international law in this epoch had only one axis: the sovereign territorial
state’ (Schmitt 2003, 127). Schmitt equates the generic term ‘state’ with the
absolutist state. It is defined as a concrete phenomenon, characterized by
absolute and secularized sovereignty, legal-administrative centralization and
rationalization, the monopolization of the means of violence, and bounded
territoriality – a unitary state. The
ius inter gentes is predicated on this spatial
structure of mutually exclusive jurisdictions as an interstate law, supplanting
the supra-territorial
ius gentium. Schmitt grounds its genesis not in the
Discoveries, but in the emergence of a new form of sovereignty that trans-
cended and pacified the religious wars, generating a de-theologized and
secular concept of
ultima potestas – absolutism (Schmitt 1995a).
Absolutism referred to a state strong enough to de-politicize and neu-
tralize civil wars domestically. For it was, according to Schmitt, its his-
torical achievement to have carried through and institutionalized the
separation between the private – the world of clashing ultimate validity-
claims – and the public, the sphere of a morally neutered sphere of
raison
d’E´tat, whose overriding interest resides in the security of the state itself
(the governance of the
ius belli ac pacis). And as the absolutist state was
pre-representational or pre-parliamentarian, as it conceived of itself as
legibus absoluta, it provided the ideal-type for Schmitt’s theory of the
‘modern state’, encapsulated in its decisionist nature, that is, the power to
decide by dint of authority and not debate or legal normativity –
‘absolved from law’. Correlatively, as the domestic sphere was ration-
alized, its inter-national flip side was the rationalization of interstate
conflict by means of a non-discriminatory and bracketed concept of war.
But if Schmitt’s account of the rise of the absolutist interstate system is
substantively causally unrelated to the Discoveries – occasional verbal
counter-assertions notwithstanding (Schmitt 2003, 140, 183) – his ana-
lysis proceeds at the level of a de-contextualized interpretation of a
selection of political theorists, eclectically mobilized to construct an ideal-
type of absolutism and the attendant
ius publicum.
10
The corollary is an
idealized, de-sociologized and historiographically discredited politicist
account of absolutism, supplemented by an
a` la lettre acceptance of the
legal normativism in international law, which Schmitt condemned so
unequivocally in relation to the Weimar public law, weakly codified in
le droit public de l’Europe (Koskenniemi 2004, 497). For how could he
reconcile his full and literal embrace of the
ius publicum as an adequate
representation of the praxis of early modern international relations with
10
De-contextualized in the sense of reading Bodin and Hobbes as thinkers of a generic
theory of absolutism, rather than as formulating arguments that responded to and intervened
into spatio-temporally specific socio-political contexts (Wood 1983).
Fatal attraction: Schmitt’s international theory 197
his general rejection of Weimar legal positivism? And how could Schmitt’s
insistence on absolutism as the historical model for a decisionist polity
that gave free rein to the will of rulers in the imposition of domestic law
and order be squared with their purportedly law-abiding disposition in
foreign affairs and the rationalization of military conduct, formalized in
the
ius publicum? This pretence to legality by the Great Powers is char-
acteristically un-Schmittian. Logically speaking, the legal groundlessness
of the subjective decision should have operated in external relations as
much as in internal relations – a conclusion that Schmitt failed to draw.
For absolutist sovereignty, as the revisionist literature in early modern
historiography (Parker 1996; Ertman 1997; Bonney 1999; Potter 2003;
Beik 2005; Gerstenberger 2007; Miller 2008) has demonstrated time
and again, was never de-personalized, politically autonomous, absolute,
or ‘over and above society’.
11
Sovereignty did not belong to the state as a
de-personalized and autonomous sphere of the political, but was a
property of the Crown or the ruling dynastic family – it was personalized.
Sovereignty could never be exercised over and above ‘societal interests’;
rather, absolutism relied on ‘social collaboration’ (Beik 2005) with an
increasingly amorphous ruling class, most notably the regional and court
nobility of both aristocratic and bourgeois origin, including the financiers,
tax-farmers, jurists, and the venal office nobility. This rendered the exercise
of absolute sovereignty dependent on social coalitions and interests: indeed,
re-privatizing its absolutist pretences, as the bombastic court society of
Versailles – clientelism, venality, nepotism, patrimonialism all inclusive –
represented a deeply socialized and non-rationalized picture of the seat of
French sovereignty and state administration. The distinction between the
state as an abstract entity and dynastic sovereignty, which implied divine
kingship and the Crown as the ultimate holder of all land (proprietary
kingship), was not carried through in absolutist France. The deeper
preconditions for this form of sovereignty are anchored in the absence of
the rise of capitalist private property relations in the country-side.
12
11
For the following confer Teschke (2002, 2003, 2006).
12
Koskenniemi’s reading of French absolutism follows too closely Perry Anderson’s (1974).
‘Schmitt was putting his finger on the fact that European statehood did not emerge alone but as
the political form specific to capitalist social relations that presumed a constitutive distinction
between public power, exercised through claims of sovereign jurisdiction (
imperium), and
private power, exercised by private law ownership (property,
dominium), paradigmatically
through the market’ (Koskenniemi 2004, 498). If that was the case, then the
droit public de
l’Europe, rather than codifying an inter-territorial order of exclusive jurisdictions, would have
already contained the tendency towards a concrete-order-transcending liberal ‘spaceless uni-
versalism’ that Schmitt did not associate with the continental interstate civilization, but with
19th Century liberal England.
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