Although Schmitt was not a professional historian, his last major work, Der Nomos der Erde (1950), generalizes about the last four centuries of European and world history. While his essay on The Concept of the Political was an attempt “to frame theoretically an immense problem,” Der Nomos der Erde traces the historical transformation of the political. Both are addressed “to specialists on the Jus Publicum Europaeum,” both are “strongly didactic.” As in “The Plight of European Jurisprudence,” Schmitt’s concern in Der Nomos der Erde is with “the existential question of jurisprudence itself, which today will be eroded between theology and technology it the basis of its present character is not maintained in a way that is both conceptually clear and historically correct.” The point is to explain the historical genesis of a new nomos of the earth: “The former Eurocentric order of international law is declining and with it the old nomos of the earth. It arose out of a legendary and unexpected discovery of a New World, an unrepeatable historical event. One can only think of a modern recurrence of such an event in fantastic parables, such as that men on their way to the moon might discover a new and completely unknown planet which could be exploited freely and used to alleviate struggles on earth. But the question of a new nomos of the earth will not be answered with such fantasies; nor by further scientific discoveries. Once again we must turn our attention to the elemental orders of our concrete terrestrial existence. Here we seek to discover the meaning of the earth. That is the hazardous undertaking of this book and the pretext of our work.” Schmitt begins with five corollaries on nomos. Other corollaries were published separately. All serve to complement the argument and elaborate the central thesis of Der Nomos der Erde. The seventh corollary, “Appropriation/Distribution/Production,” is particularly significant because it relates nomos to the contemporary world: it addresses the problem of the transition from a liberal Rechtsstaat to a Sozialstaat and raises the problem of a new nomos of the earth.
To speak of a nomos of the earth means to consider the earth as a whole. Before the age of discovery, at least before the 15th century, there was no global concept of the earth. For all practical purposes the world ended where the oceans began. Thus the first nomos of the earth was not a global conception but rather what the Greeks called oekumene. All law was land-bound. In Schmitt’s view, law is the unity of order and orientation (or location). All great original formulations of laws occurred on land. They were a result of land appropriations, whether the founding of cities, military occupations, the establishment of colonies, etc. In historical hindsight, land appropriation has a categorical character — it is the presupposition of internal and external, mine and thine, private law and public law, imperium and dominium. Land appropriation is accordingly the prototype of a legal order because it creates the most radical legal title. In the second and truly global homos of the earth, based on a particular relation between fixed land and open sea that constituted the Jus Publicum Europaeum and the Eurocentnc international law, the history of international law was also one of land appropriations.
Schmitt’s first corollary focuses on the original land-bound character of law, while the second contrasts pre-global international law with that based on the Jus Publicum Europaeum, which lasted from the end of the 16th into the 20th century. It arose from the dissolution of empire and papacy, which is why the third corollary is devoted to international law during the Christian Middle Ages and continuity with the Roman Empire, and the fifth corollary is devoted to land appropriation as the constitution of international law. The sixth corollary implicitly relates nomos to the primal German word Raum, emphasizing the spatial dimension of the former. Rejecting generalizations of Raum, which have led to many banalities, Schmitt specifically dismisses Bergson’s reading in Lebensphilosophie and quotes Nietzsche to the effect that: “Raum is a word with big shoulders that guards against nothingness. Where Raum is, there also is Sein.” In these words the corollary to nomos is self-evident. The following will concentrate on the fourth and eighth corollaries which elaborates themes broached in the seventh corollary.
The fourth corollary is devoted to the Greek word for the first and most fundamental measure of all land appropriation — the first spatial division and distribution — nomos, which in its original sense Schmitt found best suited to focus on the fundamental process of order and orientation. But in his view the historical distortion of the original meaning of nomos is equally significant. It serves to demonstrate the contemporary relevance of nomos. Noting that Triepel criticized the Reichstag’s legislation of law with the statement “Gesetz is not sacrosanct, only Recht; Gesetz is subordinate to Recht,” Schmitt countered that the antithesis was not between Gesetz and Recht but rather between a properly understood concept of Gesetz and a hopeless formalism which considers everything in the legislative sphere to be law. Indicative of this situation was the fact that the misuse of legislative power had been characterized as “nomomachy” (rule of law), whereas in fact what was missing was nomos properly understood. In other words, what was missing was the rational minimum of a true Gesetz, i.e., the failure to recognize the general character of a true norm (Rechtsnorm). Once this general character is abandoned, all idioms of nonnativity become inherently contradictory because every arbitrary mandate is as valid as a norm.
To illustrate the relation between order and orientation, Schmitt cautions against equating nomos with Gesetz, or norm or any similar expression. In this regard, he notes an attempt to define nomos as Lebensgesetz (law of life), which he rejects not only because of the word Gesetz but also because of the biological connection between law and life. One of the reasons why he returned to the original meaning of nomos was to defend the integrity of law against legal positivism and the contusion brought about by 19th century jurisprudence, while distinguishing it from the immediate problem of a new nomos of the earth. Since most jurists of his day spoke the language of legal positivism and philosophers tended to follow the language of jurists, Schmitt indicates how the unfortunate word Gesetz tended to mislead the discussion of nomos. After decades of misuse of the legality of the centralized Gestzesstaat, the concept of legitimacy appeared to be the only corrective. Legality became “the functional mode of a state bureaucracy,” which operates by prescribing prescriptions (Setzung von Setzungen) from a centralized authority. The more centralized this authority becomes, the more intense the compulsion to make laws whose hyper-formality is matched by their lack of content. Schmitt employs nomos as an antidote to this positivistic understanding of Gesetz — the law of the legalitarian Gesetzesstaat.
This legalitarian dilemma is the result of the destruction of the original meaning of nomos as land appropriation, which occurred with the Sophists. But already with Plato nomos acquired the meaning of a schedon — a mere rule. Plato’s nomoi (laws)) exhibit the utopian character of modern laws: they have little to do with fortuitous nomoi and even less with politics. By contrast, Aristotle distinguished the concrete order as a whole — the nomos — from the various nomoi. Schmitt found something of the original relation between order and orientation still recognizable in Aristotle, meaning that nomos is still a component of a concrete spatial dimension. Moreover, Aristotle claimed that nomos was antithetical to Psephisma and other designations having only the character of decrees. Unlike in modern ideologies of the rule of law, in Aristotle the rule of nomos recognizes a common principle and is consistent with the lair division of property.
By contraposing nomos and physis the Sophists contributed to the destruction of the original meaning of nomos, which was thereby reduced from a fact of life (Sein) to a prescribed ought (Sollen). It thus became indistinguishable from psephisma and other designations for arbitrary prescriptions. Originally, nomos is the division of land in a particular order as well as the resulting Gestalt of political, social and religious organization which together constitute a spatially concrete unity. In land appropriation, in the founding of a city or a colony, nomos becomes visible when a family, group or people becomes historically settled and create a political order in a particular location. According to Schmitt, all human nomoi are “nourished by” a godlike nomos, whatever it may be, meaning any nomos can grow like plans and property. A wall might also be called a nomos if it is based on sacred orientations. Such metaphors are meaningful, since they refer to the submerged image of the “source” of law discussed by Saviguy. But one should not lose sight of the fact that nomos is related to a constitutive spatial ordering.
The eighth corollary deals with power. Commenting on Przywara’s book Humanitas. Schmitt focuses on the third tendency of power to visibility and publicity, in response to the first tendency to secrecy and obscurity, and remarks that Plato found a median between monarchy and democracy in the polis, i.e., in a world in which the memory of the oikos (household) and oiko-nomie remains strong. In the more than 3,000 year history of the concept of nomos, the most important event was the transition from the nomadic to the sedentary age — to the Oikos. Moreover, in the numerous uses of the word nomos, none has been more frequent than oiko-nomia and oiko-nomos. Significant here is that these linkages developed even prior to the polis.
In the 18th century “scientific” discipline of political economy, the extension of the nomos to the polis retained its linguistic relation to the oikos — there was no polito-nomie but rather oiko-nomie. Obviously, says Schmitt, there is a special relation between nomos and the means of subsistence, i.e., the economy. The nomadic age was overcome with the joining of oikos and nomos. In his Politeia Plato distinguishes between the nomeus (shepherd) and the political man. The shepherd stood higher above his flock than did the political man above those he governed. Once these two positions were joined, the relation of economics to politics became problematic, reaching crisis proportions with the transformation of the community into an administrative and then into a managerial state concerned with providing for everyone. In this connection, Schmitt mentions Friedrich Engels’ utopian promise that one day the power of men over men will cease and there will be only production and consumption because “things will govern themselves.” Presumably this would make superfluous every aristocracy and democracy, monarchy and oligarchy –all anthropologically-based power deriving from appropriation as well as all theologically-based power ordained by God. But in Schmitt’s view no nomos can exist without either one or the other.
The third tendency of power obtains only in the rejection of anonymity and obscurity. Here Schmitt’s argument that subjectivity is fundamental to Western civilization is related to Adam Smith and Karl Marx. “As soon as a true name appears, the purely economic nomos is exhausted in economy and administration disappears. The beehive has no names.” The allusion is to Mandeville’s The Fable of the Bees and the relation between Engels’ claim that “things will govern themselves” and the rationalistic claim of the French Revolution that reason will rule “in the name of the law.” But law has no name any more than has reason or humanity. The reification of impersonal laws governing themselves is an illusion in both economics and politics. “What began as the tidings of the Goddess of Reason ended with the gangster slogan of Bertolt Brecht.” A name presupposes precisely that subjectivity threatened by the objectivity presumed by a world in which “things govern themselves” and where anonymous power-holders rule “in the name of the law.” In such a situation, the project of Western civilization is also aborted because it loses its dynamic: “As soon as there is no longer any horizon other than the status quo, normativism and positivism become plausible and obvious.”
Schmitt’s seventh corollary promises more than it delivers. Nevertheless, it poses nomos as a contemporary problem. It addresses the positivistic prejudices against thinking about the totality while rejecting pseudo-universality. Specifically, by reexamining the concept of nomos Schmitt analyzes the decline of the state (which in his view was the crowning achievement of Western rationalism, the core institution of the nomos of the earth within the context of the international law of the Jus Publicum Europaeum). “World history is a history of progress in the means and methods of appropriation: from the land appropriations of nomadic and agricultural-feudal times to the sea appropriations of the 16th/17th centuries, to the industrial appropriations of the industrial-technical age and its distinction between developed and undeveloped areas, to the present-day appropriations of air and space. Today’s odium of colonialism, encountered by Europeans, is the odium of appropriation.”
Schmitt relates the odium of appropriation to the transformation of the political state into a social agency no longer able to function as the cornerstone of a nomos of the earth. The constitutional aspect of the problem of nomos becomes crucial as soon as the most important function of the state consists in the distribution or redistribution of the social product. That is the case in industrialized countries with an administrative state responsible for the welfare of the masses.” Before such a state distributes or redistributes the social product, it must first appropriate it. Those who distribute and redistribute will be real powerholders and such positions are themselves appropriated and distributed. “Even here the question of appropriation has not disappeared.”
This is the problem of the transition from a Rechtsstaat to a Sozialstaat and of the fact that one state can only have one type of basic rights. In general, a Rechtsstaat recognizes only negative rights, especially freedom and property, whereas a Sozialstaat makes claim to positive state enforcement. Negative freedom — freedom from the state — is not mediated by the state or any other institution. Thus it is a misunderstanding to regard the right to freedom or property as a claim to administration. In principle, individual rights are unlimited, whereas every legal norm, every state intervention, must be limited and calculable. Freedom “according to the provisions of the law” is no freedom at all. Consequently, a state built not on negative individual rights but on positive citizen claims is not a Rechtsstaat but a Sozialstaat. Indicative of the present problem is the instrumentalization of basic rights.
Obviously, a Rechtsstaat which distinguishes between state and society cannot have the same type of basic rights as a Sozialstaat, which is responsible for the welfare of the masses. Significant here is Schmitt’s understanding of nomos in terms of property and its relation to expropriation. The question of appropriation and expropriation is one of property rights. For Schmitt, property and expropriation are structurally related in every legal and economic order. Expropriation is not intervention or a violation of the law but rather a legal institution. Consequently, just as property relations in a Rechtsstaat are different from those in a Sozialstaat, so is expropriation. Since every constitution that guarantees property rights must at the same time provide for a possible exception to the rule, it must also develop its own institutional procedure of expropriation. Thus a true constitutional guarantee obtains only when there is due process whereby specific negations of property are a reaffirmation of property rights and do not imply a violation of the total order of property upon which the concept of expropriation is based.
Recently, the constitutional guarantee and extension of expropriation has been seen as strengthening property rights. In reality, however, it has destroyed the means of resistance and accelerated a general functionalization because it has not created any constitutional guarantee against inflation. More to the point, no “compensation” is sufficient for the dissolution of property into a general property fight because what is destroyed is not only landed and liquid property but the idea of a spatial relation between house, home and family — the link between property and tradition — which was still the meaning of the prior constitutional guarantee. The functionalization of property transforms the greater power of resistance of demesne, i.e., direct ownership, into its opposite. Whereas the spatial context, public visibility and concrete immovability of demesne formerly constituted personal security, it now becomes no more certain than any other property fight which can be detached and adjusted by the state through taxation and other social priorities. Functionalization means the desubstantiation of property.
In Schmitt’s view, the functionalization of property is consistent with that same value neutralization which turned democracy into the Weltan-schauung of a fundamental relativism. What is lost through legal positivista, especially the theory of constitutional changes through legislation, is the awareness that legality is an essential part of Western rationalism and as such a form of legitimacy rather than its opposite. According to Schmitt, this blindness should not be attributed only to the limitations of a positivistic and professional isolation. Rather, it is much more the expression of the legislative optimism of the preceding epoch, which considered law not as a means of stabilization but as a means of pursuing reforms and progressive development. Direct constitutional enforcement — judicial activism –paved the way forr the transition from the legislative to the managerial or administrative state.
Once legality becomes the functional mode of the state bureaucracy, law transcends the Rechtsstaat’s classical separation of state and society and paves the way for the development of a Sozialstaat. Here the political premiums accruing to the legal holding of state power –super-legality — becomes crucial. In countries in which the state bureaucracy still did not have the monopoly of the discharge of public tasks, such as England and the US, the transformation of law into a functional mode of public officials was in Schmitt’s view hardly conceivable, as was the transformation in the meaning of the word “legality.” But today this functionalization has proceeded apace in both England and the US, where legalitarianism has become widespread. Thus the transformation of law into legality was more than a specific German problem. In France, the motherland of state legality and codification, the sharpest formulations of a purely formalistic legality opposed to substantive law and historical legitimacy set a standard since the middle of the 19th century. In any case, says Schmitt, legal positivism reigns supreme, and this means the triumph of the normative power of the given.
Given this functionalization of law, what are the prospects for a new nomos of the earth? In Schmitt’s view, the desire for a well-functioning unity of the world corresponds to today’s predominantly technocratic Weltanschauung. It the late of humanity is technology rather than politics, then the problem of global unity has already been solved. With the development of the Cold War and the bipolar division of the world, the earlier division of land and sea and the equilibrium inherent in it had been destroyed. Modem technology had appropriated the elemental character of the sea, adding a third dimension, air, which had also become a battleground. In such a situation, what could be the new nomos of the earth? Schmitt foresaw three possibilities. The first was that one of the superpowers would defeat the other. Presumably, this would be consistent with the technical view of the world in which the immediate duality was only the penultimate stage prior to the ultimate unification of the world. The second possibility would be the restoration of the former Nomos of the earth. The domination of the sea once held by England would be complemented by a domination of the air, which would only be possible for the US. This new and greater “island” would guarantee world equilibrium. Such an eventuality had tradition and custom on its side, but Schmitt thought a third possibility more realistic. It would also be based on an equilibrium, but not of one hegemonic power controlling the sea and the air. The new nomos of the earth would most likely be constituted of a number of independent Grossraume. This would signal the breakthrough to a new pluralism — a balance of forces which could pave the way for a new international law. There would be many analogies to the preceding Eurocentric international law whose structure obtained in a balance of several powers. Its framework was pluralistic, but it presupposed a community and a unity. The new nomos of the earth would not be one world but a pluralistic community in unity.
In “The Plight of European Jurisprudence” Schmitt recalls a dispute with Johannes Popitz concerning the relation between jurisprudence and philosophy that has bearing on the precise understanding of nomos. Popitz had argued that concepts such as person, reciprocity, etc., were of purely philosophical origin, and as an example he cited the influence of Greek philosophy on Roman jurisprudence. Schmitt disagreed and, in support of his counterclaim, quoted the Spanish editor of Cicero’s De legibus, where Cicero translates the Greek Nomos with the Latin lex, which is allegedly one of the greatest burdens that Western culture has had to bear since it reduced the original meaning of nomos to mere law and paved the way for all subsequent manipulations.
Were one to translate Der Nomos der Erde into English, it would not be understandable as The Law of the Earth but would have to be rendered as The Order of the Earth. It might be possible to shorten it to World Order, but this would miss the spatial dimension so essential to Schmitt’s understanding of nomos. Since nomos is not a German but a Greek word, it would be best to title such a translation: The Nomos of the Earth. After all, Schmitt’s means of addressing the constitutional crisis of the transition from a Rechtsstaat to a Sozialstaat and the attendant problem of legality and legitimacy is a radical reconceptualization of precisely this word nomos. Such a reconceptualization presupposes a method he calls the “sociology of juridical concepts,” which traces a concept back to its historical root, i.e., the “deeper simplicity of organic concepts.”
To translate nomos one has to find English equivalents for nehmen, teilen and weiden. Schmitt himself notes this difficulty, specifically with respect to nehmen and weiden, in a Spanish translation of his seventh corollary. This difficulty is obvious in the present translation. The Spanish version also translates nehmen as appropriation, but renders weiden as pasturage, which is technically more correct than production. In this English version, the clarification of Schmitt’s meaning takes precedence over literal translation. Here it should be emphasized that Schmitt’s meaning is itself a historical-juridical interpretation of core concepts. At the beginning of his article he makes a point of distinguishing between the views of philologists and those of historians and jurists, and invites “the philologists to follow us for a moment.” Many philologists would not agree with Schmitt’s interpretation of nomos and many more would probably not be willing to follow him even for a moment. The same may be said of many historians and jurists. Nevertheless, Schmitt’s interpretation transcends philology and even the technical objections of historians and jurists to address the most critical issues of our time. It is political theory par excellence.
[Telos, Spring 93, Issue 95]