Taking Nomos: Carl Schmitt's Philology Unbound

Abstract

Carl Schmitt famously drew a distinction between what he called nomos and what we usually think of as law (Gesetz in German, lex in Latin). The latter, he explained, is a positivist legal order based on normative thinking, where the highest law would still only be a historically contingent norm. In contrast, nomos—though commonly translated from the Greek as “law”—is the total concept of right that precedes and makes possible all such laws, and “comprises a concrete order and community” (Nomos of the Earth, p. 20). One might think that “right” (German Recht) itself could fulfill this conceptual and terminological role; indeed, as Thomas Schestag notes, Schmitt consistently and without comment translated nomos as Recht in his early writings. But for Schmitt the origin of right and laws is inextricably tied to the land and, more specifically, to originary events of land appropriation, which engender first spatial and then political, social, and religious orders. He thus defines nomos as “the measure by which the land in a particular order is divided and situated; it is also the form of political, social, and religious order determined by this process. Here, measure, order, and form constitute a spatially concrete unity.” (NoE, p. 70) Schmitt's terminological turn to nomos in the 1930s, which culminated in his most expansive exposition of the term in his 1950 book Der Nomos der Erde in Völkerrecht des Jus Publicum Europaeum (The Nomos of the Earth in the International Law of the jus publicum Europaeum), was prompted by what he saw as not only a political but also as a jurisprudential crisis in the first half of the twentieth century. Though a nomos is, almost by definition, a nomos of the earth (in the sense of land), the first truly global nomos of the earth arose, according to Schmitt, with the European colonialist expansion in the sixteenth century. This world order depended upon the distinction between European and non-European space (which was free for occupation), as well as that between land and sea; it was embodied in a European public law, the jus publicum Europaeum, that guaranteed balanced and stable relations between European colonial powers while also maintaining sharp divisions between the public and the private, and the political and the economic. Its greatest success was the bracketing of war: the conduct of war as a non-discriminatory “regulated contest of forces … in a bracketed space” and the consequent exclusion of wars of annihilation. Already in decline at the end of the nineteenth century, this world order collapsed entirely in the twentieth; believing that attempts to replace it by a vague and abstract “international law” were misguided, Schmitt in The Nomos of the Earth sought to redirect “human thinking to the elemental orders of its terrestrial being here and now” (NoE, p. 39).