From Nomos to Hegung: Sovereignty and the Laws of War in Schmitt's International Order
| DOI | http://doi.org/10.1111/1468-2230.12122 |
| Published date | 01 May 2015 |
| Author | Johanna Jacques |
| Date | 01 May 2015 |
From Nomos to Hegung: Sovereignty and the Laws of War
in Schmitt’s International Order
Johanna Jacques*
Carl Schmitt’s notion of nomos is commonly regarded as the international equivalent to the
national sovereign’s decision on the exception. But can concrete spatial order alone turn a
constellation of forces into an international order? This article looks at Schmitt’s work The Nomos
of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place
of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos,
the ordering function of the presocratic concept moira is explored. It is argued that the process of
Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of
possibility for plural order.
THE QUESTION OF SOVEREIGNTY
Carl Schmitt’s definition of national sovereignty is well known: In relation to a
unified order such as the state, Schmitt locates sovereignty in the role of a
decision maker who is able to decide when to declare a state of exception and
whom to identify as the state’s friends and enemies. In relation to a plural or
international order, however, the location of this ‘we’, this self-reflexive,
boundary-drawing element of order that Schmitt calls sovereignty, presents a
problem. How can order be unified and thus become an order, without thereby
sacrificing the plurality of its constituents? As William Rasch writes:
...theparadox of . . . pluralism . . . [is that it requires] a structure that cannot itself
be pluralistically relativized. Pluralism is not self-justifying; hence it requires alle-
giance. But to what is allegiance owed if pluralism is to flourish?1
When Schmitt turned his attention from state to international order some time
after 1936,2it was not an option for him to propose universal norms in answer
to this question. Already with his concept of national sovereignty, Schmitt had
targeted a type of liberalism that ‘endorses internal plurality based on a nebulous,
yet highly threatening, universal foundation’.3
However, the question of international sovereignty at first did not arise. This
was because Schmitt’s Groβraum theory of international order envisaged that a
single hegemonic state (such as the German Reich) would regulate a regional
*School of Law, University of Warwick. I would like to thank Alain Pottage, William Rasch, and two
anonymous reviewers for their invaluable comments.
1 W. Rasch, Niklas Luhmann’s Modernity: The Paradoxes of Differentiation (Stanford: Stanford Uni-
versity Press, 2000) 165.
2 T. Zarmanian, ‘Carl Schmitt and the Problem of Legal Order: From Domestic to International’
(2006) 19 Leiden Journal of International Law 41, 54.
3 Rasch, n 1 above, 158.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(3) MLR 411–430
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
order’s boundaries as the effective sovereign.4Only when Schmitt wrote The
Nomos of the Earth in the latter part of the 1940s, having revised his views on
international order in favour of a plural order without the leadership of a single
state, did it become apparent that he could no longer use the notion of sover-
eignty he had himself developed in Political Theology. As Giorgio Agamben notes
in relation to The Nomos of the Earth, Schmitt here ‘makes no allusion to his own
definition of sovereignty’.5The problem Schmitt encountered was that the
European order had not only no single overarching sovereign who could decide
when the order’s normality had been breached, but also no enemy in the sense
in which states had enemies: ‘[A]n enemy exists only when, at least potentially,
one fighting collectivity of people confronts a similar collectivity’.6While indi-
vidual European states were going to war against other nations outside of
Europe, Europe as a whole had neither such agency nor such opponents. Its
‘outside’ was (from the European point of view) not a defined entity, but simply
undistinguished exteriority.7This meant that Schmitt could not refer to a
constitutive outside for the foundation of international order in the same way in
which he had done for state order. Nor did he think that the order of the jus
publicum Europaeum was merely a loose arrangement based on the free agreement
of the participating states.8Where, then, was the sovereign element of interna-
tional order?
To solve this problem, Schmitt turned to nomos, or concrete spatial order.
Already in 1934, Schmitt had contemplated the meaning of the phrase nomos
basileus (nomos the king).9In The Nomos of the Earth, Schmitt then considered at
length the meaning of nomos as ‘ruler’.10 He appeared to think that there existed
a spatially determined ‘balance’, ‘tension’, or ‘equilibrium’ between European
states that would regulate European order.11
However, the idea of nomos as sovereign leaves a number of questions
unanswered. For example, how could concrete spatial order ‘as a whole’, as
Schmitt claims, decide on its own normality, when he also maintains that there
was no ‘centralized location’ from which such a decision might have issued?12
4 See, for example, C. Schmitt, ‘The Großraum Order of International Law with a Ban on
Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in Interna-
tional Law’ in Writings on War (Cambridge and Malden: Polity Press, 2011) 110–111.
5 G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998)
36.
6 C. Schmitt, The Concept of the Political (Chicago and London: The University of Chicago Press,
1996) 28.
7 If one is to rely on exteriority, this must be in the form of something. Schmitt thus writes that the
enemy ‘is our own question brought into shape’, C. Schmitt, Theory of the Partisan: Intermediate
Commentary on the Concept of the Political (New York: Telos Press Publishing, 2007) 85 (translation
amended, emphasis added).
8 C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New
York: Telos Press Publishing, 2003) 147–148 and 166.
9 ‘One can speak of a true Nomos as true king only if Nomos means precisely the concept of Recht
encompassing a concrete order and Gemeinschaft’, C. Schmitt, On the Three Types of Juristic Thought
(Westport: Praeger, 2004) 50–51.
10 Schmitt, n 8 above, 72–76.
11 ibid, various.
12 ibid, 188.
Sovereignty and the Laws of War in Schmitt’s International Order
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
412 (2015) 78(3) MLR 411–430
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