Artemy Magun The European University at Saint-Petersburg and Smolny College of Liberal Arts and Sciences

Carl Schmitts Nomos of the Earth and the Evolution of His Thought

(1) Today, twenty years after the end of the Cold War and of the international system built of two opposing blocs, it is increasingly obvious that this system gave rise not to any new stable system, but to an ongoing crisis in international relations, particularly regarding the law of war and peace. This crisis above all consists in the erosion of all external political frontiers, and the coexistence of a universal world order oriented at the regulative idea of eternal peace, with a no less universal, expanding war. This war, which has proliferating local centres, no longer has an inter-state status with two equivalent parts each recognising the other as such, but is, in a way, a civil war of the world community and/or of the big world powers against various extremists, terrorists, and the like. Because most local conflicts attract intervention by world powers, they turn into police operations, on one side of a conflict, and into partisan resistance on the other.@1 This eternal peace-war is the result of the internalisation of international law, where borders of sovereign states no longer constitute an outside subject against whom one can go to war, but are rather sites of a pacified and suspended internal conflict.

The common reactions to this crisis are the following: the optimistic liberal one that bets on eternal peace and considers the proliferating wars as rudiments of the pre-Enlightenment era; the postmodernist one that sees the current crisis as a symptom of the transformation of the entire world into a new non-classical, de-centred, post-modern universe; and the conservative (realist) one that regrets the disappearance of the normal political order and searches for a new big political rival of the USA. This crisis was anticipated and described by the great German political thinker Carl Schmitt already at the end of World War II. The Cold War, with its divided unity of the world (Schmitt, 1952), only deferred but could not cancel the problem of the globalisation of sovereign law. Schmitt is widely read today: his apology of the political as based on conflict is dear to those on the liberal left who would like to save the space for subjectivity and indeterminacy in a world increasingly governed by experts; his idea of the state of exception describes well the current proliferation of emergency zones; his philosophical approach to politics satisfies the demand of encyclopaedic minds. However, most of the left/liberal readers of Schmitt are well aware of his Nazi involvement and try to locate the proto-Nazi elements of his thought. Thus, Chantal Mouffe (2000) rejects Schmitts notion of the absolute, existential conflict and develops an idea of a tamed agonistic type of political relationship which implies a shared public space but is nevertheless adversarial. Jacques Derrida (1997), in his reading, criticises Schmitts privileging of enemies over friends and his definition of the political in strictly

oppositional terms. Instead, Derrida insists on the internal, indeterminate type of friend-enemy distinction which, as he shows, is in truth a diffrance, a deferred internal difference within the same. Derrida (1997, p.89) particularly notes that Schmitts distinction between the political and the domestic, as well as his insistence on the European nature of the properly political, indicates the site of a defensive operation against an enemy of the political. The latter would imply an absolute hostility and a just war that would no longer be political in Schmitts own terms. Giorgio Agamben (2005),@2 on his part, accuses Schmitt of conceiving the state of exception so as to fictionally legitimise extreme violence by means of law, instead of (as Schmitt himself would claim) going beyond law and connecting it with the extraordinary in being. Agambens Schmitt would thus be, like the Nazis, a pseudo-revolutionary and a pseudo-exceptionalist at the service of techno-rationalist order. However, these and other authors, while separating in Schmitts legacy the husk of Nazism from the grain of truth, usually miss the internal evolution of Schmitt who provides, in his Nomos of the Earth and Theory of the Partisan, a self-critique and a meta-theory explaining his earlier apologies of friend-enemy distinction and of sovereignty as declaration of a state of exception, and limiting the scope of these categories.

Let us now briefly evoke this evolution of Schmitt. Already in The Concept of the Political he points at the process of universalisation and internalisation of law, not at the international level as yet, but in the framework

of a state.@3 Inside a country, he says, there gradually disappears the border between state and society, and war increasingly becomes civil war. The conclusion from this interiorisation and totalisation of politics could be, as it later happens, the disappearance of determinate borders between friends and enemies. But Schmitt draws an opposite conclusion. It is precisely now, at the moment that the state is dissolved (back) in society, and society becomes political again,@4 that the firm distinction of friend and enemy matters even more, because this distinction is no longer natural, no longer scientific, no longer delegated to the state, but is an existential decision that constitutes a political subject out of a social element. The political is no longer identified with the state, it is identified with the decision about the (rationally) undecidable. However, as such, the classical friend-enemy distinction (borrowed from Plato, who partly accepts and partly rejects it) is considered to be a way to introduce at least some order and rationality into politics, on the condition of preserving its unpredictable freedom. Schmitts target are the liberals who, like Woodrow Wilson and Hans Kelsen, argued for a future world state and the universalisation of law. Concretely speaking, Schmitt wants to expose the hypocrisy and error of the universalist accusation of war and of an aggressor made in the Versaille agreements. For Schmitt, this approach would not signify the end of wars, but would instead lead to their intensification (given their repressed, irrational status) and to the demonisation of enemies. His own definition of the political

includes physical killing of the enemy as a permanent albeit extreme possibility. But, Leo Strauss (1996) was right when, in his review of The Concept of the Political, he emphasised the liberal normativity present in Schmitts account (it is precisely this normative line of argument that Chantal Mouffe continues in The Democratic Paradox and other works on Schmitt@5). Criticising liberals for moralising in politics, Schmitt himself takes a moralist approach, enjoining subjects to determine themselves and to make decisions with regard to their positions. Strauss points out that Schmitt reproduces on the international level the ideology of mutual recognition that he rejects at the level of internal politics as indecisive parliamentarism. It is unclear who, which moral authority, can be the source of such imperatives (recognise your enemies, respect the possibility of conflict, etc.). Furthermore, as we have seen with Derrida, this moralism of Schmitt may be seen as politically problematic in retrospective, since the requirement to choose and to define ones part and party may lead to violence against those undetermined, those refusing to decide such as the supposedly protean, ambivalent Jews. The same accusation could be made against Stalins regime, which required of everyone to determine themselves ideologically and often made enemies of the people from those who were just hesitant. Both Strauss and Derrida rightly imply that the friend-enemy distinction cannot be something naturally given (as Hobbes, for example, thought it was). Schmitt himself speaks of this distinction as of an a priori, transcendental

condition of the political as a sphere of being. His philosophical reference is Kierkegaard,@6 behind whom stands Hegel with his constant emphasis on negativity as the pre-condition of human public life.@7 But, Hegelian negativity, and negativity in general, is a complicated concept. First of all, negation is equivocal: it may mean opposition, and may mean contradiction.@8 Schmitt, in The Concept of the Political, understands distinction as an opposition: for him, the choice either-or is between friendship and enmity, for and against, while the refusal to choose is just irresponsible. However, correctly speaking, the non-friend is not necessarily an enemy, not even because it would observe neutrality, but because it could be inhuman, it could be not recognised as a human being or a collection of human beings worthy of its name, or it could not recognise itself as such. A political distinction does not necessarily have to be made between two symmetrical equivalent instances recognising each other. Behind each determinable border between two opposed entities, there lies a deeper more fundamental indeterminate border between an entity and its other between oneself and not-oneself, between a friend and a nonfriend (enemy, for Schmitt (1996, p.27), is a figure of the other, the stranger existentially something different and alien, therefore friend is something which remains close, too close, to the self). This border is, in a way, a border as such, the very possibility of a border in a milieu where the distinction (negativity) remains potential. Such a border is by definition internal, it fractures the one, and it is hard to say what the other entity it delimits is. The civil wars and class antagonisms that Schmitt invokes

in his book as instances of enmity in fact differ from international wars: they are more intense; precisely because the enemy is too close and harder to distinguish, it constantly escapes the violence of determination thus becoming, paradoxically, even more of an enemy. Because the enemy is, in a way, a friend, but not quite, he is becoming an absolute enemy, in a reflexive way. The more he is (could be) a friend, the more he is (could be) an enemy. Schmitt does not see this clearly yet in The Concept of the Political (which tries to treat internal conflicts as though they were external ones), but in the late Theory of the Partisan he is completely aware of this difference between internal and external politics, and introduces the concept of absolute enemy for a figure that is precisely not an enemy in the immediate sense of the word. A partisan is an internal, indeterminate enemy, the figure that disturbs the very opposition friend-enemy, and this is why it is so much hated. Of course, it would be good if all enemies would be external, externalisable. In a way, this is a telos of an enemy, the one we want to separate from ourselves. But how to achieve this? Is not an enemy just a regulative idea of any Other? The friend-enemy distinction is even more idealistic, provided the obvious fact that it postulates the subjects unilateral pow er of decision and ignores the symmetrical decision to be made by the other. The friend-enemy distinction made by oneself would already delimit and determine the enemy, who could prefer to aspire to universal validity and reject the definition of enemy and the very distinction offered by the Other. This is particularly true for the current civil war situation, where terrorists try to construe a

symmetrical friend-enemy distinction (the USA against the Islamic world, Russia against Ichkeria), while the global powers speak instead of an asymmetrical war of the whole humanity against terrorists or extremists. Derrida, in his reading of Schmitt, notes this problem, and reproaches Schmitt for excluding the private sphere and the non-European world from the sphere of oppositional politics. For him, absolute hostility, which is even the more hostile the more friendly the parties to the conflict are,@9 is the figure of any hostility. Although Derrida (1997, p.120) sees Theory of the Partisan as an auto-critique sui generis, he does not at all use The Nomos of the Earth in his account.@10 But The Nomos of the Earth is crucial here, because it denaturalises the borders of the political, recognises the irreducible indistinction between friend and enemy as a universal rule, and then points at the constitution of the sphere where friends and enemies are distinct as a result of a historical existential decision to separate it from the vertiginous absolute

friendship/hostility. The fixity and positing involved in the political are then only tentative and finite, always drawing their force from the adjacent space of indistinct and interwoven determinations. Schmitts project is then much closer to Derrida than the latter himself would recognise. Thus, the hidden play of contradictory meanings that Derrida tracks in a text usually informs, for a normal reader, the rhetorical force of this text and the illusion of its positive meaning.

(2) It is by the end of World War II that Schmitt became clear on the fact that his appeal to found politics on the friend-enemy distinction had been inadequate to the situation, either theoretically or practically. Firstly, this war was in a large part, and on a large scale, a partisan war, and the distinction between combatants and non-combatants was abandoned in it. Secondly, Schmitt felt his own responsibility because his teaching, meant to prevent a limitless war, in fact helped one of the sides to unleash it. Thirdly, international law after the war tended, even to a larger degree than Versailles, towards a moralist, pacifist, and internationalist setting even if disagreeing with it, stronger arguments had to be advanced than the mere a priori requirement to divide friends and enemies. Therefore, Schmitt turned from his Neo-Kantian method of a priori categorisation to a philosophy of history, which seeks to present the constitution of the political, its historical origin and conditions (not in the sense of external, empirical history, but of a history that already includes and implies reflection). Here, it is not the sides of the distinction that matter, but the very event of distinguishing something, the border itself and its emergence. At the end of World War II, Schmitt composed a voluminous work that gives a metaphysical account of the history of Modern international law. The book is titled Der Nomos der Erde, The Nomos of the Earth, and appeared in 1950. Before any politics, Schmitt writes, there emerges a nomos, which, in Greek, signifies division and distribution and only then, law. Schmitt underlines the originally spatial meaning of this word and sees the drawing of spatial boundaries to be the matrix of legal thinking (by the way, already in The

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Concept of the Political, Schmitt used the German words Unterschied for distinction and Entscheidung for decision both words deriving from scheiden, to cut). A Nomos is a specific finite spatio-temporal horizon which determines, for a certain epoch, a structural division of the Earth surface. A Nomos is defined by a historical event. In Schmitts book, the Nomos in question is the one of Modernity, and the founding event is the Great Geographic Discoveries of the fifteenth-sixteenth centuries. In this period, European humanity discovered for itself the Ocean. Metaphysically speaking, this corresponds to the discovery of a void. The Europeans found a space where originally, for them, there had not been any. Therefore, this space was conceived as a void not only in the Ocean which is indeed deserted, but also on the newly discovered land which, though inhabited by savages, was nevertheless seen as res nullius apt for taking. Moreover, Modern culture of this period discovered the void in spheres other than geography: painting learned how to convey the sense of space in a two-dimensional format, and science discovered (in fact, produced) what it calls vacuum, in spite of Aristotles refutation of its existence and of the logical absurdity of the notion. We must recall here Schmitts earlier concept of the state of exception (see Schmitt, 2005, pp.5-15): again, there emerge categories that allow reason to think and posit what (for it!) is not. Negation, negativity, border itself, and not what it delimits, become a reality of its own. Schmitt maintains that this discovery of the void allowed to reconceive rationality and law in territorial terms. It is only after the Discoveries that

Descartes defined the external empirical reality as res extensa, and European political entities became territorial states, unity of territory gradually taking over the dynastic principle. Intra-European politics derived from the reservoir of the Ocean a space for its proper self-mastery. The oceanic and colonial space provided the schema of a free space, while itself remaining undivided and indeterminate. The newly discovered land and sea were conceived under the law of the sea which had always been a law of exception: no rule of regular warfare, no traditional friend-enemy distinctions could be applicable there. Extreme violence, even among fellow Europeans, was acceptable in this desert, the land of tyranny, lawlessness, and natural (Hobbes) warfare. But at the same time, European international law gradually became more civilised. After the Thirty Years War (1618-1648), an international system was created which Schmitt calls Ius Publicum Europaeum. This is an order where sovereign states recognise each other and, what is most important, abandon the universalist idea of war for a just cause (iusta causa). Instead, the apparatus for conceiving and legitimising war became based on the subjects who are involved, and not on the issue that is at stake. Instead of iusta causa, there emerged (in the works of Balthazar Ayala, Francisco Vittoria, and others) a category of iustus hostis, a just (i.e. legitimate) enemy. Another component of the Ius Publicum Europaeum was the doctrine of the balance of powers: states knew they were interested in maintaining the pluriversum of states in order to preserve their own sovereignty, and agreed to act against a state that would aspire to hegemony. Finally, the Europeans of that time developed the content

of the law of nations ius gentium rules that were increasingly applied to prevent damage to civilians, torture of prisoners, and the like excesses. It is not hard to recognise in this nostalgic picture Schmitts earlier description of the friend-enemy distinction as a universal definition of the political. But now, he takes a radical new step: regular politics, with subjects mutually recognising each other as opposed entities, implies and depends on its other the space of irregular warfare, in which a friend and enemy are hard to recognise. Humane international law, earlier held suspect by Schmitt for its universality is valid if held not by a neutral imperial power or by an invisible hand of progress but by the experience and adjacency of what contradicts it. This dual Nomos is concretely embodied in the so-called amity lines the imaginary meridians that divided the world into halves (or other shares) of friendship and enmity (Schmitt, 2006, p.90ff). The first such amity line was drawn in a treaty between France and Spain signed in 1559. According to this treaty, on the European side of the line, the sides agreed to be friends to be at peace or, in the case of a conflict, to resolve it through limited warfare. But beyond this line, the sides agreed not to take on themselves any responsibilities, which is to say that a French ship could capture and sink a Spanish one, and vice versa. There is thus not one distinction, but two: a distinction (friend-enemy), and a distinction between this distinction and a non-distinction (or, which is the same thing, an indeterminate ubiquitous distinction). The latter border is a meta-border, so to speak, a border of borders this is the amity line (it is not by

chance that it is not the enmity line: the meta-border between the internal and the external is itself internal). By drawing amity lines, the European space defined the space that is external to it, making it not just external, but internally external. Schmitt emphasises the salutary effects of such division, although the argument may be easily inverted (as does Agamben) to show that it is indeed the European civilised space that posited and thus indirectly or directly produced a zone of violence, gradually turning the non-European world into a state of exception. We need not forget, however, that the real foundation of the Modern Nomos are not the amity lines taken as such, but the event where the borders of the old world were destroyed: it is after this negative and opening event that the more positive act of line-drawing could take place. Now, as is easy to guess, the Ius Publicum Europaeum came to an end, too. To explain the current situation, Schmitt tells the story of its gradual decay which led to the erosion and erasure of the amity lines and their analoga. Indeed, throughout the three hundred years of their existence, the world lines of Modernity are subject to an osmosis between the two sides of their space. This osmosis liquidates the difference in potentials that has maintained the Modern Nomos. The key elements of this process are, for Schmitt, firstly, the democratisation of state politics in Europe and, secondly, the gradual transformation of the status of colonies, their obtention of a sovereign status. The main stages of the destruction of the Modern Nomos of the Earth were the following:

(1) The French Revolution, which led to the creation of mobilisational armies and of partisan wars against Napoleon (in Spain and Russia). Partisan wars no longer follow the rule of mutual recognition of enemies: here the question is of absolute not relative enmity: an absolute enemy embodies negativity as such as is the one that should not have even existed: thus, the very contrary of the enemy in a regular sense of the word. Absolute enmity leads to total destruction. Meanwhile, says Schmitt, the Ius Publicum Europaeum survived the Napoleonic wars and was extended for about one hundred years through the efforts of the Vienna Congress. (2) Starting at the end of the nineteenth century, the colonies of European states began to acquire sovereign status. Schmitt draws in particular on the first such case: the international recognition, in 1885, of the sovereignty of Congo, which at the same time did not annul its de facto colonisation by several European states. Thus, the very principle founding European international law was, according to Schmitt, annulled. Jurists believed that Europe was being complimented by the reception of non-Europeans and did not notice that, in fact, they were loosening all the foundations of a reception, because the former order good or bad, but in any case conceived of as clear and concrete order, above all as a spatial order, by a true community of European princely houses, states, and nations had disappeared. What appeared in its place was no system of states but by a collection of states randomly joined together by factual relations a disorganised mass of more than fifty heterogeneous states lacking any spatial or

spiritual consciousness of what they once had in common, a chaos of reputedly equal and equally sovereign states and their dispersed possessions, in which a common bracketing of war no longer was feasible and for which not even the concept of civilisation could provide any concrete homogeneity (Schmitt, 2006, p. 233-234). Note what Schmitt emphasises here. He is not particularly defending a creation of a state of exception in Congo that would legitimise violence, etc. What he denounces, quite consistently with his early argument in Political Theology,@11 is the universality abandoning all care of facts. The concept of sovereignty applied to all states becomes merely a formal principle which loses its determinate meaning. Law, a formal sphere by definition, needs a pre-legal Nomos that would specify the field of its applicability, the rule of applying rules to facts. Otherwise, it becomes dis-applied and turns into empty lip service. The universalisation of the European regular space turned in fact into its fusion with the non-European law of the sea, of the regime of indeterminate and ubiquitous hostility.

(3) The third step in the destruction of European law was, for Schmitt, the First World War and its aftermath. Not only was it unprecedented in number of casualties, including casualties among civilians. Moreover, it re-actualised the old logic of iusta causa. The victorious powers departed from the earlier existing practice and did not limit themselves to annexations and contributions: they legally fixed the accusation of Germany as being an aggressor and a

militarist state, introduced into the Versailles Treaty and into the Geneva Declaration (1924) a norm that denounced for the future any aggression (i.e. starting of a war). Thus, says Schmitt, the older discriminating notion of war was revived: that is, the notion of a iusta causa. Indeed, a country that starts a war will lead an unjust war, and a country that resists it will lead a just war. In practice this means that countries will abstain from formally declaring a war, will accuse each other of first provocation, and will argue that the war is conducted in the interest of humanity against the enemies of humanity. Thus, the limitation of war and the recognition of an enemy will be endangered (one does not choose means in a war for a just cause).

(4) As though on purpose, says Schmitt, new technological means emerged that changed the character of war. Schmitt does not yet mention the nuclear bomb but attracts attention to airplanes and submarines machines which conquered two new elements (air and water depths). Firstly, these technologies, writes Schmitt, potentially make war asymmetrical (the attacker may remain invulnerable at attacking) and ideally fit for a war that appears as a punitive, police action aimed against a criminal. Secondly, these technologies are by definition not created to occupy a territory or take prisoners (the highly important goals of preceding wars) but rather fit for raids, interventions, etc., exclusively destined to destruction and killing.

As a result of these events, there came the dissolution of the global legal order of Modernity. Instead of the dualism of the regular and irregular spaces there comes a situation that Schmitt characterises as Raumlosigkeit, spacelessness. All distinctions and borders become indeterminate, internal. Distances are annulled. Men and states lose reference to an opening empty world, which had for hundreds of years served as a foundation of political sovereignty and individual subjectivity. In exchange, there emerge the intensive internal spaces, where the constant crises fracture, ad infinitum, the already secluded spaces, such as zones of territorial conflicts.

This is, in a nutshell, the story told by Schmitt in The Nomos of the Earth and other works from his late period. It describes the current (post-World War II) global situation as a situation of crisis linked to the universalisation and internalisation of law. All borders here become Kafkaesque points of suspension and deferral rather than of decision and foundation. All problems and conflicts are suspended, all subjects are fractured and subdivided. The execution and administration of law takes the place of its public sovereign function. In internal politics, consensual moralism takes the place of democratic debate. It is important to see this account as a meta-theory created by Schmitt to objectively explain the possibility of a regular politics and of a friend-enemy relationship that he recommends. This relationship becomes then not a normative requirement but an objective historical regime existing with some

preconditions. This work of Schmitt disarms his later critics, such as Derrida or iek (1999), who reproach him for ignoring the internal indeterminate border between self and enemy, the zone of their indistinction, etc. In The Nomos of the Earth, Schmitt takes this internal, spectral difference into account but shows how it gives birth to a more definite external type of distinction: they relate in the way that constituent power relates to constituted power. Thus, Schmitt historicises his conception of politics. This is a great strength of his book, although it also contains a weakness. This is a weakness common to many philosophies of history that try to give an event metaphysical significance: the event Schmitt describes is empirical, occurring at a certain time, but the way it is described makes it, in a way, an event as such, the very form of a historical event (that divides chaos from order). Such theories (another example is Alain Badious philosophy of event: see Badiou, 2005) cannot escape an element of myth. A response, however, could refer to the retrospective interpretation of an event which is our finite horizon: because this event is our foundation, we can only think of it in universalist, transcendental terms, even though these forms are forms of emergence. Of all classic commentators of Schmitt, it is only Giorgio Agamben who, in Homo Sacer, gives justice to this grand narrative of Schmitts Nomos of the Earth. In fact, Agamben bases the core argument of this book on Schmitt. He writes:

@The process (which Schmitt carefully described and which we are still living) that began to become apparent in the First World War, through which the constitutive link between the localization and ordering of the old nomos was broken and the entire system of the reciprocal limitations and rules of the Ius Publicum Europaeum brought to ruin, has its hidden ground in the sovereign exception. What happened and is still happening before our eyes is that the juridically empty space of the state of exception has transgressed its spatiotemporal boundaries and now, overflowing outside them, is starting to coincide with the normal order, in which everything again becomes possible. (Agamben, 1998, p.28)@
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Thus, at the current moment of@what is happening in the processes of dissolution of traditional state forms in Eastern Europe [p]olitical organization is not regressing toward outdated forms; rather, premonitory events are, like bloody masses, announcing the new nomos of the earth, which (if its grounding principle is not called into question) will soon extend itself over the entire planet. (Ibid.)@
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True, generally, to Schmitt but even in this account Agamben makes some shifts which will become more visible in his later work (State of Exception), the one that criticises Schmitts attempt to guarantee the articulation between an inside and an outside, to reinscribe violence within a juridical context, and even to invent fictions through which law attempts to

encompass its own absence and to appropriate the state of exception (Agamben, 2005, pp.57, 59, 51). Agamben opposes to Schmitt the standpoint of Walter Benjamins effective state of exception, which is a zone of absolute indeterminacy between anomie and law (ibid., p.57) In the quoted passages Agamben departs from Schmitt because for him, the current growth of the space of exception is the coming to the surface of what had been hidden in the very notion of law from the very start. Similarly, he calls the new situation after the destruction of borders between regular and irregular space, an anticipation of a new Nomos of the Earth. Now, for Schmitt, the Modern state of exception was not an anticipation of todays camps etc., but an attempt to take into account the existence of indistinguishable zones. The provision of such zones does not necessary feed violence, instead it may be a readiness to live with the indeterminacy and indistinction between the self and the other. Furthermore, the current regime of empty universality, in Schmitts view, is not a new Nomos but a destruction of the old one: a nomos would imply new divisions, new redistributions of inside, outside, and inbetween.@12 The new situation does in fact provide for exceptions, because it conflates law and exception. In Agambens account, extremely subtle as it is, we can see a tendency to reify the zone of exception as a space of arbitrary rule and violence. In Schmitt, this is rather a sphere of openness of the subject to alterity, which at the same time refuses to recognise this alterity immediately in the familiar categories.@13 Schmitt tends to take negation, and negativity, seriously, in
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spite of their unavoidably weak and failed epistemological status (we halfaffirm what we negate). Agamben rejects any such negative statements, selflimitations, etc., proposing his own negative model the severing of all relations of the subject to the object, complete abandonment without halfnoticing the thing that you abandon. Such radical negation could be salutary, but is it possible? Is not it also, in a way, a defeat in front of the infinite or indeterminable? Schmitts comment on the sovereignty of Congo, which I quoted above, accentuates that for Schmitt the state of exception and the need of amity lines are inspired by the desire to ground law in the fact and to return to law the character of a concrete order. An important point for the current situation in post-Soviet states, for example, where the abstract premises of liberal contractual law are often imposed upon the established set of practices, with the result that these practices are criminalised, and law, implemented arbitrarily against individuals badly seen by the rulers (the case of Khodorkovskys imprisonment in Russia (2003) and numerous others). Paradoxically, here it is the law not illegality that needs a sovereign decision on exception to be applied. This situation is an inversion of Benjamins wellknown formula: The state of exception [that] becomes a law here, rather, law itself becomes an exception. Schmitt does not, to my knowledge, refer to such possibility, but Agamben does give a theoretical tool for thinking this situation. In Homo Sacer he points at the duality of example and exception: exception is inclusive exclusion, example is exclusive inclusion: the former is reality outside of law, the latter is law itself as an outside of reality. i
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Thus, Schmitt and his contemporary followers eloquently describe the current crisis, the crisis where law and politics lose their determinacy. Schmitt shows how this crisis follows from a destruction of the previously existing concrete order of power, while Agamben sees it on the contrary as a culmination of tendencies inherent in the very idea of law (which always need to encircle a sphere of the outlaw). Agamben, with his archaic references, refutes Schmitts historical or meta-historical account. But the question is, what follows from this reasonable critique? Agamben describes the current situation in an apocalyptic mood and the only solution he sees is a des-activation of law and an exit beyond the principle of sovereignty. Schmitt, unlike him, treats the current crisis historically, not as a human condition or as a culmination of the millennial human history, but in the context of a specific, even if prolonged, event. The current process of dissolution is thus to be thought only from the perspective of this founding event (which it in many ways reenacts). The problem is, then, not the existence of law as such appeals to its nullity are not new, and have sounded at least since the Greek sophists and Saint Paul. But Modern law, created in a practical thrust of humans to conquer the Ocean, itself determined the further history in a decisive way, by dividing the two different types of considering conflict. The problem is, then, not the formality and positivity of law as such, but the forgetting of the historical essence of law, which right now is often reduced to arbitrary positive regulation or to natural human rights. Moreover, the problem is not the mere fact that law produces states of exception, but that it

produces them, so to say, not knowing them, and excludes of law completely, like the liberal contract law which outlaws and thus perpetuates corruption. Schmitts sovereignty is something else it is a paradoxical structure where law recognises the situation not solvable within law, as though using a periphery vision, in spite of itself. Agamben does not distinguish between the situation where the statue of Themis is veiled (his preferred emblem of the state of exception) and the situation where she points aside, to what it cannot see. But for Schmitt, it is this distinction that matters, hence his pathos of angry reproach and his political activism. For Schmitt we have not too many, but too few states of exception, because we have lost our capacity to distinguish them from the normal ones. To Schmitt, the state of exception is not arbitrary rule, but a procedure of decision-making. This procedure may be dictatorial, but it may also be a radical democratic one. The paradox of a dictatorship is to rule arbitrarily while being a delegate of someone else (the people, for instance) in this case most of our democracies are, in Schmitts sense, dictatorships. His work on dictatorship criticises the illusion of an omnipotent sovereign will or (which is the same thing) of an absolutely arbitrary rule. He thus creates a background for the subsequent concept of state of exception where law does remain valid negatively, so to speak in spite of its authorisation of the discretionary powers of the relevant authorities. Chantal Mouffe is to be credited for drawing our attention to the paradoxical nature of Modern democracy. Paradox, for her, is the simultaneous

validity of the liberal and democratic principles, namely, equality and liberty, absolute human rights and the political logic of internal struggles for hegemony (Mouffe, 2000, p.8). However, she thinks that unlike a contradiction, paradox is not destructive, but allows building a workable paradoxical configuration (ibid., p.13), such as the coexistence of friendly enemies (a properly paradoxical formulation). Mouffe rightly sees that for Schmitt, liberal democracy is an internal contradiction and not a fruitful paradox, if we understand by liberalism the logic of negotiation of differences. Paradox, for him, is elsewhere: it is the one between the constituent and constituted power, or between legality and sovereignty. Sovereignty can mean here a dictatorial rule, but also a democratic plebiscite. This, for Schmitt, is the democratic paradox, which is not to be resolved on a regular basis but is to be recognised as such, via an eventful exit of legal reason out of its borders. This is why Schmitt privileges enmity over friendship: for him, a paradox can only have an external, ex-ceptional solution, while Mouffe, like Hegel, Derrida, and Agamben, insists on the internality of enemies and exceptions. One should not forget that Schmitt was a disciple of Kierkegaard, for whom paradox, one of his key concepts, was something that excluded mediation but could only be grasped as a unique existential event. Andreas Kalyvas is therefore right when he sees Schmitts force, and at the same time weakness, in conceiving democracy as a politics of the extraordinary: a regime that provides and allows for exceptional appeals to people. Real democracy in this sense (and this is something that goes against

Mouffes attempts to domesticate and stabilise antagonism) can only be extraordinary. The danger lies, for Kalyvas, in the fact that such politics may reduce and isolate democracy in rare and unwanted events: his bet (and he enlists Schmitt as his ally) is to multiply the extraordinary democratic forms within a given legal order.

@For democracy to be an effective and viable regime, it has to move from the extraordinary and unstable moment of its popular founding to the most prosaic but equally essential ordinary moment of its institutionalization and normalization, that is, of its constitutionalization. (Kalyvas, 2008, p.135)@

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Of course, this appeal to normalise the abnormal may be seen, like Mouffes, as a suggestion to soften the paradox of the political. But at the same time, its very formulation preserves the paradox Generally speaking, the paradox of democracy is not the tension between difference and equality, or between liberty and peoples power: it is the very power of the powerless (see Havel, 2009) or la part des sans-parts (Rancire, 1999) the need to rule for the people who do not rule by definition. Democracy can solve this question by having a procedure of dissolving the ruling organs of a state when, in a deadlock, the usual representatives are sent back, and the government addresses the people directly, not via a referendum, but via an ad hoc direct popular discussion on the model of soviets Kalyvas is right on this point.

This is all good on the assumption that we see Modern politics as democratic. But even in an undemocratic version of the Modern State, a state of exception can still make a difference. To give again an example from Russian politics: the war in Chechnya, started in 1994, finished by a peace agreement in 1996, and renewed in 1999, was justly denounced as a process that involved mass violence against civilians, cruel treatment of prisoners, etc., on both sides of the conflict. It would seem that this enclave of violence and, as the Russian word goes, of bespredel (limitlessness of violence) is a good illustration of Agambens state of exception that supplements the relatively peaceful state building in the rest of the Russian Federation. However, it must be noted that the Russian authorities consistently refused to declare a state of emergency in the Chechen Republic. The Presidents Administration repeatedly blocked this initiative when it was proposed by the Duma. As a result, the law used against prisoners and other enemy combatants is regular criminal law (with its habeas corpus, etc.). Needless to say, its requirements were completely unrealistic and usually ignored. Law was construed as something formal and detached from reality. The existing situation was that of bespredel (limitlessness of power). A state of emergency would at least introduce a perception that law is destined to reflect reality and an attempt to codify the minimum of rules for the Russian soldiers. It was not done, and it is clear why. Can we then call the anomie, with Agamben, a state of exception, and blame its horrors on law itself? To develop this example somewhat more, the Chechen war, like similar guerilla uprisings, would have a special legal definition in mediaeval, preCon formato: Sin Resaltar

Modern law before the state of exception was evacuated into colonies. This was the so-called right to resistance (Widerstandsrecht) that codified a civil (private) war on the part of a subject of Empire. A person starting such a war would be a rebel to be put to peace by the imperial troops. But at the same time, he had certain rights, like the right for his claim to be heard in court. Note the paradoxical nature of this law: like Modern democracy, the mediaeval Widerstandsrecht tried to give a right to the illegal, to include it, in a way, into the sphere of public recognition. This mediaeval precedent should perhaps serve as a model for treating the proliferating civil wars in todays world. To the current tendency that transforms international conflicts into civil ones, one has to oppose a transformation of some parts of internal law into international law (by adding the law of civil war and peace into the constitutions, for example).@14 To conclude this article, I need to restate the original constatation. The current homogeneity and globalisation of law risks to put the world into a situation of unlimited civil war. The abstract universality of contemporary law requires creation of exceptions, of political and legal off-shores, so to say: sometimes to extend democracy, sometimes to limit it in an open way. These off-shores can become spaces of camps and torture, but can equally become laboratories of freedom. For the latter to be the case, one needs both a political subjectivisation and a sobering of the liberal legal rationality, which either believes that it can describe the totality of human relations, or abandons any

hope of doing so by retreating into a zone of autonomous formalism. Law should learn to set limits to itself and look awry beyond these limits.

References

Agamben, G. (1998) Homo sacer: sovereign power and bare life. Translated by Daniel Heller-Roazen. Stanford, CA: Stanford University Press. Agamben, G. (2005) State of exception. Translated by Kevin Attell. Chicago and London: University of Chicago Press. Aristotle (1975) De Interpretatione. In: Aristotle, Categories and De Interpretatione. Translated by J.L. Ackrill. Oxford: Clarendon Press, pp.43-68. Badiou, A. (2005) Being and event. Translated by Oliver Feltham. London: Continuum. Derrida, J. (1997) The politics of friendship. Translated by George Collins. London and New York: Verso. Hardt, M. and A. Negri (2004) Multitude: war and democracy in the age of empire. New York: The Penguin Press. Havel, V. (2009) The power of the powerless. In: Havel, V. et al., The power of the powerless. [CITY???:] Taylor & Francis[, pp.???].

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Hegel, G.W.F. (1969) Science of logic. Translated by A.V. Miller. London: George Allen & Unwin. Kalyvas, A. (2008) Democracy and the politics of the extraordinary. Max Weber, Carl Schmitt, and Hannah Arendt. Cambridge: Cambridge University Press. Kervgan, J.-F. (1992) Hegel, Carl Schmitt. Le politique entre spculation et positivit. Paris: PUF. Lwith, K. (1984) Der okkasionnelle Dezisionismus von Carl Schmitt. In: Lwith, K., Smtliche Schriften, Bd. 8. Stuttgart: Metzler, S.32-71. Magun, A. (2009) What is an orientation in history? Openness and subjectivity. Telos 147 (Summer 2009), pp.121-148. Marx, K. (1978) On the Jewish question. In: Tucker, R.C. (ed.), The MarxEngels reader. 2nd ed. New York: W. W. Norton & Company, pp.26-52. Mouffe, C. (2000) The democratic paradox. London and New York: Verso. Rancire, J. (1999) Dis-agreement: politics and philosophy. Translated by Julie Rose. Minneapolis: University of Minnesota Press. Schmitt, C. (1952) Die Einheit der Welt. Merkur, 6 (1), S.1-11. Schmitt, C. (1996) The concept of the political. Translated by George Schwab. Chicago and London: University of Chicago Press.
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Schmitt, C. (2006) The Nomos of the Earth in the international law of the Jus Publicum Europaeum. Translated by G.L. Ulmen. New York: Telos Press Publishing. Schmitt, C. (2005) Political theology. Translated by George Schwab. Chicago and London: University of Chicago Press. Strauss, L. (1996) Notes on The concept of the political. In: Schmitt, C., The concept of the political, pp.83-106. iek, S. (1999) Carl Schmitt in the age of post-politics. In: Mouffe, C. (ed.), The challenge of Carl Schmitt. London and New York: Verso, pp.18-37. Notes 1 For a good analysis of the current right and phenomenon of war, see Hardt and Negri, 2004. They write (p.3): There are innumerable armed conflicts waged across the globe today, some brief and limited to a specific place, others long lasting and expansive. These conflicts might be best conceived as instances not of war but rather civil war. Hardt and Negri (ibid., pp.14-15) point out the three features of this new world civil war: the limits of war are rendered indeterminate, both spatially and temporally, international relations and domestic politics become increasingly similar and intermingled, and the new conception of friendship and enmity: both abstract and at the same time unlimited, absolute and morally motivated. Hardt and Negris analysis, particularly with regard to the change from the Modern limited to the postCon formato: Sin Resaltar Con formato: Sin Resaltar Con formato: Sin Resaltar Con formato: Sin Resaltar

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Modern unlimited idea of war, comes very close to Schmitts Nomos of the Earth, a work that they curiously do not cite (unlike many other works of Schmitt). 2 For instance, see p. 59: The attempt of state power to annex anomie through the state of exception is unmasked by Benjamin for being what it is: a fictio iuris par excellence, which claims to maintain the law in its very suspension as force-of-. 3 As Schmitt thinks this happens: see Schmitt, 1996, pp.19-22. 4 Cf. Marx (1978) on the political nature of mediaeval society and on its depoliticisation in the Modern era. 5 A symptomatic phrase from The Democratic Paradox, p.117: I have proposed to envisage [THIS IS HOW THE SENTENCE ON P.117 GOES IN MY COPY OF THE BOOK, NOT [T]he aim of???] democratic politics as a form of agonistic pluralism in order to stress that in modern democratic politics, the crucial problem is how to transform antagonism into agonism. The full sentence goes like this: I have proposed to envisage democratic politics as a form of 'agonistic pluralism' in order to stress that in modem democratic politics, the crucial problem is how to transform antagonism into agonism. In my view the aim of democratic politics should be to provide the framework through which conRicts can take the form of an agonistic confrontation among adversaries instead of manifesting themselves as an antagonistic struggle between enemies. 6 On Schmitts connection to Kierkegaard, see Lwith (1984); Kervgan (1992, pp.129-130).
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7 See Kervgan (1992): Kervgan shows that Schmitt combines, in his own way, the Hegelian negativity with the no less Hegelian insistence on actual, concrete facts. 8 See, for example, Aristotle, De Interpretatione, 17-18b10, [???]; Hegel (1969), Book 2, Division 1, Chapter 2, B3 and C. 9 The enemy [is] he who is at one and the same time the closest, the most familiar, the most familial, the most proper, Derrida (1997, p.163) writes, taking Schmitts late Wisdom of the prison-cell as his point of departure. 10 There is just one mention of this book in Derrida (1997): in the footnote 30, p.270. 11 Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations, [f]or a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation exists (Schmitt, 2005, p.13). In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition (ibid., p.15). 12 Cf. Schmitt, 2006, p.241: the Paris conference, says Schmitt, in no sense created a new order. It left the world in its earlier disorder 13 On this motif of openness in Schmitt, see Magun, 2009. 14 Early liberal theories still assumed this: thus, Locke, in the Second Treatise, calls revolution a re-bellion, a return to a state of war.
i

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Homo Sacer, pp. 21-22. Agamben does not give present-day political correlates for this structure, though.