Reorienting Schmitt’s Nomos: Political Theology, and Colonial (and Other) Exceptions in the Creation of Modern and Global Worlds [1]

John D. Blanco
University of California, San Diego

Ivonne del Valle
University of California, Berkeley

Volume 5, 2014

It should never be forgotten that while colonization, with its techniques and its political and juridical weapons, obviously transported European models to other continents, it also had considerable boomerang effect on the mechanisms of power in the West, and on the apparatuses, institutions, and techniques of power. A whole series of colonial models was brought back to the West, and the result was that the West could practice something resembling colonization, or an internal colonialism, on itself.

(Foucault, “Society Must Be Defended.” Lectures at the Collège de France, 103)

While the continued attention and intense political and cultural debate that has raged around the work of German jurist and legal scholar Carl Schmitt (1888-1985) certainly needs no introduction, perhaps his more theoretical engagement with the legal and cultural history of the colonial extra-European world, as well as the post-colonial “condition” of former colonies after World War II, does. As we know, his writing career spanned the crisis of the first German republic, which led to the rise of Nazism under Adolf Hitler; the defeat of the Axis powers during World War II; and the ambiguous legacies of independence movements, the United Nations charter of human rights, and the era of United States-Soviet Cold War policies.[2] We also know that, far from completely disavowing his advocacy and even juridical defense of Nazism, Schmitt insisted on the coherence and consistency of his views on the relation of politics to law—even “law as politics,” as a compilation of essays in English regarding Schmitt asserts (Dyzenhaus). His continued relevance to political philosophy, international studies / relations, and cultural studies owes itself to a series of controversial theses that, since the fall of Nazi Germany, have kept alive a polemic on the legitimacy and legality of authoritarian rule and the executive’s invocation of exceptional or emergency powers in constitutional republics. These theses include the designation of “the political” as an autonomous domain (i.e., separate from economy, religion, ethics, culture, etc.), based on the existential threat of potential or real enemies; the dependence of law and legal norms on a form of sovereign authority that is exceptional, i.e., standing outside and above them; the essentially political character of the Catholic Church and theology; and an emergent critique of the United States-directed humanitarian and interventionist view of international law today. Each of these theses—many of which appear prior to the outbreak of World War II—alone or in combination, have encountered a plethora of case studies in the twentieth century, whether they concerned the seeming permanence of modern dictatorships, the political character of religious fundamentalisms in the United States and elsewhere, the rise of religious states and religious revolution in the Middle East, ongoing debates on the legitimacy of foreign military intervention into those countries whose governments act in flagrant disregard for human rights, or the curtailment of civil liberties under the emergency powers of executive authority. Interestingly, Schmitt’s interpreters have come to include not only neoconservatives advocating strict limits to the scope and extent of legislative authority in government, but also progressives and Marxists who share Schmitt’s critique of neoliberalism under United States military and economic hegemony.[3]

If the recent English translation of Schmitt’s early work on dictatorship (Diktatur [1921]; translated as On Dictatorship [Polity Press, 2014]) develops many of Schmitt’s early contributions to political philosophy within the Third Reich, it is in Schmitt’s 1950 book Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (translated into English in 2003 as The Nomos of the Earth in the International Law of the Jus Publicum Europaeum: hereafter referred to as NE) that these earlier theses come together in a comprehensive and equally controversial intellectual history of international law as based on the emergence and dissolution of Eurocentrism between the fifteenth and twentieth centuries. Unlike his previous works, however, the originality of NE stems from the inclusion of a consideration that remains largely ignored in the tradition of political philosophy: the conquest and colonization of the Americas, Asia, and Africa as Europe’s condition of possibility from the perspective of international law. As guest editors of Política común, we dedicate this special issue to the implications and the controversy around this statement, and its interdisciplinary trajectory across the diverse fields of historical, religious, and cultural and colonial / postcolonial studies.

For Schmitt, Eurocentrism refers to the interstate system organized in Europe after the 1648 Treaty of Westphalia, which served at once as the anchor and blueprint of modern international law, i.e., international law as an essentially European intervention and exercise that, in the course of three centuries, came to be imposed or voluntarily adopted throughout the rest of the world. As we know, of course, globalization doesn’t occur as the protean wish of a historical protagonist or protagonists, even when the protagonists are European sovereign princes. Yet while Schmitt’s polemics on the political nature of (Christian) theology and its contribution to this endeavor, or on the force of law during states of emergency within this interstate system, and the history of Western modernity as the creation and dissolution of a “concrete world-order” (or nomos) in and through the creation of international law among European nations, have invited intense discussion and sometimes acrimonious debate between and within conservative and progressive circles of intellectual production and public opinion alike, his most productive and controversial claims regarding the constitutive forces of modernity outside Europe have been met with relative silence. Taken together, these claims demand a wider dialogue that cuts across the fields of political philosophy, international law, history, religion, and culture, concerning the “nomos of the Earth” as both a rational(ized) ideology of European conquest and an imaginary projection of world order.

Undesirable Postcolonial Worlds: Schmitt as the Machiavel of Extra European Territories

While Schmitt’s work fell into disrepute in Anglophone scholarship between the end of World War II and his death in 1985, the number of compiled volumes and single studies that have grappled with Schmitt’s provocative ideas since then lead one to wonder the degree to which our “Schmittian moment” parallels that of Niccolò Machiavelli’s in previous centuries.[4] Indeed, it may not be an exaggeration to say that, just as in the sixteenth and seventeenth centuries, in response to Machiavelli’s The Prince, there appeared a formidable number of books and treatises on political theory that sought to create ethical options that ought to take politics and power beyond mere self-preservation and expansion, that is, texts wanting to dislodge politics from nihilism, a good deal of work in political philosophy for the past twenty years has endeavored to answer to Schmitt: to either present an alternative to his stark assessment of the autonomy of “the political” and extra-legal foundation of political legitimacy; or to affirm the brilliance of his observations, only to deny the rigor of his conclusions.[5] One cannot read Schmitt today but with a sense of disbelief at the cold, matter of fact manner in which he reevaluates and even justifies historical events regarded with abhorrence: the Spanish Conquest and depopulation of the Americas; the 1823 Monroe Doctrine; the late 19th century imperialist land-grabs of Africa; the 1933 suspension of the German Constitution under then-Chancellor Adolf Hitler.

This surprise extends to Schmitt’s counter-historical narrative of colonialism and colonial rule, which stands in stark contrast to the treatment of this question by his intellectual peers. Take, for example, Hannah Arendt’s Imperialism (the second part of The Origins of Totalitarianism) (1951) published a year after Schmitt’s The Nomos of the Earth, as an illustration of the latter’s untimeliness. For Arendt, who had been exiled from Germany during the years of the Third Reich, the conceptualization of the modern state or Commonwealth in the sixteenth and seventeenth centuries (by Jean Bodin, Thomas Hobbes and others) inaugurated a form of political organization in complete conformity with the emergent bourgeois principle of accumulation for accumulation’s sake; and the blind automatism of government for government’s sake. Following this analysis, the Hobbesian worldview could only lead to European expansion, race-thinking, colonial order without law, and the pan-national movements that culminated in the Aryan doctrine of Nazism and the massive creation of populations without rights.[6]

Schmitt, by contrast, maintained up to the end and beyond the Second World War the neo-Machiavellian contention that only the suspension of morality and religion from the sphere of the political could ensure peace within and between kingdoms.[7] As John P. McCormick and Victoria Kahn have argued, Machiavelli’s transposition of politics from a moral to technical (or in Kahn’s case, rhetorical) sphere in the sixteenth century, allowed for the conceptualization of politics as an autonomous domain of analysis and evaluation.[8] For seventeenth-century visionary of the post-Westphalian order Thomas Hobbes, the resulting closed-circuit of limited and sovereign kingdoms provided at once the foundation of modern international law and the idea of modern Europe. Europe as idea and ideal, begins with a treaty of peace among Christian sovereign princes (Schmitt refers to them as magni homines, personifications of state power [The Nomos 144-145]) in the post-Westphalian treaty milieu, tasked with the responsibility of sublating and preempting all manner of social, religious, economic, and ethical conflict that might lead to international civil war, through the formalization of political enmity (justus hostis) and the projection of the rest of the world as Europe’s juridical frontier.[9] It is here that Schmitt makes explicit a prominent theme that connects his earlier to his later work: colonialism was first and foremost a lawmaking act based on land seizure and coercive entitlement, which had historically served as the basis of European law. In his view, applying a different criterion of evaluating Germany’s invasion of Eastern Europe was not only hypocritical: it set the stage for reintroducing the very moral criteria for politics that had been the cause of international civil war prior to the introduction of modern European international law or jus publicum Europaeum.[10]

As for the history of European colonization abroad, the age of discovery and conquest of a “new world” from the fifteenth to the nineteenth centuries maintained a sense of continuity with the origins of European law, even after such forms of land seizure became limited on the European continent. The extra-European world came to provide a spatial correlate to the juridical state of exception, i.e., as the anchor and guarantor of the Eurocentric interstate system and international legal order. To put it another way, the perseverance of international law between the sixteenth and nineteenth centuries owed itself not only to the supra-legal authority of the sovereign prince in Europe, or the formal equilibrium resulting from the potential hostility and suspicion every prince or state had vis-à-vis every other, but also to the designation of a space of exception overseas (i.e., the colonies), where the forms of tension and conflict banished from Europe would be given free rein (see next section).

Schmitt’s heterodox approach to colonialism provides the key to understanding his pessimistic view of independence struggles after World War II and the onset of Cold War politics between the United States and the Soviet Union. For Schmitt, these two developments were inseparable: both revolutionary war and Cold War colluded in dismantling the Eurocentric world order; and in reintroducing the indistinction of war vs. peace, and war enemy vs. criminal, which had preceded the establishment of modern international law.[11] The result, Schmitt lamented, was that the return “de la guerra total, de la guerra exterminadora…[by which] una recaída en el barbarismo parece inevitable” (total, exterminating war…[by which] a relapse into barbarism appears inevitable, “El orden del mundo” 26).[12] Moreover, Schmitt contended that the rapid succession of new states admitted into the United Nations introduced a “nueva situación imponderable…el caos amenazador que está provocando lo que [Joseph G. Harsch] llama el imperialism de color” (new, imponderable situation…[the] threatening chaos produced by what [Joseph G. Harsch] calls the imperialism of color(ed)s, “El orden del mundo” 30). On the part of the so-called world “superpowers,” the new geopolitical landscape created by recently independent nations left the United States and the Soviet Union with both a prospect and a pitfall:

…por un lado, el nuevo espacio [within ex-colonies] del desarrollo neutral [economic] se presenta como un escenario de competencia apolítica, puramente comercial, para el progreso industrial de la humanidad; y por otra parte representa, al mismo tiempo, un campo de batalla de una modalidad especialmente intensa y maligna de enemistad y guerra fría (on the one hand, the new space [within ex-colonies] of neutral (economic) development presents itself as a scenario for apolitical competition, purely commercial, for the sake of industrial progress and humanity; and on the other hand it represents, at the same time, a field of battle featuring a particularly intense and pernicious kind of enmity and Cold War.[13]

(“El orden del mundo”34)

With the emergence of world systems theory in the 1960s and post-colonial and cultural studies in the United States during the 1980s, the reciprocal transformation of imperial centers and colonial frontiers has become a field of empirical research and critical theory.[14] In this respect, Schmitt’s admission and conceptual development of the conquest of “a new world” as a necessary precondition of Eurocentric international law fit right in with areas of scholarship ranging from Iberian expansion in the 16th century to the politics of religious revival in the postwar era of independence. Yet Schmitt’s insights come with a price: they remain inseparable from a systematic challenge and counter-critique of turn-of-the-(21st)-century trends in New Left and postcolonial criticism. For the latter—from Adorno and Horkheimer’s Dialectic of Enlightenment to the Indian Subaltern Studies scholarship of Dipesh Chakrabarty or the US Marxist critic Frederic Jameson—“modernity” unmasked reveals a (Eurocentric) narrative that draws upon elements of myth as well as fictional invention in order to simultaneously purge itself of its sordid beginnings (whether these be considered “irrational,” non-secular, or historically contingent); and mask the continuing atrocity and outrages performed in the name of civilization. Yet in Schmitt’s eyes, the counter-attempt to “provincialize Europe,” i.e., to refuse the Eurocentric presuppositions of modernity’s “secularization thesis,” disavows or diminishes the historical solution provided by Machiavelli and Hobbes in the face of political and religious strife throughout Europe during the sixteenth and seventeenth centuries: the radical separation of society and the state, and the promotion of the latter to an autonomous domain that simultaneously organized and oriented the international legal order. Such claims constitute the very conception of “Europe” and any understanding of European politics. Schmitt’s challenge to the present might be formulated in the following question: are we prepared to provincialize Machiavelli? Schmitt’s pessimism regarding the “disorientation” of international law in the wake of decolonization, in any case, is obvious:

En cuanto al anti-colonialismo…es sobre todo propaganda y, con más precisión, propaganda anti-europea discriminadora… Por esta razón es necesario liberarse de las nieblas de este ideologismo anti-europeo, y recordar que todo lo que se puede denominar Derecho internacional, desde hace siglos, es Derecho internacional europeo… [Pero] aparte de postulados morales y de la criminalización de naciones europeas, no ha producido ni una sola idea de un Nuevo orden. En lo fundamental, está determinado por una idea espacial, aunque sólo negativamente, sin tener capacidad para fomentar, de manera positiva, los comienzos de un Nuevo orden espacial (Regarding anti-colonialism…it is above all propaganda, and, more precisely, discriminatory anti-European propaganda…. For this reason we need to clear our minds of this ideological anti-Europeanism, and recall that, for centuries, all that which could and can rightfully be called international law, is / has been European international law…. [But] apart from moral postulates and the criminalization of European nations, [anti-colonial movements] have not produced even a single idea toward a New Order. At a fundamental level, [the post-colonial order] is determined by a spatial order, albeit solely in a negative manner, without the ability to generate the beginnings of a New spatial Order in positive terms.

(“El orden del mundo,” 21-22)

It is from the resulting polemic that a dialogue among scholars in international relations, political philosophy, and postcolonial and cultural studies really begins.

Colonial Frontiers as Legal and Material Support of World Orders

“The traditional Eurocentric order of international law,” Schmitt writes in The Nomos of the Earth, “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 to relieve their struggles on earth” (39). While much has been made of the sovereign’s sphere of extralegal freedom to act above the law in order to preserve it, much less attention has been given to what David Harvey has called the “spatial fix” of the extra-European frontier, which “could be exploited freely to relieve [our] struggles on earth.” Schmitt’s NE underlines the different conceptions of dividing and distributing global space with the discovery of the Americas, from the papal missionary mandate dividing the world into Spanish and Portuguese spheres of influence; to the importance of amity lines among European sovereigns as an artificial border separating the jurisdiction of European international law from an “outside” space of exception; to the intra-continental conception of international law at work within hemispheric, “great spaces” (Groβraumen), such as what was provided in the 1823 United States Monroe doctrine.[15]

In Schmitt’s account of the discovery of the Americas, the missionary mandate given by the pope to the Catholic kings of Spain and Portugal (essentially a crusade) must be grasped in terms that precede the division between theology and the political in the seventeenth century: only such an understanding avoids the easy yet misleading interpretations based on Spain’s “black legend” (leyenda negra).[16] At the root of this underlying medieval unity between pope and emperor, the “spiritual” and “temporal” orders, lay the concept of katechon, “restrainer” or “withholder”: a Christian interpretation of history in which the emperor was tasked with a positive role in preparing the world for the Second Coming by uniting all peoples under the (putative) universal religion of Christianity.[17] The identification of this role provided a mythical prototype for the Hobbesian sovereign prince in the seventeenth century, whose task it would be to protect his subjects from the state of nature (see Gross 169). Between the fall of Rome and the rise of a modern Eurocentric world order, Schmitt would argue, every Christian empire could not but imagine its legitimacy in these terms.

Yet it is only the second, Eurocentric nomos that showed itself successful in providing a framework for ensuring a relative degree of peace and security on the European continent. This peace and security, as we know, came at the cost of Europe’s declared frontier. Schmitt underlines this necessary displacement of civil and religious war in Europe to overseas conquest and colonization during this period, through the creation of amity lines or geopolitical divisions among the European powers and their respective spheres of influence outside Europe:

The significance of amity lines in 16th and 17th century international law was that great areas of freedom were designated as conflict zones in the struggle over the distribution of a new world… [T]he designation of a conflict zone at once freed the area on this side of the line—a sphere of peace and order ruled by European public law—from the immediate threat of those events “beyond the line,” which would not have been the case had there been no such zone. The designation of a conflict zone outside Europe contributed also to the bracketing of European wars, which is its meaning and justification in international law.

(The Nomos 97-8)

One need not adopt the provocative theses of Giorgio Agamben or Achille Mbembe here to see the importance Schmitt gives to the colonial frontier as a space of exception for the creation and maintenance of Eurocentrism, which parallels the importance of the sovereign’s power to declare a state of exception in the European Commonwealth.[18] In the case of the British, who were primarily responsible for the creation of amity lines, the parallelism is explicit: “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” (The Nomos 98). Without this notion of a free and empty space beyond the borders of Europe it would have been impossible for Europe to “bracket” the civil and religious conflicts that made the sphere of jus publicum Europaeum, Eurocentric international law, conceivable.

Schmitt’s analysis of Eurocentrism, Europe’s “nomos of the earth,” as consisting in the dialectical relationship between the virtual state of exception and the colonial space of exception provides him with the conceptual and polemical theses that animate and inform the papers in this special issue. One is the “exoneration” of Christian-European princes and peoples from any moral restraints outside Europe: “This freedom,” Schmitt writes, “meant that the line set aside an area where force could be used freely and ruthlessly…Everything that occurred ‘beyond the line’ remained outside the legal, moral, and political values recognized on this side of the line” (The Nomos 94). A second one is the “spatial context of all law,” which begins with acts of land appropriation or seizure and their transformation into right—jus (The Nomos 98).[19]

A third conclusion is that the history and justice of colonial conquest and land seizure allowed Europe to simultaneously preserve and extend this world order. As Schmitt rather bluntly puts it:

[Colonial] soil was free to be occupied, as long as it did not belong to a state in the sense of internal European interstate law. The power of indigenous chieftains over completely uncivilized peoples was not considered to be in the public sphere; native use of the soil was not considered to be private property…. The special territorial status of the colonies thus was as clear as was the division of the earth between state territory and colonial territory. This division was characteristic of the structure of international law in this epoch and was inherent in its spatial structure.

(The Nomos 198-9, his emphasis)

Fourth is the definition of the concept of formal enmity among sovereign nations and their corresponding subjects, as taking place against the corresponding definition of “informal” violence in colonial lands or on the high seas. This colonial violence featured “agonal tests of strength” among Europeans (The Nomos 99), and either putative savages, barbarians, and cannibals belonging to the “free lands” of the newly circumnavigated globe; or pirates of the free sea as portrayed by Hugo Grotius. As Schmitt writes, “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” (The Nomos 142).[20] Juxtaposed to the formal identification of justus hostis—legal enemy as defined by war between sovereign powers—was the injustus hostis, “unjust enemy,” against whom no limits to the exercise of legal violence would obtain: “A preventive war against such an enemy would be considered to be even more than a just war. It would be a crusade, because we would be dealing not simply with a criminal, but with an unjust enemy, with the perpetuator of the state of nature” (The Nomos 169, emphasis added).

Fifth and finally, Schmitt mourns the decline of Eurocentric world order or nomos when the clear division between (European and European-defined) state territory and colonial territory began to break down in the nineteenth century. Beginning with the United States’ recognition of the Congo Society in 1884, which allowed a private colonial enterprise to acquire the status of (European) state sovereignty, international law becomes “disoriented”: which is to say, detached from a spatial context and free floating (he calls it “spaceless”) so as to allow it to acquire other meanings—none of them commanding consensus among the European world powers. In Schmitt’s analysis of nineteenth-century imperialism, the seizure of Africa as “the last great land appropriation by the European powers” was from the start contaminated by a new, inchoate conception of world order, characterized by a “global, universalist-humanitarian intervention[ism]” first expressed by Belgian king Leopold II and promoted by the United States (see The Nomos, 214-226 and 227). To complicate matters further, United States intervention into European affairs during its rise to economic prominence led to the subversive supplementation of Eurocentric international law—to reiterate, the political organization of European sovereign states over and against the “free and empty” space of overseas colonial frontiers—with international private law as the new basis of world unity. Readers of Schmitt’s earlier political philosophy (notably The Concept of the Political) will recognize an early theme in his intellectual career: the contamination of a (presumably) autonomous sphere of political rationality and activity with economic, ethical, religious, and social interests. In NE, Schmitt deploys this critique as a principle of historical explanation. The a-moral criterion of formal enmity, the exceptional character of sovereignty, and the colonial frontier that had provided Eurocentric international law with stability over the course of two centuries had collapsed: leading, on the one hand, to contesting visions of world hegemony at stake in catastrophic world war; and, with the conclusion of the wars, the triumph of United States hegemony. This hegemony, which Schmitt traces in both veiled and open attacks throughout NE, included the return of a moral criterion in international law, through the resurrection of “just war” doctrines; the ambiguous affirmation of universal human rights (which provided the United States with a principle of military intervention in other countries under the guise of police action); the elevation of market forces to the decisive factor in world politics; and the postwar transformation of formerly colonized territories to free states (The Nomos 227-239). “Precisely here,” Schmitt laments, “in the [sphere of] economy, the old spatial order of the earth lost its structure. What essentially did it mean when other, non-European states and nations from all sides now took their place in the family or house of European nations and states?” (The Nomos 237, emphasis added).[21] In a move that at once endears and scandalizes New Leftist and postcolonial thinkers drawn to the implications of this unrepentant voice of the Third Reich—the last great project of an equally unrepentant Eurocentrism—Schmitt gestures toward the gray, endless horizon of United States postwar world hegemony, characterizing it in terms of a quasi-universal, vaguely humanitarian nihilism with only the promise of United States-centric “free trade” and the paternal protection of “free states” or “free peoples” (depending on where the bombs fall) to either mask or manage what Carlo Galli and others have called global civil war.

Counter-Histories to the Old and New Nomoi

Taken together, Schmitt’s theses on the colonial space of exception shed an unexpected light on scholarship pertaining to early modern Iberian expansion, the commercial wars among the European powers overseas, the creation of a global economy, the scramble for Africa, and the dilemma of “postcolonial conditions” throughout the second half of the twentieth century. These theses also oblige us to revisit certain “classic” polemical works on the historical contingencies of geopolitical inequality, Weberian “rationalization” and disenchantment, and the terms of biopolitical belonging and exclusion. For example, Schmitt’s reference to the conception of colonial space recalls Edmundo O’Gorman’s classic study on the “invention” rather than discovery of the Americas, and on how the new continent’s true historical meaning did not come from within, but had to be implanted upon it by Europe (La invención de América, 1958).[22] One is reminded, too, of Ángel Rama’s account detailing how colonial Hispanic America became the place in which artificial space, the lettered-city, displaced organic, medieval, and pre-Hispanic spatial orders by replacing them with a rational, artificial structure.

On another level, Schmitt’s larger critique regarding the overdetermination of the sphere of the political, as it was consolidated by Eurocentric international law, by the unrestrained forces of the market and technology, certainly introduces a new philosophical dimension to the traditional Marxist and world-system critique of primitive accumulation, capitalism and colonialism in Latin America, Southeast Asia, and Africa; as it does to the postcolonial critique of Frantz Fanon and Indian Subaltern Studies.[23] Of course, Schmitt’s contemporaneity when it comes to his pessimism regarding the role of the United States in the dissolution of European hegemony, cloaked in the liberal-humanitarian discourse of U.S. intervention, hardly needs to be mentioned. In fact, the hypocrisy of U.S. interventionism under the recent administration of President George W. Bush seems to have entirely vindicated Schmitt’s dire predictions of the country’s overreach, provoking near-worldwide contempt and reigniting debates on the peculiar character of the United States as world empire. Less studied, however, is the complex dynamic among colonial (and now post-colonial) elites, the fashioning and dismantling of colonial states, the 1945 promulgation of the United Nations charter, and the virtual omnipresence of US military force and (now) surveillance technologies across the globe (see John Pincince and Annmaria Shimabuku in this volume).

Any evaluation of Schmitt’s contributions to the study of globalization beyond the shadow of the West, however, must bring with it an acknowledgment of Schmitt’s shortcomings, and the implications of how those shortcomings have been used / abused by Schmitt’s interpreters. We may take as one point of departure Benno Teschke’s recent criticism of Schmitt’s account of the New World and its importance to Eurocentrism: “Schmitt’s non-sociological account of the New World discoveries is compounded by the absence of an inquiry into the inter-political nature of the encounter. The native Amerindians remain missing from his account…. They are not even acknowledged as passive bearers and victims of the incoming Spaniards and Portuguese, but nullified and written out of history” (2011, 82).[24] In Schmitt’s account of the New World’s importance to the formation of international law, he elevates the missionary mandate of the Catholic kings to a theological-legal concept: the role of Christian emperor as katechon, restrainer of the Antichrist, as a (questionably) central political-theological concept of the medieval period. Paradoxically, however, the culmination and fulfillment of the Christian order in a global Christian empire meant, at the same time, its dissolution: to restrain the Antichrist, Christianity had to allow for his very unleashing. Owing to the magnitude of its destruction, the truth of the war against paganism (as negation of the only God) is transformed into the negation of God and the order this God was meant to safeguard. Therefore the “concrete” Christian order did not slowly dissolve, as Schmitt claims, starting in the early sixteenth century via the secularization occurring because of the displacement of theology by natural law (The Nomos 126); it simultaneously permeated and morphed into a plethora of social and cultural formations, due to the brutal implementation by its enactors, and the cunning of its apologists. This is a realization that Schmitt, invested as he was in contrasting and opposing a Christian religious order with a Protestant liberal one, was incapable of recognizing.

The “inter-political nature” of the encounter extends to the reciprocal (if highly unequal and uneven) “connected histories” of supposed breaks and epochal thresholds, towards a rewriting of Eurocentrism and its colonial frontier (see José Rabasa in this issue).[25] To what degree, for example, did the existence of the Spanish and Portuguese Empires facilitate the emergence of Eurocentrism; and to what degree did they in fact complicate and ultimately subvert it? Between a “theological politics” based on the role of the emperor as katechon, and a “political theology” based on the Leviathan or “mortal God” of sovereign princes, what can one say about the perseverance of “just war” doctrine overseas, or the constant confusion between secular and religious authority or “pastoral power” in the missions? If the medieval concept of Christian empire was exported overseas during the Conquest, then underwent a secularization corresponding to the rise of modern international law in Europe, what does it mean that it continued and even underwent further transformation in the Americas and the Philippines? Or that the theological role of empire for the Catholic kings corresponded to a physical and cultural apocalypse for the American empires? Or that the primacy of violence against unrepentant cannibals, monsters, and savages—the injustus hostis that resembled the Muslim infidels and “wandering Jews” of the Crusades and Reconquest of Spain—was part of a concerted attempt over the course of three centuries to create a Christian continent that was a part of Christian Europe?

Beyond the revision of cultural history, of course, stands the trans-historical complexity of the role of morality and human rights in politics, which remains inextricably tied to the history of liberalism and Schmitt’s anti-liberal(ist) critique. As we know, Schmitt has gone so far as to argue that this introduction of morality into law has, since the 12th century (!), never ceased to sow the seeds for total war and the criminalization of the enemy, as witnessed in the doctrine of a “just war of aggression” (The Nomos 119 and 141). While Schmitt’s counter-critique certainly exposes the mask of willful naïveté that belies “ideological phenomena attending the industrial-technical development of the modern means of destruction” (The Nomos 321), it nevertheless leaves unresolved the vacuum of law that emerges with the crisis of stateless populations after the period of world wars; the decline of the European nation-state and interstate system that once guaranteed the order and orientation of international law; and the rise of new nation-states in the decolonized territories, whose formal independence and political sovereignty is contaminated from the beginning by the colonial legacies of Europe and the United States. It is in this context that the resurrection of sixteenth-century Dominican Francisco de Vitoria’s work by United States legal historians like James Brown Scott may be read, i.e., as a limit or brake to the dissolution of jus publicum Europaeum rather than a competing doctrine (see Orlando Bentancor in this issue).[26] Scott’s notion of humanitarian intervention as a “helping hand” leads Schmitt to denounce the interpretation of Vitoria by United States liberal jurists as a misappropriation of translatio imperii; and insists that ideas of just war and humanitarian intervention are inseparable from a medieval Christian legal and spatial world order guided by theology (as opposed to, say, US economic interests or technological advances in the modern means of destruction). Schmitt’s denunciation, however, neglects the possibility that, just as sixteenth century Spanish theologians might have seen technology and economy as means to the higher end of Christianity, for United States’ organic intellectuals, technology and economy might be means toward rescuing the remains of the European nomos, precisely by universalizing and revitalizing its framework of state sovereignty and interstate order.[27]

This leads us to a third field of investigation: the presumed autonomy of the political, economic-industrial, religious, and technological spheres, which Schmitt positions in various arrangements to illustrate the significance of historical events for the study of international law. But what if one were to consider Christianity as a kind of technology (as does Daniel Nemser in this volume); or theology as informed from the very beginning by the notion of “free commerce” (see Anna More’s contribution)? How do we account for the rise of anomalous subjects defined by their inability to maintain these spheres as separate (for example, pirates: see Amedeo Policante in this volume); or anomalous institutions like the colonial state in Spanish Philippines as well as the Dutch East Indies, British India and Burma, and French Indochina during the nineteenth century? On one level, such questions address the possibility of relating a history of modern international law that isn’t always already entangled in a history of capitalism and technological development. They invite us to revisit Marx’s account of primitive accumulation in and through Schmitt’s foregrounding of international law, and vice-versa. Joining Schmitt to Marx, i.e., the theological messianism of the Conquest with the ideology of European civilization vs. non-European “free space,” helps us to demystify the seemingly magical orchestration of capitalism as an economic system and motor of colonial conquest. It also allows us to see the dual formation of laborers and Christian subjects by missions and congregaciones (designed to reach the Indians displaced by war, those sent to the mines, those made slaves, those allocated to encomiendas, those who remained just outside them); and the degree to which political theology became subject to economic calculation (the very definition of contraband, corruption, and venality) as well as indigenous resistance or the question of cultural “hybridity.”

A fourth set of questions concerns the facility with which Schmittian concepts become reified as markers of a uniquely European or “Western” (perhaps excluding the United States!) tradition or destiny. Consider, for example, Giorgio Agamben’s remarkable work Homo Sacer, which argues that the Nazi concentration camp completes and fulfills the ultimate destination of Western political philosophy in its modern form, which is to make “bare life” the subject and task of sovereign power. Schmitt’s theory of emergency powers, as it turns out, “appears from this perspective to be consubstantial with Western politics” (7); and “the birth of the (concentration) camp in our time appears as an event that decisively signals the political space of modernity itself” (174). In Agamben’s view, colonial atrocities that preceded the way for biopolitics in its Nazi manifestation—using prisoners as guinea pigs for medical experiments in Manila under United States rule, or the concentration camps launched by the Spanish in Cuba in 1896, or the British in the Boer wars (in the Philippines they were called “camps of sanitation and hygiene” by the United States)—serve as mere antecedents to the Nazi camp, which Agamben elevates to some perverse crystallization of Western politics (see Agamben 157 and 167; on camps of sanitation and hygiene, see Ileto). Even Arendt, who asserts the continuities of colonial brutality in German East Africa among the Nazi elite, sees fascism and totalitarianism as the fulfillment of Hobbes’s political philosophy and its adoption by the European bourgeoisie. But was the separation of European metropolis and colonial frontier so successful as to allow Europe to play out its own drama according to a preconceived plan? And in what ways, has this political philosophy and its material enactments impacted the ex-colonies?

Although impossible to answer in the scope of this issue, these questions matter to the extent that works purportedly rejecting Schmitt’s premises nevertheless continue to extend them. For example, Carlo Galli (one of Schmitt’s most interesting critics because of the immanent criticism he performs of the German thinker’s ideas) seems to go the furthest in considering the dual articulation of a colonial space of exception and the geometric projection of global political space. And yet, even Galli imagines the present and future of globalization to be staked wholly on the terms and epochal thresholds given it by Schmitt’s discrepant Eurocentrism. Thus, for Galli the eruption of violence characterized under the catch-all term terrorism emblematizes an “epochal caesura” in the history of world nomoi: one that distinguishes the rationality of political theology from the irrationality of “extreme theology” or religious fundamentalism (137-140). In contrast to Europe’s apparent success in transforming religion into logos between the seventeenth and nineteenth centuries, extreme theology, he argues, “does not communicate; it has nothing to say…the extremist does not want…to convert anyone” (149). Any reader of political theology from the Hispanic empire cannot but be disconcerted by such claims. The “Requirement,” a model brief text of modernity presenting a Christian history of the world, read to the indigenous people in Spanish before each battle, giving them the option of either submitting to the power of the only God, the pope, its representative on earth, and the king of Spain as the carrier of God’s will in their territories, or face total war and extermination, hardly serves as an example of the celebrated European will to logos and conversion. Could this example help us reconsider the difference between political theology and extreme theology? And to consider that perhaps all political theology is extreme theology when seen from the perspective of those upon whom it is violently forced? Could this help us to better see the blind spots that continue to plague theory, preventing it from reaching true universals?

One should take in the same vein Galli’s corresponding call for a Europe that “would be capable of once again establishing that there is a space in which not everything is possible, a space in which global powers must bend and take on determinate figures.” Contrary to his own assertions, Galli seems to pick up right where Schmitt left off. While Galli’s re-creation of a “sovereign space of rights” would also place “less importance on the question of citizenship” and would allow “the possibility of plural, even provisional, citizens” (132-133, emphasis added), these claims seem to contradict a book that otherwise recognizes the degree to which the first global international legal order was founded on force. Now that Europe has started to feel the impact of the economic and political forces it began to unleash elsewhere many years ago, Galli argues that it should be ready to once again create mechanisms for self-preservation and exemption, a new pact that would restrict the dire effects of the economy to outside of Europe. But if Europe’s self-conception entailed, in part, the imagination of terra nullis and its cannibals, what becomes of them (provisional citizens) in Europe 2.0?

If the colonies were inappropriate and ad hoc laboratories of modernity and globalization, one has to contend with the caesuras Galli postulates. He also dwells on an epochal change defined by the speed and the extent of the unmediated contacts between the particular and the universal (viii). Yet one can only wonder what the speakers of German, Spanish, and Waikuri, representing very different cultures and ways of understanding and inhabiting the world abruptly brought together in the missions of what is now Baja California in the 17th century, could say about a supposed, postmodern, sudden and immediate exposition of disparate elements. The fact that our times, perhaps rightly, think that the speed of our technologies and the changes they enact are unprecedented, should not make us forget that in Grandeza mexicana, a 1604 poem written in Mexico City, there already existed what we might consider an exhilarated experience of time, the idea of an unprecedented acceleration of time and history; and that José de Acosta, writing at the end of the 16th century, contemplated with amusement and optimism what for him felt like the radical compression of space recently afforded by the compass and transoceanic navigation as seen in the people he knew and who had been able to go across the Atlantic fifteen, eighteen, twenty times (49). This means perhaps that as Marshall Berman put it, people who find themselves at the center of the vortex of modernity tend to think of themselves as the first, and even the only ones to have ever experienced it (1). As for the unmediated character of the relationships postmodernity presumably entails one can say that even if in many instances the unprecedented encounters of people, languages, bodies of knowledge, and technologies taking place due to colonization were mediated by institutions—incipient states, the Church—in many others they were not. The free enterprise of slave raiders, mining entrepreneurs, conquerors, etc. was allowed ample room as seen in the case of the Welsers, a family of German bankers granted permission to conquer what is now Venezuela. “Mediation,” in any case, can only occur when the groups thus connected do recognize the source from which mediation emerges. The chaotic, violent nature of these events eventually made way for more moderate practices, but then again, only when it was perhaps too late for the millions who bear the brunt of it.

It is therefore both for what Schmitt’s work (and that of his critics) acknowledges and for what it occludes, that he serves as a privileged point of departure for reflecting on the idea of Western modernity as ideology and ideal. In the past three decades, theories of cultural hybridity or simultaneity, the continental philosophy of Empire and Multitude, the historiography of Subaltern Studies, and the development of key concepts that tie the multiple histories of war, trade, religious conversion, and literary and cultural translation across continents and seas—in a word, globalization—have enriched our understanding of colonialism beyond Jürgen Habermas’s narrow view of modernity as a philosophical discourse derived completely from European events and centered on European self-reflexivity (16-22). At the same time, the philosophical and political debates his work have occasioned in recent years demonstrate that Schmitt occupies a privileged position in not only reconceptualizing “the West” as a designation for certain types of world hegemony, but also in launching forms of historical investigation pertaining to Europe’s former frontiers into uncharted waters. With the objective of illustrating the centrality of colonial arenas in the “worlding” of the modern world—whether they served in the development of international law, the couplings of law and theology in the construction of border forms of authority, the articulation of (il)legal force or violence in imperial or postcolonial contexts, or the translation of colonial relationships of power into European and United States settings—it is our ultimate hope that this special issue contributes to the reinvention of intellectual traditions: a task that is inseparable from the renegotiation of our political futures and cultural values.

The Issue

In the first section of this issue, Setting the Bases, our contributors offer a general reading of what Iberian empires represented in and of themselves, what they attained and how, and the kernel of strategies they continued to hold for future historical developments from the perspective this issue wants to emphasize, notwithstanding Schmitt: their violent, technological and economic determinations. Orlando Bentancor’s “Francisco de Vitoria, Carl Schmitt, and Originary Technicity” challenges Schmitt’s reading of Francisco de Vitoria to show how, contrary to Schmitt’s ideas, the “triumph of modern spatialization, planetary nihilism and global technology” can be derived from two developments: first, the violent instrumentalism at the core of Medieval theology that can be traced to Thomas Aquinas, and that Bentancor terms a “transposition of technique to nature,” by which what was considered the natural and transcendental Order of Being was at the same time rendered as pure artificiality and disavowed as such; and secondly, the conquest of America justified in Vitoria’s terms as a secular commercial enterprise sustained by war. By demonstrating how the “cut/decision that inaugurates the technical mastery, division, and appropriation of the earth is preceded by another act/decision that transposes artificial mastery to the ground of natural law, commerce and imperial war,” Bentancor challenges the division between the pre-modern and the modern, and shows the continued relevance of Medieval theology to studies of our current technologies and forms of power.

In “Primitive Spiritual Accumulation and the Colonial Extraction Economy,” Daniel Nemser directly tackles Marx’s dictum regarding the “Christian character of primitive accumulation” by examining how Christianity (in the figure of the influential Jesuit, José de Acosta) dealt with the dilemmas poised by the human labor consumed in the mines, the space of exception par excellence in Nemser’s reading. Taking up Acosta, Nemser concludes that necropolitics as miracle, a politics that turns death into production and triumph, was not only the necessary supplement to the colonial extractive economy, but in fact the very concrete Christian and Baroque form this economy took in order to respond to ethical dilemmas posed by excessive exploitation, and to the problem of the Indian, who if he always was “Christian in potentia,” as a Christianized Indian was perennially seen as a “potential apostate.”

Through a study of the way Jesuits rationalized and justified slavery in Africa, Anna More’s “From Lines to Networks: Carl Schmitt’s Nomos in Africa” argues that in fact what is “anomic to Schmitt’s nomos is continuity, connection and confusion of borders and lines.” More than piracy, commercial corporations are disturbing elements in Schmitt’s clear and divisive order. Thus for More, “[t]he true bracketing occurs” not in a clear separation between colonial spaces and Europe, but precisely in Schmitt’s forgetting of Europe’s role in the erasure of clarity, “as a suppression of the substate corporations that undo the ideal of a purely political interstate system, cleansed of its entanglement with the strategic and structural violence of global commerce.”

The essays in the section titled: Future Orders: Interiorities and Expansion shift the focus from the Iberian empires, but continue to offer corrective addendums to Schmitt in three distinct areas that show how colonial expansion can be linked in more ways than he imagined to future developments in international law and domestic state laws. In the same vein as Nemser, though with a different focus, in “The Return of the Pirate: Post-colonial Trajectories in the History of International Law” Amedeo Policante brings in Marx to draw a parallel between the emergence of capitalism and the emergence of international law. The figure of the pirate, says Policante, brings these two histories together; and just as international law had to relegate and confine its violent underpinnings to sites of exclusion, the pirate had to be pushed aside, not in the name of more ethical practices, but as a “powerful symptom of a structural transition from the vagaries of primitive accumulation to the systematic character of modern forms of imperialist exploitation.” Nevertheless, and in keeping with one of the aspects this issue wants to emphasize, as Policante demonstrates, “in a typical post-colonial trajectory” the pirate as “‘enemy of humanity’…and the ‘pirate state’ as a community stripped of its rights and marginalized from the international state system—was initially deployed in the extra-European world, only to travel back to the European center,” demonstrating how the past continues to haunt the present.

John Pincince’s “De-centering Carl Schmitt: Colonial State of Exception and the Criminalization of the Political in British India, 1905-1920” provides a fascinating reading of how the British colonial state in India operated in a constant state of exception, which gave it the flexibility to continually remake itself in responding to changing circumstances. In Pincince’s reading, this trait allowed the colonial state to become a testing ground for what later on would become the liberal state. An example of this, and in parallels that are very relevant for us today, is Pincince’s analysis of how the formative period of the anti-colonial struggle was met with a depolitization of politics and its conversion—via legal and conceptual, rhetorical mechanisms—into “criminality.” Equally interesting, and showing as well the relevance of a conversation between Schmitt and Foucault’s ideas on governmentality, was the creation of ad hoc institutions for the gathering and circulation of intelligence and information that were only later replicated in the metropolis.

Forcing Schmitt’s ideas regarding the creation of sovereignty to reach its ultimate consequences, in “Schmitt and Foucault on the Question of Sovereignty under Military Occupation” Annmaria Shimabuku demonstrates how one could faithfully follow Schmitt and legitimize the U.S.-led world order Schmitt deplored because in every case “the law rests on an empty fiction; it is starkly groundless.” Through her analysis of the U.S. occupation of Okinawa, an island previously colonized by Japan, Shimabuku reaches two equally important conclusions: first that without intending to do so, old imperial structures might benefit the new ones; or the two might mutually strengthen each other, a fact that might leave a population in the absurd position of choosing between two or more colonial orders.

In A Single World Order? the last two articles in this issue provide important general corrections to Schmitt and to this number. Rubén A. Sánchez-Godoy’s “Nomadism and Just War in Fray Guillermo de Santa María’s Guerra de los Chichimecas (México 1575 – Zirosto 1580)” provides a historical correction to Francisco de Vitoria’s concept of just war as seen in the Spanish war on the Chichimecs, while at the same time complicating both Schmitt’s and Deleuze and Guattari’s ideas on nomos and nomadism. Central to Sánchez-Godoy’s argument are the many ways in which nomadism as a concept and a way of being in the land was changing, developing. First there are the originary “nomads,” and here a nomadic way of life appears as a deterrent for the formation of a colonial, Christian order. Then nomadism appears as a consequence of the imposition of a Spanish nomos, but a nomos very different from what Schmitt says about land partition, appropriation and a concrete Christian order: this nomos is economic and what are to be appropriated and distributed are human beings (the Chichimecs) and not the land.

To close this issue, we selected José Rabasa’s article “La simultaneidad en la historia global,” which could very well open this collection, because it guarantees that neither Schmitt, nor his arguments have the final word. Rabasa conducts a critique of Schmitt (and indirectly of this issue itself, for privileging the German thinker) for his positing the existence of a “nomos of the Earth,” or in other words, a critique of the temporality and conception of space and politics that arise from it, which Rabasa sees as tantamount to accepting its supposed universality. Contrary to this, through a reading of the simultaneity of the presence of times, spaces, and Gods coming from distinct cosmovisions in a map from Cuauhtinchan from the first half of the 16th century, Rabasa contrasts the history proposed by Schmitt with François Hartog’s idea of régimes d’historicité, which do not privilege any particular one. In spite of the Spanish and Christian taking of possession of the territories of Cuauhtinchan, Rabasa indicates, its inhabitants were able not only to continue imagining and living a history that predated and contradicted the Spanish imperial order, but to even approach that order from a perspective totally alien to it.

As an appendix we have included John D. Blanco’s translation of Schmitt’s “La tensión planetaria,” and Blanco’s Preface to it (see endnote 12). In it, Blanco discusses Schmitt’s personal and political connections to Spain while explaining the importance of this prematurely timely text for the particular challenges posed by technology to the world in general and the US in particular. We also chose it to emphasize Schmitt’s uncanny “gifts” for understanding the future.

Finally, we would like to add that Rabasa’s article, as well as Bentancor’s, indirectly and in very different ways, point towards “medievalisms” (broadly understood here as forms that can also be considered “pre-Modern” or simply “non-Modern”) similar to those Galli finds in the present (new “pirates” roaming the web, “postmodern medievalisms,” “obsolete” yet insistent borders; 106-9, his emphasis). It might be that in the collapse of old structures, those other forms supplanted, displaced or denied without really ever being defeated by a modern order (Rabasa’s point) are starting to re-emerge. It might be that these previous models, along with the parallel we find between the emergence of colonization and present day globalization, is but a way of giving name, form, to what is altogether new. As Marx remarked in The Eighteenth Brumaire, sometimes it is necessary to borrow from the past in order to understand the present—that is, until the present takes its proper shape, a shape that in the end, should only come from the future.

At the other end of political theology from a historical perspective, it is not difficult to see how Schmitt’s “discrepant” counter-history of Western modernity ends up (re-) universalizing Eurocentric international law in the same breath that he eulogizes its passing. Against the threat of the United States’ ambiguous adoption of sixteenth century Spanish theologian Francisco Vitoria’s criterion of just war—which was used, as we know, to authorize the catastrophic violence unleashed on native peoples in the New World—and against the presumably vague universalism of human rights and the criminalization of war promoted by the United Nations, Schmitt’s requiescat in pace of the Eurocentric nomos under jus publicum Europaeum masks his anticipation of a world order similar to that of prewar Europe, only consisting of competing multinational spaces or Groβraum instead of individual states (needless to say, the German Reich under Hitler might have been one such sphere, although Schmitt vigorously denied ever identifying his theoretical premise with Nazism). Concomitant to Eurocentrism’s return in ever more sophisticated disguises is the resurrected mythology that just as some epochal break made Europe Europe, and the rest of the world Europe’s handmaiden, another epochal break in the historical drama of Eurocentrism awaits us at the beginning of the new millennium.


01. We thank Victoria Kahn for her sharp comments and criticism on an earlier version of this introduction. We would also like to thank Alani Hicks-Bartlett and Ricardo López for their invaluable help in editing the essays in this issue.

02. Biographies on Schmitt that we have found useful include Joseph Bendersky’s and Gopal Balakrishnan’s (2000). 

03. For a critical account of these contradictory genealogies in Europe and the United States, see John P. McCormick.

04. McCormick 129-133. Even though we take the phrase from J.G.A. Pocock’s The Machiavellian Moment. Florentine Political Thought and the Atlantic Republican Tradition, we are giving it a different sense. Pocock used it to define a particular moment and a particular problem, that of the finitude and corruption of the republic and the way in which Machiavelli and his contemporaries contended with it. We allude, instead, to the fact that Schmitt’s concepts and ideas (the political, friends/enemies, world order, etc.) provide one of the centers around which politics, violence, legality, and international order are to be dealt with.

05. Some examples include (but are not limited to): Jacques Derrida (1990 and 2006); Chantal Mouffe (1990); Giorgio Agamben; Slavoj Žižek; Benjamin Arditi; and Carlo Galli.

06. “Hobbes,” writes Arendt, “provided political thought with the prerequisite for all race doctrines, that is, the exclusion in principle of the idea of humanity which constitutes the sole regulating idea of international law… If the idea of humanity of which the most conclusive symbol is the common origin of the human species, is no longer valid, then nothing is more plausible than a theory according to which brown, yellow, or black races are descended from some other species of apes than the white race, and that all together are predestined by nature to war against each other until they have disappeared from the face of the earth” (37). 

07. “It is sufficient…to note that the turn to the modern age in the history of international law was accomplished by a dual division of two lines of thought that were inseparable in the Middle Ages. These were the definitive separation of moral-theological from juridical-political arguments, and the equally important separation of the question of justa causa, grounded in moral arguments and natural law, from the typically juridical-formal question of justus hostis, distinguished from the criminal, i.e., from becoming the object of punitive action” (The Nomos 121). See also Robert Howse.

08. “Machiavelli should not be chiefly read as a theorist of republicanism but rather as a proponent of a rhetorical politics, one that proceeds topically and dialectically, and that can be used by tyrant and republican alike” (Kahn 1994, 11). 

09. For a similar account of the “idea of Europe,” see Michel Foucault, Sécurité, territoire, populationCours au Collège de France, 1977-1978, 305-314. Foucault describes the new Europe in several ways: 1) it is “une unite qui n’a plus du tout la vocation universaliste que pouvait avoir le christianisme…c’est un decoupage géographique bien limité, sans universalité;” 2) it is “fondamentalement plurielle,” that is, its organization runs counter to the hierarchical arrangement of polities under a world empire; 3) this plurality, however, belies a general division between “large” and “small” states; 4) Europe’s relationship to the rest of the world is characterized by “[la] domination économique ou de la colonization, ou en tout cas de l’utilisation commerciale” (305-306). 

10. “Land-appropriation thus is the archetype of a constitutive legal process externally (vis-á-vis other peoples) and internally (for the ordering of land and property within a country). It creates the most radical legal title, in the full and comprehensive sense of the term radical title” (Schmitt, The Nomos, 47, his emphasis). See also Schmitt, “Criminalization of War.” The parallel between the responses Machiavelli and Schmitt provoke does not erase the concrete history their work engages. While Machiavelli’s “prince” might have been a solution to an Italy constantly torn by foreign invasions, Schmitt writes from the opposite side of the spectrum of international law—that of a nation treated like a criminal precisely for its disregard for international law. In his Foreword to The Nomos, Schmitt states: “This book, the defenseless product of hard experiences, I lay on the altar of jurisprudence, a discipline I have served for more than forty years. I cannot foresee who will take my offering in hand, be it a thoughtful or a practical person, be it a destroyer and annihilator who ignores the asylum I offer” (37, added emphasis). If a coming together and a moving forward for Italy is perhaps what Machiavelli was looking for, resentment informed Schmitt’s “offering” to an emerging new international order reminded of obscure origins at the moment when in the name of this new order Germany was being punished for having done precisely—this is Schmitt’s indirect, but strong suggestion—what the most visible members of the international community had done before, even if with different techniques. In this sense, The Nomos is a cunning gift. See Kahn’s analysis of Schmitt’s interested (mis)interpretation of Shakespeare’s Hamlet as possibly strategic in its enactment of a transferal of the “true tragic pity” Hamlet elicits, towards himself. This type of pity produces sympathy with the sufferer, but also—and importantly for Schmitt’s dubious decisions regarding Nazism—an “ethical justification” since it is based on the recognition of the circumstances affecting the sufferer (2003, 89). For a perspective that sees Machiavelli’s The Prince as a republican call to unity of sorts, see Gramsci 238-243. 

11. “The ability to recognize a justus hostis (just enemy) is the beginning of all international law” (The Nomos 51-52; see also “El Orden” 22).

12. As an appendix to this volume, we have included John D. Blanco’s translation and introduction of this essay published in Spanish in 1955. This piece is very different from the original version published in German that same year. We found the fact that Schmitt would work on a version of his German article for a Spanish publication quite telling regarding his interest in the Spanish speaking world and the following he enjoyed there among groups that were waiting to publish him “hot off the press.”

13. In his 1957 lecture, “Colonialism from a European perspective,” Schmitt’s friend and interlocutor Alexandre Kojève identified the question of colonialism as “the political problem of the 20th century.” The colonies were then, according to Kojève, the only spaces in which capitalism was still allowed to reign freely, and from where all surplus value was extracted and invested elsewhere. For Kojève, such extremes put in “mortal danger” the whole Western world (120 and 122, his emphasis). He repeats several times how he wants to depoliticize this problem, to reduce it to economics (“I very consciously and deliberately want to avoid anything which is in any way political or could appear to be so,” 115), even when, tellingly, his proposal for a benign, “giving colonialism” that would give something in return to the colonies and allow for this colonial arrangement to continue (or to end, that is not clear) should not necessarily be understood in terms of aid, but simply, as “Christian” giving (123 – 125). The problem Schmitt saw with this proposal, which may be gleaned from his 1962 speech, is that the emergence of the postwar nations was ideologically based on anti-colonial, “anti-European” sentiment (“El orden del mundo” 21) and materially based on the politicization of the world economy by the United States and Soviet blocs (“El orden del mundo” 33-34).

14. See for example, Fernando Ortiz, Contrapunteo cubano del azúcar y el tabaco; Edmundo O’Gorman, La invención de América; Aimé Césaire, Discours sur le colonialisme; Immanuel Wallerstein, The Modern World-System; Aníbal Quijano, “Colonialidad y modernidad / racionalidad,” “Colonialidad del poder y clasificación social,” and “Colonialidad del poder, eurocentrismo, y América Latina.” 

15. See Schmitt, “The Groβraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law (1939-1941).” The Monroe Doctrine, named after United States President James Monroe in 1823, announced an end to European expansion in the Western Hemisphere, backed by the threat of United States intervention. It also declared United States neutrality in intra-European affairs regarding war and peace, as well as between Europe and its already existing colonies. This policy was invoked on a number of occasions throughout the nineteenth and twentieth centuries, including the annexation the Republic of Texas following the 1846 Mexican-American War, the annexation of Hawai’i after 1952, and United States intervention in the Cuban and Philippine Wars of Independence, known as the Spanish-American War, and the seizure of the Isthmus of Panama from Colombia. Schmitt sees in this policy the rise of a post-Eurocentric conception of geopolitics, in which hemispheric “great” spheres of influence replace the interstate system anchored by Europe and extended to the rest of the world. Such an affirmation, however, quickly deteriorated into “a global ideology that interferes in everything, a pan-interventionist ideology as it were, all under the cover of humanitarianism” (90). For President Theodore Roosevelt’s use of the Monroe Doctrine, see Theodore Roosevelt, An Autobiography, chapter XIV (“The Monroe Doctrine and the Panama Canal”).

16. For a brief account of the black legend, see Benjamin Keen; and, more recently, the essays in Rereading the Black Legend: The Discourses of Religious and Racial Difference in the Renaissance Empires.

17. As Schmitt writes elsewhere: “En el siglo XVII…los jesuitas intentaron predicar a los indios y chinos la religión cristiana, no como una religión de Occidente, sino como una religión universal que afecta a todos los hombres de la misma manera” (In the seventeenth century…the Jesuits attempted to preach the Christian religion to Indians and Chinese: not as a Western religion, but as a universal religion pertaining to all men in the same way” (“La tensión planetaria” 18-19). The resurrection of the katechon concept as a principle of historical explanation by Schmitt remains understudied outside Germany: for the secondary bibliography on this concept in German, see Riccardo Cavallo; in recent years, see Raphael Gross, Carlo Galli; Julia Hell; and Marka Cichockiego. 

18. One of the subterranean currents animating Agamben’s Homo Sacer concerns the way Agamben consciously or unconsciously performs the same “bracketing operation” around the colonial question as Schmitt, in order to foreground the Nazi concentration camp as the realization of modernity. On the colonial genealogy of the concentration camp and the techniques used in it, see 91 and 95; and Madley 429-464.

19. See Galli on the “rebound” effect of colonial space conceived as a “state of nature” in Hobbes, which drives the “geometrization” or rational distribution of geographic space (26-33; see also lvi). In a similar fashion, Foucault remarked on the “rebound” effect of colonization on the formation of modern British law (“Society Must Be Defended.” Lectures at the Collège de France, 1975-1976, 102-103).

20. This bracketing can also be seen in Clausewitz’s classic study of war (1832), even when he recognizes that in war nothing is definitive since in some cases “emotions and passions” overrule what for him is its strictly political object (120). Nevertheless, war understood as “nothing but a duel on an extensive scale,” can only be such—a limited engagement grounded in common understandings and rules—between similar polities (101). This agreement, though not directly acknowledged as such by Clausewitz, occurs through the positing of spaces in which other rules apply. For example, if by its very nature war would seem to imply force in an undeterred form, this is not what happened among “civilized peoples” whose wars were “less cruel and destructive than those of savages” not because of the nature of war itself, but due to “the social conditions both of States in themselves and in their relations to each other” (102). For a study of war between two opposing sides—the Mexica state and Spanish soldiers, who in a strict sense did not represent the Spanish state—not sharing common understandings and the total war of annihilation that ensued, see Inga Clendinnen’s essay.

21. One cannot help but wonder whether it was easy for Schmitt to see nihilism in the new, non-European nomos, given the sudden transformation of “free space(s)” at the disposal of European sovereigns into formally equal sovereign states. As Louis Althusser remarked, “ideology has no outside (for itself), but at the same time… it is nothing but outside,” and is therefore visible to those who do not share its tenets (49, his emphasis). More than one critic has remarked on Schmitt’s seeming nostalgia for the tolling of bells and the impressive world of art that accompanied a “golden age” of conquest and exploitation. His seems to be a case of identification with one side of the political game. For Schmitt’s distinction between pre-jus publicum Europaeum anarchy and post-jus publicum Europaeum nihilism, see The Nomos, 66 and 186-187.

22. Even though O’Gorman’s critique of the way a whole continent (its knowledge, technologies, languages, religions, etc.) was rendered disposable, and made anew in the “image of its inventor” remains indebted to Heidegger’s idea of “authenticity” and therefore repeats the admiration of a will capable of pushing what is given aside (more the English empire than the Hispanic one in O’Gorman’s case, 151-152), his book has important commonalities with Schmitt’s ideas about the first global nomos

23. Schmitt himself explicitly addresses the overlap and difference between his form of historical analysis and Marxism: see “La tensión planetaria” 25-26. For other overlaps between Schmitt’s thought and post-colonial and Latin Americanist thought, see John Furnivall, Aníbal Quijano, and Mahmood Mamdani.

24. It is these and other omissions of Schmitt’s interpretative history, Teschke concludes, that should alert us to the ideological role of Schmitt’s work: “Less than propaganda or fabrication, but more than tendentiousness, it may be defined as ideology production: a determinate re-interpretation of the history of international law and order” (2011, 87).

25. In this regard, Janet Abu-Lughod and Sanjay Subrahmanyam’s work is essential. 

26. According to Scott, the sea-bounded adventurous spirit of the Spanish crystallized its ethics in Vitoria, who “proclaimed the existence of an international law no longer limited to Christendom but applying to all States, without reference to geography, creed or race” (10a-11a). Under such legal, ethical universalism, the only type of intervention that would make sense was predicated on what we might call “humanitarian intervention,” the “mandate,” as Scott put it, “to lend a helping hand to those less favoured people” (11a). It should be added, however, that in the sixteenth century, Vitoria had made “human rights” (broadly understood as protection of the powerless against any form of tyranny—tyranny being, of course, defined unilaterally) a universal mandate that did not need take into consideration what a people would agree to as a reasonable custom (human sacrifice, in Vitoria’s example). If the judging party (Spain, in this case) deemed a social or religious practice as “against natural law,” war and intervention could follow. According to the 16th century Dominican, a case of rightful war is that of the “lawful defence [sic] of the innocent from unjust death, even without the Pope’s authority, the Spaniards might prohibit the barbarians from practicing any nefarious custom or right…It makes no difference if all the barbarians consent to these kind of rites and sacrifices, or that they refuse to accept the Spaniards as their liberators in that matter (288, his emphasis).

27. This is certainly one of the stakes involved in the reception of Hannah Arendt’s thought in the United States; and Jacques Rancière’s critique of Arendt’s refusal to abandon the reification of a political sphere of human activity that distinguishes our “human condition.” See Rancière, “Ten Theses on Politics,” par. 5-8 (Thesis 2). 

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