Nomos of the Earth

Schmitt, Carl. 2006. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York: Telos Press Publishing.

Carl Schmitt’s Nomos of the Earth could be called legal genealogy of the territorial spatial ordering of the earth, particularly as it relates to war. The prized moment, in Schmitt’s view was the period between 1492 and 1890, when a true nomos of the earth—a worldwide territorial order—was achieved under the aegis of the Jus Publicum Europaeum (JPE), a hegemonic European legal balance mediating relations between sovereign (European) states. Despite the seeming contradiction, he sees the JPE as Eurocentric global international law (49). This European order, says Schmitt, was also (implicitly) a world order, a nomos of the Earth, including terrestrial land and the seas.

The JPE replaced the respublica Christiana of the Middle Ages, which remained a narrow European order, considering the New World was still off the chart. But the Middle Ages were also a period in which Church (spiritual) and princely (temporal) power still co-existed in the European system, muddying the waters of European order. Although a direct precursor to the JPE, the confused spatial ordering of the Middle Ages “rested on the distinction between potestas [power] and auctoritas [authority] as two distinct lines of order of the same encompassing unity. Thus, the antitheses of emperor and pope were not absolute, but rather diversi ordines [diverse order], in which the order of the respublica Christiana resided” (61).

But the medieval Christian order began to dissolve in the 13^th Century as polities began to practically and legally withdraw from this order (65). Nonetheless, religion still played a prominent role in defining (just) wars and (just) enemies. Wars were in this sense “bracketed” by distinguishing between types of wars and consequently the ordering of people (especially, non-Christians).

It’s the broader “bracketing” of war—its ‘rationalization, humanization, and legalization—and its consequent nomos that Schmitt finds so important of the JPE that emerged from the Middle Ages. This was accomplished by limiting war, at least in the continental terrestrial terrain of Europe, to a military relation, exclusively, between territorially defined sovereign states (100, 140-141). Like the traditional duel, Schmitt says, states engaged each other as equally sovereign powers with particular rules of the game and common suppositions about war meant—both in its engagement and its outcomes (140-143). Already, we can see how rife with contradiction Schmitt’s understanding of what “bracketing” actually means—it’s basically whatever is needed for upholding the nomos.

States engaged war as justi hostes (just enemies) with the same political character and rights, so it was not a war of annihilation as had been the case in religious wars and conflicts against “criminals” (rebels and pirates) or colonial others (142). The status of the opponent state itself was not in question, which marks a clear problem for today’s civil conflicts, the new label of “criminal insurgents” or the case, for instance ,of Israel/Palestine in which neither side seems to afford the other the status of legitimate statehood. But the notion of just enemies also raises the question of just wars. Who decides?

In the JPE, the balance of power and the status quo is ultimately what is at stake. Europe presented what Schmitt saw as a unique case in which the fate of each had severe consequences for the fate of all, and this tenuous balance is what needed to be preserved at all costs. “The pervasive commonality of the spatial order is more important than everything usually associated with sovereignty and non-intervention” (189). The enemy who threatens this nomos is an “unjust enemy,” an enemy of all with no political recognition and against that unjust enemy is launched a crusade, which exceeds just war (169). An unjust enemy, who can be insurgents, criminals, and pirates, are actually a threat to the constitutive link between nomos and law. The Chapters of Part III are eerily prescient about many of the principles mobilized by the United States in the War on Terror. The “singular achievement” of the JPE was not the elimination of war, but its “bracketing” (187).

This nomos, however, began to unravel in 1890 with the signing of the treaty that carved up Africa—an event that also marked the entry of the United States. This unraveling could also be dated to the Monroe Doctrine, which essentially cordoned off the Western Hemisphere, thereby disrupting the Eurocentric nomos of international law. He saw U.S. imperialism, most clearly objectified in the Monroe Doctrine, as the closest thing around in his latter days to a new nomos of the earth.

Schmitt credits this unraveling with the World Wars that ensued, the latter due to the contradictions of the League of Nations to constitute a real nomos. “The decline of the jus publicum Europaeum into a universal world law lacking distinctions no longer could be stopped. The dissolution into general universality simultaneously spelled the destruction of the traditional global order of the earth. It was replaced by an empty normativism of allegedly recognized rules, which, for a few decades, obscured consciousness of the fact that a concrete order of previously recognized powers had been destroyed and that a new one had not yet been found” (227). The epitome of this trend, according to Schmitt, was the attempt to eliminate war altogether, which in effect criminalized war—war, again, became unbracketed (WWI and WWII). War had turned to global civil war. His main critique of liberalism lies here in its misguided supposition that conflict can be excised from the social; a view Schmitt saw as not only a-political but also disastrous.

Fundamental to Schmitt’s notion of nomos is land-appropriation, because he understood land-appropriation as the constitutive event or act in which the law is made legitimate in and through space. “Land-apporpriation thus is the archetype of a constitutive legal process externally (vis-à-vis other peoples) and internally (for the ordering of land and property within a country). It creates the most radical legal title, in the full and comprehensive sense of the term radical title” (aka, at the roots) (47). It’s an ontology: “Every ontonomous and ontological judgement derives from the land. For this reason, we will begin with land-appropriation as the primeval act in founding law” (45). If in less sweeping terms, I think Weber, Marx, and Lefebvre all make comparable points about appropriation as a constitutive political event.

“Thus, in some form, the constitutive process of a land-appropriation is found at the beginning of every settled people, every commonwealth, every empire. This is true as well for the beginning of every historical epoch. Not only logically, but also historically, land-appropriation precedes the order that follows from it. It constitutes the original spatial order, the source of all further concrete order and all further law” (48). In fleshing out a geneaology of the term nomos, he says one can trace three connotations of the term with the presupposition of their spatiality: “appropriation, distribution, and production” (327). In view of this genealogy, another statement becomes more intelligible: “Thus, nomos is the immediate form in which the political and social order of a people becomes spatially visible” (70).