Although Schmitt criticized through decisionism legal normativism ‘from
above’, his growing interest in international law and geopolitics precipitated
a move after 1933 towards an alternative method – concrete-order-thinking –
which attacked normativism and decisionism ‘from below’ (Schmitt 2004b).
This revealed another weakness in normativism as it declared the original
formation of statehood and interstate order a non-jurisprudential problem.
Neither normativism nor decisionism had an answer to the question what
foundational ur-act of legitimacy precedes acts of international legality.
What constitutes territorial order and international law? But any answer
to this question had to revise constitutional law in the direction of
a sociologically and politically expanded notion of jurisprudence as a new
type of juristic thought – differentiated from normativism and decisionism –
which Schmitt referred to as concrete-order-thinking. In this, the term nomos
was designed to fill this deficiency in conventional jurisprudence. For ‘nomos
is precisely the full immediacy of a legal power not mediated by laws; it is a
constitutive historical event – an act of legitimacy, whereby the legality of a
mere law is first made meaningful’ (Schmitt 2003, 73).
What is concrete-order-thinking as a sociologically enhanced jurisprudence
in international law?
6
Schmitt exemplified his paradigmatic turn most clearly
in
The Nomos. It is premised on a single thesis, stating that all legal orders
are concrete, territorial orders, founded by an original, constitutive act of
land-capture. This establishes a primary and radical title to land. Acts of
land-appropriation and distribution, their partition and classification, form
the material matrix that constitutes a
nomos. Schmitt derives the term
nomos – in contradistinction to law as statute (Gesetz) – from the Greek verb
nemein, meaning the tripartite act of appropriating, dividing, and pasturing.
‘
Nomos is the immediate form in which the political and social order of a
people becomes spatially visible – the initial measure and division of pasture-
land, that is, the land-appropriation as well as the concrete order contained in
it and following from it’ (Schmitt 2003, 70). Concrete-order-thinking grounds
legal order in a prior act of soil appropriation, creating a unity of space and
law. Against the prevailing aspatial, ahistorical, and de-politicized legal
positivism in European jurisprudence that conceived of law as an abstract
web of norms, tied together in a seamless hierarchy, ultimately derived from
the
Grundnorm of the constitution to which even the state is subjected,
Schmitt explicitly opts for this brute act of seizure and occupation to argue
the case for the meta-legal origins of any international order, grounding its
law in a material–terrestrial reality. The great land-appropriating powers are
6
For a rich, but ultimately un-critical, exposition of concrete-order-thinking, see Ojakangas
(2006, 149–72).
Fatal attraction: Schmitt’s international theory 193
the historical carriers of international law projects. Legal concepts have
spatial origins. Might generates right.
The rise of the early modern interstate
nomos
This conception of a law-antecedent act of legitimacy came to inform
Schmitt’s interpretation of the history of international law – from the
Discoveries to the
Großraum – for it put the question of the origins of
international spatial and legal order centre stage. For Schmitt, the early
modern interstate order, grounded in the new spatial–political config-
uration of a territorial pluriverse of sovereign absolutist jurisdictions, tied
together and regulated by the rise of the
ius publicum europaeum, con-
stitutes a world-historical achievement
par excellence. For the nomos of
the age of Westphalia combined a multiplicity of domestically autono-
mous and internationally sovereign states with an international-order
facilitating code of international public law, circumscribing external
sovereignty without abrogating it.
How does Schmitt’s concrete-order-thinking explain and periodize the
formation of this interstate order? And how plausible is his account of the
Discoveries, the absolutist state, early modern public law and international
relations and, in particular, his notion of non-discriminatory warfare?
Schmitt vacillates between three poles of explanation – the Discoveries
(1492), the rise of the absolutist state (1648), and English balancing (1713).
In the end, he fails to clarify their interrelation and causal hierarchy. This
explanatory vagueness is compounded by an unsure periodicity and an
untenable idealization of the form and substance of early modern inter-
national relations. The next section clarifies his argument by reconstructing,
in turn, his discussion of the Discoveries, the new post-Conquest global lines,
the rise of the continental absolutist interstate order, and the specificity of
England. This provides a far more complex, inconclusive and, ultimately,
unsatisfactory composite picture than the neo-Schmittian literature allows.
But none of these fragmented causes, even combined, can explain the
nomos-
constituting act of the Discoveries – Schmitt’s
ur-cause – and link it to the rise
of the Westphalian interstate system. The problem of causality extends to the
very core object of Schmitt’s analysis – the European nomos.
The discoveries: geopolitics without social process
For Schmitt, the Discoveries mark the crucial historical moment that
founds the European
nomos, for this original act of land-appropriation,
grounds law in two directions: internally and externally. Internally, the
first order of all ownership and property relations is created by the initial
194
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