The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Carl Schmitt. Translated and Annotated by G. L. Ulmen. As Carl Schmitt lays out in The Nomos of the Earth, the establishment of a jus publicum europaeum that created guidelines for limiting war between European . Reilly, John J. () “Carl Schmitt, The Nomos of the Earth in the International Law Carl Schmitt () was a German jurist who bears.
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Carl Schmitt — was a conservative German legal, constitutional, and political theorist.
Schmitt is often considered to be one of the most important critics of liberalism, parliamentary democracy, and liberal cosmopolitanism. But the value and significance of Schmitt’s work is subject to controversy, mainly due to his intellectual support for and active involvement with National Socialism. Carl Schmitt’s early career as an academic lawyer falls into the last years of the Wilhelmine Empire. See for Schmitt’s life and career: Bendersky ; Balakrishnan ; Mehring But Schmitt wrote his most influential works, as a young professor of constitutional law in Bonn and later in Berlin, during the Weimar-period: Political Theologypresenting Schmitt’s theory of sovereignty, appeared into be followed in by The Crisis of Parliamentary Democracywhich attacked the legitimacy of parliamentary government.
InSchmitt published the first version of his most famous work, The Concept of the Politicaldefending the view that all true politics is based on the distinction between friend and enemy. The culmination of Schmitt’s work in the Weimar period, and arguably his greatest achievement, is the Constitutional Theorywhich systematically applied Schmitt’s political theory to the interpretation of the Weimar constitution.
During the political and constitutional crisis of the later Weimar Republic Schmitt published Legality and Legitimacya clear-sighted analysis of the breakdown of parliamentary government in Germany, as well as The Guardian of the Constitutionwhich argued that the president as the head of the executive, and not a constitutional court, ought to be recognized as the guardian of the constitution.
In these works from the later Weimar period, Schmitt’s declared aim to defend the Weimar constitution is at times barely distinguishable from a call for constitutional revision towards a more authoritarian political framework Dyzenhaus70—85; Berthold ; Kennedy—78; Breuer Though Schmitt had not been a supporter of National Socialism before Hitler came to power, he sided with the Nazis after But Schmitt was ousted from his position of power within legal academia inafter infighting with academic competitors who viewed Schmitt as a turncoat who had converted to Nazism only to advance his career.
There is considerable debate about the causes of Schmitt’s willingness to associate himself with the Nazis. Some authors point to Schmitt’s strong ambition and his opportunistic character but deny ideological affinity Bendersky—; Schwab But a strong case has been made that Schmitt’s anti-liberal jurisprudence, as well as his fervent anti-semitism, disposed him to support the Nazi regime Dyzenhaus85—; Scheuerman Throughout the later Nazi period, Schmitt’s work focused on questions of international law.
The immediate motivation for this turn seems to have been the aim to justify Nazi-expansionism. But Schmitt was interested in the wider question of the foundations of international law, and he was convinced that the turn towards liberal cosmopolitanism in 20th century international law would undermine the conditions of stable and legitimate international legal order.
Schmitt’s theoretical work on the foundations of international law culminated in The Nomos of the Earthwritten in the early ‘s, but not published before Due to his support for and involvement with the Nazi dictatorship, Schmitt was briefly detained and interrogated at the end of the war as a potential defendant in the Nuremberg trials ECS; ANthe legitimacy of which he impugned in a legal brief prepared for the defense of the German industrialist Friedrich Flick IC.
The obstinately unrepentant Schmitt was not allowed to return to an academic job after Mehring— Unsurprisingly, the significance and value of Schmitt’s works is subject to heated controversy Caldwell A group of authors sympathetic to Schmitt argue that Schmitt’s analysis of liberal constitutionalism during the Weimar period is separable from his support for National Socialism and that it constitutes an insightful and important analysis of the political presuppositions of a well-functioning liberal constitutional system Bendersky ; Schwab ; Gottfried ; Kennedy From the left, Schmitt’s work is sometimes taken to illustrate the affinities between a purely economic liberalism and political authoritarianism Mauss ; Cristi The view that the Schmitt of the Weimar period can be read as a defender of liberal order has been questioned by authors who stress the continuity between Schmitt’s conceptions of law, sovereignty, and democracy and fascist ideology Wolin ; Dyzenhaus ; Scheuerman However, engagement with Schmitt is nevertheless considered to be important.
It has been argued that Rawlsian political liberalism is vulnerable to Schmitt’s critique of liberalism due to its unwillingness to base itself explicitly on a liberal conception of the good Dyzenhaus—58 or due to its refusal to recognize the antagonistic nature of politics Mouffe b.
Moreover, Schmitt’s views on sovereignty and emergency powers are often seen as the intellectual basis of contemporary calls for a strong executive power unhampered by constraints of legality Dyzenhaus35—54; Scheuerman ; Posner and Vermeule3— Finally, there are an increasing number of authors who concentrate on particular arguments of Schmitt’s that are seen as worth developing in a systematic context.
Two focal points of recent interest are Schmitt’s theory of popular sovereignty Arato ; Lindahl ; Kalyvas79—; Loughlin—37; Kahn ; Colon-Rios79—; Minkkinen ; Vinx a and his conception of international order Odysseos and Petito ; Slomp ; Legg ; Benhabib, ; Vinx b. Modern liberal constitutions do not acknowledge a bearer of sovereign authority, and modern legal and constitutional theory has often tried to dispense with the concept.
But Schmitt argues, in Political Theologythat such attempts to get rid of sovereignty cannot be successful. In Schmitt’s view, there can be no functioning legal order without a sovereign authority PT 5—35; Dyzenhaus42—51; McCormick—56; Hofmann49—64; Kennedy54—91; Kahn31—61; Croce and Salvatore13— According to Schmitt, liberal constitutionalists typically hold that all legitimate particular acts of state must apply general legal norms, so that people are subject only to the determinate and predictable demands of the law, not to the potentially arbitrary authority of persons PT 18—26; see also CT —96, CPD 33— This view overlooks, Schmitt argues, that general legal norms often fail to provide determinate guidance without considerable interpretation and interstitial legislation PT 29—35; GU 21— In order for the law to become effective, there needs to be an authority that decides how to apply general legal rules to concrete cases and how to deal with problems of contested interpretation or under-determination.
The Nomos of the Earth: In the International Law of the Jus Publicum Europaeum
However, the material content of the law does not itself determine who is to interpret and to apply it. Hence, a sovereign authority prior to the law is needed to decide earh to apply general legal norms to particular cases PT 29— This argument appears to assume that all legal norms are material norms providing substantive grounds of legal decision.
But modern legal systems typically contain norms of competence in addition to material norms. Hence, it seems that the view that all legitimate political authority depends on legal authorization is not as indefensible as Schmitt suggests Kaufmann— The law can determine, for any material tge norm, which person or institution has the competence to interpret and apply it.
Subjects of the law may admittedly have to accept that a final decision might turn out to be binding even though wrong. And in this limited sense, Schmitt is right to appeal to Hobbes’s dictum that it is authority and not truth that makes the law. PT 33—4 But that a legal system, through its norms of competence, provides for the authoritative interpretation of its material legal norms hardly entails that it must contain a sovereign in the traditional understanding of that term.
Schmitt’s implicit reply to this objection claims that the applicability of legal norms presupposes a general condition of social normality. Legal norms, Schmitt argues, cannot be applied to a chaos.
In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency PT 13; GU 44—; Scheuerman ; Hofmann17— If the applicability of material legal norms presupposes a condition of normality, Schmitt assumes, a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.
Hence Schmitt’s famous definition of sovereignty, according to which the sovereign is he who decides on the state of exception: If there is some person or institution, in a given polity, capable of bringing about a total suspension of the law and then to use extra-legal force to normalize the situation, then that person or institution is the sovereign in that polity PT 5.
Any legal order, Schmitt bluntly concludes, is based on a sovereign decision and not on a legal norm PT 10, 12—3. One might reply to this line of thought that it is perfectly possible to establish legal conditions for the declaration of a state of emergency as well as legal constraints on eartu permissible means of dealing with an emergency. Schmitt argues, though, that attempts to legalize the exceptional situation are doomed to failure.
It is impossible to anticipate the nature of future emergencies and to determine in advance what means might be necessary to deal with them.
As a result, the positive law can at best determine who is to decide whether there is an emergency that requires a wholesale suspension of the law. But sdhmitt sovereign decision cannot be guided by existing material law PT 11—2. In Schmitt’s view, it is not even necessary for the law to determine who can take a decision on the exception.
There can be a sovereign authority, in a jurisprudentially relevant sense, even where such an authority is not recognized by positive constitutional law.
All that matters is whether there is a person or institution that possesses the ability, as a matter of fact, to take a decision schmott the exception. If a sovereign, so understood, exists, its authority to suspend the law does not stand in need of positive legal recognition, since the law’s applicability itself depends on a situation of normality secured by the sovereign PT 12—3. What about cases, though, where sovereignty is not just unrecognized in positive law but where there is no one, as a matter of fact, who could successfully take a decision to suspend the law altogether?
Carl Schmitt (Stanford Encyclopedia of Philosophy)
This condition seems to homos in many contemporary western democracies. Perhaps such polities are ill-prepared to deal with radical emergencies.
But it would be implausible to conclude that they do not possess a legal order. Schmitt must be arguing that wherever schmit situation of normality or homogeneity that makes the results of the application of law determinate and predictable is no longer guaranteed by a sovereign, the positive legal system, consisting of material norms and earrth positive norms of competence, can no longer be legitimate Mauss81—; Scheuerman15—37; Hofmann If the sovereign’s decision on the exception is not subject to any material legal constraint, the power to decide on the state of exception is tantamount to the power to decide what should count as a state of exception PT 13; Norris A sovereign’s view on this issue, however, must be responsive to prevailing social attitudes.
If it were not, a sovereign could hardly possess the factual capability to suspend the law and to act successfully against the perceived emergency. To do so, his decision will need to be supported by a sufficiently large and powerful constituency. Nevertheless, the need for sovereign decision will be greatest in a society torn by serious ideological or social conflict.
And if there is no unanimity among social groups as to what situation to perceive as normal or exceptional, the sovereign decision will inevitably have to side with one group’s conception of normality against that of another.
The sovereign creation of a condition of normality, in other words, constitutes a community’s political identity and it is likely to do so through the forcible suppression of those whose conception of normality differs from the sovereign’s D — The question of the legitimacy of law thus turns on the question of the legitimacy of an identity-constituting sovereign exercise of foundational violence. Schmitt admits that the principle of democracy is the only principle of legitimacy that is available as an ideological basis for a contemporary constitution PT esrth CPD 22— If Schmitt’s conception of sovereignty is to be defensible, it must therefore be given a democratic interpretation.
But it is difficult to see how this could be possible. The only candidate for sovereignty in a democratic polity is the popular sovereign, composed of politically equal citizens. A popular sovereign, it seems, cannot be a Schmittian sovereign, as it will only be able to decide under existing constitutional rules that determine how the people as a collective are to form a unified will.
Schmitt prepared the groundwork for a solution to this problem in Dictatorshiphis historical study of the development of the institution of dictatorship McCormick—56; Cristi —25; Kalyvas88— Dictatorial power in its original, Roman form is a formally delegated and time-limited power to defend an already existing republican constitution through the use of extra-legal force D xlii-xliv, A Roman dictator, then, was clearly not a sovereign in Schmitt’s sense of the term.
In the course of modern constitutional history, however, the institution of dictatorship, Schmitt claims, fused with sovereignty, and this fusion related sovereignty to democracy.
The first step towards this fusion, in Schmitt’s account, was the use of commissarial dictatorship in the early modern absolutist state. The absolutist sovereign did possess the sovereign power to decide on the exception, and was thus capable of authorizing commissars to use dictatorial methods in his name.
But the notions of dictatorship and sovereignty were not yet fused. The commissarial dictators of the absolutist sovereign were mere agents of the sovereign and did not themselves possess the power to decide on the exception. The absolutist sovereign, in turn, though he had the power to decide on the exception, was not himself a dictator; first of all since he did not decide under someone else’s but by his own authority, and secondly because he was of course expected to rely on legal governance as his normal mode of operation D 20— But the relation between sovereignty and dictatorship changed in the French revolution.
The revolutionary governments relied heavily on dictatorial action to create a new situation of normality that would allow a new constitution to come into force.
The revolutionary governments, like the absolutist sovereign, claimed the power to decide on the exception, but they did not claim to be sovereign. Rather, they claimed to exercise the authority to decide on the exception in the name of the French people, even while they were ruling the French people by the use of dictatorial methods D — Sovereignty and dictatorship had become fused in the novel institution of sovereign dictatorship: A sovereign dictator is a dictator who does not defend an already existing constitution but attempts to create a new one and who does so not by his own authority but in the name of the people D — Sovereign dictatorship, in Schmitt’s view, is an eminently democratic institution.
It can exist only where it has become possible to if a sovereign decision on the exception in the name of the people. Sovereignty, Schmitt concludes, is not just compatible with democracy but central to it, as it is exercised whenever and wherever a schmitf constitution is founded CT —10, —6; CPD