Dividing the earth
Schmitt's prose is mostly sharp, clear and to the point. Although it usually stays within the bounds of what could be called controlled magnificence, it sometimes gets out of hand and develops into mythological-sounding bombast To illustrate, let me quote from the foreword:
The traditional Eurocentric order of international law is foundering today, as is the old nomos of the earth. This order arose from a legendary and unforeseen discovery of a new world, from an unrepeatable historical event. Only in fantastic parallels can one imagine a modern recurrence, such as men on their way to the moon discovering a new and hitherto unknown planet that could be exploited freely and utilized effectively to relieve their struggles on earth. The question of the new nomos of the earth will not be answered with such fantasies, any more than it will be with further scientific discoveries. Human thinking must again be directed to the elemental orders of its terrestrial being here and now. (Schmitt 2003:39)So what is the nomos of the earth? The word, he explains, comes from nemein, a Greek verb meaning both to divide and to pasture. Rather than law in the abstract, he describes it as the spatial, political and juridical order considered to be binding in international affairs (ibid 19f). It is the order of society expressed in its ordering of space, “the immediate form in which the political and social order of a people becomes spatially visible” (ibid 70).
The coming into being of the first nomos of the earth is described in lofty, mythical language as a primordial appropriation and division of land. Schmitt talks of the earth as the root of law and justice, of "firm lines" becoming apparent as the soil is cleared and worked by human hands. Gradually fences come into being, along with other boundaries. With them families, clans, tribes, as well as power and domination become visible (ibid 42). Before proceding, I think we should note that already here at the very start of his argument, he reveals an agricultural bias, a bias for the settled population. He talks of lines, but where are the lines of movement - lines surely as important as those of boundaries and divisions? When he writes that land-appropriation is “the primeval act in founding law” (ibid 45), I wonder why - didn't the hunters and gatherers also have laws? Don't nomads too have their own nomos, but without fences? Non-agricultural people are elided from his mythological creation narrative, elided just as the indigenous populations driven away by European colonizers in the "virgin" lands "discovered" by the latter. The primordial nomos described by Schmitt, I can only conclude, was also the founding act of imperialism.
Nevertheless, Schmitt does focus in on one kind of free, unregulated space next to the settled, appropriated one - the sea. In fact, the discussion of the relation between land and sea in legal thought is one of the gravitational centers in the book. To look at how he views this relation, we can follow his division of history into three epochs, each characterized by its own nomos:
In the oldest times, there was no single global order and the oceans were largely unexplored. Every civilization considered itself the center and the world beyond it as ruled by war, barbarism, and chaos. "Practically, this meant that in the outer world and with good conscience one could conquer and plunder to a certain boundary” (ibid 352). The seas were a realm of freedom, but that also implied freedom for booty: “Here, the pirate could ply his wicked trade with a clear conscience” (ibid 43).
The next nomos of the earth came into being about 500 years ago, with the so-called age of discoveries, and it was Eurocentric. This was the epoch of modern international law (Völkerrecht or jus gentium) which rested on belief in European civilization. Non-European space was considered un- or halfcivilized, and as available for European domination or colonization. The new world "did not appear as a new enemy, but as free space, as an area open to European occupation and expansion” (ibid 87).
|Treaty of Tordesillas 1494 - example of raya|
It is quite apparent that Schmitt is fascinated by these amity lines. Based on them, wars could legally be waged between European powers in the colonies, despite peace being concluded in Europe. The lines also gave free rein to “privateers”, as when Richelieu declared in 1634 that French seafarers were forbidden to attack Spanish and Portuguese ships on this side of the Tropic of Cancer but were free to do so on the other side. Another example of this legal dualism is that English law distinguished between English soil, where common law ruled, and other areas where the king's power was unrestricted. ”The king’s power was considered to be absolute on the sea and in the colonies, while in his own country it was subject to common law and to baronial or parliamentary limits” (ibid 98).
Reading this, many readers will probably recall Schmitt's famous discussion about sovereignty in Political Theology, and it is interesting to see that Schmitt himself sees a connection between the discovered "virgin lands" and the state of exception. ”The English construction of a state of exception, of so-called martial law, obviously is analogous to the idea of a designated zone of free and empty space” (ibid 98). In both cases the sovereign is free to impose his own order unhindered by the consitution or by common law.
Needless to say, in the colonies the brutality of the "state of exception" was not an exception at all, but the rule. Conversely, the state of exception or "martial law" can be understood as the implementation in the sovereign's own country of the unrestricted powers he enjoyed in the colonies. In both instances the power of state sovereignty is revealed in naked and terrifying brutality. In both instances, the reader is offered a perverse confluence of legally unrestricted freedom and total oppression.
Schmitt's account of the legal implications of the amity lines opens up an interesting perspective on imperialism by showing how much it has in common with today's attacks on urban "no-man's-lands" like the parks or riverbeds where the homeless live. In these "free" spaces freedom is also the freedom of mainstream society to insult or drive away the inhabitants. In The New Urban Frontier (1996), Neil Smith underscores these similarities by comparing the language of gentrification to that of "frontier warfare". What Schmitt brings out is how perversely understandable these attacks become in the light of the principles of sovereignty. The uncivility and brutality of authorities and neighborhood kids in dealing with the homeless would appear simply as a sovereign power let loose from the restrictions to which it is subjected on "this" side of the amity lines but which dissolve into thin air as soon as those uncivilized "others" come into its way that are not considered part of the community of civilized, respectable citizens. Some readers might think of Agamben here - suffice it to say that "bare" life is to be found not only in the camps but also in the colonies.
Before proceding, let me clarify that I do not believe that Schmitt's argument in the slightest diminishes the importance of trying to create and enlarge no-man's-lands. Schmitt's equation of total freedom with total oppression holds only for situations in which the lack of legal restrictions is not matched by a corresponding lack of power asymmetries. In such situations freedom will certainly mean the freedom of plunder, war and despotism. Freedom from laws is of no use if power is left unharmed. What his argument shows is therefore not that the struggle for freedom is futile, only that legal freedom is never enough - that we should also strive for the freedom from power asymmetries, from the despot himself.
Now, let me move on to the second topic that interested me - the similarities between the EU and the idea of Großräume promoted by Schmitt in the end of the book.
The old nomos of the earth established in the age of discoveries started to dissolve in the late 19th century. After the first world war Europe was no longer the “sacral center of the earth”. It was already being overshadowed by the United States. With the League of Nations, an empty universalism displaced the old distinctions between civilized, barbaric and savage, which became “juridically insignificant” (ibid 234). The idea of supra-state "just" wars displaced the idea of the idea of war as a sovereign right of nations. But, Schmitt suggests, this normative universalism lacked a secure foundation. The non-European states were regarded as states in name, but never became recognized as partners in the community of international law in the way European states had recognized each other during the old nomos.
A secure foundation for a new nomos is therefore lacking and the system is unstable. Schmitt appears to believe that such a foundation can only be provided in two ways, world hegemony under a single power or a plurality of regional blocs or Großräume. Which way the world will develop will depend to a large degree on the United States. Ever since the end of the 19th and beginning of the 20th century, “the Western Hemisphere had found itself facing an enormous alternative between a plurality of Großräumen and a global claim to world power”. The United States now needs to decide whether "to make the transition to a Großraum and to find its place in a world of other recognized Großräume, or to transform the concept of war... into a global civil war” (ibid 296). Schmitt's preferences are quite clearly with the idea of an equilibrium of several independent Großräume. Such a possibility, he states, would not have custom or tradition on its side, but it would be "rational", provided that "the Großräume are differentiated meaningfully and are homogenous internally” (ibid 355).
The translator, G. L. Ulmen, states in his introduction that Schmitt had alluded to the idea of the Großraum already in 1928, in an article in which he had argued that modern technology had made borders illusory and that the world had ”become smaller” while ”states and state systems had to become larger”. "In this enormous process of transformation", he had written, "perhaps many weaker states will disappear. A few giant complexes will remain”. Germany itself was territorially ”too small” to be a world power and had to find its political future in the future of Europe. These giant complexes, or Großräume, would become the main international agents in the future, rather than states, and they would in turn compete with each other, arranging themselves as friends or enemies ("Introduction”, p19). In 1939, he returned to the idea of the Großraum, arguing that the technical-industrial-economic development necessitated that the segregation into "small-space" (kleinraum) economies of forms of energy, such as electricity or gas, had to be overcome "organizationally” in a ”great-space economy” (Großraumswirtschaft) (ibid 23).
In these ideas, Schmitt appears to be anticipating both ideas which we today associate with "globalization" and the economic reasons behind the establishment of the EU.
I suggest that we acknowledge Schmitt as one of the spiritual forebears of the EU - not because he played any active role in its actual preparation or because he was particularly unique in putting forth ideas about Großräume, but because he did so with characteristic and ruthless clarity. In fact, he was far from unique. The idea was very much in the air in the interwar era. Exactly the same idea surfaces at the same time in Japan, as is well known. Take for instance the radio address from 1940 by Arita Hachirô, the foreign minister who originated the term "Greater East Asia Co-Prosperity Sphere" (Daitôa kyôeiken). In this radio address, Arita explains that the world is being divided into blocs and that it is desirable that the blocs should consist of nations sharing the same culture:
The countries of East Asia and the regions of the South Seas are geographically, historically, racially, and economically very closely related to each other. They are destined to cooperate and minister to one antoher’s needs for their common well-being and prosperity. (”The Greater East Asia Co-Prosperity Sphere”, pp 1006f, in Sources of Japanese Tradition, vol. 2, Columbia University Press, 2005)Arita emphasizes that the system presupposes a ”stabilizing force in each region” and it is not hard to guess that by that he means Japan. He is only one example among many Japanese intellectuals and politicians around this time where we find similar thoughts.
In these calls for culturally and economically unified blocs the spiritual roots of the EU are already present. Acknowledging people like Schmitt as pioneers of the idea of the EU - perhaps just as important as the celebrated Coudenhove-Kalergi - will help bring out in all necessary clarity that the EU is not solely about the trauma of war after 1945 or the desire for peace and reconciliation. That the idea of such a union didn't need the catastrophe of war is demonstrated by the fact that it surfaced already before the war. To neglect the role played by people like Schmitt is also to miss or downplay the economic or geopolitical arguments for the union. To put it plainly, it is wrong to see the EU simply as an overcoming of Nazism or the Third Reich, since it also represents a continuity of some of the projects with which they were associated. The EU satisfied a need not only for reconciliation or "fettering Germany", but also a desire for a new and more efficient and stable order after the defunct system of the European ”concert” of nation-states - a desire that also nourished fascists and Nazis like Schmitt.
From the Manifesto for Greater East Asian Cooperation (Daitôa kyôdô sengen), a propaganda booklet for children
How easily this desire lets itself be expressed or justified as a hope for peace is illustrated by Schmitt himself. Putting the finishing touches to his book in 1950, he writes:
But today, it is conceivable that the air will envelop the sea and perhaps even the earth, and that men will transform their planet into a combination of produce warehouse and aircraft carrier. Then, new amity lines will be drawn, beyond which atomic and hydrogen bombs will fall. Nevertheless, we cling to the hope that we will find the normative order of the earth, and that the peacemakers will inherit the earth. (Schmitt 2003:49)
Schmitt, Carl (2003) The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, New York: Telos Press.