Legal materials never offer neat "containers into which the judge deposits a particular act. Judges, Schmitt argues, should ask themselves how other legal actors would likely interpret the always-open-ended rules at hand: "a judicial decision is correct today when it can be assumed that another judge would have decided in the same way. In , Schmitt alluded to "the empirical type of the modern expertly-trained jurist," in other words, the "normal" judicial professional of Schmitt's day. In his earliest writing, then, Schmitt rejected the Enlightenment view that political power could be restrained through a system of legal norms possessing the virtues of generality, clarity, prospectiveness, and stability.
Schmitt, in short, relocated the quest for determinate answers to legal questions from the rules themselves to the activities of judicial decision-makers. He thus anticipated the now nearly universal skepticism about the possibility of assuring certainty and integrity in the law by the mere "application" of legal rules.
Carl Schmitt - Wikipedia
Like Schmitt, they have been busily formulating answers to what is widely described in recent jurisprudence as the "crisis of legal determinacy. In addition to identifying this problem, Schmitt's work provides a series of warning signs for those who aim to tackle its implications. Over the course of his career, Schmitt systematically sketched out a rigorously anti-liberal answer to the "crisis of legal determinacy," with horrifying results.
Within the legal academy, many scholars who today delight in this "crisis" naively assume that such celebration is the first step towards progressive political and social reform. In Schmitt's mature works, regularity and predictability in legal decision-making required a "common orientation" of judicial actors, and that orientation could only be achieved on a resolutely post-Enlightenment basis—by rejecting the universalistic and egalitarian moral impulses underlying the ideal of rule of law.
The Nazi purges of social democrats and Jews from the courts—ardently endorsed by Schmitt in many publications directed at both popular and academic audiences—meshed with his own theoretical quest to salvage legal determinacy. Schmitt enthusiastically defended the ethnic cleansing of the German courts by declaring:.
It is an epistemological verity that only those are capable of seeing the facts [of a legal case] the right way, listening to statements rightly, understanding words correctly and evaluating impressions of persons and events rightly, if they are participants in a racially determined type [artbestimmsten Weise] of legal community to which they existentially belong.
In this line of inquiry, the liberal quest to limit state power by legal means was inherently "Jewish" in spirit, since Jews naturally evinced an instinctive hostility to state power because of their historic lack of a state and country of their own. Just as judicial action involves discretionary power unregulated by the legal materials at hand, constitutions—including liberal constitutions—presuppose a political decision that can never be properly tamed by liberal legal formalities. That is, every novel constitutional system is established on the base of unharnessed power that, particularly from the perspective of the previous regime, represents the height of political willfulness and revolutionary illegality.
Behind the cheery facade of constitutional government lurks the inextinguishable specter of legally unregulated power.
Power before law : that is Schmitt's guiding idea. In modern times, this power-prior-to-law is embodied in popular constitution-making power, seen since the French Revolution as the only legitimate source of political authority. The conventional story is that this untamed constitution-making power raises its head only briefly, in moments of revolutionary politics. But Schmitt argued that it is lasting—that naked power haunts the everyday operations of established constitutional government.
Where might we capture a glimmer of its persistent activities? Scholars have long debated Schmitt's answer to this question. By , however, he probably believed that, in Germany, the executive embodied the popular power at the basis of Germany's version of liberal constitutionalism. He thought that the Weimar system assigned substantial discretionary power to the Federal President, the reactionary and unabashedly anti-democratic Paul von Hindenburg.
In Schmitt's view, Hindenburg possessed direct popular authorization to legislate well beyond the scope of normal parliamentary mechanisms. Between , Schmitt thus devoted a substantial portion of his impressive intellectual energy to justifying a dramatic expansion of the constitutionally dubious emergency powers on which a series of increasingly authoritarian right-wing governments relied. Legal theorists need to separate the wheat from the chaff here.
Or is it unmitigated popular power that underlies the constitution? The sad history of modern revolutionary politics provides many examples of Schmitt's observation that revolutionary violence inevitably poisons the workings of the "ordinary" system of lawmaking. Unfortunately, his theory also dogmatically discounts the possibility of radical political change—in which violence and arbitrary power play at most a peripheral role.
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Does it even make sense to see the anti-dictatorial movements that have swept Eastern Europe and Southern and Latin America in recent decades as expressions of lawless power? Similarly, Schmitt's numerous writings accurately diagnose the extreme interpretative ambiguity of international law, and sometimes perceptively describe how great powers—especially the United States—manipulate pliable legal norms to serve imperialist purposes.
For example, he was right to worry about the tendency of liberal states to employ humanitarian rhetoric on behalf of foreign policy goals of dubious humanitarian character. Unfortunately, Schmitt goes on to exclude categorically the possibility of a cosmopolitan system of law where humanitarianism might finally amount to something more than great-power propaganda. To his credit, Schmitt presciently grasped that the development of state intervention in the capitalist economy inevitably transforms the legal system by generating open-ended norms, vague delegations of authority to administrative agencies, and heightened bureaucratic and judicial discretion.
And he understood the conflicts between these legal trends and traditional liberal notions of the law, and the ways in which these conflicts create endless invitations for the unbridled exercise of power. Instead of considering how we might make sure that the interventionist state maintains fidelity to the indispensable attainments of liberal legality, however, Schmitt simply considered these trends to be evidence for the superiority of a right-wing dictatorship free of legal restraint.
In a similar vein, Schmitt properly emphasized the dangers to liberal democracy of its surprisingly widespread reliance on exceptional and emergency law to resolve political and economic difficulties.
Most Americans are unaware of the extensive role in our own legal system of emergency legal devices. Yet it was a group of liberal US Senators, not Carl Schmitt, who pointed out in that the United States recently had "[on] the books at least significant emergency statutes without time limitations delegating to the Executive extensive discretionary powers, ordinarily exercised by the Legislature, which affect the lives of American citizens in a host of all-encompassing ways.
Taken together, these powers confer enough authority to rule this country without reference to normal constitutional processes. Enemy of our Enemy? The book provides an instructive overview of Schmitt's career, and usefully highlights those facets of Schmitt's thinking that anticipate present-day left-wing political and intellectual concerns. Balakrishnan also considers Schmitt's skepticism about the prospects for legal restraints on the exercise of political power a refreshing corrective to contemporary liberalism.
And he suggests that Schmitt's critique of liberal constitutionalism contains a radical-democratic kernel that might prove useful to political thinkers on the left—in particular because of Schmitt's idea that popular power is more basic than the constitution. In contrast to these economic libertarians, Schmitt considered far-reaching state economic intervention desirable given capitalism's intrinsic instability, and he devoted significant attention to questions of regulatory law. This dialogue gave Schmitt's thinking a complexity lacking in those conservatives who have never had to grapple seriously with the ideas of their opponents.
Balakrishnan acknowledges Schmitt's intellectual achievements without succumbing to crude apologetics. He documents Schmitt's relatively far-reaching enthusiasm for National Socialism throughout the s and '40s, as well as the depth of his animosity towards the Federal Republic and American hegemony in postwar Western Europe. Balakrishnan should have said more about the integral role played by anti-Semitism in Schmitt's Nazi-era interlude, but at least his anti-Semitism is considered a serious matter requiring interpretation—many of Schmitt's other admirers have simply soft-pedaled it.
Those conversant with the complexities of European intellectual life in the interwar years are likely to be less surprised and not so impressed by Schmitt's tendency to borrow, often opportunistically, from his intellectual opponents on the left. Fascist thinking was notoriously a hodgepodge, and Schmitt was hardly the only thinker on the right to agree with Marxists that the days of classical free-market capitalism had already come to a close. Mesmerized by the conceptual twists and turns of his object'scomplicated intellectual development, Balakrishnan tends to underestimate the depth and overall consistency of Schmitt's hostility to the Weimar Republic.
He is probably right to be skeptical of the idea that Schmitt's embrace of Nazism was more or less inevitable. Yet Balakrishnan occasionally goes to the other extreme, and downplays Schmitt's life-long hostility to liberal democracy. Schmitt's anti-liberalism and hostility to global free-market capitalism occasionally seem remarkably reminiscent of contemporary radicalism. But this overlap probably says more about the hegemony of liberalism in the United States than it does about Schmitt's intellectual originality. Not surprisingly, left- and right-wing critiques of American imperialism share points of convergence.
The more decisive matter remains where and why they differ.
The Aporias of Carl Schmitt
The underlying idea is that Schmitt's legacy contains numerous valuable insights for contemporary political thinking. And Balakrishnan does make a number of provocative suggestions along these lines. Balakrishnan seems enamored of Schmitt's agonistic understanding of politics as resting on potentially life-or-death struggles between "friends" and "enemies," and he relies on Schmitt to criticize emasculated accounts of politics. But do we need Schmitt to respond forcefully to misconceived neoliberal views that obscure the ubiquity of strife and conflict to political life?
Balakrishnan may be right to note that "[d]emonstrations, gigantic rallies and general strikes are events which keep alive, and in motion, the original constituent power of the people. At least Schmitt distinguished between popular protest and fundamental constitutional crises.
Decisions and Indecisions
Finally, Balakrishnan focuses on biographical information at the expense of jurisprudential ideas. Schmitt's legal ideas, more than any other facet of his life or thinking, repay careful attention. Unlike in Central Europe, scholars unschooled in legal theory have dominated the Schmitt revival in North America. As a result, some of Schmitt's more provocative insights about the law have been neglected, whereas his biography has been endlessly debated. More generally, we can learn more from Schmitt by taking the radicalism of his ideas seriously and arguing with them, rather than exaggerating the parallels between his outlook and ideas we might already embrace.
Some recent contributions to legal scholarship provide initial evidence for the potential fruitfulness of this alternative approach. Far more so than Balakrishnan acknowledges, however, the intellectual figure of Carl Schmitt will have to remain an "enemy," albeit an enemy deserving of careful surveillance. Dyzenhaus, ed. Die Ordnung des Politischen , ed. Ulrich K. Preuss Frankfurt: Fischer, , p.
Beck,  , pp. George Schwab Westport: Greenwood Press, , p. Owing to the magnitude of its destruction, the truth of the war against paganism as negation of the only God is transformed into the negation of God and the order this God was meant to safeguard. This is a realization that Schmitt, invested as he was in contrasting and opposing a Christian religious order with a Protestant liberal one, was incapable of recognizing. Between a "theological politics" based on the role of the emperor as katechon , and a "political theology" based on the Leviathan or "mortal God" of sovereign princes, what can one say about the perseverance of "just war" doctrine overseas, or the constant confusion between secular and religious authority or "pastoral power" in the missions?
If the medieval concept of Christian empire was exported overseas during the Conquest, then underwent a secularization corresponding to the rise of modern international law in Europe, what does it mean that it continued and even underwent further transformation in the Americas and the Philippines?
Or that the theological role of empire for the Catholic kings corresponded to a physical and cultural apocalypse for the American empires? Or that the primacy of violence against unrepentant cannibals, monsters, and savages—the injustus hostis that resembled the Muslim infidels and "wandering Jews" of the Crusades and Reconquest of Spain—was part of a concerted attempt over the course of three centuries to create a Christian continent that was a part of Christian Europe? As we know, Schmitt has gone so far as to argue that this introduction of morality into law has, since the 12 th century!
This leads us to a third field of investigation: the presumed autonomy of the political, economic-industrial, religious, and technological spheres, which Schmitt positions in various arrangements to illustrate the significance of historical events for the study of international law. How do we account for the rise of anomalous subjects defined by their inability to maintain these spheres as separate for example, pirates: see Amedeo Policante in this volume ; or anomalous institutions like the colonial state in Spanish Philippines as well as the Dutch East Indies, British India and Burma, and French Indochina during the nineteenth century?
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Joining Schmitt to Marx, i. It also allows us to see the dual formation of laborers and Christian subjects by missions and congregaciones designed to reach the Indians displaced by war, those sent to the mines, those made slaves, those allocated to encomiendas , those who remained just outside them ; and the degree to which political theology became subject to economic calculation the very definition of contraband, corruption, and venality as well as indigenous resistance or the question of cultural "hybridity.
A fourth set of questions concerns the facility with which Schmittian concepts become reified as markers of a uniquely European or "Western" perhaps excluding the United States! Consider, for example, Giorgio Agamben's remarkable work Homo Sacer, which argues that the Nazi concentration camp completes and fulfills the ultimate destination of Western political philosophy in its modern form, which is to make "bare life" the subject and task of sovereign power.
Schmitt's theory of emergency powers, as it turns out, "appears from this perspective to be consubstantial with Western politics" 7 ; and "the birth of the concentration camp in our time appears as an event that decisively signals the political space of modernity itself" In Agamben's view, colonial atrocities that preceded the way for biopolitics in its Nazi manifestation—using prisoners as guinea pigs for medical experiments in Manila under United States rule, or the concentration camps launched by the Spanish in Cuba in , or the British in the Boer wars in the Philippines they were called "camps of sanitation and hygiene" by the United States —serve as mere antecedents to the Nazi camp, which Agamben elevates to some perverse crystallization of Western politics see Agamben and ; on camps of sanitation and hygiene, see Ileto.
Even Arendt, who asserts the continuities of colonial brutality in German East Africa among the Nazi elite, sees fascism and totalitarianism as the fulfillment of Hobbes's political philosophy and its adoption by the European bourgeoisie. But was the separation of European metropolis and colonial frontier so successful as to allow Europe to play out its own drama according to a preconceived plan? And in what ways, has this political philosophy and its material enactments impacted the ex-colonies?
And yet, even Galli imagines the present and future of globalization to be staked wholly on the terms and epochal thresholds given it by Schmitt's discrepant Eurocentrism. Thus, for Galli the eruption of violence characterized under the catch-all term terrorism emblematizes an "epochal caesura" in the history of world nomoi : one that distinguishes the rationality of political theology from the irrationality of "extreme theology" or religious fundamentalism In contrast to Europe's apparent success in transforming religion into logos between the seventeenth and nineteenth centuries, extreme theology, he argues, "does not communicate; it has nothing to say Any reader of political theology from the Hispanic empire cannot but be disconcerted by such claims.
Could this example help us reconsider the difference between political theology and extreme theology? And to consider that perhaps all political theology is extreme theology when seen from the perspective of those upon whom it is violently forced? Could this help us to better see the blind spots that continue to plague theory, preventing it from reaching true universals? Now that Europe has started to feel the impact of the economic and political forces it began to unleash elsewhere many years ago, Galli argues that it should be ready to once again create mechanisms for self-preservation and exemption, a new pact that would restrict the dire effects of the economy to outside of Europe.
But if Europe's self-conception entailed, in part, the imagination of terra nullis and its cannibals, what becomes of them provisional citizens in Europe 2. If the colonies were inappropriate and ad hoc laboratories of modernity and globalization, one has to contend with the caesuras Galli postulates. He also dwells on an epochal change defined by the speed and the extent of the unmediated contacts between the particular and the universal viii. Yet one can only wonder what the speakers of German, Spanish, and Waikuri, representing very different cultures and ways of understanding and inhabiting the world abruptly brought together in the missions of what is now Baja California in the 17th century, could say about a supposed, postmodern, sudden and immediate exposition of disparate elements.
This means perhaps that as Marshall Berman put it, people who find themselves at the center of the vortex of modernity tend to think of themselves as the first, and even the only ones to have ever experienced it 1.
As for the unmediated character of the relationships postmodernity presumably entails one can say that even if in many instances the unprecedented encounters of people, languages, bodies of knowledge, and technologies taking place due to colonization were mediated by institutions—incipient states, the Church—in many others they were not. The free enterprise of slave raiders, mining entrepreneurs, conquerors, etc. The chaotic, violent nature of these events eventually made way for more moderate practices, but then again, only when it was perhaps too late for the millions who bear the brunt of it.
It is therefore both for what Schmitt's work and that of his critics acknowledges and for what it occludes, that he serves as a privileged point of departure for reflecting on the idea of Western modernity as ideology and ideal. At the same time, the philosophical and political debates his work have occasioned in recent years demonstrate that Schmitt occupies a privileged position in not only reconceptualizing "the West" as a designation for certain types of world hegemony, but also in launching forms of historical investigation pertaining to Europe's former frontiers into uncharted waters.
With the objective of illustrating the centrality of colonial arenas in the "worlding" of the modern world—whether they served in the development of international law, the couplings of law and theology in the construction of border forms of authority, the articulation of il legal force or violence in imperial or postcolonial contexts, or the translation of colonial relationships of power into European and United States settings—it is our ultimate hope that this special issue contributes to the reinvention of intellectual traditions: a task that is inseparable from the renegotiation of our political futures and cultural values.
In the first section of this issue, Setting the Bases, our contributors offer a general reading of what Iberian empires represented in and of themselves, what they attained and how, and the kernel of strategies they continued to hold for future historical developments from the perspective this issue wants to emphasize, notwithstanding Schmitt: their violent, technological and economic determinations.
The essays in the section titled: Future Orders: Interiorities and Expansion shift the focus from the Iberian empires, but continue to offer corrective addendums to Schmitt in three distinct areas that show how colonial expansion can be linked in more ways than he imagined to future developments in international law and domestic state laws. In A Single World Order? Then nomadism appears as a consequence of the imposition of a Spanish nomos , but a nomos very different from what Schmitt says about land partition, appropriation and a concrete Christian order: this nomos is economic and what are to be appropriated and distributed are human beings the Chichimecs and not the land.
In spite of the Spanish and Christian taking of possession of the territories of Cuauhtinchan, Rabasa indicates, its inhabitants were able not only to continue imagining and living a history that predated and contradicted the Spanish imperial order, but to even approach that order from a perspective totally alien to it.
As an appendix we have included John D. It might be that these previous models, along with the parallel we find between the emergence of colonization and present day globalization, is but a way of giving name, form, to what is altogether new. At the other end of political theology from a historical perspective, it is not difficult to see how Schmitt's "discrepant" counter-history of Western modernity ends up re- universalizing Eurocentric international law in the same breath that he eulogizes its passing.
Concomitant to Eurocentrism's return in ever more sophisticated disguises is the resurrected mythology that just as some epochal break made Europe Europe , and the rest of the world Europe's handmaiden, another epochal break in the historical drama of Eurocentrism awaits us at the beginning of the new millennium. We thank Victoria Kahn for her sharp comments and criticism on an earlier version of this introduction. For a critical account of these contradictory genealogies in Europe and the United States, see John P. McCormick Even though we take the phrase from J. Florentine Political Thought and the Atlantic Republican Tradition, we are giving it a different sense.
Pocock used it to define a particular moment and a particular problem, that of the finitude and corruption of the republic and the way in which Machiavelli and his contemporaries contended with it. These were the definitive separation of moral-theological from juridical-political arguments, and the equally important separation of the question of justa causa , grounded in moral arguments and natural law, from the typically juridical-formal question of justus hostis , distinguished from the criminal, i. See also Robert Howse. It creates the most radical legal title, in the full and comprehensive sense of the term radical title " Schmitt, The Nomos, 47, his emphasis.
See also Schmitt, "Criminalization of War. In this sense, The Nomos is a cunning gift. As an appendix to this volume, we have included John D. This piece is very different from the original version published in German that same year. It also declared United States neutrality in intra-European affairs regarding war and peace, as well as between Europe and its already existing colonies.
The resurrection of the katechon concept as a principle of historical explanation by Schmitt remains understudied outside Germany: for the secondary bibliography on this concept in German, see Riccardo Cavallo; in recent years, see Raphael Gross, Carlo Galli; Julia Hell; and Marka Cichockiego. One of the subterranean currents animating Agamben's Homo Sacer concerns the way Agamben consciously or unconsciously performs the same "bracketing operation" around the colonial question as Schmitt, in order to foreground the Nazi concentration camp as the realization of modernity.
On the colonial genealogy of the concentration camp and the techniques used in it, see 91 and 95; and Madley See Galli on the "rebound" effect of colonial space conceived as a "state of nature" in Hobbes, which drives the "geometrization" or rational distribution of geographic space ; see also lvi.
This agreement, though not directly acknowledged as such by Clausewitz, occurs through the positing of spaces in which other rules apply. His seems to be a case of identification with one side of the political game. It is these and other omissions of Schmitt's interpretative history, Teschke concludes, that should alert us to the ideological role of Schmitt's work: "Less than propaganda or fabrication, but more than tendentiousness, it may be defined as ideology production: a determinate re-interpretation of the history of international law and order" , Skip to main content Skip to quick search Skip to global navigation.
Quick search:. Editors Submissions. Home About Search Browse. Volume 5 , Creative Commons 3. It should never be forgotten that while colonization, with its techniques and its political and juridical weapons, obviously transported European models to other continents, it also had considerable boomerang effect on the mechanisms of power in the West, and on the apparatuses, institutions, and techniques of power.
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