From Lines to Networks: Carl Schmitt’s Nomos and the Early Atlantic System

Anna More
Universidade de Brasília

Volume 5, 2014

The recent revival of interest in Carl Schmitt’s work on politics and sovereignty has not generally been extended to his 1950 work, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum [The Nomos of the Earth in the International Law of the Jus Publicum Europaeum].[1] This is perhaps not surprising: unlike his more synthetic theoretical works, The Nomos of the Earth is an unwieldy hybrid that weds a theory of interstate politics 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 nomos as the global spatial order that grounds international law in any historical period. In his clearest definition of the term, nomos is rooted in a primary moment of land-appropriation as the basis for justice, sovereignty and distribution in a given community. For Schmitt, therefore, the global spatial order goes beyond mere geography: it is something more akin to an unconscious archetype, albeit fixed in concrete knowledge and practice. Schmitt’s insistence that nomos is the “concrete” grounds for law explains his turn to history. And yet, as a history of international law, The Nomos of the Earth is partial, skewed to Schmitt’s argument in favor of the post-Westphalian jus publicum Europaeum. As a theoretical reflection, it is likewise compromised: as nomos is found only in concrete practice, its explanation cannot be fully disengaged from the contingency of historical events, practices and institutions.

It is precisely Schmitt’s insistence that law is grounded in “concrete” structures, however, that provides a basis for relating practices and institutions of European expansion to questions of warfare, justice, and sovereignty as debated in jurisprudence and political philosophy. In Schmitt’s argument, European imperial expansion and colonization 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 (Nomos 151). For Schmitt, as it has been for many, a decisive moment in the establishment of a global spatial order was the European discovery and conquest of the Americas, as it forced a reconsideration of global space by replacing multiple fragmented perspectives with a unified image of the earth (Nomos 86). While they may have been imperial, 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, a house from a non-house, an enclosure from the wilderness” (Nomos 52). The discovery of America, along with the idea that globe was “apprehensible as fact and measurable as space,” inaugurated a decisive shift: for the first time, “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” (Nomos 87). In what Schmitt terms a new “global linear thinking,” the pre-global boundaries became lines that would eventually allow European states to “bracket” war on their soil by pushing destruction, genocide and colonialism into non-European space.

To support his contention that the nomos of the jus publicum Europaeum was responsible for eliminating “wars of annihilation” on European soil, Schmitt’s version of European expansion aligns theories of warfare, sovereignty and enmity with geographies of land and sea. In this schematic history, America serves a heuristic role as an unoccupied territory in which wars of annihilation take place against non-sovereign agents. The “free space” of America is the logical inversion of conditions in Europe, where Schmitt argues that the early modern hardening of territorial boundaries and the rise of the secular state led to “contained warfare.” Schmitt’s focus on early 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 Schmitt’s system, this elimination is not categorical and absolute, but geographical and pragmatic: given the impossibility of eradicating wars of annihilation on a global scale, the best possible system is one of spatial segregation. While land 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 that determines whether war will be contained and balanced, or will continue as limitless destruction and annihilation. The early modern nomos that inaugurates global modernity thus releases all warfare, whether state or 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]

Notably, however, Schmitt’s nomos is not binary, but tripartite: to the distinction between non-European territories where land-appropriation can proceed unencumbered and European territories where wars are contained by the balance of states, he adds the concept of the “free sea,” a non-state space where wars of annihilation among Europeans can still occur. The heuristic role of the free sea in Schmitt’s system, albeit largely unacknowledged, is that of connecting the European state system to its zones of expansion in supposedly unencumbered and non-state spaces. As such, it responds to a question implicitly posed by the stark binary system of geopolitical norm and exception: in what form would the state occupy lands in which it could not exist as 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 and ambivalent 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 state expansion. Central to the articulation of relations across lines and divisions, the “free sea” is an intermediary zone that undoes the stark contrasts upon which Schmitt’s definition of the nomos of the jus publicum Europaeum depends.

Within Schmitt’s 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 force to 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 the United States that he associates with the demise of the jus publicum Europaeum (Nomos 251-5). Arguably, however, these principles were more central to the development of the early modern nomos than Schmitt acknowledges. They were especially important for what John Blanco has recently called the mixture of “economy and law” that characterized the imperial peripheries of the developing world system (39). As both John Blanco and Ivonne del Valle have shown, in very different arenas, the practice of Iberian imperialism that Schmitt characterizes as massive, even heroic land-appropriations through conquest, was always conditioned by the pragmatics of “economic reason” (Blanco 34; Del Valle, “José de Acosta: Entre el realismo” 317). While Schmitt’s vision of Iberian imperialism derives from Francisco de Vitoria’s seminal lectures on imperial dominion and sovereignty, by the end of the century authors on the imperial frontier were producing reflections on sovereign proxies and governmental violence (Blanco 34; Del Valle “José de Acosta: Entre el realismo” 317-32). Rather than an exception, therefore, the free sea may be the key to understanding the concrete practices that linked commercial ventures and imperial governance in all areas of European expansion, even when these were couched in the language of the state.

Although present from the beginning of Iberian expansion, which proceeded through the state authorization of private initiatives, the dependence of European expansion on substate agents is probably clearest in the incremental involvement of Europeans in sub-Saharan Africa. Early Africa, which has not often been considered in the same framework as that of the Americas, was characterized not by the spectacular occupation of large territories, 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, these enclaves were brought into the greater Atlantic commercial network that linked Europe, Africa and America. This commercial 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 European presence 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 the land-appropriation in the Americas. Rather, early expansion in Africa underscores the mitigated and governmental violence necessary for global economic production (Del Valle “José de Acosta: Entre el realismo” 317) 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 Schmitt’s early modern nomos by extending the conditions of the free sea to the land-based commercial 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 among sovereignty, violence and governmentality that were the necessary conditions for the extractive economies of Iberian empires, especially mining and plantation agriculture. Undoubtedly, the most important of these texts were written by the José de Acosta, a Jesuit who wrote from Peru at the same time that the viceroy Francisco de Toledo was reorganizing and rationalizing the viceregal state and whom Ivonne del Valle has called an “organic intellectual” of colonialism (Del Valle “José de Acosta: Colonial Regimes” 21) in its second stage, after the massive land-appropriations and wars of conquest of the first half of the century. Indeed, Acosta’s works are both theoretical 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. Following directly from Acosta’s seminal works, the Jesuit Alonso de Sandoval adapted these to the conditions of mercantile 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 a respublica Christiana were being eclipsed by pragmatic concerns of production.

By delinking European expansion from land-appropriation, mercantile slavery augments the conditions that marked Iberian colonialism in the late sixteenth and early seventeenth centuries. An unprecedented treatise on mercantile slavery, Alonso de Sandoval’s De Instauranda Aethiopum Salute (1627, 1647) exposes the simultaneity and confluence of functions that Schmitt assigns to distinct geographies of land and sea. Sandoval’s account of the conditions of the slave trade and plantation economy challenges Schmitt’s assumptions in three ways: first, it suggests ways in which a global market negated questions of justice, which in the case of slavery had centered 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 respublica Christiana; and third, it articulates the first rudimentary vision of the global south based on racial phenotype. The nomos that developed at this time and which both Acosta and Sandoval represented, was not one based on geographic lines dividing territories according to whether they had homologous state forms or not but a “network spatiality” remarkably similar to what Carlo Galli has recently called the limit of Schmitt’s spatial reasoning (105). More than an empirical correction to Schmitt’s history, then, the consideration of texts that parallel the European juridical debates of the sixteenth and seventeenth centuries, may produce new maps of political modernity itself. These must begin by locating the origins of the global spatial order not in singular events and land-appropriation alone, but in renewable, flexible and mobile forms of sovereignty that acted to articulate governance and economy on a global scale.

Schmitt’s Nomos: Lines, Brackets, and Sovereignty

Despite the centrality of nomos to his theory of international law, the closest Schmitt comes to defining the concept is to equate it with an original moment of land-appropriation and distribution that forms the basis of “a kind of supreme ownership of the community as a whole” (Nomos 45). Nomos, in this sense, becomes the basis for legal and political authority, the grounding of all subsequent positive law. As the unspoken, collective ground for distribution, nomos is the ultimate source of justice, a distant origin that orders present conditions: “Concretely speaking, nomos is, for example, the chicken in every pot that every peasant living under a good king has on Sunday, the parcel of land every farmer cultivates as his property, and the car every American worker has parked in his garage” (Nomos 325). It is exactly Schmitt’s insistence that nomos can only be perceived in the concrete that appears to make it resist positive definitions and philological maps (Nomos 325-6). Schmitt is clear, however, that nomos is indelibly linked to the earth, as evidenced in the mythical language of Homer, in archetypical 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” (Nomos 42-3). Nomos appears to partake, in other words, in what Victoria Kahn has recently described as Schmitt’s fascination with myth as the foundation of 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, always includes a land-based order and orientation” (Nomos 80).

At once concrete and mythical, nomos accords with Schmitt’s idiosyncratic historical approach, which relates historical events of monumental stature, political institutions, and the theoretical treatises that articulated the moral, theological and legal contours of international law as it developed in Europe. Thus, despite the fact that Schmitt’s history for the most part rehearses the intellectual tradition of international law in Europe, his approach to nomos goes beyond a history of ideas to include the concrete spatial orientation that Schmitt insists grounds actual practices, institutions and law in any given epoch. The shift from what he calls the “medieval” or “pre-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 of European expansion. For Schmitt, the operative figure that inaugurated the first global nomos was the concept of the raya manifest in the 1493 papal donation and subsequent Treaty of Tordesillas of 1494 (Nomos 89). Rather than a precise measure or division of the world, the importance of these imaginary lines was their ability to contain 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 and Portugal within the shared order of the respublica Christiana. Because of this assumption that Christianity necessarily applied globally, rayas did not imply a distinction among spheres within or beyond the line: in all places non-Christian peoples had either to be incorporated into the Christian global order or could be justifiably eliminated.

Schmitt’s reading of these first global lines, especially as they were elaborated by the Salamancan theologian Francisco 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 the jus publicum Europaeum in the following century. To the extent that the Spanish and Portuguese rayas admitted that wars “between Christian 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 appears to mean Vitoria’s 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 that non-Christian territories were “neither free nor unclaimed” (Nomos 112) — an idea that Schmitt characterizes as a “neutral, apathetic and thus, ahistorical exaggeration” (Nomos 107) —and proceeds to question the basis for the possession 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” (Nomos 59). The respublica Christiana was a totalizing order, in Schmitt’s words a katechon that 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” (Nomos 107).

As the respublica Christiana necessitated a moral justification for European expansion and Vitoria rejects in the first 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 of annihilation, however, the bracketing of war on European soil demands that ius gentium be replaced by a more parochial ius inter gentes (Nomos 129). Here, Schmitt clearly sees a series of historically contingent changes that lead to the retreat of Europe from the universal goals of the respublica Christiana. Europe’s internal religious schisms, conflicts that questioned the very notion of one overarching religious authority, are central to Schmitt’s account of this demise. In his argument, peace on European territory could not be achieved by a unique moral authority and unified church, but by the ascendance of the secular state. Rather than suppressing conflict, the state sought out its sovereign homologue and channeled conflict into a contained form. For Schmitt, it is the transformation of just war into justus hostis, or an equal enemy, that inaugurates the containment of conflict on European soil (Nomos 142).

The substitution of an order of equal sovereign states for the dream of universal sovereignty of a respublica Christiana thus follows from the problem of adjudicating interstate disputes according to the postulates of just war, now subject to “agnostic, skeptical, and decisionist reservations” (Nomos 155-6). At this crucial pivot in his historical narrative of the emergence of the nomos of the jus publicum Europaeum, Schmitt explicitly juxtaposes the concept of a global spatial order to decisionism, the basis for his well-known theory of sovereignty.[3] The nomos of the jus publicum Europaeum is not decisionist precisely because there can be no universal and global sovereign who judges disputes between equal states:

At least since Bodin, a true jurist would confront this skeptical and agnostic disposition with a decisionist formulation of the question that is immediately given with the concept of state sovereignty: who then is in a position to decide authoritatively on all the obvious, but impenetrable questions of fact and law pertinent to the question of justa causa? The asserted juridical right and moral legitimacy of one’s own cause and the alleged injustice of the opponent’s cause only sharpen and deepen the belligerents’ hostility, surely in the most gruesome way. That we have learned from the 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, juridical interest no longer was concerned with the normative content of justice and the substantive content of justa causa: Who decides? (the great Quis judicabit?). Only the sovereign could decide this question, 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 of the sovereigns: Par in parem non habet jurisdictionem [Equals have no jurisdiction over each other].

(Nomos 156-7)

Just war, in fact justice as a paradigm for judgment on conflict, demands a sovereign authority, an impossible demand 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. Schmitt likens 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 form—in the quality of the parties to the conflict 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” (Nomos 143).

The nomos of the jus publicum Europaeum thus substitutes the dream of universal sovereignty with a global spatial order based on lines and divisions. To the extent that language of decision and exception does appear in Schmitt’s description of the nomos of the jus publicum Europaeum, it is as an analogy: “The English construction of a state of exception, of so-called martial law,” he remarks “obviously is analogous to the idea of a designated zone of free and empty space” (Nomos 98). 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) from non-state space (as an exception without decision). It would appear that rather than ignoring completely his theories of sovereignty, then, Schmitt’s nomos was attempting to disarticulate decisionism from exception. Whereas the jus publicum Europaeum holds 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 compared to colonial wars, which are pursued against ‘wild’ peoples, European ‘war in form,’ signified the strongest possible rationalization and humanization of war” (Nomos 142). But because there is no sovereignty outside of the European interstate system, colonial land-appropriation is also fundamentally different from the mythical origin of communities: distribution does not occur within a community, as the fundament of justice, but rather globally, where distribution does not need to be tied to an overarching system of justice. The nomos of the jus publicum Europaeum, then, defines a global distribution freed from all questions of justice or politics.

Beyond the Line: the Free Sea in Schmitt’s Nomos

Schmitt’s early modern nomos thus replaces an impossible universal sovereignty with a balanced global spatial order in which a line acts to separate the jus publicum Europaeum from non-European territory. This line marks an essential difference for Schmitt between those states that are equal and recognizable as such and those that are 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 a justus hostis. It is this injection of conflict into the notion of equality that provides the bridge between the jus publicum Europaeum and its opposite, beyond the line. Beyond the line, Schmitt suggests, the European state meets conflict on unequal terms and hence the “colonial wars” that take place in America are categorically different from wars between equal states. Because beyond the line there is no possibility of “war in form,” there is also no respect for the firm boundaries of state territory or, what amounts to the same, there can be no “war in form” where there is no state. Once the moral order of the respublica Christiana has retreated from this non-state space, then imperial land-grabbing can proceed unabated under the same 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 Europeans and non-European peoples who now have no common point of justice, sovereignty or equality. The jurists of the seventeenth century therefore set aside the question of justice, creating instead taxonomies that distinguished among types of warfare based on the nature of the enemy. For Schmitt, the decisive moment in the transition from the language of ius gentium to ius inter gentes is the Spanish jurist Baltasar de Ayala’s distinction between public and private war (Nomos 153-54). This notion that different types of war could abide by distinct rules will eventually 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 nomos of the jus publicum Europaeum in his typology of three types of enemies distinguished by their relationship to a shared community. At the extreme are inimici, whose possessions do not need to be respected and with whom there is no “friendship, no amicitia or legal community, no hospitium (hospitality), and no foedus (convenent), as between Greeks and barbarians, Romans and strangers.” An adversarrii is an opponent with whom a legal community exists that nonetheless can be destroyed by civil war. A hostes is an opponent that one may injure or kill but “who must be treated according to rules of war in international law (Nomos 163-4). With Zouch’s typology, then, the distinction among types of warfare becomes based not on public and private (although this distinction, basic to the monopoly of the state, still holds overarching importance) but rather on the characteristics of the enemy in relation to a shared community.

Zouch’s tripartite structure reflects a problem that Schmitt faces when he aligns geography and warfare according to state sovereignty. If wars between a sovereign state and non-sovereign peoples are colonial wars and these by definition cannot occur on European soil, then arguably they are not wars that need to be “eliminated” from Europe. The suppression of wars of annihilation, therefore, needs a third term which, in Zouch’s system is the adversarii: those enemies who by rights should be hostes but who through war destroy the basis for community. In Schmitt’s nomos, this intermediary enemy is located in a crucial geographical concept: the free sea. The appearance of a third zone, intermediary and linking European territory to non-European land free for occupation answers a theoretical problem in Schmitt’s definition of a global spatial order which acts through division. The ability to channel interstate conflict to “war in form” depends upon the recognition of sovereign states, which Schmitt associates with the territorial lines of land-appropriation.[4] 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 what does so in the name of European land-appropriation.

In Schmitt’s version of the jus publicum Europaeum, therefore, it is not the colonial wars of annihilation between Europeans and non-Europeans that most threatens peace but the possibility of war between Europeans in the non-state space of the free sea. Indeed, Schmitt likens the danger of unregulated conflict on the free sea to a Hobbesian state of nature: “Hobbes came nearest to the core of the matter when he said that this freedom [of the sea] is indicative of the state of nature in which everything belongs to everyone; however, in a critical case, the same would be true ac si nullium omnino jus existerit [as if there had been no right at all], when the strongest deals with all in the name of the law, as is true of the freedom of the state of nature” (Nomos 176-77). This danger is 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 just cause and the legitimacy of public war with war to pursue private interests: “the best formulated demands of justa causa are meaningless if the belligerent power that pursues unjust war has the same rights of plunder and capture in international law as does its opponent who pursues a just war” (Nomos 162). While the sea became a place of non-state merchant activity during “peacetime,” therefore, juridically it amounted to little more than a Hobbesian 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 world’s oceans remains free and open to any warring power as a theater of war, as well as of prize law” (Nomos 177).[5]

Without being able to rely on the mutual recognition of justus hostis, the only guarantee of peace in a region defined by non-state freedom is the dominance of one power. For this reason, Schmitt repeatedly insists that British maritime dominance was crucial for the balanced stasis of the jus publicum Europaeum: “Thus, two universal and global orders confronted each other without being able to assume the relation between universal and particular law. Each was universal in its own right. Each had its own concepts of enemy, war, booty, and freedom. The total decision for international law in the 16th and 17th centuries culminated in a balance of land and sea—in the opposition of two orders that determined the nomos of the earth precisely in their mutual tension” (Nomos 172-3). Maritime dominance takes place, by definition, in an area where state sovereignty cannot exist. Although Schmitt characterizes the sea as dominated by the British, he also notes that the freedom of the sea was a “non-state freedom” that began with freebooters: “with them, the sharp distinction between state and 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 their service and their gifts, often treated them as adversaries for political reasons” (Nomos 174). The singular freedom of freebooters eventually led to the “maritime side of the jus publicum Europaeum: the freedom of the sea and the freedom of merchant traders, whose ships were essentially non-state vessels” (Nomos 174). Where there can be no “war in form” and no recognition of equal states corresponding to bounded territories, where public and private are confused, and plunder becomes a justified prize of war, only the military domination of one power can assure that the sea’s potential for peaceful trade be realized.

This is the heuristic function of British maritime dominance in Schmitt’s history. As Schmitt tells this history, this dominance originated with English freebooters but was eventually brought under state control. Although he calls 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 the individual pirate paints the free sea suspiciously like a Hobbesian state of nature composed of individuals at war that does not reflect the complex relations among state and non-state violence and commerce of the period.[6] 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 Schmitt’s theory of state sovereignty. Schmitt does argue that maritime dominance follows from the technological extension of the state in a non-state space.[7] 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 that it permits, rather than signaling the failure of peaceful commerce. As Alberto Moreiras has argued, the nomos defined by segregating the just enemy generates its own anomic figure, which he finds in Schmitt’s rejection of the Kantian “unjust enemy,” in turn associated with the pirate and criminal (81-2). In a nomos of balanced divisions, 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 the individual pirate or freebooter that best represents this anomic element. Rather the substate corporation, which gets little play in Schmitt’s history but which played an important role in both the practice and theory of maritime imperial expansion, confused the rigid boundaries between state and non-state by creating proxies for the state in 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 space of the sea contributed to the emergence of secular states in Europe. While the absolutist state was emerging in Europe, however, the Iberian imperial periphery in particular was characterized by flexible and dispersed forms of sovereignty in constant tension with attempts at centralization (Blanco 34-39; More; Del Valle “José de Acosta: Entre el realismo” 303-5). As John Blanco has recently noted, these forms of sovereignty were marked by “the strategic absence of any central authority, the tactical commingling of law and economy, and the semi-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 finances precisely through their ability to exploit violence through non-state agents.[8] Particularly striking is the coincidence between the negotiations between sovereign states and mercantile corporations and the emergence of individual rights in European jurisprudence in such theorists as Hugo Grotius, for whom the “natural individual was, morally speaking, like a miniature state, to which the vocabulary of liberty could be applied” (Richard Tuck cited in Blanco 44).[9]

Neither a zone of land occupation nor of maritime commerce, early Africa in particular mixes characteristics that Schmitt segregates in his account of the early modern nomos. As opposed to the extensive land-appropriation in Spanish 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 seventeenth centuries. 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, from which Portuguese and other European nationals engaged in trade, regulated and limited by the African polities of the regions. State control by the Portuguese monarchy, to the extent that it existed, was limited to protecting and overseeing trade surrounding these enclaves. Trade in the interior, conducted by the renegade sertanejos, was almost entirely at the behest of African leaders (Thornton 62-3; Ferreira). As Thornton has noted, the Portuguese Crown’s desire to benefit from African trade was balanced by the distances and resources necessary to exercise effective control. By the seventeenth century, the Crown had set up official feiras to centralize and control trade but, as might be expected, even officials sent to oversee trade were tempted to defect (Thornton 60). As Thornton concludes, as long as African polities “preserved their sovereignty” (Thornton 63), the Portuguese and other European interests, such as the Dutch who made headway in the early seventeenth century, were never able to fully control trade or its benefits.

Because land-appropriation was never a serious goal nor practical possibility, the trajectory of international jurisprudence upon which Schmitt bases his account had little relevance to early Africa. Those theological debates that did not touch upon European expansion in Africa did not center on the issue of sovereignty and possession but rather the captivity of slaves, considered legitimate when taken after a just war.[10] Despite the inherent interest of European traders in the wars that produced slaves, however, many of these wars took place 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 to gain advantages in specific regions (Thornton 99-102). Officially, then, Europeans could conduct the slave trade on the premise that Africans had been enslaved by other Africans and thus diminish their involvement in the question of the justice of the original captivity.[11] 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 in determining 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 Tomás Mercado’s Suma de tratos y contratos (1569) and more prominently in Luis de Molina’s De iustitia et iure (1593). By the end of the sixteenth century, the consensus on this question was that if merchants had no knowledge to the contrary, the enslavement of Africans was assumed to be legitimate and the secondary market could proceed accordingly (García Añoveros 321-27).

By thus avoiding the questions of just war central to the moral order of the respublica Christiana, the late sixteenth-century Iberian treatises on value, just price and the market accord with Schmitt’s reflections on the transition from ius gentium to ius inter gentes. Rather than following from the “decisionist reservations” that Schmitt argues led to non-discriminatory warfare among European states, however, the treatises present market exchange as a mitigating distance from the violence of original enslavement: where it was impossible to determine the legitimacy of this violence, in accordance with the moral precepts of the respublica Christiana, the market itself could proceed as if it were. The market thus became a means to mediate violence, by suspending direct contamination, as the moral order shifted from concern with original justice to the smooth functioning of mercantile exchange. This pragmatic turn in late scholastic economic treatises has parallels in other areas of Iberian theology and jurisprudence. Ivonne del Valle has shown that José de Acosta’s De procuranda indorum (1588) likewise turned away from the questions of justice that had framed the theological debates on Spanish imperial sovereignty in the mid-sixteenth century. Breaking with the radical calls for justice by Bartolomé de las Casas and others from the period, Acosta defended colonialism as an economic necessity and provided a casuistic map of when and how to employ violence in evangelization and governance, in a move that combined “governmentality” with the “obscure economic interests driving the ongoing colonization of new peoples and new territories” (Del Valle “José de Acosta, Violence and Rhetoric” 49). Through Acosta’s influence, this Jesuit governmentality resonated in imperial jurisprudence and practice throughout the seventeenth and eighteenth centuries.[12]

Modeled on José de Acosta’s two most influential works, De procuranda indorum and Historia natural y moral de las Indias (1590), Alonso de Sandoval’s De Instauranda Aethiopum Salute (1627, 1647) condensed their dual focus on a global anthropological division and missionary practice to address the practical and theoretical problems 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. His description and defense of the Jesuit mission in the largest slave port at that time turns on the possibility that arriving Africans may not have been adequately baptized, if at all, before their transatlantic journey. This concern, as well as the pragmatics of a mission among mixed groups of Africans, leads Sandoval to include an extensive natural history of Africa (which following contemporary nomenclature he terms “Etiopía”) as a prelude to his missionary manual.[13] 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-century discussions in Tomás Mercado and Luis de Molina, particularly the declarations of slave traders that the slaves they transport have not all been legitimately captured. In imitation, Sandoval also interviews merchants, finding not only similar confessions but also declarations that the Portuguese themselves were instigating wars in order to produce more slaves (147).

While Sandoval thus follows the debates on the justice of the slave trade, he ultimately breaks with these questions through the curious and striking inclusion in his text of a letter from the Jesuit superior of Luanda, Luis de Brandão. In response to Sandoval’s inquiry into the origin of slaves arriving in Cartagena, Brandão reminds him that the Jesuits themselves owned and traded African slaves. Echoing an idea constantly evoked in early debates on slavery, Brandão further argues that the collective good of evangelization justifies the possibility of individual injustice (Sandoval 144). Opting for pragmatic calculation rather than justice, Brandão’s conclusion is 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 the enslavement of the indigenous population in the interest of an economic reason and greater good of Christian evangelization (Del Valle “José de Acosta: Entrel el realismo” 317), Brandão insists that Sandoval turn away from the debate on African enslavement. By including the letter verbatim in his account, moreover, Sandoval publicly acknowledges the mandate from his superior, excusing himself from taking a position on the argument. He subsequently 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 Schmitt’s crucial pivot, moreover, he proceeds to substitute a geographical order for questions of universal justice. Yet Sandoval’s version of this global spatial order does not turn on Schmitt’s geographic distinction between a European territory where the state form prevails and non-state territory beyond Europe. 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 the first systematic application of racial phenotype on a global scale. Sandoval stretches the geography of “blackness” as 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 than curly hair (136), and a “nacion de Etiopes gentiles, a que llaman Maracatos, negros como una pez; pero tienen el cabello lizo, que es la maravilla; y las faiciones del rostro ahidalgadas como rostros de Españoles” (191). At one point, he admits that “aunque es verdad, que a todas estas naciones llamamos comunmente Negros, no todos son atesados; antes entre si mismas ay en casi todas gran variedad; unas son mas negras que otras; otras no 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 estos negros tan atezados como los de Guinea, ni tan feos” (95). Indeed, even in the Americas, whose inhabitants appear to fall largely outside of this black-white schema, Sandoval reports that “hay naciones de negros tan incultas 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 Papua New Guinea, in a text ostensibly focused on the slaves arriving at the port of Cartagena, is the logic of mercantile slavery itself.[14] 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” and the demand to produce slaves for a global market. Blackness thus becomes a general sign that divides the globe into Europeans, “la menor de las quatro partes del mundo: pero la mayor en nobleza, virtud y gravedad, magnificencia, y cantidad de gente política” (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 counterpart to the bracketing function that for Schmitt defines the jus publicum Europaeum. While Sandoval’s treatise delineates a global spatial order similar to Schmitt’s, however, its operative distinction is not state sovereignty in the interest of excluding wars of annihilation from European territory. Indeed, Sandoval has virtually nothing to say about land-based sovereignty, nor does he create taxonomies of warfare or even touch upon the commercial disputes 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 be categorically excluded from this fate.[15]

Sandoval’s global racial vision has precedents, the most notable and immediate being José de Acosta’s own typology 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 the colonial political economy (“José de Acosta: Entre el realismo” 298). In fact, for Acosta, the shifting category of “Indian” 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 turn funds Christian salvation of the same subjects (Del Valle “José de Acosta: Entre el realismo” 319). If anything, mercantile slavery condenses the temporal distance that allows Acosta to argue that the original violence of conquest must be “forgotten” in the interest of a workable polity. In mercantile slavery, the distance is not temporal but geographic and the means to suppress violence can only be through delinking geographies. Once these 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, in Sandoval it is condensed into a racial sign that dispenses with the need for a clear moral argument.[16] As Sandoval “invents” race, he must also contend with its absolute arbitrariness, a reflection of the necessary alienation 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 into economies as labor. Rather than the end that justifies the violent means, baptism in Sandoval marks the passageway from a state of sovereignless exception into the American plantation economy. The counterpart to his suspension of questions of justice in favor of the spatial and structural logic of mercantile slavery is a vision of subjects literally stripped bare on the transatlantic journey but on whose bodies are nonetheless etched a destiny of Christian salvation:

Y causa gran lástima, y compassión, ver tanto enfermo, tan necessitados, con tan poco regalo, y agazajo de sus amos, pues los dexan de ordinario por los suelos desnudos, y sin abrigo, ni amparo alguno, y aí se estan, y aí miserablemente suelen parecer, sin que ni de sus cuerpos ni de sus ánimas aya quien se duela, que se duda con mucho fundamento, si es la causa de su muerte su gran desamparo o sus enfermedades. Buena preuva será desto lo que con mis ojos via y llorava: en algunas casas destos señores 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 mañana tales cuales los abrian, puesto gente tan bestial. Estos lugares pues tenian diputados sin remedio alguno para los desahuiciados; alli los arrojavan, y entre aquella miseria y desventura se lamentavan, y alli finalmente comidos de moscas, unos encima de los tablados, otros debaxo dellos morian. Acuerdome que vi una vez entre otros muchos, dos ya muertos, desnudos en carnes 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 sus almas por aver muerto sin el Santo Sacramento del bautismo, por no aver llamado quien se lo administrasse…

(Sandoval 153)

Like Acosta’s vision of American mines in which labor becomes a death sentence (Del Valle “José de Acosta” 317), Sandoval’s description of the horrors of the transatlantic slave trade is one of violence outside of sovereignty, an instantiation 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 of global mercantile systems were clearly more often new forms of violence, captivity and private gain outside of sovereign polities. Thus while for Schmitt it is exception itself that justifies sovereignty through decision,[17] mercantile slavery takes place in a world in which the possibility of universal sovereignty has been revoked. For Sandoval 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 abandons the present in the promise of salvation, beyond an absolute line. The universal guarantee of the respublica Christiana is thus left to the afterlife, while the temporal present becomes one of the managed violence to which Sandoval will dedicate much of his text. Sandoval’s induction of African slaves into a Christian order, under the sign of a delayed universal, is not global, but local and limited.[18] Thus, Jesuits such as Sandoval provided the pragmatic continuation of an apostolic project of the respublica Christiana begun under the belief that the globe could be imminently converted and redeemed.[19]

While these scenes expose the continual violence to which Africans are subjected, they are not ones that read the free sea as an equivalent to the state of nature. Indeed it is the retention of the sign of Christianity that blocks such a possibility. Yet neither do they incite Sandoval to question the justice of the trade itself. Rather, they serve as 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 sign of a universal that must be continually displaced to the afterlife. This pragmatic concession to a globe in which a universal order had to be built from ground up, in a linked rather than homogeneous project, parallels the eclipse of the dream of universal sovereignty that Schmitt sees at the inauguration of the jus publicum Europaeum. Sandoval’s 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 make this land appropriation profitable, must take place as if this universal community existed, while divorcing practices 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 the “free sea” in Schmitt’s nomos and that provided the ground-level practice of European imperial expansion. As opposed to Schmitt’s account, in which Europeans move into free space or fight among themselves for commercial monopolies, Sandoval’s account details the atomized and coordinated constellation of local projects that made up the first global mode of production.

Conclusion: Nomos and Network Spatiality

If Schmitt’s insistence upon lines created a problem in articulating links between an overdetermined state sovereignty in Europe, its extension upon the free sea and its absence among non-European peoples, viewing Sandoval’s treatise as a reflection of one among many practices of sovereignty in early globalization dilutes the confluence of the state, land appropriation, and warfare in Schmitt’s theory. Rather than corresponding to the Manichean division between state and non-state zones that structures Schmitt’s nomos, Africa and the global slave trade were spaces ruled by negotiations by what can only be described as “substate” organizations. A mirror inversion of the European continent, in Schmitt’s terms, Africa was the arena of constant conflict and negotiation in the absence of one dominant state. While in Schmitt’s terms these would amount to conditions of annihilation, however, in their contribution to the slave trade, they were arguably the very conditions that fueled global economic production. What Sandoval’s treatise provides, in other words, is an account not of the violence of primary occupation, which in Schmitt leads to the mythical formation of community, but the secondary violence of a nomos that replaces universal authority with a globe structured around relations among its parts. If one includes Africa in this spatial order, it cannot be as the extension of European sovereignty in an unoccupied territory, as Schmitt considers America, but rather as the demand for an infinite expansion of the market. In Sandoval’s natural history, the bracketing of Europe segregates those who might be forced to enter this market as pure 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 geographical segregation. 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 terms of an apostolic and universal Christianity. The afterlife of the universal narrative of the respublica Christiana in Jesuit practice was the ideal of a universal Christian community shorn of any language of justice. In a treatise on geography, 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 state sovereignty in another. Rather, it segregates primary violence, which if acknowledged would form the mythical substrate of a universal community, from the secondary violence of production.[20] The function of the substate corporation was its ability to act on a global level without having to respond to a sovereign demand for justice such as that of the respublica Christiana. While in the case of the Jesuits, the demand for universal Christianity ostensibly remains, by including his superior’s mandate to delink the arriving Africans from the process of enslavement and to accept the sanitizing power of the market, Sandoval’s treatise becomes the perfect conduit for the violence of production rather than annihilation. It was not the land-locked state that could best respond to the demands of a global market but rather the flexible corporation, whether the Dutch West India Company or the Society of Jesus.

Indeed, the function of bracketing in Schmitt’s nomos does not seem to have been to save Europe from wars of annihilation but rather to shore up formal state sovereignty from a global spatial order built around substate enclaves. It is quite possible that even Schmitt understood that the function of his bracketing of the jus publicum Europaeum as a katechon not 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 European interstate system suffered at the expense of commercial interests which sought to reduce politics to a minimum (Nomos 255), Schmitt’s concession to British maritime dominance in a non-state space makes clear that this global market developed alongside state sovereignty. By dividing the colonial occupation of free land from the free sea as a zone of commercial interests, however, Schmitt is able to segregate this dominance as well as maintain the mythical notion of America and other non-European regions spaces in which there was no recognizable 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, a distinction that Schmitt argues collapses in the twentieth century in the era of an economic logic to global dominance. Questioning the heuristic structure of the spatial order of the jus publicum Europaeum would therefore also necessitate a revision of Schmitt’s 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 in the contradictions of Schmitt’s own nomos, whose segregated geography mirrors his unflagging belief in the autonomy of the political, an autonomy which depends upon the dissimulation the productive networks that are the true grounds of European expansion.


01. In the past several years criticism has begun reflecting more on Schmitt’s concept of nomos. See for example Moreiras; Hooker; Teschke; and Benton 279-99. In 2005 the South Atlantic Quarterly also dedicated an extensive special issue to The Nomos of the Earth. Interestingly, aside from the chapter in Benton’s book on early modern imperial sovereignty, and despite the importance that Schmitt affords the seventeenth century in particular, very few critics have looked at his historical and theoretical claims about this period.

02. 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).

03. Schmitt’s concept of sovereignty as a “decision upon exception” has received much attention. See, for example Kahn.

04. As Schmitt is wont to remind the reader, the line which is so important to his notion of bracketing war in Europe, adheres only to the land: “ships that sail across the sea leave no trace” (Nomos 42).

05. For this reason, Schmitt calls the Hobbesian state of nature an analogy to the free sea. By engaging in unbridled 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 thank Jody Blanco for pointing out that Hobbes himself aligns this state of nature not with the free sea but with the Americas.

06. See, for instance, the work of Janice Thomson.

07. Indeed, Schmitt comments that Britain’s maritime dominance is the first step towards the “total rootlesness of modern technology” (Nomos 178).

08. Here, Blanco cites Janice Thomson: “Thomson’s work, for instance, illustrates how the exercise of non-state violence, which included piracy, privateering, mercernary activity, and mercantilism, grew out of the desire of European 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 economic and the political, the domestic and the international, or the nonstate and state realms of authority when analyzing these practices. All lines were blurred” (40).

09. Despite Schmitt’s dismissal of the work of Hugo Grotius, it is arguably the Dutch jurist that best accounts for the theoretical challenges that global trade posed to land-based notions of sovereignty and warfare. It is ironic that despite Schmitt’s 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-century international 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 of De iure praedae commentarius, which was not published 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 messy encounter in the Indonesian Ocean in which a Dutch ship overcame and sacked a Portuguese galleon. The issue in this case mixed questions of sovereignty and dominion: the Dutch ship was private rather than sovereign; its defense, moreover, based on the idea of right of passage and trade rather than territory, limited the possibility of sovereign dominion of the sea. As Edward Keene has noted, however, the circumstances of the 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 the Indonesian Sultan based on his territorial dominion. Grotius’ answer is mixed: while he defends the legitimacy of treaties even with “infidels,” he also defines the right to plunder not on sovereignty but on agency. As the Dutch carried out the attack, they should receive the booty. See Keene.

10. For instance, see the summary of Luis de Molina’s examination of the legitimate titles for enslavement, most prominently as the result of just war, see García Añoveros 310-11, 315.

11. Whether or not Europeans actively encouraged these wars for economic reasons has been a source of historiographical debate. Again, John Thornton has made a strong case against the prevailing arguments in the historiography: on the one hand, that early African warfare was either purposefully initiated by Europeans or fueled by a “guns-for-slaves” exchange or that it was conducted according to a “tribal” logic. Against these assumptions, Thornton has argued that African warfare was heterogeneous and complex institution, following political as well as economic motives. Furthermore, since African legal systems tied wealth to slaves, rather than to land, what often look like slave raids, and therefore solely based on economic motives, were actually “equivalent to wars of conquest” (102). 

12. Acosta’s pragmatic treatment of evangelization directly influenced Juan de Solórzano Pereira’s Política indiana (1647), the most important compendium of Spanish imperial legislation of the seventeenth century. In this, Solórzano cites both Acosta’s De procuranda and Baldus when he states that it was important to proceed with the empire “…sin andar escudriñando los principios, y raíces de los tiempos, en las cuales los hombres no podrán hallar más causa, y firmeza, que la voluntad o permisión de Dios…” (Solórzano Pereyra). See also, Pagden 48, 89 and More 36-39.

13. Sandoval’s treatise has been analyzed periodically, but still awaits a comprehensive treatment. Recent studies are those of Vila Vilar, Olsen, and Restrepo “De Instauranda Aethiopum Salute: Sobre las ediciones y características de la obra de Alonso de Sandova.” See also the collection of essays edited by Chaves Maldonado.

14. Surprisingly, although this aspect of Sandoval’s treatise has been noticed often, there have been few attempts to theorize the reasons for his extension of the term beyond the geographic focus of his work. One of the most complete considerations of the variety of contexts and definitions that Sandoval employs for “black” in his treatise may be found in Restrepo “El negro en un pensamiento colonial de principios del siglo XVII: Diferencia, jerarquía y sujeción sin racialización.” 

15. Similarly, Aníbal Quijano has made the argument that race was a category invented to “otorgar legitimidad a las relaciones de dominación impuestas por la conquista” (203). Quijano makes no distinction between different modes of racial categorization or colonization and, indeed, suggests that racism’s first object was the invented category “indio,” only later to be joined by others such as “negro.” Not only does this blunt argument ignore the fact that both European expansion into Africa and forced labor on plantations predated Columbus’ arrival in the Antilles but Quijano’s 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 the fact that his focus becomes almost exclusively the denunciation of eurocentrism as a source of exclusion and subordination, leaving out the complex entanglement with capitalism beyond an assertion of the absolute equivalence between labor and race.

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

17. This well known formula has received been the subject of numerous critical essays. See, for instance, Schmitt Political Theology: Four Chapters on the Concept of Sovereignty and Agamben.

18. Indeed, Sandoval is clear that since he cannot assume that baptism has already occurred in Africa, it must be the priority of the missionary who receives slaves in America, thus creating the possibility that slaves had been baptized in both locales. María Cristina Navarrete Peláez has documented the local debates in Cartagena surrounding the issue of double baptism that Sandoval’s polemical policy provoked (50-54).

19. As Del Valle has written, in the ruins of this project, Jesuits turned exception itself, in the trivial and profane elements of a temporal existence shorn of the divine, into allegories of redemption (“José de Acosta, Violence and Rhetoric” 46).

20. Bruno Bosteels has recently noted the inability of Schmitt’s nomos to distinguish among levels of land appropriation but has not analyzed the consequences of this slippage in nomos: “On one hand, there is the level of appropriation as a great legal-historical event in the ontological sense of the term; on the other, there are the tumultuous sundry realities of conquests, colonial wars, and migrations. Schmitt, by linking the two meanings of history—one apparently originary and authentic and the other derivative and almost secondary—always seems to rely on the ontological claim of an inner law of the earth, as if to suggest that this immanent and primeval normativity was actually destined to become exposed in the history of Western imperialism” (302).


  • 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.
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