Osgoode Hall Law Journal

Article 5
Volume 42, Number 2 (Summer 2004)

Carl Schmitt's Nomos of the Earth

Mark Antaki

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Review Essay

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Antaki, Mark. "Carl Schmitt's Nomos of the Earth." Osgoode Hall Law Journal 42.2 (2004) : 317-334.
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 REVIEW ESSAY
CARL SCHMITT'S NOMOS OF THE EARTH

THE NOMOS OF THE EARTH IN THE INTERNATIONAL LAW OF

THE JUS PUBLICUM EUROPAEUM BY CARL SCHMITT, TRANS.
BY G.L. ULMEN (NEW YORK: TELOS PRESS, 2003).'

BY MARK ANTAKI2

I. READING CARL SCHMITT IN ENGLISH

Since the path-breaking works of George Schwab and Joseph

Bendersky,3 there has been a great surge of interest in the work of Carl
Schmitt in the English-speaking world. This has resulted in an ever-
accelerating output of writings relating to Schmitt. For the most part,
Schmitt's work has been understood under the univocal label of "critique
of liberalism"4 (though with Schmitt cast more as an arch-enemy than a
critic). Most work in English on Schmitt has consisted of a defence of
liberalism against his critique. This defence has been carried out via a
fortification or explication of liberalism in light of his critique or via a
reading of his work as being more or less-usually more-intelligible in
light of, and reducible to, his involvement with National Socialism, as a
jurist, after the collapse of Weimar Germany until around 1936.'
Despite Schmitt's understanding of himself as a jurist, much of the
engagement with Schmitt in the English-speaking world has taken place
outside the academic discipline of law (or legal philosophy) and within that

[The Nomnos].
2 Assistant Professor, McGill University (Faculty of Law). The author would like to thank David
Bates, Bogdan Iancu, an anonymous reviewer, and the assigned editor for their comments.
See George Schwab, The Challengeof the Exception: An Introduction to the PoliticalIdeas
of Carl
Schmitt between 1921 and 1936 (Berlin: Duncker & Humblot, 1970); Joseph W. Bendersky, CarlSchmitt,
Theorist of the Reich (Princeton, N.J.: Princeton University Press, 1983).
4The following two titles are largely representative of the contemporary engagement
with Schmitt:
David Dyzenhaus, ed., Law as Politics.Carl Schmitt's Critique of Liberalism (Durham, Duke University
Press, 1998); John P. McCormick, Carl Schmitt's Critique of Liberalism (Cambridge: Cambridge
University Press, 1997).
For a discussion of the reduction of Schmitt's overall thought to his involvement with
the
National Socialists as an "abuse" of Schmitt, see Paul Piccone & G. L. Ulmen, "Uses and Abuses of Carl
Schmitt" (2002) 122 Telos 3 [footnotes omitted]. Among other things, Piccone and Ulmen point out that
"Schmitt opposed both the communist and Nazi parties during the Weimar Republic" (ibid. at 16). For
an intellectual biography of Schmitt, see Gopal Balakrishnan, The Enemy:An IntellectualPortraitofCarl
Schmitt (London: Verso, 2000). See text accompanying note 12.
 OSGOODE HALL LAW JOURNAL [VOL. 42, No. 2

of political philosophy or political theory. Whereas many of his key legal

works have been translated into French-for example, his works on
dictatorship, constitutional law, types of juridical thinking, and the
partisan 6-his work translated into English is more easily identified as
political theory. This can be seen by a quick look at some of the titles, such
as Political Theology, Roman Catholicism and Political Form, Political
Romanticism, and The Concept of the Political.7 Indeed, the constitutional
law treatise (Verfassungslehre) that securely established him as a scholar of
public law has yet to be translated into English. Though some secondary
work on Schmitt in English has attempted to grapple with Schmitt's work
as a whole, for the most part the primary works of Carl Schmitt accessible
to readers of English constitute but one side of his work accessible to
readers of French (and, of course, German).
The recent translation of Schmitt's Der Nomos der Erde, first
published in German in 1950, appears noteworthy on two fronts. First, it
finally makes accessible to English readers his major work in international
law. A word of caution is in order, however: one should not simplistically
embrace the division of Schmitt's work into legal and political texts. Rather,
his entire work can be thought of as an extended meditation on the
belonging together of law and politics. His work on international law is no
exception and constitutes one entry point into this theme. Second, the
translation of Der Nomos der Erde emerges from Telos Press, an
"intellectual camp" (formerly) on the left of the political spectrum. This
camp has turned to the admittedly conservative Schmitt with the aim of
learning from him in order to move beyond what is taken to be the
fruitlessness of contemporary forms of liberalism. Gary Ulmen, the English
translator of DerNomos derErdeis a Senior Editor at the journal Telos and

6 See Carl Schmitt, La dictature,trans. by Mira K611er & Dominique S6glard (Paris: Seuil, 2000);
Carl Schmitt, Thdorie de la Constitution, trans. by Lilyane Deroche (Paris: Presses Universitaires de
France, 1993); Carl Schmitt, Les trois types depensjejuridique(Paris: Presses Universitaires de France,
1995) [Schmitt, Les troistypes]; and Carl Schmitt, La Notion du Politique et La Thiorie du Partisan,trans.
by Marie-Louise Steinhauser (Paris: Flammarion, 1972). See also Carl Schmitt, Le Nomos de la terre
dans le droit des gens du jus publicum europaeum, trans. by Lilyane Deroche-Gurcel (Paris: Presses
Universitaires de France, 2001), the translation of the work that this article is about [Schmitt, Le Nomos
de la terre].
7 See Carl Schmitt, PoliticalTheology: FourChapterson the Concept of Sovereignty, trans. by George
Schwab (Cambridge, Mass.: MIT Press, 1985) [Schmitt, PoliticalTheology]; Carl Schmitt & G. L. Ulmen,
Roman Catholicism and PoliticalForm, trans. by G. L. Ulmen (Westport, Conn.: Greenwood Press,
1996); Carl Schmitt, PoliticalRomanticism, trans. by Guy Oakes (Cambridge, Mass.: MIT Press, 1986);
and Carl Schmitt, The Concept of the Political,trans. by George Schwab (New Brunswick, N.J.: Rutgers
University Press, 1976) [Schmitt, The Concept]. See also Carl Schmitt, The Crisis of Parliamentary
Democracy,trans. by Ellen Kennedy (Cambridge, Mass.: MIT Press, 1985); Carl Schmitt, The Leviathan
in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, trans. by George
Schwab & Erna Hilfstein (Westport, Conn.: Greenwood Press, 1996) [Schmitt, The Leviathan].
20041 Review Essay 319

has translated several of Schmitt's pieces for Telos. Further, Telos has
devoted two special issues to Schmitt. 8 The treatment of Schmitt in the
pages of Telos can be distinguished from much of that in the mainstream
press, academic and non-academic, where Schmitt tends to be reviled 9 or
dismissed.
The interest in reading Schmitt goes beyond the perceived need to
defend liberalism against one of its most formidable foes"0 or beyond the
utility of turning to Schmitt to reinvigorate the left or post-left. Far beyond
the need to buttress contemporary political positions, Schmitt is worth
turning to because of the manner in which he points to foundational issues
of law and politics and can be helpful, along with thinkers such as Hannah
Arendt, in the construction of a properly phenomenological account of
politics and law."1 In addition, Der Nomos der Erde raises timely questions
regarding international law. Though these questions are timely from a
practical perspective they may also be untimely-and unsettling to the spirit
of the age.
Schmitt's turn to international law began after 1936,12 before which
he had devoted himself mostly to domestic public law. Nevertheless, this
turn to international law did not constitute a break in his thought. First, and
as we shall see further below, the notion of a sharp separation of domestic
law and international law was not one to which Schmitt subscribed. He
believed that adherence to this sharp separation belonged to an
intellectually sterile positivism that abstracted law from its concrete
historical context. Second, there is a true continuity in themes from his
Weimar-era writings to his international law writings." In his turn to
international law, Schmitt furthered the critique of normativism and
positivism that he had begun in the Weimar era. Finally, in such writings as

8 Special Issue on Carl Schmitt (1987) 72 Telos; Carl Schmitt Now (1996) 109
Telos.
9 See e.g. Jeffrey Herf, ReactionaryModernism: Technology, Culture, andPolitics in Weimar and
the
Third Reich (Cambridge: Cambridge University Press, 1984); Richard Wolin, "Carl Schmitt: The
Conservative Revolution and the Aesthetics of Horror" (1993) 20 Pol. Theory 424.
10 On the "foe," see G.L. Ulmen, "Return of the Foe" (1987) 72 Telos 187; George Schwab,
"Enemy or Foe: A Conflict of Modern Politics" (1987) 72 Telos 194; and the discussion of "the enemy"
below. The foe is not a just enemy against whom a limited war is fought but an absolute enemy against
whom a total war is fought.
11 See also Julien Freund, L'essence dupolitique (Paris: Sirey, 1965). Freund was a student of both
Schmitt and Raymond Aron.
12 The year 1936 marked the end of Schmitt's close association with National Socialism. See
especially Bendersky, supra note 3 at c. 11; Balakrishnan, supra note 5 at c. 15.
13 Note the title of Carl Schmitt, Positionen und Begriffe im Kampfmit Weimar-Genf-Versailles
1923-1939 (Berlin: Duncher & Humblot, 1988).
 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

The Concept of the Political, one can already see a serious and marked
concern with international law and with the changing legal status of war
(evident in, for example, Germany's postwar treatment in the Versailles
treaty).
Schmitt's Weimar-era writings reflect the concrete crisis with which
Germany was faced. As with many-if not most-of his writings, they are
polemical in nature, attacking rival understandings of law such as Hans
Kelsen's normativism. At the time, Schmitt's critique pointed to the
Weimar Republic's inability to respond to its internal enemies. Schmitt
understood this inability as an evasion of the political. Indeed, before his
turn to National Socialism, Schmitt had tried to save the Weimar Republic
by arguing for a broad interpretation of the Weimar Constitution's
emergency provision (Article 48). He had also argued that parties seeking
to subvert the constitution (that is the Communists and National Socialists)
ought not be allowed to seize control by legal means.' 4 In these arguments,
Schmitt called for a strong federal executive and perhaps, despite his
misgivings about liberalism, for something like a "political liberalism."' 5
The (liberal) evasion of the political, of the need to make difficult
decisions involving emergencies and the identification of enemies, is a
recurrent theme in Schmitt's writings. Liberalism, Schmitt explains, has no
account of the political, but rather attempts in vain to escape the political.
In its denial of the political, liberalism denies the dangerousness of human
beings. 16 It also misapprehends the nature of law, forgetting that law is a
concrete phenomenon rooted in a political order that needs to be defended
and secured in the face of emergencies and enemies. Liberalism, with its
liberal "neutrality," as exemplified in the Weimar Republic, avoids making
demanding decisions. Rather, liberalism elides the conflictual character of
politics and attempts "to transform the enemy from the viewpoint of
economics into a competitor and from the intellectual point into a debating
adversary."' 7 Liberalism systematically evades the political and "moves
instead in a typical always recurring polarity of two heterogeneous spheres,

14 See e.g. Carl Schmitt, Legalitit und Legitimitat (Munich: Duncker & Humblot, 1932). Legalitat
und Legitimitithas been translated into French in A. de Benoist, ed., Du Politique "L~galitget ligitimitg"
et autres essais (Puiseaux: Pard~s, 1990). See also David Dyzenhaus, "Legal Theory in the Collapse of
Weimar: Contemporary Lessons?" (1997) 91 Am. Pol. Sci. Rev. 121.
15 It can be argued that actual developments in liberal states answered Schmitt's call. However,
whether contemporary accounts of "political liberalism" deal adequately with Schmitt's critique is
another question. See e.g. David Dyzenhaus, "Liberalism after the Fall: Schmitt, Rawls and the Problem
of Justification" (1996) 22 Phil. & Soc. Criticism 9.
16 Schmitt, The Concept, supra note 7 at 58ff.
17
1bid. at 28.
2004] Review Essay

namely ethics
'8
and economics, intellect and trade, education and
property.'
On the one hand, as we have seen in the example of the Weimar
Republic, the failure of a state to acknowledge the political can lead to its
demise. On the other hand, a purported evasion of the political can itself
constitute a political strategy or mode of being. The turn to ostensibly
"neutral" spheres 9 such as the market and abstract morality (including
moral categories such as "humanity") can be a potent political means by
which one discredits and defeats one's enemies.2 0 Schmitt locates such a
turn in the criminalization of war and in Germany's treatment at Versailles.
Though Schmitt and others trace the rise of this dangerous moralism in
politics to the French Revolution, it was only in the late 19th and early 20th
centuries that this moralism in politics achieved a position of dominance,
speeding along the dissolution of the only truly global international order
the world had known: the juspublicum europaeum.
Der Nomos der Erde tells the story of this first truly global
international legal order. It tells of the emergence of the jus publicum
europaeum (public law of Europe) out of the dissolution of the respublica
Christiana2 ' and of its own dissolution into an abstract and universal
international law in which war is deemed criminal in theory but not
necessarily avoided or limited in practice. Schmitt does not simply lament
the passing of the jus publicum europaeum but wonders about its
successor-a successor which would have to fulfill the function of any
proper international legal order: the limitation of war by way of the
recognition of ajustus hostis (just enemy).
The English translation of the book is divided into five parts. Part
I, "Five Introductory Corollaries," sets the tone for the book by introducing
and explicating key words while also providing a brief account of the
respublica Christiana out of which the jus publicum europaeum emerged.
Part II, "Land Appropriation of a New World," tells of the birth of thejus
publicum europaeum out of the "discovery" of the new world. Part III, "The
Jus Publicum Europaeum," tells of the era and accomplishments of thejus

18
Ibid. at 70.
19 On neutralization see also Carl Schmitt, "The Age of Neutralizations and Depoliticizations"
(1993) 96 Telos 130.
20 This theme is present in Schmitt, The Concept, supra note 7. See also Reinhart Koselleck,
CritiqueandCrisis:Enlightenmentandthe PathogenesisofModern Society (Cambridge, Mass.: MIT Press,
1988), which should be read alongside the work of Schmitt.
21 Schmitt understands the respublica Christiana as the unity of Christendom in Europe, under the
power of the Holy Roman Emperor and the authority of the Pope. It lasted roughly until the fourteenth
and fifteenth centuries.
 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

publicum europaeum. Part IV, "The Question of a New Nomos of the

Earth," tells of the decline of the jus publicum europaeum and raises the
question of what is to succeed it. Part V consists of three concluding
corollaries on nomos. These were written by Schmitt after the completion
of the book and are included by the translator as an appendix.

II. NORM AND NOMOS

Along with themis, dike, and ethos, nomos is one of the great
Ancient Greek words for law. The root verb of nomos is nemein, which
means to distribute and also to pasture, or to graze. Nomos carries within
it the sense of moira,which, though commonly translated as fate or destiny,
signifies the granting to each being of its own share. Nomos points to the
primordial truth that each being is allotted its own place. It is for both its
richness and concreteness that Schmitt chooses the word nomos to speak
of a legal order. Listening to the word carefully points to the way Schmitt
understands law as well as to his understanding of several other key words
in his account of the international legal order.
In nomos, Schmitt hears the succession of appropriation (nehmen
or taking), distribution (teilen or division), and production (weiden or
pasturage). 22 It is crucial for Schmitt that nomos has an inescapable (though
sometimes forgotten) concrete and spatial character. As opposed to the
characterization of law as mere norms or oughts (to which Schmitt refers
as normativism and links to positivism), nomos designates the belonging
together of place and law, of is and ought. Thus, Schmitt writes of law as "a
unity of order and orientation ' '23 (Einheitvon Ordnungund Ortung). Noting
the connection between utopia-no place-and nihilism, Schmitt remarks
that, "only a conclusive and fundamental separation of order and
orientation can be called 'nihilism' in an historically specific sense."' 4
Schmitt believes contemporary times are characterized by such a nihilism
and lack a true nomos. Much of his critique of contemporary juridical
thinking is aimed at the way norms are understood in abstraction from the
concrete orders to which they necessarily belong. Norms without a nomos
do not constitute law proper. Laws cannot be understood as mere oughts
detached from time and place.
As Schmitt explains in Political Theology, "[a]ll law is 'situational

22 See especially the first concluding corollary, The Nomos, supra note 1 at 324.
23 Ibid. at 42.
24
Ibid. at 66.
2004] Review Essay

law.', 5 For Schmitt, norms always presuppose a "normal situation." In

Political Theology, Schmitt identifies the decision on the exception as the
constitutive element of sovereignty: "For a legal order to make sense, a
normal situation must exist, and he is sovereign who definitely decides
whether this normal situation actually exists."2'6 According to Schmitt, the
sovereign decision on the exception is a legal decision. In other words, the
sovereign decision belongs to law even if its validity is not to be found in
adherence to a prior legal norm. For this reason, Schmitt appears to
embrace a kind of decisionism rooted in the person of the sovereign.27
Though, as is pointed to below, sovereignty (and freedom of decision with
respect to the waging of war) figures prominently in The Nomos of the
Earth, there Schmitt emphasizes much more the idea of "concrete order,"
of nomos, than that of "decision."
At the heart and origin of everynomos is "a land-appropriation that
founds an order. 28 As a founding act, the land-appropriation (Landnahme)
is a legal fact and is prior to the distinction between public and private
law.2 9 The land-appropriation constitutes the radical title upon which any
successive claim "within" the legal order is based. As Schmitt explains, "[a]t
this origin of land-appropriation, law and order are one; where order and
orientation coincide, they cannot be separated."30 Schmitt asserts, contrary
to positivists, the importance of considering from a legal viewpoint this
constitutive act that makes possible the belonging of law to a concrete
place. Jurists cannot, and should not seek to, "purify" law31 from the
historical events and political decisions that make law possible.
For Schmitt, the word nomos is primordially and primarily tied to
land. As opposed to the sea, he remarks, measure belongs inherently to the
earth. Schmitt summarizes how "the earth is bound to law in three ways.
She contains law within herself, as a reward of labor; she manifests law
upon herself, as fixed boundaries; and she sustains law above herself, as a

25Schmitt, Political Theology, supra note 7 at 13.

26 Ibid.

27 It is worthwhile to read Carl Schmitt's Die Diktatur(Berlin: Duneker & Humblot, 1921) and
PoliticalTheology, supra note 7, together. As mentioned above, Die Diktatur has been translated into
French but not English. See supra note 6 and accompanying text.
28 The Nomos, supra note 1 at 80.

29 Ibid. at 46.
30
Ibid. at 81.
31 See Hans Kelsen, Pure Theory of Law, trans. by Max Knight (Berkeley: University of California
Press, 1967).
 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

public sign of order."32 Nevertheless, the sea also plays a crucial role in
Schmitt's account. The circumnavigation of the globe led to a great sea-
appropriation and the first global legal order. Further, the contrast of land
and sea33 points to different ways in which law and even human polities are
and hence can be understood. Thus, the global order that was the jus
publicum europaeum was actually comprised of the relation between two
spatial orders: one of firm land and one of free sea. England was of-but
not in-Europe, and connected the two.

III. THE STATE AND THE JUS PUBLICUM EUROPAEUM

As Schmitt explains, the jus publicum europaeum emerged out of

the decline of the respublica Christianaand out of the land-appropriation
of the new world. Schmitt understands the Christian Middle Ages as a
concrete spatial order in which territory was divided between Christian
territory and non-Christian, that is missionary, territory. Wars among
Christian princes were "limited" or "bracketed" wars and thus did not
"negate the unity of the respublica Christiana' 4 that had as "its visible
agents" the emperor and Pope.35 For Schmitt, the key concept to
understanding the respublica Christianais the Biblical idea of the katechon
or restrainer, that is "the historical power to restrain the appearance of the
Antichrist and the end of the present eon."36 Schmitt understands the
kingships of the Middle Ages as crowns or offices tied up with the historical
and Christian work of the katechon. The respublica Christianawas already
on the road to dissolution in the fourteenth and fifteenth century when "the
link between Christian empire and territorial monarchy that had served to
uphold the work of a katechon had been forgotten."37 The idea of the
katechon points to Meier's interpretation of Schmitt as a political
theologian.3"

32 The Nomos, supra note 1 at 42.

33See also Carl Schmitt, Land and Sea, trans. by Simona Draghici (Washington: Plutarch Press,
1997).
The Nomos, supra note 1 at
58.
Ibid. at 59.
36
Ibid. at 60.
37 Ibid. at 64.
38 See e.g. Heinrich Meier, Carl Schmitt and Leo Strauss:The Hidden Dialogue, trans. by J. Harvey
Lomax (Chicago: University of Chicago Press, 1995); Heinrich Meier, The Lesson of CarlSchmitt: Four
Chapterson the DistinctionBetween PoliticalTheology and PoliticalPhilosophy,trans. by Marcus Brainard
(Chicago: University of Chicago Press, 1998).
2004] Review Essay

Whether or not Meier's specific interpretation is correct, it is

undeniable that the idea of a structural analogy between theology and law
is central to Schmitt's work. As Schmitt explains:

All significant concepts of the modern theory of the state are secularized theological
concepts not only because of their historical development-in which they were transferred
from theology to the theory of the state, whereby, for example, the omnipotent God became
the omnipotent lawgiver-but also because of their systematic structure, the recognition of
which is necessary for a sociological consideration 39of these concepts. The exception in
jurisprudence is analogous to the miracle in theology.

Thus, Schmitt takes very seriously Hobbes' depiction of the state as

a "mortal God."4 ° The state, the political form that emerged out of the
dissolution of the respublica Christiana, was to provide a kind of
transcendence (as the God of theism had) and was to secure a normal
situation in which norms could obtain.
However, from its inception, the state was understood in a way that
made it vulnerable to attack and, eventually, to being understood as
unnecessary. In his essay "The State as Mechanism in Hobbes and
Descartes,"'" Schmitt captures the way in which the future
instrumentalization of the State, that is, the way in which the state was to
lose its transcendence, is already to be found even in Hobbes. The state was
to be understood as a mere mechanism, "a man-made product. 4 2 The mere
recognition, in Hobbes, of an inner moral sphere free from the jurisdiction
of the sovereign was to develop into a full-blown liberalism in which each
man could be his own judge in political matters-and in which the primacy
of politics over morality was inverted.43 Further, in this later technical age,
"[r]ight became positive law, lawfulness became legality, legality became
the positivist mode of operation of the machinery of the state." 4
Understood as a mere mechanism or instrument, the state would no longer
be in a position to command loyalty, there could no longer be an "ethic of

39 Schmitt, Political Theology, supra note 7

at 36.
40 See Thomas Hobbes, Leviathan, ed. by C.B. Macpherson (London: Penguin Books, 1985) at
227 where Hobbes refers to "that great LEVIATHAN, or rather (to speak more reverently) of that
Mortall God, to which wee owe under the Immortall God, our peace and defence."
41 See "The State as Mechanism in Hobbes and Descartes" in Schmitt, The Leviathan, supra
note
7.
42 Ibid. at
98.
43 Ibid. at 56 and accompanying notes. This theme of Schmitt's is elaborated by Koselleck, supra
note 20.
44 Schmitt, The Leviathan, supra note 7 at
99.
326 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

state."45
The state's fragile location in time between the respublica Christiana
and the later technical age mirrors the way in which Schmitt the jurist
conceived of his element, jurisprudence. In a work that he considered his
"testament" 46 Schmitt explains that jurisprudence "has always been
determined by two great oppositions: on the one side, to theology,
metaphysics and philosophy; on the other, to mere technical craft. ' 47 In the
sixteenth century, jurisprudence had to oppose theology. But "[n]ow [in the
twentieth century] jurisprudence must take a stand against the other side":
the instrumentalization of law and state.48
The central achievement of the jus publicum europaeum was the
state. From the foregoing, it should be clear that the "state" is not to be
understood as a general way of referring to human polities but, rather, as
a concrete and historically bounded achievement of European
humanity-an "existential form"of law and politics. 49 Within Europe, the
state overcame religious civil war and limited interstate wars. It was able to
limit interstate wars because it transformed the medieval just cause (justa
causa-partof what today is referred to as the "just war tradition") into the
modern non-discriminatory concept of just enemy (justus hostis)-which
Schmitt describes as the beginning of all international law proper. ° Within
Europe, wars no longer needed to be justified but enemies had to be
treated justly and as equals. States were sovereign and war was the object
of a sovereign decision.
In his earlier work, Schmitt had pointed to the categories of the
sovereign and the enemy as necessary for a proper understanding of legal
and political orders. We have seen that, in Political Theology, Schmitt
emphasized the decision on the exception as the constitutive element of
sovereignty. In the Concept of the Political,Schmitt pointed to the friend-

45 Carl Schmitt, "Ethic of State and Pluralistic State," reprinted in C. Mouffe ed., The Challenge
of CarlSchmitt (London: Verso, 1999) [Schmitt, Ethic of State].
46 See note 31 of Paul Piccone & G.L. Ulmen, "Schmitt's 'Testament' and the Future of Europe"
(1990) 83 Telos 3.
47Carl Schmitt, "The Plight of European Jurisprudence" (1990) 83 Telos 35 at 64 [Schmitt,
The
Plight]. In the appendix to the 1958 edition of this essay in VerfassungrechtlicheAufsdtzeaus den Jahren
1924-1954 (Berlin: Duncker & Humblot, 1958) at 427, Schmitt explains that "[p]hilosophy of law is not
for me a vocabulary drawn from an available philosophical system and applied to juridical questions,
but rather the development of concrete concepts out of the immanence of a concrete legal and social
order" [translated by author].
48 Schmitt, The Plight, ibid. at 66.
The Nomos, supra note I at 204.
50
Ibid. at 52.
2004] Review Essay

enemy distinction as the criterion by which the political could be identified

(but not as an "exhaustive definition or one indicative of substantial
content""t). Schmitt explained that the decision as to who was the enemy
in a concrete situation could only be made by the actual participants. For
this reason, the decision on the enemy was a properly political decision and,
thus, in the end, a feature of sovereignty. In the juspublicum europaeurn,
the jus belli, the right to make war, belonged to sovereign states.
In identifying the friend-enemy distinction as the key political
criterion, Schmitt drew an important distinction between the public enemy
(hostis), that is, the enemy about whom the political decision needs to be
made, and the private enemy (inimicus). The public enemy is understood
as a political enemy, as a threat to the way of life of one's polity. However,
he need not be hated and it is possible to treat him with respect and
restraint. 2 Thejuspublicum europaeum Schmitt describes in The Nomos of
the Earth is characterized by limited warfare among political bodies
recognizing one another as sovereign and as just enemies.
Part of the point Schmitt underlines in The Nomos of the Earth is
that mere norms cannot, in themselves, limit warfare. For war to be limited,
there needs to be a concrete spatial order tied to some kind of shared
history, that is, a nomos. Within a concrete spatial order, the limitation of
warfare is also the relativization of enmity. Prior to the rise of the state,
religious wars had torn apart the continent of Europe. With the rise of the
state, religion, a formerly conflictual domain, was "neutralized" and
"depoliticized." A more-or-less absolute enmity had been relativized. In a
later work, his Theorie des Partisanen,Schmitt distinguishes the absolute
enemy from the real enemy. The "true" partisan, Schmitt explains, fights
to defend a concrete piece of territory that is his home. The partisan aims
only to repel the invader and his real-but not absolute--enemies. As we
shall see further below, Schmitt fears that the decline of the jus publicum
europaeum has ushered in an era of absolute enemies against whom "total
wars" are fought.
The jus publicum europaeum was based on a spatial division of
Europe and the rest of the globe as well as on the difference between free
sea and firm land. The global lines that divided Europe from the rest of the
world, or more specifically from the New World, allowed for the limitation
of war within Europe by demarcating a space of law (Europe) from a space

51 Schmitt, The Concept, supra note 7 at 26. It is important to underline that the friend-enemy
distinction, and not simply the enemy, is what Schmitt identifies as the criterion of the political.
52 Ibid. at 26 and generally.
328 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

of relative lawlessness (New World). 3 Similarly, land and sea war "[e]ach
had its own concepts of enemy, war, and plunder.""4 England, which was
"of Europe, but not in Europe" was the "guardian" of the maritime legal
order. Indeed, England was "the agency of the spatial turn to a new
nomos of the earth [the jus publicum europaeum].
As we have seen, the state, the achievement of the jus publicum
europaeum, harboured within itself the seeds of its own destruction and of
its relativization in the technical age. However, England pointed forward
to the technical age even more directly. For one thing, as Schmitt explains
elsewhere, "[t]he English nation ... grew into the position of a world power
without using the forms and means of state absolutism. The English
leviathan did not become a state."5 " Because of a maritime existence's lack
of rootedness, England, "potentially," provided "even the operational base
for the later leap into the total rootlessness of technology.""
Further, though Schmitt notes that "[o]ther legal institutions were
developed for sea war that also were brought about through humane
concerns," 59 he emphasizes that land wars were the truly limited wars. Sea
wars, he explains, were economic in nature and, in them, one did not
distinguish between combatants and civilian populations in the same way
as in land wars. Sea war pointed forward to the possible total wars of the
future in a way that the limited land wars of Europe did not. Thus, though
England was a guardian of thejuspublicum europaeum,England's maritime
existence also pointed forward to the dissolution of this concrete nomos
into an abstract international law.

53Rayas, the first global lines Schmitt points to, belong to the respublica Christiana and do not
depend on the distinction between Europe and the rest of the world. Rather, they depend on the
distinction between Christian territory and missionary territory that could be allocated by the Pope.
Amity lines, the second global lines Schmitt points to, signal the beginnings of the jus publicum
europaeum and the principle that "European public law," including limited warfare, ended at the line
where the New World began. The Western hemisphere, the third global line Schmitt points to, already
poses a challenge to thejuspublicum Europaeum, as the New World begins to replace the Old World
as center of the earth. See The Nomos, supra note 1 at 86-100. Schmitt's use of "amity lines" in
buttressing the spatial character of thejuspublicum europaeum has been called into question. See e.g.
the comments of Peter Haggenmacher in Schmitt, Le Nomos de laterre,supra note 6 at 38.
The Nomos, supra note 1 at 184.
55
Ibid. at 173.
56
Ibid. at 178.
57Schmitt, The Leviathan, supra note 7
at 79.
58 The Nomos, supra note 1 at 178.
59
Ibid. at 310.
2004] Review Essay

VI. NEW WORLD (DIS)ORDER

The decline of the jus publicum europaeum can be traced to a

variety of factors but one in particular stands out: European humanity's
forgetting of the ground and nature of thejuspublicumeuropaeum. Schmitt
explains that the "true title" to the New World was discovery, that is that
rationalistic and scientific aspect of Western civilization that allowed it to
"discover" the Americas. This radical title was common to Europe as a
unity. With the belief that occupation, and then effective occupation,
provided title, Europe lost the understanding of the proper ground of its
radical title-a ground that might have been kept in sight had jurists not
displaced theologians in international law. 6' By the end of the nineteenth
century, "European powers and jurists of European international law not
only had ceased to be conscious of the spatial presuppositions of their own
international law, but had lost any political instinct, any common power to
maintain their own spatial structure and the bracketing of war., 61 Indeed,
"[t]he belief in civilization
62
and progress had become nothing more than an
ideological facade.,
Though he points to Western superiority as allowing both for the
discovery of the New World and its legitimacy, Schmitt remarks that
"[flrom the standpoint of the discovered, discovery as such was never
legal. '63 The point is not to take a moralistic view of the phenomenon but
to see the discovery and conquest of the New World as a world-historical
event that opened up the possibility of a global nomos.6 Not taking a purely
moralistic view of the phenomenon also allows one to raise the extremely

60 Ibid. at 132. Schmitt explains that Gentili, a "true jurist" of the "transitional period" between
the respublica Christiana and thejuspublicum Europaeun, "formulated the battle cry and coined what
may be considered to be the slogan of the epoch in terms of the sociology of knowledge: Silete theologi
in munerealieno![literally: Theologians should remain silent within foreign walls!]" (Ulmen's note). The
Nomos, supra note 1 at 121.
61 The Nomos, supra note 1 at 224.
62 Ibid. at 226. Schmitt points to the Congo Conference of 1885 as an event signaling Europe's
forgetting of the distinction between European state soil and non-European colonial soil. Ibid. at 214
and accompanying notes. He also points to the title of international law texts and to how a European
international law was transformed into an international law. Ibid. at 227 and accompanying notes.
63 Ibid.
at 132-32.
On the "mythologization" of the discovery of America as a "supreme example of a particular
kind of scientific achievement," see Anthony Pagden, EuropeanEncounters with the New World (New
Haven, Conn.: Yale University Press, 1993) at 6 and generally. Also germane is Todorov's account,
which points to the superiority of the Europeans' ability to communicate with man as making possible
the conquest but also signals that the Indians were superior in the ability to communicate with the
world. See Tzvetan Todorov, The Conquest of America, The Question of the Other, trans. by Richard
Howard (Norman: University of Oklahoma Press, 1999).
330 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

important philosophical question of the relation between violence (and

violation) and the founding of legal and political orders. Schmitt celebrates
Western rationalism and one of its highest achievements, the state.
However, as we have seen, one also finds in his work the recognition that
Western rationalism, mechanized and devoid of spirit, led to the
technological and nihilistic thinking of the twentieth century.
As Schmitt explains in his "testament," when belief in civilization
and progress had become an ideological facade, the specifically European
character of the nomos that was the juspublicum europaeum had been lost
from view:

From a positivist perspective, it is mere coincidence that there happen to be European states
joined by legal relations such as treaties and agreements. In this formal sense, there is
nothing juridically specific about the treaties and agreements of one European state with
other European states any more than those with non-European states. The European spirit
developed a specifically European international law from the 17th to the 19th century. At
the turn of the 19th to the 20th century, however, this international law dissolved into
innumerable and indistinguishable relations between fifty to sixty states all over the world,
i.e., into a general arrangement lacking any spatial concreteness.'

In the positivistic privileging of form, Europeans lost sight of "the

material [as opposed to the formal] significance of law, i.e., the political,
social and economic meaning of concrete orders and institutions."6 6 For
example, the concrete meaning of state recognition was lost as recognition
was detached from the specifically European standard of civilization.67
Similarly, positivism embraced a dualist theory of law in which there was no
relation between domestic law and international law: jurists either studied
the laws of their own state or those of international law. As the block
quotation above illustrates, a specifically European sensibility had been
lost. 68 The jus publicum
69
europaeum had given way to Bentham's
"international law."

65 Schmitt,
The Plight,supra note 47 at 37.
66 Ibid.
67
Ibid. at 37-38. On the standard of civilization, see Gerrit W. Gong, The Standardof 'Civilization'
in InternationalSociety (Oxford: Oxford University Press, 1984).
68 Schmitt, The Plight,supra note 47 at 36.
69 On the coining of the term "international law," see M. W. Janis, "Jeremy Bentham and the
Fashioning of 'International Law' (1984) 78 Am. J. Int'l L. 405. In light of the foregoing, it is a
worthwhile exercise to think through the propriety of referring to the jus publicum europaeum as
Westphalian international law. Westphalia has become a catchword in contemporary discussion of
international law and politics but, rather than point to a specifically European order "originating" (in
some loose way) in the Treaty of Westphalia, it has come to name an abstract international law based
on the postulate of the sovereignty of any "state."
2004] Review Essay

Intimately tied to Europe's decline as the center of the world was

the rise of the New World, the United States, as the "true heir" of a Europe
that had become corrupt and old. Schmitt explains that in Hobbes' time,
the state of nature, that is America, was understood as a state of freedom
in the sense of a field of struggle. By Rousseau's time, America was still a
state of nature and freedom, but now "unspoiled by the corruption of over-
civilized Europe."70 The shift in the "center of gravity" of the world from
a corrupt Europe to an uncorrupted America was tied to the shift from the
monarchic-dynastic principle of political legitimacy to the democratic
principle of legitimacy.
After the Holy Alliance of 1815, the United States exempted itself
from the reach of the jus publicum europaeum and, with the Monroe
Doctrine of 1823, claimed jurisdiction over its own large space (Groj3raum)
of the Americas. However, the United States was not entirely absent from
European affairs. Schmitt characterizes the United States' position as one
of official absence but effective presence. The United States, though it was
often politically absent, was present in the ostensibly "neutral" sphere of
economics through which it exercised political power.7 '
In the twentieth century, Europe's loss of self-understanding and
the United States' position contributed to the paralyzing of the League of
Nations. Though the United States did not join the League, the League
recognized the Monroe doctrine (in Article 21 of the League Charter)and
thereby "renounced its own spatial system, which was neither specifically
European nor consistently global. In so doing, it also renounced a clear
spatial order."72 Schmitt points to the transformation of the recognition of
foreign governments and to the way the United States and President
Wilson73 "raised this standard of democratic legitimacy in the Western
Hemisphere to the level of a principle in international law."74 By so doing,
the United States effectively controlled "constitutional and governmental"
changes within Central and South America.75

70 The Nomos, supra note 1 at 288.

71 See G.L. Ulmen, "American Imperialism and International Law: Carl Schmitt on the
US in
World Affairs" (1987) 72 Telos 43 at 61.
72 The Nomos, supra note I at 254.
73On Wilson, see Ronald Steel, "The Missionary" New York Times Review of Books 50:18
(20
November 2003) 26. "Woodrow Wilson today is rightly honored not as the prince of peace but as the
inspiration for constructing the world according to American principles. If any one person can be said
to exemplify both the idealism and the hubris of the American century, it is Wilson" (ibid. at 26).
The Nomos, supra note 1 at 305.
75
1bid.
 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

In general, Schmitt paints a picture in which the United States'

position was one of vacillation between the establishment of a Western
hemisphere Groj3raum and its transformation into a global power. As we
shall see below, according to Schmitt, the possibility of a world of several
Grol3raumeharbours the possibility of a concrete order, a true nomos of the
earth. On the other hand, with the United States' transformation into a
global power, Schmitt fears the "deployment" of an abstract international
law (and of universal moral categories) for political purposes. As he writes
elsewhere (modifying an expression of Proudhon's): "whoever invokes
humanity wants to cheat., 76 The rise of humanity as a political category in
the international sphere points in the direction of outlawing war.

V. WAR AS A CRIME

Schmitt explains that the decline of thejuspublicum europaeum led

to an international law which, though it was marked by the participation of
"states" all over the world, lacked any spatial mooring. This decline also
manifested itself in the criminalization of war, of wars of "aggression."
With the criminalization of war, neutrality-previously a symbol of peace,
and thus of the international community-became a symbol of war.77
Schmitt traces this criminalization from the First World War and the
treatment of Germany and Wilhelm II in the Versailles Treaty to the 1924
Geneva Protocol and the 1928 Kellogg Pact. In 1932, with the Stimson
doctrine, the United States, relying on the Kellogg Pact, asserted that it
would refuse to recognize, in Schmitt's words "territorial78 changes anywhere
in the world that were brought about by illegal force.,
Schmitt points out that the criminalization of aggression is
fundamentally problematic. The more precise and easily applicable a legal
definition of aggression is (for example, "first strike") the less it can capture
the substantive justice or injustice of an act or a war as a whole. Further,
though the criminalization of war might protect a merely factual status quo,
a proper status quo must be anchored in a concrete spatial order and, in
some significant way, be understood as legitimate. 79 The definition of
aggression continues be problematic and to raise issues at the heart of

76 Schmitt, The Concept, supra note 7 at 54.

77 The Nomos, supra note 1 at 297.

78
Ibid. at 307.
Ibid. at 245.
2004] Review Essay

contemporary international law and its "United Nations paradigm."8

For Schmitt, the contemporary criminalization of aggression raises
the fundamental question of the possibility and propriety of understanding
humanity as a political category." Within thejuspublicumEuropaeum,wars
between sovereign and equal states could be limited. However, the
temptation to think of humanity as a political category (and of the globe as
a political unity) opens up the terrifying possibility that war will be
transformed into police actions or into a global civil war. In both cases, the
enemy is no longer ajustus hostis but an outlaw, an enemy of all humanity.
Thus, Schmitt points to the relation between modern means of
destruction and the rise of what appears to be (but in actuality is not) a
contemporary version of just-war thinking (though no longer rooted in the
concrete order that was the respublica Christiana).He explains that "one
needs a just war to justify use of such means of destruction. 82z This
statement echoes that made by J. Glenn Gray in 1959 in his thoughtful
reflection on men in battle:
Because our wars are becoming ever more totalitarian in character, this professional attitude
[toward the enemy] is suspect. Increasingly, we cannot fight without an image of the enemy
as totally evil, for whom any mercy or sympathy is incongruous, if not traitorous. Our wars
are tending to become religious crusades8 3once more, and the crusader's image of the enemy
is in sharp opposition to the militarist's.

Enemies of all humanity, as Koselleck has observed, are no longer

thought of as human: when politicized, the category of humanity leads to
the most asymmetric counterconcept. 84
As we have seen, Schmitt believes that the invocation of
abstractions such as humanity can easily serve the political ends of imperial
powers, but not those of humanity. In opposition to the abstractions of a
global international law celebrating humanity, Schmitt considers the
possibility that a world of several GroJ3raumewill arise-a world in which
wars will be limited and in which enemies will not be treated as enemies of

80 See e.g. Theodor Meron, "Defining Aggression for the International Criminal Court" (2001)
25 Suffolk Transnat'l L. Rev. 1; Anthony C. Arend & Robert J. Beck, eds., International Law and the
Use of Force: Beyond the UN CharterParadigm(London: Routledge, 1993).
81 See Carl Schmitt, "The Legal World Revolution" (1987) 72 Telos 73 at 85 where he writes of
"humanity as a political subject."
82 The Nomos, supra note 1 at 322.
83 The Warriors:Reflections on Men in Battle (New York: Perennial Library, 1973) at 174.
84 Reinhart Koselleck, "The Historical-Political Semantics of Asymmetric Counterconcepts"
in
Reinhart Koselleck, Futures Past: On the Semantics ofHistoricalTime, trans. by Keith Tribe (Cambridge,
Mass.: MIT Press, 1985) 159 at 159.
 OSGOODE HALL LAW JOURNAL [VOL. 42, NO. 2

all mankind. Elsewhere, with respect to the threatened dissolution of the

state, Schmitt explains that "[i]n a spiritual world ruled by the law of
pluralism, a piece of concrete order is more valuable than any empty
generalizations of a false totality."8 5 That statement would be just as
appropriate a caption for his response to the dissolution of a spatially-
grounded European international law.
For some, the dissolution of a spatially-grounded European
international law is merely a pre-condition for the achievement of a truly
universal "cosmopolitan law" encompassing the entire world. With the rise
of such a "cosmopolitan law" state sovereignty is necessarily relativized.
The rediscovery of Carl Schmitt has been used in the critique of this
"cosmopolitan orthodoxy" (held and disseminated by, for example, Jirgen
Habermas 86). It is hoped that this article will have helped show that this
contest involving cosmopolitanism and its various "opponents" is not one
of power politics versus pure morality-for very rarely do contests so show
themselves-but also one revolving around, in part, the political and moral
pitfalls of abstraction.87
To end our discussion of The Nomos of the Earth here is to end it
abruptly. However, in matters that are so close to home-so timely-it is
perhaps better merely to invite reflection than to propose conclusions or
launch criticisms. The (un)timeliness of Schmitt's work lies, in part, in the
way he raises questions we would ordinarily think of as belonging to the
realm of power politics (or of geopolitics), but does so in the context of a
philosophical sensitivity to the very foundations of law and politics. By
situating The Nomos of the Earthin relation to some of his other work, this
article has attempted to bring that sensitivity to light.

85 Schmitt, Ethic of State, supra note 45 at 206. See also Jean-Francois Kervegan, "Carl
Schmitt
and 'World Unity,"' in Mouffe, supra note 45.
86 See e.g. Jurgen Habermas, "Kant's Idea of Perpetual Peace, with the Benefit of Two Hundred
Years' Hindsight" in James Bohman & Matthias Lutz-Bachmann, eds., PerpetualPeace:Essayson Kant's
Cosmopolitan Ideal (Cambridge, Mass: MIT Press, 1997) at 113.
87 The problem of abstraction, the impropriety of thinking of humanity as a political category and
the terrifying possibilities opened up by the willingness to conceive of the globe as a political unity are
also prominent features of other thinkers, among which stands out the name of Hannah Arendt. As was
mentioned at the beginning of this article, both Arendt and Schmitt can be helpful in articulating a
properly phenomenological approach to law and politics. Like Schmitt, Arendt shies away from
moralizing and from so-called normative theory. But this comparison of Schmitt and Arendt, of their
many similarities-but also great differences-is a task for another time and place.