The International Political Thought of Carl Schmitt

Terror, Liberal War and the Crisis of Global Order

Louiza Odysseos, Fabio Petito, Louiza Odysseos, Fabio Petito

• Publisher: Taylor & Francis
• Year: 2007
• Print ISBN: 9780415417549
• eBook ISBN: 9781134114481
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

Presenting the first critical analysis of Carl Schmitt's The Nomos of the Earth and how it relates to the epochal changes in the international system that have risen from the collapse of the 'Westphalian' international order.

There is an emerging recognition in political theory circles that core issues, such as order, social justice, rights, need to be studied in their global context. Schmitt's international political thought provides a stepping stone in these related paths, offering an alternative history of international relations, of the genesis, achievements and demise of the 'Westphalian system.' Writing at a time when he believed that the spatial, political and legal order—the nomos of the earth—had collapsed, he highlighted the advent of the modern state as the vehicle of secularization, tracing how this interstate order was able to limit and 'rationalize and humanize' war. Providing a large number of case studies including: global terrorism, humanitarian intervention and US hegemony, this book will give further impetus to, and expand, the nascent debate on the significance of Schmitt's legal and political thought for international politics.

The International Political Thought of Carl Schmitt will be of interest to students and scholars of international relations, law and history.

Part I
Carl Schmitt’s heterodox international thought

1 The ‘realist institutionalism’ of Carl Schmitt

Alessandro Colombo

Introduction

It is pertinent to focus on institutions in a part of the book that discusses Carl Schmitt’s heterodox international thought. In fact, Schmitt’s major concern was precisely to search for the concrete meaning of institutions, while preventing a divorce between law and political science. On the one hand, as the jurist that he still represents himself to be at the beginning of Der Nomos der Erde, he unequivocally rejects the naively Machiavellian view of politics and its inability to grasp the cultural and juridical dimensions of order. Schmitt’s thought, on the contrary, revolves around the problem of reconciling form and decision, effective and juridical power, in an attempt to distinguish what power always is – the pure and simple ability to impose one’s will on others – from what it can become through law – a ‘restraining force’, as Schmitt defines it, borrowing the Pauline concept of katechon; namely, an instance able to channel the indomitable lack of restraint of the political into juridical form (Schmitt 1984, 1988).

On the other hand, as a critic of normativism and legal formalism, Schmitt vehemently denounces the tendency of contemporary legal studies to put forward an increasingly drastic disjunction between norm and reality, rule and actual behaviour (Schmitt 2004a), reducing law to nothing more than ‘a collection of somewhat valid norms’ (Schmitt 2003: 220). In this conception, specific problems and political, economic and geopolitical issues are banished from the juridical realm and a technical distinction is drawn between pure sociological and pure juridical facts. Schmitt sees a real abdication of international law in this impoverishment, or, more precisely, the end of its centuries-old experiment:

Silete theologi in munere alieno! [Theologians must remain silent within foreign walls!] So said humanistic jurists to theologians at the end of the 16th century, in order to establish an independent jurisprudence of jus gentium. Three hundred years later, at the end of the 19th century, jurisprudence, in the name of legal positivism, chose to remain silent with respect to all the great contemporaneous legal issues. Sileamus in munere alieno [We must remain silent within foreign walls]. With this rejection of international law, Europe stumbled into a world war that dethroned the old world from the center of the earth and destroyed the bracketing of war it had created.

(Schmitt 2003: 239)

Overcoming this disjunction between law and politics marks not only the historical and conceptual foundation of Schmitt’s reflections on both Staatsrecht and Völkerrecht, but also his distinctiveness in International Relations theory, what I shall call his ‘realist institutionalism’. First, I will analyse the meaning of this concept, which can legitimately seem an oxymoron in contemporary International Relations theory, since most institutionalists reject realist assumptions and most realists downplay the role of institutions. Second, I will focus on the fundamental subject of Schmitt’s institutionalism: the state. Schmitt places it at the centre of modern international politics, as do realism and neorealism. However, he attributes to it a totally different role: the state is not conceived to be the sole, real actor behind the institutional scene but, rather, the very creator and guarantor of that scene. Finally, I will discuss Schmitt’s image of history, which also escapes the common realism–institutionalism distinction. On the one hand, it rejects the realist dogma of the immutability of international politics, clearly recognizing the important changes that the jus publicum Europaeum had introduced into the international sphere. On the other hand, Schmitt’s image of history also rejects the progressive and optimistic image of contemporary institutionalism, opposing it with Schmitt’s own catastrophic and somewhat nostalgic vision of the demise of European international law.

This inevitability of demise is, at the same time, the outcome and the inspirational source of Schmitt’s thought. If he recognizes in the institutional dimension the connective tissue of the international scene, it is precisely because he is observing that scene’s collapse, the moment when ‘the plankings begin to creak’ – as a German poet contemporary of Schmitt, Gottfried Benn, put it. Instead of continuing to support the building from the inside, the planks come to the surface, become visible, and allow us to read their history in their cracks. Facing such a crisis landscape Schmitt, first, retraces its origin, then its long course, until the institutional dimension reveals itself to be very different from how it is portrayed in most of the so-called institutional theories of International Relations: that is, it is not an innovation of the twentieth century, but, rather, the most impressive element of continuity in the modern history of international politics; not the negation of power relations, but, rather, the expression of their ability to give form to international life; not a manifestation of universalism, but, rather, the last sign of the exceptionalism and centrality of Europe.

A realist institutionalism

That Carl Schmitt belongs to the realist tradition cannot be seriously put into doubt. All of the major assumptions that underlie his thought prove it: the pre-eminence of political over economic relations; the centrality of conflict, upon which his concept of the political rests (Schmitt 1996); and his insistence on the decisive role of the ‘state of exception’, which permeates both his domestic and his international reflections and founds his very definition of sovereignty (Schmitt 1988). His constant references to the classics of political realism, from Thomas Hobbes to Jean Bodin to Donoso Cortés and the counter-revolutionary Catholicism of the nineteenth century, which he also conceives to be decisionist (ibid.), further support this point.

Nevertheless, the retrospective reconstruction of the history of modern international relations which Schmitt offers reveals not a history of power politics, but, basically, one of institutions (Schmitt 2003). From the recognition of foreign states to the legitimation of territorial changes, from the succession of states to the occupatio bellica, from the system of international conferences to the status of neutrality, the jus publicum Europaeum is a monument to the impact of institutions on international life. Through the secularization of the public sphere and the neutralization of conflicts that resulted from the civil wars of religion, its fundamental contribution has been to transform international cohabitation into a ‘relation between specific, spatially concrete, and organized orders’ (Schmitt 2003: 158), ‘able to be conducted with comitas (courtesy) and with jus (probity)’ (ibid.: 146). Modern international politics becomes in the era of the jus publicum Europaeum, not the materialization of the Hobbesian state of nature, but, rather, the political and juridical response to it, as well as to the experience that provides its ‘existential truth’ (ibid.: 127): civil war.

This interest in the institutional dimension of the international sphere distinguishes Schmitt’s thought in two fundamental ways from the kind of realism that has prevailed in International Relations. First, without renouncing the idea that international politics is characterized by the absence of government, Schmitt explicitly puts the significance of anarchy into perspective, not only by recognizing that order can exist in anarchy, as realists and neorealists also do, but, beyond them, by understanding that the international order is something more than the (ever changing) result of power relations; it also depends, at a more profound level, on a (more persistent) set of political, juridical and cultural restrictions which, over the last three centuries, have allowed international competition to develop according to certain rules and, above all, in keeping within certain limits; namely, the limits whose crisis Schmitt witnessed.

As in the parallel reflections of the English School of International Relations – although clearly outside its Grotian cadence (Bull 1966; Wight 1994) – the jus publicum Europaeum places international anarchy in a societal and, more importantly, juridical web. As Schmitt puts it in Der Nomos der Erde:

From Hobbes and Leibniz to Kant, from Samuel Rachel to Johann Ludwig Klüber, all significant authors have claimed that in international law states live as ‘moral persons’ in a state of nature, i.e., that the representatives of jus belli, without a common, institutional, higher authority, confront one another as sovereign persons with equal legitimacy and equal rights. One can view this situation as anarchistic, but certainly not as lawless. . . . At first glance, everything in this interstate international law among equal sovereigns appears to have hinged on the thin thread of treaties that bound these leviathans together. . . . But, in reality, strong traditional ties – religious, social, and economic – endure longer.

(Schmitt 2003: 147–148)

In realizing that anarchy can result in something different from the Hobbesian paradigm – as it already has in history – Schmitt rejects the other cornerstone of contemporary realism: the assumption that international politics has remained immutable through the centuries (Waltz 1979; Gilpin 1987). Once placed in its particular institutional context, each form of international coexistence – from the Christian medieval up to the modern international system – reveals itself to be radically different from the others. Continuity and discontinuity, immutability and catastrophe follow and interweave within institutions; institutions which are born, on the one hand, to produce expectations and to overcome contingencies, while being, on the other hand, themselves a contingency, a fact that does not fundamentally change what is really immutable in politics – Schmitt’s dialectic between friend and enemy (Schmitt 1996) – but, rather, changes the nature of the players, the extent of the playing field, and the rules of the game. With respect to orthodox realism, the meaning of immutability changes in this conception, becoming more complicated and, at the same time, more accurate. On the one hand, the assumption of immutability may even be reinforced by the rediscovery of the institutional framework of the jus publicum Europaeum, not because it constitutes the only element of continuity in the history of modern international relations, but, rather, because it constitutes one of them, and precisely the one that has made it possible to give other mutations a form. On the other hand, the assumption of immutability emerges relativized by the recognition that the jus publicum Europaeum also marks the discontinuity between the modern international system of states and other past, present or future models of international cohabitation, both in Europe and in the rest of the world.

It is precisely here, in his interest in the modern international system, that Schmitt’s institutionalism reconnects with the realist tradition. Unlike other more recent institutionalisms, especially those he saw emerging from the League of Nations and post-war international law, Schmitt is not interested in the institutions explicitly created during the twentieth century in contrast to the international politics of the past; instead, he turns his attention to institutions rooted in the past, as a cultural and juridical counterpoint to power politics. He does not focus on the institutions that sprang from a declared (and ideological) project of transformation, like the League of Nations and the United Nations, but, rather, he turns his attention to institutions so durable as to have accompanied the entire course of modern political history and, therefore, naturally able to assert themselves while no longer being recognized as institutions. Schmitt’s approach does not focus on specific institutions such as international regimes or formal organizations, but on the more fundamental practices in which these have been inserted and on which the very nature of international cohabitation depends: a nature that political realism also recognizes, while failing to perceive its institutional footprint.

This surprising reversal is the first and fundamental particularity of Schmitt’s realist institutionalism. Institutions are not conceived as substitutes for the realist game of international politics; instead, it is the realist game of international politics that is conceived as an institution. Schmitt, differentiating himself from idealists, accepts the key principles of realist analysis – the centrality of states, the balance of power, and international anarchy itself. However, unlike orthodox realists, he realizes that these principles are not mere assumptions, but institutions. The major characteristics commonly attributed to international politics share the features of an institution: from the notion of international politics as (basically) inter-state politics, to the concept of boundary, to the very distinction between domestic and international politics and domestic (or civil) and international war. Schmitt realizes that an authentically realist analysis of international relations should not base itself on these assumptions, but, on the contrary, should take them as a principal focus of investigation.

It is no accident that this impressive rewriting of realism culminates in Schmitt’s analysis of war. Coherent with his realist approach, he considers war to be the crucial phenomenon of international life, not because it is omnipresent, but because it is revelatory (like any exception) of what may be overlooked or concealed in ‘times of unproblematic security’ (Schmitt 2003: 82). Nevertheless, unlike contemporary realists, Schmitt considers war to be the opposite of a manifestation of the anarchic and immutable nature of international politics. As he explains it, it is unwise to indiscriminately define any use of force in the form of war as anarchy and to hold this definition to be the last word on the juridical question of war: ‘anarchy and law are not mutually exclusive’ (ibid.: 187). On the contrary, the ability to acknowledge a justus hostis is the starting point of any international law, just as the inability to do so is the unambiguous sign of its demise. The Hobbesian analogy between international politics and the state of nature makes way for contrasting results. On the one hand, the war of all against all does not cease to be one of the possible outcomes of anarchy, as the frightening recurrence of civil war shows. On the other hand, this looming threat creates the need to contain anarchy, not by juxtaposing a set of institutions to the intractable reality of war, but by transforming war itself into an institution.

It is exactly the ‘rationalization and humanization of war’ that Schmitt conceives to be the fundamental contribution of the jus publicum Europaeum. The role of the state in its domestic sphere – to neutralize conflict by giving it form – is transferred into the international sphere with inter-state war. The essence of European international law was the bracketing of war (eine Hegung des Krieges).

The essence of such wars was a regulated contest of forces gauged by witnesses in a bracketed space. Such wars are the opposite of disorder. They represent the highest form of order within the scope of human power. They are the only protection against a circle of increasing reprisals, i.e. against nihilistic hatred and reactions whose meaningless goal lies in mutual destruction.

(Schmitt 2003: 187)

While being the result of the absence of government par excellence, war also becomes, at the same time, the place of the highest institutionalization of international life – guerre en forme, as Schmitt writes, in contrast to the frightening lack of form of civil war. It is something similar to a duel, an armed clash between territorially determined personae morales who recognize the jus belli in one another, and, thus, manage to give legal form to enemies, clearly distinguishing them from criminals (aliud est hostis, aliud rebellis).

In this historical and juridical reconstruction, the meaning of inter-state war is radically different from how it is portrayed in both orthodox realism and liberal institutionalism. The latter, comparing inter-state war to domestic pacification, considers it the paramount expression of international anarchy. Schmitt, on the contrary, comparing it to civil war, considers inter-state war the paramount expression of how anarchy is put into form by the jus publicum Europaeum. Compared to the complete indefiniteness of civil war, inter-state war turns out to be a circumscribed phenomenon, clearly delimited in space and time, and open, not to whomever has the power to fight – as would be the case in unlimited anarchy – but only to those who assume the juridical form of the state and respect the norms and procedures of the jus publicum Europaeum. The historical significance of inter-state war is to be found in its restrictions as well as its acceptability. As another realist scholar interested in the ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Acknowledgements
• Introduction: The international political thought of Carl Schmitt
• Part I: Carl Schmitt’s heterodox international thought
• Part II: The crisis of order (nomos) in the post-9/11 era
• Part III: Searching for a new nomos of the earth
• Part IV: Critical rereadings of Carl Schmitt’s international thought