The concept of nomos: introduction to Schmitt’s “Apprpriation/distribution/production”

 

Gary Ulmen

Although Schmitt was not a professional historian, his last major work, Der Nomos der Erde (1950), generalizes about the last four centuries of European and world history.[1] While his essay on The Concept of the Political was an attempt “to frame theoretically an immense problem,”[2] Der Nomos der Erde traces the historical transformation of the political. Both are addressed “to specialists on the Jus Publicum Europaeum,” both are “strongly didactic.”[3] As in “The Plight of European Jurisprudence,” Schmitt’s concern in Der Nomos der Erde is with “the existential question of jurisprudence itself, which today will be eroded between theology and technology it the basis of its present character is not maintained in a way that is both conceptually clear and historically correct.”[4] The point is to explain the historical genesis of a new nomos of the earth: “The former Eurocentric order of international law is declining and with it the old nomos of the earth. It arose out of a legendary and unexpected discovery of a New World, an unrepeatable historical event. One can only think of a modern recurrence of such an event in fantastic parables, such as that men on their way to the moon might discover a new and completely unknown planet which could be exploited freely and used to alleviate struggles on earth. But the question of a new nomos of the earth will not be answered with such fantasies; nor by further scientific discoveries. Once again we must turn our attention to the elemental orders of our concrete terrestrial existence. Here we seek to discover the meaning of the earth. That is the hazardous undertaking of this book and the pretext of our work.”[5] Schmitt begins with five corollaries on nomos.[6] Other corollaries were published separately.[7] All serve to complement the argument and elaborate the central thesis of Der Nomos der Erde. The seventh corollary, “Appropriation/Distribution/Production,” is particularly significant because it relates nomos to the contemporary world: it addresses the problem of the transition from a liberal Rechtsstaat to a Sozialstaat and raises the problem of a new nomos of the earth.[8]

 

Corollaries of Nomos

To speak of a nomos of the earth means to consider the earth as a whole. Before the age of discovery, at least before the 15th century, there was no global concept of the earth. For all practical purposes the world ended where the oceans began. Thus the first nomos of the earth was not a global conception but rather what the Greeks called oekumene. All law was land-bound. In Schmitt’s view, law is the unity of order and orientation (or location). All great original formulations of laws occurred on land. They were a result of land appropriations, whether the founding of cities, military occupations, the establishment of colonies, etc. In historical hindsight, land appropriation has a categorical character — it is the presupposition of internal and external, mine and thine, private law and public law, imperium and dominium. Land appropriation is accordingly the prototype of a legal order because it creates the most radical legal title. In the second and truly global homos of the earth, based on a particular relation between fixed land and open sea that constituted the Jus Publicum Europaeum and the Eurocentnc international law, the history of international law was also one of land appropriations.

Schmitt’s first corollary focuses on the original land-bound character of law, while the second contrasts pre-global international law with that based on the Jus Publicum Europaeum, which lasted from the end of the 16th into the 20th century. It arose from the dissolution of empire and papacy, which is why the third corollary is devoted to international law during the Christian Middle Ages and continuity with the Roman Empire,[9] and the fifth corollary is devoted to land appropriation as the constitution of international law. The sixth corollary implicitly relates nomos to the primal German word Raum, emphasizing the spatial dimension of the former. Rejecting generalizations of Raum, which have led to many banalities, Schmitt specifically dismisses Bergson’s reading in Lebensphilosophie and quotes Nietzsche to the effect that: “Raum is a word with big shoulders that guards against nothingness. Where Raum is, there also is Sein.” In these words the corollary to nomos is self-evident. The following will concentrate on the fourth and eighth corollaries which elaborates themes broached in the seventh corollary.

The fourth corollary is devoted to the Greek word for the first and most fundamental measure of all land appropriation — the first spatial division and distribution — nomos, which in its original sense Schmitt found best suited to focus on the fundamental process of order and orientation. But in his view the historical distortion of the original meaning of nomos is equally significant. It serves to demonstrate the contemporary relevance of nomos. Noting that Triepel criticized the Reichstag’s legislation of law with the statement “Gesetz is not sacrosanct, only Recht; Gesetz is subordinate to Recht,”[10] Schmitt countered that the antithesis was not between Gesetz and Recht but rather between a properly understood concept of Gesetz and a hopeless formalism which considers everything in the legislative sphere to be law. Indicative of this situation was the fact that the misuse of legislative power had been characterized as “nomomachy” (rule of law),[11] whereas in fact what was missing was nomos properly understood. In other words, what was missing was the rational minimum of a true Gesetz, i.e., the failure to recognize the general character of a true norm (Rechtsnorm). Once this general character is abandoned, all idioms of nonnativity become inherently contradictory because every arbitrary mandate is as valid as a norm.

To illustrate the relation between order and orientation,[12] Schmitt cautions against equating nomos with Gesetz, or norm or any similar expression. In this regard, he notes an attempt to define nomos as Lebensgesetz (law of life), which he rejects not only because of the word Gesetz but also because of the biological connection between law and life. One of the reasons why he returned to the original meaning of nomos was to defend the integrity of law against legal positivism and the contusion brought about by 19th century jurisprudence, while distinguishing it from the immediate problem of a new nomos of the earth.[13] Since most jurists of his day spoke the language of legal positivism and philosophers tended to follow the language of jurists, Schmitt indicates how the unfortunate word Gesetz tended to mislead the discussion of nomos. After decades of misuse of the legality of the centralized Gestzesstaat, the concept of legitimacy appeared to be the only corrective. Legality became “the functional mode of a state bureaucracy,” which operates by prescribing prescriptions (Setzung von Setzungen) from a centralized authority. The more centralized this authority becomes, the more intense the compulsion to make laws whose hyper-formality is matched by their lack of content. Schmitt employs nomos as an antidote to this positivistic understanding of Gesetz — the law of the legalitarian Gesetzesstaat.[14]

This legalitarian dilemma is the result of the destruction of the original meaning of nomos as land appropriation, which occurred with the Sophists. But already with Plato nomos acquired the meaning of a schedon — a mere rule.[15] Plato’s nomoi (laws)) exhibit the utopian character of modern laws: they have little to do with fortuitous nomoi and even less with politics. By contrast, Aristotle distinguished the concrete order as a whole — the nomos — from the various nomoi. Schmitt found something of the original relation between order and orientation still recognizable in Aristotle, meaning that nomos is still a component of a concrete spatial dimension. Moreover, Aristotle claimed that nomos was antithetical to Psephisma and other designations having only the character of decrees. Unlike in modern ideologies of the rule of law, in Aristotle the rule of nomos recognizes a common principle and is consistent with the lair division of property.[16]

By contraposing nomos and physis the Sophists contributed to the destruction of the original meaning of nomos, which was thereby reduced from a fact of life (Sein) to a prescribed ought (Sollen). It thus became indistinguishable from psephisma and other designations for arbitrary prescriptions. Originally, nomos is the division of land in a particular order as well as the resulting Gestalt of political, social and religious organization which together constitute a spatially concrete unity. In land appropriation, in the founding of a city or a colony, nomos becomes visible when a family, group or people becomes historically settled and create a political order in a particular location. According to Schmitt, all human nomoi are “nourished by” a godlike nomos, whatever it may be, meaning any nomos can grow like plans and property. A wall might also be called a nomos if it is based on sacred orientations. Such metaphors are meaningful, since they refer to the submerged image of the “source” of law discussed by Saviguy.[17] But one should not lose sight of the fact that nomos is related to a constitutive spatial ordering.

The eighth corollary deals with power. Commenting on Przywara’s book Humanitas.[18] Schmitt focuses on the third tendency of power to visibility and publicity, in response to the first tendency to secrecy and obscurity, and remarks that Plato found a median between monarchy and democracy in the polis, i.e., in a world in which the memory of the oikos (household) and oiko-nomie remains strong. In the more than 3,000 year history of the concept of nomos, the most important event was the transition from the nomadic to the sedentary age — to the Oikos. Moreover, in the numerous uses of the word nomos, none has been more frequent than oiko-nomia and oiko-nomos. Significant here is that these linkages developed even prior to the polis.

In the 18th century “scientific” discipline of political economy, the extension of the nomos to the polis retained its linguistic relation to the oikos — there was no polito-nomie but rather oiko-nomie. Obviously, says Schmitt, there is a special relation between nomos and the means of subsistence, i.e., the economy. The nomadic age was overcome with the joining of oikos and nomos. In his Politeia Plato distinguishes between the nomeus (shepherd) and the political man. The shepherd stood higher above his flock than did the political man above those he governed. Once these two positions were joined, the relation of economics to politics became problematic, reaching crisis proportions with the transformation of the community into an administrative and then into a managerial state concerned with providing for everyone. In this connection, Schmitt mentions Friedrich Engels’ utopian promise that one day the power of men over men will cease and there will be only production and consumption because “things will govern themselves.” Presumably this would make superfluous every aristocracy and democracy, monarchy and oligarchy –all anthropologically-based power deriving from appropriation as well as all theologically-based power ordained by God. But in Schmitt’s view no nomos can exist without either one or the other.

The third tendency of power obtains only in the rejection of anonymity and obscurity. Here Schmitt’s argument that subjectivity is fundamental to Western civilization is related to Adam Smith and Karl Marx. “As soon as a true name appears, the purely economic nomos is exhausted in economy and administration disappears. The beehive has no names.” The allusion is to Mandeville’s The Fable of the Bees and the relation between Engels’ claim that “things will govern themselves” and the rationalistic claim of the French Revolution that reason will rule “in the name of the law.” But law has no name any more than has reason or humanity. The reification of impersonal laws governing themselves is an illusion in both economics and politics. “What began as the tidings of the Goddess of Reason ended with the gangster slogan of Bertolt Brecht.”[19] A name presupposes precisely that subjectivity threatened by the objectivity presumed by a world in which “things govern themselves” and where anonymous power-holders rule “in the name of the law.” In such a situation, the project of Western civilization is also aborted because it loses its dynamic: “As soon as there is no longer any horizon other than the status quo, normativism and positivism become plausible and obvious.”[20]

 

The Seventh Corollary

Schmitt’s seventh corollary promises more than it delivers. Nevertheless, it poses nomos as a contemporary problem. It addresses the positivistic prejudices against thinking about the totality while rejecting pseudo-universality. Specifically, by reexamining the concept of nomos Schmitt analyzes the decline of the state (which in his view was the crowning achievement of Western rationalism, the core institution of the nomos of the earth within the context of the international law of the Jus Publicum Europaeum). “World history is a history of progress in the means and methods of appropriation: from the land appropriations of nomadic and agricultural-feudal times to the sea appropriations of the 16th/17th centuries, to the industrial appropriations of the industrial-technical age and its distinction between developed and undeveloped areas, to the present-day appropriations of air and space. Today’s odium of colonialism, encountered by Europeans, is the odium of appropriation.”[21]

Schmitt relates the odium of appropriation to the transformation of the political state into a social agency no longer able to function as the cornerstone of a nomos of the earth. The constitutional aspect of the problem of nomos becomes crucial as soon as the most important function of the state consists in the distribution or redistribution of the social product. That is the case in industrialized countries with an administrative state responsible for the welfare of the masses.”[2] Before such a state distributes or redistributes the social product, it must first appropriate it. Those who distribute and redistribute will be real powerholders and such positions are themselves appropriated and distributed. “Even here the question of appropriation has not disappeared.”[23]

This is the problem of the transition from a Rechtsstaat to a Sozialstaat and of the fact that one state can only have one type of basic rights. In general, a Rechtsstaat recognizes only negative rights, especially freedom and property, whereas a Sozialstaat makes claim to positive state enforcement. Negative freedom — freedom from the state — is not mediated by the state or any other institution. Thus it is a misunderstanding to regard the right to freedom or property as a claim to administration. In principle, individual rights are unlimited, whereas every legal norm, every state intervention, must be limited and calculable. Freedom “according to the provisions of the law” is no freedom at all. Consequently, a state built not on negative individual rights but on positive citizen claims is not a Rechtsstaat but a Sozialstaat. Indicative of the present problem is the instrumentalization of basic rights.

Obviously, a Rechtsstaat which distinguishes between state and society cannot have the same type of basic rights as a Sozialstaat, which is responsible for the welfare of the masses.[24] Significant here is Schmitt’s understanding of nomos in terms of property and its relation to expropriation.[25] The question of appropriation and expropriation is one of property rights.[26] For Schmitt, property and expropriation are structurally related in every legal and economic order. Expropriation is not intervention or a violation of the law but rather a legal institution. Consequently, just as property relations in a Rechtsstaat are different from those in a Sozialstaat, so is expropriation. Since every constitution that guarantees property rights must at the same time provide for a possible exception to the rule, it must also develop its own institutional procedure of expropriation. Thus a true constitutional guarantee obtains only when there is due process whereby specific negations of property are a reaffirmation of property rights and do not imply a violation of the total order of property upon which the concept of expropriation is based.

Recently, the constitutional guarantee and extension of expropriation has been seen as strengthening property rights. In reality, however, it has destroyed the means of resistance and accelerated a general functionalization because it has not created any constitutional guarantee against inflation. More to the point, no “compensation” is sufficient for the dissolution of property into a general property fight because what is destroyed is not only landed and liquid property but the idea of a spatial relation between house, home and family — the link between property and tradition — which was still the meaning of the prior constitutional guarantee.[27] The functionalization of property transforms the greater power of resistance of demesne, i.e., direct ownership, into its opposite. Whereas the spatial context, public visibility and concrete immovability of demesne formerly constituted personal security, it now becomes no more certain than any other property fight which can be detached and adjusted by the state through taxation and other social priorities. Functionalization means the desubstantiation of property.

In Schmitt’s view, the functionalization of property is consistent with that same value neutralization which turned democracy into the Weltan-schauung of a fundamental relativism. What is lost through legal positivista, especially the theory of constitutional changes through legislation, is the awareness that legality is an essential part of Western rationalism and as such a form of legitimacy rather than its opposite. According to Schmitt, this blindness should not be attributed only to the limitations of a positivistic and professional isolation. Rather, it is much more the expression of the legislative optimism of the preceding epoch, which considered law not as a means of stabilization but as a means of pursuing reforms and progressive development. Direct constitutional enforcement — judicial activism –paved the way forr the transition from the legislative to the managerial or administrative state.[28]

Once legality becomes the functional mode of the state bureaucracy, law transcends the Rechtsstaat’s classical separation of state and society and paves the way for the development of a Sozialstaat. Here the political premiums accruing to the legal holding of state power –super-legality — becomes crucial. In countries in which the state bureaucracy still did not have the monopoly of the discharge of public tasks, such as England and the US, the transformation of law into a functional mode of public officials was in Schmitt’s view hardly conceivable, as was the transformation in the meaning of the word “legality.”[89] But today this functionalization has proceeded apace in both England and the US, where legalitarianism has become widespread. Thus the transformation of law into legality was more than a specific German problem. In France, the motherland of state legality and codification, the sharpest formulations of a purely formalistic legality opposed to substantive law and historical legitimacy set a standard since the middle of the 19th century. In any case, says Schmitt, legal positivism reigns supreme, and this means the triumph of the normative power of the given.

Given this functionalization of law, what are the prospects for a new nomos of the earth?[90] In Schmitt’s view, the desire for a well-functioning unity of the world corresponds to today’s predominantly technocratic Weltanschauung. It the late of humanity is technology rather than politics, then the problem of global unity has already been solved. With the development of the Cold War and the bipolar division of the world, the earlier division of land and sea and the equilibrium inherent in it had been destroyed. Modem technology had appropriated the elemental character of the sea, adding a third dimension, air, which had also become a battleground. In such a situation, what could be the new nomos of the earth? Schmitt foresaw three possibilities. The first was that one of the superpowers would defeat the other. Presumably, this would be consistent with the technical view of the world in which the immediate duality was only the penultimate stage prior to the ultimate unification of the world. The second possibility would be the restoration of the former Nomos of the earth. The domination of the sea once held by England would be complemented by a domination of the air, which would only be possible for the US. This new and greater “island” would guarantee world equilibrium. Such an eventuality had tradition and custom on its side, but Schmitt thought a third possibility more realistic. It would also be based on an equilibrium, but not of one hegemonic power controlling the sea and the air. The new nomos of the earth would most likely be constituted of a number of independent Grossraume. This would signal the breakthrough to a new pluralism — a balance of forces which could pave the way for a new international law. There would be many analogies to the preceding Eurocentric international law whose structure obtained in a balance of several powers. Its framework was pluralistic, but it presupposed a community and a unity. The new nomos of the earth would not be one world but a pluralistic community in unity.[31]

 

Translating Nomos

In “The Plight of European Jurisprudence” Schmitt recalls a dispute with Johannes Popitz concerning the relation between jurisprudence and philosophy that has bearing on the precise understanding of nomos.[32] Popitz had argued that concepts such as person, reciprocity, etc., were of purely philosophical origin, and as an example he cited the influence of Greek philosophy on Roman jurisprudence.[33] Schmitt disagreed and, in support of his counterclaim, quoted the Spanish editor of Cicero’s De legibus, where Cicero translates the Greek Nomos with the Latin lex,[34] which is allegedly one of the greatest burdens that Western culture has had to bear since it reduced the original meaning of nomos to mere law and paved the way for all subsequent manipulations.

Were one to translate Der Nomos der Erde into English, it would not be understandable as The Law of the Earth but would have to be rendered as The Order of the Earth. It might be possible to shorten it to World Order, but this would miss the spatial dimension so essential to Schmitt’s understanding of nomos. Since nomos is not a German but a Greek word, it would be best to title such a translation: The Nomos of the Earth. After all, Schmitt’s means of addressing the constitutional crisis of the transition from a Rechtsstaat to a Sozialstaat and the attendant problem of legality and legitimacy is a radical reconceptualization of precisely this word nomos. Such a reconceptualization presupposes a method he calls the “sociology of juridical concepts,” which traces a concept back to its historical root, i.e., the “deeper simplicity of organic concepts.”

To translate nomos one has to find English equivalents for nehmen, teilen and weiden. Schmitt himself notes this difficulty, specifically with respect to nehmen and weiden, in a Spanish translation of his seventh corollary.[35] This difficulty is obvious in the present translation. The Spanish version also translates nehmen as appropriation, but renders weiden as pasturage, which is technically more correct than production. In this English version, the clarification of Schmitt’s meaning takes precedence over literal translation. Here it should be emphasized that Schmitt’s meaning is itself a historical-juridical interpretation of core concepts. At the beginning of his article he makes a point of distinguishing between the views of philologists and those of historians and jurists, and invites “the philologists to follow us for a moment.” Many philologists would not agree with Schmitt’s interpretation of nomos and many more would probably not be willing to follow him even for a moment. The same may be said of many historians and jurists. Nevertheless, Schmitt’s interpretation transcends philology and even the technical objections of historians and jurists to address the most critical issues of our time. It is political theory par excellence.

Notes:

1. All references will be to Carl Schmitt, Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum, Second Edition (Berlin: Duncker & Humblot, 1974). In a letter to the Spanish jurist Alfonso Otero, Schmitt indicated his reservations: “We know that all history is the history of law. Yet which faculty or department in the contemporary university respects this compositum — this composite of two substantive disciplines? Does it deal primarily with jurisprudence or with history? Is it a mixture reached through painstaking deliberation or a complete fusion? Or are we dealing with an interdisciplinary syndrome? These arc disturbing questions which can conceal political tensions. I speak from experience. My own discipline is not the history of law but rather constitutional and international law, both of which are so burdened with history that their complete scholarly representation is transformed into a branch of the history of law. Without intensive historical research and historical examples, i.e., without case law, they cannot be made understandable.” See Carl Schmitt, “Carta a Alfonso Otero,” in Homenaje al Profesor Alfonso Otero (Santiago de Compostela: Universidad de Santiago de Compostela, 1981), pp. 13-16. Here Schmitt refers to his lecture “The Plight of European Jurisprudence,” which claims that “history obtains its concrete evidence from the history of law.” See Carl Schmitt, “The Plight of European Jurisprudence,” in Telos83 (Spring 1990), pp. 95-70. Cf. also in the same issue, Paul Piccone and G. L. Ulmen, “Schmitt’s ‘Testament’ and the Future of Europe,” pp. 3-34.
2. See the 1932 “Postscript” and the 1936 “Preface” to Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien (Berlin: Duncker & Humblot, 1963), pp. 96 and 16 respectively. See also Carl Schmitt, The Concept of the Political, George Schwab trans. (New Brunswick: Rutgers University Press, 1976).
3. See the 1963 Preface to Schmitt, Der Begriff des Politischen, op. cit., p. 13.
4. Schmitt, Der Nomos der Erde, op.cit., p. 6.
5. Ibid.
6. 1) “Law as the Unity of Order and Orientation”; 2) “Pre-Global International Law”; 3) “Comment on the International Law of the Christian Middle Ages; Respublica Christiana as a Spatial Order / The Christian Empire as a Restrainer of the Antichrist (Kat-Echon) / Empire. Caesarism, Tyranny”; 4) “On the Significance of the Word Nomos: Nomos and Law / Nomos as Sovereign / Nomos in Homer / Nomos as the Fundamental Process of Spatial Division”; 5) “Land Appropriation as the Constitutive Process of International Law.”
7. The sixth corollary, “Zur Phonetik des Wortes Raum,” was published along with the first corollary in “Recht und Raum,” in Tymbos fur Wilhelm Ahlmann: Ein Gedenkbuch, edited by his friends (Berlin: Walter de Gruyter Verlag, 1951), pp. 241-244; the eighth corollary is “Nomos-Nahme-Name,” in Siegfried Behn, ed., Der bestandige Aufbruch: Festschrift fur Erich Przywara (Nuremberg: Glock und Lutz Verlag, 1957), pp. 92-105.
8. Schmitt’s seventh corollary first appeared in Gemeinschaft und Politik: Zeitschrift fur soziale und politische Gestalt, Vol. 1, No. 2 (November 1953), pp. 18-27.
9. The decisive historical concept of the continuity between the Roman Empire and the Christian Middle Ages was the Katechon — the restrainer of the Antichrist, which signified the historical authority of the term “empire.” It was thought that only the Roman Empire and its Christian successor could hold back the overwhelming power of evil. The unity of the Respublica Christiana lay in the unity of imperium and sacerdotium.
10. Cf. Heinrich Triepel, “Streitigkeiten zwischen Reich und Landern,” in Festgabe der Berliner Juristischen Pakultat fur Wilhelm Kahl zum Doktorjubilaum am 19. April 1923 (Tubingen: J. C. B. Mohr [Paul Siebeck], 1923), p. 93, quoted in Carl Schmitt, Verfassungslehre (1928), Fifth Edition (Berlin: Duncker & Humblot, 1970), p. 142; referred to in Schmitt, Der Nomos der Erde, op.cit., p. 36n.
11. Schmitt says the expression “nomomachy” stems from James Goldschmidt in Juristische Wochenschrift (1944), pp. 245ff, although this journal ceased publication in 1939 and was replaced by Deutsches Recht. Elsewhere Schmitt observes that a word like nomocracy (government in accordance with a system of law) still has meaning, whereas one can hardly speak of a nomarchy (a class of lawyers).
12. Cf. Carl Schmitt, “Justissima tellus: Das Recht als Einheit von Ordnung und Ortung,” in Universitas: Zeitschrift fur Wissenschaft, Kunst und Literatur, Vol. 6, No. 3 (1951), pp. 283-290.
13. Elsewhere Schmitt observes that the positivistic concept of law in the natural sciences is even more confused. Scientific positivism knows no origin, only causes. Consequently, the relation between order and orientation is suspended (aufgehoben). He acknowledges the merits of claims made by philosophers such as Heinrich Rickert and Wilhelm Windelband that the sciences should be divided into natural and social. This distinction was meant to defend the social sciences against the absolutization of the natural sciences at the end of the 19th century and was an attempt to rescue historical thinking. He also recognizes, however, that in the process the word nomos was relegated to the natural sciences, which led Windelband to consider only the natural sciences as “nomo-thetic.” This was part of the 19th century functionalization of nomos into Gesetz.
14. Twice in his discussion of the meaning of nomos, Schmitt refers to Weber’s definition of legality as the “chance to compel obedience,” which he also cites in his discussion of “super-legality,” where he emphasizes that “State legality creates for itself a political surplus value . . . . ” Cf. Carl Schmitt, “The Legal World Revolution,” in Telos72 (Summer 1987), pp. 74f. Cf. also G. L. Ulmen, Politischer Mehrwert: Eine Studie uber Max Weber und Carl Schmitt (Weinheim: VCH, Acta humaniora, 1991).
15. Cf. Edith Hamilton and Huntington Cairns eds, The Collected Dialogues of Plato, Including the Letters (New York: Pantheon Books, Bollingen Series LXXI, 1961), “Statesman,” p. 1063, section 294b.
16. Schmitt observes that it is necessary to read the appropriate passages in Aristotle’s Politics. Cf. Richard McKeon, ed., The Basic Works of Aristotle (New York: Random House, 1968), pp. 1208-1213, section 1290-1292e.
17. Cf. Schmitt, “The Plight of European Jurisprudence,” op. cit., especially the section tided “Savigny as an Alternative Paradigm,” pp. 54ff.
18. Schmitt, “Nomos-Nahme-Name,” in Der bestandige Aufbruch; Festshrift fur Erich Przywara, op.cit., p. 92. Cf. also Erich Przywara, Humanitas: Der Mensch gestern und morgen (Nuremberg: Glock und Lutz Verlag, 1952).
19. Ibid., p. 401.
20. Ibid., p. 97. Here Schmitt’s analysis parallels Husserl’s “crisis of European science,” as well as the Hegelian-Marxist theme of reification. See Piccone and Ulmen, “Schmitt’s ‘Testament’ . . . ” op. cit., pp. 21-25. See also “Schmitt’s ‘Testament’ and the Future of Europe: Four Exchanges,” in Telos85 (Fall 1990), pp. 93-148.
21. Cf. the notes Schmitt appended to his 1953 article in Verfassungsrechtliche Aufsatze, op. cit., p. 503.
22. Here Schmitt cites Ernst Forsthoff, “Begriff und Wesen des sozialen Rechts-staates,” in Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, Vol. 12 (1954), pp. 8-36.
23. Here Schmitt quotes a sentence from the Christian Democratic journal, Civis, No. 31 (July 1957), to the effect that “[a] constitution whose core is to constitute a procedural order for the distribution of the social product is no longer a constitution.”
24. Cf. note appended to Carl Schmitt, “Grundrechte und Grundpflichten” (1939), in Verfassungsrechtliche Aufsatze, op. cit., pp.
25. A case in point is the 1949 West German Constitution, which emphasizes individual rights, while guaranteeing a social Rechtsstaat. Consequently, every decision concerning basic rights, such as the guarantee of property, becomes problematic. In this connection, Schmitt agrees with Forsthoff that “Sozialstaat and Rechtsstaat should not be merged on the constitutional level. The program of the Sozialstaat is legislation and administration.” Schmitt adds: “If the formula of a social Rechtsstaat changes the constitutional guarantee of property, and promotes the functionalization of property through immanent social obligations, the question arises as to how long a clear distinction between the constitutional level and the administrative level can be maintained . . . . In any case, the constitutional guarantees are only realized in the hic Rhodus, hic salta of the social Rechtsstaat.” See Schmitt, Verfassungsrechtliche Aufsazte, op. cit., 230f. Cf. Ernst Forsthoff, “Begriff und Wesen des sozialen Rechtsstaates,” in Veroffentlichungen der Vereinigen der Deutschen Staatsrechtslehrer, Vol. 12 (1954), pp. 8-36. On the difference between basic rights in a liberal Rechtsstaat and a Sozialstaat, see Georges Burdeau, “La democratie gouvemante, son assise social et sa philosophic politique,” in Traite de science politique, Vol. VI (Paris: Librairie generale de droit et de jurisprudence, 1956), p. 374.
26. On the constitutional guarantee of property, see Carl Schmitt, “Die Auflosung des Enteignungsbegriffs” (1929) in Verfassungsrechtliche Aufsaze, op. cit., pp. 110-123.
27. Subjective rights are only constitutional rights — not basic rights in the sense of the fundamental principle of the separation of powers, characteristic of the liberal Rechtsstaat. They are not prior to the state but obtain within it — they are institutions, and an institution cannot presuppose rights as given. Institutional guarantees are not basic rights. Cf. “Institutionelle Garantien sind von Grundrechten zu unterscheiden,” in Schmitt, Verfassungslehre, op. cit., pp. 170-182.
28. Cf. Carl Schmitt, “Rechtsstaatlicher Verfassungsvollzug” (1952), in Schmitt, Verfassungsrechtliche Aufsazte, op. cit., pp. 452-488.
29. Cf. Carl Schmitt, “Das Problem der Legalitat” (1950), in Schmitt, Verfas-sungsrechtliche Aufsatze, op. cit., pp. 440-451.
30. Cf. Carl Schmitt, “Die Einheit der Welt,” in Merkur, Vol. VI, No. 1 (January, 1952), pp. 1-11; and “Der neue Nomos der Erde,” in Gemeinschaft und Politik, Vol. 3, No. 1 (1955), pp. 7-10.
31. Considering the new nomos of the earth, Alexandre Kojeve coined the expression “bestowing capitalism.” In Schmitt’s notes to his seventh corollary, he says that what Kojeve had in mind was the modern, enlightened capitalism of Fordism, considered in terms of the increase in the buying power of workers and the industrial development of underdeveloped areas. This was something quite different from what Karl Marx had in mind when he spoke of “appropriating capitalism.” Whatever the merits of Kojeve’s capitalism, Schmitt retorted: “Only a god who has created the world from nothing can give without taking, and then only in terms of this world which he has created from nothing.”[36] Schmitt’s point is clearly not to adopt a position for or against capitalistn but rather to affirm the fundamental nature of the first meaning of nomos. Cf. Schmitt, Verfassungsrechtliche Aufsatze, op. cit., pp. 503f.
32. Cf. Schmitt, in Verfassungsrechtliche Aufsatze, op. cit., p. 427.
33. He was particularly impressed with Johnnes Stroux’ work emphasizing this point. See Werner Jaeger, ed., Das Problem des Klassischen und die Antike: Acht Vortrage gehalten auf den Fachtagung der Klassischen Alterumswissenschaft zu Naumberg. 1930, von Johannes Stroux (Leipzig: teubner Verlag, 1931). Cf. also Johannes Stroux, Romische Rechtswissenschaft und Rhetorik (Potsdam: E. Stichnote Verlag, 1949).
34. Alvaro Perez-Peix d’Ors, De la Guerra y de la Paz (Madrid: Ediciones Rialp, 1954), p. 160. Cf. also Alvaro Perez-Peix d’Ors, ed., Marcus Tullius Cicero, Las leyes (Madrid: Instituto de Estudios Politicos, 1953).
35. “Appropiacion, Particion, Apacentamiento,” Translated by Antonio Truyol y Serra in Boletin Informativo del Seminario de Derecho Politico (1955).

[Telos, Spring 93, Issue 95]

Tags: Gary-Ulmen