The scholarly treatment of questions of social life is divided into juridical, economic, sociological and other areas of specialization. The need for a comprehensive consideration acknowledging the unity of actual relations is becoming more evident. For this reason, so is the scholarly problem — to find immediately intelligible basic categories which allow a proper formulation of questions common to various disciplines.
The present effort to deal with this problem will proceed as follows: to apprehend the original meaning of the word nomos and then to ascertain simple and authentic categories at once basic and inclusive. The examples of their application to doctrines and systems of social science outlined below should serve only as a concise indication of their usefulness. The general application should help overcome the limitations of specialization without denying the value of achievements in the various disciplines; it is something other than an interpolation using philosophical generalities or general provisions of natural law.
Here we need not undertake a detailed philological analysis of nomos. There is already an excellent philological study of the antithesis of nomos and physis by Felix Heinimann. It goes so far in the direction of modern disciplinary abstractions that it defines nomos as “a term valid for a group of living beings” and in this way links it with the modern concept of “value” and a very specific normativism. We are prepared to learn from philologists, but we would like to make the original meaning of nomos relevant to social problems and we invite philologists to follow us for a moment, Unlike philologists, jurists and historians usually translate nomos as law or, to distinguish it from written law, as tradition or custom. Here we seek the simplest approach to determine the structure of various social orders and doctrines in all the specialized disciplines and to find the proper formulation of the questions with respect to the core of their ethic and their view of history.
The Greek noun Nomos comes from the Greek verb nemein. Such nouns are nomina actionis, indicating an action as a process whose content is given through the verb. Which action and process is indicated by nomos? Quite obviously, it is the action and the process of nemein.
The first meaning of nemein is: nehmen [to take or appropriate]. The German word nehmen has the same linguistic root as the Greek nemein. It the noun nomos is a nomen actionis of nemein, then the first meaning of nomos indicates a nehmen. Just as logos [speech, word or reason] is the nomen actionis of legein [to gather or to speak] and tropos [a figure of speech or turn of phrase] of trepein [to turn], so nomos indicates an action and a process whose content exists in a nemein. Just as there is a linguistic relation between the Greek words legein and logos and the German words sprechen [to speak] and Sprache [language], so there is a linguistic relation between the Greek words nemein and nomos and the German words nehmen and Nahme. Thus the first meaning of nomos is appropriation.
The second meaning of nemein is: teilen [to divide or distribute]. Accordingly, the second meaning of nomos is the action and process of division and distribution — an Ur-teil [judgment] and its outcome. The first meaning of nomos as an appropriation has long been forgotten in jurisprudence. However, no major legal scholar has forgotten this second meaning of nomos as a fundamental process of division and distribution, of divisio primaeva. Thomas Hobbes’ Leviathan (1651) contains a classic passage: “Seeing therefore the introduction of propriety is an effect of commonwealth, which can do nothing but by the person that represents it, it is the act only of the sovereign; and consisteth in the laws, which none can make that have not the sovereign power. And this they well knew of old, who called that Nomos, that is to say, distribution, which we call law; and defined justice, by distributing to every man his own.”
Thus belonging to the second meaning of nomos is law in the sense of Anteil [part or share], which each gets, the suum cuique. Abstractly speaking, nomos is law and property, i.e., the part or share of goods. Concretely speaking, Nomos is, for example, the chicken every peasant living under a good king has in his pot every Sunday; the piece of land he cultivates as his property; the car every worker in the US has parked in front of his house.
The third meaning of nemein is: weiden [literally, pasturage]. This is the productive work which normally occurs with ownership. The commutative right of buying and selling in the market presupposes ownership as well as production deriving from the primary division: divisio primaeva. This third meaning of nomos obtains its content from the type and means of the production and manufacture of goods. The search for pasture and the tending of animals, which nomads like Abraham and Lot pursued; Cincinnatus plowing his field; the shoemaker Hans Sachs at work in his shop; the industrial work of Friederich von Krupp in his factory — all this is nemein in the third sense of our word: to pasture, to run a household, to use, to produce.
Each of these three processes — appropriation, distribution, production — is part and parcel of the history of legal and social orders. In every stage of social life, in every economic order, in every period of legal history until now, things have somehow been appropriated, distributed and produced. Prior to every legal, economic and social order, prior to every legal, economic or social theory, there is this simple question: Where and how was it appropriated? Where and how was it divided? Where and how was it produced?
But the sequence of these processes is the major problem. It has often changed in accordance with how apperopriation, distribution and production are emphasized and evaluated both practically and morally in human consciousness. The sequence and evaluation follow changes in historical situations and general world history, methods of production and manufacture — even the image human beings have of themselves, of their world and of their historical situation.
Up to the 18th century industrial revolution the order and sequence [of these processes] were unequivocal in that any appropriation was recognized as the precondition and foundation for any further distribution and production. Consequently, for centuries this remained the typical sequence. The land was the precondition of all subsequent economics and all subsequent law. Even Kant, in his legal theory, states as a truth of legal philosophy and natural law, that the first substantive acquisition can be none other than land. This land, the foundation of all productivity, must some time have been appropriated by the legal predecessors of those who own it now. Thus at the beginning there is the “distributive law of mine and thine in terms of land for everyone” (Kant), i.e., nomos in the sense of Nahme. Concretely speaking: land appropriation. Only in this connection can there be any distribution and, beyond that, any subsequent cultivation.
The history of peoples with their migrations, colonizations, and conquests is a history of land appropriation. Either this is the appropriation of tree land, with no claim to ownership, or the conquest of alien land which has been appropriated under legal titles of foreign-political warfare or by domestic political means such as the proscription, deprivation and forfeiture of newly divided land. Land appropriation is always the ultimate legal title for all further division and distribution and thus for all further production. It is what John Locke called the radical title. As a 17th century Englishman, what he had in mind was the land appropriation of England by William the Conqueror (1066).
All known and famous appropriations in history, all great conquests –wars and occupations, colonizations, migrations and discoveries –indicate the fundamental precedence of appropriation over distribution and production. The biblical story of the appropriation of the land of Canaan by the Israelites (Deuteronomy 4:4 and Joshua 11:23) is a classic example. Understandably, once distribution is completed, division in an economic and social order that has arisen through such a land appropriation is emphasized more strongly than the original appropriation. The distribution remains stronger in memory than the appropriation, even though the latter was the precondition of the former and of the concrete allotment: the kleros [literally, the inheritor]. All concrete orders and legal relations within land so obtained derive first and foremost from distribution, through which the mine and thine of individual clans, families or groups as well as of solitary individuals is allotted. Understandably, within such a framework, only the end result of the distribution of appropriated land is usually considered, i.e., the concretely acquired allotment of land — the share (the kleros), but not the pprocess and procedure of distribution as such. Distribution — the measures and procedures inherent in the process itself — is an important problem.
Before what has been appropriated through conquest, discovery, expropriation or some other way can be distributed, it must be numbered and weighed, as in the ancient sequence: numbered/weighed/ divided. The mysterious writing on the wall in the Book of Daniel — the often cited inscription MENE, TEKEL, UPHARSIN — expresses nothing other than the announcement of an immediate and present appropriation and distribution of the land (or the Chaldeans) by the Medes and the Persians. When the numbering and weighing of what has been appropriated is finished, the process of distribution itself raises new and further questions. At all times, at the origin and foundation of a legal and economic order, this process has been decided by lot, i.e., divine providence, such as war and conquest. Plato adumbrated the classical model in the Nomoi (Laws). An enlightenment thinker such as Hobbes could in cases such as the first division still claim that decision by lot assumes the character of natural law.
One of the strongest impressions, maybe the most decisive, on the Russian immigrant and professional revolutionary Lenin during his sojourn in England was not the result of an economic analysis of production relations but of a late 19th century formulation of the international political program by the English imperialist Joseph Chamberlain. Lenin had heard Chamberlain’s speeches and the deep impression Chamberlain made on him is clear in his pamphlet on imperialism.
Imperialism, said Chamberlain, is the solution to the social question. At that time this meant a program of colonial expansion and the precedence of appropriation over distribution and production. Of course, it was consistent with the historical view of a politics that had lasted for centuries. In Lenin’s view, this was precisely the historical death sentence of imperialism in general and English imperialism in particular. The reason was that this Anglo-Saxon imperialism was nothing more than theft and plunder, and the word plunder was already sufficient for a moral condemnation. For a socialist like Lenin, the idea that imperialistic expansion, i.e., appropriation — especially land appropriation — should precede distribution and production was in itself medieval, not to say atavistic, reactionary, opposed to progress and ultimately inhuman. In Lenin’s moral outrage he had no difficulty finding in the arsenal of the progressivist as well as the Marxist philosophy of history several destructive arguments against such a reactionary opponent who would take something away from other people, while his own efforts only went in the direction of unchaining the powers of production and electrifying the earth.
Here is the point where socialism tails in with classical political economy and its liberalism. The core of liberalism, both as a science of society and a philosophy of history, is also concerned with the sequence of production and distribution. Progress and economic freedom consist in treeing productive powers, whereby such an increase in production and in the mass of consumer goods brings about an end to appropriation so that even distribution is no longer an independent problem. Apparently, technological progress leads to an unlimited increase in production. It, however, there is enough or even more than enough at hand, then it appears atavistic and repressive to the primitive right of plunder in an epoch of scarcity to view appropriation as the first, fundamental precondition of economic and social orders. When the standard of living continues to rise, distribution becomes increasingly easier and less precarious, and then appropriation ultimately becomes something not only immoral but even economically irrational and absurd.
Liberalism is a doctrine of freedom — freedom of economic production, freeddom of the market and, above all, the queen of all economic freedoms, freedom of consumption. Liberalism also solves the social question with reference to increases in production and consumption, both of which ultimately should follow from economic freedom and economic laws. On the other hand, socialism poses the social question as such and wants to answer it as such. What, then, is the social question? In which sequence of the three basic categories of nomos does it move? Is it fundamentally a question of appropriation, distribution or production? It is fundamentally a question of proper division and distribution, and socialism is accordingly and above all a doctrine of redistribution.
Not only radical socialism or communism but also the concept of the social that all political parties in contemporary European democracies have somehow adopted, at least as an adjective, subscribe to a program of distribution and redistribution. There is now in Germany a lively discussion not only about the social market economy but also about the constitutional question concerning the precise meaning of the social federal state (Bundesstaat) and of the social liberal state (Rechtsstaat) that the Constitution of the German Federal Republic seeks to establish. Also in juridical attempts to define the ambiguous word “social,” concepts of distribution and redistribution appear decisive. A prominent German constitutional jurist, Hans Peter Ipsen, had this to say in a now famous speech on expropriation and socialization: “With reference to the constitutional guarantee of property, which here is being discussed as part of the social order, my understanding of the formation of the social order is the reformation and transformation of property ownership to the point of its redistribution.”
Concerning the concept of socialization, Ipsen said that “in its uncorrupted, true revolutionary sense, i.e., before being tied up and juridically regulated by constitutional norms, socialization postulated the systematic transformation of the economic order with respect to property by making future owners of former non-owners.” Furthermore:” It the juridically indifferent concept of nationalization (considered from the dogmatic perspective of our prevailing economic constitution) should acquire a meaning consistent with the historical and economic-political postulate of socialization, then it demands the settlement of individual property ownership based on self-interest and subject only to general, public and legal ties to property, at least through a surplus(plural-, joint-) ownership, by which social groups which have hitherto been excluded from ownership and will in the future share in it.”
Yet, precisely because socialism raised the question of the social order as one of division and distribution, it raised once again the old problem of the sequence and evaluation of the three original processes of social and economic lite. Even socialism cannot escape the fundamental question of the problematic sequence of appropriation, distribution, production. This question reveals substantial divergences, even contradictions, among the numerous doctrines and systems which, despite their differences, are collectively called “socialist” and said to fly the socialist flag.
A particularly simple example of this is a socialist like Charles Fourier, who subsumed all problems of appropriation and distribution under a fantastic increase in production. This is why he is considered utopian. But it should not be forgotten that it was precisely this alleged utopianism which allowed him to formulate a clear position with respect to basic questions and thereby to affirm the contemporary tie of socialism to the historical vision of technical progress and its unlimited increase in production. It was different with [Pierre-Joseph] Proudhon, who argued with a strong moral pathos, above all in terms of right and justice. His socialism is thus essentially a doctrine of division and distribution. The elevation of producers over consumers, workers over mere eaters, is coined in moral value judgments. Humanity is not yet divided into friend and enemy, producers and mere consumers, as was the case later for Georges Sorel. Proudhon is a moralist in the specific French sense. For him, appropriation becomes the consequence and attendant phenomenon of just division and distribution whereby true producers strip mere consumers of their ill-gotten gains.
Karl Marx, on the contrary, did not argue for socialism on moral grounds but, rather, in terms of a philosophical and historical dialectic. Of course, he likes to prove his enemies wrong and adopts a position of moral outrage with respect to the exposed exploiters of early capitalism in the age of piracy and the veiled forms of appropriation whereby the workers’ surplus value is seized by the capitalists. Yet, from the standpoint of the philosophy of history, Marx saw the development of the bourgeois social order as becoming increasingly inimical to distribution and at the same rate as the growth of production, i.e., as an economic absurdity hindering the dialectic of history which ultimately overcomes and destroys itself.
The sharp distinction between a socialism whose core idea is the philosophy of history and one which is essentially a moral argument will become obvious here in the sequence and evaluation of appropriators, distributors and producers. The philosophical dialectic of the development of world history is the same as that which provides the side of coming things with the great historical right to appropriate what in theory they have already. The distribution and subsequent production are then questions which one need not address until the great appropriation has been completed.
Marx adopted and emphasized the progressivist claim to the unlimited increase in production essential to progressive liberalism. Thus he could treat the question of division and distribution as a later concern. He concentrates the whole weight of his attack on the expropriation of the expropriators, i.e., on the procedure of appropriation. In place of the old right of plunder and the primitive land appropriations of pre-industrial times, he substituted the appropriation of the total means of production — the great modern appropriation of industry (Industrie-Nahme). Then there is the obvious question of how to proceed with the concrete division and distribution of new chances of appropriation because the expropriation of the old owners opens up new and enormous possibilities of appropriation. Although extremely interesting, this obvious question is no longer being answered concretely. It is simply rejected as “unscientific,” even as the concrete question of the continuation and Gestalt of the unlimited increase in production following the great appropriation of industry is left unanswered. Of course the plundering should stop, but appropriation as a precondition of new distributions does not. If the essence of imperialism lies in the precedence of appropriation over distribution and production, then a doctrine such as the expropriation of the expropriators is obviously the strongest imperialism because it is the most modern.
We should abolish all appropriation, because it is inhuman and historically obsolete. We should also limit problems of distribution because it is too difficult to find not only general principles but also persuasive measures and legally viable procedures. Then there remains only production. Many doctrinaire thinkers have ingeniously shifted attention away from appropriation and distribution to production. However, there is clearly something utopian about construing social and economic systems in terms of mere production. It there were only problems of production and it mere production created such wealth and unlimited possibilities of consumption that appropriation as well as distribution were no longer problematic, then economic systems would cease to exist because they always presuppose a certain scarcity.
These remarks on socialism and imperialism are intended only to indicate the usefulness of the three basic meanings of nomos and the problem of their sequence. In view of the vast literature on both socialism and imperialism, it would appear all too simplistic to emphasize only the appropriating aspect of imperialism. It would be superfluous and nothing more than a repetition of Carl Brinkmann’s claim that “Imperialism is for the most part and in the widest sense a technical struggle with these laws (i.e., the laws of classical political economy concerning population and profit) and not only the struggle for the feeding grounds underlying them. But it should never be forgotten that this second, primitive struggle is also at the forefront of the world economy.”
That is no doubt true. However, there is something more to consider: the dose proximity, the sequence and changing evaluation of the three basic categories of appropriation, distribution and production inherent in every concrete nomos and latent in all legal, economic and social systems, though differing in evaluations and sequence, but which in a surprising change can become relevant again.
Perhaps the scholarly concern here can best be grasped by bringing the three categories of homos in line with the very real and all-encompassing question raised in every juridical consideration — the question of world unity. Has humanity today actually “appropriated” the earth as a unity so that there is nothing more to be appropriated? Has appropriation really ceased? Is there now only division and distribution? Or maybe only production remains? If so we must ask further: Who is the great appropriator, the great divider and distributor of our planet, the manager and planner of unified world production? This question should immediately warn us against ideological short-circuits. At work here are widespread and generally forceful (although scientifically superfluous) simplifications. They suggest fictional unifies. Their simplifications can only be overcome by the deeper simplicity of original concepts.
* Originally published as “Nehmen/Teilen/Weiden: Ein Versuch, die Grund-fragen jeder Sozial- und Wirtschaftsordnung vom Nomos her richtig zu stellen” (1953), republished in Carl Schmitt, Verfassungsrechtliche Aufsatze aus den Jahren 19241954: Materialien zu einer Vassungslehre, Second Edition (Berlin: Dunker & Humblot, 1973), pp. 489-501. Translated by G. L. Ulmen.
[Schmitt] Even modem laws sometimes leave the decision to lot: not of course in the sense of a judgment but either as an escape from an otherwise inescapable situation, as a deliberate or unconscious form of lottery, or for other reasons whose consideration would be a separate problem for jurisprudence and social science. As merely a way out, a decision is made by lot, as in electoral determinations, when the votes (such as frequently found in the age of narrow majorities) tip the scales. Here one should not speak of the “chance” of lots, because a common democratic homogeneity is presupposed. The basis of this homogeneity is consent to every result of the democratic process of integration. By contrast, the inclusion of a paragraph to allow decisions by lot (in the federal law of January 7, 1952 concerning investment aid for commercial enterprises, Bundesgesetzblatt I, p. 7, Section 32) has more the character of a lottery: the lot decides the procedure of how to distribute the shares. Ipsen rightly recognizes this as a regulation of the indemnity policy which is contrary to the constitution. See Hans Ipsen, “Rechtsfragen der Investitionshilfe,” in Archiv des offentlichen Rechis, Vol. 78 (1953), p. 330.
[Telos, Spring 93, Issue 95]