Bruno Bosteels The Obscure Subject: Sovereignty and Geopolitics in Carl Schmitts The Nomos of the Earth

Writing with the bold pathos that no doubt

comes from his experience in captivity after World War II, Carl Schmitt in his autobiographical Ex captivitate salus claims to be standing on a threshold, as the guardian of a world order that is about to be drowned out in forced silence: I am the last conscious representative of the jus publicum europaeum, its last theoretician and investigator in an existential sense, and I experience its end just as Benito Cereno experienced the voyage of the pirate ship. This is the time and place of silence. We should not be afraid in this regard. 1 Like Herman Melvilles ctive Spaniard, Schmitt presents himself as an involuntary witness to the threatening decline of a great world order. Even more so than Don Benito Cereno, though, perhaps it is a character from a story by Jorge Luis Borges, rst published in February 1946, who provides a more accurate analogy to Schmitts existential and scholarly situation in the summer of that same year. Thus, writing from his prison cell in an attempt, if not to justify, then at least unabashedly to proclaim his role at the head of a Nazi concentration camp, Otto Dietrich zur Linde, the narrator of Deutsches Requiem, concludes his would-be testament as follows:
The South Atlantic Quarterly 104:2, Spring 2005. Copyright 2005 by Duke University Press.

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Many things must be destroyed in order to build the new order; now we know that Germany is one of those things. We have given something more than our lives, we have sacriced the fate of our beloved country. Let others curse and cry; to me it gives great pleasure that our gift should be orbicular and perfect. An unforgiving era now closes in on the world. We have created this era, we who already are its victims. What does it matter that England is the hammer and we, the anvil? The important thing is that violence reign all-powerful, and not the servile shynesses of Christianity. If victory and injustice and happiness are not for Germany, may they befall other nations. May heaven exist, even if our place is hell.2 Even if those great sea powers, England or the United States of America, are the hammer, and Germany the anvil, at least a new spatial order already has been forged, and a new era already has begun. Beyond the visible defeat of the Third Reich there lies a secret world-historical victory. Ruled by violence, a new global ordera new nomos of the earthalready has been marked out, one that is both perfect and orbicular, to use Borgess apt neologism. Perhaps, though, this arcane victory is not unavoidable. Perhaps the alternative between victory and defeat is even a false one. Perhaps we are conceding already too much as soon as we accept the logic behind the argument for any nomos of the earth at all, whether old or new. For a critique of The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, the issue cannot be limited to inverting the respective places of hammer and anvil, not even in order to add a sickle; rather, it is a question of interrupting the very logic of the nomos before we become its unwitting victims, even while claiming to be its noblest opponents. My aim therefore is not to correct or amend the concrete ndings and potentially useful, even visionary, data in Schmitts book, but to debunk its most stubborn theoretical presuppositions. A treatise on the rise and fall of European international law, a contorted but never reluctant imperialist doctrine parading in the guise of a scientic history of the principle of territoriality, an essay on what might as well have been called the concept of the geopolitical: whatever else Schmitts The Nomos of the Earth legitimately can purport to be, it is also, at least implicitly, a grand theory of the eventof land appropriation as the originary event of all human history. Quoting Kant, Schmitt writes: This law of mine and thine that distributes the land to each man, as he puts it, is

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not positive law in the sense of later state codications, or of the system of legality in subsequent state constitutions; it is and remains the real kernel of an entirely concrete, historical and political event [eines ganz konkreten, geschichtlichen und politischen Ereignissen], namely the appropriation of the land. 3 The status of this event, however, remains ambiguous throughout the book and, rather than avoiding this ambiguity, the repeated emphasis on the historically authentic nature of the act of land appropriation only highlights, as if through a symptomatic excess of speech, the problems that beset the logic of the nomos as a whole. Briey put, land appropriation is an act or event that can be found at the beginning of every community, people, or empire; and yet, it should not be confused with a purely hypothetical origin or an empty theoretical ction of the kind found in normativist and contractualist theories. Schmitt, in order to preempt this confusion, is at pains to bring out the historical substance behind the originary acts of appropriation. He refers to the Greek sea appropriations as world-historical events of revolutionary signicance, just as the legendary and unforeseen discovery of a new world, which marks the onset of the modern nomos or jus publicum Europaeum, appears as an unrepeatable historical event for which we today can imagine only fantastic parallels (44/15, 39/6). Ultimately, though, the aim is not just to sketch in a historiography of such rare and unrepeatable events but rather, on a much more profound level, to reach out for the radical ground of all social, legal, cultural, and political order. Land appropriation, as the founding act behind every true nomos of the earth, appears as the ultimate answer in Schmitts lifelong quest for the authentic principle of legitimacy beyond mere legality. In fact, we know that to translate nomos as law, as a mere ought in opposition to the is of physis or nature, is seen as already a sign of decadent, positivistic times. Schmitt claims, moreover, that this reductive translation is not supported by etymology, even though he himself admits to a certain disdain for philological precision: In its original sense, however, nomos is precisely the full immediacy of a legal power not mediated by laws; it is a constitutive historical eventan act of legitimacy, whereby the legality of a mere law is rst made meaningful (73/42). As an act of legitimacy, the historical event of land appropriation is what creates the most radical title and the primary criterion that determines all subsequent criteria: Land-appropriation thus is the archetype of a constitutive legal process externally (vis--vis other peoples) and internally (for the order-

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ing 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. (47/17) All subsequent legal relations to the soil, originally divided among the appropriating tribe or people, and all institutions of the walled city or of a new colony are determined by this primary criterion. Every ontonomous and ontological judgment derives from the land. For this reason, we will begin with land-appropriation as the primeval act in founding law. (45/16) In passages such as these, the act of land appropriation, far from being a historical event that still somehow could be placed in a specic time and space, gradually turns into an obscure origin that is receding before our very own eyes, furrowing its way deeper and deeper into the order of the earth. I want to restore to the word nomos its energy and majesty, Schmitt comments, arguing for the interpretation of nomos as an Urwort, or primeval word (67/36, 70/39). Schmitt is actually relentless in his predilection for all words with Ur- as the German prex for the originary or primeval. Nomos would be the lasting source of a peoples Urverfassung and Ur-Ma, that is, its originary constitution and primary measure, with land appropriation being the archetype or Ur-Typus of a rechtsbegrndende Ur-Akt, a primeval act in founding law, which establishes the bodenhafte Urgrund, the terrestrial fundament, in which all law is rooted and which in turn enables a seinsgerechte Urteil, meaning not only a judgment but also a primary division in accord with the just nature of being (4547/1617). Since the original meaning of the word nomos has been distorted by latter-day positivism and sophistic legalism, however, perhaps only ancient poetic invocations can provide us with a hint of its numinous power. Schmitt, we know, is particularly fond of quoting Heraclitus and Pindar: Thus, in some form, the constitutive process of a land-appropriation is found at the beginning [Anfang] of the history of every settled people, every commonwealth, every empire. This is true as well for the beginning of every historical epoch. Not only logically, but also historically, land-appropriation precedes the order that follows from it. It constitutes the original spatial order [raumhafte Anfangsordnung], the source [Ursprung] of all further concrete order and all further law. It is the reproductive root in the normative order of history. All further property relations . . . are derived from this radical title. All subsequent

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law and everything promulgated and enacted thereafter as decrees and commands are nourished, to use Heraclitus word, by this source [Ursprung]. (48/19) Poetic speech and organic metaphors here serve to bring forth the mysterious origin that is said to support all further enactments of order and law. Language, thus, still knows the secret origin. Language knows it still, Schmitt quotes a philosopher of language as saying: In this way, language traces the eective and successive constituting processes and events, even when men have forgotten them (346). In terms of the organicity of language and the doubtful use of etymology, Schmitt is obviously close to Heidegger. Even the decisive shift from time to space is consistent with certain later writings from the author of Being and Time. The attempt in Being and Time, section 70, to derive human spatiality from temporality is untenable, Heidegger admits in his lecture Time and Being, after opening up a new path of thinking that is strikingly similar to Schmitts: Since time as well as being can only be thought from appropriation as the gifts of appropriation, the relation of space to appropriation must also be considered in an analogous way. We can admittedly succeed in this only when we have previously gained insight into the origin of space in the properties peculiar to site and have thought them adequately. 4 Thus, whether the relation between the event of appropriation, spatiality, and language is put in juridico-historical or in strictly philosophical terms, after the decisionistic aspects they may have shared earlier, a similar problematic also brings together some of the interests behind the later works by Schmitt and Heidegger. With Schmitts land appropriation, in any case, we nd ourselves in the midst of the search for an origin in the strong metaphysical sense of the German word Ursprung, as diagnosed by Michel Foucault in Nietzsche, Genealogy, History: This search is directed to that which was already there, the image of a primordial truth fully adequate to its nature, and it necessitates the removal of every mask to ultimately disclose an original identity. 5 The origin always precedes and, at the same time, grounds the particular occurrences that mark the destiny of its unfolding. However, for Schmitt, as is also the case for Heidegger, who seems to be the real target of Foucaults criticism, this origin is always a lost origin, due to the long history of its oblivion and decline. What is more, to restore the energy and majesty to the primeval origin of all concrete order involves an impossible act, which may well obscure the very thing that it claims to bring to light: From the vantage point of an absolute distance, free from the restraints of positive

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knowledge, the origin makes possible a eld of knowledge whose function is to recover it, but always in a false recognition due to the excesses of its own speech. The origin lies at a place of inevitable loss, the point where the truth of things corresponded to a truthful discourse, the site of a eeting articulation that discourse has obscured and nally lost. 6 Schmitt will do everything humanly possible to stamp out the traces of this inevitable misrecognition. The Nomos of the Earth is a book about the loss and return of origin, that is, of the legitimate origin of all subsequent legal power and positive juridical knowledge. Its eeting articulation, however, involves not only a seemingly innite regress to the primeval origin but also something that I can describe only as a double operation of suturing: rst, of earth and law, of being and right, or of space and justice into the unied concept of an authentic geopolitical (or geojuridical) ontology, and, second, the further suturing of this always-prior ontological order onto the concrete history of European (or Western Hemispheric) international law. Schmitt rst of all presupposes an immediate connection between being and spatiality. Where there is space, there is being, he is fond of quoting Nietzsche as saying, and he himself asserts with even greater clarity: The essence of being is to be spatial, position, space and power; it is not a temporal succession, it is presence, that is to say, space. 7 All being, moreover, at the same time as it is spatial and concrete, also contains an inner measure; all being is oriented in accord with an immanent principle of justice and right: Right is the rightfulness of being that is given at the origin. 8 The earth itself, of course, is the primary site for this powerful suturing of being, space, and law as right. It is here that we nd the threefold root of law and justice: In this way, the earth is bound to law in three ways. She contains law within herself, as a reward of labor; she manifests law upon herself, as xed boundaries; and she sustains law above herself, as a public sign of order. Law is bound to the earth and related to the earth. This is what the poet means when he speaks of the innitely just earth: justissima tellus. (42/13) In reality, the words of Heraclitus and Pindar mean only that all subsequent regulations of a written or unwritten kind derive their power from the inner measure of an original, constitutive act of spatial ordering. This original act is nomos. (78/47)

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If we accept for a moment to enter this register of a mythopoetic ontology that once again would highlight the proximity between Schmitt and Heidegger, I am tempted to counter the often repeated quotes from Heraclitus and Pindar with an expression from Samuel Beckett. For the author of Enough, the earth is not innitely just but unjust, or rather ungratefulindifferent to the very question of justice and injustice: Stony ground but not entirely. 9 The earth displays no inner measure, nor is being ordered by an originary justice. In fact, when the gap between being and law, between physis and nomos, or between is and ought is sutured, what is obliterated is the notion that justice requires a supplement to the monotony of sheer being. And this supplement, this but not entirely, which opens a breach in the totality of being instead of rooting the linkage between being and law in the earthy ground, raises the question of a subject that would not be enthralled by the origin of a silent destiny. To use the words of Alain Badiou in his reading of Beckett: What is this breach in the totality of being and self ? What is to be found in this breach that is simultaneously the not-all of the subject and the grace of a supplement to the monotony of being? This is the question of the event, of what-comes-to-pass. It is no longer a matter of asking the question What of being such as it is?, or Can a subject who is prey to language rejoin its silent identity? Instead, one asks: Does something happen? And, more precisely: Is there a name for the surging up, for an incalculable advent that de-totalizes being and tears the subject away from the predestination of its own identity? 10 To ask the question of the event and subjectivity in the context of the debate over sovereignty, we should rst of all undo the suture that binds together earth and law. Otherwise, the much-invoked event will never have been an incalculable beginning but only a name for the obscure object of a metaphysical desire for origins. The second suture is even more violent in smoothing out the arbitrariness of accident in the name of an underlying continuity. I am referring to the way in which the complex of being, space, and law is related to European history. Let us even ignore the fact that nothing really allows us to distinguish an authentic act of land appropriation from an inauthentic one. Surely, though, no geopolitical question can be more timely today. All that Schmitt has to oer by way of an answer, however, seems to be the success and lasting force of actual fact, followed by a circular reassertion of

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the premise behind his geopolitical ontology: Not every invasion or temporary occupation is a land appropriation that founds an order. In world history, there have been many acts of force that have destroyed themselves quickly. Thus, every seizure of land is not a nomos, although conversely, nomos, understood in our sense of the term, always includes a land-based order and orientation (80/48). How long should a brutal use of force last, one is tempted to ask, before it qualies as a legitimate act of founding law? The more important question, however, remains: Who is to say? A few moments in the book suggest the tenuousness of the suture between the ontological and the historical. In one symptomatic instance, we even nd that the hesitation surrounding this procedure is displaced onto a baing duality in the use of historicity itself: We must not think of landappropriation as a purely intellectual construct, but must consider it to be a legal fact [eine rechtsgeschichtliche Tatsache], to be a great historical event [groes historisches Ereignis], even if, historically [in der geschichtlichen Wirklichkeit], land-appropriation proceeded rather tumultuously, and, at times, the right to land arose from overowing migrations of peoples and campaigns of conquest and, at other times, from successful defense of a country against foreigners (46/17). On one hand, there is the level of appropriation as a great legal-historical event in the ontological sense of the term; on the other, there are the tumultuous sundry realities of conquests, colonial wars, and migrations. Schmitt, by linking the two meanings of history one apparently originary and authentic and the other derivative and almost secondaryalways seems to rely on the ontological claim of an inner law of the earth, as if to suggest that this immanent and primeval normativity was actually destined to become exposed in the history of Western imperialism. In its sheer arbitrariness, this retroactive linkage only highlights the willfully ignored decision that lies at the heart of any nomos of the earth. Schmitts thinking of the concrete order, rather than oering an alternative to decisionism and positivism, in fact still relies on the former while opposing the latter, except that now this reliance is disguised behind the mask of a distant measure that would have been immanent to Mother Earth herself. There is a strong sense in which this construct, which is not purely intellectual so much as ideological, is also closer to myth than it is to history. Plainly put, what this mytho-metaphysical way of thinking conceals is the bloody nature of most world-historical inceptions. Historical thinking becomes mythical when this violent part of nonlaw behind the law is serenely ignored in favor of the imposition of a primordial order.

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In psychoanalytical terms we might say that the logic of the nomos presents a terrorizing superego injunction as if it were the earths own call to us. A true nomos is nothing but a call to order reduced to its bare root. It confronts us with an impersonal superego whose face supposedly coincides with the earths stony ground. Its primordial injunction is a peremptory you must that pretends to be derived without mediation from the is of Mother Earth, as fascinating and ferocious as the native lay of the land. The superego has a certain rapport to the law, and at the same time it is a senseless law, which goes so far as being a misrecognition of the law, Jacques Lacan says in his rst seminar: The superego is both the law and its destruction. In this, it is the word itself, the laws commandment, insofar as only its root is left. The law is entirely reduced to something that cannot even be expressed, like the You must, which is a word deprived of all meaning. It is in this sense that the superego ends up being identical to the most ravaging and fascinating aspects in the primitive experiences of the subject. It ends up being identical to what I call the ferocious gure, to the gures that we can tie up with primitive traumatisms, whatever they be, suered by the child.11 What happens when this supralegal injunction hides behind the thought of concrete order is that the obscene part of nonlaw at the root of all law, which the ferocity of the superego injunction at least had the sinister virtue of exposing, is allowed to sink back into the uniform nature of the earths inner law. No subject, other than an obscure or reactive gure, can be tied to this order when the earth itself is said to be sovereign. Following Badious views, an obscure gure can be dened as one enraptured by the event as a radical and unattainable origin that from times immemorial precedes and overwhelms the laborious process of a specic truth in the present. Knowledge of this origin, which always lies beyond language, is then merely imposed as myth or religion. Instead of elaborating the events consequences for the here and now, the result is an occultation of the present under the pressure of an absolutely prior origin: In fact, the obscure gure is the gure of the denegation of the present because it approaches the event in a gure of transcendence, as a full subject. 12 The reactive gure, on the other hand, does not turn the event into a mythical origin but rather negates that there actually was an event in the rst place, while conrming the existing status quo. Schmitt comes closest to this gure when he equates nomos with property:

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Abstractly speaking, nomos is law and property, i.e., the part or share of goods. Concretely speaking, nomos is, for example, the chicken in every pot that every peasant living under a good king has on Sunday, the parcel of land every farmer cultivates as his property, and the car every American worker has parked in his garage (327). Compared to this chicken and this car, for sure, one would almost understand the predilection for obscurantism. In the end, not only is there no real place for the subject, but in a geopolitical ontology there is no space for sovereignty either. To the contrary, the suturing of being, law, and space is meant to close the gap that constitutes the fundamental site of the sovereign decision. Schmitt started his lifelong investigation into the principle of legitimacy by positing such a gap. In The Value of the State and the Meaning of the Individual, for example, he asserts that nothing can overcome the hiatus between abstract norms and concrete laws: Between the concrete and the abstract, there lies an insuperable abyss that cannot be bridged in a progressive passage from one to the other. 13 Only the state, in a sovereign decision, can mediate between the two and complete the chain between right, the state, and the individual so as actually to enforce the law. The problem of sovereignty lies precisely in the connection between law and the enforcement of law, between right and the realization of right. As Schmitt writes in Political Theology: The connection of actual power with the legally highest power is the fundamental problem of the concept of sovereignty. 14 With the move toward thinking in terms of concrete order, however, both the strong dualism of the earlier normativist writings and the decisionist mediation by a sovereign power are somehow made superuous, or rather, they are enframed by the supposition of an all-encompassing objective nomos of the earth. Perhaps the nal paradox, then, lies in the fact that any attempt to break with the obscure logic of the nomos, particularly by reinstating the gaps, breaches, and disparities that its deployment is meant to suture, is condemned to go back to the start with the quest for sovereignty. This, too, might be a secret posthumous victory for Schmitt. However that may be, my only hope is that, at the end of this circular path, we do not have to nd ourselves again in the middle of The Nomos of the Earth.
Notes
1 Carl Schmitt, Ex captivitate salus. Expriences des annes 19451947, ed. Andr Doremus (Paris: Vrin, 2003), 161. My reading of Schmitt is deeply inuenced by Montserrat Herrero Lpezs study El nomos y lo poltico: La losofa poltica de Carl Schmitt (Pamplona:

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2 3

4 5

7 8 9

10 11 12 13 14

Ediciones Universidad de Navarra, 1997). This study has the virtue of placing The Nomos of the Earth in the broadest possible context of Schmitts entire oeuvre. Jorge Luis Borges, Deutsches requiem, in El Aleph (Madrid: Alianza, 1995), 103. Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos, 2003), 48. I will frequently rely on the German edition, Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum (Cologne: Greven Verlag, 1950), 18. Page numbers in the body of the text, separated by a slash, refer to the English and the German editions. Martin Heidegger, On Time and Being, trans. Joan Stambaugh (New York: Harper & Row, 1972), 23 (translation modied). Michel Foucault, Nietzsche, Genealogy, History, in Language, Counter-memory, Practice: Selected Essays and Interviews, ed. Donald F. Bouchard (Ithaca, NY: Cornell University Press, 1977), 142. Whether or not he is justied in doing so for Nietzsche, Foucault draws a sharp distinction between the metaphysical concept of origin (Ursprung) and the genealogical concepts of provenance (Herkunft) and inception (Entstehung). Schmitt, as we saw, uses both Ursprung and Anfang. Herrero Lpez is partly mistaken in this regard when she writes that he pursues the Prinzip and not the Anfang, to use the well-known Hegelian distinction (El nomos y lo poltico, 67; see also 131). Foucault, Nietzsche, Genealogy, History, 143. See also the chapter The Retreat and Return of the Origin in Foucaults The Order of Things: An Archaeology of the Human Sciences (New York: Vintage, 1973), 32835. Reiner Schrmann comments on the dierence between the original and the originary origin, and on the dierence between Anfang and Ursprung, in The Origin Is Said in Many Ways, in Heidegger on Being and Acting: From Principles to Anarchy, trans. Christine-Marie Gros (Bloomington: Indiana University Press, 1990), 97151. Schmitt, quoted respectively from Raum und Rom and Glossarium, in Herrero Lpez, El nomos y lo poltico, 5556. Peter Schneider, quoted in Herrero Lpez, 164n133. The German original reads: Recht ist die im Ursprung gegeben Richtigkeit des Seins. Samuel Beckett, Enough, in The Complete Short Prose, 19291989, ed. S. E. Gontarski (New York: Grove, 1995), 54. In French, the text reads: Terre ingrate mais pas totalement. Alain Badiou, The Writing of the Generic, trans. Bruno Bosteels, in On Beckett, ed. Nina Power and Alberto Toscano (Manchester: Clinamen, 2003), 18. Jacques Lacan, Le sminaire, vol. 1, Les crits techniques de Freud, ed. Jacques-Alain Miller (Paris: Seuil, 1975), 16465. Alain Badiou, Petite thorie (restreinte) du sujet, unpublished seminar from March 19, 1997. Carl Schmitt, La valeur de ltat et la signication de lindividu, trans. and ed. Sandrine Baume (Geneva: Droz, 2003), 7879. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, MA: MIT Press, 1985), 18. In German, the text reads: Die Verbindung von faktisch und rechtlich hchster Macht ist das Grundproblem des Souveranittsbegries.