From Lines to Networks: Carl Schmitt’s Nomos in Africa

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From Lines to Networks: Carl SchmittsNomosand theEarly Atlantic SystemAnna MoreUNIVERSIDADEDEBRASLIA

Volume 5, 2014

DOI: http://dx.doi.org/10.3998/pc.12322227.0005.004[http://dx.doi.org/10.3998/pc.12322227.0005.004]

[http://creativecommons.org/licenses/by/3.0/]

The recent revival of interest in Carl Schmitts work on politics and sovereignty has not generally been extendedto his 1950 work,Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum[The Nomos of the Earth inthe International Law of the Jus Publicum Europaeum]. [1][#N1] This is perhaps not surprising: unlike his more

synthetic theoretical works, TheNomos of the Earthis an unwieldy hybrid that weds a theory of interstatepolitics and warfare to the history of European global expansion in such a way that it is difficult to disarticulate

one from the other. Schmitt bridges history and theory through his idiosyncratic definition of nomosas the globalspatial order that grounds international law in any historical period.In his clearest definition of the term, nomosis rooted in a primary moment of land-appropriation as the basis for justice, sovereignty and distribution in agiven community. For Schmitt, therefore, the global spatial order goes beyond mere geography: it is somethingmore akin to an unconscious archetype, albeit fixed in concrete knowledge and practice. Schmitts insistence that

nomosis the concrete grounds for law explains his turn to history. And yet, as a history of international law,TheNomos of the Earthis partial, skewed to Schmitts argument in favor of the post-Westphalian jus publicum

Europaeum.As a theoretical reflection, it is likewise compromised: as nomosis found only in concrete practice,its explanation cannot be fully disengaged from the contingency of historical events, practices and institutions.

It is precisely Schmitts insistence that law is grounded in concrete structures, however, that provides a basisfor relating practices and institutions of European expansion to questions of warfare, justice, and sovereignty as

debated in jurisprudence and political philosophy. In Schmitts argument, European imperial expansion andcolonization were structurally related to what he claims was the lasting achievement of the jus publicum

Europaeum:the elimination for more than two centuries of all wars of destruction in Europe (Nomos151). ForSchmitt, as it has been for many, a decisive moment in the establishment of a global spatial order was theEuropean discovery and conquest of the Americas, as it forced a reconsideration of global space by replacingmultiple fragmented perspectives with a unified image of the earth (Nomos86). While they may have beenimperial, what he calls pre-global polities considered themselves to encompass the inhabitable world. Their

boundaries were meant to segregate a pacified order from a quarrelsome disorder, a cosmos from a chaos, ahouse from a non-house, an enclosure from the wilderness (Nomos52). The discovery of America, along withthe idea that globe was apprehensible as fact and measurable as space, inaugurated a decisive shift: for the firsttime, the emerging new world did not appear as a new enemy, but as a free space,as an area open to European

occupation and expansion (Nomos87). In what Schmitt terms a new global linear thinking, the pre-globalboundaries became lines that would eventually allow European states to bracket war on their soil by pushingdestruction, genocide and colonialism into non-European space.

To support his contention that the nomosof thejus publicum Europaeumwas responsible for eliminating warsof annihilation on European soil, Schmitts version of European expansion aligns theories of warfare,sovereignty and enmity with geographies of land and sea. In this schematic history, America serves a heuristicrole as an unoccupied territory in which wars of annihilation take place against non-sovereign agents. The freespace of America is the logical inversion of conditions in Europe, where Schmitt argues that the early modernhardening of territorial boundaries and the rise of the secular state led to contained warfare. Schmitts focus onearly imperial expansion in America is therefore a necessary counterpart to his explanation as to how the

European interstate system was able to eliminate the worst types of warfare through the state form. In Schmittssystem, this elimination is not categorical and absolute, but geographical and pragmatic: given the impossibility

From Lines to Networks: Carl Schmitts Nomos in Africa http://quod.lib.umich.edu/p/pc/12322227.0005.004?view=text...

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of eradicating wars of annihilation on a global scale, the best possible system is one of spatial segregation. Whileland appropriation takes place on an unprecedented global scale during European imperial expansion, therefore,there can be no overarching state as a guarantor of peace. Instead, it is the presence or absence of the state thatdetermines whether war will be contained and balanced, or will continue as limitless destruction andannihilation. The early modern nomosthat inaugurates global modernity thus releases all warfare, whether stateor non-state, from questions of justice by finding necessity in an anthropology of political forms. In this global

vision, the European state is posited as unique and exemplary. [2][#N2]

Notably, however, Schmitts nomosis not binary, but tripartite: to the distinction between non-Europeanterritories where land-appropriation can proceed unencumbered and European territories where wars arecontained by the balance of states, he adds the concept of the free sea, a non-state space where wars ofannihilation among Europeans can still occur. The heuristic role of the free sea in Schmitts system, albeit largelyunacknowledged, is that of connecting the European state system to its zones of expansion in supposedlyunencumbered and non-state spaces. As such, it responds to a question implicitly posed by the stark binarysystem of geopolitical norm and exception: in what form would the state occupy lands in which it could not existas such? Beyond the balanced interstate system, the free sea is a zone in which substate agents and state proxies

become responsible for the concrete practices of European expansion overseas. The sea thus has a dual andambivalent identity: it is the space of privateers, pirates and criminals but also of maritime corporations and

other state proxies; it is a permanently non-state space that nonetheless is the avenue for extra-territorial stateexpansion. Central to the articulation of relations across lines and divisions, the free sea is an intermediaryzone that undoes the stark contrasts upon which Schmitts definition of the nomos of the jus publicum

Europaeumdepends.

Within Schmitts land-based definition of nomos,the free sea is therefore an anomaly or even an anomic force(Moreiras 82). More than a representation of concrete practices, the sea is a metaphor that restricts this forceto an identifiable geographic space in order to protect a rarified European interstate system. Indeed, for Schmitt,the principles identified with the free sea will lead directly to the twentieth-century economic dominance by theUnited States that he associates with the demise of thejus publicum Europaeum(Nomos251-5).Arguably,however, these principles were more central to the development of the early modern nomosthan Schmitt

acknowledges. They were especially important for what John Blanco has recently called the mixture of economyand law that characterized the imperial peripheries of the developing world system (39). As both John Blancoand Ivonne del Valle have shown, in very different arenas, the practice of Iberian imperialism that Schmittcharacterizes as massive, even heroic land-appropriations through conquest, was always conditioned by thepragmatics of economic reason (Blanco 34; Del Valle, Jos de Acosta: Entre el realismo 317). While Schmitts

vision of Iberian imperialism derives from Francisco de Vitorias seminal lectures on imperial dominion andsovereignty, by the end of the century authors on the imperial frontier were producing reflections on sovereignproxies and governmental violence (Blanco 34; Del Valle Jos de Acosta: Entre el realismo 317-32). Rather thanan exception, therefore, the free sea may be the key to understanding the concrete practices that linkedcommercial ventures and imperial governance in all areas of European expansion, even when these were couchedin the language of the state.

Although present from the beginning of Iberian expansion, which proceeded through the state authorization ofprivate initiatives, the dependence of European expansion on substate agents is probably clearest in theincremental involvement of Europeans in sub-Saharan Africa. Early Africa, which has not often been consideredin the same framework as that of the Americas, was characterized not by the spectacular occupation of largeterritories, but by a complex history of negotiated enclaves, trade and warfare with African rulers. Through trade,especially the mercantile transatlantic slave trade that had coalesced by the end of the sixteenth century, theseenclaves were brought into the greater Atlantic commercial network that linked Europe, Africa and America. Thiscommercial network depended little on cohesive European sovereignty in the region and the difficulties of extra-territorial administration gave few incentives for large-scale land occupation. Rather than the state, therefore, it

was substate corporations, merchants and even rogue state officials who were most responsible for Europeanpresence in the region. Warfare in this context cannot be neatly categorized as the intra-European warfare that

Schmitt imagines on the free sea nor the unequal wars of annihilation that he argues led to theland-appropriation in the Americas. Rather, early expansion in Africa underscores the mitigated and


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governmental violence necessary for global economic production (Del Valle Jos de Acosta: Entre el realismo317) in which warfare accounted for only the most extreme point of capture.

A consideration of European expansion in Africa, and even more importantly the Atlantic commercial circuit,parallels and inverts Schmitts early modern nomosby extending the conditions of the free sea to the land-basedcommercial enterprises that made up European expansion in the region. At the same time that European

jurisprudence was theorizing the balance and tension between the European interstate system and the free sea,

several key texts from Iberian colonization of the Americas and Africa articulated this conjunction amongsovereignty, violence and governmentality that were the necessary conditions for the extractive economies ofIberian empires, especially mining and plantation agriculture. Undoubtedly, the most important of these texts

were written by the Jos de Acosta, a Jesuit who wrote from Peru at the same time that the viceroy Francisco deToledo was reorganizing and rationalizing the viceregal state and whom Ivonne del Valle has called an organicintellectual of colonialism (Del Valle Jos de Acosta: Colonial Regimes 21) in its second stage, after themassive land-appropriations and wars of conquest of the first half of the century. Indeed, Acostas works are boththeoretical and practical, as he proposes a rudimentary developmental hierarchy of non-European populations as

well as the concrete practices that should be employed to produce subjects for the imperial economy. Followingdirectly from Acostas seminal works, the Jesuit Alonso de Sandoval adapted these to the conditions ofmercantile slavery in the Atlantic circuit between Angola and Cartagena de Indias. Both Jesuits wrote at a crucial

moment of transformation when debates on justice in accordance with precepts of the universal sovereignty of arespublica Christianawere being eclipsed by pragmatic concerns of production.

By delinking European expansion from land-appropriation, mercantile slavery augments the conditions thatmarked Iberian colonialism in the late sixteenth and early seventeenth centuries. An unprecedented treatise onmercantile slavery, Alonso de SandovalsDe Instauranda Aethiopum Salute(1627, 1647) exposes thesimultaneity and confluence of functions that Schmitt assigns to distinct geographies of land and sea. Sandovalsaccount of the conditions of the slave trade and plantation economy challenges Schmitts assumptions in three

ways: first, it suggests ways in which a global market negated questions of justice, which in the case of slavery hadcentered on capture by just war; second, it details the ways in which the baptism of slaves arriving in the

Americas the treatise substituted local and patrimonial sovereignty for the universal ideals of a respublicaChristiana;and third, it articulates the first rudimentary vision of the global south based on racial phenotype .The nomosthat developed at this time and which both Acosta and Sandoval represented, was not one based ongeographic lines dividing territories according to whether they had homologous state forms or not but a networkspatiality remarkably similar to what Carlo Galli has recently called the limit of Schmitts spatial reasoning(105). More than an empirical correction to Schmitts history, then, the consideration of texts that parallel theEuropean juridical debates of the sixteenth and seventeenth centuries, may produce new maps of politicalmodernity itself. These must begin by locating the origins of the global spatial order not in singular events andland-appropriation alone, but in renewable, flexible and mobile forms of sovereignty that acted to articulategovernance and economy on a global scale.

SchmittsNomos:Lines, Brackets, and Sovereignty

Despite the centrality of nomosto his theory of international law, the closest Schmitt comes to defining theconcept is to equate it with an original moment of land-appropriation and distribution that forms the basis of akind of supreme ownership of the community as a whole (Nomos45).Nomos,in this sense, becomes the basisfor legal and political authority, the grounding of all subsequent positive law. As the unspoken, collective groundfor distribution, nomosis the ultimate source of justice, a distant origin that orders present conditions:Concretely speaking, nomosis, for example, the chicken in every pot that every peasant living under a good kinghas on Sunday, the parcel of land every farmer cultivates as his property, and the car every American worker hasparked in his garage (Nomos325). It is exactly Schmitts insistence that nomoscan only be perceived in theconcrete that appears to make it resist positive definitions and philological maps (Nomos325-6). Schmitt is clear,however, that nomosis indelibly linked to the earth, as evidenced in the mythical language of Homer, inarchetypical contrasts between land and sea, or in the practices of enclosure and husbandry in which the orders

and orientations of human social life become apparent (Nomos42-3).Nomosappears to partake, in otherwords, in what Victoria Kahn has recently described as Schmitts fascination with myth as the foundation of


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political community (72). For Schmitt, this mythical constitution of community requires land-appropriation:every seizure of land is not a nomos,although conversely, nomos, understood in our sense of the term, alwaysincludes a land-based order and orientation (Nomos80).

At once concrete and mythical, nomosaccords with Schmitts idiosyncratic historical approach, which relateshistorical events of monumental stature, political institutions, and the theoretical treatises that articulated themoral, theological and legal contours of international law as it developed in Europe. Thus, despite the fact that

Schmitts history for the most part rehearses the intellectual tradition of international law in Europe, hisapproach to nomosgoes beyond a history of ideas to include the concrete spatial orientation that Schmitt insistsgrounds actual practices, institutions and law in any given epoch. The shift from what he calls the medieval orpre-global perspective to that of global linear thinking from the sixteenth century onward, for instance,encompasses not only the discoveries of this period but also the emergence of a theo-political justification ofEuropean expansion. For Schmitt, the operative figure that inaugurated the first global nomoswas the concept ofthe rayamanifest in the 1493 papal donation and subsequent Treaty of Tordesillas of 1494 (Nomos89). Ratherthan a precise measure or division of the world, the importance of these imaginary lines was their ability tocontain conflict between two parties who agreed upon a universal authority. Essentially, the line limited conflict

by designating a sovereign authority. In the first instance, the division contained conflict between Spain andPortugal within the shared order of the respublica Christiana.Because of this assumption that Christianity

necessarily applied globally, rayasdid not imply a distinction among spheres within or beyond the line: in allplaces non-Christian peoples had either to be incorporated into the Christian global order or could be justifiablyeliminated.

Schmitts reading of these first global lines, especially as they were elaborated by the Salamancan theologianFrancisco de Vitoria, establishes the contours of his concept of the bracketing of war. For Schmitt, Vitoria is

both medieval and modern, a transitional thinker who would open the door for thejus publicum Europaeumin the following century. To the extent that the Spanish and Portuguese rayasadmitted that wars betweenChristian princes were bracketed wars, they paved the way for the development of the ius publicum Europeaum.

Yet Vitoria is also hampered by what Schmitt variously calls his neutrality or objectivity, by which he appearsto mean Vitorias rejection of the papal donation as an unquestionable authority and thus the need to submit the

justice of Spanish dominion in the Americas to scholastic argument. In effect, Vitoria begins with the idea thatnon-Christian territories were neither free nor unclaimed (Nomos112) an idea that Schmitt characterizes asa neutral, apathetic and thus, ahistorical exaggeration (Nomos107) and proceeds to question the basis for thepossession of non-Christian territories. The missionary mandate that founded the respublica Christiana,then,not only allowed, but necessitated a moral-theological and juridical evaluation of the question of whether [wars]

were just or unjust (Nomos59). The respublica Christianawas a totalizing order, in Schmitts words a katechonthat held back the anti-Christ, and therefore implied a universal moral order, both within and beyond Europe:for Vitoria, recognition or even acceptance of lines beyond which the distinction between justice and injustice

was suspended was a sin and an appalling crime (Nomos107).

As the respublica Christiananecessitated a moral justification for European expansion and Vitoria rejects in thefirst instance the papal donation as a sufficient cause, the theo-juridical concept of just war becomes the only

means to support the Spanish presence in the Americas. As just war permitted, and indeed justified, wars ofannihilation, however, the bracketing of war on European soil demands that ius gentiumbe replaced by a moreparochial ius inter gentes(Nomos129). Here, Schmitt clearly sees a series of historically contingent changes thatlead to the retreat of Europe from the universal goals of the respublica Christiana.Europes internal religiousschisms, conflicts that questioned the very notion of one overarching religious authority, are central to Schmittsaccount of this demise. In his argument, peace on European territory could not be achieved by a unique moralauthority and unified church, but by the ascendance of the secular state. Rather than suppressing conflict, thestate sought out its sovereign homologue and channeled conflict into a contained form. For Schmitt, it is thetransformation of just war intojustus hostis,or an equal enemy, that inaugurates the containment of conflict onEuropean soil (Nomos142).

The substitution of an order of equal sovereign states for the dream of universal sovereignty of a respublicaChristianathus follows from the problem of adjudicating interstate disputes according to the postulates of just


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war, now subject to agnostic, skeptical, and decisionist reservations (Nomos155-6). At this crucial pivot in hishistorical narrative of the emergence of the nomosof thejus publicum Europaeum,Schmitt explicitly juxtaposesthe concept of a global spatial order to decisionism, the basis for his well-known theory of sovereignty. [3][#N3] The

nomosof thejus publicum Europaeumis not decisionist precisely because there can be no universal and globalsovereign who judges disputes between equal states:

At least since Bodin, a true jurist would confront this skeptical and agnostic disposition with adecisionist formulation of the question that is immediately given with the concept of statesovereignty: who then is in a position to decide authoritatively on all the obvious, but impenetrablequestions of fact and law pertinent to the question of justa causa? The asserted juridical right andmoral legitimacy of ones own cause and the alleged injustice of the opponents cause only sharpenand deepen the belligerents hostility, surely in the most gruesome way. That we have learned fromthe feuds of the feudal age and from the creedal civil wars over theological truth and justice. That

was the historical and intellectual accomplishment of the sovereign decision. In reality, juridicalinterest no longer was concerned with the normative content of justice and the substantive contentofjusta causa: Who decides? (the great Quis judicabit?). Only the sovereign could decide thisquestion, both within the state and between states. But, in the interstate law of sovereigns, there is

no highest interest or court of last resort over both parties, owing to the principle of the equality ofthe sovereigns: Par in parem non habet jurisdictionem [Equals have no jurisdiction over eachother]. (Nomos156-7)

Just war, in fact justice as a paradigm for judgment on conflict, demands a sovereign authority, an impossibledemand in early modern Europe riven by religious schism. The passage makes clear, moreover, that moral

judgment itself leads to wars of annihilation, an unacceptable possibility for Schmitt given the equality of states.To avoid this absolute violence, conflict must be channeled into a form devoid of questions of justice. Schmittlikens this non-discriminatory war or war in form to a duel: a duel is not just because the just side always

wins, but because there are certain guarantees in the preservation of the formin the quality of the parties to theconflict as agents, in the adherence to a specific procedure (effected by bracketing the struggle), and, especially,in the inclusion of witnesses on an equal footing (Nomos143).

The nomosof thejus publicum Europaeumthus substitutes the dream of universal sovereignty with a globalspatial order based on lines and divisions. To the extent that language of decision and exception does appear inSchmitts description of the nomosof thejus publicum Europaeum,it is as an analogy: The English constructionof a state of exception, of so-called martial law, he remarks obviously is analogous to the idea of a designatedzone of free and empty space (Nomos98). The operative figure in nomos,in fact, is not decision on exception

but a line that divides territories defined by sovereign states (where sovereignty remains decisionist) fromnon-state space (as an exception without decision). It would appear that rather than ignoring completely histheories of sovereignty, then, Schmitts nomoswas attempting to disarticulate decisionism from exception.

Whereas thejus publicum Europaeumholds religious wars of annihilation at bay, colonial wars between

unequals are exceptions that do not demand decisions: compared to the brutality of religious and factional wars,which by nature are wars of annihilation wherein the enemy is treated as a criminal and a pirate, and comparedto colonial wars, which are pursued against wild peoples, European war in form, signified the strongestpossible rationalization and humanization of war (Nomos142). But because there is no sovereignty outside ofthe European interstate system, colonial land-appropriation is also fundamentally different from the mythicalorigin of communities: distribution does not occur within a community, as the fundament of justice, but ratherglobally, where distribution does not need to be tied to an overarching system of justice. The nomosof thejus

publicum Europaeum,then, defines a global distribution freed from all questions of justice or politics.

Beyond the Line: the Free Sea in SchmittsNomosSchmitts early modern nomosthus replaces an impossible universal sovereignty with a balanced global spatialorder in which a line acts to separate the jus publicum Europaeumfrom non-European territory. This line marks


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an essential difference for Schmitt between those states that are equal and recognizable as such and those thatare not. Equality, while based on the identity of the state form, is crucially articulated at the moment of conflict

between states through the idea of ajustus hostis.It is this injection of conflict into the notion of equality thatprovides the bridge between thejus publicum Europaeumand its opposite, beyond the line. Beyond the line,Schmitt suggests, the European state meets conflict on unequal terms and hence the colonial wars that takeplace in America are categorically different from wars between equal states. Because beyond the line there is nopossibility of war in form, there is also no respect for the firm boundaries of state territory or, what amounts tothe same, there can be no war in form where there is no state. Once the moral order of the respublicaChristianahas retreated from this non-state space, then imperial land-grabbing can proceed unabated under thesame umbrella of non-discriminatory warfare that in a statist Europe led to contained warfare.

At the retreat of the respublica Christiana,therefore, the spatial order itself defines relations among Europeansand non-European peoples who now have no common point of justice, sovereignty or equality. The jurists of theseventeenth century therefore set aside the question of justice, creating instead taxonomies that distinguishedamong types of warfare based on the nature of the enemy. For Schmitt, the decisive moment in the transitionfrom the language of ius gentiumto ius inter gentesis the Spanish jurist Baltasar de Ayalas distinction betweenpublic and private war (Nomos153-54). This notion that different types of war could abide by distinct rules willeventually permit the geographical bracketing of warfare among enemies who recognize one another as equals. In

1650, the jurist Richard Zouch provides the language to describe the new nomosof thejus publicum Europaeumin his typology of three types of enemies distinguished by their relationship to a shared community. At theextreme are inimici,whose possessions do not need to be respected and with whom there is no friendship, noamicitia or legal community, no hospitium (hospitality), and no foedus (convenent), as between Greeks and

barbarians, Romans and strangers. An adversarriiis an opponent with whom a legal community exists thatnonetheless can be destroyed by civil war. A hostesis an opponent that one may injure or kill but who must betreated according to rules of war in international law (Nomos163-4). With Zouchs typology, then, the distinctionamong types of warfare becomes based not on public and private (although this distinction, basic to themonopoly of the state, still holds overarching importance) but rather on the characteristics of the enemy inrelation to a shared community.

Zouchs tripartite structure reflects a problem that Schmitt faces when he aligns geography and warfare accordingto state sovereignty. If wars between a sovereign state and non-sovereign peoples are colonial wars and these bydefinition cannot occur on European soil, then arguably they are not wars that need to be eliminated fromEurope. The suppression of wars of annihilation, therefore, needs a third term which, in Zouchs system is theadversarii:those enemies who by rights should be hostesbut who through war destroy the basis for community.In Schmitts nomos,this intermediary enemy is located in a crucial geographical concept: the free sea. Theappearance of a third zone, intermediary and linking European territory to non-European land free foroccupation answers a theoretical problem in Schmitts definition of a global spatial order which acts throughdivision. The ability to channel interstate conflict to war in form depends upon the recognition of sovereignstates, which Schmitt associates with the territorial lines of land-appropriation. [4][#N4] It is not clear, for instance,

how sovereign states, formed to resolve exception and grounded in territorial lines, can continue to exist as such

beyond their territories or, if it is not states who engage in the wars of annihilation beyond the line, who or whatdoes so in the name of European land-appropriation.

In Schmitts version of thejus publicum Europaeum,therefore, it is not the colonial wars of annihilation betweenEuropeans and non-Europeans that most threatens peace but the possibility of war between Europeans in thenon-state space of the free sea. Indeed, Schmitt likens the danger of unregulated conflict on the free sea to aHobbesian state of nature: Hobbes came nearest to the core of the matter when he said that this freedom [of thesea] is indicative of the state of nature in which everything belongs to everyone; however, in a critical case, thesame would be true ac si nullium omnino jus existerit[as if there had been no right at all], when the strongestdeals with all in the name of the law, as is true of the freedom of the state of nature (Nomos176-77). This dangeris fully realized, Schmitt argues, in the inability of theories of prize law and booty, such as those of Hugo Grotius,Samuel Pufendorf and Emerich de Vattel, to contain conflict. He is especially contemptuous of Grotius, whom he

characterizes as unsteady and uncertain mixing both the right to plunder on a free sea with the idea of justcause and the legitimacy of public war with war to pursue private interests: the best formulated demands of


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justa causaare meaningless if the belligerent power that pursues unjust war has the same rights of plunder andcapture in international law as does its opponent who pursues a just war (Nomos162). While the sea became aplace of non-state merchant activity during peacetime, therefore, juridically it amounted to little more than aHobbesian state of nature, a potential that manifested itself clearly in wartime: In peacetime, one can forget this.But in war, the freedom of the sea means that the entire surface of the worlds oceans remains free and open toany warring power as a theater of war, as well as of prize law (Nomos177). [5][#N5]

Without being able to rely on the mutual recognition ofjustus hostis,the only guarantee of peace in a regiondefined by non-state freedom is the dominance of one power. For this reason, Schmitt repeatedly insists thatBritish maritime dominance was crucial for the balanced stasis of the jus publicum Europaeum:Thus, twouniversal and global orders confronted each other without being able to assume the relation between universaland particular law. Each was universal in its own right. Each had its own concepts of enemy, war, booty, andfreedom. The total decision for international law in the 16 and 17 centuries culminated in a balance of landand seain the opposition of two orders that determined the nomosof the earth precisely in their mutualtension (Nomos172-3). Maritime dominance takes place, by definition, in an area where state sovereigntycannot exist. Although Schmitt characterizes the sea as dominated by the British, he also notes that the freedomof the sea was a non-state freedom that began with freebooters: with them, the sharp distinction between stateand individual, public and private, even between war and peace, and war and piracy, disappeared. Freebooters

at times represented state interests but at other times their own government, which accepted with alacrity theirservice and their gifts, often treated them as adversaries for political reasons (Nomos174). The singular freedomof freebooters eventually led to the maritime side of thejus publicum Europaeum:the freedom of the sea andthe freedom of merchant traders, whose ships were essentially non-state vessels (Nomos174). Where there can

be no war in form and no recognition of equal states corresponding to bounded territories, where public andprivate are confused, and plunder becomes a justified prize of war, only the military domination of one power canassure that the seas potential for peaceful trade be realized.

This is the heuristic function of British maritime dominance in Schmitts history. As Schmitt tells this history,this dominance originated with English freebooters but was eventually brought under state control. Although hecalls this dominance at once British and non-state or merchant, however, Schmitt leaves untheorized the

relations between the state, violence and commerce to which this configuration alludes. Indeed, the figure of theindividual pirate paints the free sea suspiciously like a Hobbesian state of nature composed of individuals at warthat does not reflect the complex relations among state and non-state violence and commerce of the period. [6]

[#N6] If these elements need to be dominated in order for the bracketing of Europe to occur, it is because they

continue to confound the very mechanism of sovereign decision that would eliminate them, in Schmitts theory ofstate sovereignty. Schmitt does argue that maritime dominance follows from the technological extension of thestate in a non-state space. [7][#N7] This domination, moreover, prevents the wars of annihilation that could occur

at the breakdown of peaceful commerce, ostensibly by granting one power the ability to employ inordinate force,whether to annihilate or not. It is reasonable to say, therefore, that annihilation coexists with the commerce thatit permits, rather than signaling the failure of peaceful commerce. As Alberto Moreiras has argued, the nomosdefined by segregating the just enemy generates its own anomic figure, which he finds in Schmitts rejection of

the Kantian unjust enemy, in turn associated with the pirate and criminal (81-2). In a nomosof balanceddivisions, or elimination of annihilation through firm lines, the anomic would signal connections, mitigated

violence and a confusion of the state and non-state distinction that segregates the globe. Arguably it is not theindividual pirate or freebooter that best represents this anomic element. Rather the substate corporation, whichgets little play in Schmitts history but which played an important role in both the practice and theory of maritimeimperial expansion, confused the rigid boundaries between state and non-state by creating proxies for the statein non-state spaces.

Alonso de Sandoval: Substate Corporations, the Slave Trade,and Racial Bracketing

While his consideration of the free sea opens up a zone of connection and mixture in the early modern nomos,by opposing it to the ideal of balanced states Schmitt forecloses any discussion of the way in which the non-state

th th


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space of the sea contributed to the emergence of secular states in Europe. While the absolutist state was emergingin Europe, however, the Iberian imperial periphery in particular was characterized by flexible and dispersedforms of sovereignty in constant tension with attempts at centralization (Blanco 34-39; More; Del Valle Jos de

Acosta: Entre el realismo 303-5). As John Blanco has recently noted, these forms of sovereignty were marked bythe strategic absence of any central authority, the tactical commingling of law and economy, and thesemi-anarchic spread of regional economies that engendered their own ad hoc forms of order and law (39).These informal economies provided the basis for the extractive economies and contributed to state financesprecisely through their ability to exploit violence through non-state agents. [8][#N8] Particularly striking is the

coincidence between the negotiations between sovereign states and mercantile corporations and the emergenceof individual rights in European jurisprudence in such theorists as Hugo Grotius, for whom the naturalindividual was, morally speaking, like a miniature state, to which the vocabulary of liberty could be applied(Richard Tuck cited in Blanco 44). [9][#N9]

Neither a zone of land occupation nor of maritime commerce, early Africa in particular mixes characteristics thatSchmitt segregates in his account of the early modern nomos.As opposed to the extensive land-appropriation inSpanish America, European advances into Africa were limited to the coast and were incremental, beginning well

before Columbus arrival in the Antilles and continuing piecemeal throughout the sixteenth and seventeenthcenturies. Indeed, early Portuguese expansion was marked more by a desire to monopolize trade, particularly the

slave trade, than to occupy lands. The occupation that did occur took the form of feitorias,or trading ports, fromwhich Portuguese and other European nationals engaged in trade, regulated and limited by the African polities ofthe regions. State control by the Portuguese monarchy, to the extent that it existed, was limited to protecting andoverseeing trade surrounding these enclaves. Trade in the interior, conducted by the renegade sertanejos,wasalmost entirely at the behest of African leaders (Thornton 62-3; Ferreira). As Thornton has noted, the PortugueseCrowns desire to benefit from African trade was balanced by the distances and resources necessary to exerciseeffective control. By the seventeenth century, the Crown had set up official feirasto centralize and control trade

but, as might be expected, even officials sent to oversee trade were tempted to defect (Thornton 60). As Thorntonconcludes, as long as African polities preserved their sovereignty (Thornton 63), the Portuguese and otherEuropean interests, such as the Dutch who made headway in the early seventeenth century, were never able tofully control trade or its benefits.

Because land-appropriation was never a serious goal nor practical possibility, the trajectory of internationaljurisprudence upon which Schmitt bases his account had little relevance to early Africa. Those theologicaldebates that did not touch upon European expansion in Africa did not center on the issue of sovereignty andpossession but rather the captivity of slaves, considered legitimate when taken after a just war. [10][#N10] Despite

the inherent interest of European traders in the wars that produced slaves, however, many of these wars tookplace among African polities rather than between Europeans and Africans. When Europeans did engage in

warfare, they most often did so as an extension of trade, undertaking short-term alliances with African polities togain advantages in specific regions (Thornton 99-102). Officially, then, Europeans could conduct the slave tradeon the premise that Africans had been enslaved by other Africans and thus diminish their involvement in thequestion of the justice of the original captivity. [11][#N11]What debate existed among sixteenth-century European

theologians and jurists on the subject was limited to the question as to how much responsibility traders had indetermining if the original capture was the consequence of a just war. These questions appeared, moreover,almost exclusively in theological treatises on prices and contracts, such as Toms Mercados Suma de tratos ycontratos(1569) and more prominently in Luis de MolinasDe iustitia et iure(1593). By the end of the sixteenthcentury, the consensus on this question was that if merchants had no knowledge to the contrary, the enslavementof Africans was assumed to be legitimate and the secondary market could proceed accordingly (Garca Aoveros321-27).

By thus avoiding the questions ofjust warcentral to the moral order of the respublica Christiana,the latesixteenth-century Iberian treatises on value, just price and the market accord with Schmitts reflections on thetransition from ius gentiumto ius inter gentes.Rather than following from the decisionist reservations thatSchmitt argues led to non-discriminatory warfare among European states, however, the treatises present marketexchange as a mitigating distance from the violence of original enslavement: where it was impossible to


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determine the legitimacy of this violence, in accordance with the moral precepts of the respublica Christiana,themarket itself could proceed as if it were. The market thus became a means to mediate violence, by suspendingdirect contamination, as the moral order shifted from concern with original justice to the smooth functioning ofmercantile exchange. This pragmatic turn in late scholastic economic treatises has parallels in other areas ofIberian theology and jurisprudence. Ivonne del Valle has shown that Jos de AcostasDe procuranda indorum(1588) likewise turned away from the questions of justice that had framed the theological debates on Spanishimperial sovereignty in the mid-sixteenth century. Breaking with the radical calls for justice by Bartolom de lasCasas and others from the period, Acosta defended colonialism as an economic necessity and provided a casuisticmap of when and how to employ violence in evangelization and governance, in a move that combinedgovernmentality with the obscure economic interests driving the ongoing colonization of new peoples and newterritories (Del Valle Jos de Acosta, Violence and Rhetoric 49). Through Acostas influence, this Jesuitgovernmentality resonated in imperial jurisprudence and practice throughout the seventeenth and eighteenthcenturies. [12][#N12]

Modeled on Jos de Acostas two most influential works,De procuranda indorumandHistoria natural y moralde las Indias(1590),Alonso de SandovalsDe Instauranda Aethiopum Salute(1627, 1647) condensed their dualfocus on a global anthropological division and missionary practice to address the practical and theoreticalproblems stemming from the slave trade at a crucial moment of its expansion. A Jesuit missionary stationed in

Cartagena de Indias, Sandoval was witness to the arrival of thousands of Africans in the slave ships. Hisdescription and defense of the Jesuit mission in the largest slave port at that time turns on the possibility thatarriving Africans may not have been adequately baptized, if at all, before their transatlantic journey. Thisconcern, as well as the pragmatics of a mission among mixed groups of Africans, leads Sandoval to include anextensive natural history of Africa (which following contemporary nomenclature he terms Etiopa) as a preludeto his missionary manual. [13][#N13] Most likely prompted by the misery he witnessed on the slave ships, Sandoval

also takes up the question of the legitimacy of African enslavement. In this pursuit he cites the sixteenth-centurydiscussions in Toms Mercado and Luis de Molina, particularly the declarations of slave traders that the slavesthey transport have not all been legitimately captured. In imitation, Sandoval also interviews merchants, findingnot only similar confessions but also declarations that the Portuguese themselves were instigating wars in orderto produce more slaves (147).

While Sandoval thus follows the debates on the justice of the slave trade, he ultimately breaks with thesequestions through the curious and striking inclusion in his text of a letter from the Jesuit superior of Luanda,Luis de Brando. In response to Sandovals inquiry into the origin of slaves arriving in Cartagena, Brandoreminds him that the Jesuits themselves owned and traded African slaves. Echoing an idea constantly evoked inearly debates on slavery, Brando further argues that the collective good of evangelization justifies the possibilityof individual injustice (Sandoval 144). Opting for pragmatic calculation rather than justice, Brandos conclusionis that if the mesa de consciencia in Lisbon and the very order itself have not objected to African enslavement,neither should Sandoval question the practice (Sandoval 143). Just as Acosta had argued against questioning theenslavement of the indigenous population in the interest of an economic reason and greater good of Christianevangelization (Del Valle Jos de Acosta: Entrel el realismo 317), Brando insists that Sandoval turn away from

the debate on African enslavement. By including the letter verbatim in his account, moreover, Sandoval publiclyacknowledges the mandate from his superior, excusing himself from taking a position on the argument. Hesubsequently cuts entirely with the question by stating cautivos estos negros con la justicia que Dios sabe (151)

before transitioning to his well known description of the horrors of the transatlantic journey.

In a remarkable parallel to Schmitts crucial pivot, moreover, he proceeds to substitute a geographical order forquestions of universal justice. Yet Sandovals version of this global spatial order does not turn on Schmittsgeographic distinction between a European territory where the state form prevails and non-state territory beyondEurope. Rather, his natural history produces a map of the extensive geography of what he terms blacks,including not only Africa but practically the entire southern hemisphere, resulting in what was most likely thefirst systematic application of racial phenotype on a global scale. Sandoval stretches the geography of blacknessas far as possible, constantly shifting between phenotypical variety and homogeneity. Thus, among the

Ethiopians that Sandoval documents are those who are more of a cinnamon color, those who have straight rather


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than curly hair (136), and a nacion de Etiopes gentiles, a que llaman Maracatos, negros como una pez; perotienen el cabello lizo, que es la maravilla; y las faiciones del rostro ahidalgadas como rostros de Espaoles (191).

At one point, he admits that aunque es verdad, que a todas estas naciones llamamos comunmente Negros, notodos son atesados; antes entre si mismas ay en casi todas gran variedad; unas son mas negras que otras; otrasno tanto; otras de color de membrillo coch, que dizen; otros loros, o zambos, o de color bazo, medio amulatados,

y de color tostado (136). When Sandoval stretches his geography to include regions outside of Africa, however,the nomenclature moves decidedly towards the term black. Of Filipinos, for instance, he writes no son estosnegros tan atezados como los de Guinea, ni tan feos (95). Indeed, even in the Americas, whose inhabitantsappear to fall largely outside of this black-white schema, Sandoval reports that hay naciones de negros tanincultas y remotas, que no han venido a nuestra noticia (59).

The only apparent explanation for the inclusion of this extensive geography, which stretches from India to PapuaNew Guinea, in a text ostensibly focused on the slaves arriving at the port of Cartagena, is the logic of mercantileslavery itself. [14][#N14] Sandoval himself gives no defense of its inclusion, but in a treatise instigated by the

transatlantic slave trade it is hard to miss the parallels between an expansive and flexible racial term black andthe demand to produce slaves for a global market. Blackness thus becomes a general sign that divides the globeinto Europeans, la menor de las quatro partes del mundo: pero la mayor en nobleza, virtud y gravedad,magnificencia, y cantidad de gente poltica (62) and an expanding geography of those populations that can be

enslaved for a global market. By excluding only Europeans from this geography, Sandoval creates a counterpartto the bracketing function that for Schmitt defines thejus publicum Europaeum.While Sandovals treatisedelineates a global spatial order similar to Schmitts, however, its operative distinction is not state sovereignty inthe interest of excluding wars of annihilation from European territory. Indeed, Sandoval has virtually nothing tosay about land-based sovereignty, nor does he create taxonomies of warfare or even touch upon the commercialdisputes that generated jurisprudence of the free sea. Rather, his shifting line is a geographically mobile racial

bracketing that decides the fate of those who could be drawn into mercantile slavery and those who would becategorically excluded from this fate. [15][#N15]

Sandovals global racial vision has precedents, the most notable and immediate being Jos de Acostas owntypology of barbarians. As Del Valle argues, the fact that Acosta employs this typology in a text that discusses

governance, violence and sovereignty exposes the relationship between the classification of populations and thecolonial political economy (Jos de Acosta: Entre el realismo 298). In fact, for Acosta, the shifting category ofIndian corresponds to his attempt to find the right amount of violence to be applied to colonial subjects.Indian becomes the subject of this governmental violence, in the service of a colonial economy that in turnfunds Christian salvation of the same subjects (Del Valle Jos de Acosta: Entre el realismo 319). If anything,mercantile slavery condenses the temporal distance that allows Acosta to argue that the original violence ofconquest must be forgotten in the interest of a workable polity. In mercantile slavery, the distance is nottemporal but geographic and the means to suppress violence can only be through delinking geographies. Oncethese geographies have been delinked, and the question of original enslavement suppressed, the only possible

justification for the enslavement is the natural order. Whereas in Acosta, this natural order is civilizational, inSandoval it is condensed into a racial sign that dispenses with the need for a clear moral argument. [16][#N16]As

Sandoval invents race, he must also contend with its absolute arbitrariness, a reflection of the necessaryalienation of the market in which black becomes the only term that can reduce a geographically,anthropologically and even physically diverse global south to a commodity form.

In mercantile slavery, however, slaves are not only traded and sold on the market but are inducted intoeconomies as labor. Rather than the end that justifies the violent means, baptism in Sandoval marks thepassageway from a state of sovereignless exception into the American plantation economy. The counterpart to hissuspension of questions of justice in favor of the spatial and structural logic of mercantile slavery is a vision ofsubjects literally stripped bare on the transatlantic journey but on whose bodies are nonetheless etched a destinyof Christian salvation:

Y causa gran lstima, y compassin, ver tanto enfermo, tan necessitados, con tan poco regalo, yagazajo de sus amos, pues los dexan de ordinario por los suelos desnudos, y sin abrigo, ni amparo


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alguno, y a se estan, y a miserablemente suelen parecer, sin que ni de sus cuerpos ni de sus nimasaya quien se duela, que se duda con mucho fundamento, si es la causa de su muerte su grandesamparo o sus enfermedades. Buena preuva ser desto lo que con mis ojos via y llorava: enalgunas casas destos seores de armazones ay unos grandes aposentos todos rodeados de tablas,donde dividiendo los hombres de las mugeres encierran de noche para dormir a toda esta gente,aparaciendo a la maana tales cuales los abrian, puesto gente tan bestial. Estos lugares pues teniandiputados sin remedio alguno para los desahuiciados; alli los arrojavan, y entre aquella miseria ydesventura se lamentavan, y alli finalmente comidos de moscas, unos encima de los tablados, otrosdebaxo dellos morian. Acuerdome que vi una vez entre otros muchos, dos ya muertos, desnudos encarnes en el puro suelo, como si fuessen bestias, las bocas hazia arriba abiertas, y llenas de moscas,cruzados los brazos, como significando la Cruz de condenacion eterna que havia venido por susalmas por aver muerto sin el Santo Sacramento del bautismo, por no aver llamado quien se loadministrasse... (Sandoval 153)

Like Acostas vision of American mines in which labor becomes a death sentence (Del Valle Jos de Acosta 317),Sandovals description of the horrors of the transatlantic slave trade is one of violence outside of sovereignty, aninstantiation of the non-state space of the free sea. While for Schmitt, following European international law, the

salient problem of the sea was the loss of European statehood and thus a disorganization of warfare, the effects ofglobal mercantile systems were clearly more often new forms of violence, captivity and private gain outside ofsovereign polities. Thus while for Schmitt it is exception itself that justifies sovereignty through decision, [17][#N17]

mercantile slavery takes place in a world in which the possibility of universal sovereignty has been revoked. ForSandoval exception can only be overcome in the afterlife through a Christian salvation already inscribed in the

bodies of its witnesses. Rather than inaugurating a secular state through sovereign decision, baptism abandonsthe present in the promise of salvation, beyond an absolute line. The universal guarantee of the respublicaChristianais thus left to the afterlife, while the temporal present becomes one of the managed violence to whichSandoval will dedicate much of his text. Sandovals induction of African slaves into a Christian order, under thesign of a delayed universal, is not global, but local and limited. [18][#N18] Thus, Jesuits such as Sandoval provided

the pragmatic continuation of an apostolic project of the respublica Christianabegun under the belief that the

globe could be imminently converted and redeemed. [19][#N19]

While these scenes expose the continual violence to which Africans are subjected, they are not ones that read thefree sea as an equivalent to the state of nature. Indeed it is the retention of the sign of Christianity that blockssuch a possibility. Yet neither do they incite Sandoval to question the justice of the trade itself. Rather, they serveas a bridge to a treatise that combines evangelical practice with an argument for controlled and mitigated

violence by slaveholders. As such, it is a vision of an adapted sovereignty, local and patrimonialist, under the signof a universal that must be continually displaced to the afterlife. This pragmatic concession to a globe in which auniversal order had to be built from ground up, in a linked rather than homogeneous project, parallels the eclipseof the dream of universal sovereignty that Schmitt sees at the inauguration of the jus publicum Europaeum.Sandovals induction of Africans into the local political economy, divorced from questions of justice, underscores

the fact that the global spatial order substitutes a universal community or sovereignty, now exiled to the afterlife.The land appropriations undertaken beyond justice or, what amounts to the same, the labor force that will makethis land appropriation profitable, must take place as if this universal community existed, while divorcingpractices from universal questions of justice. Sandoval thus articulates the intersection of substate corporations,commercial networks and violence that fall between the geographies of the free space of the Americas and thefree sea in Schmitts nomos and that provided the ground-level practice of European imperial expansion. Asopposed to Schmitts account, in which Europeans move into free space or fight among themselves forcommercial monopolies, Sandovals account details the atomized and coordinated constellation of local projectsthat made up the first global mode of production.

Conclusion:Nomosand Network SpatialityIf Schmitts insistence upon lines created a problem in articulating links between an overdetermined state


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sovereignty in Europe, its extension upon the free sea and its absence among non-European peoples, viewingSandovals treatise as a reflection of one among many practices of sovereignty in early globalization dilutes theconfluence of the state, land appropriation, and warfare in Schmitts theory. Rather than corresponding to theManichean division between state and non-state zones that structures Schmitts nomos,Africa and the globalslave trade were spaces ruled by negotiations by what can only be described as substate organizations. A mirrorinversion of the European continent, in Schmitts terms, Africa was the arena of constant conflict and negotiationin the absence of one dominant state. While in Schmitts terms these would amount to conditions of annihilation,however, in their contribution to the slave trade, they were arguably the very conditions that fueled globaleconomic production. What Sandovals treatise provides, in other words, is an account not of the violence ofprimary occupation, which in Schmitt leads to the mythical formation of community, but the secondary violenceof a nomosthat replaces universal authority with a globe structured around relations among its parts. If oneincludes Africa in this spatial order, it cannot be as the extension of European sovereignty in an unoccupiedterritory, as Schmitt considers America, but rather as the demand for an infinite expansion of the market. InSandovals natural history, the bracketing of Europe segregates those who might be forced to enter this market aspure commodities with no personal gain for their labor from those who are excluded from enslavement and thus,from the other side of the line, may profit from the global economy.

What the inclusion of early European expansion in Africa demands of Schmitt, then, is an account of substate

practices in the formation of this global economy built through networks linking regions rather than geographicalsegregation. The Jesuit order provides a unique version of this agency: an organization whose economic interests

were intertwined in an expanding global market, the order was also compelled to justify these interests in termsof an apostolic and universal Christianity. The afterlife of the universal narrative of the respublica ChristianainJesuit practice was the ideal of a universal Christian community shorn of any language of justice. In a treatise ongeography, the slave trade and the practice of slavery in the Americas, bracketing does not restrict practices of

warfare as annihilation to one geographical region, a requirement for Schmitt to protect the unique status of statesovereignty in another. Rather, it segregates primary violence, which if acknowledged would form the mythicalsubstrate of a universal community, from the secondary violence of production. [20][#N20] The function of the

substate corporation was its ability to act on a global level without having to respond to a sovereign demand forjustice such as that of the respublica Christiana.While in the case of the Jesuits, the demand for universal

Christianity ostensibly remains, by including his superiors mandate to delink the arriving Africans from theprocess of enslavement and to accept the sanitizing power of the market, Sandovals treatise becomes the perfectconduit for the violence of production rather than annihilation. It was not the land-locked state that could bestrespond to the demands of a global market but rather the flexible corporation, whether the Dutch West IndiaCompany or the Society of Jesus.

Indeed, the function of bracketing in Schmitts nomosdoes not seem to have been to save Europe from wars ofannihilation but rather to shore up formal state sovereignty from a global spatial order built around substateenclaves. It is quite possible that even Schmitt understood that the function of his bracketing of the jus publicum

Europaeumas a katechonnot against a Hobbesian state of nature but rather on the mixed forms of capture,governance and accumulation that linked regions of the early modern globe. While he associates the mobile,

corporate structure of a global market with American dominance in the twentieth century, in which the Europeaninterstate system suffered at the expense of commercial interests which sought to reduce politics to a minimum(Nomos255), Schmitts concession to British maritime dominance in a non-state space makes clear that thisglobal market developed alongside state sovereignty. By dividing the colonial occupation of free land from thefree sea as a zone of commercial interests, however, Schmitt is able to segregate this dominance as well asmaintain the mythical notion of America and other non-European regions spaces in which there was norecognizable sovereignty prior to European expansion and thus no interaction outside of wars of annihilation.The exceptionality of the European interstate system is posited on the sharp distinction among these zones, adistinction that Schmitt argues collapses in the twentieth century in the era of an economic logic to globaldominance. Questioning the heuristic structure of the spatial order of the jus publicum Europaeumwouldtherefore also necessitate a revision of Schmitts history of the international order, from the origins of European

imperial expansion through present global capitalism. Ultimately, the path for this questioning may be found inthe contradictions of Schmitts own nomos,whose segregated geography mirrors his unflagging belief in the


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autonomy of the political, an autonomy which depends upon the dissimulation the productive networks that arethe true grounds of European expansion.

Notes:In the past several years criticism has begun reflecting more on Schmitts concept of nomos. See for exampleMoreiras; Hooker; Teschke; and Benton 279-99. In 2005 theSouth Atlantic Quarterlyalso dedicated an

extensive special issue to TheNomos of the Earth.Interestingly, aside from the chapter in Bentons book onearly modern imperial sovereignty, and despite the importance that Schmitt affords the seventeenth century inparticular, very few critics have looked at his historical and theoretical claims about this period. [#N1-ptr1]

1.

As John Blanco has recently noted, in a geography of norm and exception in which the globe is the exception,Europe becomes something like the exception from the exception (48). [#N2-ptr1]

2.

Schmitts concept of sovereignty as a decision upon exception has received much attention. See, for exampleKahn. [#N3-ptr1]

3.

As Schmitt is wont to remind the reader, the line which is so important to his notion of bracketing war inEurope, adheres only to the land: ships that sail across the sea leave no trace (Nomos42). [#N4-ptr1]

4.

For this reason, Schmitt calls the Hobbesian state of nature an analogy to the free sea. By engaging inunbridled violence, Schmitt suggests, Europeans become analogous to savages. The sovereign European state,

with its war in form, is therefore the highest form of civility and humanization of war conceivable. I thankJody Blanco for pointing out that Hobbes himself aligns this state of nature not with the free sea but with the

Americas. [#N5-ptr1]

5.

See, for instance, the work of Janice Thomson. [#N6-ptr1]6.Indeed, Schmitt comments that Britains maritime dominance is the first step towards the total rootlesness ofmodern technology (Nomos178). [#N7-ptr1]

7.

Here, Blanco cites Janice Thomson: Thomsons work, for instance, illustrates how the exercise of non-stateviolence, which included piracy, privateering, mercernary activity, and mercantilism, grew out of the desire ofEuropean state leaders to exploit the capabilities of nonstate actors. In doing so, they largely marketized,democratized, and internationalized coercion... it is impossible to draw distinctions between the economicand the political, the domestic and the international, or the nonstate and state realms of authority whenanalyzing these practices. All lines were blurred (40). [#N8-ptr1]

8.

Despite Schmitts dismissal of the work of Hugo Grotius, it is arguably the Dutch jurist that best accounts forthe theoretical challenges that global trade posed to land-based notions of sovereignty and warfare. It is ironicthat despite Schmitts dismissal of Grotius work, the jurist gives a clear example of the direct relationship

between positions in the one hundred year book war to the political events of early seventeenth-centuryinternational commerce. Schmitt appears to base much of his interpretation of Grotius on De pacis et belli(1625), a treatise that incorporated some but not all ofDe iure praedae commentarius,which was notpublished during Grotius lifetime. The latter, written in the service of the Dutch corporation that eventually

would become the Dutch East India Corporation (VOC), sought to defend the company in a particularly messyencounter in the Indonesian Ocean in which a Dutch ship overcame and sacked a Portuguese galleon. Theissue in this case mixed questions of sovereignty and dominion: the Dutch ship was private rather thansovereign; its defense, moreover, based on the idea of right of passage and trade rather than territory, limitedthe possibility of sovereign dominion of the sea. As Edward Keene has noted, however, the circumstances ofthe attack forced Grotius to consider several issues beyond simply the right to plunder as the result of a just

war, which he held this was, as the Dutch additionally had entered into a treaty with the Sultan of Johore,through whose port they were attempting to pass. Grotius thus had to answer two questions: whether or not

the Dutch treaty with Johore was legitimate and, if it were, whether the prize should be awarded to theIndonesian Sultan based on his territorial dominion. Grotius answer is mixed: while he defends the legitimacyof treaties even with infidels, he also defines the right to plunder not on sovereignty but on agency. As theDutch carried out the attack, they should receive the booty. See Keene. [#N9-ptr1]

9.

For instance, see the summary of Luis de Molinas examination of the legitimate titles for enslavement, mostprominently as the result of just war, see Garca Aoveros 310-11, 315. [#N10-ptr1]

0.

Whether or not Europeans actively encouraged these wars for economic reasons has been a source ofhistoriographical debate. Again, John Thornton has made a strong case against the prevailing arguments inthe historiography: on the one hand, that early African warfare was either purposefully initiated by Europeansor fueled by a guns-for-slaves exchange or that it was conducted according to a tribal logic. Against theseassumptions, Thornton has argued that African warfare was heterogeneous and complex institution, followingpolitical as well as economic motives. Furthermore, since African legal systems tied wealth to slaves, ratherthan to land, what often look like slave raids, and therefore solely based on economic motives, were actually

equivalent to wars of conquest (102). [#N11-ptr1]

1.

Acostas pragmatic treatment of evangelization directly influenced Juan de Solrzano PereirasPoltica2.


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indiana(1647), the most important compendium of Spanish imperial legislation of the seventeenth century.In this, Solrzano cites both AcostasDe procurandaand Baldus when he states that it was important toproceed with the empire ...sin andar escudriando los principios, y races de los tiempos, en las cuales loshombres no podrn hallar ms causa, y firmeza, que la voluntad o permisin de Dios... (Solrzano Pereyra).See also, Pagden 48, 89 and More 36-39. [#N12-ptr1]Sandovals treatise has been analyzed periodically, but still awaits a comprehensive treatment. Recent studiesare those of Vila Vilar, Olsen, and Restrepo De Instauranda Aethiopum Salute: Sobre las ediciones ycaractersticas de la obra de Alonso de Sandova. See also the collection of essays edited by ChavesMaldonado. [#N13-ptr1]

3.

Surprisingly, although this aspect of Sandovals treatise has been noticed often, there have been few attemptsto theorize the reasons for his extension of the term beyond the geographic focus of his work. One of the mostcomplete considerations of the variety of contexts and definitions that Sandoval employs for black in histreatise may be found in Restrepo El negro en un pensamiento colonial de principios del siglo XVII:Diferencia, jerarqua y sujecin sin racializacin. [#N14-ptr1]

4.

Similarly, Anbal Quijano has made the argument that race was a category invented to otorgar legitimidad alas relaciones de dominacin impuestas por la conquista (203). Quijano makes no distinction betweendifferent modes of racial categorization or colonization and, indeed, suggests that racisms first object was theinvented category indio, only later to be joined by others such as negro. Not only does this blunt argumentignore the fact that both European expansion into Africa and forced labor on plantations predated Columbusarrival in the Antilles but Quijanos insertion of race into world systems theory is based on labor, without

taking into account the formative structures of exchange that marked mercantile slavery. This may explain thefact that his focus becomes almost exclusively the denunciation of eurocentrism as a source of exclusion andsubordination, leaving out the complex entanglement with capitalism beyond an assertion of the absoluteequivalence between labor and race. [#N15-ptr1]

5.

This is not to say that the development of racial categorization in order to apply distinct laws, including thepermission to do violence, does not imply moral evaluation and hierarchy. Etienne Balibar has argued thatracism, even when condensed in ciphers such as phenotype, works through metynomic chain of signifiers thatimplies a natural or moral order (Balibar and Wallerstein 49-50). [#N16-ptr1]

6.

This well known formula has received been the subject of numerous critical essays. See, for instance, SchmittPolitical Theology: Four Chapters on the Concept of Sovereigntyand Agamben. [#N17-ptr1]

7.

Indeed, Sandoval is clear that since he cannot assume that baptism has already occurred in Africa, it must bethe priority of the missionary who receives slaves in America, thus creating the possibility that slaves had been

baptized in both locales. Mara Cristina Navarrete Pelez has documented the local debates in Cartagena

surrounding the issue of double baptism that Sandovals polemical policy provoked (50-54). [#N18-ptr1]

8.

As Del Valle has written, in the ruins of this project, Jesuits turned exception itself, in the trivial and profaneelements of a temporal existence shorn of the divine, into allegories of redemption (Jos de Acosta, Violenceand Rhetoric 46). [#N19-ptr1]

9.

Bruno Bosteels has recently noted the inability of Schmitts nomosto distinguish among levels of landappropriation but has not analyzed the consequences of this slippage in nomos:On one hand, there is thelevel of appropriation as a great legal-historical event in the ontological sense of the term; on the other, thereare the tumultuous sundry realities of conquests, colonial wars, and migrations. Schmitt, by linking the twomeanings of historyone apparently originary and authentic and the other derivative and almost secondaryalways seems to rely on the ontological claim of an inner law of the earth, as if to suggest that this immanentand primeval normativity was actually destined to become exposed in the history of Western imperialism(302). [#N20-ptr1]

0.

References:Agamben, Giorgio.State of Exception. Trans. Attell, Kevin. Chicago: University of Chicago Press, 2005. Print.

Balibar, Etienne , and Immanuel Wallerstein.Race, Nation, Class: Ambiguous Identities. Trans. Turner, Chris.

London: Verso, 1991. Print.

Benton, Laura.A Search for Sovereignty: Law and Geography in European Empires, 1400-1900. Cambridge:

Cambridge University Press, 2010. Print.

Blanco, John D. Subjects of Baroque Economy: Creole and Pirate Epistemologies of Mercantilism in the

Seventeenth-Century Spanish and Dutch East Indies.Encounters1.1 (2009): 27-61. Print.

Bosteels, Bruno. The Obscure Subject: Sovereignty and Geopolitics in Carl Schmitt's the Nomos of the Earth.


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From Lines to Networks: Carl Schmitt’s Nomos in Africa

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