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The Right to War: Hegemonial Geopolitics or Civic

Constitutionalism?
Hauke Brunkhorst

Remoralizing International Law?


A dramatic transformation in the international law and human rights policies of
the United States now seems to be taking place, from the national-interest Real-
politik that marked most of its foreign policy during the postwar period up to
1989 to an ethically-inspired world domestic policy. True, the two options still
exist side by side in the present policies of the Bush administration. Pragmatic
imperial power politics remains the fall-back option of a globally-encompassing,
apocalyptically-charged interventionism of liberalism, human rights, and democ-
ratization.1 Beyond this, the constraints of international law and multilateral
agreements on the only global superpower are much stronger in the economic
than in the political realm.2 But this does nothing to change the fact that the trend
to replacing the formal constraints of international law whenever they contradict
not only US power-political or economic interests but also moral-ethical goals
has been clearly discernible since the Kosovo War at the latest. International
jurists as well as philosophers are increasingly oriented toward:
the moral goal of the global democratization of the world of states;3
principles of justice that unite the well-ordered egalitarian (the northwestern
democracies) and the well-ordered hierarchical societies (the southeastern
periphery) into a community of states and exclude outlaw states;4
when it comes to conflicts beyond state borders, just war theories that either
make the particular ethics of the nation the last instance5 or introduce a general
theory of justice in place of the positive order of international law.6
This development is ambivalent. It is true that it mirrors the growing sensitivity
of international society and the global public sphere to violations of human rights
and popular sovereignty that Kant already saw developing in Europe in the
French Revolution, where a violation of right in one part of the world is felt every-
where.7 But where the remoralization of international relations replaces the
positive validity of international law, it becomes regressive and reactionary. It
is then hardly distinguishable from imperialistic contempt and disregard for inter-
national law. All empires, when they can go no further with positive law, like to
turn to the legitimating resources of morality.8 From a one-sided moralizing
perspective, the formalism of international law then appears as it does to orthodox

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and 350 Main Street, Malden, MA 02148, USA.
The Right to War: Hauke Brunkhorst 513

Marxism, poststructuralism, deconstructionism, legal realism, or critical legal


studies: as an ideology that merely veils undemocratic conditions through the
equality of states and egalitarian norms, which are as blind to political and
economic differences as they are to justitia.9 Whoever invokes humanity wants
to deceive.10 This sentence is outrageous in its aprioristic overgeneralization, as
a totalizing ideology critique (Apel); precisely this makes it so attractive to
deconstructivists, poststructuralists, and orthodox Marxists.11 But who would
deny that it is sometimes correct and that there are cases of stubborn abuse in
which a hegemonial power uses the egalitarian formalism of human rights
so effectively that hardly anyone notices?12 This is what used to be called
ideology.13

Legal vs. Just War: Where Kant and Schmitt Agree


The perspective of Kants theory of international law was entirely different, as far
from a false as it was from a powerless moralism.14 Indeed, more than 200 years
ago Kant looked on the international law of his day as skeptically as Paul Kahn,
Jed Rubenfeld, Michael Walzer, or George Bushs neoconservative advisors on
that of our own. For Kant, international jurists like Grotius, Pufendorf, or Vattel
were sorry comforters.15 But for Kant it was a matter not of less legality in
favor of the morality and ethos of just war, but of (revolutionarily) completing the
legalization of the use of coercive force in international affairs that had begun in
1648 with the Peace of Westphalia. Kant saw the fulfillment of this project in the
constitutionalization of international law. Thus, for Kant, like Schmitt in Nomos
der Erde, it was a matter of overcoming morally-motivated just war through its
legalization. He could have entirely agreed with Schmitts thesis that, though its
legalization in the Westphalian era, European war was limited and tamed for
the first time in history.16 Of course, Schmitt had to deny the ambivalence of this
progress, which came at the considerable price of the restriction of war by natural
law,17 since in his theory of international law before and after 1945 first with
imperial,18 then with self-justifying intent19 he wanted to show that any interna-
tional law that sanctions wars of aggression is a ruse of the axis of evil, which for
Schmitt at that time naturally lay in the West.
In his sharp differentiation of law and morality Kant meets the late Schmitt,
and there is no doubt that, like Schmitt, between just and legal war, Kant would
have taken just war to be the greater evil. For Kant, a moral-ethical war, legiti-
mated by one of the parties on its own, can never be a universal law because
no one can be judge in his own case.20 Morally, Kant moreover assumes com-
pletely unlike Schmitt that every war, whether offensive or defensive, just or
legal, is an absolute evil, and the weighing of evils, including the violation of
human dignity or the killing of innocents, cannot be morally justified.21
What is morally prohibited can, however, be legally permitted under certain
conditions. This is the point on which Kant and Schmitt agree. In order to bridge

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this gap between what is forbidden by morality (and natural law) and what is
allowed by public law, Kant developed his own theory under the heading of a per-
missive law of practical reason.22 The permissive law (lex permissiva) can, in
particular cases having to do with maintaining a lawful condition or overcoming
the state of nature, legally allow what is not morally universalizable under the
categorical imperative:23
(1) The establishment of property through the usurpation of parts of the earths
surface, which originally belonged to everyone (provisional right in the state
of nature).24
(2) The force that overcomes the state of nature in the case of a violation of
provisional right.25
(3) The establishment of law by a ruling class in its own interest so long as it
avoids a fall into the pre-legal state of nature even when it lacks the cover
of popular legitimacy (provisional right in a state of civil disorder).26
(4) Revolutionary force so long as it leads to a new lawful condition and over-
comes the anarchy of revolution (provisional right to revolution).27
(5) Defensive war or war as the negation of an injustice, or as defense against an
attack on members of the federation of peoples (provisional international
law).28
(6) Intervention in the case of failed states.29
Of course, Schmitt would not have agreed with all the points on this (incomplete)
list, and his idealized right to war,30 which allows wars of aggression and duel
wars,31 would have met with Kants total disapproval, since for Kant the duel
was the consumate symbol of the continuing state of nature and its merely provi-
sional legality.32 But the common starting point is initially more important, and
now extremely topical in the deeply divided West.33 For Kant as for Schmitt, only
legal war is just.34
What is current and still valid in Schmitt is first of all to be found in this
commonality, for on the real difference that divides them, Kant proves to be by
far the more contemporary author, while Schmitt has at best stale goods to offer
(Luhmann).35

Where Kant and Schmitt Disagree: The Question of the Constitution


Where they disagree is on the question of the constitutionalization of inter-
national law. Unlike Rubenfeld, Kahn, or Walzer, Schmitt is indeed with Kant of
the opinion that there is or can be an international constitution. But Schmitt and Kant
are diametrically opposed in their understandings of a constitution: Schmitts
is consistently substantive, Kants, formal and procedural. Schmitt distrusts the
letter, text, and the positive, valid legal norm of the constitution. He searches for
deeper foundations and finds them in the historical origin, the revolutionary state
of exception.36 The historical substance of the constitutive existential decision

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The Right to War: Hauke Brunkhorst 515

of a higher subject, be it a religious authority, a prince, a state, a national


community, a movement, or a leader, inescapably lies behind the respective
constitutional law, constitutional contract, or customary law.37 It establishes the
difference between a concrete and an abstract order, the substantive constitution
and formal constitutional law, superpositive legitimacy and positive legality; only
on this basis can the legitimate guardian and the philosophically-inspired consti-
tutional interpreter deduce the correct meaning of the text.38 The law the constitu-
tion produces is regardless of the form of the state only ever repressive,
freedom-restricting law, the constitutionalization of the eternal relation of pro-
tection and obediance.39 Schmitt was never able to free himself from the concept
of law shaped by Hobbes and even more by statist legal positivism.40
This is also the basis of the substantive international law Schmit outlines in
Nomos der Erde. Schmitt identifies two moments that were determining for the
international constitutional law of the jus publicum europaeum since the Peace of
Westphalia, which had been threatened and destroyed by technology, liberalism,
communism, and since Spinozas democratizing of Hobbes41 the Jews.42
The two fundamental constitutional pillars of the jus publicum europaeum are,
first, the comprehensive European spatial order and, second, the general, rec-
ognized economic constitution of liberal constitutionalism, by which the state
or sovereign binds itself and which separates the imperium (the state), where
the sovereign rules over his subjects, from the dominium (stateless society),
where the sovereign leaves subjects to the free play of their powers.43 What is
decisive is the spatial order determined by public law.44 It divides the world
among the rulers of the great European states. It is they who dispose over political
power as well as the fate of their subjects and the freedom their charges are
granted from above.
Schmitts theory of international law begins in the 1930s with the thesis of
non-state Grorume [greater regions] dominated by hegemonial powers, and
was bound to the polemical defense of alien powers from the continent the Nazi
empire claimed for itself.45 After the war Schmitt de-Nazified the theory and
restyled himself as always having warned of the collapse of the state into political
movements and hegemonial Grorume.46 What comes out of this in 1950 is the
nostalgically idealized synthesis of European state equality and global imperial-
ism. Between the European states the egalitarian international law of the Peace of
Westphalia prevailed, transforming war through the equally distributed right to
war (ius ad bellum) and lawful armed conflict (ius in bellum) in legally regu-
lated duels between states.47 But there could be no equality between Europe and
the rest of the world, for among the savage peoples beyond the seas there was no
civilization, no public law, no state nothing the European rulers could recognize
as entitling them to equal rights.48 This gave Europes sovereign princes the
superpositive right to carve up the non-European world into Grorume assigned
to the respective hegemonial land and sea powers, which could be annexed to
their imperia as lawless spaces.49 From the perspective of Nomos der Erde, the

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extra-European world appears as booty.50 This basic inequality between


Europe and pre-political peoples, between inclusion in and exclusion from the jus
publicum europaeum, is for Schmitt the constitutive-existential basic decision on
which the rational-humane51 European civilization of limited war, and the
work of humanity based on the state, was first raised.52

Two Concepts of Law


But Schmitts international constitution is extremely one-sided. It abstracts
entirely from the perspective of citizens subject to the law. In Schmitt they appear
only as subjects in the old sense of sujet, never as subjects of public freedom
who authorize the law and the state. The repressive concept of law ties the consti-
tution from the start to the aim of peace care, protection, obedience and
abstracts from the meaning of law as freedom. The horror of autonomy runs
deep.53 Precisely here lies the difference from Rousseau, Sieys, Kant, Hegel,
Savigny, or von Mohl. These late-eighteenth- and early-nineteenth-century
authors concurred in construing the concept of law from the perspective of the
citizens subject to it and their subjective rights; from this perspective, limited war
which sacrificed their lives and freedom to the duel between gentlemen54
seemed sorry comfort, and the submission of the bare life55 of uncivilized peo-
ples to the European conquerors who, as Kant said in prophetic style, drink
injustice like water56 as a crime against the lawful condition. If, like Kant, one
construes law from the perspective of those subject to it, then the exclusion of
whole regions of the world and their populations as well as wars of aggression are
excluded from the concept of law from the start.
The reason for this is that Kant binds every use of coercion and force to a con-
cept of the constitution that ties all law to the reciprocal coordination of equal
spheres of freedom.57 Now, a constitution bound to this concept of law as freedom-
enabling and freedom-realizing can justify the use of coercive force, where free-
dom is understood as individual as well as democratic self-determination.58 For
Kant, the constitution in a political sense means that those who obey the law
should also act as a unified body of legislators.59 Constitutions are norms organ-
izing the individual exercise of public autonomy.60 In Kant constitution means
what it does in the US Constitution, which first of all encompasses only Articles
I-VII and not the Declaration of Rights (Amendments I-X), which completes
them. Constitutional law for Kant is, as Inge Maus shows, the law organizing a
democratic state61 thus, in the US Constitution, the constitutional law of checks
and balances, or, in Hans Kelsens language, the democratic method of generat-
ing positive law.62
Kant claims that such a constitution is a means of ending all wars.63 Only a
constitution that transforms all law into self-legislation, and thus transforms posi-
tive law from a repressive instrument for keeping the peace into the existence of the
free will,64 can do away with the bellum omnes contra omnes in the interpersonal

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The Right to War: Hauke Brunkhorst 517

as well as the international state of nature. Not peace, but freedom through law is
Kants message, which corresponds to the whole of the western constitutional
tradition and was as present in German Idealism as in early liberalism, though it
was long forgotten and suppressed in Imperial Germany in favor of repressive
concept of law, with after-effects that carried over into the Federal Republic.
What is decisive for Kants argument about international constitutional law
which is to be distinguished from the constitution of a world state65 is the pers-
pective of the democratic constitution of civil society, be it a society of citizens or
a society of republican states and citizens of the world. Like ancient political
theory and unlike Hegel, Jellinek, Arendt, or Schmitt, Kant still identifies the
state with civil society. But unlike in antiquity, Kants state (=civil society) is
nothing other than the positive legal condition: A state (civitas) is the union of a
aggregate of men under rightful laws.66 Thus, for Kant not only does the
state=civitas, but, just as later for Kelsen, the state=law. In Kant, the state
understood in republican terms is just another name for the people or civil
society in distinction from an ethnic community.67 Every subject of the law
has a claim to civil rights by reason of the fundamental constitutional principle of
public autonomy.68 Even if in Kants day, unlike today, to be subject to the law
was still largely identical with submission to the law of the state, in Kant there is
nevertheless no principled argument against a constitution without a state.
Applying Kants complex argument about the constitutionalization of inter-
national law to the present international legal order leads to two important
conclusions.

Constitutionalism as Progress within the Realm of Legalization


First, as for Schmitt, in a legal condition between states there are no more just
wars, only legal ones. Aside from cases of self-defense under international law,
legal wars are no longer the wars of single states or coalitions of states but rather
and here Kant parts ways again from Schmitt wars of the international com-
munity.69 A war of aggression becomes a crime, combatting it, a matter of police
actions.70 The legal condition does not prevent the law from being broken, within
a state or between states, but it allows a reliable distinction between right and
wrong, which secures expectations.71 It does not ensure perpetual peace
which Kant quoted only satirically72 but rather legal peace. This corresponds
to the situation of positive law since the Briand-Kellog Pact at the latest:
Defense against an attack, which has still been permitted since the Kellog Pact,
Gustav Radbruch wrote in 1929 following Kelsen, is not defensive war, since it
sets right against wrong, while war presupposes an opponent equal in status.73
The whole polemic of Schmitts work on international law turns against this
version of legal war, which brands the attacker or just enemy (justus hostis) ready
for a duel as a criminal (hostis injustus) and makes the action against him a sanc-
tion.74 For Schmitt, especially the discriminatory concept of the just war of

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aggression as a crime and the elimination of war as a legal institution


in Kant, Kelsen, and twentieth-century international law is nothing other than
a complete regression to the barbarism of self-justified crusades only this
time without the mitigation of Christian caritass moral appeal to peace and the
weak restriction of Church law, which had still existed in the symbol of every
cross.75
This is empirically false. The Allied war against Germany from 1939 to 1945
was, even according to the categories of Nomos der Erde, a legal defensive war.
Schmitt himself never contested this. Even if, for the sake of argument, one
assumes that the German attack was not illegal and the Briand-Kellog Pact, which
Germany had signed, did not apply, a legal defensive war does not become
merely a morally-motivated, just war. When Schmitt claims that modern inter-
national law, which criminalizes war, is nothing other than the transformation of
criminal law into social pest control,76 this is a transparent deflection of guilt. In
fact, Schmitt himself had been one of the first to preach the Nazi doctrine of
nullum crimen sine poena, thus propagating the transformation of liberal criminal
law into fascist pest control only to turn back after 1945 to the old constitutional
formula nulla peona sine lege.77 But even if it were correct that the Nuremberg
trials which are at issue here retroactively applied new law concerning wars of
aggression, the whole process still remained within the bounds of positive legal-
ity, since retroactive legislation enacted by a competent authority (as the legal
successors to the German Reich, the Allies held the necessary legislative and
judicial powers) is still valid law, i.e., legality and not morality. Legally and his-
torically, what the Western powers did during and after the Second World War
was anything but a self-legitimating, fanatical crusade. There were as in any
legal order grave rights violations and bad law, but no ideologically-motivated
mass terror. Conversely, the crusade-like, unilateral, ideologically-motivated, and
thoroughly self-justified American wars in Vietnam and now in Iraq were clear
violations of international legality. Most cases, however, where international law
was (largely) respected like the 199091 Iraq War, the Afghanistan campaign,
or the Korean War lack the legal as well as the historical features of morally-
motivated crusades.
What weighs more heavily than the empirical evidence, however, is that
Schmitt deliberately overlooks the fact that international laws discrimination
against aggressive war presupposed the historically stabilized transformation of
international law into a positive legal order and, even after the League of Nations,
the Briand-Kellog Pact, the UN Charter, etc., remained within its limits. Only
with the push to positivize the Westphalian order did international law become
alterable and constitutionalizable.78 The rapid evolution of international law
since then represents, far from a remoralization of international relations, nothing
other than the transformation, constitutionalization, and regrounding of the order
of positive international law that had developed since the end of the Thirty Years
War. This includes the constitutional revolution of the twentieth century, which

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The Right to War: Hauke Brunkhorst 519

set a merely imperial international constitution limiting domination on the road


towards a civic international constitution grounding it.79
This constitutional revolution, which is continuing in the twenty-first century,
was prepared by the League of Nations and the Briand-Kellog Pact, and led in the
second half of the last century to an egalitarianization, legalization, and individua-
lization of international law that was as rapid as it was impressive. The fact of
imperial domination, whose global center now lies in the northwest of the globe
and the United States, in no way contradicts this. Indeed, its egalitarianism
always transforms the power of Empire80 back into hegemonial law.81 But even
the hegemon has to live with the normative fact of egalitarian and humanitarian
international law and realize its interests through its egalitarian norms and meth-
ods of generating law at the extremely high penality of destroying the whole
international legal order.82 Domination-based concrete-order thinking is blind to
this dialectic of legal form. Gustav Radbruch already brought this out in the
1920s in a memorable formula: class law, if the internal logic of legal form is
sufficiently realized in a differentiated legal system, is always also class law,
and as such benefits the weak.83 Whether the internal formal logic of contem-
porary international law is effectively and durably in Kant: preremptorily
realized depends on whether the civic constitutionalization of international law is
completed in the global constitutional struggles of the twenty-first century. Today
the policies of the American government do not favor this outcome, but it can still
be voted out of office.

Revolutionary Constitutionalism Beyond State Sovereignty


Second, Kants not only provisional but preremptory84 legal condition
presupposes a democratic constitution that organizes the rule of the ruled and
makes it representable.85 For without such public-legal constitutionalization,
every legal condition remains mere usurpation and in the end as provisional
as merely private law, law in the state of nature.86 After the last fragments of
the presocial natural law on which Kant still relied have melted away, all that
remains for us drifting with a few planks on the sea of practice as the legit-
imating basis of not only the state but also the inter- and supra-state legal condi-
tion is democratic legitimation.87 The twentieth century durably discredited
stateness as the basis of humanity, about which Schmitt still enthused in
1963.88 But this need in no way mean that a non-state concept of the political will
unleash global wars of annihilation by partisans and terrorists from all parts of the
world, as the late Schmitt believed. Not only the concept of the political but also
that of law is freeing itself from the state.89 But non-state law and non-state polit-
ics need not, as Schmitt unlike Kelsen believed, remain unconstitutional. In
the end, the constitution too is freeing itself from the state.90 Just as the state in
a sociological countermove to Hegel and Jellinek is becoming the state of
society, so the constitution is going back to being to the constitution of society.91

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Not limited war, and not a new Groraum order of hegemonial powers, but
democratic constitutionalism is the only alternative to the unilaterally proclaimed
just wars of state and non-state terrorism.
Despite his fixation on a pre-legal concept of the state, Schmitt was astonish-
ingly sensitive to developments pointing beyond statist legal positivism (Laband,
Jellinek). This was tied to his ability, developed early on, to perceive the political
as an independent, dynamic variable, outside the state and beyond the law.
Schmitt did not first work out a theory of hegemonial political domination after
1933 in connection with the imperial machinations of the Third Reich, but very
early perceived constitutional developments beyond the state as a genuinely
modern phenomenon.92 He systematically developed a theory of supranational
and suprastate constitutions in the last part of his 1928 Verfassungslehre [Theory
of the Constitution].93 Using the examples of the American (177888), Swiss
(181548), and German (181566) confederations, he showed that federations of
this kind represent a type of non-state constitution developing alongside and
above the state constitution and to use an expression from the German Constitu-
tional Courts famous and notorious Maastricht decision explode the federation
of states/federal state scheme.94
Federal or confederal constitutions penetrate the member-states with their
legal order and intervene in their sphere of sovereignty, so that they lose their
character as impermeable legal persons.95 The basis of their political independ-
ence and durability96 is a homogeneity that can have its roots in substantial-
historical categories like nationality, religion, or class membership as well as in
formal-legal categories like aristocracy, liberalism, human rights, or (non-ethnic)
democracy.97 And of course Schmitt then resubstantialized these categories by
the priority of the external-political grounding of the federation against a world of
enemies.98 Despite this, the theory of the federal constitution is an enormous
departure from the basic theses of the state-oriented Theory of the Constitution,
above all in terms of the concept, fundamental for Schmitt, of sovereignty. Sover-
eignty is by no means divided, which would contradict its concept, but remains
durably suspended between the federation and the member-states. It is not
decided but rather remains open as long as the federation exists.99 Who is the last
instance for binding decisions can be regulated according to constitutional law
and decided according to procedures.100
As Christoph Schnberger has shown, the paradigmatic traits of federal consti-
tutions are to be found in current variants of postnational and post-state
constitutional regimes like the EU.101 Schmitt himself did not return to them in
his Groraum theory of the 1930s, however, since the basis of the latter is a con-
crete order of imperial domination; the formal character of voluntary federations
as well as the durably open sovereignty between a federation and its members
was no longer compatible with the lawless imperial spaces of the Nazi Reich.
Nevertheless, it is by no means certain that Schmitt really took the federal theory
seriously as a possible alternative to the state or imperial constitution, since he

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The Right to War: Hauke Brunkhorst 521

developed it in the 1920s in the context of a polemic against the League of


Nations, whose federal character he disputed.102 Schmitt only returned to the
theory of federalism in Nomos der Erde in order to defiantly renew this earlier
polemic.103
Beyond that, despite its radical break with the model of the state constitution,
Schmitts post-state, federal constitution remains hegemonial and state-centered.
His orientation toward the repressive concept of law prevents him from perceiv-
ing two decisive differences between the German Confederation of the nineteenth
century and the North American of the eighteenth. While the German Confedera-
tion constitutionally stabilized the hegemony of the Prussian state, the North
American was based on the strict equality of the member-states; this connects it
with Kants republican idea of a federation of peoples as well as with todays
European Union and the fundamental principles and basic rights of contemporary
international constitutional law, though it of course contradicts them in its non-
egalitarian formal and informal decision-making procedures.104 Aside from this,
the German Confederation was far from the people, a repressive, dominating
constitution of a world of princely states, and not, like the North American, at the
same time the constitution of a self-determining citizenry.
The constitution of Kants still insufficient federation of peoples, like the EU
constitution after the Treaty of Rome or that of todays international and human
rights law, are constitutions of a community of states and a community of indi-
vidual legal subjects equipped with subjective rights, be they Kants world citi-
zens with their right to hospitality,105 European citizens with passive, negative,
and active civil rights,106 or the international legal personality of single individu-
als based on human rights in contemporary international law.107 But the evolution
of the postnational constitutional regime into a constitution of citizens presup-
poses a freedom-enabling concept of law. This concept of law remained as
strange to Schmitt his entire life as the American and French Revolutions, which
he could only ever see from the perspective of domination as states of excep-
tion,108 and never from the human rights-based perspective of subjects of domi-
nation, as revolutions.

(Translated by James Ingram)

NOTES

1. Thomas Powers, Tomorrow the World, New York Review of Books 51, no. 4 (March 11,
2004), review of David Frum and Richard Perle, An End to Evil: How to Win the War on Terror.
2. Jed Rubenfeld, Unilateralism and Constitutionalism, in Nolte, ed., American and
European Constitutionalism (appearing 2004), pt. IV.
3. See ibid.; Paul W. Kahn, On Pinochet. A dictators extradition case raises difficult
questions about international law, Boston Review (Feb./March 1999). As a theoretical starting
point, see Thomas Franck, The Emerging Right to Democratic Governance, American Journal of
International Law 86 (1992): 4691.

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522 Constellations Volume 11, Number 4, 2004
4. John Rawls, The Law of Peoples, in S. Shute and S. Hurley, eds., On Human Rights
(New York: Basic, 1993: 4182) and The Law of Peoples (Cambridge, MA: Harvard University
Press, 1999).
5. Michael Walzer, Erklrte Kriege Kriegserklrungen, ed. Otto Kallscheuer (Hamburg:
EVA, 2003) and Just and Unjust Wars (New York: Basic, 1977).
6. Rawls, 50 Years After Hiroshima, Dissent (Summer 1995): 32327.
7. Kant, Perpetual Peace: A Philosophical Sketch, Kant: Political Writings, ed. Hans
Reiss, 2e (Cambridge: Cambridge University Press, 1991), 1078 [tr. mod.]. For Kant the earth as a
political community was still identical to Europe and Europe-wide communication among intellec-
tuals. The rights violations of the European conquerors in the rest of the world, which he perceived
very clearly, were for him a purely European matter.
8. Nico Krisch, Imperial International Law, mss. (2003), 48.
9. Rubenfeld, Unilateralism and Constitutionalism; Walzer, Just and Unjust Wars.
10. Carl Schmitt, The Concept of the Political, tr. George Schwab (Chicago: University of
Chicago Press, 1996 (1963, 1932)), 54.
11. On these currents of totalizing ideology critique, see Karl-Otto Apel, Die Heraus-
forderung der totalen Vernunftkritik und das philosophische Programm der Rationalittstypen,
Concordia 11 (1987): 223, and Diskurs und Verantwortung, 381ff, 393ff.
12. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International
Law 18701960 (Cambridge: Cambridge University Press, 2001), 494ff. Similarly, Nico Kirsch,
Imperial International Law, ms.
13. The locus classicus is Marxs On the Jewish Question, pt. 1.
14. On the onesidedness of Hegels critique of Kants allegedly empty ought, see Herbert
Schndelbach, Hegels praktische Philosophie (Frankfurt: Suhrkamp, 2000), 33ff, 65ff, 220ff.
15. Kant, Perpetual Peace, 103.
16. Schmitt, Der Nomos der Erde (Berlin: Duncker & Humblot, 1988 (1950)), 112.
17. Cf. B. Fassbender, Sovereignty and Constitutionalism in International Law, in Neil
Walker, ed., Sovereignty in Transition (Oxford: Hart, 2003), 119.
18. Schmitt, Die Wendung gengen den diskriminierenden Kriegsbegriff (Berlin: Duncker &
Humblot, 1988 (1938)) and Vlkerrechtliche Groraumordnung und Interventionsverbot fr raum-
fremde Mchte (Berlin: Deutscher Rechtsverlag, 1933).
19. Schmitt, Nomos der Erde and Theorie des Parisanen (Berlin: Duncker & Humblot, 2002
(1963)).
20. Kant, Kritik der praktischen Vernunft, in: Werke VII, Frankfurt: Suhrkamp 1977, 51, and
Die Religion innerhalb der Grenzen der bloen Vernunft, in: Werke VIII, Frankfurt: Suhrkamp
1977, 756, FN.
21. Kant, The Contest of the Faculties, 187 (destroyer of everything good) and Meta-
physics of Morals, ed. and tr. Mary Gregor (Cambridge: Cambridge University Press, 1996), 123
(There shall be no war is an irresistible veto of moral-practical reason).
22. Reinhard Brandt, Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants Rechtsle-
hre, in Brandt, ed., Rechtsphilosophie der Aufklrung (Berlin: de Gruyter, 1982), 248.
23. Kant, Metaphysics of Morals, 2, 6, 8, 16, 42, and 44; Brandt, Das Erlaubnisgesetz;
Gerhard Beestermller, Die Vlkerbundidee (Stuttgart: Kohlhammer, 1995), 84ff.
24. Kant, Metaphysics of Morals, 2, 6, and 16.
25. Ibid., 8, 42, and 44.
26. Kant, Perpetual Peace, 118. This holds even for a despotic constitution insofar as it
prevents a relapse into the anarchic state of nature. This is highly topical, since Saddams barbaric
regime was still in a position to prevent the pre-legal condition of a failed state, which the present
occupying powers have very clearly failed to do.
27. Ibid. Successful revolution as an example of a permissive law of reason (118n) follows
from the prohibition on counterrevolution: If, however, a more lawful constitution were attained
by unlawful means, i.e. by a violent revolution resulting from a previous bad constitution, it would
then no longer permissible to lead the people back to the original one (118).
28. Kant, Metaphysics of Morals, 56, 59, 60; G. Beestermller, Die Vlkerbundidee, 51ff, 68ff.

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The Right to War: Hauke Brunkhorst 523
29. Kant, Toward Perpetual Peace, 96 (anarchy).
30. Schmitt, Nomos der Erde, 164.
31. Ibid., 113ff, 284, and Theorie des Partisanen (Berlin: Duncker & Humblot 2002 (1963)),
44, 56.
32. Kant, Metaphysics of Morals, 95f and Nachla, reflection 7856: The duel is a crimen
against the whole state; R. Brandt, Kants Forderung der Todesstrafe bei Duell- und Kindesmord,
in H. Brunkhorst and P. Niesen, eds., Das Recht der Republik (FS Maus) (Frankfurt: Suhrkamp,
1999), 26887.
33. Jrgen Habermas, Der gespaltene Westen (Frankfurt: Suhrkamp, 2004).
34. See, without direct reference to Kant and Schmitt, Ulrich K. Preu, Zwischen Legalitt
und Gerechtigkeit, Bltter fr deutsche und internationale Politik 7 (1999): 828.
35. Luhmann credited Schmitt with an unsurpassed sense for stale goods [berholtes]. Die
Politik der Gesellschaft (Frankfurt: Suhrkamp, 2000), 334.
36. Schmitt, Politische Theologie (Berlin: Duncker & Humblot, 1990 (1922)).
37. Schmitt, Verfassungslehre (Berlin: Duncker & Humblot, 1989 (1928)), 20ff, here: 23.
38. On Weimar, see ibid., 23f; Schmitt, Legalitt und Legitimitt (Berlin: Duncker &
Humblot, 1968 (1932)). For a thorough critique of his method, see Oliver Lepsius, Die gegensatza-
ufhebende Begriffsbildung (Munich: Beck, 1994).
39. Schmitt, Concept of the Political, 52.
40. Care, protection, obedience this owes more to Paul Labands concept of law, deformed
by domination, than to the liberal contract theory, which Schmitt consistently leaves out of his inter-
pretation of Hobbes. Rule, according to Laband, is the right to command the actions, omissions,
and efforts of free people and to force them to follow them. Laband, Das Staatsrecht des deutschen
Reiches, vol. I (1911), 68. For criticism, see Hans Kelsen, Das Problem der Souvernitt und die
Theorie des Vlkerrechts, 2e (Aalen: Scientia, 1960 (1928)), 67ff. On the practical history of statist
legal positivism in the Weimar Republic, see Hauke Brunkhorst, Der lange Schatten des Staatswil-
lenspositivismus, Leviathan 3 (2003): 36281. On the concept in Schmitt, see Christoph Schn-
berger, Staatlich und Politisch Der Begriff des Staates im Begriff des Politischen, in Reinhard
Mehring, ed., Carl Schmitt Der Begriff des Politischen. Ein kooperativer Kommentar (Berlin:
Akademie, 2003), 2144; and in imperial Germany, see C. Schnberger, Das Parlament im Anstalt-
sstaat (Frankfurt: Klostermann, 1997).
41. Schmitt, Der Leviathan (Cologne: Hohenheim, 1982), 86ff.
42. See R. Gross, Carl Schmitt und die Juden.
43. Schmitt, Nomos der Erde, 169f, 175, 181.
44. Ibid., 169.
45. Schmitt, Vlkerrechtliche Groraumordnung, Positionen und Begriffe (Berlin: Duncker &
Humblot, 1988), 162ff (Imperialismus (1932)), 271ff (Neutralisierungen (1939)), 295ff
(Groraum (1939)), 303ff (Reichsbegriff (1939)), and Verfassungsrechtliche Aufstze (Berlin:
Duncker & Humblot, 1985), 375ff (Staat als konkreter Begriff (1941)).
46. This is the function of the 1963 Foreword to the Concept of the Political: The epoch of
the state is now coming to an end. We will say nothing more about this. (Begriff des Politischen,
10; not included in the English edition). The author may well say nothing more about this because
he had said nothing about it in 1932, while the distinction between the political and the state,
contested at the time, did nothing to alter the books thoroughgoing statism.
47. Schmitt, Nomos der Erde, 164, 158.
48. Ibid., 62ff. Beyond the European line of friendship, the Pascalian meridian, civilization
ends and the barbarism of the state of nature, in which man encounters man as a wild animal,
begins (64). The agonistic tests of power of Christian princes is replaced by the barren chaos of
annihilation (68). Only the strong arm of the hegemon can create order here through an elastic law
of decree (161ff; 295ff).
49. Schmitt, Nomos der Erde, 54ff.
50. Max Horkheimer, Zur Kritik der instrumentellen Vernunft, Kritische Theorie der
Gesellschaft III (Frankfurt: Raubdruck, 1968), 270.
51. Schmitt, Theorie des Partisanen, 42.

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524 Constellations Volume 11, Number 4, 2004
52. Ibid., 37.
53. Habermas, The Horrors of Autonomy: Carl Schmitt in English, The New Conservatism:
Cultural Criticism and the Historians Debate, tr. Shierry Weber Nicholsen (Cambridge, MA: MIT
Press, 1989).
54. Schmitt, Theorie des Partisanen, 56.
55. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, tr. Daniel Heller-Roazen
(Stanford: Stanford University Press, 1998).
56. Kant, Toward Perpetual Peace, 107 [tr. mod.].
57. Kant, Metaphysics of Morals, Introduction B.
58. On the latter, see Christoph Mllers, Gewaltengliederung. Legitimation und Dogmatik im
nationalen und bernationalen Rechtsvergleich, unpubl. habilitation thesis (Heidelberg 2003), 25ff.
Similarly, see the thesis of the co-originality of private and public autonomy in Habermas, Between
Facts and Norms, tr. William Rehg (Cambridge, MA: MIT Press, 1996), ch. 3.1.
59. Kant, The Contest of the Faculties, 187.
60. A republican constitution declares my external and rightful freedom . . . to obey no
external laws except those to which I have been able to give my own consent. Kant, Perpetual
Peace, 99.
61. I. Maus, Zur Aufklrung der Demokratietheorie (Frankfurt: Suhrkamp, 1992).
62. H. Kelsen, Allgemeine Staatslehre (Berlin: Springer, 1925), 320ff.
63. Kant, The Contest of the Faculties, 187.
64. Hegel, Elements of the Philosophy of Right, 4. (The legal system is the realm of realized
freedom.)
65. Kant by no means rejects a world state because it would be despotic. Only a global
monarchy would be, not a global republic. It is an ideal to be taken seriously, and the federation of
peoples made possible by citizens of the world is its surrogate in a world in which a world republic
is not (yet) realizable (Toward Perpetual Peace). If we consider that Kant understood the political
world as the European state-system of his time, this ideal now seems to be to a large extent
European reality.
66. Kant, Metaphysics of Morals, 45.
67. Ibid., 466.
68. Kant, Contest of the Faculties, 187.
69. On this concept, see Christian Tomuschat, Die internationale Gemeinschaft, Archiv des
Vlkerrechts 1, no. 7 (1995): 120; for a comprehensive treatment, see Andreas L. Paulus, Die
internationale Gemeinschaft im Vlkerrecht (Munich: Beck, 2001).
70. H. Brunkhorst, Paradigmenwechsel im Vlkerrecht? Lehren aus Bosnien, in M. Lutz-
Bachmann and J. Bohman, eds., Frieden durch Recht. Kants Friedensidee und das Problem einer
neuen Weltordnung (Frankfurt: Suhrkamp, 1996), 14069.
71. Luhmann, Rechtssoziologie (Opladen: Westdeutscher Verlag, 1987), 99, 105, and Das
Recht der Gesellschaft (Frankfurt: Suhrkamp, 1992), 126, 131f, 152.
72. Kant, Perpetual Peace, 93.
73. Gustav Radbruch, Rechtsphilosophie (Stuttgart: Kochler, 1950), 308.
74. Cf. H. Kelsen, Peace through Law (Chapel Hill: University of North Carolina Press,
1944), 71.
75. Schmitt, Nomos der Erde, 92ff, 140ff.
76. Ibid., 95.
77. Schmitt, Nationalsozialismus und Rechtstaat, Juristische Wochenschrift 93 (1934): 714.
78. On the internal connection between the positivization (alterability) and constitutionaliza-
tion of law, see: Luhmann, Verfassung als evolutionre Errungenschaft, Rechtshistorisches
Journal 9 (1990): 176220 and Habermas, Between Facts and Norms, chs. 2, 3.3, and 4. On the
progressive roll of the Peace of Westphalia, see B. Fassbender, Die verfassungs- und vlkerrechts-
geschichtliche Bedeutung des Westflischen Friedens von 1648, in Ingo Erberich et al., eds.,
Frieden und Recht (Mnster: Boorberg, 1998), 952; relativizing, with an emphasis on the nine-
teenth century (the Vienna Congress), see Heinhard Steiger, Remarks Concerning the Normative
Structure of a Modern World Order in a Historical Perspective, in Thomas Gro, ed., Legal

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The Right to War: Hauke Brunkhorst 525
Scholarship in International and Comparative Law (Frankfurt: Lang), 79f (with literature review)
and Frieden durch Institution. Frieden und Vlkerbund bei Kant und danach, in M. Lutz-
Bachmann and J. Boman, Frieden durch Recht, 14069.
79. On the distinction between the two types of constitutions, see C. Mllers, Verfassungsge-
bende Gewalt Verfassung Konstitutionalisierung. Begriffe der Verfassung in Europa, in Armin
v. Bogdandy, ed., Europisches Verfassungsrecht (Berlin: Springer, 2003), 156; for an early
discussion of the domination-based character of international law, see Kelsen, Das Problem der
Souvernitt, 102ff; on the UN Constitution: Bardo Fassbender, The United Nations Charter as
Constitution of the International Community, Columbia Journal of Transnational Law 3 (1998):
529619.
80. Michael Hardt and Toni Negri, Empire (Cambridge, MA: Harvard University Press,
1999). The strength of this book is the construction of Empire as a complex political-legal-eco-
nomic network that avoids the concretism of old, orthodox Marxist theories of imperialism and US
imperialism. Its weakness is its mere invocation of a counterpower in the unclear and contradictory
concept of the multitude.
81. H. Brunkhorst, Solidaritt. Von der Brgerfreundschaft zur globalen Rechtsgenossen-
schaft (Frankfurt: Suhrkamp, 2002; English translation forthcoming from MIT Press, 2004), ch. III:
171ff.
82. N. Krisch, Imperial International Law.
83. Radbruch, Rechtsphilosophie (Stuttgart: Kochler, 1950), 290.
84. Kant, Metaphysics of Morals, 15.
85. Christiph Mllers, Der parlamentarische Bundesstaat Das vergessene Spannungsver-
hltnis von Parlament, Demokratie und Bundesstaat, Fderalismus Auflsung oder Zukunft der
Staatlichkeit? (Munich: Boorberg, 1997), 97.
86. Maus, Zur Aufklrung der Demokratietheorie.
87. Similarly, see Martin Kriele, Die demokratische Weltrevolution, ARSP 44 suppl.
(1991): 207; Helmut Willke, Heterotopia (Frankfurt: Suhrkamp, 2003), 123f. See also Habermas,
Between Facts and Norms; Maus, Zur Aufklrung der Demokratietheorie.
88. Schmitt, Theorie des Partisanen, 37.
89. On the lex mercatoria, see Gunther Teubner, ed., Global Law Without a State (Aldershot:
Dartmouth, 1997); on international law, see Andreas Fischer-Lescano, Globalverfassung. Die
Geltungsbegrndung der Menschenrechte im postmodernen ius gentium (Weilerswist: Velbrck
Wissenschaft, 2004).
90. H. Brunkhorst, Demokratie in der globalen Rechtsgenossenschaft. Einige berlegungen
zur poststaatlichen Verfassung der Weltgesellschaft, Zeitschrift fr Soziologie. Sonderheft 1: Welt-
gesellschaft (2004), Verfassung ohne Staat? Das Schicksal der Demokratie in der europischen
Rechtsgenossenschaft, Leviathan 4 (2002): 53043, and Globalising Democracy Without a State:
Weak Public, Strong Public, Global Constitutionalism, Millenium: Journal of International Studies
31, no. 3 (2002): 67590.
91. And also international law: see Stefan Oeter, International Law and General Systems
Theory, German Yearbook of International Law 44 (2001): 7296.
92. Above all: Schmitt, Die Kernfrage des Vlkerbunds (Berlin, 1926).
93. Schmitt, Verfassungslehre, 363ff; see Heinhard Steiger, Staatlichkeit und berstaatli-
chkeit (Berlin: Kunckler & Humblot, 1966); Olivier Beaud, La notion de pacte fdratif, in
J.-F. Krvegan and J. Mohnhaupt, eds., Gesellschaftliche Freiheit und vertragliche Bindung in
Rechtsgeschichte und Philosophie (1999): 197ff; Christoph Schnberger, Die Europische Union
als Bund, Archiv des ffentlichen Rechts 129, no. 1 (2004): 81120.
94. Ibid., 88ff.
95. Schmitt, Verfassungslehre, 371, 381 (in a federation states cease standing against one
another as impentrable, impermeable objects, closed off from the outside), 383. Kelsen, of course,
radically criticized the impermeability thesis, relativized it in light of international law, and empha-
sized coordination as against hierarchy in the case of federal states. Kelsen, Das Problem der
Souvernitt and Allgemeine Staatslehre, 200.
96. Schmitt, Verfassungslehre, 367.

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526 Constellations Volume 11, Number 4, 2004
97. Ibid., 376.
98. Ibid., 377f.
99. Ibid., 373, 378.
100. Ibid., 386f.
101. Schnberger, Die Europische Union als Bund, 98ff.
102. Schmitt, Verfassungslehre, 380, 384.
103. Schmitt, Nomos der Erde, 214, 231.
104. H. Brunkhorst, A Polity without a State? European constitutionalism between evolution
and revolution, in Eriksen, Fossum, and Menendez, eds., On the European Constitution (London:
Routledge, 2004).
105. Kant, Perpetual Peace, 105f.
106. EUT, art. 6, para. 1, 2; ECT, art. 2, 12, 13, 1722, 144, 255; para.3, title III.
107. Juliane Kokott, Der Schutz der Menschenrechte im Vlkerrecht, in H. Brunkhorst,
W.R. Khler, and M. Lutz-Bachmann, eds., Rechte auf Menschenrechte (Frankfurt: Suhrkamp,
1999), 177ff, 182f; A. Fischer-Lescano, Globalisierung der Menschenrechte, Bltter fr deutsche
und internationale Politik 10, no. 2: 123644.
108. Insofar as he takes over Schmitts concept of the state of exception, the freedom-
constituting meaning of law produced by equals escapes Giorgio Agamben, rendering his funda-
mentalist critique of law as consistent as it is false. Agamben, Ausnahmezustand (Frankfurt:
Suhrkamp, 2004).

Hauke Brunkhorst is University Professor of Sociology at Flensburg Univer-


sity, Germany. He is the author of Solidarity: From Civic Friendship to Global
Legal Community (2005).

2004 Blackwell Publishing Ltd.

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