Carl Schmitt's Nomos of the Earth and the Evolution of His Thought_Artemy Magun

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

Con formato: Sin Resaltar

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




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


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



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.


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-


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.???].








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

Press.

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.

Magun, A. (2009) What is an orientation in history? Openness and subjectivity.

Telos 147 (Summer 2009), pp.121-148.

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.

Chicago and London: University of Chicago Press.












Schmitt, C. (2006) The Nomos of the Earth in the international law of the Jus

Publicum Europaeum. Translated by G.L. Ulmen. New York: Telos Press

Publishing.

Schmitt, C. (2005) Political theology. Translated by George Schwab. Chicago

and London: University of Chicago Press.

Strauss, L. (1996) Notes on The concept of the political. In: Schmitt, C., The

concept of the political, pp.83-106.

Žižek, S. (1999) Carl Schmitt in the age of post-politics. In: Mouffe, C. (ed.),

The challenge of Carl Schmitt. London and New York: Verso, pp.18-37.

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-






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).




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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