Post on 20-Oct-2015
Artemy Magun
The European University at Saint-Petersburg and
Smolny College of Liberal Arts and Sciences
Carl Schmitt’s Nomos of the Earth and the Evolution of His Thought
(1) Today, twenty years after the end of the Cold War and of the
international system built of two opposing ‘blocs’, it is increasingly obvious
that this system gave rise not to any new stable system, but to an ongoing crisis
in international relations, particularly regarding the law of war and peace. This
crisis above all consists in the erosion of all external political frontiers, and the
coexistence of a universal world order oriented at the regulative idea of eternal
peace, with a no less universal, expanding war. This war, which has
proliferating local centres, no longer has an inter-state status with two
equivalent parts each recognising the other as such, but is, in a way, a civil war
of the world community and/or of the big world powers against various
‘extremists’, ‘terrorists’, and the like. Because most local conflicts attract
intervention by world powers, they turn into police operations, on one side of a
conflict, and into partisan resistance on the other.@1 This eternal peace-war is
the result of the internalisation of international law, where borders of sovereign
states no longer constitute an outside subject against whom one can go to war,
but are rather sites of a pacified and suspended internal conflict.
The common reactions to this crisis are the following: the optimistic
liberal one that bets on ‘eternal peace’ and considers the proliferating wars as
rudiments of the pre-Enlightenment era; the ‘postmodernist’ one that sees the
current crisis as a symptom of the transformation of the entire world into a new
non-classical, de-centred, ‘post-modern’ universe; and the conservative
(‘realist’) one that regrets the disappearance of the normal political order and
searches for a new big political rival of the USA.
This crisis was anticipated and described by the great German political
thinker Carl Schmitt already at the end of World War II. The Cold War, with its
divided ‘unity of the world’ (Schmitt, 1952), only deferred but could not cancel
the problem of the globalisation of sovereign law.
Schmitt is widely read today: his apology of the political as based on
conflict is dear to those on the liberal left who would like to save the space for
subjectivity and indeterminacy in a world increasingly governed by ‘experts’;
his idea of the ‘state of exception’ describes well the current proliferation of
emergency zones; his philosophical approach to politics satisfies the demand of
encyclopaedic minds. However, most of the left/liberal readers of Schmitt are
well aware of his Nazi involvement and try to locate the proto-Nazi elements of
his thought. Thus, Chantal Mouffe (2000) rejects Schmitt’s notion of the
absolute, existential conflict and develops an idea of a tamed ‘agonistic’ type of
political relationship which implies a shared public space but is nevertheless
adversarial. Jacques Derrida (1997), in his reading, criticises Schmitt’s
privileging of enemies over friends and his definition of the political in strictly
oppositional terms. Instead, Derrida insists on the internal, indeterminate type
of friend-enemy distinction – which, as he shows, is in truth a ‘différance’, a
deferred internal difference within the same. Derrida (1997, p.89) particularly
notes that Schmitt’s distinction between the political and the domestic, as well
as his insistence on the ‘European’ nature of the properly political, indicates the
site of a ‘defensive operation’ against ‘an enemy of the political’. The latter
would imply an ‘absolute hostility’ and a ‘just war’ that would no longer be
‘political’ in Schmitt’s own terms.
Giorgio Agamben (2005),@2 on his part, accuses Schmitt of conceiving
the state of exception so as to fictionally legitimise extreme violence by means
of law, instead of (as Schmitt himself would claim) going beyond law and
connecting it with the extraordinary in being. Agamben’s Schmitt would thus
be, like the Nazis, a pseudo-revolutionary and a pseudo-exceptionalist at the
service of techno-rationalist order. However, these and other authors, while
separating in Schmitt’s legacy the husk of Nazism from the grain of truth,
usually miss the internal evolution of Schmitt who provides, in his Nomos of the
Earth and Theory of the Partisan, a self-critique and a meta-theory explaining
his earlier apologies of friend-enemy distinction and of sovereignty as
declaration of a state of exception, and limiting the scope of these categories.
Let us now briefly evoke this evolution of Schmitt. Already in The
Concept of the Political he points at the process of universalisation and
internalisation of law, not at the international level as yet, but in the framework
of a state.@3 Inside a country, he says, there gradually disappears the border
between state and society, and war increasingly becomes civil war. The
conclusion from this interiorisation and totalisation of politics could be, as it
later happens, the disappearance of determinate borders between friends and
enemies. But Schmitt draws an opposite conclusion. It is precisely now, at the
moment that the state is dissolved (back) in society, and society becomes
political again,@4 that the firm distinction of friend and enemy matters even
more, because this distinction is no longer natural, no longer scientific, no
longer delegated to the state, but is an existential decision that constitutes a
political subject out of a social element. The political is no longer identified
with the state, it is identified with the decision about the (rationally)
undecidable. However, as such, the classical friend-enemy distinction
(borrowed from Plato, who partly accepts and partly rejects it) is considered to
be a way to introduce at least some order and rationality into politics, on the
condition of preserving its unpredictable freedom.
Schmitt’s target are the liberals who, like Woodrow Wilson and Hans
Kelsen, argued for a future world state and the universalisation of law.
Concretely speaking, Schmitt wants to expose the hypocrisy and error of the
universalist accusation of war and of an ‘aggressor’ made in the Versaille
agreements. For Schmitt, this approach would not signify the end of wars, but
would instead lead to their intensification (given their repressed, irrational
status) and to the demonisation of enemies. His own definition of the political
includes ‘physical killing’ of the enemy as a permanent albeit extreme
possibility.
But, Leo Strauss (1996) was right when, in his review of The Concept of
the Political, he emphasised the liberal normativity present in Schmitt’s account
(it is precisely this normative line of argument that Chantal Mouffe continues in
The Democratic Paradox and other works on Schmitt@5). Criticising liberals
for moralising in politics, Schmitt himself takes a moralist approach, enjoining
subjects to determine themselves and to make decisions with regard to their
positions. Strauss points out that Schmitt reproduces on the international level
the ideology of mutual recognition that he rejects at the level of internal politics
as indecisive parliamentarism. It is unclear who, which moral authority, can be
the source of such imperatives (‘recognise your enemies’, ‘respect the
possibility of conflict’, etc.).
Furthermore, as we have seen with Derrida, this moralism of Schmitt
may be seen as politically problematic in retrospective, since the requirement to
choose and to define one’s part and party may lead to violence against those
undetermined, those refusing to decide – such as the supposedly protean,
ambivalent Jews. The same accusation could be made against Stalin’s regime,
which required of everyone to determine themselves ideologically and often
made ‘enemies of the people’ from those who were just hesitant.
Both Strauss and Derrida rightly imply that the friend-enemy distinction
cannot be something naturally given (as Hobbes, for example, thought it was).
Schmitt himself speaks of this distinction as of an a priori, transcendental
condition of the political as a sphere of being. His philosophical reference is
Kierkegaard,@6 behind whom stands Hegel with his constant emphasis on
negativity as the pre-condition of human public life.@7 But, Hegelian
negativity, and negativity in general, is a complicated concept. First of all,
negation is equivocal: it may mean opposition, and may mean contradiction.@8
Schmitt, in The Concept of the Political, understands distinction as an
opposition: for him, the choice ‘either-or’ is between friendship and enmity, for
and against, while the refusal to choose is just irresponsible. However, correctly
speaking, the non-friend is not necessarily an enemy, not even because it would
observe neutrality, but because it could be inhuman, it could be not recognised
as a human being or a collection of human beings worthy of its name, or it
could not recognise itself as such. A political ‘distinction’ does not necessarily
have to be made between two symmetrical equivalent instances recognising
each other. Behind each determinable border between two opposed entities,
there lies a deeper more fundamental indeterminate border between an entity
and its other – between oneself and not-oneself, between a friend and a non-
friend (enemy, for Schmitt (1996, p.27), is a figure of ‘the other, the stranger …
existentially something different and alien’, therefore ‘friend’ is something
which remains close, too close, to the self).
This border is, in a way, a border as such, the very possibility of a border
in a milieu where the distinction (negativity) remains potential. Such a border is
by definition internal, it fractures the one, and it is hard to say what the other
entity it delimits is. The civil wars and class antagonisms that Schmitt invokes
in his book as instances of enmity in fact differ from international wars: they
are more intense; precisely because the ‘enemy’ is too close and harder to
distinguish, it constantly escapes the violence of determination thus becoming,
paradoxically, even more of an enemy. Because the enemy is, in a way, a
friend, but not quite, he is becoming an absolute enemy, in a reflexive way. The
more he is (could be) a friend, the more he is (could be) an enemy.
Schmitt does not see this clearly yet in The Concept of the Political
(which tries to treat internal conflicts as though they were external ones), but in
the late Theory of the Partisan he is completely aware of this difference
between internal and external politics, and introduces the concept of ‘absolute
enemy’ for a figure that is precisely not an enemy in the immediate sense of the
word. A partisan is an internal, indeterminate enemy, the figure that disturbs the
very opposition friend-enemy, and this is why it is so much hated. Of course, it
would be good if all enemies would be external, externalisable. In a way, this is
a telos of an enemy, the one we want to separate from ourselves. But how to
achieve this? Is not an enemy just a ‘regulative idea’ of any Other?
The ‘friend-enemy’ distinction is even more idealistic, provided the
obvious fact that it postulates the subject’s unilateral power of decision and
ignores the symmetrical decision to be made by the other. The friend-enemy
distinction made by oneself would already delimit and determine the ‘enemy’,
who could prefer to aspire to universal validity and reject the definition of
‘enemy’ and the very distinction offered by the Other. This is particularly true
for the current civil war situation, where ‘terrorists’ try to construe a
symmetrical friend-enemy distinction (the USA against the Islamic world,
Russia against ‘Ichkeria’), while the global powers speak instead of an
asymmetrical war of the whole humanity against ‘terrorists’ or ‘extremists’.
Derrida, in his reading of Schmitt, notes this problem, and reproaches
Schmitt for excluding the private sphere and the non-European world from the
sphere of oppositional politics. For him, absolute hostility, which is even the
more hostile the more friendly the parties to the conflict are,@9 is the figure of
any hostility. Although Derrida (1997, p.120) sees Theory of the Partisan as an
auto-critique sui generis, he does not at all use The Nomos of the Earth in his
account.@10 But The Nomos of the Earth is crucial here, because it de-
naturalises the borders of the political, recognises the irreducible indistinction
between friend and enemy as a universal rule, and then points at the constitution
of the sphere where friends and enemies are distinct as a result of a historical
existential decision to separate it from the vertiginous absolute
friendship/hostility. The fixity and positing involved in the political are then
only tentative and finite, always drawing their force from the adjacent space of
indistinct and interwoven determinations. Schmitt’s project is then much closer
to Derrida than the latter himself would recognise. Thus, the hidden play of
contradictory meanings that Derrida tracks in a text usually informs, for a
‘normal’ reader, the rhetorical force of this text and the illusion of its positive
meaning.
(2) It is by the end of World War II that Schmitt became clear on the fact
that his appeal to found politics on the friend-enemy distinction had been
inadequate to the situation, either theoretically or practically. Firstly, this war
was in a large part, and on a large scale, a partisan war, and the distinction
between combatants and non-combatants was abandoned in it. Secondly,
Schmitt felt his own responsibility because his teaching, meant to prevent a
limitless war, in fact helped one of the sides to unleash it. Thirdly, international
law after the war tended, even to a larger degree than Versailles, towards a
moralist, pacifist, and internationalist setting – even if disagreeing with it,
stronger arguments had to be advanced than the mere a priori requirement to
divide friends and enemies. Therefore, Schmitt turned from his Neo-Kantian
method of a priori categorisation to a philosophy of history, which seeks to
present the constitution of the political, its historical origin and conditions (not
in the sense of external, empirical history, but of a history that already includes
and implies reflection). Here, it is not the sides of the distinction that matter, but
the very event of distinguishing something, the border itself and its emergence.
At the end of World War II, Schmitt composed a voluminous work that
gives a metaphysical account of the history of Modern international law. The
book is titled Der Nomos der Erde, The Nomos of the Earth, and appeared in
1950. Before any politics, Schmitt writes, there emerges a nomos, which, in
Greek, signifies division and distribution and only then, law. Schmitt underlines
the originally spatial meaning of this word and sees the drawing of spatial
boundaries to be the matrix of legal thinking (by the way, already in The
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Concept of the Political, Schmitt used the German words Unterschied for
distinction and Entscheidung for decision – both words deriving from scheiden,
to cut). A Nomos is a specific finite spatio-temporal horizon which determines,
for a certain epoch, a structural division of the Earth surface. A Nomos is
defined by a historical event. In Schmitt’s book, the Nomos in question is the
one of Modernity, and the founding event is the Great Geographic Discoveries
of the fifteenth-sixteenth centuries. In this period, European humanity
discovered for itself the Ocean. Metaphysically speaking, this corresponds to
the discovery of a void. The Europeans found a space where originally, for
them, there had not been any. Therefore, this space was conceived as a void –
not only in the Ocean which is indeed deserted, but also on the newly
discovered land which, though inhabited by ‘savages’, was nevertheless seen as
‘res nullius’ apt for ‘taking’. Moreover, Modern culture of this period
discovered the void in spheres other than geography: painting learned how to
convey the sense of space in a two-dimensional format, and science
‘discovered’ (in fact, produced) what it calls ‘vacuum’, in spite of Aristotle’s
refutation of its existence and of the logical absurdity of the notion. We must
recall here Schmitt’s earlier concept of the state of exception (see Schmitt,
2005, pp.5-15): again, there emerge categories that allow reason to think and
posit what (for it!) is not. Negation, negativity, border itself, and not what it
delimits, become a reality of its own.
Schmitt maintains that this discovery of the void allowed to reconceive
rationality and law in territorial terms. It is only after the Discoveries that
Descartes defined the external empirical reality as res extensa, and European
political entities became territorial states, unity of territory gradually taking
over the dynastic principle. Intra-European politics derived from the reservoir
of the Ocean a space for its proper self-mastery. The oceanic and colonial space
provided the schema of a free space, while itself remaining undivided and
indeterminate. The newly discovered land and sea were conceived under the
law of the sea which had always been a law of exception: no rule of regular
warfare, no traditional friend-enemy distinctions could be applicable there.
Extreme violence, even among fellow Europeans, was acceptable in this desert,
the land of tyranny, lawlessness, and ‘natural’ (Hobbes) warfare. But at the
same time, European international law gradually became more civilised. After
the Thirty Years’ War (1618-1648), an international system was created which
Schmitt calls ‘Ius Publicum Europaeum’. This is an order where sovereign
states recognise each other and, what is most important, abandon the
universalist idea of war for a just cause (iusta causa). Instead, the apparatus for
conceiving and legitimising war became based on the subjects who are
involved, and not on the issue that is at stake. Instead of iusta causa, there
emerged (in the works of Balthazar Ayala, Francisco Vittoria, and others) a
category of iustus hostis, a ‘just’ (i.e. legitimate) enemy. Another component of
the Ius Publicum Europaeum was the doctrine of the balance of powers: states
knew they were interested in maintaining the pluriversum of states in order to
preserve their own sovereignty, and agreed to act against a state that would
aspire to hegemony. Finally, the Europeans of that time developed the content
of the law of nations – ius gentium – rules that were increasingly applied to
prevent damage to civilians, torture of prisoners, and the like excesses.
It is not hard to recognise in this nostalgic picture Schmitt’s earlier
description of the friend-enemy distinction as a universal definition of the
political. But now, he takes a radical new step: regular politics, with subjects
mutually recognising each other as opposed entities, implies and depends on its
other – the space of irregular warfare, in which a friend and enemy are hard to
recognise. Humane international law, earlier held suspect by Schmitt for its
universality is valid if held not by a ‘neutral’ imperial power or by an invisible
hand of progress but by the experience and adjacency of what contradicts it.
This dual Nomos is concretely embodied in the so-called ‘amity lines’ –
the imaginary meridians that divided the world into halves (or other shares) of
friendship and enmity (Schmitt, 2006, p.90ff). The first such amity line was
drawn in a treaty between France and Spain signed in 1559. According to this
treaty, on the European side of the line, the sides agreed to be ‘friends’ – to be
at peace or, in the case of a conflict, to resolve it through limited warfare. But
beyond this line, the sides agreed not to take on themselves any responsibilities,
which is to say that a French ship could capture and sink a Spanish one, and
vice versa.
There is thus not one distinction, but two: a distinction (friend-enemy),
and a distinction between this distinction and a non-distinction (or, which is the
same thing, an indeterminate ubiquitous distinction). The latter border is a
meta-border, so to speak, a border of borders – this is the amity line (it is not by
chance that it is not the enmity line: the meta-border between the internal and
the external is itself internal). By drawing amity lines, the European space
defined the space that is external to it, making it not just external, but internally
external. Schmitt emphasises the salutary effects of such division, although the
argument may be easily inverted (as does Agamben) to show that it is indeed
the European civilised space that posited and thus indirectly or directly
produced a zone of violence, gradually turning the non-European world into a
state of exception. We need not forget, however, that the real foundation of the
Modern Nomos are not the amity lines taken as such, but the event where the
borders of the old world were destroyed: it is after this negative and opening
event that the more positive act of line-drawing could take place.
Now, as is easy to guess, the Ius Publicum Europaeum came to an end,
too. To explain the current situation, Schmitt tells the story of its gradual decay
which led to the erosion and erasure of the ‘amity lines’ and their analoga.
Indeed, throughout the three hundred years of their existence, the world lines of
Modernity are subject to an ‘osmosis’ between the two sides of their space. This
osmosis liquidates the difference in potentials that has maintained the Modern
Nomos. The key elements of this process are, for Schmitt, firstly, the
democratisation of state politics in Europe and, secondly, the gradual
transformation of the status of colonies, their obtention of a sovereign status.
The main stages of the destruction of the Modern Nomos of the Earth were the
following:
(1) The French Revolution, which led to the creation of mobilisational
armies and of partisan wars against Napoleon (in Spain and Russia). Partisan
wars no longer follow the rule of mutual recognition of enemies: here the
question is of absolute not relative enmity: an absolute enemy embodies
negativity as such as is the one that should not have even existed: thus, the very
contrary of the enemy in a regular sense of the word. Absolute enmity leads to
total destruction. Meanwhile, says Schmitt, the Ius Publicum Europaeum
survived the Napoleonic wars and was extended for about one hundred years
through the efforts of the Vienna Congress.
(2) Starting at the end of the nineteenth century, the colonies of European
states began to acquire sovereign status. Schmitt draws in particular on the first
such case: the international recognition, in 1885, of the sovereignty of Congo,
which at the same time did not annul its de facto colonisation by several
European states. Thus, the very principle founding European international law
was, according to Schmitt, annulled.
«Jurists believed that Europe was being complimented by the reception of
non-Europeans and did not notice that, in fact, they were loosening all the
foundations of a reception, because the former order – good or bad, but in any
case conceived of as clear and concrete order, above all as a spatial order, by a
true community of European princely houses, states, and nations – had
disappeared. What appeared in its place was no “system” of states but by a
collection of states randomly joined together by factual relations – a
disorganised mass of more than fifty heterogeneous states lacking any spatial or
spiritual consciousness of what they once had in common, a chaos of reputedly
equal and equally sovereign states and their dispersed possessions, in which a
common bracketing of war no longer was feasible and for which not even the
concept of ‘civilisation’ could provide any concrete homogeneity» (Schmitt,
2006, p. 233-234).
Note what Schmitt emphasises here. He is not particularly defending a
creation of a state of exception in Congo that would legitimise violence, etc.
What he denounces, quite consistently with his early argument in Political
Theology,@11 is the universality abandoning all care of facts. The concept of
sovereignty applied to all states becomes merely a formal principle which loses
its determinate meaning. Law, a formal sphere by definition, needs a pre-legal
‘Nomos’ that would specify the field of its applicability, the rule of applying
rules to facts. Otherwise, it becomes ‘dis-applied’ and turns into empty lip
service. The universalisation of the European regular space turned in fact into
its fusion with the non-European ‘law of the sea’, of the regime of
indeterminate and ubiquitous hostility.
(3) The third step in the destruction of European law was, for Schmitt, the
First World War and its aftermath. Not only was it unprecedented in number of
casualties, including casualties among civilians. Moreover, it re-actualised the
old logic of iusta causa. The victorious powers departed from the earlier
existing practice and did not limit themselves to annexations and contributions:
they legally fixed the accusation of Germany as being an aggressor and a
militarist state, introduced into the Versailles Treaty and into the Geneva
Declaration (1924) a norm that denounced for the future any ‘aggression’ (i.e.
starting of a war). Thus, says Schmitt, the older ‘discriminating’ notion of war
was revived: that is, the notion of a iusta causa. Indeed, a country that starts a
war will lead an unjust war, and a country that resists it will lead a just war. In
practice this means that countries will abstain from formally declaring a war,
will accuse each other of first provocation, and will argue that the war is
conducted in the interest of humanity against the enemies of humanity. Thus,
the limitation of war and the recognition of an enemy will be endangered (one
does not choose means in a war for a just cause).
(4) As though on purpose, says Schmitt, new technological means
emerged that changed the character of war. Schmitt does not yet mention the
nuclear bomb but attracts attention to airplanes and submarines – machines
which conquered two new elements (air and water depths). Firstly, these
technologies, writes Schmitt, potentially make war asymmetrical (the attacker
may remain invulnerable at attacking) and ideally fit for a war that appears as a
punitive, police action aimed against a ‘criminal’. Secondly, these technologies
are by definition not created to occupy a territory or take prisoners (the highly
important goals of preceding wars) but rather fit for raids, interventions, etc.,
exclusively destined to destruction and killing.
As a result of these events, there came the dissolution of the global legal
order of Modernity. Instead of the dualism of the regular and irregular spaces
there comes a situation that Schmitt characterises as Raumlosigkeit,
spacelessness. All distinctions and borders become indeterminate, internal.
Distances are annulled. Men and states lose reference to an opening empty
world, which had for hundreds of years served as a foundation of political
sovereignty and individual subjectivity. In exchange, there emerge the intensive
internal spaces, where the constant crises fracture, ad infinitum, the already
secluded spaces, such as zones of territorial conflicts.
This is, in a nutshell, the story told by Schmitt in The Nomos of the Earth
and other works from his late period. It describes the current (post-World War
II) global situation as a situation of crisis linked to the universalisation and
internalisation of law. All borders here become Kafkaesque points of
suspension and deferral rather than of decision and foundation. All problems
and conflicts are suspended, all subjects are fractured and subdivided. The
execution and administration of law takes the place of its public sovereign
function. In internal politics, consensual moralism takes the place of democratic
debate.
It is important to see this account as a meta-theory created by Schmitt to
objectively explain the possibility of a regular politics and of a friend-enemy
relationship that he recommends. This relationship becomes then not a
normative requirement but an objective historical regime existing with some
preconditions. This work of Schmitt disarms his later critics, such as Derrida or
Žižek (1999), who reproach him for ignoring the internal indeterminate border
between self and enemy, the zone of their indistinction, etc. In The Nomos of
the Earth, Schmitt takes this internal, spectral difference into account but shows
how it gives birth to a more definite external type of distinction: they relate in
the way that constituent power relates to constituted power.
Thus, Schmitt historicises his conception of politics. This is a great
strength of his book, although it also contains a weakness. This is a weakness
common to many philosophies of history that try to give an event metaphysical
significance: the event Schmitt describes is empirical, occurring at a certain
time, but the way it is described makes it, in a way, an event ‘as such’, the very
form of a historical event (that divides chaos from order). Such theories
(another example is Alain Badiou’s philosophy of ‘event’: see Badiou, 2005)
cannot escape an element of myth. A response, however, could refer to the
retrospective interpretation of an event which is our finite horizon: because this
event is our foundation, we can only think of it in universalist, transcendental
terms, even though these forms are forms of emergence.
Of all classic commentators of Schmitt, it is only Giorgio Agamben who,
in Homo Sacer, gives justice to this grand narrative of Schmitt’s Nomos of the
Earth. In fact, Agamben bases the core argument of this book on Schmitt. He
writes:
@The process (which Schmitt carefully described and which we are still living)
that began to become apparent in the First World War, through which the
constitutive link between the localization and ordering of the old nomos was
broken and the entire system of the reciprocal limitations and rules of the Ius
Publicum Europaeum brought to ruin, has its hidden ground in the sovereign
exception. What happened and is still happening before our eyes is that the
‘juridically empty’ space of the state of exception … has transgressed its
spatiotemporal boundaries and now, overflowing outside them, is starting to
coincide with the normal order, in which everything again becomes possible.”
(Agamben, 1998, p.28)@
Thus, at the current moment of@what is happening in the processes of
dissolution of traditional state forms in Eastern Europe … [p]olitical organization
is not regressing toward outdated forms; rather, premonitory events are, like
bloody masses, announcing the new nomos of the earth, which (if its grounding
principle is not called into question) will soon extend itself over the entire
planet. (Ibid.)@
True, generally, to Schmitt – but even in this account Agamben makes
some shifts which will become more visible in his later work (State of
Exception), the one that criticises Schmitt’s attempt to ‘guarantee the
articulation between an inside and an outside,’ to ‘reinscribe violence within a
juridical context’, and even to invent ‘fictions through which law attempts to
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encompass its own absence and to appropriate the state of exception’
(Agamben, 2005, pp.57, 59, 51). Agamben opposes to Schmitt the standpoint of
Walter Benjamin’s ‘effective state of exception’, which is ‘a zone of absolute
indeterminacy between anomie and law’ (ibid., p.57)
In the quoted passages Agamben departs from Schmitt because for him,
the current growth of the space of exception is the coming to the surface of
what had been hidden in the very notion of law from the very start. Similarly,
he calls the new situation after the destruction of borders between regular and
irregular space, an anticipation of ‘a new Nomos of the Earth’. Now, for
Schmitt, the Modern state of exception was not an anticipation of today’s camps
etc., but an attempt to take into account the existence of indistinguishable zones.
The provision of such zones does not necessary feed violence, instead it may be
a readiness to live with the indeterminacy and indistinction between the self and
the other. Furthermore, the current regime of empty universality, in Schmitt’s
view, is not a new ‘Nomos’ but a destruction of the old one: a nomos would
imply new divisions, new redistributions of inside, outside, and in-
between.@12 The new situation does in fact provide for exceptions, because it
conflates law and exception.
In Agamben’s account, extremely subtle as it is, we can see a tendency to
reify the zone of exception as a space of arbitrary rule and violence. In Schmitt,
this is rather a sphere of openness of the subject to alterity, which at the same
time refuses to recognise this alterity immediately in the familiar
categories.@13 Schmitt tends to take negation, and negativity, seriously, in
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spite of their unavoidably weak and failed epistemological status (we half-
affirm what we negate). Agamben rejects any such negative statements, self-
limitations, etc., proposing his own negative model – the severing of all
relations of the subject to the object, complete abandonment without half-
noticing the thing that you abandon. Such radical negation could be salutary,
but is it possible? Is not it also, in a way, a defeat in front of the infinite or
indeterminable? Schmitt’s comment on the sovereignty of Congo, which I
quoted above, accentuates that for Schmitt the state of exception and the need
of amity lines are inspired by the desire to ground law in the fact and to return
to law the character of a concrete order. An important point for the current
situation in post-Soviet states, for example, where the abstract premises of
liberal contractual law are often imposed upon the established set of practices,
with the result that these practices are criminalised, and law, implemented
arbitrarily against individuals badly seen by the rulers (the case of
Khodorkovsky’s imprisonment in Russia (2003) and numerous others).
Paradoxically, here it is the law not illegality that needs a sovereign decision on
exception to be applied. This situation is an inversion of Benjamin’s well-
known formula: ‘The state of exception [that] becomes a law’ – here, rather,
law itself becomes an exception. Schmitt does not, to my knowledge, refer to
such possibility, but Agamben does give a theoretical tool for thinking this
situation. In Homo Sacer he points at the duality of “example and “exception”:
exception is “inclusive exclusion”, example is exclusive inclusion”: the former
is reality outside of law, the latter is law itself as an outside of reality.i
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Thus, Schmitt and his contemporary followers eloquently describe the
current crisis, the crisis where law and politics lose their determinacy. Schmitt
shows how this crisis follows from a destruction of the previously existing
concrete order of power, while Agamben sees it on the contrary as a
culmination of tendencies inherent in the very idea of law (which always need
to encircle a sphere of the outlaw). Agamben, with his archaic references,
refutes Schmitt’s historical or meta-historical account. But the question is, what
follows from this reasonable critique?
Agamben describes the current situation in an apocalyptic mood and the
only solution he sees is a des-activation of law and an exit ‘beyond the principle
of sovereignty’. Schmitt, unlike him, treats the current crisis historically, not as
a human condition or as a culmination of the millennial human history, but in
the context of a specific, even if prolonged, event. The current process of
dissolution is thus to be thought only from the perspective of this founding
event (which it in many ways reenacts). The problem is, then, not the existence
of law as such – appeals to its nullity are not new, and have sounded at least
since the Greek sophists and Saint Paul. But Modern law, created in a practical
thrust of humans to conquer the Ocean, itself determined the further history in a
decisive way, by dividing the two different types of considering conflict. The
problem is, then, not the formality and positivity of law as such, but the
forgetting of the historical essence of law, which right now is often reduced to
arbitrary positive regulation or to natural ‘human rights’. Moreover, the
problem is not the mere fact that law produces states of exception, but that it
produces them, so to say, not knowing them, and excludes of law completely,
like the liberal contract law which outlaws – and thus perpetuates – corruption.
Schmitt’s sovereignty is something else – it is a paradoxical structure where law
recognises the situation not solvable within law, as though using a periphery
vision, in spite of itself. Agamben does not distinguish between the situation
where the statue of Themis is veiled (his preferred emblem of the state of
exception) and the situation where she points aside, to what it cannot see. But
for Schmitt, it is this distinction that matters, hence his pathos of angry reproach
and his political activism. For Schmitt we have not too many, but too few states
of exception, because we have lost our capacity to distinguish them from the
normal ones.
To Schmitt, the state of exception is not arbitrary rule, but a procedure of
decision-making. This procedure may be dictatorial, but it may also be a radical
democratic one. The paradox of a dictatorship is to rule arbitrarily while being
a delegate of someone else (the people, for instance) – in this case most of our
‘democracies’ are, in Schmitt’s sense, dictatorships. His work on dictatorship
criticises the illusion of an omnipotent sovereign will or (which is the same
thing) of an absolutely arbitrary rule. He thus creates a background for the
subsequent concept of ‘state of exception’ where law does remain valid –
negatively, so to speak – in spite of its authorisation of the discretionary powers
of the relevant authorities.
Chantal Mouffe is to be credited for drawing our attention to the
paradoxical nature of Modern democracy. Paradox, for her, is the simultaneous
validity of the liberal and democratic principles, namely, ‘equality and liberty’,
absolute ‘human rights’ and the political logic of internal struggles for
hegemony (Mouffe, 2000, p.8). However, she thinks that unlike a
‘contradiction’, paradox is not destructive, but allows building a workable
‘paradoxical configuration’ (ibid., p.13), such as the coexistence of ‘friendly
enemies’ (a properly paradoxical formulation).
Mouffe rightly sees that for Schmitt, liberal democracy is an internal
contradiction and not a fruitful paradox, if we understand by liberalism the logic
of negotiation of differences. Paradox, for him, is elsewhere: it is the one
between the constituent and constituted power, or between legality and
sovereignty. Sovereignty can mean here a dictatorial rule, but also a democratic
plebiscite. This, for Schmitt, is the ‘democratic paradox’, which is not to be
resolved on a regular basis but is to be recognised as such, via an eventful exit
of legal reason out of its borders. This is why Schmitt privileges enmity over
friendship: for him, a paradox can only have an external, ex-ceptional solution,
while Mouffe, like Hegel, Derrida, and Agamben, insists on the internality of
enemies and exceptions. One should not forget that Schmitt was a disciple of
Kierkegaard, for whom ‘paradox’, one of his key concepts, was something that
excluded mediation but could only be grasped as a unique existential event.
Andreas Kalyvas is therefore right when he sees Schmitt’s force, and at the
same time weakness, in conceiving democracy as a ‘politics of the
extraordinary’: a regime that provides and allows for exceptional appeals to
people. Real democracy in this sense (and this is something that goes against
Mouffe’s attempts to ‘domesticate’ and stabilise antagonism) can only be
extraordinary. The danger lies, for Kalyvas, in the fact that such politics may
reduce and isolate democracy in rare and unwanted events: his bet (and he
enlists Schmitt as his ally) is to multiply the ‘extraordinary’ democratic forms
within a given legal order.
@For democracy to be an effective and viable regime, it has to move from the
extraordinary and unstable moment of its popular founding to the most prosaic
but equally essential ordinary moment of its institutionalization and
normalization, that is, of its constitutionalization. (Kalyvas, 2008, p.135)@
Of course, this appeal to normalise the abnormal may be seen, like
Mouffe’s, as a suggestion to soften the paradox of the political. But at the same
time, its very formulation preserves the paradox…
Generally speaking, the paradox of democracy is not the tension between
difference and equality, or between liberty and people’s power: it is the very
‘power of the powerless’ (see Havel, 2009) or ‘la part des sans-parts’
(Rancière, 1999) – the need to rule for the people who do not rule by definition.
Democracy can solve this question by having a procedure of dissolving the
ruling organs of a state – when, in a deadlock, the usual representatives are sent
back, and the government addresses the people directly, not via a referendum,
but via an ad hoc direct popular discussion on the model of soviets – Kalyvas is
right on this point.
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This is all good on the assumption that we see Modern politics as
democratic. But even in an undemocratic version of the Modern State, a state of
exception can still make a difference. To give again an example from Russian
politics: the war in Chechnya, started in 1994, finished by a peace agreement in
1996, and renewed in 1999, was justly denounced as a process that involved
mass violence against civilians, cruel treatment of prisoners, etc., on both sides
of the conflict. It would seem that this enclave of violence and, as the Russian
word goes, of ‘bespredel’ (limitlessness of violence) is a good illustration of
Agamben’s state of exception that supplements the relatively peaceful state-
building in the rest of the Russian Federation. However, it must be noted that
the Russian authorities consistently refused to declare a state of emergency in
the Chechen Republic. The President’s Administration repeatedly blocked this
initiative when it was proposed by the Duma. As a result, the law used against
prisoners and other enemy combatants is regular criminal law (with its habeas
corpus, etc.). Needless to say, its requirements were completely unrealistic and
usually ignored. Law was construed as something formal and detached from
reality. The existing situation was that of ‘bespredel’ (limitlessness of power).
A state of emergency would at least introduce a perception that law is destined
to reflect reality and an attempt to codify the minimum of rules for the Russian
soldiers. It was not done, and it is clear why. Can we then call the anomie, with
Agamben, a state of exception, and blame its horrors on law itself?
To develop this example somewhat more, the Chechen war, like similar
guerilla uprisings, would have a special legal definition in mediaeval, pre-
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Modern law – before the state of exception was evacuated into colonies. This
was the so-called ‘right to resistance’ (Widerstandsrecht) that codified a civil
(private) war on the part of a subject of Empire. A person starting such a war
would be a rebel to be put to peace by the imperial troops. But at the same time,
he had certain rights, like the right for his claim to be heard in court. Note the
paradoxical nature of this law: like Modern democracy, the mediaeval
Widerstandsrecht tried to give a right to the illegal, to include it, in a way, into
the sphere of public recognition. This mediaeval precedent should perhaps serve
as a model for treating the proliferating civil wars in today’s world. To the
current tendency that transforms international conflicts into civil ones, one has
to oppose a transformation of some parts of internal law into international law
(by adding the law of civil war and peace into the constitutions, for
example).@14
To conclude this article, I need to restate the original constatation. The
current homogeneity and globalisation of law risks to put the world into a
situation of unlimited civil war. The abstract universality of contemporary law
requires creation of exceptions, of political and legal off-shores, so to say:
sometimes to extend democracy, sometimes to limit it in an open way. These
off-shores can become spaces of camps and torture, but can equally become
laboratories of freedom. For the latter to be the case, one needs both a political
subjectivisation and a sobering of the liberal legal rationality, which either
believes that it can describe the totality of human relations, or abandons any
hope of doing so by retreating into a zone of autonomous formalism. Law
should learn to set limits to itself and look awry beyond these limits.
References
Agamben, G. (1998) Homo sacer: sovereign power and bare life. Translated by
Daniel Heller-Roazen. Stanford, CA: Stanford University Press.
Agamben, G. (2005) State of exception. Translated by Kevin Attell. Chicago
and London: University of Chicago Press.
Aristotle (1975) De Interpretatione. In: Aristotle, Categories and De
Interpretatione. Translated by J.L. Ackrill. Oxford: Clarendon Press, pp.43-68.
Badiou, A. (2005) Being and event. Translated by Oliver Feltham. London:
Continuum.
Derrida, J. (1997) The politics of friendship. Translated by George Collins.
London and New York: Verso.
Hardt, M. and A. Negri (2004) Multitude: war and democracy in the age of
empire. New York: The Penguin Press.
Havel, V. (2009) The power of the powerless. In: Havel, V. et al., The power of
the powerless. [CITY???:] Taylor & Francis[, pp.???].
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Hegel, G.W.F. (1969) Science of logic. Translated by A.V. Miller. London:
George Allen & Unwin.
Kalyvas, A. (2008) Democracy and the politics of the extraordinary. Max
Weber, Carl Schmitt, and Hannah Arendt. Cambridge: Cambridge University
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Kervégan, J.-F. (1992) Hegel, Carl Schmitt. Le politique entre spéculation et
positivité. Paris: PUF.
Löwith, K. (1984) Der okkasionnelle Dezisionismus von Carl Schmitt. In:
Löwith, K., Sämtliche Schriften, Bd. 8. Stuttgart: Metzler, S.32-71.
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Marx, K. (1978) On the Jewish question. In: Tucker, R.C. (ed.), The Marx-
Engels reader. 2nd
ed. New York: W. W. Norton & Company, pp.26-52.
Mouffe, C. (2000) The democratic paradox. London and New York: Verso.
Rancière, J. (1999) Dis-agreement: politics and philosophy. Translated by Julie
Rose. Minneapolis: University of Minnesota Press.
Schmitt, C. (1952) Die Einheit der Welt. Merkur, 6 (1), S.1-11.
Schmitt, C. (1996) The concept of the political. Translated by George Schwab.
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Schmitt, C. (2006) The Nomos of the Earth in the international law of the Jus
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Notes
1 For a good analysis of the current right and phenomenon of war, see Hardt
and Negri, 2004. They write (p.3): ‘There are innumerable armed conflicts
waged across the globe today, some brief and limited to a specific place, others
long lasting and expansive. These conflicts might be best conceived as
instances not of war but rather civil war.’ Hardt and Negri (ibid., pp.14-15)
point out the three features of this new world civil war: ‘the limits of war are
rendered indeterminate, both spatially and temporally’, ‘international relations
and domestic politics become increasingly similar and intermingled’, and the
new conception of friendship and enmity: both abstract and at the same time
unlimited, absolute and morally motivated. Hardt and Negri’s analysis,
particularly with regard to the change from the Modern limited to the post-
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Modern unlimited idea of war, comes very close to Schmitt’s Nomos of the
Earth, a work that they curiously do not cite (unlike many other works of
Schmitt).
2 For instance, see p. 59: ‘The attempt of state power to annex anomie through the
state of exception is unmasked by Benjamin for being what it is: a fictio iuris par
excellence, which claims to maintain the law in its very suspension as force-of-.’
3 As Schmitt thinks this happens: see Schmitt, 1996, pp.19-22.
4 Cf. Marx (1978) on the political nature of mediaeval society and on its
depoliticisation in the Modern era.
5 A symptomatic phrase from The Democratic Paradox, p.117: ‘I have
proposed to envisage [THIS IS HOW THE SENTENCE ON P.117 GOES IN MY
COPY OF THE BOOK, NOT [T]he aim of???] democratic politics as a form of
“agonistic pluralism” in order to stress that in modern democratic politics, the
crucial problem is how to transform antagonism into agonism.’
The full sentence goes like this: “I have proposed to envisage democratic politics
as a form of 'agonistic pluralism' in order to stress that in modem democratic
politics, the crucial problem is how to transform antagonism into agonism. In my
view the aim of democratic politics should be to provide the framework through
which conRicts can take the form of an agonistic confrontation among adversaries
instead of manifesting themselves as an antagonistic struggle between enemies.”
6 On Schmitt’s connection to Kierkegaard, see Löwith (1984); Kervégan (1992,
pp.129-130).
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7 See Kervégan (1992): Kervégan shows that Schmitt combines, in his own way,
the Hegelian negativity with the no less Hegelian insistence on ‘actual’, ‘concrete’
facts.
8 See, for example, Aristotle, De Interpretatione, 17-18b10, [???]; Hegel
(1969), Book 2, Division 1, Chapter 2, B3 and C.
9 ‘The enemy [is] he who is at one and the same time the closest, the most
familiar, the most familial, the most proper’, Derrida (1997, p.163) writes,
taking Schmitt’s late ‘Wisdom of the prison-cell’ as his point of departure.
10 There is just one mention of this book in Derrida (1997): in the footnote 30,
p.270.
11 ‘Every general norm demands a normal, everyday frame of life to which it
can be factually applied and which is subjected to its regulations’, ‘[f]or a legal
order to make sense, a normal situation must exist, and he is sovereign who
definitely decides whether this normal situation exists’ (Schmitt, 2005, p.13).
‘In the exception the power of real life breaks through the crust of a mechanism
that has become torpid by repetition’ (ibid., p.15).
12 Cf. Schmitt, 2006, p.241: the Paris conference, says Schmitt, ‘in no sense
created a new order. It left the world in its earlier disorder…’
13 On this motif of openness in Schmitt, see Magun, 2009.
14 Early liberal theories still assumed this: thus, Locke, in the Second Treatise,
calls revolution a re-bellion, a return to a state of war.
i Homo Sacer, pp. 21-22. Agamben does not give present-day political correlates for this structure, though.
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