state power at its limit, a state power that allows no movement, that is pure
fixity and asphyxiation, the pirate, though also a common enemy of the human, is in some sense the tyrant's
opposite number. The pirate inhabits a space beyond the social, certainly beyond the territorial claims of
terrestrial states. In Schmitt's words, he is a "daring adventurer" (43): the pirate thrives on novelty and
difference, while the tyrant insists on habituation to the existent same. Piracy is criminalized as states
attempt to impose their order on the unruly, ever unpredictable sea. It is with the rise of "the great sea
empires, maritime nations" that "the pirate was declared to be an enemy of the human race" (44).

Piracy has been celebrated, by contrast, by the likes of Marcus Rediker and Peter Linebaugh, whose The
Many Headed Hydra revels in the accounts of the "motley" crews of pirates, dissenters, mutineers, and other
renegades in the Anglo-American North Atlantic of the seventeenth and eighteenth centuries. They point
out that, while the tyrant produce the common by antithesis (in the insurgent), the pirate incarnates the
common, or a form of counter-commonality that is also an adventurous experiment in community. For
Rediker and Linebaugh, piracy represents an Exodus, a line of flight from wage labor and hierarchy, and the
opportunity to construct experimental modes of social organization. Piracy, in short, offers a utopian
possibility that has to be criminalized and annihilated pour encourager les autres . In Rediker's more recent
Villains of all Nations , he claims that eighteenth-century pirates fostered a "radical democratic social order
and culture" (82) that had to be eliminated in order to ensure the continuing survival and profitability of the
Atlantic slave trade. In line with Schmitt's understanding of maritime space, Rediker emphasizes the ways
in which piracy flourished in the oceanic context: "the pirate's image was closely related to the space he
occupied--the sea, a distant place full of dangers, a site of frequent disaster [. . .] The disciplinary network
that underlay the social order thus had a weak presence at sea" (134, 136). It is clear how Rediker and
Linebaugh have been influenced by Deleuzoguattarian and autonomist interest in the nomad, or the subject
of refusal, whose relation to space is one of mobility rather than territoriality, the line rather than the fixed
point.

Historically, however, the question of piracy is still more interesting than either Schmitt or Rediker and
Linebaugh will allow. What soon becomes apparent is the slippage between piracy and state action
throughout the period of Atlantic colonization. Just as the Pinzóns, Columbus's collaborators and co-
sponsors in his 1492 voyage, had an element of piracy in their background, so in the age of Elizabethan
freebooters figures such as Sir Francis Drake operated on both sides of the margin separating state policy
from reckless adventurism. Hardt and Negri briefly refer to the "equivocal" nature of the relationship
"between Queen Elizabeth and the pirates of the Atlantic in the sixteenth century" (48) and imply that the
golden age of piracy (analyzed by Rediker) can be considered the revolt of mercenary forces fostered by
imperial powers. Even in the early seventeenth-century, however, it was a thin and uncertain line that
separated the freebooting encouraged by provincial governors and the social evil or common enemy soon to
be articulated by the imperial center. Moreover, as the myriad popular and mass culture representations of
piracy from Captain Hook to Johnny Depp reveal, the struggles of this common enemy have long resonated
at the very heart even of an imperial culture industry such as Hollywood. Piracy, in short, cannot be simply
demarcated as a constituent exterior to the civilized state. More generally, do we not see the state's
appropriation and re-utilization of heterodox modes of conflict, from the pirate raid to special forces, as the
points at which the state itself becomes piratical? The pirate is not the colonial other; the pirate inhabits
and crosses the permeable membrane that divides enemy from foe, civilization from its other. In other
words, the concept of the pirate is, like the partisan, still indifferent, still ambivalent. And the ambivalence
of piracy is all the clearer if we consider the similarities between the modern pirate and postmodern terrorist:
even Rediker admits that "in truth, pirates were terrorists of a sort" (5), and this identification is hardly much
attenuated by the insistence that theirs was "a terror of the weak against the strong" (6). Charles Glass,
indeed, noting the contemporary rise of pirate activity in the Malacca Straits and elsewhere, suggests that
the connection between piracy and terrorism may soon be as literal as it is figural: "The business has become
too lucrative to leave to amateurs, and the targets are too tempting to assume terrorists will ignore them"
("The New Piracy" 5). He concludes with the following warning: "Afghanistan, Iraq, Colombia, the city
ghettos of the Western world and the frontier badlands of Russia are more restive than ever. So are the
Oceans" (7).

Following Schmitt's promptings (if not his own leanings), it would seem worth considering further tyranny
and piracy as archetypes of the common enemy that now prevails within the postmodern, imperial order.
There is no single "common"; nor, it seems to me, are there any easy ways to predict the fate of
commonality: it may lead equally to a mirror tyranny or to the suicide bomber as it does to the precarious
utopian communities imagined of either insurgents or those who sail beneath the Jolly Roger.

works cited

Foucault, Michel. "Society Must Be Defended." Trans. David Macey. London: Penguin, 2003.
Glass, Charles. "The New Piracy." London Review of Books (18 December 2003): 3-7.

Hardt, Michael, and Antonio Negri. Multitude: War and Democracy in the Age of Empire. New York:
Penguin, 2004.

Lindqvist, Sven. A History of Bombing. Trans. Linda Haverty Rugg. London: Granta, 2001.

Linebaugh, Peter, and Marcus Rediker. The Many-Headed Hydra: The Hidden History of the Revolutionary
Atlantic. London: Verso, 2000.

Rediker, Marcus. Villains of all Nations: Atlantic Pirates in the Golden Age. Boston: Beacon, 2004.

Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Trans. G L
Ulmen. New York: The Telos Press, 2003.