Carl Schmitt on land and sea

History of European Ideas 37 (2011) 181–189

Contents lists available at ScienceDirect

History of European Ideas journal homepage: www.elsevier.com/locate/histeuroideas

Carl Schmitt on land and sea Joshua Derman Division of Humanities, Hong Kong University of Science and Technology, Hong Kong

A R T I C L E I N F O

A B S T R A C T

Article history: Available online 28 December 2010

Carl Schmitt (1888–1985), one of the leading conservative legal thinkers of the Weimar Republic and Nazi Germany, is best known today for his critique of liberalism. Between the late 1930s and mid-1950s, Schmitt wrote numerous articles and two books addressing the mythical and geopolitical significance of land and sea. In recent years, these texts have begun to attract attention from historians as well as theorists. This article reconstructs the origins of Schmitt’s theories about land and sea, and shows how they developed in the context of his efforts to delegitimize the British Empire and justify the persecution of Jews. It also explains how Schmitt selectively misread the history of maritime law in order to critique the ‘freedom of the seas.’ Finally, it reveals that the meaning Schmitt ascribed to ‘the opposition of the elements of land and sea’ changed dramatically to suit his political needs. For all their evocative qualities and insights, Schmitt’s texts on land and sea do not constitute a coherent theory, but rather a shifting field of polemical positions in search of theoretical support. ß 2010 Elsevier Ltd. All rights reserved.

Keywords: Schmitt Geopolitics Law of the sea Law of war International law

Introduction On a rainy day in the summer of 1940, Carl Schmitt’s daughter Anima asked him to entertain her with a story. ‘At the time I was occupied with questions regarding the international law of the sea,’ he later recalled. ‘In order to remain within the sphere of my topic in international law, and at the same time satisfy my child, I began to speak of pirates and whale hunters.’ Schmitt was surprised by the ease with which he was able to spin the threads of his academic preoccupation into a ripping yarn. ‘I unexpectedly fell into the element of the sea, which until then had been foreign to me. The whole history of the world suddenly revealed itself under the new aspect of the opposition of the elements of land and sea.’1 Within a year’s time, the topic of his children’s story had become an ide´e fixe. ‘The theme ‘‘land and sea’’ no longer lets me go,’ he confessed to his friend Ernst Ju¨nger in the summer of 1941. ‘For months the magnificent Captain Mahan has been my only conversation partner, and I feel myself to be a humble disciple.’2 Schmitt pored over the naval treatises of Alfred T. Mahan and Raoul Castex, immersed himself in Melville’s Moby-Dick and even came to compare himself to the eponymous protagonist of Benito Cereno.3

E-mail address: [email protected]. C. Schmitt, ‘Welt großartigster Spannung’ (1954), in: Staat, Großraum, Nomos. Arbeiten aus den Jahren 1916–1969, ed. G. Maschke (Berlin, 1995), 513. 2 Carl Schmitt to Ernst Ju¨nger, 16 August 1941, in E. Ju¨nger/C. Schmitt, Briefwechsel, ed. H. Kiesel (Stuttgart, 1999), 124. 3 W. E. Scheuerman, Carl Schmitt: The End of Law (Lanham, 1999), 175–80; T. O. Beebee, ‘Carl Schmitt’s Myth of Benito Cereno’, Seminar, 42 (2006), 114–34. 1

0191-6599/$ – see front matter ß 2010 Elsevier Ltd. All rights reserved. doi:10.1016/j.histeuroideas.2010.11.010

When Mircea Eliade visited Berlin in 1942, Schmitt questioned him for hours about maritime civilizations; the erudite Romanian scholar left with the impression that Schmitt had ‘read enormously concerning aquatic art, culture, and symbolism.’4 Over the course of the next decade and a half, Schmitt’s preoccupation found expression in a half-dozen articles on international law, a pocket history of the world entitled Land and Sea and a treatise on international law, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum.5 With few exceptions, it has only been within the last decade that Schmitt’s obsession with land and sea has received serious attention from intellectual historians and from theorists who seek Schmittian inspiration for their own projects.6 The burgeoning

4

M. Eliade, The Portugal Journal, trans. M. L. Ricketts (Albany, 2010), 32. Schmitt, Staat, Großraum, Nomos and C. Schmitt, Frieden oder Pazifismus? Arbeiten zum Vo¨lkerrecht und zur internationalen Politik 1924–1978, ed. G. Maschke (Berlin, 2005); C. Schmitt, Land und Meer. Eine weltgeschichtliche Betrachtung (Leipzig, 1942); C. Schmitt, Der Nomos der Erde im Vo¨lkerrecht des Jus Publicum Europaeum (Berlin, [1950] 1997). 6 See L. Niethammer in collaboration with D. van Laak, Posthistoire: Has History Come to an End?, trans. P. Camiller (London, 1992), 74–6; S. Holmes, The Anatomy of Antiliberalism (Cambridge, MA, 1993), 53–7; J. F. Kerve´gan, ‘Carl Schmitt and ‘‘World Unity’’’, in: The Challenge of Carl Schmitt, ed. C. Mouffe (London, 1999), 54–74; G. Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London, 2000), 240–5; D. van Laak, ‘Von Alfred T. Mahan zu Carl Schmitt: Das Verha¨ltnis von Landund Seemacht’, in: Geopolitik. Grenzga¨nge im Zeitgeist, ed. I. Diekmann, P. Kru¨ger, J. H. Schoeps, vol. 1.1, 1890 bis 1945 (Potsdam, 2000), 257–82; A. Carty, ‘Carl Schmitt’s Critique of Liberal International Legal Order Between 1933 and 1945’, Leiden Journal of International Law, 14 (2001), 25–76; C. L. Connery, ‘Ideologies of Land and Sea: Alfred Thayer Mahan, Carl Schmitt, and the Shaping of Global Myth 5

182

J. Derman / History of European Ideas 37 (2011) 181–189

interest in this aspect of Schmitt’s oeuvre is symptomatic of a broader trend in the humanities that privileges the sea as a site for theorizing. Historians and philosophers have recently focused on the world oceans as the physical medium of globalization and empire, drawn parallels between the treatment of pirates and the ‘illegal enemy combatants’ of the global ‘war on terror,’ and identified the sea as a topos for the new global historiography.7 In light of these new vistas for research, it is important that the context and meaning of Schmitt’s writings on land and sea are properly investigated, lest they be appropriated without a full understanding of the uses to which they were originally put. This essay seeks to explain why the opposition of the elements of land and sea, of all possible topics, came to preoccupy Schmitt so profoundly. What did it mean to him and what function did it serve within the greater economy of his intellectual and political life? How did it reflect the broader concerns and rhetorical techniques that characterize his oeuvre as a whole? What if anything was unique or distinctive about his approach to the topic? In the first part of this essay, I explain how Schmitt’s interest in land and sea developed out of his interwar critique of international law. Starting in the late 1930s, Schmitt charged the victors of World War I with having destroyed the non-discriminating concept of war in international law. The non-discriminating concept of war regarded both belligerent parties, so long as they were sovereign states, as equals in a conflict that was formally equivalent to a duel; instead of distinguishing between morally right and wrong parties, it granted both belligerents the same legal rights and protections. Schmitt argued that the recent ‘turn’ to a discriminating concept of war – that is to say, one that discriminated between just and unjust wars – enabled the Entente powers to criminalize their enemies and pave the way for new ‘total’ wars.8 But when he tried to explain the significance of this turn for the institution of international law, he simultaneously offered two different answers. On some occasions he claimed that the Entente powers had destroyed the preexisting legal order without introducing a new one. However, on other occasions he accused Britain of foisting its own coherent but nefarious system of international law onto the rest of the world. It was from this second line of argument that Schmitt began to elaborate a distinction between two different systems of international law – a British and a continental European one – which he perceived as incommensurable and antagonistic. To bolster his case, he appealed to an alleged disconnect between the norms of British maritime warfare and those of continental land warfare: this seemingly exceptional case, he argued, was symptomatic of a more profound difference. Schmitt’s interest in the discrepancies between the law of land and maritime warfare exemplified a rhetorical trope found throughout his work, namely, the conviction that ‘The exception is more

interesting than the normal case. The normal proves nothing, the exception proves everything; it not only confirms the rule, the rule lives entirely from the exception.’9 Schmitt’s ressentiments against British maritime warfare were shared by many of his German contemporaries.10 In the second part of the essay, I argue that what made his treatment of this theme distinctive was his willingness to root the dichotomy of British and continental international law in an elemental difference of land and sea. After 1939 Schmitt began to articulate a vision of a new German Reich whose form and function stood in opposition to British imperialism: unlike the maritime British Empire, which espoused a creed of abstract universalism through its globally dispersed territories, the German Reich would seek a limited sphere of influence for its concrete vo¨lkisch ideology through a continental ‘great space [Großraum]’. In a twist of Hegelian dialectic, an international legal order of great spaces would sublate the dichotomy of European territorial states and British maritime imperium. Schmitt believed that the coming transition to an international legal order of great spaces constituted a spatial revolution comparable in significance to those of the scientific revolution and the discovery of the New World.11 I show how Schmitt’s wartime writings on land and sea aimed to provide an historical account of the first planetary revolution of space—the one that had initially brought the dichotomy of continental and British international law into being. Schmitt’s Anglophobia led him to make peculiar historical distortions, such as his claim that Hugo Grotius did not appreciate the ‘freedom of the seas’ in a truly planetary sense. Schmitt’s Nomos of the Earth (1950) recycled many of his Nazi-era observations on land and sea. Nonetheless, as I argue in the third part of the essay, these continuities belied a fundamental shift in his understanding of their alleged opposition. In the late 1930s and early 1940s, Schmitt had argued for the existence of two fundamentally antagonistic orders of international law, whose tension was supposed to serve as evidence of Britain’s imperial designs and Germany’s victimhood. I argue that Schmitt intentionally portrayed land and sea in a very different light after World War II. The Nomos of the Earth asserted that the legal orders of land and sea formed an equilibrium between 1713 and 1914 and thereby sustained a benign system of international law. Schmitt thus reprised his first critique of interwar international law—the charge that liberal nations had destroyed a coherent system of international law without introducing a new one in its place. As it made no reference to rival British and German imperialisms, this style of critique now served to distance him from his National Socialist past. For all their evocative qualities and insights, Schmitt’s texts on land and sea do not constitute a coherent theory, but rather a shifting field of polemical positions in search of theoretical support. Positions, concepts, systems

Elements’, Boundary 2, 28/2 (2001), 173–201; C. Burchard, ‘Interlinking the Domestic with the International: Carl Schmitt on Democracy and International Relations’, Leiden Journal of International Law, 19 (2006), 9–40; M. Dean, ‘A Political Mythology of World Order: Carl Schmitt’s Nomos’, Theory, Culture & Society, 23/5 (2006), 1–22; D. Armitage, ‘The Elephant and the Whale: Empires of Land and Sea’, Journal of Maritime History, (July 2007), http://www.history.fas.harvard.edu/people/ faculty/documents/armitage-elephantandthewhale.pdf, accessed on 18 June 2010; W. Boelhower, ‘The Rise of the New Atlantic Studies Matrix’, American Literary History, 20 (2008), 83–101; D. Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (New York, 2009), 163–70; W. Hooker, Carl Schmitt’s International Thought: Order and Orientation (Cambridge, 2009), 69–101. 7 See P. Sloterdijk, Im Weltinnenraum des Kapitals. Fu¨r eine philosophische Theorie der Globalisierung (Frankfurt am Main, 2005); C. Connery, ‘There was No More Sea: The Supersession of the Ocean, From the Bible to Cyberspace’, Journal of Historical Geography, 32 (2006), 494–511; K. Wigen, ‘Introduction: Oceans of History’, American Historical Review, 111 (2006), 717–21; J. Greene, ‘Hostis Humani Generis’, Critical Inquiry, 34 (2008), 683–705; L. Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge, 2010). 8 C. Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff (Berlin, [1938] 2003).

Germany’s position in international affairs had always been one of Schmitt’s primary concerns. Starting in the mid-1920s, he expressed his resentment of the occupation of the Rhineland and 9 C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souvera¨nita¨t (Berlin, [1922] 2004), 21. 10 This point is made by Carty, ‘Carl Schmitt’s Critique’, 51. Already in 1930, Ernst Ju¨nger had anticipated Schmitt’s association of the law of the sea with the disingenuous universalism of Anglo-American liberalism: ‘Study the exchange of notes preceding America’s entry into the war and you will come upon a principle of ‘‘freedom of the seas’’; this offers a good example of the extent to which, in such an age, one’s own interests are given the rank of a humanitarian postulate—of an issue with universal implications for humanity.’ E. Ju¨nger, ‘Total Mobilization’, in: The Heidegger Controversy: A Critical Reader, ed. R. Wolin (New York, 1991), 132. 11 C. Schmitt, Vo¨lkerrechtliche Großraumordnung mit Interventionsverbot fu¨r raumfremde Ma¨chte. Ein Beitrag zum Reichsbegriff im Vo¨lkerrecht (Berlin, [1939/ 41] 1991). The book was first published in 1939 and subsequently reissued with additional chapters in 1941.

J. Derman / History of European Ideas 37 (2011) 181–189

the deficiencies of the League of Nations in a series of articles, as well as in the powerful short book The Concept of the Political. Schmitt focused his energies on defining and justifying the Nazi state in the first years of the Third Reich, but turned his attentions primarily to international law after 1937, when attacks from envious rivals in the SS had made his position within the Nazi elite increasingly precarious; Schmitt knew he was less likely to step into a political minefield by publishing on a relatively uncontroversial subject such as international law.12 Throughout the Weimar Republic and Nazi Germany, Schmitt advanced the same basic critique of the international legal order: behind the liberal, universalistic rhetoric of the League of Nations and the victorious Entente powers that supported it, lay a will to power that sought to profit at Germany’s expense while paving the way for new, more totalizing wars. Endowed with juridical rather than martial talents, Schmitt fought his enemies by attempting to delegitimize the conceptual framework that sustained them.13 One of Schmitt’s major criticisms of contemporary international law was that it had destroyed the non-discriminating concept of war. In contrast to the medieval concept of just war, the nondiscriminating concept of war did not distinguish between morally right and wrong parties; as substantive justice was no longer seen to inhere in the very concept of war, third parties to the conflict were entitled to declare and maintain their neutrality. Schmitt viewed the non-discriminating concept of war as the historical product of the early modern absolutist state, an institution for which he expressed affection throughout his career.14 As he explained, ‘war received its right, its honor and dignity from the fact that the enemy was not a pirate or gangster, but rather a ‘‘state’’ and a ‘‘subject of international law.’’’15 For Schmitt, the major milestone in the turn to a discriminating concept of war had been Woodrow Wilson’s address to Congress on 2 April 1917 requesting a declaration of war against Imperial Germany.16 After announcing that ‘the present German submarine warfare against commerce is a warfare against mankind,’ Wilson vowed that ‘our motive will not be revenge or the victorious assertion of the physical might of the nation, but only the vindication of right, of human right, of which we are only a single champion.’ This was a conflict from which neither the United States nor any other nation could abstain, since ‘neutrality is no longer feasible or desirable where the peace of the world is involved and the freedom of its peoples.’17 Schmitt perceived the recrudescence of a medieval concept of just war not only in Wilson’s address, but also in the Entente’s wartime propaganda, its demand that the Kaiser be extradited as a war criminal, the assertion of German war guilt in the Versailles Treaty and the Kellogg–Briand Pact’s classification of war as a criminal act. Henceforth wars would no longer be waged between legal equals but between just parties and criminals who had violated the laws of mankind. The League of Nations had eliminated the conceptual possibility of war existing between

12 Schmitt’s enemies accused him of valorizing the state over the Nazi Party, failing to hold a sufficiently racist world-view and being a political Catholic. He was also criticized for having associated with Jews and supported presidential government during the Weimar Republic. See J. W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton, 1983), chapters 11 and 12; Balakrishnan, The Enemy, 226–7. 13 See the title of his volume of collected articles, C. Schmitt, Positionen und Begriffe im Kampf mit Weimar–Genf–Versailles, 1923–1939 (Berlin, [1940] 1994). 14 The impact of Schmitt’s sympathy for absolutism on his theory of international law is discussed in M. Koskenniemi, ‘International Law as Political Theology: How to Read Nomos der Erde?’, Constellations, 11 (2004), 492–511. 15 Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff, 48–9. 16 Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff, 1–2, 51. 17 President Wilson’s Declaration of War Message to Congress, 2 April 1917. Records of the United States Senate; Record Group 46; National Archives. Cited from www.ourdocuments.gov/doc.php?doc=61, accessed on 3 July 2010.

183

its member states, since it permitted aggression against a refractory member to be defined as ‘sanctions’ or ‘interventions’ rather than as ‘war.’ The object of League aggression would become a criminal pariah in the eyes of international law instead of a sovereign state on equal legal footing with its enemies. At the same time, third parties would lose their rights to neutrality—how could they justify their abstention from war against an enemy of mankind? Schmitt warned that efforts to fashion the League of Nations into an institutionalized world order would efface the boundaries between war and not-war; the outcome would be ‘total wars’ waged under the guise of a humanitarian ideology. When it came to explaining the effects of this conceptual turn on international law as a whole, Schmitt offered two distinctly different accounts. In The Turn to a Discriminating Concept of War (1938), he accused the liberal powers of having eroded the basis for an international order. ‘Until now the result has merely been the complete collapse of the old concept of war, combined with the complete lack of a lucid new concept, in other words: war and simultaneously not-war, anarchy and international legal chaos.’18 As a consequence of the introduction of a discriminating concept of war, ‘a perhaps weaker, but still more genuine and – until now – more real conceptual ordering of international law is destroyed, without anything more than a state- and nation-destroying, universal pretention taking its place.’19 Schmitt did not exactly mourn the passing of the old legal order, since ‘new international legal orders and communities are necessary and unavoidable,’ but he did criticize the League of Nations for standing in the way of a ‘real community of nations.’20 Elsewhere, however, he suggested that the Entente’s application of a discriminating concept of war was not a recent development. In ‘Total Enemy, Total War, Total State’ (1937) and ‘Neutrality and Neutralizations’ (1939), he introduced the topic of maritime warfare in order to demonstrate that Britain had always espoused a concept of war that deviated from the continental tradition. The ‘turn’ to a discriminating concept of war thus did not signify the collapse of a benign international legal order so much as the triumph of a British legal order over a continental European one. The World War had simply made manifest a clash of legal ordering principles that had struggled against each other for centuries. According to Schmitt, Britain’s prosecution of maritime warfare represented an exemplary application of the discriminating concept of war. The non-discriminating concept of war presupposed that only hostile sovereign states counted as belligerents; the British navy, in contrast, was in the habit of directing military action against the private citizens of enemy as well as neutral countries. According to the law of maritime warfare, as interpreted by Britain, a belligerent state might legitimately prey upon private property by taking enemy and neutral merchant ships, cargo and contraband as good prize. Through a blockade, such as the kind Britain had instituted against Germany in World War I, it could inflict suffering upon an entire civilian population by denying it access to fuel, food and other necessary resources. Maritime warfare not only ignored the distinction between combatants and non-combatants; it also refused to acknowledge any spatial limitations on its actions. The ships of belligerent nations were free to engage in hostilities or visit and search merchant vessels anywhere in the world.21 Schmitt believed that British maritime warfare, both in practice and theory, was antagonistic to the kind of warfare that had traditionally been waged by continental European powers since the age of absolutism: ‘[the] non-

18

Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff, 52. Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff, 47. 20 Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff, 52, 53. 21 C. Schmitt, ‘Totaler Feind, totaler Krieg, totaler Staat’, in: Positionen und Begriffe, 270–1. 19

184

J. Derman / History of European Ideas 37 (2011) 181–189

discriminating concept of war is associated with land warfare, and is being destroyed by the English conception which originates in maritime and economic warfare.’22 The existence of a British concept of war that deviated so radically from continental practices was symptomatic of more fundamental differences. ‘War and peace are the central concepts of every international law,’ Schmitt reasoned, ‘and two completely different concepts of war must necessarily imply two completely different concepts of peace, and thus two completely different, indeed opposed systems of international law. Nevertheless, one speaks of ‘‘the’’ international law of civilized nations.’23 Schmitt sought to exploit what might be considered an exception to the laws of war as a wedge to drive apart two entire orders of international law. He asserted that the continental powers including Germany subscribed to one basic conception of international law, while Britain sought to impose its own distinct but internally consistent system upon the rest of the world: Out of its peculiarity, English maritime warfare has developed and enforced a complete, self-contained system of international law, with its own concepts that have challenged the corresponding concepts of continental international law over the entire 19th century. There is an Anglo-Saxon concept of enemy, which fundamentally rejects the continental distinction between combatants and non-combatants; an Anglo-Saxon concept of war, which includes so-called economic warfare. In short, the fundamental concepts and norms of this English international law are in themselves total and the certain hallmark of a world-view that is in itself total.24 What appeared to be one homogeneous institution or body of law was in fact two. Schmitt was familiar with this kind of reasoning from his Weimar jurisprudence: in The Intellectual Predicament of Modern Parliamentarism, he argued that parliamentary democracy consisted of two distinct ideological regimes – one liberal, the other democratic – whose inherent incompatibility had been exacerbated by modern mass politics; in Legality and Legitimacy he tried to show that the Weimar Constitution contained two different constitutional principles that had been forcibly joined together.25 The fact that the law of war was susceptible to the same rhetorical strategy helps in part to explain why Schmitt felt drawn to the topic. Since Schmitt left much of the background to his argument unstated, it is worth briefly considering in a brief digression what – if anything – had been historically peculiar about the laws of maritime warfare. Since the eighteenth century, the norms of international law had sought to minimize the destructive consequences of land warfare for the private property of noncombatants. The results of this process of codification were enshrined in the 1907 Hague Convention Respecting the Laws and Customs of War on Land, which forbade the confiscation or pillaging of enemy private property during wartime. In contrast, prohibitions against the seizure of non-combatant property were never realized to a comparable extent in the law of maritime warfare. One of the major contributions that sea power could make towards victory was the disruption of enemy commerce and economic life; in its efforts to wage economic warfare, a belligerent

22 C. Schmitt, ‘Neutralita¨t und Neutralisierungen. Zu Christoph Steding ‘‘Das Reich und die Krankheit der europa¨ischen Kultur’’’, in: Positionen und Begriffe, 324. Schmitt cited his own article, ‘Total Enemy, Total War, Total State,’ as reference. 23 C. Schmitt, ‘Raum und Großraum im Vo¨lkerrecht’ (1940), in: Staat, Großraum, Nomos, 250–1. 24 Schmitt, ‘Totaler Feind, totaler Krieg, totaler Staat’, 272. 25 C. Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (Berlin, [1926] 1996); C. Schmitt, Legalita¨t und Legitimita¨t (Berlin, [1932] 1998).

power would naturally want to target the merchants who enriched its enemy or provided it with essential materiel. Since the Late Middle Ages, European states had asserted the right (outside of neutral waters) to confiscate the ships and cargo not only of enemy merchants, but also – under some conditions – of merchants from neutral states who conducted commerce with their enemies. Such seizures were nonetheless expected to proceed in a lawful manner through visitation and search on the high seas, followed by adjudication in a national prize court.26 According to the fourteenth-century Consolato del Mare, which codified maritime practices in the Mediterranean, enemy goods could be taken as prize regardless whether they were found aboard an enemy or neutral ship, whereas neutral goods and ships were always safe from confiscation. From the eighteenth century onwards, Britain found that upholding the Consolato del Mare served its own self-interests as an island nation dependent upon foreign commerce. Britain relied on its superior navy to capture enemy ships; at the same time, the protections accorded to neutral property by the Consolato del Mare served as an inducement for neutral nations to continue trading with Britain in times of war. France, which was less reliant upon foreign commerce for its economic life, sought to dissuade neutral nations from trading with its enemy Britain by confiscating neutral goods found on enemy ships as well as neutral ships carrying enemy goods. The Netherlands, which hoped to profit from its preeminent position in the carrying trade, advocated the rule of ‘free ships, free goods,’ which would exempt enemy goods carried in neutral ships from confiscation. The United States went so far as to demand the immunity of all private property at sea – whether neutral or belligerent – from seizure.27 As a result of these and other policies, which tended to change from war to war, there was until the midnineteenth century ‘no uniformity of theory or practice’ in maritime warfare beyond the general principle that ‘distinctions in treatment should be applied between belligerent and neutral ships and cargoes.’28 After joining forces against Russia in the Crimean War, Britain and France resolved to establish a common code of maritime warfare, especially in regard to the treatment of neutral private property. Their principles were promulgated in Declaration of Paris (1856) at the conclusion of the war and signed by other leading European powers. With the aim of extending the best possible treatment to neutrals, the Declaration of Paris deemed enemy goods in neutral ships and neutral goods in enemy ships to be safe from confiscation, so long as they were not contraband.29 As before, enemy merchant ships with their enemy cargo remained good prize. American attempts to exempt all private property from

26 G. Best, ‘Restraints on War by Land before 1945’, in: Restraints on War: Studies in the Limitation of Armed Conflict, ed. M. Howard (Oxford, 1979), 27–9; Articles 28, 46 and 47 of the Annex to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, in Documents on the Laws of War, ed. A. Roberts, R. Guelff (Oxford, 2005), 78, 81; B. Ranft, ‘Restraints on War at Sea before 1945’, in: Restraints on War, 39; G. P. Politakis, Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality (London, 1998), 526–7; D. P. O’Connell, The International Law of the Sea, ed. I. A. Shearer, vol. 2 (Oxford, 1984), 1112. In a speech to the House of Commons in 1862, Lord Palmerston minimized the differences between land and maritime warfare. He argued that occupying armies requisitioned private property in spite of the laws prohibiting it, while adjudication in prizes case at least operated in a consistent and orderly fashion. C. J. Colombos, The International Law of the Sea (London, 1967), 552. 27 L. Oppenheim, International Law: A Treatise, ed. H. Lauterpacht, vol. 2, Disputes, War and Neutrality (London, 1963), 457–65; Politakis, Modern Aspects, 352–9; D. P. O’Connell, The Influence of Law on Sea Power (Manchester, 1975), 19; O’Connell, The International Law of the Sea, 1114; Ranft, ‘Restraints on War at Sea Before 1945’, 43– 4, 46–7. 28 Ranft, ‘Restraints on War at Sea’, 43. 29 1856 Paris Declaration Respecting Maritime Law, in: Documents on the Laws of War, 47–9. The United States refused to sign the Declaration because it prohibited privateering.

J. Derman / History of European Ideas 37 (2011) 181–189

seizure in wartime were met with strong resistance first from Britain and, after the turn of the twentieth century, from France, Russia, Japan, Spain, Portugal, Mexico, Colombia and Panama. At the London Naval Conference (1908–1909) Britain appeared willing to make some concessions to its opponents: its delegation took a hand in drafting the London Declaration, which stipulated that all blockades must be effective to be legal, and established strict definitions and criteria for absolute contraband, conditional contraband and ‘free goods,’ thereby setting limits on the kinds of private property that were liable for seizure. However, the House of Lords refused to ratify the London Declaration for fear that it forfeited Britain’s traditional maritime advantages.30 World War I witnessed ‘radical departures’ from the accepted law of the sea on the part of both Britain and Germany.31 Both countries sought to impose unprecedented restrictions on enemy and neutral commerce at sea. Britain declared the North Sea a ‘military area’ in which merchant ships were at risk; in turn, Germany declared the seas around the British Isles a ‘war zone’. Britain expanded its definition of contraband so as to include practically all goods destined for Germany, and diverted suspected merchant ships into safe ports for inspection rather than visiting them on the high seas, as previously had been the norm in prize law. Combined with the use of blockade, these policies aimed at effectively cutting off Germany from all neutral commerce. After 1917 Germany launched a campaign of unrestricted submarine warfare against commercial shipping, which it justified as reprisal against British policies. Both Britain and Germany’s deviations from accepted international law were motivated in part by pressure to adapt to technological innovation. Since merchant steamships had grown too large to be easily or safely searched on the high seas, diversion to port appeared a more attractive alternative for a belligerent warship. By surfacing to visit and search, submarines revealed their position and made themselves particularly vulnerable to attack, which gave them an incentive to sink suspected ships without warning. The increased power and deadliness of naval technology thus worked against the protections that neutral shipping had previously enjoyed.32 What was unique about Schmitt’s interpretation of the history of maritime warfare? His accusation that Britain’s concept of war deviated from continental norms was already commonplace in European jurisprudence, as was his charge that British maritime warfare evinced a separate system of international law.33 ‘As always, Schmitt’s strongest side was not originality,’ Dirk van Laak reminds us, ‘but rather the ability to shape an oscillating, conceptual dichotomy and, in a broad stroke, to occupy associated fields of intellectual history.’34 The true originality of Schmitt’s

30 Oppenheim, International Law, 462–3; Ranft, ‘Restraints on War at Sea’, 45–50; O’Connell, The International Law of the Sea, 1150–1. 31 J. C. Wise, ‘The Rights of Visit and Search, Capture, Angary and Requisition’, American Journal of International Law, 16 (1922), 394. 32 Politakis, Modern Aspects, 40–54; Wise, ‘The Rights of Visit and Search’, 394–5; Ranft, ‘Restraints on War at Sea’, 52–3. 33 On the alleged difference between the continental and Anglo-American concepts of war, see a source frequently cited by Schmitt, J. L. Kunz, Kriegsrecht und Neutralita¨tsrecht (Vienna, 1935), 2–4, who generally affirmed its existence. E. Menzel, ‘Der ‘‘anglo-amerikanische’’ und der kontinentale Kriegs- und Feindbegriff’, Zeitschrift fu¨r o¨ffentliches Recht, 20 (1940), 161–97, argued that the continental tradition viewed war as an activity between states, whereas the Anglo-American tradition viewed war as an activity between peoples (Vo¨lker), thus implicating private individuals as potential targets of belligerence. For an opposing view, see H. Lauterpacht, ‘The So-Called Anglo-American and Continental Schools of Thought in International Law’, British Yearbook of International Law, 12 (1931), 31–62. Lauterpacht dismissed claims that such a dichotomy existed in either contemporary theory or practice. He also noted that sequestration and reprisals by armies in France and Germany during World War I had violated the immunity of private property. See also the sources cited by Maschke in Staat, Großraum, Nomos, 385 n. 11. 34 Laak, ‘Von Alfred T. Mahan zu Carl Schmitt’, 279.

185

approach lay in his willingness to elevate this alleged legal dichotomy into an elemental difference between land and sea. This was the epiphany he experienced when he told his daughter a story about ‘pirates and whale hunters’ in the summer of 1940. The article ‘State Sovereignty and Free Sea: On the Opposition between Land and Sea in Modern International Law’ (1941) represents the first product of his shift in thinking. ‘The usual, undifferentiated terminology ‘‘international law’’ is false and misleading, since here in reality two independent international laws are valid,’ Schmitt noted. But then he took the argument one step further: ‘A Eurocentric world order arises, but it immediately falls apart according to land and sea. The land is divided into closed territories of sovereign states, the sea on the contrary remains state-free [staatsfrei].’35 The dualism in international law was the consequence of a revolutionary shift in the spatial and political ordering of land and sea. Schmitt had first become interested in this dualism through his work on the discriminating concept of war. To understand why he now sought to connect it to the elements of land and sea, we must examine his other preoccupation of the late 1930s and 1940s, namely, his desire to provide a legal justification for a dawning German Empire. Land and sea in the planetary revolution of space After Hitler massively revised the terms of the postwar settlement in 1938, first creating a greater German Reich through Anschluss with Austria and then carving a protectorate out of Bohemia and Moravia, Schmitt came to the conclusion that the concept of nationality (Volksbegriff) would soon make the traditional concept of the state obsolete in international law.36 ‘European international law of the nineteenth century, with its weak Central Europe and the Western world powers in the background, appears to us today as a small world overshadowed by giants,’ he observed. ‘This horizon is no longer possible for a modern conception of international law. Today we think planetarily [planetarisch] and in terms of great spaces.’37 The American Monroe Doctrine of 1823, which declared the Western hemisphere off-limits to European colonization and political intervention, was for Schmitt the main antecedent for an international legal order of great spaces. He hoped to give new life to what he perceived to be its underlying principle— the idea that a ‘politically awakened nation [Volk],’ possessed of a guiding ‘political idea’ or ideology, projected a continental sphere of influence in which the intervention of foreign powers was prohibited.38 The international legal order of great spaces envisaged a planet divided among multiple continental blocs defined by distinct world-views or political ideologies.39 Schmitt made it clear in The International Legal Order of Great Spaces (1939) that he defined an imperial great space in contradistinction to the British Empire. In Schmitt’s view, the British Empire could hardly qualify as a great space. A web of discontiguous territories connected only by sea lines of transport and communication, it espoused no concrete ideology but only the disingenuous universalism befitting a world empire. Schmitt favorably contrasted the ‘continental principle of space’ as embodied in the Monroe Doctrine with the ‘universalism of the British world empire.’40 The German Reich would be rooted in the continental land mass of Central and Eastern Europe while projecting its political influence beyond the strict borders of the 35 ¨ ber den Gegensatz von C. Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer. U Land und See im Vo¨lkerrecht der Neuzeit’, in: Staat, Großraum, Nomos, 407. 36 Schmitt, Vo¨lkerrechtliche Großraumordnung, 11, 49–63. 37 Schmitt, Vo¨lkerrechtliche Großraumordnung, 61. 38 Schmitt, Vo¨lkerrechtliche Großraumordnung, 22–33. 39 On the place of world-views in Schmitt’s international legal thought, see Carty, ‘Carl Schmitt’s Critique’, 30–47. 40 Schmitt, Vo¨lkerrechtliche Großraumordnung, 32.

186

J. Derman / History of European Ideas 37 (2011) 181–189

classical territorial state. Its animating political idea, ‘the mutual respect of all national traditions [Volkstum],’ would be applied to all national groups with the exception of the Jews, who were ‘alien [artfremd]’ to the national life of this great space.41 Once World War II began with the German invasion of Poland in September 1939, Schmitt observed another kind of spatial revolution underway. The success of the German Blitzkrieg, with its devastating use of airpower and wireless communications, had changed the way that space was perceived on the battlefield. Technological innovations neutralized Britain’s traditional domination over the seas: ‘For today the sea is not an ‘‘element’’ inaccessible to human domination, as the international legal writers of the eighteenth and nineteenth century still presumed; quite the opposite, it has become to the greatest extent a ‘‘space’’ of human domination and expansion of power.’42 Schmitt believed that the consequences of this change were comparable only to ‘the change in the picture of the world that occurred four centuries ago when, after the discovery of America and other discoveries and inventions, the medieval picture of the world sank and the European state system of the period 1648–1914 came into being.’43 Schmitt emphasized that the early modern vision of geometrically delimited state borders and infinite oceans had developed hand in hand with classical mechanics. Recent discoveries made by German scientists – Max Planck’s quantum physics and Viktor von Weizsa¨cker’s Gestalt psychology – had problematized these traditional scientific conceptions of space, while a German philosopher, Martin Heidegger, had demonstrated that ‘the world is not in space, but rather space is in and on the world.’44 As in science, so too in jurisprudence and on the battlefield, Germany was revising the spatial dimensions of the modern world. Between 1939 and 1941, Schmitt’s polemical writings on international law proclaimed the passing of a European order based on the universalism of British maritime imperialism and the empty positivism of continental state law.45 His wartime writings on land and sea were intended to provide an historical account of the rise and fall of the old spatio-political order. Two of his most important texts from this period, ‘State Sovereignty and Free Sea’ and Land and Sea, purported to explain how a ‘planetary revolution of space’ had taken place in Europe beginning in the mid-sixteenth century. The concept of the sovereign state, as it developed in the aftermath of the European wars of religion, represented a new ‘ordering concept of space.’46 In contrast to feudal and corporate forms of political organization, whose jurisdictions might sprawl unevenly over a geographical space, the modern state developed into a ‘spatially closed, centralized and fully rationalized unity, mathematically and sharply delimited from other states.’47 At the same time that these terrestrial borders were being drawn with increasing precision, Europeans became aware of the ‘unlimited, illimitable and infinite space of the world’ through the scientific revolution and the discovery of the Americas (see footnote 46). Their horizons shifted from the bounded waters of the Mediterranean to the limitless expanses of the world oceans. Unlike European territorial states, the high seas lacked the kind of borders that typified the modern state. ‘[The sea] knows no

41

Schmitt, Vo¨lkerrechtliche Großraumordnung, 46–7. C. Schmitt, ‘Reich und Raum’, in: Vo¨lkerrechtliche Großraumordnung, 65. This chapter first appeared in the third edition (1941) of the book. 43 C. Schmitt, ‘Die Raumrevolution. Durch den totalen Krieg zu einem totalen Frieden’ (1940), in: Staat, Großraum, Nomos, 388. 44 C. Schmitt, ‘Der Raumbegriff in der Rechtswissenschaft’, in: Vo¨lkerrechtliche Großraumordnung, 80. This chapter first appeared in the fourth and fifth editions (1941) of the book. 45 See Schmitt, ‘Der Raumbegriff in der Rechtswissenschaft’, 82. 46 Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 405. 47 Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 404. 42

borders,’ Schmitt explained, ‘without regard for geographic location and vicinity, it becomes a single, unitary space that ought to be indiscriminatingly ‘‘free’’ for peaceful commerce as well as the warfare of all states at one and the same time.’48 It was this contrast in the spatial conception of land and sea that generated – and was ontologically prior to – the bifurcation of two systems of international law: ‘Two completely different orders of international law, an international law of the land and a completely different one of the sea, must correspond to two such different spatial conceptions of land and sea.’ (see footnote 48). Schmitt believed that three groups of adventurers had been responsible for fostering a new consciousness of the sea as a statefree planetary domain. First came the anonymous whalers of northern Europe who chased their cetacean quarry across the world oceans, discovering new continents in the process. They were followed by French, Dutch and English corsairs who plundered Spanish shipping in the context of sixteenth-century religious wars between Calvinist nations and the Catholic Spanish empire. In the seventeenth century, English privateers inherited and then surpassed the skills and energies of their predecessors; they were the first to fully realize a ‘maritime existence.’ Neither pirates nor public officials, these private citizens were authorized by their governments to attack foreign shipping and take prizes. Schmitt emphasized how the fortunes made by these English privateers eventually helped to jump-start the Industrial Revolution.49 Thanks to the efforts of these privateers, the English started to think of their island as the floating metropole of a dispersed maritime empire rather than as an impregnable fortress guarded by the sea.50 In the process the English became true ‘children of the sea.’51 England had ‘truly transposed its existence from the land into the element of the sea. It thereby won not only many sea battles and wars, but something totally different and infinitely greater, namely a revolution—a revolution of the greatest kind, a planetary revolution of space.’52 The previous sea powers in world history – Athens, Carthage, and Venice – had been merely coastal civilizations. Only Britain had become an oceanic one.53 In order to support his claim that privateers were the vanguard of England’s ‘planetary revolution of space,’ Schmitt tried to show that policy makers and intellectuals had lagged behind them in grasping what it would mean for the world oceans to be a global stateless space. According to Schmitt, the seventeenth-century English and Dutch polemicists who argued over mare liberum versus mare clausum did not think of the seas as being truly free in a global sense. Their debates over the ‘freedom of the seas’ concerned the rights of monarchs to assert trading monopolies or deny fishing and navigation in delimited waters such as the North Sea, the Baltic and the English Channel.54 They failed to address the major problem that would arise when the world oceans were traversed by both merchants and warships without any territorial borders to separate them, namely ‘the difficult and fundamentally insoluble problem—how the same surface of the free sea should be at once the scene of free and peaceful commerce 48

Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 407. Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 412–5; Schmitt, Land und Meer, 18–37; Schmitt, ‘Das Meer gegen das Land’ (1941), in: Staat, Großraum, Nomos, 396–7. 50 Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 414–7; Land und Meer, 64–5, 67. 51 Schmitt, Land und Meer, 34. 52 Schmitt, Land und Meer, 37. 53 As evidence that would justify this distinction, Schmitt noted that the galleys of the Mediterranean thalassocracies were rowed rather than sailed; their style of naval warfare – close combat between soldiers clambering between the decks of ships – resembled nothing more than a land battle waged on planks suspended over the surface of the sea. Schmitt, Land und Meer, 14–8. 54 Schmitt, ‘Staatliche Souvera¨nitat und freies Meer’, 412. See also the discussion of the freedom of the seas in Schmitt, Der Nomos der Erde, 143–55. 49

J. Derman / History of European Ideas 37 (2011) 181–189

and also the scene of warfare.’55 In a truly global age, Schmitt argued, the ‘freedom of the seas’ was the freedom of belligerent powers to turn the entire world into a battlefield: According to established international law, freedom of the seas means that in every maritime war, irrespective of the belligerents or geographical location, all seas of the world beyond three miles of shore become theaters of war. According to the acknowledged rules of international law, in the event of a maritime war between Estonia and Latvia, e.g. the sea of Japan becomes a theater of war, and when Japan wages war against China, the Baltic Sea becomes a theater of war, and each of these belligerent states ostensibly has the right to deal with the maritime commerce of all non-belligerent states of the world on all seas of the world – with instructions to deviate course where possible – according to prize law.56 Historians were wrong to credit Hugo Grotius with coining the modern concept of the freedom of the seas, Schmitt argued, since Grotius ‘did not yet think of the world oceans as a free world theater [Weltschauplatz] for maritime warfare.’ This issue would only become associated with the concept of the freedom of the seas after the Peace of Utrecht in 1713.57 Schmitt did not explain in any detail why he chose this particular date as a watershed. One may infer that it signified the rise of English naval supremacy and the creation of a modern state system based on the balance of power.58 Schmitt was correct to observe that Grotius had not been much concerned with the rights of neutrals on the high seas; his major treatise on the law of prize, De Jure Predae, dealt with the seizure of enemy property and treated the issue of foreign contraband in only a brief ‘digression.’59 Yet Schmitt’s desire to locate the origins of modern spatial consciousness in English sea banditry rather than in classical political thought led him to commit a number of historical distortions. Contrary to what Schmitt argued, Grotius was certainly conscious that the oceans were global spaces where belligerents might meet and enter into combat. It was after all the capture of a Portuguese merchant vessel by the Dutch East India Company in the Straits of Singapore that occasioned his commentary on the law of prize. The twelfth chapter of De Jura Predae, published in 1609 as Mare Liberum, made it clear that the issue of the freedom of the seas – even if its central focus was navigation and trade – was truly a global affair: The question is concerning the whole ocean, which antiquity calleth unmeasurable and infinite . . . And in this ocean the controversy is not of a bay or narrow strait or concerning all that may be seen from the shore. The Portugals [sic] challenge to themselves whatsoever lies between the two worlds divided by so great distance that in many ages they could not from place to place convey the report of them.60 Why did Schmitt think that a modern global conception of the freedom of the seas first emerged following the Peace of Utrecht in 1713? Schmitt likely took his evidence from a contemporary study by the American international lawyer Pitman B. Potter, The

187

Freedom of the Seas in History, Law, and Politics.61 Potter distinguished three different periods and contexts in which the concept of the freedom of the seas had been invoked. During the first period, inaugurated by Grotius’s Mare Liberum, the concept of the freedom of the seas concerned the issue of ‘maritime territorial jurisdiction’ and the right to trade in foreign markets. Starting around 1650, the barriers to trade erected by mercantilism – colonial monopolies, navigation acts and port restrictions – constituted a second major context in which the ‘freedom of the seas’ was discussed.62 When French and American authors proclaimed the ‘freedom of the seas’ after 1795, they were ‘concerned over a matter which received scarcely any attention from Grotius or Selden, or their contemporaries,’ namely the subject of ‘belligerent powers at sea.’ It was only after this date that ‘opposition to certain belligerent rights or practices assumed the principle of freedom of the seas as its ideal.’63 Based on Potter’s study, as well as on the work of more recent historians such as Wilhelm Grewe, there seems to be no justification for dating this latest shift in the meaning of the ‘freedom of the seas’ all the way back to the beginning of the eighteenth century. Nor are there reasons to believe that eighteenth-century writers understood ‘freedom of the seas’ in the same way that Schmitt did, namely as the freedom of belligerents to disrupt enemy and neutral shipping; the concept was invoked by French and American writers to protest against those very infringements by Britain.64 Schmitt’s willful treatment of intellectual history suggests that his ostensibly scholarly investigation of the freedom of the seas was driven mainly by political concerns.

The nomos of the Earth Schmitt predicted in The International Legal Order of Great Spaces that a spatial revolution would enable Germany to supplant the British Empire and create a new kind of empire of its own. Technological innovations such as radio communications and airplanes had divested the sea of its mystery and made the ships that plied it vulnerable to attack. The era when a maritime empire could exert its hegemony over the globe was drawing to a close. Schmitt’s wartime writings on land and sea couched this revolution in elemental terms. ‘The time of the Leviathan, that is to say, the historical era of a form of domination based on the element of sea as opposed to the land, thus comes to an end,’ he declared in his essay ‘The Sea Against the Land’ (1941).65 The result was that the separation of land and sea – the basis for Britain’s maritime domination of the world – had been sublated: ‘the basis of the British seizure of the sea ceases, and with it the former nomos of the Earth.’66 Nomos was the Greek word that Schmitt henceforth used to describe the spatial determinants of legal order. During the Weimar Republic, he had argued that the state’s constitutional order depended not upon a hierarchy of norms for its ultimate validity, but rather upon an extra-legal sovereign decision.67 This form of argument did not translate well into the sphere of international law, where there was no sovereign decision maker standing above the states of the world. The concept of nomos enabled Schmitt to find a similarly extra-legal source for the validity of international law; it meant that the legal order of the

55

Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 412. Schmitt, ‘Raum und Großraum im Vo¨lkerrecht’, 254. Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 411. 58 On the significance of the Peace of Utrecht, see C. Schmitt, ‘Die geschichtliche Struktur des heutigen Welt-Gegensatzes von Ost und West. Bemerkungen zu Ernst Ju¨ngers Schrift: ‘‘Der Gordische Knoten’’’ (1955), in: Staat, Großraum, Nomos, 539. 59 H. Grotius, Commentary on the Law of Prize and Booty, ed. M. J. van Ittersum (Indianapolis, 2006), 168–71; E. Dumblaud, ‘Grotius on the Law of Prize’, Journal of Public Law, 14 (1965), 384. 60 H. Grotius, The Free Sea, trans. R. Haklyut and ed. D. Armitage (Indianapolis, 2004), 32–3. 56 57

61 P. B. Potter, The Freedom of the Seas in History, Law, and Politics (New York, 1924). Schmitt cited it in ‘Staatliche Souvera¨nita¨t und freies Meer’, 406 fn. 4. 62 Potter, The Freedom of the Seas, 83–4. 63 Potter, The Freedom of the Seas, 85, 86. 64 See W. G. Grewe, The Epochs of International Law, trans. M. Byers (Berlin, 2000), 410–2. 65 Schmitt, ‘Das Meer gegen das Land’, 398. 66 Schmitt, Land und Meer, 76. 67 Schmitt, Politische Theologie, 16: ‘The legal order, like every order, is based on a decision and not on a norm.’

188

J. Derman / History of European Ideas 37 (2011) 181–189

world was ultimately rooted not in treaties or institutions but in the divisions and occupations of the globe.68 In Land and Sea (1942), Schmitt argued that the first truly global nomos had been established during the age of European explorations and conquests. The various European powers effected a ‘seizure of land [Landnahme]’ in the New World, while the British Empire took possession of the world’s oceans in a ‘seizure of sea [Seenahme]’.69 It was on the basis of this spatial division of the globe that the nomos of the Earth came into being: The solid land now belongs to a dozen sovereign states, the sea belongs to no one, or everyone, or in reality just one: England. The order of solid land is based on the fact that it is divided into state territories; the high seas, on the contrary, are free, i.e. free of the state and subjected to no territorial state sovereignty. Those are the fundamental spatial facts out of which the Christian-European international law of the last three hundred years has developed. That is the fundamental law, the nomos of the earth in this epoch.70 By using the concept of nomos, Schmitt introduced a key element of ambiguity into his theorization of the relationship between the elements of land and sea. He had already asserted that the ‘Eurocentric world order. . .falls apart according to land and sea.’ The elemental and spatial conditions of human activity on land and sea necessarily gave rise to two incommensurable systems of international law.71 Yet in arguing that the spatial divisions of the world constituted a single nomos for any given epoch, he suggested that a higher unity was created through the opposition of land and sea. The concept nomos implied order and stability while his invocation of ‘the sea against the land’ suggested an agonistic struggle between two irreconcilable worlds. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, which Schmitt began writing during World War II but published in 1950, gave him the opportunity to exploit this ambiguity. The Nomos of the Earth consisted largely of paraphrases or reproductions from his shorter texts of the Nazi era. These continuities nonetheless belied a striking departure in orientation. Whereas Schmitt’s wartime writings thrilled to the passing of the old European order, The Nomos of the Earth looked back on it as a guarantor of peace and security. The first half of the book traced the emergence of a European system of international law, the jus publicum Europaeum, between the Peace of Utrecht in 1713 and the outbreak of World War I. Schmitt regarded the major achievement of the jus publicum Europaeum to have been its introduction of the non-discriminating concept of war. With the notable exception of the Napoleonic Wars, the era of the jus publicum Europaeum did not witness the kind of total religious or ideological wars that occurred in the sixteenth, seventeenth and twentieth centuries. The rise of the modern sovereign state brought about the ‘bracketing’ or ‘delimiting’ of war (Hegung des Krieges): although wars still occurred, their intensity and destruction were limited, and the enemy belligerent was treated as a just enemy (justus hostis) of equal legal status rather than as an infidel or criminal. The second half of The Nomos of the Earth charted the descent of the jus publicum Europaeum into increasing chaos from the last decade of the nineteenth century onwards. Schmitt blamed the liberal powers and in particular the United States for eroding its sensible spatial and legal borders with their crusading universalism. 68 Carl Schmitt, ‘Strukturwandel des Internationalen Rechts’ (1943), in: Frieden oder Pazifismus?, 652. For a more detailed analysis of the meaning of nomos, see Schmitt, Der Nomos der Erde, 36–51. 69 Schmitt, Land und Meer, 49–60. 70 Schmitt, Land und Meer, 60. 71 Schmitt, ‘Staatliche Souvera¨nita¨t und freies Meer’, 407.

Earlier versions of Schmitt’s argument were already present in some of his Nazi-era writings, notably his 1940 article ‘The Dissolution of the European Order into ‘‘International Law’’ (1890–1939)’ and The Turn to a Discriminating Concept of War.72 However, the second avenue of critique that Schmitt had directed against the international order in his Nazi-era writings – the charge that Britain sought to engulf the world with its maritime empire and totalizing concept of war – was nowhere to be found. He still maintained that two different international laws with their own concepts of enemy, war and prize had existed prior to World War I.73 But instead of depicting a struggle of ‘the sea against the land,’ as he had in his wartime writings, The Nomos of the Earth argued that ‘the great international legal decision of the sixteenth and seventeenth centuries culminated in an equilibrium [Gleichgewicht] of land and sea, in the parallelism [Gegenu¨ber] of two orders, that in their tense relationship [Miteinander] first determined the nomos of the Earth.’ As the possessor of a ‘universal, maritime sphere,’ England became ‘the protector of the other side of the jus publicum Europaeum, the master of the equilibrium of land and sea, an equilibrium that contained the spatial ordering idea of this international law.’74 Britain’s hegemony over the seas permitted an equilibrium of sovereign territorial states to develop on the European continent; for if there had been a balance of power at sea, Schmitt argued on the basis of spurious logic, the balance of land and sea would have been disturbed and no such equilibrium could have emerged on the continent. The stability of interstate relations were not eroded by the opposition of land and sea but rather sustained by them.75 In his wartime writings, Schmitt depicted the high seas as a realm where might made right and private citizens found themselves at the mercy of belligerent states. Blockades enabled maritime powers to victimize women and children by denying them food and other vital supplies. In contrast, The Nomos of the Earth emphasized how the institution of prize law ensured that even non-combatants could be recognized as just enemies: in prize court, private citizens and states faced each other on equal legal footing before an impartial judge.76 Schmitt’s wartime writings looked forward to a new era in which German technology would overcome the dichotomy of land and sea. In contrast, The Nomos of the Earth enumerated the dangers that loomed when modern technology blurred the spatial borders between land and sea. Schmitt explained how modern technology had altered the spatial dimension of maritime warfare: the introduction of submarines and airplanes eliminated the faceto-face confrontation of belligerents on the surface of the sea, eroded traditional prize law by necessitating that captured ships be diverted into port for visitation and search, and obviated the ‘freedom of the seas’ by turning more and more of the ocean’s surface into war zones or prohibited areas.77 During World War II, Schmitt had praised the Luftwaffe as the righteous destroyer of British maritime supremacy. In the aftermath of the aerial bombardment of German cities, he now argued that air warfare evinced a concept of war more totalizing than even that of maritime warfare. A bomber was not capable of taking private property as prize; it could only annihilate it. As a consequence of these new military technologies, the legal institutions that had previously served to ‘bracket’ war had become obsolete.78

72 See C. Schmitt, ‘Die Auflo¨sung der europa¨ischen Ordnung im ‘‘International Law’’ (1890–1939)’, in: Staat, Großraum, Nomos, 372–87; Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff. 73 Schmitt, Der Nomos der Erde, 144; Schmitt, ‘Der neue Nomos der Erde’ (1955), in: Staat, Großraum, Nomos, 519–20. 74 Schmitt, Der Nomos der Erde, 144; see also Schmitt, ‘Der neue Nomos der Erde’, 519. 75 Schmitt, Der Nomos der Erde, 145; Schmitt, ‘Die geschichtliche Struktur des Gegensatzes von Ost und West’, 540. 76 Schmitt, Der Nomos der Erde, 287. 77 Schmitt, Der Nomos der Erde, 288–92. 78 Schmitt, Der Nomos der Erde, 293–8.

J. Derman / History of European Ideas 37 (2011) 181–189

Schmitt’s postwar writings entirely reinterpreted the relationship between land and sea that he had outlined in his wartime writings. While land and sea were presented as two distinct elemental and legal orders, their ‘equilibrium’ in the pre-1914 international legal order was now emphasized over their antagonism. The legal institutions of maritime warfare were no longer presented as totalizing forces that threatened to overrun the distinctions between state/non-state and combatant/non-combatant that existed on the continent. Land and sea now constituted a single nomos, a coherent system comprised of two countervailing forces that balanced each other out. This system and the general peace it fostered might have persisted, Schmitt suggested, had it not been for the universalism of the liberal powers and the rise of modern military technology. He now retreated to the critique of liberal international law that he first adumbrated in The Turn to a Discriminating Concept of War: the coherency of international law had been upset, and chaos and destruction would follow. Why did Schmitt so strikingly alter his position? As William Scheuerman observes, the nostalgic tone of The Nomos of the Earth serves to efface the traces of Schmitt’s wartime imperial visions, and ‘provides Schmitt with a seemingly traditional standpoint (e.g., the ‘classical’ system of European public law) from which to attack that world power which not only survived World War II and defeated Nazism, but had now reached a position of unparalleled global influence—the United States.’79 Already in the early 1940s Schmitt had foreseen the possibility that the United States might try to assume the mantle of Britain’s maritime imperium.80 After the end of World War II, the British Empire dropped out of his ongoing discussion of the opposition of land and sea. Seeking a new geopolitical rivalry to reduce to this elemental binary, Schmitt came to see the Cold War in a new light. ‘Behind the opposition of East and West stands a more profound opposition of a continental and a maritime world, the opposition of the elements of land and sea.’ For what was the Soviet Union but a giant Eurasian landmass? And what was NATO but a league defined by a vast body of water?81 Conclusion This article has emphasized the ways in which Schmitt’s distinction between land and sea shares the formal characteristics of other topoi in his political thought. I wish to conclude by identifying an aspect of Schmitt’s theorizing about land and sea that appears exceptional when viewed within the larger context of his oeuvre—his treatment of the concept of humanity. In his Weimar-era writings, Schmitt rarely spoke about ‘human beings [der Mensch]’ except to note that the mark of a true political theory was its conception of man as a dangerous and dynamic creature.82 Angered by attempts to claim humanity for political purposes, as Woodrow Wilson had done in his 1917 address, Schmitt sought to banish the concept of humanity (Menschheit) from international political discourse. Invocations of humanity were nothing more than self-serving efforts to justify power interests under the guise of universalist ideology: ‘‘‘Humanity’’ is an especially convenient ideological instrument of imperialist expansion and, in its ethicalhumanitarian form, a specific vehicle of economical imperialism. Here a phrase of Prudhon’s, with an obvious modification, is valid:

Whoever invokes humanity wants to deceive.’83 It is thus all the more surprising that Schmitt chose to speak so openly about humanity in his wartime writings on land and sea: Man is a creature of the Earth, a land-treader [Landtreter]. He stands and walks and moves upon the solid earth. That is his standpoint and his ground; through it he receives his point of view; it determines his impressions and his way of seeing the world. He receives not only his horizon, but also his form of ambulation and movement, his shape, as a living creature that is born and moves on the Earth.84 Land and Sea made clear which peoples Schmitt thought possessed no attachment to the land. Having chosen the sea over the land as their medium of existence, the British had implicitly forfeited their humanity and in effect become a race of mermen. In the early 1940s, the other group that Schmitt sought to divorce from the land were the Jews. In a later edition of The International Legal Order of Great Spaces (1941), he castigated ‘Jewish authors’ such as Hans Kelsen and Georg Simmel for operating with an ‘empty conception of space.’ Schmitt argued that Jews’ inability to identify with soil or land was a product of their diasporic political existence: ‘The relationship of a people to a soil that has been formed by their own settlement and cultivation, and to the concrete forms of power that result from it, is incomprehensible to the Jewish mind.’85 If we place the pieces of the syllogism together, we obtain an argument that associates Jews with Britons and excludes them both from the human community: man is a creature of the Earth, Britons are ‘children of the sea’ and the Jews are utterly foreign to the land, ergo both are artfremd in relation to the human species. Schmitt’s efforts to dehumanize Britons and Jews, in the midst of a war of annihilation, drew theoretical support from his ruminations on the elemental nature of land and sea. At the end of the Weimar Republic, Schmitt insisted that the rhetoric of humanity was at once a rhetoric of dehumanization. Whether he ever took this position sincerely must remain a question for his biographers. But even contemporaries were aware that his rejection of the discriminating concept of war belied a taste for totalizing animosities. ‘The English concept of enemy knows only friends or enemies. The existence of states and persons who are uninterested in the English war effort is dogmatically denied,’ the international lawyer Eberhard Menzel declared in a 1940 article. Then, in a footnote, he went on to note that ‘it would be interesting to determine to what extent the well-known friend–enemy dichotomy in Carl Schmitt’s legal theory coincides with this English conception.’86 In contemplating the limitless animosity of the sea, Schmitt may well have been staring into his own reflection.

Acknowledgements I am grateful to Martin van Gelderen, the participants of the conference ‘The Challenge of Carl Schmitt: Human Rights, Humanitarianism and International Law’ at the European University Institute on 29–30 June 2009, and Douglas Howland for their comments and suggestions. 83

Schmitt, Der Begriff des Politischen, 55. Schmitt, Land und Meer, 3. This was not a one-off comment but rather a sentiment that Schmitt repeated well into the postwar period. In 1954 he still maintained that ‘whatever men achieve when they ally themselves with fire, water, air and earth, or struggle against them, man is and remains a son of the earth.’ Schmitt, ‘Welt großartigster Spannung’, 514; see also Schmitt, ‘Gespra¨ch u¨ber den Neuen Raum’, 64. 85 Schmitt, ‘Der Raumbegriff in der Rechtswissenschaft’, in: Vo¨lkerrechtliche Großraumordnung, 78–9. 86 Menzel, ‘Der ‘‘anglo-amerikanische’’ und der kontinentale Kriegs- und Feindbegriff’, 179–80, 180 fn. 1. This passage is also noted by Maschke in Frieden oder Pazifismus?, 679 n. 16. 84

79 W. E. Scheuerman, ‘International Law as Historical Myth’, Constellations, 11 (2004), 542. 80 C. Schmitt, ‘Beschleuniger wider Willen oder: Problematik der westlichen Hemispha¨re’ (1942), in: Staat, Großraum, Nomos, 431–6. 81 Schmitt, ‘Der neue Nomos der Erde’, 520; Schmitt, ‘Die geschichtliche Struktur des heutigen Welt-Gegensatzes von Ost und West’, 528; see also C. Schmitt, ‘Gespra¨ch u¨ber den Neuen Raum’ (1955), in: Gespra¨che u¨ber die Macht und den Zugang zum Machthaber/Gespra¨ch u¨ber den Neuen Raum (Berlin, 1994), 41, 44. 82 Schmitt, Politische Theologie, 16; C. Schmitt, Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien (Berlin, 2002), 61.

189