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The Nomos of the Earth in the International Law of the Jus Publicum Europaeum

Carl Schmitt

1 2003
Volume 9, Number 1


Summer 2003; Volume 9.2

Can Liberty Limit War?

The Nomos of the Earth in the International Law of the Jus Publicum Europaeum by Carl Schmitt

Translated by G.L. Ulmen, Telos Press, 2003, 372 pgs.

Carl Schmitt offers a fundamental criticism of a way of thinking about politics and power. If he is right, some libertarians, among many others, have fallen victim to a radically misconceived view of political action, especially as regards war. I do not think that Schmitt is right, but his profound work requires serious attention. Nomos of the Earth, a translation of a book first published in 1950, is the most comprehensive account of Schmitt's thought, as applied to international relations. (Professor Ulmen has included several supplementary articles by Schmitt in this translation, as well as very helpful notes.)

Schmitt identified and criticized a pattern of thought about war. It is often asserted that because war is a terrible thing, involving mass killing, it must either be done away with altogether or restricted by rigid rules of justice. Libertarians fall into this pattern. We would say that according to the nonaggression principle, the use of force is justified only in response to force, or a threat of force, directed against one's rights, as characterized by libertarian theory. The theory does not change when nations enter the scene. A state can justifiably engage in war only if another country has violated libertarian rights.

What is the matter with that? If Schmitt opposes limits to war, is he not simply expressing his own admiration for violent struggle? Notoriously, Schmitt supported the Nazis, principally during the years 1933–1936, although he had earlier opposed them. Is the profound criticism of which I have spoken simply an erudite version of fascist apologetics?

I do not think so. We can see what Schmitt has in mind by imagining how he would reply to the libertarian view sketched above. What happens if a country does not follow the dictates that libertarian theory prescribes? May other nations then take up arms against it, in an effort to "enforce the law of nature," in Locke's phrase? An example will bring home the relevance of Schmitt's question. The regime of Saddam Hussein has undoubtedly violated the libertarian rights of some of the residents of Iraq. May the United States then justifiably wage war against it?

Undue emphasis on rights and law, Schmitt feared, would lead to perpetual war to enforce the legal order that supposed aggressors had violated. But what then is the alternative? Must one abandon all pretense of justification for war, and fight as one pleases? Do we face a choice between abstract principles that lead to war or the outright embrace of militarism?

Schmitt thought that there was an escape from this dilemma. A group of nations could "bracket" war. The group in question would not set up a system of rules that branded as criminal those who violated them: to do so generates the problem just described. Instead, the group, recognizing that nations often engage in armed struggle, would follow concrete practices that limited the wars that did arise.

And this is no mere hypothetical. Schmitt holds that twice during the history of Europe, an order of this sort has been established. During the Middle Ages, "[t]he encompassing unity of the international law of . . . Europe was called respublica Christiana [Christian republic] and populus Christianus [Christian people]. It had definite orders and orientations. . . . The essential point is that, within the Christian sphere, wars among Christian princes were bracketed wars. They were distinguished from wars against non-Christian princes and peoples. These internal, bracketed wars did not negate the unity of the respublica Christiana. . . . This means that they did not abolish or negate this total order" (pp. 58–59).

As always for Schmitt, abstract rules are the enemy. In the medieval order just described, "Peace . . . was not a free-floating, normative, general concept, but, rather, one oriented concretely to the peace of the empire, the territorial ruler, of the church, of the city, of the castle, of the marketplace, of the local juridical assembly" (p. 59).

We now can grasp Schmitt's key thought. Since the nations that constitute the order follow concrete practices that regulate when wars take place and how they are to be conducted, they avoid the danger of constant resort to war, in pursuit of abstract principle.

Schmitt devotes most of his attention in the book to the order of European nations that prevailed from the sixteenth to the twentieth centuries. Here once more the key to all mysteries is to avoid abstract rules that mandate perpetual war to enforce them. "The formal reference point for determining just war no longer was the church's authority in international law, but rather the equal sovereignty of states. . . . Any war between states, between equal sovereigns, was legitimate. Given this juridical formalization, a rationalization and humanization—a bracketing—of war was achieved for 200 years" (p. 121).

Even a reader sympathetic to Schmitt will likely consider his claim extreme. Is it not paradoxical to think that war can be limited by throwing out altogether the notion of just war? Schmitt is not deterred by the paradox and relentlessly presses his cases against "theological" attempts to establish rules for just war. "A true jurist of this transitional period [to the order of modern Europe], Gentili, formulated the battle cry. . . . Silete theologi in munere alieno! . . . [figuratively: Theologians should mind their own business!]" (p. 121).

But has Schmitt correctly portrayed the historical era he discusses? Did not Francisco de Vitoria establish explicit rules not only for the conduct of war (jus in bello) but also for the legitimacy of engaging in war (jus ad bellum)?

Schmitt stands ready with his counter. Vitoria did not formulate abstract rules intended to govern all nations. Rather, he wrote for a concrete political order, governed by Christianity. Vitoria did not accept the modern assumption that at most one side in a war can be acting with justice. The opponent on this view counts as a criminal rather than an equal sovereign. "For this reason alone, the modern distinction between just and unjust war lacks any relation to medieval scholastic doctrine and to Vitoria" (p. 122).

Nomos of the Earth follows many byways, as Schmitt again and again manifests his extraordinary learning; and one of these is relevant here. Schmitt ascribes the common view that Vitoria was an advocate of modern just-war theory to a campaign of historical propaganda, led by jurists who wanted to make aggressive war a criminal offense. "James Brown Scott, the world-renowned American jurist . . . Secretary of the Carnegie Endowment for International Peace . . . dedicated himself to becoming the official exponent of Vitoria's fame. Andrew Carnegie, in his December 14, 1910, letter establishing the Endowment, characterized war as essentially criminal . . . of course, without citing any theologians. Scott, however, found Spanish theologians to be a great resource" (pp. 118–19).

One must acknowledge the strength of Schmitt's case. The pursuit of abstract rules can indeed result in "perpetual war for perpetual peace." But I venture to suggest that Schmitt goes too far. If all attempts to assess the justice of wars by sovereign states are dismissed as theological and abstract, have we not abandoned altogether the cause of peaceful relations among states? Schmitt asserts that the "First World War began in August 1914 as a European state war in the old style. The warring powers mutually considered themselves to be equally legitimate and sovereign states. . . . Aggression was not yet a concept of traditional European international law" (p. 259). If he is right, does not the traditional European state-system have a good deal to answer for? The old order, it appears, was capable of producing a war of appalling death and destruction.

World War I threatens Schmitt's edifice, but it does not destroy it. He is in his element with a brilliant analysis of the treaties and diplomacy of post-World War I Europe. The League of Nations, in particular, arouses Schmitt's fury. It exemplified the sort of pernicious abstraction that threatened to unleash continual violence. "In Geneva, however, there was much talk about the proscription and abolition of war, but none about a spatial bracketing of war. On the contrary, the destruction of neutrality led to the spatial chaos of a global world war and to the dissolution of 'peace' into ideological demands for intervention lacking any spatial concreteness or structure . . . the vigorous attempt to make aggression a crime in international law . . . came to naught" (p. 246).

Schmitt points out that the victorious powers after World War I sought to charge Germany with the crime of aggression. No longer was war an accepted measure that a sovereign state might undertake; now, if waged aggressively, it was a crime. If so, nations could not with propriety remain neutral. An attempt to do so would be the equivalent of someone within a state declaring his neutrality between a criminal and the police. The effort to criminalize war would thus lead to its extension.

How should libertarians respond to Schmitt's criticism of abstractions? Has he located a fatal flaw in the libertarian view? If we think that force is justified only in response to a violation of libertarian rights, we seem trapped by Schmitt's argument. Will not libertarians be tempted to view aggressor nations as criminals? If so, is libertarianism another version of perpetual war for perpetual peace?

I think that libertarians have an escape. If one thinks that force is justifiable only as a response to a violation of libertarian rights, it does not at all follow that one is committed to intervening whenever such a violation takes place. A libertarian is under no necessity to enforce the law of nature, even if he has a Lockean right to do so. The libertarian can reject the punishment of nations that "aggress," for precisely the reasons that Schmitt has so ably set forward. Here, for once, an abstract principle need not lead to the consequences that Schmitt feared.

Murray Rothbard adopted exactly the position I have just mentioned. In spite of his firm commitment to the nonaggression principle, his criticisms of collective security and interventionism parallel those of Schmitt. In For a New Liberty, e.g., he writes: "But 'aggression' only makes sense on the individual Smith-Jones level, as does the very term 'police action.' These terms make no sense whatever on an inter-State level."

If libertarianism of this kind escapes Schmitt's strictures, a further question arises: is it preferable to the system of European order that Schmitt has described? An advantage of the libertarian view is that it avoids the drastic step of viewing all wars undertaken by sovereign states as just wars. Instead, it strictly limits the occasions on which a state may undertake military action. The reason that the abstract principles that Schmitt condemns led to war lies in the content of these principles, not in their abstract character. If we do not want war, let us adopt principles that curtail it. Schmitt mocks Charles Journet, who contended that "if the definition of just war provided by Saint Thomas Aquinas . . . is taken seriously, one probably can count the number of actual and completely just wars on one's fingers," (p. 58, n. 4) but libertarians who follow Rothbard will applaud him.1  

1 The book by Cardinal Journet that Schmitt cites is available in English translation (Charles Journet, The Church of the Word Incarnate, vol. 1 [Kansas City: Sheed and Ward, 1955]). The relevant discussion, which I highly recommend, is on pp. 304–30.

 

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